Bringing Certainty and Order Out of the Wilderness of Law ()
ABSTRACT
The
codification of the French civil law represented the first significant
initiative which provided the moral and intellectual impetus for systematic
reorganization and reform of the law. The growing production of laws by the
legislatures, together with the courts’ constant definition of the principles
of law, has always constituted a massive problem in providing a service of
certain and equal justice. The French model of codification was undoubtedly
useful but it did not suffice, by itself, to preserve a coherent and accessible
system of law. The experience of the last decades showed a proliferation of new
sources of law (including multilevel systems of protection of fundamental
rights) that increased the complexity of law on a more than proportional scale.
In order to tackle the compelling need of certainty and order in the legal
systems, the French codification approach had been developed and integrated
with other simplifying and reorganizing tools. The different experiences are
interesting under three profiles: a) the subjects dedicated to the function of
simplifying and clarifying the law; b) the tools used to perform the function;
c) the effects produced in the legal systems. The comparative analysis of the
different experiences in Civil law and Common law countries reveals a major
tendency to constitute independent bodies by initiative of a law experts elìte
of lawyers, judges and academics. Generally, these bodies adopt a scientific
method in order to produce shared documents which are supposed to represent a
valid reference for all the legal operators. Most of the time there is no
political influence on the process, contributing to preserve the
authoritativeness of the body. Notwithstanding, the documents may be addressed
to the parliaments with the purpose to enact law reforms through the
legislative process. Out of these cases, the documents are supposed to have
mere persuasive value but it is disputed how they affect the other sources of
law when they are widely adopted by courts.
Share and Cite:
Martinuzzi, A. (2014). Bringing Certainty and Order Out of the Wilderness of Law.
Beijing Law Review, 5, 172-183. doi:
10.4236/blr.2014.53017.
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