Codification As a Socio-Historical Phenomenon

Abstract

Codification is one of the most powerful techniques humanity has ever developed in order to objectify its law. At the same time, it is a means of renewing attempts at reducing ius [the very idea of law] to lex [the positive law]. Enacting laws marks a temporal end to spontaneity in legal development by transforming the latter into the artificiality of programming human action through the means of planning. Codification stands for reason, and its efforts are to be interpreted in the wishful context of political and economic rationalisation. Although rationalisation is the exclusive feature of modern law, germs may be detected equally in cultures of Common Law, mediaeval law, early law, as well as primitive law.

Or, codification is a standard means for making the law public and available, as well as for recording the law in written texts. It is a tool known since the law’s early development.The fundamental task of codification in antiquity was the exclusion of any doubts in the presentation of the law, for example, the restoration by the Laws of HAMMURABI of the validity of ancient traditions in accordance with the prevailing interests of the ruler, declaration of law as the common body of rules for the social game by the Laws of Twelve Tables (at least according to TITUS LIVIUS’ legend of its origin), and also as a halt of law’s previous development by the Codex JUSTINIANUS. In the medieval era, 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 recognised 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 activity of legal reform, often hidden and sometimes executed under the guise of restoring old-time conditions only ideologically postulated, have fallen within the domain of tasks for codification.

Earlier, the mere collection of portions of the law into quantitative summations proved to be enough for completing the task, without any structural renewal. However, on the European continent in the modern era, ending feudal disunity and division became the sine qua non for survival among competing empires and dynasties. In order to achieve this, the monarch had to organise the state army and its state financing separate from his own, as well as a bureaucratic institutional machinery to run them, which could function in an impersonal way to implant a far-reaching regulatory system. For the lucid arrangement and up-to-date handling of such a quantity of regulations, the old methods could not prove adequate. In other words, in the codification of continental Europe the quantitative collecting of legal material was replaced by their qualitative restructuring.

The genuine breakthrough was based on the idea of legality, the conceptualisation of laws into a sequence of legal rights and duties, which translated the bourgeois view of society into the language of law, realised through complete structural reform, re-establishing and re-positing of the whole body of law. This was accomplished by Enlightenment’s bold demand for change, by the planning ethos characteristic of rationalism, by the re-founding of natural law (by this time already opposed to feudalism), and, as to its methods, by taking the more geometrico [geometric manner] pattern from the axiomatic idea of the exact sciences (especially mathematics and physics). With the triumph of the idea of constructing more geometrico, the law became represented as a system having axiomatic logic as its ideal, replacing the chaotic mass of rules, disorderly and full of contradictions, built one upon the other by chance. The system was constructed as the well-ordered assembly of general principles, serving as foundation stones for the whole assemblage, general rules, specific rules, exceptions from the rules, and exceptions from the exceptions. All this was done in a code usually consisting of two parts, namely, the general part, which provided the directives for the entire legislation, and a special part, which offered regulation calibrated for standard situations (for example, individual contracts defined in civil law, or the legal facts that constitute a case in criminal law). Princely absolutism attempted to operate with casuistic precision (the General Law of the Prussian Territory, 1791), but did not succeed. The Civil Code with which the French revolutionary renewal concluded (1804), then the Austrian (1811), the German (1897), and the Swiss (1907) codes of civil law, resulted in framing the influential bodies of the law on the European continent that are still in force today.

Codification meant new possibilities in the presentation of the law, as well as in its internal organisation and structure. The germ of the claim for legal positivism was first formulated in the imperial codification of JUSTINIAN and, later, FREDERICK THE GREAT: the embodiment of laws in a series of concepts; the development of its fundamental classifications and conceptual system, with an emphasis on prohibiting interpretation except before an extraordinary imperial committee; and, finally, the reduction of law [ius] to the body of enacted laws [lex], that is, the exclusive identification of law with the outcome of its formal enactment. However, the formative era’s foundation of rules upon underlying general principles, in a consistently established system derived from the principles and based on the qualitative idea of codification, was soon lost in the rigid and exegetical application of the great civil codes. By the end of the 19th century, legal positivism as simplified to rule positivism (or, more accurately, to statutory positivism) became challenged by the free-law movement.

In England, efforts of codification at the start advanced parallel to those in continental Europe. However, since legal unity was no longer in question and the judicial route to legal adaptation had been institutionalised at an early period, the idea of codification because of rational considerations did not take hold. Even in the United States codification proved to be successful primarily as the medium for legal transplant and for reform in the new states’ institutions. The Common Law pattern of restructuring the law into a new systematic body, as opposed to the Civil Law pattern of codification, is based on the rearrangement of the legal materials. Thanks to the process of argumentation through precedents, general principles could become the source for the judges’ considerations without any mediation by a code. Codification in the strict sense of the word was replaced by various substitutes, such as doctrinal codification (textbook writing, as the medium for 19th-century English legal export to the colonies; restatement of the law by private bodies with professional support, as the tool for the American approach to law in the 20th century), the rearrangement of statutory law (consolidation), and the uniformisation and unification of law.

Summing up, the code is a thoroughly organised 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 in the 17th and 18th centuries, the codes committed to one written body almost the entire system of law. From the later efforts at legal consolidation, from French absolutism until the present, codification has, instead, collected all the rules of a relatively independent area within individual branches of the law. Formerly it could be a recording of customs or a compilational collection or a proposal in a private work (for example, STEPHAN WERBŐCZY’s Tripartitum opus iuris, 1514, which was successful in preserving Hungarian legal unity even after the country was divided in three). Private projects continue, for instance, in the recommended model codes of the Restatements of Law, which were meant for internal legal uniformisation as well as for the codification of 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 moving from the general to the specific, often introduced by a preamble stating its goals, and always having a statement of general principles as its foundation. The principles in the code are often formulated as a clause from which legal practice can generate new regulations, and can even erect new legal institutions.

Keywords: universal legal history, objectification of law, rationalisation of law, Max Weber

JEL Classification: K00