Codification

views updated

CODIFICATION

The collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice.

The term codification denotes the creation of codes, which are compilations of written statutes, rules, and regulations that inform the public of acceptable and unacceptable behavior.

U.S. law is often described as a common law system of jurisprudence. This means that it relies on previous cases, or precedents, to determine procedures and to decide the outcome of cases. U.S. jurisprudence also involves the interpretation of written laws, including constitutions, regulations, ordinances.

Codification rearranges and displaces prior statutes and case decisions. Codification of an area of law generally constitutes the whole source that is relied upon for a legal question in that area. Thus, when a state codifies its criminal laws, the statutes contained within the new code supersede the laws that had been in place prior to the codification. There are exceptions to this general rule, however. For example, the Michigan Supreme Court ruled in 1994 that Dr. jack kevorkian could be prosecuted under Michigan common law for assisting patient with suicide, despite the absence in Michigan's criminal code of a statute that prohibits such action law (People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714).

Public demand for written laws can be traced to the dawn of recorded history. The first known codification of laws is attributed to Ur-Nammu, king of Ur, in the twenty-fifth century b.c. Lipit-Ishtar, king of Isin, in ancient Sumer, promulgated a written code around 2210 b.c. Hammurabi, a monarch in Babylonia, codified laws in the eighteenth century b.c. Both Lipit-Ishtar and Hammurabi announced in the prologues of their respective codes that these compilations established justice.

Ancient Greek and Roman civilizations continued the practice of codification. However, their written codes were not always helpful. The Roman emperor Caligula wrote his laws in small characters and hung them high on pillars in order to ensnare the public. Julius Caesar attempted codification, but he was unable to reduce the enormous body of roman law to its essentials.

Not until the sixth century a.d. did Rome, under emperor justinian i, accomplish a complete codification of its laws. The Code of Justinian, known as the Corpus Juris Civilis (Body of Civil Laws), became the legal authority of Rome in 533–34 a.d. Justinian's code completely revised imperial laws; omitted obsolete, contradictory, and repetitive laws; and contained a digest of legal essays for guidance. The Corpus Juris Civilis was a landmark in legal history, and it served as the basis for modern civil law systems.

Civil law systems—based on comprehensive codes—were installed in such countries as Germany, France, Austria, Switzerland, Italy, Japan, and Spain. Common law systems—based on case precedents—developed in England, South Africa, and Australia. Jurisprudence in colonial America was based on the English common law system.

At first, all American colonies enacted laws, but none of these statutes purported to be a comprehensive codification of court procedures or of substantive areas of law (such as criminal law, real and personal property law, or admiralty law). Early codification efforts were limited in scope to basic concepts and general criminal prohibitions. In 1611, Virginia became the first colony to adopt and print a body of laws. Massachusetts wrote the Liberties of the Massachusetts Colony of New England in 1641, and then the Laws and Liberties of Massachusetts in 1648. The Massachusetts codes identified simple rules of conduct based on biblical principles. Connecticut published its first code in 1650. Idolatry, blasphemy, and witchcraft were identified as capital offenses in its Book of General Laws. In 1665, Long Island and Westchester, New York, adopted a set of laws relating to the rights of persons and property, and to civil and criminal procedures. Aside from these and similar laws, jurisprudence in colonial America was guided by precedent.

The civil law system and the common law system were driven by diverging philosophies. Proponents of comprehensive codification and the civil law system saw the benefits of public notice. By using simple language to inform the citizenry, the state could allow people more freedom to conduct their affairs without fear of the unexpected. Codifiers contended that it was more democratic to live by rules that had been enacted by elected legislators, rather than judges, and that the common law system was too vast and obtuse for the lay public.

Supporters of the common law system resisted codification. They noted that rules that were culled from reported case decisions and written in digests notified the public of behavior standards, and argued that it was impossible to distill legal nuances into authoritative rules. Common law advocates maintained that a simple rule could not be written to apply to all of the situations that it might cover. They further argued that precedents, carefully developed over the centuries, were fairer than rules reflecting moods of the moment.

The debate over codification raged in the 1800s. The democratic revolutions in France and the United States inspired codifiers, who emphasized that codification by legislators would reflect the will of the people more than would law as determined by judges. In 1804, France enacted the Code Civil, a set of rules that were designed to regulate the organization of courts, civil court procedures, remedies, and the execution of judgments. The Code Civil, renamed the Code Napoléon during Napoléon's reign as emperor, was supplemented shortly after 1804 to contain five codes relating to civil procedure, commerce, criminal procedure, criminal laws, and the regulation of slavery in French colonies.

In the United States, the Code Napoléon inspired French-influenced Louisiana to enact a similar comprehensive code in 1824. A codification movement was also sparked in the northern states. In 1848, david dudley field (1805–94) convinced the New York Legislature to enact the Code of Civil Procedure, which replaced a complicated common law system of pleading and installed a simpler, more rational system.

The U.S. Congress passed the U.S. Code in 1926. Before the enactment of this code, federal laws were contained in the Revised Statutes and the subsequent Statutes at Large. The new U.S. Code synthesized and rearranged those statutes, divided them into 50 titles, and compiled them all in four volumes. In 1932, a new edition of the U.S. Code was published. Now, a new edition of the U.S. Code is promulgated every six years, with a cumulative supplement printed for each title in every intervening year.

Procedural rules have been codified as well. The resulting codes include the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the federal rules of evidence. Most states have codified their procedural rules based on these federal codes.

The American Law Institute (ALI), a group of legal scholars, has been responsible for the most recent codification movement in the United States. The ALI has written restatements of law for such areas as contracts, torts, and conflict of laws. The restatements do not have the force of law, but they are used by states as models for codification, and courts refer to them in judicial decisions. The ALI also drafts codes such as the model penal code in an effort to help standardize and make consistent the application of law throughout the United States. The ALI also works with the National Conference of Commissioners to promote uniform laws. The most notable of these efforts is the uniform commercial code, a collection of laws relating to commercial transactions such as sales and leasing of goods, transfer of funds, commercial paper, bank deposits and collections, letters of credit, investment securities, and secured transactions. The Uniform Commercial Code has been adopted in whole or in part by all of the states.

Administrative agencies follow their own procedural and substantive codes. The code of federal regulations contains the general body of regulatory laws governing practice and procedure in federal administrative agencies. This code is divided into 50 titles and is revised annually. All states have codified regulations for their own administrative agencies.

Yet another compilation of statutes, rules, and regulations is the uniform code of military justice, which covers the substantive and procedural law governing the armed forces of the United States.