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Contents

Abbreviation

I. Introduction

Part One: Historical Manifestations of the Idea of Codification

II. Early Forms of Codification: Antiquity
1. Reform of Customs and Their Recording in Early Antiquity
2. Compilation of Laws by Later Codes
3. General Features of Ancient Codification
4. Conclusion

III. Early Forms of Codification: the Middle Ages
1. Codes of the Mediaeval Empires
2. Codifications of Feudal Division
3. Experiments in Substituting Customary Law by Statutory Law in the Age of Centralization
4. General Features of Mediaeval Codification
5. Conclusion

IV. Codification Trends in the Age of Enlightened Absolutism
1. Emergence of the Concept of Codification Qualitatively Reshaping the Law
2. Partial Codifications in France
3. Successful Codifications Unifying the Law
4. Consolidation of Law as a Substitute for Codification in Russia
5. Conclusion

V. Classical Type of Codification: Continental Codes in the Service of Bourgeois Transformation
1. Inadequacy of Codification under Enlightened Absolutism
2. The French Revolution and the Evolution of the Classical Type of Codification
3. Late Bourgeois Codes
A) Codification of the Aborted Revolution in Germany
B) The Law-Unifying Code of Monopoly Capitalism in Switzerland
4. The Consummation of Continental Codification
5. The Non-Recurrent Nature of Bourgeois Codification
6. Conclusion

VI. Attempts at Codification: Common Law Systems
1. Early English Development
2. The Development of Codification in 19th-Century England
3. Unifying Codification in British India
4. Codification and British Law Export to the Colonies
5. Primitivized Law Adaptation in the American Colonies
6. Codes as a Means of Founding a New State
7. Special Aspects of Codification in Common Law Systems
8. Substitutes for Codification in Common Law Development
9. Conclusion

VII. Striving for Codification: Afro-Asian Systems
1. The Complexity of Afro-Asian Legal Development
2. Codification of Islamic Law
3. Codification as a Means of Substituting Tribal Customs
4. Codification in the Modernized Afro-Asian Societies
5. Conclusion

VIII. New Ambitions in Codification: Socialist Law
1. The Soviet-Russian Experience
2. Re-Codification Attempts in the Soviet Union
3. Codification in the Satellite Countries
4. Re-Codification in Socialist Law
5. Conclusion

Part Two: Types and Development of Codification

IX. Possibility of a General Concept of Codification
1. Unity of the Historical Manifestations of the Codification Phenomenon
2. The Concept of Codification Development
3. The Concept of Codification

X. Rationalization as the Motive Force Behind Codification Development
1. Rationality and Social Development
2. Rationalization of Law in the History of Codification
3. Utopias of Rationality in the Development of the Idea of Codification

XI. Types of Codification in Codification Development
1. Functional Types of Codification
2. Codification as a Quantitative and as a Qualitative Treatment of the Law
3. The Common Core of Codification Phenomena

XII. Codification in Present-Day Development: Concluding Remarks

Index
Index of Names
Index of the Sources of Law

Postscript: Codification on the Threshold of the Third Millennium [2002]
  I. Codification Now
  II. Structural and Functional Perspectives
  III. Historical Revision
  IV. Postscript

Indexes

Annex: Codification [1999]

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Blurb

Codification is a standard means for making the law public and available, as well as for recording the law in written texts. It is a tool known since the law's early development.

The fundamental task of codification in antiquity was the exclusion of any doubts in the presentation of the law, for example, the restoration by the Laws of Hammurabi of the validity of ancient traditions in accordance with the prevailing interests of the ruler, declaration of law as the common body of rules for the social game by the Laws of Twelve Tables (at least according to Titus Livius' legend of its origin), and also as a halt of law's previous development by the Codex Iustinianus. In the medieval era, codification made possible the registration, recording and uniform editing of the consolidated customs, adapted and brought up to date, prevailing in particular areas of customary law. In the modern era, the continued recording of recognised customs, the declaration of newly established national laws, the collection of an unambiguous body of law designated to be applicable by the sovereign power, as well as the activity of legal reform, often hidden and sometimes executed under the guise of restoring old-time conditions only ideologically postulated, have fallen within the domain of tasks for codification.

Earlier the mere collection of portions of the law into quantitative summations proved to be enough for completing the task, without any structural renewal. However, on the European continent in the modern era, ending feudal disunity and division became the sine qua non for survival among competing empires and dynasties. In order to achieve this, the monarch had to organise the state army and its state financing separate from his own, as well as a bureaucratic institutional machinery to run them, which could function in an impersonal way to implant a far-reaching regulatory system. For the lucid arrangement and up-to-date handling of such a quantity of regulations, the old methods could not prove adequate. In other words, in the codification of continental Europe the quantitative collecting of legal material was replaced by their qualitative restructuring.

The genuine breakthrough was based on the idea of legality, the conceptualisation of laws into a sequence of legal rights and duties which translated the bourgeois view of society into the language of law, realised through complete structural reform, re-establishing and re-positing of the whole body of law. This was accomplished by Enlightenment's bold demand for change, by the planning ethos characteristic of rationalism, by the re-founding of natural law (by this time already opposed to feudalism), and, as to its methods, by taking the more geometrico [geometric manner] pattern from the axiomatic idea of the exact sciences (especially mathematics and physics). With the triumph of the idea of constructing more geometrico, the law became represented as a system having axiomatic logic as its ideal, replacing the chaotic mass of rules, disorderly and full of contradictions, built one upon the other by chance. The system was constructed as the well-ordered assembly of general principles, serving as foundation stones for the whole assemblage, general rules, specific rules, exceptions from the rules, and exceptions from the exceptions. All this was done in a code usually consisting of two parts, namely, the general part, which provided the directives for the entire legislation, and a special part, which offered regulation calibrated for standard situations (for example, individual contracts defined in civil law, or the legal facts that constitute a case in criminal law). Princely absolutism attempted to operate with casuistic precision (the General Law of the Prussian Territory, 1791), but did not succeed. The Civil Code with which the French revolutionary renewal concluded (1804), then the Austrian (1811), the German (1897), and the Swiss (1907) codes of civil law, resulted in framing the influential bodies of the law on the European continent that are still in force today.

Codification meant new possibilities in the presentation of the law, as well as in its internal organisation and structure. The germ of the claim for legal positivism was first formulated in the imperial codification of Justinian and, later, Frederick the Great: the embodiment of laws in a series of concepts; the development of its fundamental classifications and conceptual system, with an emphasis on prohibiting interpretation except before an extraordinary imperial committee; and, finally, the reduction of law [ius] to the body of enacted laws [lex], that is, the exclusive identification of law with the outcome of its formal enactment. However, the formative era's foundation of rules upon underlying general principles, in a consistently established system derived from the principles and based on the qualitative idea of codification, was soon lost in the rigid and exegetical application of the great civil codes. By the end of the 19th century legal positivism as simplified to rule positivism (or, more accurately, to statutory positivism) became challenged by the free-law movement.

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Today's codes are, in general, the products of legislative initiatives. In its modern forms, codification strives for a structure moving from the general to the specific, often introduced by a preamble stating its goals, and always having a statement of general principles as its foundation. The principles in the code are often formulated as a clause from which legal practice can generate new regulations, and can even erect new legal institutions.

As its name implies, compilation is a way of stating and arranging the applicable rules in chronological order as a written or printed collection, or as a mass of information stored on or in electronic data bases. This information is classified in accordance with the sources from which the legal provisions are taken, and eventually by topics. Until the formation of modern codes, most law books in the ancient, medieval, and modern era were only collections of the prevailing normative material - in some cases with textual corrections, which were meant mainly to exclude possible contradictions, to leave out the parts that had lost their validity due to desuetude, to remedy textual deteriorations caused by earlier copying and sometimes also to "correct" it, in order to satisfy current dominant interests (this is revision). Modern compilations mostly do not revise, but keep the original structure of the legal sources elaborated in them. Sometimes the rationale of the minister who originally presented the bill is included, and in Nordic European states the preparatory material elaborated by scholarly and judicial committees [travaux preparatoires] are also included or attached to it.

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