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Codification: A Brief Understanding

Some 65 years ago, there was a UNESCO sponsored survey looking into the basic source of various legal systems. This reveals that 73 states out of a total of 110 had legal sources called 'Codes' and the like 421 such sources had been found. In other words the form now termed 'Codification' is existing in 67% of known legal systems, with an average of 6 codes in each legal system.

Further Macaulay explaining the importance of codification to the British Parliament said:
"A code is almost the only blessing-perhaps it is the only blessing which absolute governments are better fitted to confer on a nation than popular governments. The work of digesting a vast and artificial system of unwritten jurisprudence is far more easily performed, and better performed, by a few minds than by many.

A quiet knot of two or three veteran jurists is an infinitely better machinery for such a purpose than a large popular assembly, divided, as such assemblies almost always are, into adverse factions. This seems to me, therefore, to be precisely that point of time at which the advantage of a complete and written code of laws may most easily be conferred on India.

It is a work, which cannot be well performed in an age of barbarism. It is a work which especially belongs to a government like that of India-to an enlightened and paternal despotism" . Now let's understand what 'Codification' is.

Definition of codification:

The word 'code' means 'book of laws'. It appeared first in 13th century in western Europe. The term 'codification' is formed out of a noun 'codex' and verb 'facis-facere' . 'Codification' as an expression was first used by Jeremy Bentham, in a letter to the Russian Tsar in June 1815 .

The term 'codification' has no precise universal definition. But surprisingly, there's hardly any debate or variation in opinions of jurists over the definition of the said term. Though new, the term was clearly understood by almost all the jurists hence there are hardly any trials for defining the term 'codification'. Still for the sake minimal idea, we need a simple definition at least.

The dictionary of Cambridge defines 'codification' as 'the act or process of arranging something, such as laws or rules into a system'. The dictionary of Oxford defines 'codification' as 'the act of arranging laws, rules etc. into a system'.

Speaking in legal sphere, Black's law dictionary defines 'codification' as 'the process of compiling, arranging, and systematising the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code .

Salmond defines codification as 'the reduction of the whole corpus juis, so far as practicable to form enacted law'.

Explaining the nature of codes T.B. Macaulay in his letter to Lord Auckland, the then governor general of British India said "There are two things which a legislator should always have in view while he is framing laws: the one is that they should be as far as possible precise; the other that they should be easily understood � That a law, and especially a penal law, should be drawn in words which convey no meaning to the people who are to obey it, is an evil. On the other hand, a loosely worded law is no law, and to whatever extent a legislature uses vague expressions, to that extent it abdicates its functions, and resigns the power of making law to the Courts of Justice."

Advantages of codification:

  1. Certainty of Law:
    'Ignorentia juris non excusat'- ignorance of law is no excuse is a basic principle of law. This principle has strict application with no exception at all . The principle is based on Roman maxim 'ignorantia corum quae scire tenetur non excusat'- Ignorance of those things which everyone is bound to know excuses not.

    On the other hand it will be irrational and inhumane to punish a person for an act done by him/her believing it to be legal. Both the argument has their own justification. One of the solution for these issues is the codification of law. A codified law will makes things easier. Every person will have a clarity over the law imposed upon him/her and act accordingly.
  2. Uniformity:
    'Rule of law' is one of the essential features of a well developed legal system. Arbitrariness should be ruled out in the implementation of law at any cost. Otherwise the rule won't be qualified as a civilized one and ultimately will lead to chaos and anarchy. Equals should be treated equally and unequals unequally says Aristotle.

    Equals should never be treated unequally. Until and unless the law is codified it won't be possible to rule out arbitrariness. Absence of codified law will makes the implementation of Rule of law optional at the mercy of the concerned authorities.
  3. Eliminates Judge made law:
    According to Macaulay judge made law in a country where there is an absolute government and lax morality where there is no Bar and no public is a curse and scandal not to be endured. According to the structural functionalism of Almond each organ shall perform it's respective function, only its function. Judiciary pronouncing judgements creating new laws, whatever may be the reason for the same either for the public good is not a sign of healthy political system.

    In one respect it shows the incapability of legislative organ and the dominance of one organ over the other. A codified law prevents the judiciary from making new legislations and creating new heads of legislation, some times unnecessarily.
  4. Provides statutory recognition to natural law:
    Natural law, until it is recognised by the legislature will have a little use. The very basic right to life will also have a little use, if it was not backed by legislation. All the rights will be at the mercy of the judiciary and depends on the mood of the judges. Codified law creates obligation on judges and right to citizens over natural rights.
  5. Stability:
    The most essential component of a law is its public acceptance. No law will be of any use, if it is not accepted by the people. An unstable and unnecessarily changing law will hardly be accepted by the people. Codified law is much stable than law of any other form. A stable only will be able to gain confidence of its subjects.

Disadvantages of Codification:

  1. Rigidity:
    Law is dynamic in nature. No attempt to capture it will be successful. It's an ever changing phenomenon. Codification of law is contrary to its natural character of changing. A codified law confines the law to a particular document or set of documents. The general reluctance of legislature to update laws adds to the problem of rigidity. The legislature must update law according to the societal requirements. This may, also work as an obstruction for the general development of law and society.
  2. Defective codes:
    Except in exceptional cases codified law will be superior over everything. No organ of the government except legislature, sometimes even legislature will not be able to touch the codes. A great importance gets accrued to them generally. At this junction, given the value of the codes, any sort of error or negligence in preparing codes will lead to the production of disastrous results.
  3. Local requirements may got affected:
    Give the huge population and territorial extent of the modern nation states, a uniform codified law may effect the sentiments of local people. At times, the customs of indigenous groups may be worst hit by the codified law.

History of codification in India:

India is a diverse country with innumerous sects in various religions. India had undergone various rulers of various religions, regions and dynasties, which further increased the diversity. Except for a few instances like compilation of Muslim law during the reign of Mughal ruler Aurangazeb etc.

It was during the British rule a major part of law was codified in India. The establishment of Law commission of India by the Charter Act of 1833 was a major breakthrough towards the codification of law in India. By 1830s, British parliament was filled by the believers of Bentham's philosophy.

Two of the most influential members of British parliament T.B. Macaulay and J.S. Mill wanted to perform the experiment of codification in India. T.B. Macaulay managed to become the chairman of first law commission of India.

Further the existing conditions in the then British India, favoured the argument of codification by Macaulay and others. Variation in laws applied by the Supreme court in presidency areas and Company's courts in mofussil areas, conflict between sadar courts and the Supreme court, ambiguity in applicable law etc. were the conditions that favoured codification. Though no immediate result was born, Macaulay had done magnus opus work in preparation of draft of IPC.

No draft of first law commission was made law but there were used by the second law commission in preparing drafts of various laws in India. Indian penal code, 1860, Criminal procedure, 1861, the Limitation Act, 1859, Civil procedure code, 1859, Negotiable instruments act, 1881 etc. were the result of work of various Law commissions of India.

After the independence in 1947, a great codified law, with years long hard work of the Constituent Assembly, the world's largest written constitution came into existence i.e The Constitution of India, came into force on 26th January, 1950.

Even after the independence, Law commission continued to work in the Republic of India and was and is playing a crucial role in codifying many laws.

Codification is, in simple the compilation of scattered laws into one resolving the disputes among various laws. Codification, despite its drawbacks has been adopted by most of the countries of the world, given its advantages. Codified law provides for Rule of law, it ensures clarity, absence of arbitrariness. In modern period, many of the world's countries were totally dependent on a great codified law, which is the law of the land and is called as 'Constitution'.

Both the world's largest and oldest democracies are having this texts called Constitution. Many of the jurists starting from Bentham to Bentick, Js Mill, Macaulay etc. admired the idea of codification. All the modern democracies with certain exceptions like UK are running on constitutions. Not only the liberal democracies, but also the socialist nations like Russia are having constitutions.

Though the codified law provides for equality, Rule of law, absence of ambiguity etc. it has its own disadvantages mentioned earlier. The effect of codified law will be disastrous on the development of law, development of customs etc. provided that the legislature is not able to or reluctant or incompetent to update and mold the codified law according to the requirements of the society. So, the effectiveness or the other benefits of codification won't be enjoyed by the people unless the legislature is continuously molding the law according to the way it's passing through.

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