The codification of legal norms, along with incorporation (preparation and publication of collections of legal documents) from ancient times is considered one of the types of systematization. Indeed, the most effective way to eliminate confusion with many acts is to combine, select, process, and reconcile them. In the article we consider in more detail the problems of codification of law.
General information
Creating a code (codification) is a very laborious task. Its implementation takes a lot of time. As practice shows, in some cases it is more expedient to combine many legal documents into one, without fundamentally changing them, than to strive for years to create a single code. Thus, a new systematization method appeared - consolidation. By its characteristics, it is very close to the codification of law. This method was included in the subject of scientific study in the 90s of the last century. At the same time, a reassessment of the codification began. Some lawyers believe that it relates more to lawmaking than to systematization. This opinion can be confirmed by the following arguments:
- In the framework of systematization, work is mainly carried out with legislative acts. Codification of law is basically the processing of regulatory requirements.
- Only law-making tools are used to draw up the code. They serve to form the content, build the structure and logic of the act. When incorporating such tools are not used.
Simply put, only what exists is systematized. Meanwhile, if the creation of the code will ensure the release of the legal field from the piling up of acts, then from this point of view, codification can be recognized as one of the ways to streamline legal documents.
The concept
In intellectual terms, the codification of law is the most complex type of systematization. Drafting a code requires the efforts of many highly qualified professionals.
So, to create the current Civil Code of the Russian Federation, the creation of a Private Law Center was required. It collected the best domestic lawyers. For the compilation of other codes (labor, criminal procedure, family, etc.) teams were also created from leading scientists, practitioners, etc.
Codification of law is a process aimed at streamlining the normative array and associated with the radical processing of the content of legal acts in force in a specific area of regulatory regulation and the creation of a logical and legally integral single act on their basis. This interpretation of the concept is used in domestic law. Let us turn to foreign practice.
In the EU, according to a number of domestic lawyers, the concept of codification (including international law) is interpreted too freely. It is considered as the activity on the publication of any legal acts by the structures of the European Union. This, in particular, is not only about regulatory requirements, but also about directives, instructions, decrees and other documents.
In France, this type of systematization is understood in a broad and narrow sense. In the narrow sense, the codification of law is the creation of classical codes, and in the broad sense, the consolidation of legal acts into one document. Moreover, legal provisions are not reviewed in essence - only obvious contradictions between them are eliminated, outdated norms are excluded, etc.
Some scholars in France and the combination of legal documents in one collection recognize codification. It seems that in this case the boundary between the systematization methods is practically erased. However, it would be incorrect to say that they are wrong. In Latin, the term “code” is translated as “book”. Therefore, this word may well be called a system compilation.
Nevertheless, the concepts of “code” and “codification” are more often interpreted as a complex of disparate acts cited in the form of a single, single document.
With the development of civil society, the number of language opportunities of people is increasing. Accordingly, a variety of terms are used to differentiate different legal phenomena. However, it would be incorrect to denote by the term “codification” different forms of systematization. Otherwise, this will lead to confusion of legal categories. In this regard, the use of the word "codification" in Russian law in a highly specialized sense seems quite justified.
Process specifics
The codification of civil law has special features that significantly distinguish it from other forms of systematization. The purpose of this process is to draw up a coherent, single regulatory act.
The Code is a fundamental legal document with the help of which the legal relations arising in a particular industry are systematized. At the same time, it establishes the basis for normative regulation of a certain area of legal relations. That is why its creation does not abolish the existence and effect of normative acts of other types, moreover, it implies the need for their application.
History of the development of law
The codification of law is a compulsory measure introduced in ancient Rome.
At the initial stages of the development of the legal industry, they did not think about systematization. The fact is that it could limit praetors in choosing class-appropriate solutions to the disputes in question. In this regard, the attempt of the first codification of law, undertaken by Caesar, was unsuccessful.
Work on systematization began when the development of Roman law slowed down significantly due to the decomposition of slave society. By that time, a huge array of imperial decrees had formed. It was necessary to bring them to any system. In addition, the prevailing conditions required a firm consolidation of the rights of slave owners.
In Roman law, codification was first carried out by private individuals. At the end of the III century, lawyers created 2 codes. In the first, there were imperial orders for the period from the end of the 2nd to the end of the 3rd century., In the second - decrees for the next few years. Unfortunately, these codes have not been preserved.
Subsequently, codification of private law and criminal norms was carried out.
Pre-revolutionary Russia
During the 18th century, many legal acts accumulated that required systematization. I must say that they did not deal with codification since 1649 (the year the Cathedral Code was drawn up), although Peter the Great and Catherine II made attempts. For all this time 9 commissions were formed. Each of them was reported to the public very pompously, with noise. However, not one has committed any significant actions.
The ninth commission of 1797 constituted only the table of contents for the future Code. After that, it was decided to create another commission and invite a learned lawyer. Work on codification began by Baron Rosenkampf. Arriving from Livonia, he knew neither Russia nor the Russian language. Rosenkampf dismissed all Russian officials from the commission, and instead took the French and Germans. Of course, they could not systematize domestic regulatory acts.
In 1804, a new attempt was made to codify. A new commission was created, headed by Speransky. As a result, drafts of the Commercial, Civil and Criminal Code were drawn up. However, they were not accepted, since representatives of the reactionary nobility saw in them echoes of legislation created in France during the revolutionary period. As a result, Speransky was suspended from work and sent to Siberia.
Work on codification was resumed only in 1826. Speransky was returned from exile by Nicholas I and was appointed head of the 2nd branch of His Imperial Majesty’s Chancellery. After enormous work in 1833, 2 massive documents were compiled - the Complete Collection of Laws and the Code of Practice of the Norms of the Russian Empire.
Soviet time
In the framework of the revolutionary transformation of society, the building of socialism V.I. Lenin paid special attention to the legislative activity of the state, the development and systematization of norms. The most important period in the formation of Soviet law are the years of transition to a new economic policy (NEP). In the years 1921-22. active codification of Soviet law began.
As soon as the Bolsheviks came to power, they immediately engaged in the processing of legislation. In the years 1921-22. as a result of codification, new legal branches were formed - labor and land law. A forestry and penal code has been created. In these normative acts various concepts were fixed, many of which are used today. So, in the Labor Code, the goal is proclaimed - to ensure the protection of the employee from the administration or the employer, social guarantees are provided, responsibility for non-observance of the rights of workers is established. Under the NEP, the Labor Code contained provisions that were contrary to the interests of entrepreneurs, that is, infringed on private rights.
Codification of HA was especially difficult. At the preparatory stage, the opinion was often expressed that there was nothing private in the USSR, that all rights should be recognized as public. The draft Code was prepared by a special commission. Leading civilists, employees of the People’s Commissariat, NSNH and other specialists were invited to participate in its work. For the first time in Russian history, the opportunity arose to create a democratic normative act. For this, concepts and institutions of the French legal system were used, the experience of codification of Roman law was taken into account.
Nuances
Due to the fact that codification, in fact, can be attributed to lawmaking, and it only adjoins (based on the results) systematization, the order has much in common with the rulemaking methodology. The tools used in compiling the code are very similar to those used to create other legal documents.
Due to the fact that codification is a rather complicated and time-consuming work, it is only necessary to start it after the authorized state body has passed the appropriate decision on its initiation and financing. It is the state structure that takes responsibility for deciding on the appropriateness of the procedure.
Features of the commission
Codification should be carried out by highly qualified specialists. To increase work efficiency, they are combined into a commission or other competent structure. It is worth noting that the formation of a working team also requires certain intellectual, financial, time costs. It should include specialists of various fields - linguists, lawyers, political scientists, practitioners with extensive experience, etc. The codification of international law is especially difficult in this regard. The fact is that the working group should consist of persons representing the interests of different countries. Sometimes consensus on codification is far from always possible.
To reduce the time required to create a single regulatory document and take into account all the proposals, a work plan is drawn up. At the same time, it should be divided into separate stages and indicate the approximate deadlines for the work on each of them.
Each member of the working group should receive a specific task. In other words, it is necessary to clearly distribute the responsibilities of honey to specialists, to determine the stage of their inclusion in the overall activity.
Equally important is the collection and selection of regulatory material that will be codified. The experience of foreign colleagues should be taken into account here.
The collected material must be analyzed. Based on the results of the analysis, a final decision is made on the appropriateness of codification. After that, an analysis of the normative acts selected for processing is carried out, the requirements that are supposed to be included in the code are highlighted. At this stage it is necessary to determine whether the legal relations regulated by these norms are homogeneous. If this condition is not complied with, there is a possibility that as a result, not a single document will be formed, but a more consolidated act.
The regulatory requirements that are selected for codification are classified according to the issues that will be reflected in the code. Such a classification will become the basis for developing the structure of the future regulatory act.
The most important stage is the preparation of a draft code, the formulation of the content of its articles. At this stage, as practice shows, the classification of selected and revised prescriptions is not enough, respectively, they have to be supplemented with other provisions, that is, to fill in the gaps in legal regulation. Of course, one person cannot do this. You can distribute text elements between specialists according to their wishes. As a rule, it is determined by the level of competence in a particular issue.
Final stage
The text of the draft code should be presented for discussion to representatives of the scientific community. Some issues (social, for example) should be discussed with the population.
After that, the code undergoes a comprehensive examination. The normative act is checked by lawyers, linguists, political scientists and other specialists. After examination, the project is sent for approval by the codification commission.
Conclusion
Codified regulations may take various forms. For example, the principles of legislation are actively used in law-making practice. Usually they lead certain legal institutes and branches, ensuring mutual consistency of norms.
The most common type of codified act, however, is the code. It is a voluminous normative act regulating in detail the specific sphere of legal relations. The Code can absorb all the provisions in force in a particular industry.