Page:Harvard Law Review Volume 5.djvu/214

198 HARVARD LAW REVIEW. ent considerations, is of the first importance. The confusion of the two questions prevents a proper statement of either; their separation does much to clear up both. ' The question of codification is not for us; but there is one feature of it which should be referred to at this point. Nothing in the battle for codification, which has been fought on so many fields for a century, is more noticeable than the extreme to which each party goes. A code is represented oa the one side as a cure for " the law's delay " and all its evils, and on the other as a chimerical undertaking, impossible in the nature of things. Much of this difference of opinion is explained by a true understanding of the process of applying the law to facts. For one who like Bentham 1 took no account of the difficulties of analyzing and classifying facts, and ignored the process of reasoning which lies, as it were, between any law and its application, there could be but one answer to the codification question. A code would settle everything, and lawsuits, except so far as they turned on mere disputed facts, might be done away with. Modern codifiers, to be sure, do not rely so much on the ancient argument that a code would make every man his own lawyer; but it is the logic of events which has accomplished this. From Bentham's premises the conclusion ought to follow; the only trouble was that he thought only of the rule and overlooked its application. Some of his opponents, on the other hand, lay hold of what may be called the fact end of the process, the end which is especially emphasized by common-law methods, and forget the rule. They therefore designate codification as an attempt to anticipate every possible state of facts and thus win an easy victory over it. Yet intelligent codification has no such aim ; it seeks only to cast the existing rules of law in another form. Mr. Carter, as we have seen, seems especially open to this charge of considering only the facts on the one hand and the source of law on the other, and of squeezing out, so to speak, the tertinm quid, the rule itself, which lies between. As when he likens the judge to the referee of an athletic contest, each being, as he says, an expert chosen to declare the customs of the game. The illustra- tion is an unfortunate one ; for whatever may be true of the judge, nothing could be more untrue of the referee. In any form of athletic sports which is at all developed, the customs of the game 1 See page 193, supra.