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.