74 Chi.-Kent L. Rev. 355 (1998-2000)
Codification and Right Answers

handle is hein.journals/chknt74 and id is 373 raw text is: CODIFICATION AND RIGHT ANSWERS

ANDREW P. MORRISS*
Throughout the nineteenth century Americans regularly debated
whether to reduce the common law to a written code. From Jeremy
Bentham's 1811 letter to President James Madison offering to create
a code that would free the United States from the yoke of which in
the wordless, as well as boundless, and shapeless shape of common,
alias Unwritten law, remains still about your necks1 to Montana's
adoption of four massive codes in 1895, codification debates ranged
across the country and the century.
Although the terms of the debate varied as widely as its
geographic location, much of the debate concerned conflicting visions
of what constituted right answers to legal questions. Code proponents
argued that only by reducing the unwritten common law to a written
code could the people be assured that there was a right answer to
most legal questions. A code (as opposed to a mere statute) would
provide a definitive, coherent, and systematic statement of the law. So
long as the law remained scattered among thousands of potentially
conflicting opinions, they claimed, knowing the law was impossible.
Code opponents, on the other hand, rejected the claim that unwritten
law was indeterminate. Not only did the common law provide right
answers to legal questions, the code opponents contended, it was a
superior means of creating right answers to a written code, which
would actually increase indeterminacy in the law.
Although the nineteenth-century American codification debate
is largely forgotten today, it engaged some of the best legal minds of
the century. National figures like Joseph Story, Oliver Wendell
Holmes, Jr., David Dudley Field, John F. Dillon, James C. Carter,
U.S. Supreme Court Justice Samuel F. Miller, John Norton Pomeroy,
* Professor of Law and Associate Professor of Economics, Case Western Reserve
University. A.B. (1981), Princeton; J.D., M.Pub.Aff. (1984), the University of Texas at Austin;
Ph.D. (Economics, 1994), Massachusetts Institute of Technology.
1. Letter from Jeremy Bentham to President James Madison (Oct. 30, 1811), in 8 JEREMY
BENTHAM, THE CORRESPONDENCE OF JEREMY BENTHAM 182, 182 (Stephen Conway ed.,
1988).
2. See infra notes 67-71 and accompanying text.

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