Business, Legal & Accounting Glossary
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:
On the other hand, opponents of codification, with equal fervour, have argued:
See also common law and statute.
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This glossary post was last updated: 5th May, 2020 | 1 Views.