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International Alliance for Advanced Judicial Studies (IAAJS)

Codification (law)

 

Codification is the defining feature of civil law jurisdictions. In common law systems, such as that of English law, codification is the process of converting and consolidating judge-made law into statute law.

Ancient Sumer's Code of Ur-Nammu was compiled circa 2050–1230 BC, and is the earliest known surviving civil code. Three centuries later, the Babylonian king Hammurabi enacted the set of laws named after him.

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 Juris Civilis. These codified laws were the exceptions rather than the rule, however, as during much of ancient times Roman laws were left mostly uncodified.

The first permanent system of codified laws could be found in imperial China, with the compilation of the Tang Code in AD 624. This formed the basis of the Chinese criminal code, which was eventually 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 Burgerliches Gesetzbuch. 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, dating back to the 2nd century BC. The use of civil codes in Islamic Sharia law began with the Ottoman Empire in the 16th century AD.

Civil law jurisdictions rely, by definition, on codification. A notable early example were the Statutes of Lithuania, in the 16th century. The movement towards codification gained momentum during the Enlightenment, and was implemented in several European countries during the late 18th century (see civil code). However, it only became widespread after the enactment of the French Napoleonic Code (1804), which has heavily influenced the legal systems of many other countries.

The English judge Sir Mackenzie Chalmers is renowned as the draftsman of the Bills of Exchange Act 1882, the Sale of Goods Act 1893 and the Marine Insurance Act 1906, all of which codified existing common law principles. The Sale of Goods Act was repealed and re-enacted by the Sale of Goods Act 1979 in a manner that revealed how sound the 1893 original had been.[note 2] The Marine Insurance Act (mildly amended) has been a notable success, adopted verbatim in many common law jurisdictions.

Most of England's criminal laws have been codified, partly because this enables precision and certainty in prosecution. However, large areas of the common law, such as the law of contract and the law of tort remain remarkably untouched. In the last 80 years there have been statutes that address immediate problems, such as the Law Reform (Frustrated Contracts) Act 1943 (which. inter alia, coped with contracts rendered void by war), and the Contracts (Rights of Third Parties) Act 1999, which amended the doctrine of privity. However, there has been no progress on the adoption of Harvey McGregor's Contract Code (1993), even though the Law Commission, together with the Scots Law Commission, asked him to produce a proposal for the comprehensive codification and unification of the contract law of England and Scotland. Similarly, codification in the law of tort has been at best piecemeal, a rare example of progress being the Law Reform (Contributory Negligence) Act 1945.

Since the close of the ‘’Corpus Juris’’ numerous new laws and decrees had been issued by popes, councils, and Roman Congregations. No complete collection of them had ever been published and they remained scattered through the ponderous volumes of the ‘’Bullaria’’ the ‘’Acta Sanctae Sedis’’, and other such compilations, which were accessible to only a few and for professional canonists themselves and formed an unwieldy mass of legal material. Moreover, not a few ordinances, whether included in the ‘’Corpus Juris’’ or of more recent date, appeared to be contradictory; some had been formally abrogated, others had become obsolete by long disuse; others, again, had ceased to be useful or applicable in the present condition of society. Great confusion was thus engendered and correct knowledge of the law rendered very difficult even for those who had to enforce it.

 
 

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