Codifications, immediate figures of Codifications Flashcards
What is the definition of Codifications?
“A code is a collection of laws or whole of the laws and legal provisions relating to a special subject”
“The action of codifying”
Two main forms:
- The drafting of a code as a result of a reform movement
- The bringing together in a code of all legislative and regulatory provisions already in existence in the field
What is the origin of the word Codification?
Jeremy Bentham (1815)
= A project to compose a complete body of legislation
Liberalism, realism
Code from Latin word Codex
What is a Codex?
Before the time of Codex, we had the Papyrus scroll (en slags rulle)
Used in legal languages to bring together existing law
Significance of use of Codex:
- Illustration of the strengthening of central power
- The will for the diffusion of rules of law
- The need for conservation of all the laws (notion of archives)
What is the difference between codification and other notions?
Difference to compilation - compilation is a small systematization. Does not organise a real reck.
Difference to reformation - real change, not just gather information, create new general coherence of the legal system
Where can you notice the use of Codification?
Widely spread in continental Europe: roman-germantic system
Less widespread in the common law system: depends on countries
In the common law countries, the terms consolidation and restatement are used. Conception to adapt the statue of law to the evolution of the jurisprudence
What are the types of Codifications?
- Substansive codification
- Formal codification
Materiell rätt vs processrätt?
What is Substansive codification?
Consists of devising and shaping a coherent body of new or renovated rules within a whole aimed at instituting or reviewing a legal order
Common law represents Substansive law.
Is a way of reviewing the law, unifying it and adjusting it to the evolution of society
Aims at instituting a coherent body of new or renewed legal rules destined to either establish a new legal order or to restore a pre-existing order
Codification as a general process:
- Consecration of doctrine and specific inspiration
- Through research of provisions
- General reflection
- A creative effort through choices have been made
- Guidelines laid down and lastly, decisions taken
- The drafting of a code is entrusted to a commission
What is the spirit of a new codification?
Spirit of a new codification - to base codification on new principle, ideals with specific goals durable to legislation with stability, legal security
Like Distributive justice. Sentence decided on the basis of infraction of your sentence, and tax according to your resources.
Spirit of substansive Codification
- Instilling principles and ideas into law in a durable fashion
- Making easier the pursuit of security with constant body of laws
- A good codification must lay down disponitions broad enough to be able to regulate various real situations
- A good codification supposes a systemization, namely codification is a system through a medium (a code)
What are the 2 main ways of fashioning the code?
Structuring the code: Internal structure, divisions, subdivisions, numbered articles in a logical order
Choosing a phraseology and terminology: Direct and impersonal (general) expressions
What is Formal Codification?
Does not involve a construction of a coherent body of laws
Administrative undertaking aiming at only grouping together pre-existing and scattered rules without modifying their content
Reasons/interests of Formal Codification:
- Facilating the knowledge of numerous rules from varied and scattered sources
- Getting rid of obscurities, uncertainties, inconsistencies though a systematic outlay
- Problems with abundance of scattered rules of law
Conflicts, oppositions between successive modifications
What is the purpose of codification?
Technical purposes:
Strengthening legal security and solving crisis of sources of law
By giving features to the codification. Clarity, consistency, accesability, modernity, modernity, simplicity
Social purposes
Ubi societas ibi jus: Where there is society there is law
To realize the common good
Establishing a new social order - with equality
Codifications as a consequence of crisis with the recognition of claims
Codification as a factor of unification of different people in a country
Political purposes:
Codification serving one man, for instance an emperor. Like King Louis 14th Le Code Louis
Codification serving an ideology, for instance Sovjet union was based on Marxism.
Philosophical movement The Enlighment 18th century
French Revolution: Equality, liberty, changement
