Codification

[Cf. F. codification.]
The act or process of codifying or reducing laws to a code.

The collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice.

The term codification is derived from the root word code, and denotes the creation of codes, which are compilations of written statutes, rules, and regulations that inform the public of acceptable and unacceptable behavior.

U.S. law is often described as a common-law system of jurisprudence. This means that it relies on previous cases, or precedents, to determine the procedures and decide the outcome of cases. U.S. jurisprudence also involves the interpretation of written laws — statutes, constitutions, regulations, ordinances, and so forth.

Codification rearranges and displaces prior statutes and case decisions. Codification of an area of law generally constitutes the whole source relied upon for a legal question in that area. Thus, when a state codifies its criminal laws, the statutes contained within the new code supersede the laws that were in place prior to the codification. There are exceptions to this general rule. For example, the Michigan Supreme Court ruled in 1994 that Dr. Jack Kevorkian could be prosecuted under Michigan common law for assisting patient suicides, despite the absence of a statute prohibiting such action in Michigan's criminal-law code (People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714).

Public demand for written laws can be traced to the dawn of recorded history. The first known codification of laws is attributed to Ur-Nammu, king of Ur, in the twenty-fifth century b.c. Lipit-Ishtar, king of Isin, in ancient Sumer, promulgated a written code around 2210 b.c. Hammurabi, a monarch in Babylonia, codified laws in the eighteenth century b.c. Both Lipit-Ishtar and Hammurabi announced in the prologue to their codes that these compilations established justice in the land.

Ancient Greek and Roman civilizations continued the practice of codification. However, their written codes were not always helpful. Emperor Caligula, of Rome, wrote his laws in small characters and hung them high on pillars to ensnare the public. Julius Caesar attempted codification, but he was unable to reduce the enormous body of Roman law to its essentials.

Not until the sixth century a.d. did Rome, under Emperor Justinian I, accomplish a complete codification of its laws. The Code of Justinian, known as the Corpus Juris Civilis, became the legal authority of Rome in 533-34 a.d. Justinian's code completely revised imperial laws; omitted obsolete, contradictory, and repetitive laws; and contained a digest of legal essays for guidance. The Corpus Juris Civilis was a landmark in legal history, and it served as the basis for modern civil-law systems.

Civil-law systems — based on comprehensive codes — were installed in Germany, France, Austria, Switzerland, Italy, Japan, and Spain. Common-law systems — based on case precedents — developed in England, South Africa, and Australia. Jurisprudence in colonial America was based on the English common-law system.

At first, all American colonies enacted laws, but none of these statutes purported to be a comprehensive codification of court procedures or of substantive areas of law (such as criminal law, real estate and personal property law, or admiralty law). Early codification efforts were limited in scope to basic concepts and general criminal prohibitions. In 1611, Virginia became the first colony to adopt and print a body of laws. Massachusetts wrote the Liberties of the Massachusetts Colony of New England in 1641, and then the Laws and Liberties of Massachusetts in 1648. The Massachusetts codes identified simple rules of conduct based on biblical principles. Connecticut published its first code in 1650; idolatry, blasphemy, and witchcraft were identified as capital offenses in its Book of General Laws. In 1665, Long Island and Westchester, New York, adopted a set of laws relating to the rights of persons and property, and to civil and criminal procedures. Aside from these and similar laws, jurisprudence in colonial America was guided by precedent.

The civil-law system and the common-law system were driven by diverging philosophies. Proponents of comprehensive codification and the civil-law system saw the benefits of public notice. By using simple language to inform the citizenry, the state could allow people more freedom to conduct their affairs without fear of the unexpected. Codifiers contended that it was more democratic to live by rules determined by elected legislators, not judges, and that the common-law system was too vast and obtuse for laypersons.

Supporters of the common-law system resisted codification. They noted that rules culled from reported case decisions and written in digests notified the public of behavior standards, and argued that it was impossible to distill legal nuances into authoritative rules. Common-law advocates maintained that a simple rule could not be written to apply to all the situations it might cover. They further argued that precedents, carefully developed over the centuries, were fairer than rules reflecting moods of the moment.

The debate over codification raged in the 1800s. The democratic revolutions in France and the United States inspired codifiers, who emphasized that codification by legislators would reflect the will of the people more than would law as determined by judges. In 1804, France enacted the Code Civil, a set of rules to regulate the organization of courts, civil court procedures, remedies, and the execution of judgments. The Code Civil, renamed the Code Napoléon during Napoléon's reign as emperor, was supplemented shortly after 1804 to ultimately contain five codes relating to civil procedure, commerce, criminal procedure, criminal laws, and the regulation of slavery in French colonies. See also Napoleonic Code.

In the United States, the Code Napoléon inspired French-influenced Louisiana to enact a similar comprehensive code in 1824. A codification movement was also sparked in the northern states. In 1848, David Dudley Field (1805-94) convinced the New York Legislature to enact the Code of Civil Procedure, which replaced a complicated common-law system of pleading and installed a simpler, more rational system.

The U.S. Congress passed the U.S. Code in 1926. Before the enactment of this code, federal laws were contained in the Revised Statutes and the subsequent Statutes at Large. The new U.S. Code synthesized and rearranged those statutes, divided them into fifty titles, and compiled them all in four volumes. In 1932, a new edition of the U.S. Code was published. Now, a new edition of the U.S. Code is promulgated every six years, with a cumulative supplement printed for each title in every intervening year.

Procedural rules have also been codified. The resulting codes include the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence. Most states have codified their procedural rules based on these federal codes.

The American Law Institute (ALI), a group of legal scholars, has been responsible for the most recent codification movement in the United States. The ALI has written restatements of law for such areas as contracts, torts, and conflict of laws. The restatements do not have the force of law, but they are used by states as models for codification, and they are referred to by courts in judicial decisions. The ALI also works with the National Conference of Commissioners to promote uniform laws. The most notable of these efforts is the Uniform Commercial Code, a collection of laws relating to commercial transactions such as sales and leasing of goods, transfer of funds, commercial paper, bank deposits and collections, letters of credit, investment securities, and secured transactions. The Uniform Commercial Code has been adopted in whole or in part by all states.

Administrative agencies follow their own procedural and substantive codes. The Code of Federal Regulations contains the general body of regulatory laws governing practice and procedure in federal administrative agencies. This code is divided into fifty titles and is revised annually. All states have codified regulations for their own administrative agencies.

Yet another compilation of statutes, rules, and regulations is the Code of Military Justice, which covers the substantive and procedural law governing the armed forces of the United States.

See: code pleading; U.S. Code.

For codification in linguistics, see codification (linguistics).

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In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code.

Contents 1 History 2 Codification in common law and civil law jurisdictions 2.1 Example: Codification in the United States 2.2 Recodification 3 References

History

The first civilization to codify its laws was ancient Babylon. The first real set of codified laws, the Code of Hammurabi, was compiled circa 1760 BC by the Babylonian king Hammurabi, and is the earliest known civil code.

Besides religious laws such as the Torah, important codifications were developed in the ancient Roman Empire, with the compilations of the Lex Duodecim Tabularum and much later the Corpus Iuris Civilis. These codified laws were the exceptions rather than the rule, however, as during much of the ancient Roman laws were left mostly uncodified.

The first permanent system of codified laws could be found in China, with the compilation of the Tang Code in CE 624. This formed the basis of the Chinese criminal code, which was then replaced by the Great Qing Legal Code, which was in turn abolished in 1912 following the Xinhai Revolution and the establishment of the Republic of China. The new laws of the Republic of China were inspired by the German codified work, the Bürgerliches Gesetzbuch.^[1] A very influential example in Europe was the French Napoleonic code of 1804.

Another early system of laws is Hindu law framed by Manu and called as Manu Smriti. The use of civil codes in Islamic Sharia law began with the Ottoman Empire.

Codification in common law and civil law jurisdictions

Contrary to popular belief, the common law has been codified in many jurisdictions in many areas; examples include the Law of General Obligations of New York State, the English law relating to Marine insurance, which was originally judge-made common law, and the California Civil Code.

In civil law jurisdictions, codification has also occurred in many areas. Statutes of the Grand Duchy of Lithuania were most notable codifications of law in the Central and Eastern Europe of the 16th century. The codification movement developed out of the philosophy of the Enlightenment and began in several European countries during the late 18th century (see civil code). However, it only gained significant momentum with the enactment of the French Napoleonic Code in 1804.

Example: Codification in the United States

In the United States, acts of Congress, such as federal statutes, are published chronologically in the order in which they become law — often by being signed by the President, on an individual basis in official pamphlets called "slip laws," and are grouped together in official bound book form, also chronologically, as "session laws." The "session law" publication for Federal statutes is called the United States Statutes at Large. Any given act may be only one page long, or hundreds of pages, in length. An act may be classified as either a "Public Law" or a "Private Law."

Because each Congressional act may contain laws on a variety of topics, many acts, or portions thereof are also rearranged and published in a topical, subject matter codification. The official codification of Federal statutes is called the United States Code. Generally, only "Public Laws" are codified. The United States Code is divided into "titles" (based on overall topics) numbered 1 through 50. Title 18, for example, contains many of the Federal criminal statutes. Title 26 is the Internal Revenue Code.

Even in code form, however, many statutes by their nature pertain to more than one topic. For example, the statute making tax evasion a felony pertains to both criminal law and tax law, but is found only in the Internal Revenue Code. Other statutes pertaining to taxation are found not in the Internal Revenue Code but instead, for example, in the Bankruptcy Code in Title 11 of the United States Code, or the Judiciary Code in Title 28.

Further, portions of some Congressional acts, such as the provisions for the effective dates of amendments to codified laws, are themselves not codified at all. These statutes may be found by referring to the acts as published in "slip law" and "session law" form. However, commercial publications that specialize in legal materials often arrange and print the uncodified statutes with the codes to which they pertain.

In the United States, the individual states, either officially or through private commercial publishers, generally follow the same three-part model for the publication of their own statutes: slip law, session law, and codification.

Recodification

Recodification refers to a process where existing codified statutes are reformatted and rewritten into a new codified structure. This is often necessary as, over time, the legislative process of amending statutes and the legal process of constuing statutes by nature over time results in a code that contains archaic terms, superseded text, and redundant or conflicting statutes. Due to the size of a typical government code, the legislative process of recodification of a code can often take a decade or longer.

References

1. ^ Chinese law

American Legal Publishing Corporation

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