Page:The Green Bag (1889–1914), Volume 25.pdf/494

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A Codified Private Law the One Remedy formity of law highly satisfactory. The vast extent of the influence of the Napoleonic codification in both Europe and the twin Americas shows the value of a simple codified legal system is not canceled proportionately by increasing the size of a state. Finally, it is indis putable that the elements of law in the vast English law countries have re mained the same without suffering de triment from the enormous spread of English law by colonization. Not well founded is the conviction that a federal codification of our law made uniform throughout the United States is not only impossible, but, even if it were possible, it would also irrep arably damage or destroy the states themselves. The facts of history point to this very solution as quite possible and not injurious to the integrity of the states of a federal union. The best answer to the assertion that any proposi tion for a uniform federal codification of American law would be like a leap into the dark is to look at a federal Germany and Switzerland. Both were able to rise out of the quagmire of in tensely active state pride, jealousy and historical traditions, and to enact one codified private law for over twenty Swiss and German states without in any way destroying these states them selves. Is the Constitution of the United States the sole supreme wis dom of statesmanship? The framers of the Constitution never held this view as to their work; they provided for amending it whenever necessary.28 It is quite possible to pass an amend ment to the Constitution giving Con gress power to enact a federal codifica tion for the entire United States which shall abrogate the private law of the » And seventeen amendments have already been adopted.


several states. It may also be expressly stipulated in the amendment that the public law of the states shall be left untouched: such a reservation of power was left to the German states when the German Civil Code was promulgated. The public law of the several American states need not be disturbed; but their private law should be replaced by federal codes of civil and commercial law 29— thus resulting in one and only one uniform and codified private law through out the entire United States. Such a single codification of American law would be of a permanent nature. At any rate, future changes in law would operate uniformly throughout the whole United States. But this is centralization! greater nationalization! Very well — it is better to hang together by the adhesive force of one uniform system of private law than to be pulled asunder by the disintegrating forces of 48 dif ferent systems. But it may be urged, assuming the existence of a uniform federal codi fication, would not diversity of inter pretation soon arise, and how can this be avoided as long as we retain adher ence to precedent — that salient fea ture of the common law of England? This is the answer: the force of stare decisis no longer has today in AngloAmerican law the binding power it once had — it is useful but no longer con trols; why not then abrogate it en tirely, as Germany, France and other countries have done? When there is a written code of law, the force of prece dents is no longer binding; the code itself is its own interpreter. The argument against one codified law for all the United States made under

•• Perhaps also federal codes of criminal law, civil and criminal procedure, may some day be deemed advisable.