Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America

Abstract

What are the key conditions and factors that contribute to a successful effort within a political unit to create a new legal code? This article builds of the existing "comparative codification" literature by examining that question in the context of three very different legal traditions: dynastic Chinese law, European civil law, and North American common law. Drawing on nine important codification experiences-four from China, two from Europe and three from North American-the author posits that three conditions must exist in a legal system for codification to occur: (i) that written law is generally regarded favorably as a means of ordering society; (ii) that the top political authority in the society is powerful enough to impose a code; and (iii) that such top political authority is eager to champion the cause of codification. Assuming these three necessary conditions are present, several key contributing factors-for example, cultural change and legal chaos-further augur in favor of codification. The author identifies five such factors and illustrates their importance in each of the nine codification experiences. The article concludes with some observations about (i) the value of including traditional Chinese law in comparative codification studies and (ii) the interplay between the concentration of political power (lacking, for example, in the international legal system) and the likelihood of legal codification.