Codification of legislation or codification of law: statement of the problem

Abstract

The publication is devoted to the problem of choosing a formulation that most fully reveals the nature of legal codification. Basically, researchers write either about the codification of legislation or about the codification of law. A number of works also talk about the codification of legislative norms or legal norms. As a rule, «fluctuations» in doctrine are more noticeable at the branch level, when it is impossible to limit oneself to the word «codification» but it is necessary to also indicate the area being codified. The article shows that the differences in wording are due, firstly, to the different understanding by scholars of the subject (object) of codification, that is, what is subject to codification processing within the framework of a given legal practice. Secondly, the concepts of «codification» and «codification of legislation» themselves can be interpreted differently. If we see codification as a process of «law-systematizing law-making», then we should use the formulation «codification of law» («codification of legal norms», «legal codification»). It is precisely legal norms (law as a whole), and not legislation, that are the main subject of codification, selected from diverse and unorganized sources (forms) of law and other documents containing legal information. The subject of codification is not only legislative norms; it is much broader. The phrase «codification of legislation» in the sense of the subject of such activity is incorrect; its consolidation in doctrine and practice was due to a change in the meaning of the term «law» (from «legal norm» to «normative act»). If the term «codification» is considered not as a process (what we are codifying), but as a goal (what we are codifying for), then we are talking about improving legislation, not law, and the formulation «codification of legislation» will look quite correctly. It seems, however, that the formulation «codification of law», reflecting the subject of the activity, more fully reveals the essence of this type of legal systematization (selection of legal norms from numerous sources and their ordering in a new codified act). Legislation can be improved not only through codification. In general, it is proposed to proceed from the fact that it is the law that is codified, while legislation is improved (reformed) in the course of codification.