Codification

Literally, ‘making a book’ (or ‘codex’).

In law, codification is the process of collecting and restating either the complete law of a distinct legal system (e.g. France’s Napoleonic Code, established in 1804) or else a particular branch of law within that system (e.g. America’s Uniform Commercial Code, first published in 1952, and later enacted, in whole or in part, in all 50 states).

Its aim is to replace and supersede all existing rules of law (customary, case and statutory) with a newly formulated ‘legal code’.

The process of codification involves extracting fundamental principles on which an existing set of laws is based, and articulating these in a more accessible form. In England, the term ‘codification’ frequently refers to the aspiration, long-held by various scholars and commentators, of removing the perceived disorder and excessive technicalities of the common law while preserving its rational substance. Here, proponents of codification have sought to convert the common law into a less vague and more logical statutory framework. However, the few genuine attempts to implement this ideal have universally failed. Lord Chancellor Westbury, for instance, contemplated a Digest of English law and had a Royal Commission appointed in 1866 to examine the expediency of his proposal. After issuing a report in 1867, though, the project quickly lapsed. In 1872, Sir James Fitzjames Stephen drafted a Code of the Law of Evidence, which received only a first reading in Parliament. He then drafted, in 1879, a Code of Criminal Law and Procedure; the section relating to Criminal Procedure was introduced into Parliament, but immediately dropped. More recently, codification was declared to be one of the objects of the Law Commissions appointed in 1965, but (again) no material progress was made.

The debate over codification is well worn, with each side tending to rehash generally familiar arguments and objections. Proponents cite a need to rationalize a more or less chaotic volume of pre-existing law and to provide the legal system with a fresh basis for development. They defend the utility of creating a unifying element for a more ‘rational’ political state. Jeremy Bentham, a staunch advocate of codification as essential to his quest for legislative reform, saw legal codes as complete and self-sufficient, and not to be supplemented or modified except through the process of legislation.

He argued passionately that codes:

1. offer clarity where the common law is vague and uncertain;
2. constitute the law of the legislator, thereby rendering it more responsive to people’s needs and more democratic than judge-made law; and
3. make the law accessible to the general public, while the common law may only be grasped by legally trained ‘specialists’.

On the other hand, opponents of codification, with equal fervour, have argued:

• the common law cannot be codified;
• a code would sacrifice the flexibility of the common law; and
• a code would trap the reasoning of the common law within rigid conceptual confines. In short, the debate over codification, regardless of the historical period, boils down to those who emphasize the need for crystal-clear rationality and logical system in the law versus those who strive for flexibility and adaptability in the law, especially in light of the unpredictable social contingencies and unprecedented social challenges that a legal system will inevitably confront over time.

See also common law and statute.

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