The codification of the law actually in force becomes a necessity after the body of lawyers' law has increased beyond a certain point. Notwithstanding some undeniable drawbacks, such codification seems to be advantageous on the whole. By summing up the entire course of legal development to date, it creates some sort of order out of the chaos of the law, - which in the course of time tends to become an impenetrable wilderness even to the most skillful.
It is true that the international interaction of legal scientific labor is thereby rendered impossible, - such an influence as existed doubtless during the flowering period of the common law, when Germany, Holland, France, and Italy formed a single province from a literary as well as a legal point of view. For even so late a treatise as that of Savigny, in the early 1800s, was founded on the idea of a science of the civil law unhampered by national boundaries. Nevertheless, codification creates a single, firm basis for legal development and legal science within a nation. And it may be hoped that in the course of time this may break through its national limitations and become transformed into a general, comparative science of law, at least in the sense in which the work of the analytical school of Austin and Holland constitutes such a general science of law.
Even in regard to the common law, however, it would have been worth doubting whether it was necessary or proper to go to the Corpus Juris for rules relating to legal institutions or legal problems about which the common law is silent (especially those originating subsequent to the Reception), and for that purpose to dabble in fictions and logical generalizations modeled after those of the common law, while rejecting the right of free judicial decision on principle. Now after the common law has everywhere been supplanted by codes, that question assumes a double importance. Are we to renounce all free judicial decision regarding these also? Is it to be our destiny for all future time to try to regulate life by fictions and logical generalizations?
Government-formulated law signifies invariably a demand made by the State upon Society. It means that social development is to be subjected to the ends of the State. Therefore it is necessary, in order to justify the compulsion which the statute exerts upon social evolution, to show that such compulsion is absolutely unavoidable for the higher purposes of the State. Consequently, it is a fair question to ask whether the codification of the law may not be objectionable on this ground alone, viz., that it enforces on human life the will of the State in a thousand instances, although frequently the State is not interested in the least that such should be the case. What we are here concerned about, however, is not merely restraint by statute, but restraint by a technical judicial method, which applies the statute to cases for which it contains no express directions.