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CODE (Lat. codex)
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See also:CODE (See also:Lat. codex) , the See also:term for a See also:complete and systematic See also:body of See also:law, or a complete and exclusive statement of some portion of the law; and so by See also:analogy for any See also:system of rules or See also:doctrine; also for an arrangement in telegraphy, signalling, &c., by which communications may be made according to rules adopted for brevity or secrecy.. In See also:jurisprudence the question of the reduction of See also:laws to written codes, representing a complete and readily accessible system, is a See also:matter of See also:great See also:historical and See also:practical See also:interest. Many collections of laws, however, which are commonly known as codes,' would not correspond to the See also:definition given above. The Code of Justinian (see JUSTINIAN I.; See also:ROMAN LAW), the most celebrated of all, is not in itself a complete and exclusive system of law. It is a collection of imperial constitutions, just as the See also:Pandects are a collection of the opinions of jurisconsults. The Code and the Pandects together being, as See also:Austin says, " digests of Roman law in force at the See also:time of their conception," would, if properly arranged, constitute a code. Codification. in this sense is merely a question of the See also:form of the laws, and has nothing to do with their goodness or badness from an ethical or See also:political point of view. Sometimes codification only means the changing of unwritten into written law; in the stricter sense it means the changing of unwritten or badly-written law into law well written. ' The most See also:ancient code known, that of Kharnmurabi, is dealt with in the See also:article BABYLONIAN LAW.. The same causes which made collections of laws necessary in the time of Justinian have led to similar undertakings among See also:modern peoples. The actual See also:condition of laws until the See also:period when they are consciously remodelled is one of confusion, See also:contradiction, repetition and disorder; and to these evils the progress of society adds the See also:burden of perpetually increasing legislation. Some See also:attempt must be made to simplify the task of learning the laws by improving their expression and arrangement. This is by no means an easy task in any See also:country, but in See also:England it is surrounded with See also:peculiar difficulties. The See also:independent See also:character of See also:English law has prevented an attempt to do what has already been done for other systems which have the basis of the Roman law to fall back upon. The most celebrated modern code is the See also:French. The See also:necessity of a code in See also:France was mainly caused by the immense number of See also:separate systems of jurisprudence existing in that country before 1789, justifying See also:Voltaire's See also:sarcasm that a traveller in France had to See also:change laws about as often as he changed horses. At first published under the See also:title of Code See also:Civil See also:des See also:Francais, it was afterwards entitled the Code See also:Napoleon (q.v.)—the See also:emperor Napoleon wishing to attach his name to a See also:work which he regarded as the greatest See also:glory of his reign. The code, it has been said, is the product of Roman and customary law, together with the ordinances of the See also:kings and the laws of the Revolution. In form it has passed through several changes caused by the political vicissitudes of the country, and it has of course suffered from time to time important alterations in substance, but it still remains virtually the same in principle as it See also:left the hands of its framers. The code has produced a vast number of commentaries, among which may be named those of A. Duranton, R. T. Troplong and J. C. F. Demolombe. The remaining French codes are the Code de See also:procedure civile, the Code de See also:commerce, the Code d'instruction criminelle and the Code penal. The merits of the French code have entered into the discussion on the See also:general question of codification. Austin agrees with See also:Savigny in condemning the See also:ignorance and haste with which it was compiled. " It contains," says Austin, " no See also:definitions of technical terms (even the most leading), no exposition of the rationale of distinctions (even the most leading), no exposition of the broad principles and rules to which the narrower provisions expressed in the code are subordinate; hence its fallacious brevity." Codes modelled on the French code have, however, taken See also:firm See also:root in most of the countries of See also:continental See also:Europe and in other parts of the See also:world as well, such as Latin See also:America and several of the See also:British colonies.
The Prussian code (Code See also:Frederic) was published by See also:Frederick the Great in 1751. It was intended to take the See also:place of " Roman, See also:common Saxon and other See also:foreign subsidiary laws and statutes," the provincial laws remaining in force as before. One of the See also:objects of the See also: A more exact parallel to the English problem may be found in the Code of the See also:State of New See also:York. The revised constitution of the state, as adopted in 1846, " ordered the See also:appointment of two commissions, one to reduce into a written and a systematic code the whole body of the law of the state, and the other to revise, reform, simplify and abridge the rules and practice, pleadings, &c., of the courts of See also:record." By an See also:act of 1847, the state legislature declared that the body of substantive law should be contained in three codes—the Political, the Civil and the Penal. The See also:works of both commissions, completed in 1865, filled six volumes, containing the Code of Civil Procedure(including the law of See also:evidence), the See also:Book of Forms, the Code of Criminal Procedure, the Political Code, the Penal Code and the Civil Code. In the introduction to the Civil Code it was claimed that in many departments of the law the codes " provided for every possible See also:case, so that when a new case arises it is better that it should be provided for by new legislation." The New York code was defective in the important points of definition and arrangement. It formed the basis, however, of the See also:present codes of civil and criminal procedure in the state of New York. Much interest has attached to the Penal Code See also:drawn up by See also:Edward See also:Livingston (q.v.) for the state of See also:Louisiana. The system consists of a Code of See also:Crime and Punishments, a Code of Procedure, a Code of Evidence, a Code of Reform and See also:Prison Discipline, and a Book of Definitions. " Though the state for which the codes were prepared," said Chief See also:Justice See also:Chase, " neglected to 'avail itself of the labours assigned and solicited by itself, they have proved, together with their introductions, a treasure of suggestions to which many states are indebted for useful legislation." Most of the other states in the See also:United States have codes stating the law of See also:pleading in civil actions, and such states are often described as code states to distinguish them from those adhering to the older forms of See also:action, divided between those at law and those at See also:equity. A few states have general codes of political and civil rights. The general See also:drift of legislation and of public sentiment in the United States is towards the See also:extension of the principle of codification, but the contrary view has been ably maintained (see J. C. See also:Carter, Provinces of the Written and the Unwritten Law, New York, 1889). Since the time of See also:Bentham, the codification of the law of England has been the See also:dream of the most enlightened jurists and statesmen. In the See also:interval between Bentham and our own time there has been an immense advance in the scientific study of law, but it may be doubted whether the problem of codification is at all nearer See also:solution. Interest has mainly been directed to the historical See also:side of legal See also:science, to the phenomena of the See also:evolution of laws as See also:part of the development of society, and from this point of view the question of remodelling the law is one of See also:minor interest. To Bentham the problem presented itself in the simplest and most See also:direct form possible. What he proposed to do was to set forth a body of laws, clearly expressed, arranged in the See also:order of their logical connexion, exhibiting their own rationale and excluding all other law. On the other See also:hand the problem has in some respects become easier since the time of Bentham. With the Benthamite codification the conception of reform in the substantive law is more or less mixed up. If codification had been possible in his See also:day, it would, unless it had been accompanied by the searching reforms which have been effected since, and mainly through his See also:influence, perhaps have been more of an evil than a See also:good. The See also:mere dread that, under the See also:guise of codification or improvement in form, some change in substance may secretly be effected has See also:long been a practical obstacle in the way of legal reform. But the law has now been brought into a state of which it may be said that, if it is not the best in all respects that might be desired, it is at least in most respects as good as the conditions of legislation will permit it to be. Codification, in fact, may now be treated purely as a question of form. What is proposed is that the law, being, as we assume, in substance what the nation wishes it to be, should be made as accessible as possible, and as intelligible as possible. These two essential conditions of a See also:sound system of law are, we need hardly say, far from being fulfilled in England. The law of the See also:land is embodied in thousands of statutes and tens of thousands of reports. It is expressed in See also:language which has never been fixed by a controlling authority, and which has swayed about with every change of time, place apd circumstance. It has no definitions, no rational distinctions, no connexion of parts. Until the passing of the Judicature Act of 1873 it was pervaded throughout its entire See also:sphere by the flagrant See also:antinomy of law and equity, and that act has only ordered, not executed, its consolidation. No lawyer pretends to know more than a fragment of it. Few practical questions can be answered by a lawyer without a See also:search into numberless acts of See also:parliament and 634 CODE NAPOLEON reported cases. To laymen, of course, the whole law is a sealed book. As there are no authoritative general principles, it happens that the few legal See also:maxims known to the public, being apprehended out of relation to their authorities, are as .often likely to be wrong as to be right. It is hopeless to think of making it possible for every See also:man to be his own lawyer, but we can at least try to make it possible for a lawyer to know the whole law. The earlier advocates of codification founded their case mainly on the evils of judiciary law, i.e. the law contained in the reported decisions of the See also:judges. Bentham's See also:bitter antipathy to judicial legislation is well known. Austin's See also:thirty-ninth lecture (Lectures, ed. 1869) contains an exhaustive See also:criticism of the tenable objections to judiciary law. All such law is embedded in decisions on, particular cases, from which it must be extracted by a tedious and difficult See also:process of See also:induction. Being created for particular cases it is necessarily uncomprehensive, imperfect, uncertain and bulky. These are evils which are inc!dent to the nature of judiciary laws. The defective form of the existing statute law, moreover, has also given rise to loud complaints. See also:Year by year the See also:mass of legislation grows larger, and as long as the basis of a system is judiciary law, it is impossible that the new statutes can be completely integrated therewith. The mode of framing acts of parliament, and especially the practice of legislating by reference to previous acts, likewise produce much uncertainty and disorder. Some progress has, however, been made by the passing from time to time of various acts codifying branches of law, such as the Bills of See also:Exchange Act 1882, the See also:Partnership Act r89o, the See also:Trusts Act 1893, and the See also:Interpretation Act 1889. The Statute Law Revision See also:Committee also perform a useful work in excising dead law from the statute-book, partly by See also:repeal of obsolete and spent acts and parts of acts, and partly by pruning redundant preambles and words. The construction of a See also:section of an act may depend on the See also:preamble and the context, and the repeal of the preamble and certain parts of the act may therefore affect the construction of what is left. This is provided for by a clause which is said to have been settled by See also:Lord See also:West-See also:bury. It provides (in effect) that the repeal of any words or expressions of enactment shall not affect the construction of any statute or part of a statute. The lawyer, therefore, cannot rely on the revised edition of the statutes alone, and it is still necessary for him to consult the complete act as it was originally enacted. The process of See also:gradual codification adopted in See also:India has been recommended for See also:imitation in England by those who have had some experience of its working. The first of the See also:Indian codes was the Penal Code (see CRIMINAL LAW), and there are also codes of civil and criminal procedure. Whether any attempt will ever be made to supersede this vast and unarranged mass by a complete code seems very doubtful. Writers on codification have for the most part insisted that the work should be undertaken as a whole, and that the parts should have relation to some general See also:scheme of the law which should be settled first. The practical difficulties in the way of an undertaking so stupendous as the codification uno coetu of the whole mass of the law hardly require to be stated. In discussions on codification two difficulties are insisted on by its opponents, which have some practical interest—(x) What is to be done in those cases for which the code has not provided? and (2) How is new law to be incorporated with the code? The objection that a code will hamper the opinions of the See also:court, destroy the flexibility and See also:elasticity of the common law, &c., disappears when it is stated in the form of a proposition, that law codified will See also:cover a smaller number of cases, or will be less easily adapted to new cases, than law uncodified. The French system ordered the judges, under a See also:penalty, to give a decision on all cases, whether contemplated or not by the code, and referred them generally to the following See also:sources:—(x) Equite naturelle, loi naturelle; (2) loi romain; (3) loi coutumier; (4) usages, exemples, jugements, jurisprudence; (5) See also:droit commun; (6) principes generaux, maximes, doctrine, science. The Prussian code, on the other hand, required the judges to See also:report new cases to the See also:head of the judicial See also:department, and they were decided bythe legislative See also:commission. No See also:provision was made in either case for incorporating the new law with the code, an omission which Austin justly considers fatal to the usefulness of codification. It is absurd to suppose that any code can remain long without requiring substantial alteration. Cases will arise when its meaning must be extended and modified by judges, and every year will produce its See also:quota of new legislation by the state. The courts 'should be left to interpret a code as they now interpret statutes, and provision should be made for the continual revision of the code, so that the new law created by judges or directly by the state may from time to time be worked into the code. Additional information and CommentsThere are no comments yet for this article.
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