成文法和不成文法的范围

The Provinces of the Written and the Unwritten Law

根据成文法和不成文法各自范围——它们在社会的自然成长和前进过程中渐次成型——的实际划分,只有公法现在是成文的,并且一直是成文的,而私法停留于不成文状态。问题不在于我们是否要让部分公法保持不成文形态,而在于是否要使私法成文化。争论存在于如下两方之间:一方坚信成文法无论如何都有着一般优越性,应该总体上延伸到私法的范围;另一方认为成文法的固有范围限于公法,除非遇到特殊紧急情势的需要,否则不应染指私法。应该认为,私法的法典化不仅在道德上不可行,而且在哲学上不可能。将私法化约为僵硬成文规则的诸多尝试,是法律中的怀疑和不确定性的最丰富来源。那些认为可以且应当用简明、有序、系统的形式编排全套法律知识的人,应该转而致力于完成一部伟大的法案释要,那将是法律实务工作真正不可或缺的工具。

According to the actual division of the provinces of written and unwritten law,as they have arranged themselves in the natural growth and progress of society,public law alone is in writing,and is always in writing;and private law is left unwritten.The question is not whether we shall leave any part of the public law unwritten,but whether private law shall be reduced to writing.The contention lies between those who insist that written law has a general superiority for all purposes,and should be extended generally over the province of private law;and those who believe that its proper province is confined to public law,and that it should not be extended to private law except where special exigencies make it necessary.It should be argued that codification is not simply morally impracticable,but philosophically impossible.Of all the sources of doubt and uncertainty in the law,none are so fruitful as those which arise from the attempts to subject private law to unbending written rules.Let those who think that what is known of the whole body of the law may and should be arranged in a concise,orderly and systematic form,direct their efforts to the accomplishment of a great Digest,which would be the vade mecum for everyone in legal practice.