Contents
Codification
Policy makers, judges, citizens all deplore the increasing complexity of law. Codification is traditionally one of the best ways to sustain the dynamic and necessary evolution of laws.
Meaning of “Code”
Lord Scarman once provided this definition of a “code: (1)
A Code is a species of enacted law which purports so to formulate the law that it becomes
within its field an authoritative, comprehensive and exclusive source of that law.
Among the various advantages that have been proclaimed for codes are that they
introduce order and system into the law; that they bring it together in one place;
and that the law is made easy to find.(2)
However, this broad definition encompasses several quite distinct types of code.(3)
A Code as a Systematic, Written Reduction of a Legal System’s Main Principles
The first type of code is the reduction of all the main principles of a legal system into systematic written form. The ancient codes of Hammurabi of Babylon (c 1750 BC) and Justinian (529 565 Ad) were well-known early examples.
Those codes had enormous influence: it was through Justinian’s work that Roman law had such lasting effect on the development of the legal systems of the western world.
This type of codification took hold in Europe during the Age of Enlightenment, prompted by a belief that all spheres of life could be dealt with in a system based on human rationality. The first of the modern European codes were those of the German states in the late 18th and early 19th centuries. (4)
The most impressive, and best-known, of them was the french Code Civil, or Code Napoleon, which introduced a single set of laws to replace the several legal systems that had extended throughout feudal france before the french Revolution. The code distilled the law into a set of coherent principles contained in a single, slim volume.
Today most European countries are civil law jurisdictions with codes of this kind. Many latin American and Asian countries have also based their codes on the Napoleonic code.
The civil codes are often said to be marked by three features.
- First, they consist of succinct, broad, statements of principle rather than exhaustive detail. While in general this is true, there is not complete uniformity among codes. The German
code, for example, is more specific than that of its french neighbour.(5) - Secondly, they are ordered in a coherent and seamless way.
- Thirdly, they are the sole source of the law they cover. That is, there is no judge-made, or Common law , in those countries; the contribution of the judges is confined to interpreting and applying the code. Again, however, there is a degree of misrepresentation in this assertion. No code is without gaps (it is beyond the abilities of any drafter to devise one that is) so continental judges sometimes have to fill these gaps. They do so by a process not totally unlike Common law method. (6)
Moreover a typical civil code deals only with the core areas of law such as contract, tort, property, family law, and the law of inheritance. Commercial law , corporate law, taxation law and civil procedure are often enacted separately. Furthermore, as society experiences rapid change it has become not uncommon for code jurisdictions to enact more and more specific legislation, outside the code, to deal with it. In addition, the harmonisation of law within the European Community, and the acceptance of supranational norms in Treaties , have created further overlays.(7)
There have been times in common law jurisdictions when law-makers have considered completely codifying the law. That is to say, they have considered replacing the common law with Acts of Parliament to convert the legal system to a complete code of the European kind. Sir John Salmond, speaking to the Bar Association of New York City in 1922 said:(8)
“We are all proud of the common law Â… but the time has surely come when [it] must be reduced to statutory form. Â… We must formulate the common law in a comprehensive code which sums up the outcome of that age-long process of judicial precedent in which it has its source.”
Such a codification project was initially on the agenda of the English law Commission.(9) But, as Hein Kotz has put it: (10)
“Eight years later, lord Gardiner, who had blessed the ship [of codification] at launching, asked Her Majesty’s Government about its present position. Lord Hailsham, then lord Chancellor, had to admit that her speed had slowed down considerably, and in 1980, her captain, Sir Michael Kerr, the immediate past chairman of the law Commission, finally, though I think without much regret, pronounced her a total loss.”
Kerr concluded that codifying even discrete areas like the law of landlord and tenant, and the law of contract, had “no prospect of realisation”.(11)
The Statutory Codes of Common Law Countries
There are the “codes” of common law countries like New Zealand. In these jurisdictions the word “code” has a quite different sense. It is used to describe a single Act that abolishes the common law on a specific topic and replaces it with a set of statutory rules that henceforth become the exhaustive and exclusive source of the law on that topic.
These specific, ad hoc, codes bear little resemblance to their continental cousins. Despite the best efforts of their drafters they have always had an uneasy relationship with the common law both with the common law they have supposedly replaced, and also with the remaining common law that continues to surround them.(12)
Codes and Codification in the legal History
Early Penal Codes: In General
“In many British colonies the criminal law has been codified or at the least consolidated. Criminal codes have been passed in Canada, New Zealand (1893), Queensland (1899) and W. Australia (1901). Many crown colonies have codes framed on the model prepared by the late Sir R. S. Wright for Jamaica and revised in 1901, and in British Guiana opportunity was taken (in 1893) to abolish the remnants of Roman-Dutch criminal law.
The criminal law of South Africa, which is based on the Roman-Dutch law, including the Constitutio Criminalis Carolina (1532), is not codified. In the Transvaal and Orange River colonies codes of criminal procedure are in force, drawn mainly from the common and statute law of the Cape Colony with the addition of provisions borrowed from English and colonial legislation.
In Mauritius the criminal law is comprised in a penal code of 1838 and a procedure code of 1853, which, with the incorporated amendments, are to be found in the Revised Laws of Mauritius 463 (1903-1904), ii. 466 et seq. The penal code is based on the Code Napoléon.
“Criminal law has everywhere grown out of custom, and has in all civilized states been largely dealt with by direct legislation. In most civilized states (including Japan) it has been codified by statute, to the general satisfaction of the Codification. people; and the conspicuous success of the Indian penal code shows that English criminal law is susceptible of being so treated” (Bryce, Studies, ii. 34).
The expediency, if not the necessity, of codifying the criminal law of England has long been apparent. The writings of Bentham drew attention to many of its substantial defects, and the efforts of Romilly and Mackintosh led to certain improvements embodied in what are known as Peel’s Acts (1826 to 1832). In 1833, at the instance of Lord Chancellor Brougham, a royal commission was appointed to deal with the criminal law. The nature of the instructions indicate the crudity of the ideas then ruling as to codification. The commissioners were directed to digest into one statute all enactments touching crimes and the punishment thereof, and into another statute the provisions of the common unwritten law touching the same.
The commission was renewed in 1836 and 1837, and in 1843 a second commission was appointed. Numerous and voluminous reports were published, including (1848) a bill for consolidating and amending the law as to crimes and punishments, and (1849) a like bill for criminal procedure, indicating that the commissioners had in the meantime learned the distinction between substantive and adjective law. Lord Brougham in 1848 unsuccessfully introduced the first bill, and in the end the only fruit of the reports has been certain amendments of procedure in 1851 and the passing of the seven Criminal Law Consolidation Acts of 1861, which deal with the statute law as to theft, forgery, malicious injuries to property, coinage offences and offences against the person.
The reports, however, proved of value in the revision of Macaulay’s draft of the Indian penal code, and led to the formation of the Statute Law Committee, which has relieved the statute book of much dead matter. On his return from India, impressed by the success of the Indian penal code, Sir J. Stephen made a strong effort to obtain codification. In 1878, at the instance of Lord Cairns, he prepared a draft code (based on his well-known Digest of the Criminal Law), which was laid before parliament and then submitted to judicial criticism and revision. As a result of this revision a code bill was introduced in 1880; but a dissolution intervened and no serious effort was then made. The obstacle in the way is not lack of reports or digests on which to frame a code, but the incapacity of parliament to do the work itself, and its unwillingness to trust the work to other hands.”
Source: Encylopedia Britannica (1911)
Ancient Greek Law
See the main entry of this legal history topic.
Codifications in Ancient Roman Law
See the main entry of this legal history topic.
Islamic Law
See the main entry of this legal history topic.
Islamic Law in Africa
See the main entry of this legal history topic.
Medieval and Post-Medieval Roman Law: Private Law
See the main entry of this legal history topic.
Codification in the United States Law
See the main entry of this legal history topic here.
Notes
- Lord Scarman “Codification and Judge-Made law: A Problem of Coexistence” (1967) 42 Ind l J 355, 358.
- See ferdinand fairfax Stone “A Primer on Codification” (1955) 29 tulane lR 303, 307-308; and Gilles Létourneau and Stanley A Cohen “Codification and Reform: Some lessons from the Canadian Experience” (1989) 10 Statute lR 183, 185.
- It clearly covers the first two types discussed below. the third, the United States code, does not fit quite so comfortably within this definition.
- See Maria luisa Murillo “the Evolution and Codification in the Civil law legal Systems: towards decodification and Recodification” (2001) 11 J transactional law & Policy 1.
- See Hein Kotz “taking Civil Codes less Seriously” (1987) 50 MlR 1.
- Ibid.
- Murillo, above, n 4. Some have described this process as “decodification”. In some countries there have been moves to “recodify” to regain the old coherence.
- A paper representing the substance of Salmond’s address was published as “the literature of law” (1922) 22 Columbia Law Review 197.
- See H Brooke
“the Role of the law Commission in Simplifying Statute law” (1995) and Edward Caldwell “A Vision of tidiness: Codes, Consolidations and Statute
law Revision” in Brian opeskin and david Weisbrot (eds) - See Hein Kotz “taking Civil Codes less Seriously” (1987) n 377, 1.
- Kerr “law Reform in Changing times” (1980) 96 lQR 515 at 527, quoted in Kotz, ibid, 2.
- Jf Burrows (3 ed, lexisNexis, Wellington, 2003), Chapter 16
See Also
- United States Style Codes
- French Legal System
- United States Code Annotated
- Codification Of International Commercial Law Objectives
- Code Napoleon
- United States Style Codes
- Roman Law
- Code Development
- Code Of Hammurabi
- International Codes
- Ancient Codes
- Code
- Civil Law History
Further Reading
- Danièle Bourcier , Pierre Mazzega, Toward measures of complexity in legal systems, Proceedings of the 11th international conference on Artificial intelligence and law, June 04-08, 2007, Stanford, California
- Commission of the European Communities (2002) Communication from the Commission – Action plan “Simplifying and improving the regulatory environment”, COM(2002) 278 final, 19 pp.
- Communication EU (2006) Com. from the Commission to the Council, the European Parliament, the Eur. Economic and Social Committee and the Committee of the Regions – A strategic review of better regulation in the European Union, COM(2006) 690 final, COM(2006) 691 final (see Eur-Lex website).
- Emile de Maat , Radboud Winkels , Tom van Engers, Automated Detection of Reference Structures in Law, Proceedings of the 2006 conference on Legal Knowledge and Information Systems: JURIX 2006: The Nineteenth Annual Conference, p.41-50, June 02, 2006
- Innar Liiv , Anton Vedeshin , Ermo Täks, Visualization and structure analysis of legislative acts: a case study on the law of obligations, Proceedings of the 11th international conference on Artificial intelligence and law, June 04-08, 2007, Stanford, California
About the Author/s and Reviewer/s
Author: international
Mentioned in these Entries
About Authority and Saction of International Law, Historical 3, About the Origins and Sources of International Law, Historical, Administrative Law Questions, American Legal Institute General Bibliography, Charter of the Organization of American States 6, Charter of the United Nations 2, Codifications, studies and other ALI projects, Columbia Law Review, Commercial law, Common law, Convention for Co-operation in the Protection and Development of the Marine, Convention for the Protection of the Mediterranean Sea Against Pollution, Convention on the Conservation of Migratory Species of Wild Animals 3, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Desider Szilagyi, Development International Law – Part 23, Development International Law – Part 3, European Thesaurus on International Relations and Area Studies, European Union law Part 31, Florida Statutes, French Legal System, International Criminal Law. Bibliography, International Organizations, International human rights law Part 39, International law index C, International law index, International trade law Part 25, International trade law0, Iowa Subject Index, Library of Congress Classification Class K, MPEPIL: Public Law: C, MPEPIL: Sources, foundations and principles of international law, Other ALI projects, Outline of Sources of public international law, Outline to Global Business Law, Public International Law Classification (Max Planck Institute), Ray A. August, Restatements of the Laws, Trade law Part 35, Trade law Part 73, Trans-Lex, Treaties, United Nations Convention on the Law of the Sea 10, United Nations organs, United States Code Annotated, United States Style Codes.
The Legal History of Codes and Codification
This section provides an overview of Codes and Codification
Codification in France and Louisiana
See the entry about the Codification in France,and about the Codification in Louisiana .
Codification
Codification: The Making of a Civil Code
Note: there is an entry about the subject of this section in this legal Encyclopedia.
Codification
There is more general information about this topi
Codification: Concept and Misconceptions
Biases Regarding Codification
Codification
Read the information about Codification: Concept and Misconceptions;read also about the Process of Codification.
Codification in France and Louisiana
Learn about these topics.
From the 12th Century to the Era of Codification
Codification: The Making of a Civil Code
Note: there is an entry about the subject of this section in this legal Encyclopedia.
Historical Developments of Sources of Law and Law Making Institutions
There is more general information about this topiIn relation to this entry, explore, in special, the information about: From the Corpus Juris Civilis to the “Civil Codes”
From the Corpus Juris Civilis to the 12th Century
Codification: The Making of a Civil Code
Note: there is an entry about the subject of this section in this legal Encyclopedia.
Historical Developments of Sources of Law and Law Making Institutions
There is more general information about this topiIn relation to this entry, explore, in special, the information about: From the Corpus Juris Civilis to the “Civil Codes”
From the XII Tables to the Classical Period of Roman Law
Codification: The Making of a Civil Code
Note: there is an entry about the subject of this section in this legal Encyclopedia.
Historical Developments of Sources of Law and Law Making Institutions
There is more general information about this topiIn relation to this entry, explore, in special, the information about: From the XII Tables to the Corpus Juris Civilis (CJC): Sources of Law
Literal, Grammatical, Logical or “Ordinary” Method of Interpretation
Post-Classical Period to the Corpus Juris Civilis (3rd to 6 th Century)
Codification: The Making of a Civil Code
Note: there is an entry about the subject of this section in this legal Encyclopedia.
Historical Developments of Sources of Law and Law Making Institutions
There is more general information about this topiIn relation to this entry, explore, in special, the information about: From the XII Tables to the Corpus Juris Civilis (CJC): Sources of Law
Definition of Codification (or Codify)
Within the context of international human rights, the following is a brief meaning of codification (or codify): The process of bringing customary international law to written form.
Codification
Embracing mainstream international law, this section on codification explores the context, history and effect of the area of the law covered here.
Codification
Resources
See Also
- Civil Code History
- Codification History
- Codification
Resources
See Also
- Civil Code History
- Codification History
- Historical Developments
- Sources Of Law
- Law Making Institutions
Resources
See Also
- Civil Code History
- Codification History
Resources
See Also
- Interpretation
- Reasoning
- Codification
Resources
See Also
- Legal System
- Judiciary
- Justice
Resources
See Also
- Code
- Compilation
- Compiled statutes
Resources
Further Reading
- The entry “codification” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press
Resources
See Also
- Human Rights
Resources
See Also
- Legal Biography
- Legal Traditions
- Historical Laws
- History of Law
Further Reading
- Codes and Codification in the Oxford International Encyclopedia of Legal History (Oxford University Press)
- The Oxford Encyclopedia of American Political and Legal History (Oxford University Press)
- Codes and Codification in the Dictionary of Concepts in History, by Harry Ritter
- A Short History of Western Legal Theory, by John Kelly