HISTORY OF LAW 255 



difference in this respect between the modern civil law and the com- 

 mon law is not that further development in the former has been 

 rendered impossible while it continues in the latter, but that in the 

 latter the material for such development is officially provided and 

 its use distinctly authorized, while in the former there is no recog- 

 nized rule in accordance with which such material may be preserved 

 or made use of and the results of the development remain obscure 

 until, after the lapse of a long period of illegitimate change, a com- 

 plete revision of the law and revolution in the system of jurispru- 

 dence become necessary. 



The Justinian theory of codification is more rational than that 

 entertained by Bentham and his school in England in this, that 

 Justinian sought simply to embody in authoritative Bentham's 

 form the results of the legislation, interpretation, and School. 

 exposition within the entire field of law; that is, he proposed to repre- 

 sent in his compilations the existing body of the Roman law; while 

 Bentham proposed to substitute for the body of the existing English 

 law a system built up from his own individual conceptions of what 

 the law ought to be. It is easy to see that Bentham's theory was 

 wholly impracticable and visionary, and that such codes as he pro- 

 posed could not possibly cover the field of jurisprudence or be 

 other than disastrous in the practical administration of the law 

 from the very moment of their enactment. Such fragmentary codes 

 as were drafted by him are brief and inadequate condensations of 

 the branches of the law which he attempted to cover, with such 

 changes as in his judgment were thought to be necessary. Such a con- 

 ception of jurisprudence as a system could have been entertained 

 only by one unfamiliar with it either as an art or a science. 



Bentham and his school greatly benefited the English law by 

 agitation for reforms which were needed and which have been ac- 

 complished largely through the more judicious labors Reforms 

 of others. The theory of law which he and his successors ^ Codi-* 8 

 entertained has not in the least affected the science fication. 

 of law in England or elsewhere. The impetus toward codification 

 which has been so marked in England and America during the last 

 century has resulted in an improved system of judicial procedure, 

 and in the revision of the criminal law so as to bring it into harmony 

 with modern conditions. It has also resulted in reducing to more 

 concrete and homogeneous form the rules and principles applicable 

 to some other branches of the law which for practical utility have 

 been rendered more certain and more easily ascertainable. But 

 the practice acts, the criminal codes, and the codified laws of part- 

 nership, sales, and commercial paper have furnished simply a new 

 starting-point for interpretation and exposition. The spirit and 

 underlying conceptions of the law of England continue as before. 



