considering the EC Treaty, the traditional English methods of interpretation should not be used, and that the Treaty should be interpreted according to its spirit even when such an approach does not accord with the literal meaning of the words used.(179) Again in 1983 we read: 'The interpretation of Community instruments involves very often not the process familiar to common lawyers of laboriously extracting the meaning from words used but the more creative process of supplying flesh to a spare and loosely constructed skeleton. The choice between submissions may not turn on purely legal considerations, but on a broader view of what the orderly development of the Community requires.'(180) Grief(181) points to the case Litsler v Forth Dry Dock and Engineering Co. Ltd.,(182) to show the distance which British judges have travelled since the early years of Community membership, where Lord Oliver stated: 'If the legislation can reasonably be construed so as to conform with [Community] obligations - obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed upon it by the European Court of Justice at Luxembourg - such a purposive interpretation will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.' Though this appears as remarkable and alien to the traditions of common law, it relates only to how British courts should approach Community law and conventions. In relation to Community law, the national courts, inspired by the Directives and in implementing them, must fill in the gaps of national legislation, and thus take up the role of the legislator to reach the results aimed at by Community law.(183)
What is of extreme importance, however, is how and when this approach becomes embedded in the consciousness of British judges and used as one of the tools while deciding cases related purely to domestic law. This development is even more significant as traditionally it is regarded by the judiciary as taking part in the political process and therefore avoided. Though seldom used as yet, and then as a last resort, there are examples of the use of the teleological approach in purely domestic cases, such as in R v Registrar General ex parte Smith: 'This is consistent with the growing tendency perhaps encouraged by Europe, towards a purposive construction of statutes, at all events if they do not deal with penal or revenue matters.'(184) Judges do now adopt the purposive approach to the interpretation of statutes outside the Community context. Obviously, some judges are more prepared to go down this path than others.(185)
Another and related aspect of statutory interpretation is the consultation of travaux préparatoires while searching for the true intention of the legislator. As already pointed out, the traditional common law approach does not allow for such consultation as an aid to statutory interpretation, since only the expressed will of the legislature is binding. However, this rule has been somewhat softened. Already in 1977,(186) travaux préparatoires were referred to in order to interpret an English statute teleologically and the principle was further applied by the House of Lords in 1989.(187) The most famous case in this respect is Pepper (Inspector of Taxes) v Hart in 1993. While relaxing the rules on interpretation and looking to commonwealth jurisdictions such as Australia and New Zealand for support, Lord Browne-Wilkinson said in the House of Lords: 'We have heard no suggestion that recourse to parliamentary history has significantly increased the cost of litigation in Australia and New Zealand and I do not believe that it will do so in this country ... other common law jurisdictions have abandoned the rule without adverse consequences.'(188) Judges can now refer to parliamentary debates and related documents, though
this can only be done under certain conditions.(189) Here, the impetus to relax the rule has not come directly from the 'contaminants' such as European law and the civilian approach and we can still observe that the guidance and support for this move is sought from other common law jurisdictions. Nevertheless, the civilian encounter did play its role and the judicial experience with Community law must have been a significant contributing factor. In Pepper, the House of Lords relaxed a judge-made rule, in effect since 1769. However, as pointed out above, inroads had already been made into this exclusionary rule, for example, in Pickstone v Freemans plc.(190) where, 'in interpreting a statutory instrument designed to implement the Equal Pay Directive as construed by the ECJ, the House of Lords had regard to what had been said by the Minister who initiated the debate on the regulations in question'.(191)
In 1994 the Court of Appeal used the possibilities opened up by Pepper v Hart, in R v Moore(192) in considering the underlying policy of the Criminal Justice Act of 1991. Rather than adopting a literal reading which would have frustrated the legislative intent, the Court construed the Act so as not to frustrate that intention, though the 1991 Act was neither ambiguous nor obscure. Thus 5. 1C(lXa), which read 'under the following provisions of the Act', was construed as 'under the preceding provisions of this Act'.
The legislator also takes advantage of the teleological approach. Grief(193) gives some examples of this development, such as the Civil Jurisdictions and Judgments Act of 1982, which provides for its own modification by Order in Council as occasioned by the agreed revision of the 1968 Brussels Convention (s. 14 of the Act) or the decisions of the ECJ (s. 47 of the Act). The Civil Jurisdictions and Judgments Act 1991 extended this power to enable statutory modifications to be made to give effect to future revisions of the 1988 Lugano Convention. Another example, again provided by Grief,(194) is the Courts and Legal Services Act 1990. Section 17(1) defines the objective of Part II of the Act: 'The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.' Section 18 imposes a duty on any person exercising any function therein, to act in accordance with the general principle to further the statutory objective as far as is possible and not to act in any way incompatible with the statutory objective. This example is all the more significant as the area has no connection with Community law.
These changes in the classical English approach to statutory drafting and construction may bode well for future pan-European codifications. As is well known, codifications in the Continental sense need to express rules in more general terms, to use general principles laying down policies and to employ the purposive, teleological approach in their interpretation to give continuing life to code provisions. The recent developments in England related to statutory drafting and interpretation may well be the preliminaries towards codification in England in the Continental sense. This leads us into the next section.
5.4.3 Convergence: Codification
5.4.3.1 Introduction
If a civil code, or codification generally, is taken as a prominent sign of the civilian tradition, then it might be enlightening to look at codification activities in the common law world and in England in particular, and specifically at the McGregor Contract Code and its relation, if any, to a future European Contract Code. Convergence and divergence theorists are busy in this field, making out, on the one hand, that codification is perfectly feasible in England and on the other, that Continental type Codes cannot work in common law surroundings. Then, of course, there are the opponents of codification per se, who see it as unsuitable for our swiftly evolving and changing socio-cultural world by pointing to problems of monolithism, fluidity and flexibility, and advocating other methods than the legislative to create convergence, if desired.
In this section, codifications in England and in systems where English law played a role will be considered first. Next, the McGregor Contract Code will be assessed and then the feasibility or success of the coexistence of common law and civil law within a code will be commented upon. Lastly, the Principles of European Contract Law will be considered from the point of view of the English position and the future of European Codes looked at from the same perspective.
As noted earlier, in its colonial relationships, not only did English common law live alongside pre-existing Codes such as in Seychelles or St. Lucia, but it was itself codified as it was introduced, for example, in India.
5.4.3.2 The Law Commission
In 1965 the Law Commission for England and Wales was given the duty of reviewing the law 'with a view of its systematic development and reform, including in particular the codification of the law ... and generally the simplification and modernisation of the law'.(195) From this statement we can glean that Parliament sees codification as relating to simplification and modernisation of the law. If the Law Commission considers codification appropriate, then it can make a recommendation to the Lord Chancellor. The Law Commission itself need not be the body to carry out the recommendation. Dame Mary Arden, the former Chairman of the Law Commission for England and Wales, said that 'Parliament has not, however, vouchsafed us a definition of codification, and English law is not exactly replete with examples of written law called \In answering the question 'What is codification?', she gave this definition, which portrays the English understanding of the process:
In its most extreme form, codification is the process of expressing the whole of the law on a particular topic so that any development of that law has in general to be by way of interpretation of it or deduction from it. The principal difference between a code and, for example, the Unfair Contract Term Act 1977 is that the whole of the law on a recognisable division of law, such as obligations or contract law, is put into a code. The French Code civil or the German Commercial Code are examples of codes of this kind. So far as I am aware, there are no codes of this kind in English law. Even if all the companies legislation was to be consolidated into a single statute, there would still not be a comprehensive companies code because there are substantial areas of the
law, such as the duties of directors, which have not been put into the legislation and which are not simply a matter of deduction from it. Then there are the less comprehensive codes - the consumer credit legislation, the Sale of Goods Act 1893, the Bill of Exchange Act 1882, the Married Women's Property Act 1882 and the Marine Insurance Act 1906. These codes satisfy the dictionary definition of code (a systematic collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping: a set of rules on any subject ... Concise Oxford Dictionary 8th edn. 1990) even though they cover a relatively limited area because they nonetheless constitute a set of systematic rules on a particular subject. The Children Act 1989, which, inter alia, implemented a Law Commission report, brings together all the law on children apart from adoption, and is therefore a form of code. An Act which is the principal source of law on a particular topic is a code in this wider sense.(197)
She went on to say that 'Codes can be classified not only according to their status and coverage, but also according to the type of law reform they seek to achieve. It is often thought that a code has to be a piece of substantially new law but there is no reason why that need be so.'(198)
Though there has always been and there still is strong hostility to codification in the common law world,(199) it cannot be claimed that there were no codifications, albeit not typically Continental in character, in the history of the common law. Neither can it be said that there are no proponents of it. Arden says:
No one doubts of course the genius of the common law. It is an invaluable method of developing law to meet proven need and it has the advantage that it is tested against real life situations. But there are limits on its ability to develop the law. For instance, common law process is restricted by the doctrine of precedent and by the unwritten limits on judicial legislation. The limitations on the common law method is one of the reasons why a developed modern society like ours needs a Law Commission which can undertake extensive reviews of large areas of outdated law. ... It is important to emphasise that it is not being suggested that codification should be attempted where the law on a particular topic is still in a fluid form to a significant extent.(200)
Many members of the Law Commission have fears about the effect of codification as expressed by Andrew Burrows:
I should explain that, perhaps oddly for a Law Commissioner, I am not a great fan of legislative reform of the non-criminal common law. I have too much faith in the judiciary, and too much love of the deductive technique of the common law development to wish to see the law frozen by widespread legislative intervention. In my view legislative reform of the law of obligations ought normally to be confined to situations where the law is either already based on statute, or where the common law has plainly taken a wrong turn so that, short of waiting for the enlightened decision of the House of Lords, there is no other way of getting the law back on the right track.(201)
In the USA, a variety of Codes exists such as the Uniform Commercial Code, which is a model law, first produced in 1951, the Louisiana Civil Code, the Californian Civil Code and in Australia, it is possible to talk of Code States where, for example, the Criminal Law is codified. A detailed
evaluation of all the codification activities in the common law world is beyond the scope of this study. Here I will mention the three areas in English law, commercial law, criminal law and contract law where the debate on codification is centred. These areas also have implications for pan-European codifications.
5.4.3.3 Commercial Code
As far as commercial law is concerned, the first attempts at codifying date back to 1882 to the Bills of Exchange Act, the Sale of Goods Act 1893 and the Marine Insurance Act 1906, all prepared by Sir Mackenzie Chalmers. The aims were to create greater certainty and to simplify the process of legal reasoning. Arden says: 'As far as I have been able to ascertain, the Acts drafted by Chalmers are the only three English Acts of Parliament which include the words \their long title.'(202) Another codifier was Sir Frederick Pollock, who prepared the Partnership Act of 1890.
Although the Law Commission has been working on codifications generally, no new Commercial Code has been produced. However, a very important development has recently come to fruition; the production of the Arbitration Act 1996 means that another area of common law has been codified. This Act, expressed in clear terms, restates existing statute law, resolves uncertainties in case law reversing it on some questions, and alters the law by introducing some of the provisions of the UNCITRAL Model Law. 'The purpose of the Act was to update and modernise arbitration law and at the same time make London an attractive venue for international arbitration.'(203)
Through piecemeal codifications then, some areas of commercial law have been codified. These Parliamentary interventions have not been counter-productive as feared by those who adhere to the view that only the genius of the common law method provides flexibility and response to needs without stifling the ability of judges to develop the law. Whether one day all will be gathered under the title of a Commercial Code in the Continental sense is, however, very dubious. According to Arden,(204)certain requirements have to be met if codification is to be successfully achieved: the area of codification must be identified by the commercial community; experts must undertake the basic work; proposals must be developed with consultation with the relevant Government Department; Parliamentary Counsel putting the proposal in legislative form, with clear language and permitting creative interpretation, must work with the experts; there should be extensive public consultation; appropriate drafting conventions must be used; the Committee of the House of Parliament must be able to receive oral and written evidence from experts; and finally, there must be some means of monitoring the operation of the code with a method for introducing amendments whenever new situations arise or to reflect case law built around the code.
5.4.3.4 Criminal Code
As to the Criminal Code, the picture is rather bleak. English criminal law is fragmented, unclear and inconsistent, some offences being governed by common law and others by statute. In 1878 James Fitzjames Stephen drafted a Criminal Code for England. A Royal Commission
临界的比较法
