Code of law

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First page of the 1804 original edition of the Napoleonic code Code Civil 1804.png
First page of the 1804 original edition of the Napoleonic code

A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. [1] Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different.

Contents

In a civil law country, a code of law typically exhaustively covers the complete system of law, such as civil law or criminal law. By contrast, in a common law country with legislative practices in the English tradition, codes modify the existing common law only to the extent of its express or implicit provision, but otherwise leaves the common law intact.

In the United States and other common law countries that have adopted similar legislative practices, a code of law is a standing body of statute law on a particular area, which is added to, subtracted from, or otherwise modified by individual legislative enactments.

History

The legal code was a common feature of the legal systems of the ancient Middle East. Tablets discovered in the ancient city of Ebla (Tell Mardikh in modern-day Syria) provide the earliest known evidence of a law code, dating back to 2400 BC. [2] [3] In addition, The UrukAgina Law Code (2380–2360 BC), [4] the Sumerian Code of Ur-Nammu (c. 2100–2050 BC), the Code of Eshnunna (approximately 100 years before Lipit-Ishtar), [5] [6] the Code of Lipit-Ishtar (1934–1924 BC), [7] and the Babylonian Code of Hammurabi (c. 1760 BC), are among the earliest and best preserved legal codes, [8] originating from Sumer, Mesopotamia (now Iraq).

In the Roman empire, a number of codifications were developed, such as the Twelve Tables of Roman law (first compiled in 450 BC) and the Corpus Juris Civilis of Justinian, also known as the Justinian Code (429–534 AD). However, these law codes did not exhaustively describe the Roman legal system. The Twelve Tables were limited in scope, and most legal doctrines were developed by the pontifices , who interpreted the tables to deal with situations far beyond what is contained therein. The Justinian Code collected together existing legal material at the time.

In ancient China, the first comprehensive criminal code was the Tang Code, created in 624 AD in the Tang dynasty. This, and subsequent imperial codes, formed the basis for the penal system of both China and other East Asian states under its cultural influence. The last and best preserved imperial code is the Great Qing Legal Code, created in 1644 upon the founding of the Qing dynasty. This code was the exclusive and exhaustive statement of Chinese law between 1644 and 1912. Though it was in form a criminal code, large parts of the code dealt with civil law matters and the settlement of civil disputes. The code ceased its operation upon the fall of the Qing dynasty in 1912, but significant provisions remained in operation in Hong Kong until well into the 1970s due to a peculiar interaction between it and the British common law system.

In Europe, Roman law, especially the Corpus Juris Civilis , became the basis of the legal systems of many countries. Roman law was either adopted by legislation (becoming positive law), or through processing by jurists. The accepted Roman law is usually then codified and forms part of the central Code. The codification movement gathered pace after the rise of nation-states after the Treaty of Westphalia. Prominent national civil codes include the French Napoleonic Code (code civil) of 1804, the Austrian civil code (Allgemeines Bürgerliches Gesetzbuch) of 1812, the German civil code ( Bürgerliches Gesetzbuch ) of 1900 and the Swiss codes. The European codifications of the 1800s influenced the codification of Catholic canon law [9] resulting in the 1917 Code of Canon Law which was replaced by the 1983 Code of Canon Law and whose Eastern counterpart is the Code of Canons of the Eastern Churches.

Meanwhile, African civilizations developed their own legal traditions, sometimes codifying them through consistent oral tradition, as illustrated e.g. by the Kouroukan Fouga, a charter proclaimed by the Mali Empire in 1222–1236, enumerating regulations in both constitutional and civil matters, and transmitted to this day by griots under oath. [10]

The Continental civil law tradition spread around the world along with European cultural and military dominance in recent centuries. During the Meiji Restoration, Japan adopted a new Civil Code (1898), based primarily on the French civil code and influenced by the German code. After the Xinhai Revolution of 1911 in China, the new Republic of China government abandoned the imperial code tradition and instead adopted a new civil code strongly influenced by the German Bürgerliches Gesetzbuch , and also influenced by the Japanese code. This new tradition has been largely maintained in the legal system of the People's Republic of China since 1949.

Meanwhile, codifications also became more common in common law systems. For example, a criminal code is found in a number of common law jurisdictions in Australia and the Americas, and continues to be debated in England.

In the Americas, the influence of Continental legal codes has manifest itself in two ways. In civil law jurisdictions, legal codes in the Continental tradition are common. In common law jurisdictions, however, there has been a strong trend towards codification.[ citation needed ] The result of such codification, however, is not always a legal code as found in civil law jurisdictions. For example, the California Civil Code largely codifies common law doctrine and is very different in form and content from all other civil codes.

Civil code

A civil code typically forms the core of civil law systems. The legal code typically covers exhaustively the entire system of private law.

Criminal code

A criminal code or penal code is a common feature in many legal systems. Codification of the criminal law allows the criminal law to be more accessible and more democratically made and amended.

See also

Related Research Articles

Canon law is a set of ordinances and regulations made by ecclesiastical authority for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these four bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.

Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before a court.

<span class="mw-page-title-main">Roman law</span> Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

<span class="mw-page-title-main">Napoleonic Code</span> French civil code established in 1804

The Napoleonic Code, officially the Civil Code of the French, is the French civil code established during the French Consulate period in 1804 and still in force in France, although heavily and frequently amended since its inception.

<i>Corpus Juris Civilis</i> Collection of legal works codified by Justinian I of Byzantium

The Corpus JurisCivilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Byzantine Emperor Justinian I. It is also sometimes referred to metonymically after one of its parts, the Code of Justinian.

<span class="mw-page-title-main">Civil code</span> Codification of the civil law

A civil code is a codification of private law relating to property, family, and obligations.

In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

<span class="mw-page-title-main">Legal history</span> Study of how law has evolved and why it has changed

Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and historians of legal process have seen legal history as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider legal history a branch of intellectual history. Twentieth-century historians viewed legal history in a more contextualised manner – more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social-science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transaction costs, and numbers of settled cases, they have begun an analysis of legal institutions, practices, procedures and briefs that gives a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.

Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.

The Bürgerliches Gesetzbuch, abbreviated BGB, is the civil code of Germany, codifying most generally-applicably private law. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project.

<span class="mw-page-title-main">Civil law (legal system)</span> Legal system originating in continental Europe

Civil law is a legal system originating in Italy and France and has been adopted in large parts of the world. The civil law system is intellectualized within the framework of Roman law and French civil law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the common law comes from uncodified case law that arises as a result of judicial decisions, recognising prior court decisions as legally binding precedent.

<span class="mw-page-title-main">Lipit-Ishtar</span> King of Isin

Lipit-Ishtar was the 5th king of the First Dynasty of Isin, according to the Sumerian King List (SKL). Also according to the SKL: he was the successor of Išme-Dagān. Ur-Ninurta then succeeded Lipit-Ištar. Some documents and royal inscriptions from his time have survived, however, Lipit-Ištar is mostly known due to the Sumerian language hymns that were written in his honor, as well as a legal code written in his name —which were used for school instruction for hundreds of years after Lipit-Ištar's death. The annals of Lipit-Ištar's reign recorded that he also repulsed the Amorites.

<span class="mw-page-title-main">Byzantine law</span>

Byzantine law was essentially a continuation of Roman law with increased Orthodox Christian and Hellenistic influence. Most sources define Byzantine law as the Roman legal traditions starting after the reign of Justinian I in the 6th century and ending with the Fall of Constantinople in the 15th century. Although future Byzantine codes and constitutions derived largely from Justinian's Corpus Juris Civilis, their main objectives were idealistic and ceremonial rather than practical. Following Hellenistic and Near-Eastern political systems, legislations were tools to idealize and display the sacred role and responsibility of the emperor as the holy monarch chosen by God and the incarnation of law "nómos émpsychos", thus having philosophical and religious purposes that idealized perfect Byzantine kingship.

The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state, and the private law, (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Justinian Code the Corpus Juris Civilis, and a to a lesser extent the Napoleonic Code.

The Great Qing Legal Code, also known as the Qing Code or, in Hong Kong law, as the Ta Tsing Leu Lee (大清律例), was the legal code of the Qing empire (1644–1912). The code was based on the Ming legal code, the Great Ming Code, which was kept largely intact. Compared to the Ming Code, which had no more than several hundred statutes and sub-statutes, the Qing Code contained 1,907 statutes across over 30 revisions between 1644 and 1912. One of the earliest of these revisions was in 1660, completed by the Qing official Wei Zhouzuo and the noble Bahana.

The Netherlands uses civil law. The role of case law is small in theory, although in practice it is impossible to understand the law in many fields without also taking into account the relevant case law. The Dutch system of law is based on the French Civil Code with some influence from Roman-Dutch law and pre-codal customary law. The new Civil Code was heavily influenced by the German Bürgerliches Gesetzbuch.

<span class="mw-page-title-main">Law</span> System of rules and guidelines, generally backed by governmental authority

Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the art of justice. State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions. Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and also serves as a mediator of relations between people.

<span class="mw-page-title-main">Code of Lipit-Ishtar</span> Collection of laws promulgated by Lipit-Ishtar

The Code of Lipit-Ishtar is a collection of laws promulgated by Lipit-Ishtar, a ruler in Lower Mesopotamia. As cuneiform law, it is a legal code written in cuneiform script in the Sumerian language.

References

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  2. "Law code | Ancient Legal Systems & Modern Legislation". Britannica. Retrieved 2023-12-08.
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  4. Wilkin, Stanley (June 2019). "Mesopotamian Law Codes: The Human Roots of Moses's Laws". Research Gate. doi: 10.13140/RG.2.2.34598.78408 . Archived from the original on Jul 13, 2023.
  5. Basim Fuad Musallam (Summer 1965). "Law and Authority in Ancient Mesopotamia" (PDF). AUB ScholarWorks. Archived (PDF) from the original on Jul 13, 2023.
  6. Yaron, Reuven (1988). "The Laws of Eshnunna". Noor Library. Archived from the original on Jul 13, 2023.
  7. "The Code of Lipit-Ishtar | by Francis R. Steele, 1948". www.toaz.info.
  8. "Cuneiform law | legal body". Encyclopedia Britannica. Retrieved 2020-05-26.
  9. Peters, Edward N. "Master Page on the Pio-Benedictine Code of 1917". CanonLaw.info. Retrieved July 15, 2014.
  10. "La première déclaration des droits de l'Homme est africaine". africamix - Blog LeMonde.fr. September 7, 2008. Archived from the original on 2009-03-30. Retrieved 2009-03-27.

van Gulik, R.H. Crime and Punishment in Ancient China: The Tang Yin Pi Shih. Orchid Press, 2007. ISBN   9745240915, ISBN   978-974-524-091-9.