Systematisation of Objective Law: From Codification to Reformation of Law

Author:Raul Narits
Position:Professor of Comparative Jurisprudence, University of Tartu

1. Context - 2. What Estonia has to reckon with - 2.1. About systematisation work in Estonia - 3. About some bottlenecks - 4. Codification and legal literature - 5. About codification methods - 6. Summary


Raul Narits

Professor of Comparative Jurisprudence, University of Tartu

Systematisation of Objective Law: From Codification to Reformation of Law

1. Context

On account of its historical development, the Estonian legal order belongs to the continental European legal tradition. Continental European legal culture knows three broad areas of law: private law, public law, and penal law. A legal provision is the fundamental unit of each of these areas of law. It is through the creation of provisions that the continental European legal culture has developed. Certain areas of reality are regulated by the rules contained in legal provisions. Life shows that the increasingly complicated nature of reality and the accompanying regulations creates a need for more and more new legal provisions. The apparent satisfaction of this need indeed brings about a positive result, the desired pattern of human behaviour at a certain level of quality. On the other hand, the drafting of legal provisions has its problems. Contradictions and repetition can occur in the building blocks of the legal order. The set of applicable provisions has a formal hierarchy that enables the creator of an upper-level provision not to look down, while the creator of a provision at a lower level of priority might not know or even consider looking upward at the higher provisions, and so on. In this way, even signs of disorder can appear instead of order.

2. What Estonia has to reckon with

What should be on the agenda in Estonia today when we speak about systematising the legal order? The idea of systematisation of legal provisions has deep roots in legal thinking. Simply said, the problem lies in finding the most adequate place for the various legal provisions in the sources of law. The point of departure should be knowing that we should not, and actually cannot, step outside the cultural arena to which we are accustomed. However, we do need to be able to perceive and take into account the qualitative developments that have taken place as legal culture as a whole develops, as well as the quantitative and qualitative changes specific to the Estonian legal order. The tasks of legal scientific research are to clarify the content of legal provisions on one hand and to systematise them on the other. Systematising objective law is not merely a technical task. Systematisation of legal provisions creates and develops the system of concepts that frames all legal thinking - including clarification of the content of legal provisions. In its final stage, systematisation of objective law is an essential tool in implementing the rule of law as an idea in applied form. It is therefore not correct to reduce codification as a traditional element of systematising legal provisions to merely compiling a code from the different parts of a legal order or set of laws.

In considering the history of system teaching, it is impossible not to overlook the approach of F.C. von Savigny. According to von Savigny, a real scientific system is characterised by unity created by its inner harmony. It must contain general content and answer the common task of legal science and all legislation1. Systematisation issues thus even have a philosophical nature.

Historically speaking, the key for systematisation of the current Estonian legal order - legal consistency - should be sought at the beginning of the second independence. It is related to the birth of the Constitution of the Republic of Estonia, of which the President of the Republic of Estonia said: 'This principle was a directing and thought-organising companion both in the restoration of independence and in the creation of the legislation that came before the Constitution, as well as in the drafts submitted to the Constitutional Assembly. Legal consistency means not simply treating two separate legal systems as one whole [meaning the legal systems of different time periods and situations: that of 1918-1940 and that created since 1991] but also the lawful development of the legitimate legal order. Therefore, it is important to point out that the Constitutional Assembly did not have to start drafting the Constitution from scratch. Legal consistency requires theoretical consistency also. This conclusion becomes especially topical as we begin to give legal content to the organisation of the state as a member state of the European Union2. In this context, it should also be clear that the legal consistency required for systematising legal provisions is not related merely to developments in the Estonian legal order. The sources of continental European legal culture can be found in ancient Roman law. In antiquity, the legal order was developed through and with the help of legislative drafting, and it holds examples and principles to which we can usefully refer today.

Systematisation is often formally arranged such that the necessary set of basic concepts is organised hierarchically3. Although this is a common picture of systematisation, it is one?sided, if not misleading. One has to distinguish between a legal order and a legal system. Order has always been and shall remain a phenomenon of the social exercise of power. Legislative power establishes legal provisions, which taken as a whole constitute the legal order. A system is something more than merely a legal organisation of power. Where a certain sphere of life is organised by legal provisions, this is achieved, ideally, through a rational articulation or systematisation of things. Figuratively speaking, things that essentially belong together are gathered under common titles, and an attempt is made to separate them from each other through attention to clear characteristics. And this is done for each area of life that is organised by law. Now we have not just separate organisations of power as such but groups of provisions organised by close intrinsic relationships. Systematisation is thus the tool or method of building a system from essentially uneven and irregularly linked provisions.

For the purposes of legal science, the main task of systematisation may be seen as involving a further organisation of a basic system of express illegal provisions. Organisation of the basic system does not arise from nothing. It is always based on some already established set of provisions, which of course need not be merely legal in nature. The new thus amends, supplements, or elaborates on the old. The aspects of reality so far unregulated by legal provisions form a totality, but changing some of them in whole or in part does not change the totality4. Systematisation also has its technical side: systematisation is a certain activity (consisting also of a set of activities) the rational core of which lies in seeing the links of certain things with other things. Where a need has been detected for further differentiation of the original provisions or an interest in so doing is evidenced, an attempt is made to this end, even to the point of changing the basic system.

2.1. About systematisation work in Estonia

The development plan of the Ministry of Justice of the Republic of Estonia extending to 2005 cited as one of the main functions of the ministry the correspondence of laws to society's expectations. To that end, the development plan provided for preparations for co-ordinated codification plans5. The document contained observations of the idea of, need for, and methods of codification, and recommendations on how to codify Estonian law. It was stressed that the main purpose of codification was to create legal certainty and clarity, by making it simpler for those applying the law to find the necessary regulation and providing a more general view of the applicable law. The purpose of codification was seen in the development plan as harmonisation of legal regulations, leading to a harmonised development of law as a whole. It is especially important to note that the context of codification was unambiguously tied to the continental European legal tradition. As noted above, the Estonian legal order is part of the continental European legal family, which is closely related to the most deeply rooted traditions of codification. While the document expressed the import of codification, it was admitted that at the time (2003), the main reform in different areas of law had already been or would soon be finalised and that creation of systematic bases of written law had been completed. In this undertaking, the focus has to be on the stability, clarity, and unambiguousness of the legal order. At the same time, this does not mean that the functionality and system of the laws not yet systematised should be questioned. In view of the fact that many important legal acts have been adopted within a notably short span of time and have been in force for only a few years, codification work should concentrate on analysing the practical application of legal acts and the impact of regulation. In parallel with analytical work, a codification method should be found that suits Estonia's circumstances - provided that the need for codification as the systematisation of legislation is identified and relevant political decision is initiated. It seems that there is indeed a need for developing and applying a codification method that suits the Estonian situation.

3. About some bottlenecks

Estonian legal literature provides sufficient examples of bottlenecks, largely caused by the inadequacy of...

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