Newly Published: Dirk Heirbaut, Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (OUP, 2025)

Newly published:

Dirk Heirbaut, University of Ghent, has published Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (Oxford University Press, 2025). Here from the publisher's website is a description of the book's contents.

More than half of the world’s population lives under law codes. Yet, defining the concept of codification remains elusive. Rather than delving into abstract theories, this book provides a rich, contextual comparative legal history of codes in France, Germany, the Netherlands, and Belgium from the late eighteenth century to the present. The first part studies the evolution of French, German, Dutch, and Belgian codes in their political and comparative context, thus challenging deeply rooted national narratives. It covers not only the well-studied French, German, Dutch, and Belgian civil codes but also their often-overlooked commercial and procedural counterparts and drafts that failed to become law. The second part embarks on a comprehensive analysis of the factors contributing to the success or failure of codification efforts. Employing an innovative method of comparative legal history, it explores the key players and objectives behind codification, revealing that traditional notions of codification are far removed from reality. Following this deconstruction of some ‘universal truths’ about codifications, the book proposes a fresh, empirically based definition of codification, offering new insights. This book is essential for law scholars in civil and common law countries who study codification. For both beginners and specialists, it can also serve as a gateway to the histories and recent developments in private, commercial, and procedural law in France, Germany, the Netherlands, and Belgium. Historians and political scientists will find a behind-the-scenes analysis of the machinery of lawmaking in this book. Politicians and drafters of new codes can use this book as an overview of best practices in codification.

Funk on Sect and Superstition: The Protestant Framework of American Codification @kellenfunk.bsky.social @ColumbiaLaw

Kellen Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History (2024). Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Download the article from SSRN at the link.

Funk on Sect and Superstition: The Protestant Framework of American Codification @ColumbiaLaw

Kellen R. Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History for 2024. Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Download the article from SSRN at the link.

Funk and Mullen on The Spine of American Law: Digital Text Analysis and U. S. Legal Practice @kellenfunk @lincolnmullen

Kellen R. Funk, Princeton University (Students), and Lincoln A. Mullen, Department of History and Art History, George Mason University, are publishing The Spine of American Law: Digital Text Analysis and U.S. Legal Practice in the American Historical Review (February 2018). Here is the abstract.

In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 30,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by a combination of creditors’ remedies the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in one Greater Reconstruction. Instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.

Download the article from SSRN at the link.

Danner on James DeWitt Andrews: Classifying the Law in the Early Twentieth Century

Richard A. Danner, Duke University School of Law, has published James DeWitt Andrews: Classifying the Law in the Early Twentieth Century. Here is the abstract.

This paper examines the efforts of New York lawyer James DeWitt Andrews and others to create a new classification system for American law in the early years of the twentieth century. Inspired by fragments left by founding father James Wilson, Andrews worked though the American Bar Association and organized independent projects to classify the law. A controversial figure, whose motives were often questioned, Andrews engaged the support and at times the antagonism of prominent legal figures such as John H. Wigmore, Roscoe Pound, and William Howard Taft before his plans ended with the founding of the American Law Institute in 1923.

Download the article from SSRN at the link.

Maxeiner on J. L. Tellkampf in the United States (1838-1847)

James R. Maxeiner, University of Baltimore School of Law, is publishing J.L. Tellkampf: German Legal Scientist in the U.S. (1838-1847) in an Age of Reform in volume 50 of the Yearbook of the Society of German American Legal Studies (2016). Here is the abstract.

This is one of two articles on J.L. Tellkampf, a legal scholar who already in 1841 in an important series of articles in the America Jurist pointed the way to a modern American legal system as one where codifying and systematizing would lead common law. Supported by Justice Joseph Story, poet Henry Wadsworth Longfellow and famous naturalist Alexander von Humboldt, he was a professor at Columbia College and at Union College. His research into prison discipline paralleled that of Alexis de Tocqueville. He was a founder of what is now the Correctional Association of New York. Francis Lieber found him a rival. In New York Tellkampf worked with “Young Americans” such as the codifiers of the New York Revised Statutes and David Dudley Field. He knew the poet Poe and other lead Young Americans. He supported reform and criticized past practice. Before coming to the U.S. in 1838, Tellkampf was a young supporter of modern constitutionalism in Germany and a colleague of the Brothers Grimm at the University of Göttingen. Upon his return to Germany he was a member of the Frankfurt Parliament of 1848 and of its all important constitutional committee and an advocate of American practices. The article “J.L. Tellkampf: German Legal Scientist in the U.S. 1838-1847 in an Age of Reform” is about Tellkampf’s life in the United States and the mixed reception he received here in his pursuit of legal scholarship. The article “The First Humboldtian Research Trip into the Polis: J.L. Tellkampf in the United States 1838-1847”: is about his research into legal methods, codification, currency backing and prison discipline.

Download the article from SSRN at the link.

The Age of Statutes

James R. Maxeiner, University of Baltimore School of Law, has published A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth at 4 British Journal of American Legal Studies 141 (2015). Here is the abstract.

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds it credible.

Download the article from SSRN at the link.

The Ups and Downs of U.S. State Criminal Codes

Paul H. Robinson, University of Pennsylvania Law School, has published The Rise and Fall and Resurrection of American Criminal Codes as University of Pennsylvania Law School Public Law Research Paper No. 14-38. Here is the abstract.

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

Download the paper from SSRN at the link.