1911 Encyclopædia Britannica/Code
CODE (Lat. codex), the term for a complete and systematic body of law, or a complete and exclusive statement of some portion of the law; and so by analogy for any system of rules or doctrine; also for an arrangement in telegraphy, signalling, &c., by which communications may be made according to rules adopted for brevity or secrecy.
In jurisprudence the question of the reduction of laws to written codes, representing a complete and readily accessible system, is a matter of great historical and practical interest. Many collections of laws, however, which are commonly known as codes, would not correspond to the definition given above. The Code of Justinian (see Justinian I.; 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 Pandects are a collection of the opinions of jurisconsults. The Code and the Pandects together being, as Austin says, “digests of Roman law in force at the time of their conception,” would, if properly arranged, constitute a code. Codification in this sense is merely a question of the form of the laws, and has nothing to do with their goodness or badness from an ethical or 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 same causes which made collections of laws necessary in the time of Justinian have led to similar undertakings among modern peoples. The actual condition of laws until the period when they are consciously remodelled is one of confusion, contradiction, repetition and disorder; and to these evils the progress of society adds the burden of perpetually increasing legislation. Some 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 country, but in England it is surrounded with peculiar difficulties. The independent character of 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 French. The necessity of a code in France was mainly caused by the immense number of separate systems of jurisprudence existing in that country before 1789, justifying Voltaire’s sarcasm that a traveller in France had to change laws about as often as he changed horses. At first published under the title of Code Civil des Français, it was afterwards entitled the Code Napoléon (q.v.)—the emperor Napoleon wishing to attach his name to a work which he regarded as the greatest glory of his reign. The code, it has been said, is the product of Roman and customary law, together with the ordinances of the 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 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 procédure civile, the Code de commerce, the Code d’instruction criminelle and the Code pénal. The merits of the French code have entered into the discussion on the general question of codification. Austin agrees with Savigny in condemning the ignorance and haste with which it was compiled. “It contains,” says Austin, “no 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 firm root in most of the countries of continental Europe and in other parts of the world as well, such as Latin America and several of the British colonies.
The Prussian code (Code Frédéric) was published by Frederick the Great in 1751. It was intended to take the place of “Roman, common Saxon and other foreign subsidiary laws and statutes,” the provincial laws remaining in force as before. One of the objects of the king was to destroy the power of the advocates, whom he hoped to render useless. This, with other systems of law existing in Germany, has been replaced by the Civil Code of 1900 (see Germany).
The object of all these codes has been to frame a common system to take the place of several systems of law, rather than to restate in an exact and exhaustive form the whole laws of a nation, which is the problem of English codification. The French and Prussian codes, although they have been of great service in simplifying the law, have failed to prevent outside themselves that accumulation of judiciary and statute law which in England has been the chief motive for codification. A more exact parallel to the English problem may be found in the Code of the State of New York. The revised constitution of the state, as adopted in 1846, “ordered the 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 record.” By an 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 works of both commissions, completed in 1865, filled six volumes, containing the Code of Civil Procedure (including the law of evidence), the 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 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 present codes of civil and criminal procedure in the state of New York. Much interest has attached to the Penal Code drawn up by Edward Livingston (q.v.) for the state of Louisiana. The system consists of a Code of Crime and Punishments, a Code of Procedure, a Code of Evidence, a Code of Reform and Prison Discipline, and a Book of Definitions. “Though the state for which the codes were prepared,” said Chief Justice 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 United States have codes stating the law of pleading in civil actions, and such states are often described as code states to distinguish them from those adhering to the older forms of action, divided between those at law and those at equity. A few states have general codes of political and civil rights. The general drift of legislation and of public sentiment in the United States is towards the extension of the principle of codification, but the contrary view has been ably maintained (see J. C. Carter, Provinces of the Written and the Unwritten Law, New York, 1889).
Since the time of Bentham, the codification of the law of England has been the dream of the most enlightened jurists and statesmen. In the 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 solution. Interest has mainly been directed to the historical side of legal science, to the phenomena of the evolution of laws as part of the development of society, and from this point of view the question of remodelling the law is one of minor interest. To Bentham the problem presented itself in the simplest and most direct form possible. What he proposed to do was to set forth a body of laws, clearly expressed, arranged in the order of their logical connexion, exhibiting their own rationale and excluding all other law. On the other 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 day, it would, unless it had been accompanied by the searching reforms which have been effected since, and mainly through his influence, perhaps have been more of an evil than a good. The mere dread that, under the guise of codification or improvement in form, some change in substance may secretly be effected has 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 sound system of law are, we need hardly say, far from being fulfilled in England. The law of the land is embodied in thousands of statutes and tens of thousands of reports. It is expressed in language which has never been fixed by a controlling authority, and which has swayed about with every change of time, place and 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 sphere by the flagrant 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 search into numberless acts of parliament and 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 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 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 judges. Bentham’s bitter antipathy to judicial legislation is well known. Austin’s thirty-ninth lecture (Lectures, ed. 1869) contains an exhaustive 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 process of induction. Being created for particular cases it is necessarily uncomprehensive, imperfect, uncertain and bulky. These are evils which are incident to the nature of judiciary laws. The defective form of the existing statute law, moreover, has also given rise to loud complaints. Year by year the 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 Exchange Act 1882, the Partnership Act 1890, the Trusts Act 1893, and the Interpretation Act 1889.
The Statute Law Revision Committee also perform a useful work in excising dead law from the statute-book, partly by repeal of obsolete and spent acts and parts of acts, and partly by pruning redundant preambles and words. The construction of a section of an act may depend on the 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 Lord Westbury. 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 gradual codification adopted in India has been recommended for imitation in England by those who have had some experience of its working. The first of the 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 scheme of the law which should be settled first. The practical difficulties in the way of an undertaking so stupendous as the codification uno coëtu 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—(1) 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 court, destroy the flexibility and elasticity of the common law, &c., disappears when it is stated in the form of a proposition, that law codified will 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 penalty, to give a decision on all cases, whether contemplated or not by the code, and referred them generally to the following sources:—(1) Équité naturelle, loi naturelle; (2) loi romain; (3) loi coutumier; (4) usages, exemples, jugements, jurisprudence; (5) droit commun; (6) principes généraux, maximes, doctrine, science. The Prussian code, on the other hand, required the judges to report new cases to the head of the judicial department, and they were decided by the legislative commission. No 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 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.
- ↑ The most ancient code known, that of Khammurabi, is dealt with in the article Babylonian Law.