What is the difference between codification and unification?
DAFTAR ISI
INTISARI JAWABAN
Legal codification is the bookkeeping of law in a set of laws in the same material. Examples of codification are criminal law in the Criminal Code, civil law in the Civil Code, and commercial law in the Commercial Code.
Furthermore, legal unification is the unification of nationally applicable law or the unification of national law enforcement. An example of legal unification is the establishment of Law 1/1974 a.k.a Marriage Law as a unification and uniformity of law to be enforced in Indonesia as the national law which regulates marriage.
Please read the review below for a further explanation.
This article below is a second update of the article entitled Difference between Legal Codification and Unification (Perbedaan Kodifikasi Hukum dan Unifikasi) which was first written by Sovia Hasanah, S.H. and was first published on 21 June 2017, and was first updated on Friday, 11 March 2022.
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The Definition of Codification of Law
According to Black’s Law Dictionary 9th Edition, codification is the process of compiling, arranging, and systematizing the laws of a given jurisdiction, or of a discrete branch of the law into an ordered code.
If interpreted, codification of law is the process of drawing up, regulating, and systematizing laws from certain jurisdictions, or from separate branches of law into an orderly code.
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Then, according to R. Soeroso in his book entitled Introduction to Legal Studies (Pengantar Ilmu Hukum) (p. 77), legal codification is the bookkeeping of law in a set of laws in the same material.
The Purpose of the Codification of Law and its Examples
The purpose of the legal codification is to obtain a rechtseenheid (legal uniformity) and a rechts-zakerheid (legal certainty).[1]
According to Satjipto Rahardjo in his book entitled Science of Law (Ilmu Hukum) (p. 92), the general objective of the codification of law is to make the set of laws and regulations simple and easy to master, logically arranged, harmonious, and certain.
The first national law codification is the French Civil Code or Code Napoleon. It was named Code Napoleon because it was Napoleon who ordered and promulgated the French Law as a National Law at the beginning of the XVIII century, after the end of the political and social revolution in France.[2]
Then, examples of codification of law in Indonesia are criminal law in the Criminal Code, civil law in the Civil Code, and commercial law in the Commercial Code.[3]
The Urgency of the Codification of Law
Why is the codification of law developing and necessary? The function of legal codification is to overcome the absence of legal certainty and legal unity in a country.
In Indonesia, prior to the codification or national law, the prevailing law was customary law. According to V. Vollenhoven, in Indonesia, there are 19 types of customary law communities or rechtsgemeenschappen. Each rechtsgemeenschap has its own customary law which is different from the customary law in other rechtsgemeenschap, so that for the entire territory of Indonesia there is no unity and legal certainty.[4]
At that time, nationally there was no unity of law and legal certainty. This is due to the legal differences between the respective regions. Then, in order to realize legal unity and certainty, Indonesia requires laws that are national in nature and laws that are applicable to all Indonesian Citizens.[5] Therefore, the codification of Indonesian law is necessary.
Unification of Law
Umar Said, as quoted by Anak Agung Putu Wiwik Sugiantari in his journal entitled The Development of Indonesian Law in Creating Legal Unification and Codification (Perkembangan Hukum Indonesia dalam Menciptakan Unifikasi dan Kodifikasi Hukum) (p. 118) states that legal unification is the unification of nationally applicable law or the unification of national law enforcement.
The unification of national law for laws containing sensitive topics, which are laws that lead to the implementation of customary law, is very difficult to unify because each region has different customs. For example, Law 44/2008 a.k.a Pornography Law, which has been widely rejected by local communities who believe that if implemented, it will affect the essence of the implementation of customary activities in their regions.[6]
Another example of legal unification that we found is the Law 1/1974 a.k.a Marriage Law, in which each region of Indonesia has its own customs regarding marriage. Therefore, the Marriage Law was established as a unification and uniformity of law to be enforced in Indonesia as a national law.
If concluded, legal unification is the unification of nationally applicable law or the unification of national law enforcement. Then, codification of law is the bookkeeping of law in a set of laws in the same material.
These are the answers we can provide, we hope you will find them useful.
Reference:
R. Soeroso. Pengantar Ilmu Hukum. Jakarta: Sinar Grafika, 2011;
Satjipto Rahardjo. Ilmu Hukum. Bandung: PT. Citra Aditya Bakti, 1991;
Anak Agung Putu Wiwik Sugiantari. Perkembangan Hukum Indonesia dalam Menciptakan Unifikasi dan Kodifikasi Hukum. Jurnal Advokasi, Vol. 5, No. 2, 2015.
[1] R. Soeroso. Pengantar Ilmu Hukum. Jakarta: Sinar Grafika, 2011, p. 77.
[2] R. Soeroso. Pengantar Ilmu Hukum. Jakarta: Sinar Grafika, 2011, p. 77.
[3] Anak Agung Putu Wiwik Sugiantari. Perkembangan Hukum Indonesia dalam Menciptakan Unifikasi dan Kodifikasi Hukum. Jurnal Advokasi, Vol. 5, No. 2, 2015, p. 119.
[4] R. Soeroso. Pengantar Ilmu Hukum. Jakarta: Sinar Grafika, 2011, p. 78.
[5] R. Soeroso. Pengantar Ilmu Hukum. Jakarta: Sinar Grafika, 2011, p. 79.
[6] Anak Agung Putu Wiwik Sugiantari. Perkembangan Hukum Indonesia dalam Menciptakan Unifikasi dan Kodifikasi Hukum. Jurnal Advokasi, Vol. 5, No. 2, 2015, p. 118.
