What Does it Mean to Codify Law?

Dr. Marco Haase

The distinction between Anglo-Saxon law and continental law is well established. The former
is based on precedents, the latter on codification. China, it is said, has opted for the
continental model. I shall not discuss whether this classification is still correct or whether the
two different legal systems are currently assimilating. Instead, I shall raise the question as to
whether legal codification is a value-free technique or linked to a particular conception of law.
The thesis I would like to present for discussion is that legal codification considers law as a
system of rules. The conception of law as a legal system, however, implies a holistic concept
of law according to which rights and obligations derive from the law as opposed to an
atomistic concept, where the law is based on individual rights. This holistic conception of law
is ultimately linked to a particular institutional setting of academic systematization and state
legislation.
I do not wish to produce an historical argument according to which jurists in the continental
legal tradition have always held a holistic concept of law, since there are many counter
examples to this view. I rather claim that the idea of legal codification implies this concept
even if jurists were not aware of it in the past.
I shall first highlight the relation between the idea of codification and the concept of law as a
legal system. Second, I will explain what I understand by a legal system. Third, I will try to
argue that the concept of a legal system implies a holistic concept of law. Finally, I shall
suggest how this concept of law translates into an institutional setting.
1.) Codification and legal system
The codification of law has not only the practical goal to make legal rules and principles more
accessible to judges or lawyers and to facilitate the teaching and learning of the law; it also
has the objective of guaranteeing justice. Justice essentially requires that similar cases are
treated alike. Thus, just decisions follow rules that require the same decision if the same
conditions are met. Justice, however, also requires that cases which are not similar are
nevertheless treated according to the same principles, evaluations and reasons. Codification is
intended to help achieve this goal.

Consequently, codified law does not consider law as a cluster of individual court decisions,
particular rules and special principles. It rather takes law to be a unity, a legal system. A civil
code, for instance, tries to articulate the underlying legal system of private law. This unwritten
legal system is the criterion for the quality of the written code. A codification is good if the
rules it comprises are coherent. As soon as there are contradicting rules or evaluations the
codification is flawed. If, for instance, the rules on liability are not coherent with the rules on
contract, or the rules on sale contracts and the rules on service contracts are incongruous, a
codification is imperfect. The enterprise of codifying law thus presupposes the concept of law
as a legal system that underlies the written statutes.
2.) Law as a legal system
But what does it mean to consider law as a legal system? 1 Let us first examine the concept of
a system. A system is a unity of elements which are ordered according to a principle.
Examples of such a system include living entities, for instance, animals or plants. The
elements, i.e. the cells, are not just amassed in an unsorted agglomeration but constitute an
ordered unity. The structure of the unity is determined by one principle, the principle of selfpreservation. Another example is a social system such as the political or the economic system.
Here, the elements are social actions or, according to Niklas Luhmann, communications.
These elements constitute a unity since they are structured according to one principle, in the
case of a political system 'the common good' or 'power', in the example of an economic
system 'wealth' or 'profit'.
In the case of a legal system, the elements are rules, such as 'In the case of a sales contract, the
buyer shall pay the remuneration to the seller'. Some scholars hold a legal system is composed
of principles like the principle of trust or the principle of the protection of minors. 2 However,
only rules can be structured in an order. In the case of contradicting rules, both cannot apply;
one rule must derogate the other. Legal principles, however, can both be valid at the same
time within one legal system and even within one particular rule.
A legal system is not an external but an internal system. 3 An external system is an order
according to a principle alien to its elements. An alphabetical order is an external system of
this kind. The structuring principle of the alphabet has nothing to do with the content. This is
why it is equally capable of structuring a dictionary, a list of conference participants or the
index of a book. An internal system, however, expresses the internal relations of its elements,

Larenz 1991, pp. 437, Canaris 1969, Peine 1983, Bydlinski 1996.
Cf. Canaris 1969, pp. 46.
3
For the concepts 'internal' and 'external system' cf. Bydlinski 1996, pp. 31.
2

like the table of contents of a book or the arrangement of talks during a conference according
to the conference topic. Kelsens Stufenbau der Rechtsordnung, the hierarchical order of rules,
is an example of a legal system conceived of as an internal system. All rules derive from one
single rule, the basic norm (Grundnorm). 4
Kelsens basic norm, however, is just the idea that all legal norms derive from one single
legislator, that all rules are the expression of one legislative will. Nevertheless, his
Grundnorm does not contain any substantial legal principle of what is just and what is unjust.
If the internal legal system is supposed to be the criterion to judge the quality of a codification,
it is not sufficient that a legal system is a formal unity where all rules are based upon one
basic norm; it rather requires an inner coherence of evaluations. The inner coherence of
evaluations, however, requires a substantial principle, a particular idea of man. 5 Such an idea
of man is, for example, the idea that a human being is a self-dependent, reasonable and
responsible person as the liberal tradition holds, or that man is a 'zoon politikon', a social
being, as - in western thinking - the Aristotelian tradition claims and which idea is perhaps
more akin to so called 'Asian values'. Only a substantial principle of this kind can guarantee
that the rules of a legal system constitute not only a formal unity but also a coherent system.
And only such a legal system can serve as standard to judge the quality of a codification.
3.) Legal system and the conception of law
The concept of law as a legal system is not based on an atomistic but on a holistic approach to
law. What I call atomistic other scholars call 'liberal' or 'individualistic', and what I term
holistic others may name 'republican' or 'institutional'. 6 But what does this distinction mean?
An atomistic concept of law is centered on individual rights. Rights are at the origin of the
law, and the protection of individual rights is the final purpose of the law. An atomistic
conception of law therefore stresses the importance of contracts in the creation of a legal order
since it is via contracts that the parties agree to transfer some of their rights to the other.
On the other hand, a holistic approach is centered on the law. The law grants and secures
individual rights and obligations, and the final purpose of the law is to protect the law. This
holistic concept of law also asserts the necessity to protect individual rights but only in so far
as the law requires the protection of these rights.
Let us examine two examples of Private Law: the declaration of will and the contract. An
atomistic concept of law holds that a declaration of will has legal consequences because the

Kelsen 2008 pp 77.

For the German term Menschenbild cf. Hberle 2008.
6
Rhl, Rhl 2008 pp. 407.
5

declaring party wants the consequences. A holistic concept of law, however, claims it is the
legal order that gives rise to the legal consequences; the declaration of the will is only a
precondition that has to be fulfilled. In the case of a contract, an atomistic approach claims
that a party can make a claim, say, for remuneration, as there has been an agreement. By
contrast, the holistic approach holds a party can claim remuneration because of the law, which
grants a right of remuneration in the case that a contract exists. An atomistic concept of law
assumes that the individual will or the agreement of two wills engenders legal consequences,
whereas the holistic concept of law affirms that the law determines whether and to what
extent a declaration of will or a contract have legal consequences. 7
The idea of law as a legal system implies such a holistic concept. An atomistic concept of law
is based on a concept of negative liberty. Human beings are free when they can do whatever
they want when there are no barriers limiting their possibilities. In contrast, a holistic concept
of law presupposes a concept of positive liberty. 8 Human beings are free if and only if they
can achieve a certain goal. This goal is the idea of man. Since a legal system is intended to
provide a standard to judge a codification and since this standard requires a substantial basic
norm, i.e. an idea of man, the idea of a legal system implies a concept of positive liberty and
therefore a holistic approach to law. The underlying idea of man determines all of the rules of
the legal system and therefore also determines if and to what extent a declaration of will or an
agreement produces legal consequences.
4.) Legal system and the institutions of academic systematization and state legislation
This conception of law is linked to a particular institutional setting. Courts are mainly
interested in solving particular conflicts; their task is not to create a legal system. Academic
research and state legislation, on the other hand, are not concerned with the adjudication of
individual cases but with the establishment of general rules. The idea of a codification
therefore assigns to academic research the special task of finding not only the rules behind the
solution of individual conflicts, but also of arranging these rules within a legal system. Thus,
in the case of Germany, the works of Savigny, Puchta, Jhering or Windscheid were the
precondition for the subsequent codification of the German Civil Code. Without academic
systematization, the codification would not have been possible.
Even more important is the link between the idea of codification and state legislation.
Codification requires legislation, i.e., an institution that has the authority to determine what
the law is. Legal scholars might systemize legal rules in text books but they cannot bind
7
8

Hattenhauer 2000, pp. 77.

For the distinction of negative and positive liberty cf. Berlin 2005; Dworkin 1998; Taylor 2010.

courts and individuals to respect the legal system they have conceived. The state legislator has
this binding power. Codification therefore needs a state that has the authority to determine the
law. Codification requires the conviction that law is not part of the sphere of society,
independent of state intervention, but is in the hands of the state. Since the reign of Charles I,
English jurists and English society have violently rejected all attempts of the kings to
empower the state to legislate. Codification was only possible in France or Germany where
the state had acquired the power to make the law.
Consequently, it might not be a coincidence that the holistic concept of law is particularly
attractive to countries where the state has a strong role as a legislator. The state is supposed to
not only respect and protect the individual rights of its citizens but also realize a legal order
according to a substantial idea of man. The French civil code not only wrote down the
existing legal rules of the French society but in the wake of the French revolution also
established a new social order according to the new revolutionary idea of man. And the
German Federal Constitutional Court considers the fundamental rights of the German
constitution not only as individual rights but also as set of values or principles that extend to
the legal order in its entirety. 9 German law has thus always been based on a distinct idea of
man; it is the task of the state to create the conditions that enable the citizens to pursue this
idea.
Codifying the law is not just a value-free technique but implies a holistic concept of law with
a particular idea of man, and a state which tries to allow its citizens to live up to this idea. One
can doubt whether, in a pluralistic society, it is still possible or at least legitimate for the state
and its legal order to embrace such an idea of man. 10 However, without a substantial principle
of a legal order one has to give up the idea of law as a legal system and thus the very idea of
legal codification.

Peking, den 25 September 2011

Entscheidungen des Bundesverfassungsgerichts, Vol.

Bundesverfassungsgerichts, Vol. 35, 79, 114; Hesse 1999 pp. 133.
10
Cf. Bckenfrde 2002.

7,

198,

205;

Entscheidungen

des

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