Codification in England: The Need to Move from an Ideological to a Functional Approach--A Bridge too Far?

Abstract

This paper argues that at the heart of the failure to codify the law in England lies a series of ideological misconceptions associating codification with the Napoleonic era, together with the fear that codification will consequently herald the death toll of the commom law. The author examines whether these misconceptions and fear are well founded and proposes as a way forward out of this impasse the adoption of a functional in place of an ideological approach to codification with the focus being put on the functions a code is expected to fulfil. In this respect the author reviews the various forms that codification has taken today and historically and suggests what might be a practical way towards bridging the gap, in England, between what was in 1965 a politically stated objective and the lack of progress, since that time, in carrying any codification project through to a successful conclusion.