subject: Advantages of Codification of Law [print this page] Advantages of Codification of Law Advantages of Codification of Law
1. INTRODUCTION:
The term "Law" is derived from the German word "Lag" meaning fixed or evenly. Code means "a systematic collection of statutes, body of laws, so arranged as to avoid inconsistency and overlapping".
It is the compilation, promulgation, collection and systematization of the body of law in a coherent form by an authority in a state competent to do so.
2. DEFINITION OF LAW:
Law signifies those rules of human conduct which are enforced by an authoritative political institution and whose violation is dealt with penalty or punishment.
3. DEFINITION OF CODIFICATION:
According to Salmond, "Codification means the reduction of the whole, corpus juris so far as practicable, in the form of enacted law".
Bentham very strongly pleaded for legislation and codification. He says, "A complete digest as such is the first rule. Whatever is not in the code ought not be law".
4. CONDITIONS FOR CODIFICATION:
For codification, a certain background and a certain stage of social development are necessary. Pound laid down following important conditions which lead to codification.
(i) Where the legal institutions have become completely mature or where the country has no juristic post, the non existence of such material.
(ii) The uncertainty and archaic character of the existing law.
(iii) The development of an efficient organ of legislation.
iv) The needs for one uniform law in a political community whose several sub-divisions had developed or received divergent local laws.
5.CLASSIFICATION OF CODES:
Codes may be of the following kinds
(a) CREATIVE:
Creative code is that code which makes a law for the first time without any reference to any other law. It is law-making by legislation, e.g. indian-Pakistan Penal Code.
(b) CONSOLIDATING:
Consolidating code is that code which consolidates the whole law - statutory, customary and precedent, on a particular subject and declares it. This is done for systematizing and simplifying the law, e.g. Transfer of Property Act.
(c) CREATIVE AND CONSOLIDATING:
The codes which make laws as well as consolidate the existing law on a particular subject fall under this class.
6.MERITS OF CODIFICATION/ADVANTAGES OF CODIFICATION:
Sir James Stephen said that well designed legislation is the only possible remedy against quibbles and chicanery and all evils which are created from legal practitioners can be averted by this method.
The main merits of codification are;
(i) CERTAINTY:
By codification law becomes certain and it no longer remains vague and uncertain as it generally is in precedent and custom.
(ii) SIMPLICITY:
The codification makes law simple and accessible to everybody. By codification, law on any particular point is made accessible and known to everyone so that the citizens come in a position to know their rights and duties well.
(iii) LOGICAL ARRANGEMENT:
By codification, law is logically arranged in a coherent . form and there occurs no chance of conflict or inconsistency arising among the different provisions of the law.
(iv) STABILITY:
Codification makes the law simple and stable. Stability is very essential for law so that the people may have confidence in it and the legal transactions may be made
easily.
(v) PLANNED DEVELOPMENT:
Codification brings uniformity which in turn helps in the planned development of the country.
(vi) UNITY:
Codified laws have uniform and wider application. This helps in developing affinity and unity among the people who are governed by the same laws.
(vii) PROTECTION AGAINST ARBITRARY, BIASED AND DISHONEST DECISIONS:
The existence of fixed principles of law avoid dangers of arbitrary, biased and dishonest decisions. Law applies equally to all without any distinction.
(viii) IMPARTIALITY:
The function of the court is merely to apply and enforce the law. It is one of the cardinal principles of law that justice should not only be done but also appear to be done. This can be achieved only when there are fixed principles of law.
(ix) PROTECTION FROM THE ERRORS OF INDIVIDUAL JUDGEMENT:
The law serves to protect the administration of justice from the errors of individual judgement. The problem of adjudication are sometimes difficult. Law represent the collective wisdom of the community and overrides the will and reason of judges and magistrates.
(x) RELIABLE THAN INDIVIDUAL JUDGEMENT:
Another advantage of law is that it is more reliable than individual judgement. Human mind is fallible and judges are no exception. The wisdom of the legislature which represents the wisdom of the people is safer and more reliable means of protection than the momentary fancy of the individual judge.
7. DEMERITS OF CODIFICATION/DISADVANTAGES OF CODIFICATION:
Savigny holds that codification not only obstructs natural growth of law but gives rise to several defects in it such as rigidity etc. He further points out that historically also the absence of codification was never felt when laws were not codified in early societies.
According to Mansfield, codified law cannot be as useful to developing society as the uncodified law is.
Following are the demerits of codification;
(i) RIGIDITY:
Codification causes rigidity in law. In changing conditions of society it becomes necessary for law to keep pace with times and changing conditions but once law is codified it becomes difficult to keep pace with such changes. Codified law can be changed only by amendments but making of an amendment is not easy and it is time consuming too.
(ii) INCOMPLETENESS:
Since it is not possible to anticipate all the problems that might arise in future, the codes are, therefore, generally incomplete. When any new problem arises, it becomes difficult for the people and the court to tackle it. In some cases, the court may find out some solution to a given problem, but it may not be applicable uniformly to all cases of that nature.
(iii) HARDSHIP:
The code generally gives uniform laws which are applicable to all within the territory of the country or a part of it. Its application rarely varies on the grounds of convictions, customs and habits of the individuals. This, in some cases, causes great hardship.
(iv) FORMALISM:
More emphasis is put on the form of law and technical requirements than to substantive rights and wrongs.
(v) COMPLEXITY:
It is difficult for the people in general to understand laws as all people cannot read. The tendency of the lawyers to draw fine distinctions has further complicated the existing law.
(vii) EXPENSIVE LITIGATION:
The present day litigation has become very dilatory and expensive. A litigant can continue fighting for his claim only if he has necessary resources at his command. Long course of litigation between the parties has the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation.
(viii) DISTURBANCE IN EXISTING RIGHTS AND DUTIES:
It is said that due to codification existing rights and duties are disturbed.
8. CONCLUSION
According to Paton, codification purifies the law at the stage at which it is codified and there is little scope for applying it to new situations unless it is amended or modified.
One advantage of uncodified law over the codified one is its elasticity, which enables it to adapt it to varying conditions of society. Law can meet its ends best when "law like the traveler must be ready for tomorrow. It must have principle of growth".
