Codification as a Socio-historical Phenomenon
Codification is a standard means for making the law public and available through recording it in written texts. It is a tool known since the law’s early development. Albeit both its naming and conceptual definition may vary from age to age and culture to culture – for, as widely accepted, “no a priori codification concept exists […], therefore the exploration of this concept involves empirical work” (Ermacora 1964, 225) – in a generalizing manner it can be summarized in that it is (1) a law-consolidating (2) compilation in (3) a systemic and (4) written form (5) enacted with formal validity (Varga 2011, 262–272); or, simply stated, it is “a systematic and exhaustive regulation of a comprehensive area of the law” (Basedow 2009, 997).
the Supreme Deity […] vouchsafed us successful […] the giving of the best laws, not only for our own age, but for all time, both present and future. Therefore we saw it necessary that we should make manifest the same system of law to all men, to the end that they should recognize the endless confusion in which the law was, and the judicial and lawful exactitude to which it had been brought, and that they might in future have laws which were both direct and compendious within every one’s reach, and of such a nature as to make it easy to possess the books which contained them. Our object was that people should not simply be able by spending a whole mass of wealth to procure books containing a superfluous quantity of legal rules, but the means of purchasing at a trifling price should be offered to both rich and poor. (Justinian 1904, Constitutio tanta, §12, xxxi)
In the medieval era – under conditions when the European ius commune was hardly more than an assemblage given at the moment open to “favor exchange of experience, ideas, customs and legal rules throughout the European continent” (Vuletić and Kićanović 2013) – codification made possible the registration, recording, and uniform editing of the consolidated customs, adapted and brought up to date, prevailing in particular areas of customary law. In the modern era, the continued recording of recognized customs, the declaration of newly established national laws, the collection of an unambiguous body of law designated to be applicable by the sovereign power, as well as the activation of legal reform, often hidden and sometimes executed under the guise of restoring old-time conditions only ideologically postulated, have all fallen within the domain of the tasks for codification.
Earlier, the mere collection and textual embodiment of portions of the law into a quantitatively conceived summation proved to be enough for completing the task, without any structural renewal. However, on the European continent in the modern era, ending in fact feudal particularism (disunity and division) became the sine qua non for survival among competing empires and dynasties. In order to achieve this, the monarch had to organize the state army and its state financing separate from his personal own, as well as a bureaucratic institutional machinery to run them, which could function in an impersonal way through a far-reaching regulatory, implanted system. But for the lucid arrangement and up-to-date handling of such a quantity of regulations, having grown into huge mass of law in the meantime, the old method of mere accumulation could not prove adequate. In other words, in the codification of continental Europe, by that era quantitative collections of legal material had to be replaced by its qualitative restructuring. Following the cardinal idea of the Enlightenment, ideals such as rationality, logicality, and universality imbued in fact the law’s systemic reshaping according to the logical ideal of a system, which were all to serve accessibility, cognoscibility, and manageability of regulation by law in practice.
The genuine breakthrough was based on the idea of legality through re-conceptualizing laws in a sequence of legal rights and duties. The classical codification movement translated the bourgeois constitution of society in the law’s language with a complete structural reform, re-establishing and re-positing the whole body of law. This was accomplished by the Enlightenment’s bold demand for change, by the ethos of rationalists’ planning, by re-founding natural law (for overcoming feudalism) and, as to methods, by redrafting law more geometrico as a system, borrowed from the axiomatic idea of exact sciences (especially geometry and mathematics) (Varga 1987). This meant the accomplishment – after many initiatives taken from the republican and imperial periods of Roman legal development up to the French Revolution and further on – of the conceptualization of law, and thereby the beginnings of applying logical criteria as well, in how to build up, name, and group legal institutions. Hoping that with the change-over of the chaotic mass of disordered, sometimes contradictory rules, which had just been superimposed one upon another by mere chance, law too would then be applied deductively with the rigor of sheer axiomatism. For the new systemic construction was a well-ordered assembly of general principles serving as foundation stones, then general rules, specific rules, exceptions from these rules, and, finally, exceptions from the exceptions. And in order to divide the total structure from the aggregate of specific structures, the code itself usually was to consist of two parts, the general part providing the directives for the entire field of regulation and the special part offering regulation calibrated for typical (standard) situations (as, e.g., individual contracts defined in civil law or those legal facts that may constitute a specific case in criminal law).
Princely absolutism attempted to operate with casuistic precision (General State Laws of the Prussian Territories, 1791) but did not succeed in the long run. The Code civil, which the French revolutionary renewal concluded with (1804) as well as the Austrian (1811), the German (1897), and the Swiss (1907) codes of civil law, resulted in framing a foundational body of the law on the European continent, still in force today. As to their historical functions, they accomplished the law’s national unification and reform at the same time. Simultaneously they had to be – and were indeed – the symbolic expression of (as driven by) their finished stage of nationhood in parallel with the perfection of state building [Etatisierung] (Brauneder 1993, 225–229). In the same symbolical sense, for instance, the General Civil Code (Austria, 1811) played a constitution-substitute role as well, providing, by its official translations into the empire’s local languages, the consciousness of the state’s unity in a multicultural society (Brauneder 2013).
A body of perfect laws would be the human spirit’s masterpiece in matters of government: one would observe in it a unity of design as well as rules so precise and well proportioned that a state that was run according to those laws would be like a watch, all of whose springs are fashioned to the same end; one would find in it a profound awareness of the human heart and of the nation’s genius […] everything would be foreseen, all would interlock, and nothing would be left at risk: but perfect things cannot spring from human nature. (Frédérick le Grand 1750, 27, quote by Stewart 2012, 23)
All in all, codification has meant new possibilities in the presentation of the law, as well as in its internal organization and structure. The germ of claim for legal positivism was first formulated in the imperial codification by Justinian and, later on, by Frederick the Great. Its early instances were the embodiments of laws in a series of institutions, the development of requiring their fundamental classification and coherence, with emphasis upon prohibiting interpretation except before an extraordinary imperial committee, and, eventually, the reduction of law [ius] to the body of enacted laws [lex], that is, the exclusive identification of law with the statutory outcome – that is, texture – of its formal enactment. However, the classical formative era’s foundation of rules upon general principles, within a consistently established system derived from principles as demanded by the qualitative idea of codification, was soon lost when the initial phase of the rigid – exegetical – application of the great civil codes came to an end. For, as the consequence of socioeconomic transformation of liberal capitalism by the end of the nineteenth century, legal positivism – simplified to rule (or statutory) positivism by then – became challenged by the so-called free-law movement, in order that legal regulation could be adapted to timely needs through judicially developing the law in a jurisprudence changed.
Present-Day Variations and Considerations
Looking back to this classical past by assessing its achievements from today’s standing perspectives, those various codes are now usually blamed as statist, authoritarian, and atavistic. True, the use of them since the free-law movement period has not been any longer reminding of a purely and exclusively deductive pattern but one offering more as systemic or taxonomic loci wherefrom to elaborate an own judicial solution instead. Accordingly, the same code in post-classical times cannot but function as a “residual law” (Irti 1989, 27). Skepticism on and disappointment from codification have permeated the very chance of future undertakings, emphasizing, for instance, that it is no longer the code-form that is superior but the idea of its “(suit)ability to offer a good solution for all possible future cases.” (Sacco 1983, 125) From such a perspective, even the vision of the past is turned down: Napoleon with his invaluable Code civil is getting considered a historically incidental exception; moreover, in the light of Europe unified and further unifying, it is seen now not as a living example of how to embed in tradition and symbolize the triumph of capitalism but as a detour, due to “national fragmentation of the European legal tradition” (Zimmermann 2001, 1). Even background motives for codification like the law’s certainty, stability, and availability are questioned through heralding, as needed achievements, the new codes’ partialness and fragmentation of results, alongside with their necessary localism, transitionalism, and pragmatism, as well as the desideratum for “democratic openness,” taken as the day’s foundational principle (Kübler 1969, 651). For “the future is no longer to be found in the past” (Lasserre-Kiesow 1998, 223), consequently “mummification of the law” cannot be a service goal any longer (Timsit 1997, 159).
Critics notwithstanding, today’s codes are invariably characterized by old marks like (1) forming an exclusive body of law while (2) implementing unity in a given regulatory field (3) with logical coherence and consequentiality; or featuring (1) completeness, (2) freedom from contradictions, and (3) regulatory economy; or again to be a (1) comprehensive and (2) systematic (3) enactment by the legislature, (4) promulgated as a code. At the same time, other classical ideals that once used to constitute a strict and coherent system, with such basic functions as to guarantee the supremacy of statutory law by exhaustively embodying the law of the field, as well as the internal consistency of the regulation and the ability to determine exactly what the law is, are gradually showing signs of waning.
As to the present state of codification, more than 50 codes have been promulgated since the end of the World War II, such as the complete re-drafting of classical civil codes in Portugal (1967), the Netherlands (1992), Quebec (1994) in the West; as well as in Poland (1964), Russia (1996), and Hungary (2013) in the East; in Guatemala (1963), Bolivia (1975), Venezuela (1982), Peru (1984), and Paraguay (1987) in Latin America; of penal codes in a number of countries as well as civil law re-codified in Louisiana. Some of them comes with new statehood, when preservation, summation, and systematization are intermingled with the wish of reformation (Narits 2005), a process during which (in Macedonia, for instance) the initial job may be overwritten by a complete refurbishment of the law (Zivkovska and Przeska 2014). Almost the same holds for situations when countries with varying pasts come to the self-confident, standing balance for showing up their built-up stage with a “symbol of modernization and national independence” superseding earlier transit stages. Such is the Bill of the Civil Code of Israel (2004) finalizing the law’s continentalization (Kedar 2007, 194; Zamir 2012) or the amended Civil Code of Taiwan (2008), which “localized” the transplants the country had had as mixed with local customary law components (Wang 2016). The most general common treat of them is just recodification – after decodification with new regulations (and new micro-systems) introduced into the code’s territory was made (Murillo 2001). As a pioneer, it was the Code civil de Québec (1994) that broke the beaten path by launching that “both the ambivalences and the diversified interests cohabiting in society” had to get translated into the code’s language (Ministère de la Justice du Gouvernement du Québec 2003, vii), searching for a balance in that albeit it decidedly disfavored judicial law-making, on the one hand, but initiated judicial developments that could further concretize the code’s provisions, on the other (Chamberland 2003, 31).
In the era characterized by today’s speeded up globalization, national states’ domestic law is superimposed by international law and in Europe itself, placed under the European Union law as well. The complexity arising therefrom can be even further aggravated, and the centrality of codification relativized by dealings in law like constitutionalization or de-codification. For they all produce their own microsystems with the by-effect that the code stops being placed at the center of “a solar system where everything not found in the civil code, which is the sun or central star, gravitates around it, and is inspired and interpreted on the basis of the light it sheds on the planets that revolve around it.” Instead, they are now detaching parts that will go on “revolving loosely like shapeless meteors” somewhere in it (Parise 2016, 384, quoting Moréteau and Parise 2009, 1110).
By the end of the twentieth century, the very term “codification” comes to have become relativized in both France and elsewhere. From now on, its reduced meaning will stand for the rationalization of one aspect of the mass-scale, all-inclusive management implied by today’s public administration: of the periodical consolidation of the normative stuff serving as its foundation. Albeit, no need to add, this job gets increasingly relegated to the new potential what present day information technology has established and is going to produce.
Common Law Queries
In England, efforts at codification in the beginnings advanced parallel to those in continental Europe. However, since legal unity was no longer in question and the judicial route to legal adaptation had already been institutionalized at an earlier period, the idea of codification stemming from rational considerations did not take hold. Even in the United States, codification proved to be successful primarily as the medium for legal transplant to, while also reconsidering, the new states’ institutions. Thanks to the Common Law judicial argumentation through precedents, also general principles could serve as sources for the judges’ considerations without any mediation by a code.
Later on, codification taken in the strict sense of the word was mostly replaced by various substitutes. Such were the doctrinal codification (textbook writing as medium for nineteenth-century English legal export to the colonies; restatement of the law by private bodies with professional support as the best toolkit rationalizing American law in the twentieth century); as well as rearranging statutory law (consolidation), and the uniformization and unification of the law.
Retrospectively, from the great strive for law-codification in the United States of America, past emphases on the benefit of a consistent, coherent, and systematically arranged law are not accentuated any longer, for new properties like fragmentation, particularization, and departmentalization have won the day (Morriss 1999).
Both systems represent efforts to solve “the basic problem of retaining the flexibility of a legal system while securing a reasonable amount of certainty with regard to the solution of legal problems and of predictability for the event of litigation.” (Garoupa and Morriss 2012, 1498 quoting Piero 1956, 69)
A special aspect of the issue of codification in England is represented by the dilemma of whether or not to codify European Union law, for this “legal paradise aspired to create” (Steiner 2004, 215 quoting Sir Leon Radzinowicz in Helden Society) makes a chance for the historical convergence of Common Law and Civil Law. Literature siding with longing for codification is by and large optimistic on elusive grounds, the fact notwithstanding that comparatists with historical outlook are used to emphasize the near impossibility of effecting radical changes, or turnover, in peoples’ mentality. Specific legal mentalities are at stake here, “culturally embedded” traditions on how to build law and think in law, that is, a culture-dependent stand with the whole legal development and professional culture involved in the background (Legrand 1997, 56–59). Not rarely this forced move for codification is portrayed as a fully-fledged paradox with constituents contradicting everything that comes from the European Union (Bercea 2008). No need to add that even when codes are present, it is principled approach that shall be generated in Civil Law and pragmatic one that will be followed in Common Law (North 1982, 503). Simply stating the divergence in manners and expectations, “American courts tend to read the codes to facilitate case law evolution rather than as the definitive resolution of the issue involved.” (Hyland 1994, 61) As a telling example, it suffice to remember the early failure of the reformist effort by the British Law Commission (considering codification as late as in 1964), indicative of an utter confusion on what to do with a law thoroughly generalized, broken into and embodied by legions of concepts, arranged in order in accordance with abstract logical schemes, and also with implied possibility for that facts shall be subordinated (subsumed) to rules – in an environment in which, as a sensitive characterization holds, “the alphabet is virtually the only instrument of intellectual order of which the common law makes use” (Rudden 1991–1992, 105).
Debates are periodically renewed on whether or not, and in which parts of the law, codification will be put on the agenda again. For instance, functionalist approach is preached for relieving codification from historical stereotypes, notably, “[t]he almost myopic perception of codification by a number of common lawyers as an ideological enterprise rooted in Napoleonic Europe” (Steiner 2004, 12). However, independently of contemporary intentions, old hesitations on similar structural dilemmas – for instance, on the presumably destructive danger as the outcome, when codifying classical Talmudic law or the jurisprudence of Roman–Dutch law was contemplated (Varga 2011) – may convey the unchanged teaching that “once the common law is codified it will, of necessity, cease to be the common law, not only rather obviously in form, but also in substance” (Hahlo 1967, 258). Arguably, non-committed and no-partisan weighing of the issue “whether common-law institutions and attitudes make it impossible to operate under codification” can only lead to a most hesitating conclusion, letting to know that “History and experience do not answer this question in the affirmative. Active consideration of European codification should continue.” (Weiss 2000, 532).
Summing up, the code is a thoroughly organized body of rules covering a branch of legal regulation. From the ancient collections of law in Mesopotamia and China up to the general codes of the Nordic countries born in the seventeenth and eighteenth centuries, the codes committed to one written body almost the entire system of law. Under specific conditions, the same function could be served by recording customs or compilating them in forms of collections or proposals as a private work (for example, Stephan Werbőczy’s Tripartitum opus iuris presented but not passed in 1514, successfully preserved Hungarian legal unity even after the country had been divided in three for one and a half centuries). From the time of later efforts at legal consolidation, namely, from French absolutism until the present, codification has had somewhat limited ambition to collecting all the rules of a relatively independent area of regulation from within individual branches of the law. Private projects have continued, for instance, in the recommended Model codes or the Restatements of the law, which were meant for internal legal uniformization as well as for codifying precedent law in the United States.
Today’s codes are, in general, the products of legislative initiatives. In its modern forms, codification strives for a structure built from the top general to the parts with the specific components, often introduced by a preamble stating the goals, and always having a statement of general principles taken as the foundation. Accordingly, a General Part grounds the Special Part, going to details of individual legal institutions. Among the provisions, there are often one or more clauses from which legal practice can generate new regulations, sometimes even erecting new legal institutions.
As its name implies, compilation is a way of stating and arranging applicable rules in chronological order as a written or printed collection or as a mass of information stored in electronic data bases. This information is mostly classified in accordance with the sources from which the legal provisions have been taken, and secondarily by topics. Until the formation of modern codes, most law books of the ancient, medieval, and modern era were only collections of the prevailing normative material – in some cases with textual corrections, which were meant mainly to exclude possible contradictions, or to leave out parts that had lost their validity due to desuetude, or to remedy textual deteriorations arisen while earlier copying, or sometimes also to expressedly “correct” it, in order for it to be able to satisfy current pressing interest (this is revision). Modern compilations mostly do not revise but preserve the original structure of the legal sources processed in them. Sometimes the rationale of the minister who originally presented the bill is included, too, and in the states of Nordic Europe, the preparatory material [travaux préparatoires] once conceived and framed by scholarly and judicial committees are also, in order to guide interpretation, included in or attached to it.
Through the succession of ages and of various ideals of order nurtured as the ends to attain by the means of law, codification has always served as the highest form of objectifying law. Considering the fact that “[l]egal systems of varying types and family backgrounds can attempt to use codification for solving socio-legal problems equally successfully” (Varga 2011, 258), one may conclude that, in a generalized sense, it is universal a phenomenon in the life of law.
“prompting [the courts] to focus more on the meaning of individual words than on the overall policy goals of enactment and to rely more on external sources, such as legislative history.” Ultimately—as the assessment ends, sounding like an oracle from Dodona more than the slightest sign of encouragement—, “codification has accelerated the very problems in the legal system it was supposed to resolve.” (Stevenson 2014, 1129 resp. 1173.
Some years ago, the Supreme Commission for Codification as the leading engine of the movement in France concluded that “the age of drawing up new codes is probably reaching its end.” (Commission 2011, para 2.7, 13) By generalizing from the perspectives of the result, developments of information technology may now offer the key. The eventual replacement of the center of gravity in the future is certainly not a criticism on what codification has achieved under various conditions for millennia but sober acknowledgment of the fact that by times and availabilities changing, “What had been the good aims of codification are being pursued in very different ways” (Stewart 2012, 47).
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