Codification (law)
In
) of law.Codification is one of the
History
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.
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
Upon confederation, the Iroquois created constitutional wampum, each component symbolizing one of the many laws within the 117 articles. The union of the five original nations occurred in 1142,[4] and its unification narrative served the basis for the Iroquois laws.[5]
Systems of religious laws include the halakha of Judaism and the sharia of Islam. The use of civil codes in sharia began with the Ottoman Empire in the 19th century.
Civil law jurisdictions
Civil law jurisdictions rely, by definition, on codification. Notable early examples 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 became widespread only after the enactment of the French Napoleonic Code (1804), which has heavily influenced the legal systems of many other countries.
Common law jurisdictions
England and Wales
The English judge
Most of England's
Consolidation bills are routinely passed to organize the law.
Ireland
United States
The early codification movement
In the United States, a critique of the inherited English tradition of common law and an argument for systematic codification was championed by the United Irish exiles William Sampson (admitted to the New York bar in 1806),[9][10] and William Duane publisher of the Jeffersonian paper, the Philadelphia Aurora.[11] In 1810, Sampson published Trial of the Journeymen Cordwainers of the City of New-York for a Conspiracy to Raise Their Wages,[12] commentary on his (unsuccessful) argument in The People v Melvin (1806) to quash an indictment of illegal worker combination. Insisting on the supremacy of the elected legislature, Sampson's objected that the prosecution was reasoning "abstractedly" from principles of English common law without any reference to statute. It was this, alone, that allowed them to deny journeymen the right to "conspire against starvation" while, without notice or challenge, leaving master tradesmen in a "permanent conspiracy" to suppress wages.[13] He went on to argue that an "indiscriminating adoption of common law" had caused the New-World society to carry over "barbarities" from the Old: laws that "can only be executed upon those not favoured by fortune with certain privileges" and that in some cases operate "entirely against the poor".[14]
Sampson's summary Discourse on the Common Law (1823),[15] holding common law to be contrary to the ethos a democratic republic and urging, with reference to the Code Napoleon, its replacement by a general law of reference, was hailed as "the most sweeping indictment of common law idealism ever written in America" .[16] It was a source of inspiration for Edward Livingston[17] who drew upon French, and other European, civil law in drafting the 1825 Louisiana Code of Procedure.[18] Later, Sampson's efforts appeared vindicated in New York where in 1846 a new state constitution directed that the whole body of state law be reduced to a written and systematic code, and in David Dudley Field's subsequent drafting of the New York Code of Civil Procedure (1848).[19][20]
Sampson sought to disassociate codification from the doctrinaire insistence on positive legislation that had marked Jeremy Bentham's championing of the cause in Britain. But, focussing on the French experience, critics thought it sufficient to comment on the futility of trying to compress human behaviour into rigid categories.[21] President Thomas Jefferson had remained neutral when Duane's attempted to force the issue in the 1805 election in Pennsylvania. Federalists joined with "Constitutional Republicans" to defeat the reform agenda.[22]
Present status
Statutory
In the United States,
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 by the Office of the Law Revision Counsel. 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 54.[23] Title 18, for example, contains many of the Federal criminal statutes. Title 26 is the Internal Revenue Code.[24]
Even in code form, however, many statutes by their nature pertain to more than one topic. For example, the statute making
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.
Regulatory
Rules and regulations that are promulgated by agencies of the Executive Branch of the United States Federal Government are published in the Federal Register and codified in the Code of Federal Regulations. These regulations are authorized by specific legislation passed by the legislative branch, and generally have the same force as statutory law.
International law codification
Following the First World War and the establishment of the League of Nations, the need for codification of international law arose. In September 1924, the General Assembly of the League established a committee of experts for the purpose of codification of international law, which was defined by the Assembly as consisting of two aspects:
- Putting existing customs into written international agreements
- Developing further rules
In 1930 the League of Nations held at the Hague a conference for the purpose of codification of rules on general matters, but very little progress was made.
Following the Second World War, the International Law Commission was established within the United Nations as a permanent body for the formulation of principles in international law.[26]
Canon law codification
Papal attempts at codification of the scattered mass of canon law spanned the eight centuries since
Since the close of the ‘’Corpus Juris’’ numerous new laws and decrees had been issued by popes, councils, and
When the Vatican Council met in 1869 a number of bishops of different countries petitioned for a new compilation of church law that would be clear and easily studied. The council never finished its work and no attempt was made to bring the legislation up to date. By the 19th Century, this body of legislation included some 10,000 norms. Many of these were difficult to reconcile with one another due to changes in circumstances and practice. In response to the request of the bishops at the First Vatican Council,[29] on 14 May 1904, with the motu proprio Arduum sane munus ("A Truly Arduous Task"), Pope Pius X set up a commission to begin reducing these diverse documents into a single code,[30] presenting the normative portion in the form of systematic short canons shorn of the preliminary considerations[31] ("Whereas...") and omitting those parts that had been superseded by later developments.
By the winter of 1912, the "whole span of the code"
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 construing 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.
Notes
- ^ See Chinese law.
- ^ For the most part, the Sale of Goods Act 1979 retains the wording and section numbers of its 1893 predecessor.
References
- ^ Weiss, Gunther A. (2000). "The Enchantment of Codification in the Common-Law World". Yale Journal of International Law. 25 (2).
- Lord Scarman on codification [1]
- ^ Sauveplanne article on codification [2]
- ^ McClure, Bruce (July 15, 2019). "The Eclipse That Marked The Start Of The Iroquois Confederacy". EarthSky. Retrieved 14 August 2021.
- ^ "Kayanlaˀ Kówa – Great Law of Peace". Oneida. Oneida Nation. Retrieved 14 August 2021.
- ^ Supreme Court of Ireland (2020). "Sixth enrolment of the Constitution". Annual Report 2019 (PDF). Dublin. pp. 50–52. Retrieved 13 August 2022.
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: CS1 maint: location missing publisher (link) - ^ a b "Revised Acts". Dublin: Law Reform Commission. Retrieved 23 August 2022.
- . Official website. Criminal Law Codification Advisory Committee. Retrieved 2 September 2022.