Some legal theoretical problems of a codification

Abstract: The paper consists of three parts. By way of introduction, the author defines the concept of the Code. It is a kind of law-making, when one statute regulates a wide field of law in a comprehensive and uniform system. The main functions of the rules of code are: a) integrative function, b) contribution to solving the conflicts and c) contribution to conscious forming, planning of the society and “organizing” social process. The third part of the paper deals with some aspects of the effectiveness of code. It has two levels. The “legal” effectiveness means that the behaviour of the addressees respond to the rules of code (e.g. at entering into a contract). At the “social” effectiveness the social goals of the legal regulation are also realized (e.g. the fulfilment of the contract). The author illustrates through the case of Turkey and Ethiopia that the effectiveness of a new, modernizing code is strongly influenced by the historical, political, etc. factors.

Finally, the paper analyses the role of citizens’ legal consciousness and the legal culture in increasing or decreasing the effectiveness of codes.

Keywords: functions, code effectiveness

1. Introduction

Codification – as is well-known – means a type of legislation where a broad area of law is regulated by one single Act in a comprehensive and uniform system. The result and product of codification is the codex (or code), which occupies an outstanding place in the system of sources of law caused by its relative generality, the regulation of social relations with a pretension to relative completeness and the incorporation of rules into a uniform system.¹

Codes are written legislative acts which provide regulation of a defined quality (elaborateness) of a substantial quantity of (interconnected) relations selected to be governed. The fixed form of the code necessarily constitutes an interruption in the non-interruptible continuous evolution of social relations, which contradiction, should it present itself, is mostly resolved by legal practice at first.

This may lead to subsequent amendments or re-codifications of the code.²

2. The functions of the Code

The main functions of the rules of a code – having developed through history and characterised by changes in content and emphasis – are the following³:

a) Contribution to developing and maintaining (legal) order and security required for the normal life of society (integrative function). This function serves to reduce factors that may lead to conflict and also to “oil” the machinery of social contacts.

Provided that one considers legal norms to be behavioural norms – which constitute the highest level in the hierarchy of norms – one must conclude that in spite of the resistance experienced in relation to their recognition, these norms play a rather important role in the integration and evaluation of behaviour and the moral attitude of society. This process of integration stems not only from the coercive nature and generality of legal regulations, which are often directed at all citizens, but also from the partial possibility of groups forming an integral part of society organized as a state exerting their influence on these regulations, thereby affecting the content of the normative system through excluding and controlling the norms making up this system. The process of social integration is also linked to the effect exercised by the state through legal regulations – on the internal structure and character of some groups at least. This effect is also connected with the fact that the state is an institution that can dispose over the means of the mass communication of information to a greater extent. In the general process of social integration, which leads to conduct according with normative patterns and conformist conduct, law is afforded a dominant role, since it constitutes the supreme normative system of a politically organized society.

The existence of normative systems deviating from the system of legal regulations or conflicting with these regulations shows the lack of integration of society at a normative level. As a matter of course, this is a theoretical aspect – which has been conceived presupposing a specific social mechanism and – which has been designed to realize a social integration that may never be achieved in practice and that depends on numerous factors. Concerning this, a fundamental factor is the level of convergence with the superior objectives and interests represented by the state power and with the scales of values of individuals and social groups.

b) Another function of the regulations contained in a code is that they contribute to the shaping of relations between citizens and organizations, their relations with the state and also to the resolution of conflicts resulting from these relations. Then it depends on the given social-historical situation, the evolved state-organizational relations, the nature etc. of legal regulation, its accessibility for members of the society (e.g. the costs of court proceedings), as well as on legal culture, what method of conflict resolution is the most effective in a given society.

An essential aspect of the conflict resolution function leads one back to the integrative function. The resolution of conflicts is – and on this question there is general agreement in the academic literature on the philosophy of law – of a functional nature from the aspect that the decision reinforces the validity of the accepted (and in the given case violated) norms, thereby contributing to their effectiveness.

c) The third function of the regulations of a code is to contribute to the conscious development, planning of society and the “organization” of the various processes of society.

Implementation research, which came into existence as a new research focus⁴ of political sciences in the 1970s and spread to jurisprudence from there, deals with the processes of implementing political programmes that shape society, resistance manifested during these processes and deficits of implementation. Its coming into existence results from the observation that a significant part of sources of law issued by legislators cannot be implemented perfectly. An excellent example for this is the disquieting implementation deficit relating to environmental laws.⁵ The legislator’s efforts have already resulted in the analysis of a whole range of individual cases.⁶

Negative experiences gained during the implementation of major Acts have elicited doubts relating to principle in theory: to what extent is legislature in a position to control society in accordance with their wishes and purposes? In contrast with the optimistic view of control dominating the beginning of the 1970s, attention has repeatedly become directed toward the peculiar regularities of economic and social processes, which yield to external control only to a limited extent. Theoretically, the ideological basis of this is constituted by the doctrine of autopoetic social systems developed by Luhmann.⁷ It is this doctrine from which Teubner has developed the theory of regulatory trilemmas.⁸ This theory proceeds from the fact that the programme formulated and decided by the political system must be transformed into a law and transferred into the legal system in that form so that in the form of a legal provision it can subsequently have its effect on society, in other words, on the social system.

All of the three systems follow their own regularities and, therefore, they are immune to external attacks which cannot be processed in a system-specific way. Thus, the political programme may become thwarted also for the reason that it does not meet the necessary preconditions for transposition into legal provisions. If this first step were made successfully, the realization of legal provisions would no longer be resistant to the social system. However, it may also be the case that the social system takes the impulses, but transforms them according to its own regularities, thereby almost paralysing the legal command. As a way out of the trilemma, Teubner suggests that attempts at direct state intervention into autonomous social and economic processes should be abandoned in favour of provisions that are limited to collision with self-regulation. For the science of the philosophy of law, the empirical and theoretical benefit of implementation research lies in the fact that it has resulted in a more careful and realistic evaluation of the role of codes in controlling the economy and society.

3. The effectiveness of the Code

In my view, one may distinguish between two levels – sides – of the effectiveness of the regulations of a code: on the one hand, legal and on the other hand, social effectiveness.⁹ The former means that the addressees’ conduct conforms to what is prescribed by the code (e.g. in the case of contract formation). The latter, in turn, is manifested in the realization of the social goal meant to be achieved by the legal regulation (e.g.: performance of the above contract). Naturally, real and genuine effectiveness results from the simultaneous presence of these two factors.

All newly created legal regulations and codes must prove their viability through their realization in the existing social relations, moreover, by the alteration of these relations in accordance with their objectives. In this process the structure of society and its impact are of outstanding significance. Let us consider them in more detail. Every society is the product of historical development. The structure of a society is made up of a network of social relations, which network also defines the limits of the society. This latter, in turn, constitutes both the medium “giving birth to” the legal regulation and the medium being the recipient of that regulation.

A curious problem is raised by the question as to the fate of regulations and institutions “imported” from modern legal systems into a traditional society. To illustrate this problem, let us consider the experiences of Ethiopia and Turkey, two countries that have changed their laws completely with one stroke. In the case of both states there was a rather great distance between the societies, economies, cultures and institutions of the donor-country and the recipient-country. However, in the former country legal reform did not constitute an organic part of the transformation of society, while in the latter country, it did. In addition, the former was the recipient of a code that could not be adapted very easily, while in the case of the latter country the situation was different. The difference in the effectiveness of reception may be traced back to the above factors.¹⁰

The Ethiopian experiment is rather interesting. In 1960 René David created a code which was rather detailed and therefore difficult to adapt, being, in essence, a distillation of modern French civil law revised by judicial practice, improved with elements stemming from legal comparison and passed through a French filter.

The special significance of David’s experiment lies in the fact that his concept has pretensions to general applicability.¹¹ His starting point is quite realistic theoretically: “we believe with difficulty in the efficacy of laws which pretend to impose on private individuals another mode of conduct than that practiced by them according to their tradition”.¹² It should have followed from this that the new code should have allowed, at least temporarily, the further existence of customary law, maybe with slight modifications and that the provisions of the code should have afforded a rather broad scope of action for the judge. However, this did not happen. As a matter of fact, David’s other starting point was that Ethiopia was in a “revolutionary” period and wished to change her whole structure completely. Consequently, the aim of the new Code was not to consolidate the existing law, but to provide a programme for the total transformation of society. On the other hand, a programme may be effective only if it is detailed; the code was intended to be as complete as possible.¹³ After all, with its 3367 articles, the code is the longest code of the modern era, which – in Article 3347 – totally abolishes customary law with some minor exceptions. This way, at one stroke, the code introduces into a static tribal-feudal society a law which has been conceived in Europe and which is of a rather individualistic approach. In any case, it is still in effect formally, but it is hardly implemented, mainly for the reason that it has abolished customary law almost completely at one stroke, and – instead of it – it has introduced extremely detailed provisions. The too ambitious objective has so far prevented even the implementation of a lesser objective that could have been adopted in the Ethiopian circumstances. David was mistaken in several respects.¹⁴

He proceeded from the fact that “revolutionary” development was going on in Ethiopia and the country would change structurally, although this was not the case. In the forms of the government system some superficial changes were introduced, but at the bottom of society nothing changed. Even if Ethiopia had started to develop rapidly, this change could not have been so swift as to change the existing customs at one stroke and render Ethiopia capable of adopting the code.

In Turkey the political situation in the 1920s was different. Kemal Ataturk carried out a radical bourgeois transformation, rather successfully. This programme extended to the transformation of the legal system as well. In the field of civil law this was executed in 1925 by the reception of the Swiss ZGB being the most easily adaptable as a result of its openness and general clauses.¹⁵

The main goals of the legal reform were: laicization and modernization, or assimilation to the West. Laicization did not cause significant difficulty, but modernization gave rise to some problems, especially in the fields of real property law and family law. In these fields there was a strong conflict between deep-rooted customs and the new law.¹⁶ Apart from this, however, the reception was successful, even in spite of its initial inorganic character. All this rather well illustrates the rule that if there is a great difference between the relations of the recipient society and the original home relations of the law to be adopted, reception may be successful only if it forms part of a radical reorganization of society and even in this case there are fields that would resist reception, especially in areas “far from the main roads”.¹⁷

The legal consciousness of citizens and appliers of law, the development and level of this consciousness – as the realization of legal provisions – constitutes one of the most important components of the efficacy of the code. At a more general level, legal consciousness is an inseparable concomitant of every legal system. Legal rules regulate the conscious behaviour of people, in other words, they are intended to affect their consciousness by prescribing or prohibiting specific behaviour. The efficacy of legal regulation also directly depends on the conscious attitude displayed toward legal rules by individuals belonging to different social layers and groups, more specifically, on the fact whether they accept legal norms as right, just, reasonable and necessary requirements, or reject them as wrong and unjust. One precondition for legal consciousness is that the addressees must be acquainted with the legal provisions. Classical examples for this include the laying down of laws in writing by Draco or by the Twelve Tables.

First, some conceptual questions must be clarified. Knowledge of the law means the mental realization of the content of specific legal norms. As is well-known, it is generally of a rather low level. For example, in the Federal Republic of Germany, one year after the passing of the 1972 Act providing protection against the termination of contracts for the lease of apartments, the content of the Act was unknown to three quarters of the citizens questioned. In 1983 only 40% of the population knew the formal requirements for writing a private will.¹⁸

An optimal situation would be if every citizen could possess:

• fundamental information,
• the information indispensible for meeting the requirements of specific social roles, and
• the information necessary for making a given decision.

A citizen must have knowledge of the information belonging to the first two groups at all times, while they should know the information classified under the third group only where necessary.¹⁹

However, knowledge of the law alone does not guarantee the efficacy of legal norms and codes. Just as everything must be done to raise the level of knowledge of legal information, in the same way, it must be ensured that the norm is also approved internally, since even the best knowledge is in vain if the addressee of the norm is not willing to observe it.

The next problem lies in delimiting legal consciousness and legal sense. As for the former one, there is a dominance of cognitive elements, while in the case of the latter cognitive elements are outweighed by emotional elements. A further difference may be noticed in that legal consciousness is characterized by the dominance of rational psychical elements, while in the case of legal sense there is a prevalence of irrational psychical factors.

Within the confines of this essay it would be impossible to provide an analysis of all the manifold characteristics of legal consciousness and of legal sense constituting the axis of the former, or of the factors involved in their development, however, I would like to highlight a few major features.

a) It is attested by legal sociological analyses²⁰ carried out in Hungary and abroad that knowledge of the law is incomplete as well as differentiated from several aspects. Social position and way of life act as differentiating factors, resulting in different levels of general legal knowledge and in even greater differences in the knowledge of particular branches of law (best known are the rules of criminal law).

b) Excessive legal regulation leads to a reduced knowledge of the law and thus to diminished efficacy of the law.

c) Having relations with organs applying the law (e.g. the courts) is a factor increasing the knowledge of legal regulations.²¹

d) It is not easy to separate knowledge of legal regulations from legal consciousness. Similarly to the knowledge of law, legal consciousness is also differentiated and it also influences the knowledge of law.²²

e) István Széchenyi writes that “Only reasonable laws, and not the cane or hangman, can silently induce a whole nation to nobler morality”. In fact, the legislator addresses both the “good man” and the “bad man”; the sanction may appear either as a “reward” or a “punishment”.

f) The structure of the individual’s legal consciousness does not follow the hierarchy of the levels of law (it contains no separate “compartments” for criminal, civil, procedural, constitutional etc. law).

g) In academic literature several authors presume some basic legal attitude with regard to individuals, which may be traced back mainly to causes connected with conscience. However, this conception is debatable having regard to the findings of Western-European surveys and research.²³

h) Personal opinion plays a role, even if not a too significant one, in the quality of an individual’s legal consciousness.

With regard to the realization of the efficacy of legal regulations, one must regard as a rather important factor the condition of the legal consciousness of the appliers of law, especially that of judges, which may become deformed by certain social factors (e.g. public opinion) in the given case. In connection with legal consciousness one must deal with legal culture, which is made up of people’s ideas, attitudes, values and beliefs relating to the legal system. There is no country that could boast one single, uniform legal culture. The reason for this lies in the fact that the individual countries are characterized by a variety of cultures as a result of the complexity of their societies (layers, groups).

Legal culture has developed historically just like political culture, and the characteristics and realization of the former may be influenced, or even shaped by the latter.²⁴ Legal culture always stands between tradition and innovation. The development of legal culture is a long-term process, which involves not only organic growth, but also the task of fostering the existing culture. Therefore, legal culture does not simply mean either adherence to what has developed already, or change for the mere sake of change.²⁵

The legal culture of the Central-Eastern-European region may be characterized by the historically developed legal approach the essence of which can be summed up as faith placed in legal regulation, or excessive trust in legal regulation. This has been and is still accompanied by a certain lawyer-like approach to social problems, in other words, the consideration of these problems within legal frameworks.

The efficacy of the law has been influenced further by the fact that, owing to the untraceable legal regulation, behavioural norms formed by real processes have acquired increasingly great importance.²⁶ At the same time, analyses of the level of legal culture of Hungarian society have indicated a knowledge and approval of legal regulations embodying values of a traditional character. In summary of the above, it may be concluded that legal consciousness and legal culture shaping the conduct of organizations and citizens in accordance with the objectives of legal regulations and codes increase the efficacy of the law, while in the opposite case they reduce the efficacy of the law.

Foodnotes

1 See, e.g. Csaba Varga, Codification as a Socio-Historical Phenomenon, (1991).; Reinhold Zippelius, Rechtsphilosophie 164-165 (3ed. 1994).; János Szalma, A polgári jog kodifikációjának általános módszerei és a magyar Ptk. rekodifikációja [General methods of the codification of civil law and the recodification of the Hungarian Civil Code], In: Péter Takács (ed.): Kodifikáció-Tanulmányok [Studies on Codification] 41-69 (2002).

2 On the history of the codification of Hungarian civil law, see: László Kecskés, Bevezetés. [Introduction] In: György Wellmann (ed.), Az új Ptk. magyarázata I/VI. [Commentaries on the new Civil Code I/VI] 19-38 (2013).

3 Cf. e.g. Niklas Luhmann, Rechtsoziologies 222-226 (1972).; Helmut Schelsky, Die Soziologen und das Recht 77 (1980).; Roger Cotterel, Sociology of Law 95-98 (1992).; Kálmán Kulcsár, Jogszociológia [Legal Sociology] (1997).; Mihály Samu & Péter Szilágyi & Mihály Szotáczky, Állam- és jogelmélet. II. rész. [Theory of state and law. Part II] 111-119 (1990).; Antal Visegrády, Jogi alaptan [Fundamental Doctrines of Law] 8 (1996).; Ferenc Kondorosi & Antal Visegrády, A jog társadalmi küldetése a globalizáció és integráció korában [The social mission of law in the era of globalisation and integration] (2012).

4 Cf. Renate Mayntz (ed.), Vollzugsprobleme der Umweltpolitik (1978).; Id, (ed.), Implementations politischer Programme (Bd. 1, 1980). (Bd. 2, 1983).; Hellmut Wollman, (ed.) Politik im Dicklicht der Bürokratie, Beiträge zur Implementationsforschung (1980).; Erhard Blankenburg, Rechtssoziologie und Rechtswirksamkeitforschung, In: Plett-Ziegert, (ed.), Empirische Rechtsforschung zwischen Wissenschaft und Politik 45 et seq. (1984).

5 Mayntz, op. cit.

6 Cf: Mayntz, op. cit.; Wollmann, op. cit.

7 Niklas Luhmann, Soziale Systeme: Grundriss einer allgemeinen Theorie (1984).

8 Günther Teubner, Verrechtlichung – Begriffe, Merkmale, Grenzen, Auswege. In: Friedrich Kübler, (ed.): Verrechtlichung von Wirtschaft, Arbeit und sozialer Solidarität 289 et seq. and pp. 313 et seq, (1984).; Günther Teubner, Das regulatorische Trilemma, 13 Quaderni Fiorentini, 109 et seq.

9 For a monograph on this topic, see: Antal Visegrády, A jog hatékonysága [Efficacy of Law] (1997).; Antal Visegrády, A jogi szabályozás eredményessége [Success of the Legal Regulation] (2006).

10 Cf: Gyula Eörsi, Összehasonlító polgári jog [Comparative Civil Law] 558 (1975).; Lloyd’s Introduction to Jurisprudence 883 (5th ed. 1985).

11 René David, A Civil Code for Ethiopia: Considerations on the Codification of the Civil Law in African Countries. 7 Tulan Law Review, 204 (1963).

12 Ibid. pp. 193.

13 See also: Ibid., pp. 191 and 196

14 Cf: Eörsi: op. cit. pp. 560. – Lloyd’s op. cit. pp. 883.

15 The Code on the Law of Obligations (1926) was also adopted from Switzerland, just like the Enforcement Code (1929); the Code of Civil Procedure (1927) was adopted from the Canton of Neuchâtel and the Code of Criminal Procedure from Germany. The Criminal Code was imported from Italy in 1927.

16 Hilmi Ülken, Le droit coutumier et le droit civil, 89 (1956).

17 Cf. Eörsi, op. cit. p. 562.; Charles Edwards, English Law and Aboriginal Law: Australian Perspectives. (Presentation at the IVR World Congress of 1993 in Iceland)

18 Cf: Manfred Rehbinder, Rechtsoziologie 165 (2nd ed. 1989).; Maria Borucka – Arctowa, Die gesellschaftliche Wirkung des Rechts. op. cit. pp. 85 et seq.

19 Cf: Rehbinder, op. cit. pp. 168-169.

20 See: e.g. Kálmán Kulcsár, A jogismeret vizsgálata [Analysis of Knowledge about Law] (1967).; Adam Podgórecki et al., Knowledge and Opinion about Law (1973).; Maria Boruczka – Arctowa (ed.), Swiadomosc prawna robotników (1974).; Antal Visegrády & Györgyné Schadt, Empirikus elővizsgálatok az egyetemi hallgatók jogtudatáról [Preliminary Empirical Inquiry into the Legal Consciousness of University Students], 7 Magyar Jog [Hungarian Law], (1998).

21 See: Wolfgang Kaupen, Das Verhältnis der Bevölkerung zur Rechtspflege. In: Zur Effektität des Rechts. op. cit. 555-564.

22 Kulcsár, Jogszociológia. [Legal Sociology], op. cit.

23 Cf: e.g. Leonard Berkowitz & Niegl Walker, Laws and moral judgements, Sociometry, (1967).; Anne Boigeol et al., Le divorce et les Francais. 69 INED Travaux et Documents (1974).

24 Cf: Kulcsár, Jogszociológia [Legal Sociology], op. cit.; Giovanni Tarello, Alteggiamenti dottrinali e mutamenti strutturali dell’organizzazione guiridica, XL. Materiali per una storia della cultura guiridica, 157- 166.

25 Heinz Schäffer, Társadalmi környezet és jogi kultúra [Social environment and legal culture]. 43. Magyar jog [Hungarian Law], (1996).; Antal Visegrády, Jogi kultúra, jogelmélet, joggyakorlat, [Legal Culture, Legal Theory, Legal Practice] (2003).

26 Cf. Kálmán Kulcsár, A jogállam dimenziói [Dimensions of a State Governed by the Rule of Law] 49. Társadalmi Szemle [Social Review], 50-51 (1994).

Antal Visegrády
professor of law
University of Pécs, Faculty of Law