Contenu du sommaire : Faut-il codifier le droit ? Expériences comparées

Alice in the Codification of Existing Laws Land. The codification of existing laws to retain legal constancy is criticised for leading to legal uncertainty because it reasserts a form of incomplete law. This type of codification, as a form of compilation, is a first and indispensable stage for any practitioner or subsequent reform. Because the continued codification of new law demands that the content and the perimeter of the code be established, this is an instance of real legal politics.

The Reformist Codification — the Example of the Civil Code of Quebec As a result of much hard work Quebec has succeeded in totally revising its civil code. The 1994 attempt at codification is premised upon modernisation and appears more of a political than technical exercise. It is a truly reformist measure whose success logically depends upon its effectiveness. Any judgement of the code must take into account the pluralist nature of enacting legal norms.

The Codification of International Law. Because of the essentially voluntary nature of international law, codification is not without its risks with respect to the integrality of international law. More often than not States will only accept that they are bound by norms to which they have consented. Codification must, therefore, have as its objective the re-enforcement of rules of law which pre-exist in a customary form. For this reason, whatever the instance of codification, the preparatory work done towards codification determines the success of the venture ; likewise, in addition to their scientific analysis of questions posed, specialists must necessarily engage in a more practical and political analysis, with a view to evaluating the chances of the project being accepted by States.

Is English Law in the Process of Being Codified ? Codification supposes a formalised and orderly system of norms, an idea which remains foreign to English law. The basis of the common law consists of causes of action which give a different content to legal concepts depending of the case in hand. The training of lawyers and the limited role accorded to academic scholarship are serious and long-lasting obstacles to any attempts at codification.

Codification in the United States of America. The lack of recognition given to codification in the United States is a reflection of the role played by the common law in the legal system which prohibits a legal text from being considered the exclusive or universal source of law in a particular area. Certain objectives of codification (unity, transparency, coherence) are sought by other means (model or standard-form statutes, restatements, Law Revision Commissions), but systematisation remains for the moment a preoccupation which is alien to the American System.

The Sense and Nonsense of a Reformist Codification of European Law. The codification of European private law does not appear necessary. In fact, the internal common market, in line with the examples of America and Canada, may benefit from the existence of different systems of private law. The allure of codification mirrors the desire of lawyers schooled in the Roman tradition. Therein lies a serious risk of exclusion, given that in Europe different traditions exist (principally that of the common law) which, by their very nature, find codification an alien concept. Consequently, it is appropriate to follow a middle course towards the integration of laws within Europe, reconciling different traditions.

The Codification Carried out under Justinian. The Emperor Justinian was to lead Rome to its heights, particularly in the field of law. The codification of Roman law carried out under Justinian was an immense undertaking which, in its significance and indeed its length, represented the peak of Rome's ambitions. This codification comprised a variety of texts amongst which feature the code and the Digest. Its aim was to regroup legal texts and to ensure they remain up-to-date, in order to increase the effectiveness of law, with each of these two texts having a specific purpose. This magnificent work, despite dating from the 6th century, still remains a fascinating juridical source today.

Codification in Canon Law. The Latin Catholic church codified its laws twice, in 1917 and 1983. The first code was both a response to the need to establish order amongst what was an abundance of legislation, and a reflection of ideological motives. Yet, despite the undeniable qualities of the work which was undertaken, the codified legal norms soon revealed themselves to be incapable of adapting to changes brought about by modernisation. It was in the light of these various objections that the drafting of a new code began. The aim of the authors of the new code was to make the code more effective while reconciling legal certainty and responsiveness to change.

The Codification of Islamic Law. At its inception, the codification of Islamic law allowed the divine sources of this law to be retained. This marked the passage from spoken law to written law. Difficulties at this stage resulted from differences of interpretation, contradictions, and controversies over the authenticity of documentation. This first stage of codification led to the establishment of an orthodoxy. The second stage marked the passage to a more 'legalistic' form, undertaken from the 16th century onwards by the ottoman empire. This modem codification represents a means of unification, and sets out the secularisation of justice and of law. In recent years a fundamentalist revival can be discerned which advocates a return to the original code.

The Codification of European Law by the Institutions of the Union. It is only recently that codification has featured amongst the central political questions being asked by the Commission in order to respond to the rising tide of criticism levelled at the chaotic state generated by the increase in legislation. Out of concern for transparency, for the accessibility of law and for succinctness, an accelerated process of codification of community law has been put into place by an agreement passed between the institutions of the Union. For the moment the project only concerns a codification of existing law, i.e. a compilation.

The French System : the Superior Commission on Codification. A policy of codification was initiated with the creation of a specialised institution called the Superior Commission on Codification. Operating under the presidency of the prime minister, the Commission comprises permanent and non permanent members from a variety of sectors. The institution's role is to provide the impetus of initiative even before preparation of a code is underway. Codification is a long-term operation and demands continual initiatives from the successive governments which take up office around the Commission.

The Role of the Spanish Minister for Justice. In Spain, the task of codification is conferred upon the General Commission on Codification. This Commission is composed of five services in charge of civil law, commercial law, public law, criminal law, and the law on procedure respectively. Its functions are variously to draft codes at the request of the minister for justice ; to revise existing legislation ; to write reports and deliver opinions upon legal questions raised by the government or the minister for justice ; and the technical and precise amendment of draft legislation.

Making use of Information Technology The Example of the General Code for Local Government. The Codification forms part of the public policy of rationalisation under the aegis of an institution (the Superior Commission on Codification). The use made of information technology to this end reduces the potential of traditional written forms of law. The creation of the general code for local government, the construction of which reflects an empirical approach, has enabled a method and a set of tools to be fashioned which pave the way for a new conception of the management and understanding of texts.

The Numbering of Codes and its Implications. In former times figures added a symbolic, magical dimension to written law. Nowadays, concern over rationalisation dictates the way in which texts are numbered. While this issue is not confined simply to the drafting of codes, it is, nevertheless, most developed in the process of codification. As far as its form is concerned, numbering is particularly influenced by history and by models taken from abroad. Its primary objective remains to facilitate the reading of the codified articles, without losing sight of the interest of users, without which codification would lose all sense.

Codification : a Factor in Economic Growth. Codification represents an important tool for ameliorating the economic environment and establishing conditions which permit rapid growth. Indeed, on the one hand it allows governments to have better control over the increase in legislative texts and the proliferation of legal norms and, on the other hand, in improving transparency, it facilitates the promotion of competition and international commercial transactions.

Codification in Germany : an Instrument of Construction of State From the Reich to the Federal State. In Germany, a distinction is made between simple codification, which corresponds to the production of written law, and large-scale codification which concerns the drafting and adoption of codes. If, historically, codification was instrumental in the reconstruction of a central German State, the contemporary interest in codification lies in the desire to make law more uniform. Yet codification in Germany remains influenced by two key characteristics : the specificity of governmental structures and federalism.

A Member of Parliament's point of view. For a Member of Parliament, codification must first of all be viewed in the context of its influence on the legal system. While not entirely remedying the incomplete nature of our law, codification nevertheless contributes to the qualitative improvement of the rule of law by giving a framework to a body of rules which are often disparate, and by eliminating contradictions which result from the accumulation of legal norms. Codification must also be understood from a practical point of view because it is of undeniable interest to the understanding and the operation of law, preceding and being indispensable to any more general consideration of the conception and effectiveness of our law.

The Implications of Codification in the Countries of Central and Eastern Europe : Co-operating with the Council of Europe. Conscious of the importance of codification as an instrument to be used in the construction of the rule of law, the Council of Europe is co-operating with central and eastern European states with the aim of using this technique in the reform of their legal systems. Yet, whatever the stage reached in the process of codification in the countries of central and eastern Europe, a series of common problems are to be encountered which are linked in particular to the many actors involved in the process of codification, but are also connected to the impatience of public opinion which is demanding sweeping and speedy reforms which would normally take several years to implement.

Codification in Hungary as a Technique for Improving the Tasks of the Legislature. In Hungary, codification is a procedure which precedes the adoption of a statute. In this respect, codification concerns the preparation of the legislature's work, and more specifically the drafting of legislation, the writing of texts and their operation. A similar practice of codification to that in France, does not, therefore, exist, yet in recent years the procedure has been used notably in connection with reforms of the legal system and the adoption of the new penal code.

Codification and Reconstruction of a Legal System in Romania. Romania is a country which has a long tradition of codification, using it as a means to address the disorder of legal norms brought about by the period of transition. The legislative council has been charged with this task. Since 1991 it has identified the norms which constitute positive law and has proposed that parliament repeal more than 2,000 texts. Equally it plays an active part in the process of enacting new legislation.

Ought Law to be Codified ? The African Example. The African countries aspire towards the creation or the consolidation of the rule of law and are conscious that the codification of laws constitutes one of the ways of attaining this objective. But there are major obstacles concerning on the one hand legal uncertainty, which manifests itself both in relation to the question of which laws are applicable and the question of their areas of application ; on the other hand codification of legal norms represents a cost which is difficult for most African countries to bear. This is why alternative solutions are envisaged, amongst which mention must be made of the concept of 'good governance', and also the better use of information technology which would offset the inexistence of codes or their insufficiency.