Harvard Law School’s Private Law Workshop: Patricia McMahon, The Interplay Between Nineteenth Century Codes and the Fusion of Law and Equity

Post by Patrick Goold

Codification of the common law and the fusion of law and equity were two of the most prominent law reform efforts of the nineteenth century. Legal historians have, however, rarely considered the connection between these two movements. At a recent Private Law Workshop, Patricia McMahon tried to map out the interplay between the fusion and codification movements of nineteenth century New York and England. McMahon finds that while often fusion and codification mutually supported each other, there was an inherent tension between the two goals, and this tension has continued relevance for today.

On one level, fusion was a boon to the codification movements. In New York, procedural fusion was accomplished in 1848 with the adoption of the New York Code of Civil Procedure, also known as the Field Code after its principle architect David Dudley Field. Field believed that the codification of procedure was the best way to transition from separate systems of law and equity to one single court. The success of the Field Code for legal procedure proceeded to serve as an example that codes and codification was a realistic possibility. In both New York and England, those wishing to codify the substantive common law pointed to Field’s Code as proof that codes worked!

But a tension always lurked beneath the surface. Proponents of codification, such as Bentham, thought codes would create a more predictable and certain legal system. The Field Code demonstrated how such codification could practically be accomplished. However, fusion itself threatened to undermine the attempt to make the legal system more determinate. By allowing one court to hear both common law and equitable claims, the ability of judges to use equitable discretion increased. And thus what the Field Code gave with one hand, it took away with the other.

The story of fusion and codification ultimately has a number of lessons for debates today. The law remains uncertain. And access to courts is still expensive and time-consuming. While nineteenth century lawyers tried to tackle these problems through a combination of fusion and codification, their complex history counsels a more considered response today.

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