Codification can be broadly be defined as the process of collecting, compiling and restating unwritten laws to form a systematic written legal code. 19th century legal jurist John Austin improved on this definition to introduce two further theories on codification that is codification that innovates in form and codification that innovates in substance. These will be discussed later. Currently in Tanzania, most laws are codified such as the Law of Contract Act CAP 345 [Laws of the United Republic of Tanzania], that governs contractual matters.
However, few exceptions include customary law, Islamic law and certain practises that rely on unwritten common law. Tanzania was a British trust territory and inherited many British legal practises through the reception clause [section (2) subsection (II)] of the Judicature and Application of Laws Ordinance [now Act]. This essay will thus examine the viability of total codification in Tanzania in relation to Austin's two theories of codification. Austin's is viewed as the father of legal positivism. One of tenets positivism is that laws are rules made by man.
This relates to codification as changing unwritten laws to codified laws subjects the laws to bias by man. In his Philosophy of Positive Law, Austin argued that innovation in form and innovation in substance were dichotomous subjects. Austin's idea of innovation in form was codification of a specific area of the law. This has come to entail codifying just the gist of the law. Innovation in substance on the other hand denotes making comprehensive changes to the law. This can include extracting bad sections of the law and or adding improved sections to it.
Austin argued these two innovations of the law were divergent. This is a sound argument as innovation in form only deals with codifying a specific area of the law. This means other areas of the law remain uncodified. On the flipside, innovation in substance causes widespread changes to the law. This can even imply total codification of the law. This discrepancy forms the basis for affirmation of Austin's theory, as innovation in form and substance differ in extent. We can thus say innovation in form is partial while innovation in substance is comprehensive.
The second area is change of the nature of the law. Innovation in form deals with codifying diminutive segments of the law. This cannot lead to significant change in the nature of the law. Practically, innovation in form usually maintains the original meaning of the segment of law being codified. Conversely, innovation in substance changes the nature of the law. As earlier mentioned, innovation in substance includes subtracting and or building upon the law. Where parts of the law is removed, its' meaning is lost and where parts of the law are added its' meaning could be altered or distorted.
A combination of these will thus lead to a complete change from the original uncodified law. However, some legal scholars argue that all codification is innovation in substance irrespective of the extent to which the law is codified. This theory proposes the mere change from unwritten to written is distortion in meaning and thus codification in substance. This arises as legal draftsmen are biased by their understanding, opinions and language. This changes the law from refined customs centuries old to the works of a few elite men.
This argument holds some truth as unwritten laws tend to be organic and flexible while written laws tend to be frozen pieces of literature with clearly defined boundaries. Codification in the Tanzanian Context. Codification in Tanzania is not a hot topic as essentially all its' law are codified. As a result, codification that innovates in form is most likely to be applied to the uncodified customary and Islamic laws. Despite all this the further need for codification exists and it a matter that should be taken seriously.
In assessing the viability of codification of uncodified laws in Tanzania, this essay will consider the cyclic relationship between accessibility, clarity, systemization and foreseeability of codified laws and their broad association with other factors. The situation in Tanzania as regards accessibility to the law is appalling. The country has a low literacy rate of only 71%. In rural areas where the bulk of the population is concentrated, literacy rates are as low as 36%. This means only a select few can access the law. This is only part of the problem.
Laws are only found in university libraries, courts of law, public libraries and on the internet. Most public libraries keep outdated versions of the law and of the 36 plus million Tanzanians it is estimated only 250,00 have access to the internet. Infact, while writing the essay the government website that hosts various acts of parliament had only received 1605597 hits. As regards clarity, the law is largely misunderstood because few understand it in the first place. Tanzania in March of 2005 only had 3,000 trained lawyers with 700 admitted to the bar1.
That is 1 lawyer for every 12,000 Tanzanians. That is a number far too few to have a positive influence in educating society. There are however halfhearted attempts to increase awareness in society about the Law. The 'Daily News' newspaper runs a column once a week sensitising the society on legal issues and there is a television show entitled 'Sheria na wewe' (translated 'The law and you') that airs once a week and engages viewer in debate on the law. Codifying law is done in a systematic and formulaic fashion. This makes laws inflexible and unadaptable with time.
This will prove problematic for Tanzania as most of its' laws were aped from other countries in a 'copy and paste' fashion. There is thus a dire need to review many old, outdated and impractical laws. Furthermore, in attempting to codify customary law, draftsmen will be challenged to organise haphazard customary laws. This is because customary laws were passed down generation after generation orally and thus lack organized structure. The systematic and formulaic nature of codifying the law breeds rigidity. The rigidity of codified law reduces the foreseeability of law especially to deal with novelle situations.
Considering the current rate of globalisation, laws rapidly become extinct. In addition, many of the unwritten traditional customs are evolving with time. For example, emancipation of women has lead to a forward shift in the age girl's get married as many seek to further their education. Other factors that will also come into play is the cost of codification both fiscal and in terms of time. In addition, total codification of customary laws will prove a mammoth task as Tanzania has over 120 tribes each will different traditions and customs. Jeremy Bentham is credited with coining the word codification.
Bentham was a 16th century utilitarian legal theorist. As a utilitarian, he felt codification of common law would provide the greatest utility to society. This should subsequently be the decisive test in assessing viability of codification in Tanzania. Total codification in Tanzania should provide benefit to society rather than a select group. As it stands, majority Tanzanians are not in a position to understand current law let alone validate significant changes to it. It is evident that the practicality of total codification in Tanzania is minuscule and thus not viable.