Against Common Law? Defamation and the Case for Codification

The MR has reportedly told the House of Lords Constitution Committee that codification of defamation law would increase costs and reduce flexibility (according to a tweet from a leading legal journalist Joshua Rozenberg). I have my doubts about that position. Firstly, judges (and practitioners) have an economic and social disposition towards complexity. Managing complexity is a signal of their expertise and increasing complexity enables judges to decide (distinguish) cases to do justice as they see fit. Lawyers similarly can use complexity to bend the law to their clients interests (for a discussion of the economics see this excellent paper by Gillian Hadfield). That’s flexibility of a sort but it’s flexibility which occurs in courtrooms and very expensive lawyers offices. It is not, generally, a flexibility that benefits you or I.

Interestingly the paradigm claims of common law – that it is more certain and more just – can also be challenged. Testing codes vs common law is difficult and I know of only one study that has done it – an Australian contract law one. Its findings caught the imagination of a leading Australian Judge (the HH Michael Kirby J). You can read an article based on it here. To quote from the abstract:

The results described in the paper show that it would be beneficial to codify contract law. They also show that there are no clear disadvantages, and some advantages, to the direct application of broad principles to contract disputes, and support the following conclusions:

  • Broad principles are more likely than detailed rules to lead to just outcomes.
  • Broad principles are not less likely than detailed rules to lead to more predictable outcomes overall, and are more likely to do so in easier cases (where predictability is most important).
  • Broad principles are more accessible than detailed rules.
  • Broad principles are more time efficient than detailed rules.

It’s one study, and it’s far from definitive, but it does call in question some of the fundamentals of common law systems. If the study is right, codification is likely to be cheaper, more predictable, more accessible, perceived as fairer and actually fairer than a precedent based common-law system. It’s unsurprising that the MR thinks otherwise but it’s also worth thinking very carefully about whether the presumptions on which his case is built are evidenced and whether further work like Fred Wright and Ted Ellinghaus’ should be done to test the case for common law.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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3 Responses to Against Common Law? Defamation and the Case for Codification

  1. botzarelli says:

    Is it not arguable that the common law provides just such a set of broad principles? The distinction then is that the principles of common law take more work to access than if they had been codified. This might in itself be a bad thing in relation to an area giving rise to a large number of routine disputes that don’t put a lot of pressure on the interpretation of the principles such as contract. It is less obviously a bad thing in an area like defamation where the number of cases is very small, the core principles already broadly stated and where many or possibly most cases will raise interpretation points which would not be resolved any more easily by reference to codified principles.

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