Codification (law)

The English judge Sir Mackenzie Chalmers is renowned as the draftsman of the Bills of Exchange Act 1882, the Sale of Goods Act 1893 and the Marine Insurance Act 1906, all of which codified existing common law principles. The Sale of Goods Act was repealed and re-enacted by the Sale of Goods Act 1979 in a manner that revealed how sound the 1893 original had been.[note 2] The Marine Insurance Act (mildly amended) has been a notable success, adopted verbatim in many common law jurisdictions.

Most of England's criminal laws have been codified, partly because this enables precision and certainty in prosecution. However, large areas of the common law, such as the law of contract and the law of tort remain remarkably untouched. In the last 80 years there have been statutes that address immediate problems, such as the Law Reform (Frustrated Contracts) Act 1943 (which, inter alia, coped with contracts rendered void by war), and the Contracts (Rights of Third Parties) Act 1999, which amended the doctrine of privity. However, there has been no progress on the adoption of Harvey McGregor's Contract Code (1993), even though the Law Commission, together with the Scots Law Commission, asked him to produce a proposal for the comprehensive codification and unification of the contract law of England and Scotland. Similarly, codification in the law of tort has been at best piecemeal, a rare example of progress being the Law Reform (Contributory Negligence) Act 1945.

Consolidation bills are routinely passed to organize the law.

Law of the Republic of Ireland evolved from English law, the greatest point of difference being the existence of the Constitution of Ireland as a single document. The unofficial "popular edition" of the Constitution is regularly updated to take account of amendments to it, while the official text enrolled in the Supreme Court in 1938 has been replaced five times: in 1942, 1980, 1989, 1999, and 2019.[6] As in England, subordinate laws are not officially codified, although consolidation bills have restated the law in many areas. Since 2006 the Law Reform Commission (LRC) has published semi-official "revised" editions of Acts of the Oireachtas taking account of textual and other amendments to the original version.[7] The Finance Acts are excluded from the LRC programme.[7] Private companies produce unofficial consolidated versions of these and other commercially important pre-2005 laws. An official advisory committee between 2006 and 2010 produced a Draft Criminal Code.[8]

In the United States, a critique of the inherited English tradition of common law and an argument for systematic codification was championed by the United Irish exiles William Sampson (admitted to the New York bar in 1806),[9][10] and William Duane publisher of the Jeffersonian paper, the Philadelphia Aurora.[11] In 1810, Sampson published Trial of the Journeymen Cordwainers of the City of New-York for a Conspiracy to Raise Their Wages,[12] commentary on his (unsuccessful) argument in The People v Melvin (1806) to quash an indictment of illegal worker combination. Insisting on the supremacy of the elected legislature, Sampson's objected that the prosecution was reasoning "abstractedly" from principles of English common law without any reference to statute. It was this, alone, that allowed them to deny journeymen the right to "conspire against starvation" while, without notice or challenge, leaving master tradesmen in a "permanent conspiracy" to suppress wages.[13] He went on to argue that an "indiscriminating adoption of common law" had caused the New-World society to carry over "barbarities" from the Old: laws that "can only be executed upon those not favoured by fortune with certain privileges" and that in some cases operate "entirely against the poor".[14]

Sampson's summary Discourse on the Common Law (1823),[15] holding common law to be contrary to the ethos a democratic republic and urging, with reference to the Code Napoleon, its replacement by a general law of reference, was hailed as "the most sweeping indictment of common law idealism ever written in America" .[16] It was a source of inspiration for Edward Livingston[17] who drew upon French, and other European, civil law in drafting the 1825 Louisiana Code of Procedure.[18] Later, Sampson's efforts appeared vindicated in New York where in 1846 a new state constitution directed that the whole body of state law be reduced to a written and systematic code, and in David Dudley Field's subsequent drafting of the New York Code of Civil Procedure (1848).[19][20]

Sampson sought to disassociate codification from the doctrinaire insistence on positive legislation that had marked Jeremy Bentham's championing of the cause in Britain. But, focussing on the French experience, critics thought it sufficient to comment on the futility of trying to compress human behaviour into rigid categories.[21] President Thomas Jefferson had remained neutral when Duane's attempted to force the issue in the 1805 election in Pennsylvania. Federalists joined with "Constitutional Republicans" to defeat the reform agenda.[22]

In the United States, acts of Congress, such as federal statutes, are published chronologically in the order in which they become law – often by being signed by the President, on an individual basis in official pamphlets called "slip laws", and are grouped together in official bound book form, also chronologically, as "session laws". The "session law" publication for Federal statutes is called the United States Statutes at Large. A given act may be a single page or hundreds of pages in length. An act may be classified as either a "Public Law" or a "Private Law".

Because each Congressional act may contain laws on a variety of topics, many acts, or portions thereof, are also rearranged and published in a topical, subject matter codification by the Office of the Law Revision Counsel. The official codification of Federal statutes is called the United States Code. Generally, only "Public Laws" are codified. The United States Code is divided into "titles" (based on overall topics) numbered 1 through 54.[23] Title 18, for example, contains many of the Federal criminal statutes. Title 26 is the Internal Revenue Code.[24]

Even in code form, however, many statutes by their nature pertain to more than one topic. For example, the statute making tax evasion a felony pertains to both criminal law and tax law, but is found only in the Internal Revenue Code.[25] Other statutes pertaining to taxation are found not in the Internal Revenue Code but instead, for example, in the Bankruptcy Code in Title 11 of the United States Code, or the Judiciary Code in Title 28. Another example is the national minimum drinking age, not found in Title 27, Intoxicating liquors, but in Title 23, Highways, §158.

Further, portions of some Congressional acts, such as the provisions for the effective dates of amendments to codified laws, are themselves not codified at all. These statutes may be found by referring to the acts as published in "slip law" and "session law" form. However, commercial publications that specialize in legal materials often arrange and print the uncodified statutes with the codes to which they pertain.

In the United States, the individual states, either officially or through private commercial publishers, generally follow the same three-part model for the publication of their own statutes: slip law, session law, and codification.

Rules and regulations that are promulgated by agencies of the Executive Branch of the United States Federal Government are codified as the Code of Federal Regulations. These regulations are authorized by specific legislation passed by the legislative branch, and generally have the same force as statutory law.