Many law codes embody a tension between the mundane level of what the code way to accomplish on a day-to-day basis and an embedded concept of how the society (or even the world) should work. Many visions were grand, encompassing not only the immediate society, but how all societies should work, how man the natural world and the supernatural should relate and the proper relation of man to god and the cosmos.
Over the long sweep of history, law has been codified for a variety of reasons.
1) Someone in power perceived that the existing laws on a topic are a welter of obscure and possibly contradictory decisions. This “sorting out” and simplifying process appears to be bureaucratic but was much more. The “simplifying” process retained certain viewpoints and decisions and dropped others. Often, fundamental change was introduced by “simplifying”.
2) Someone in power decided that there was just too much on-going bloodshed in disputes between families, within families, between clans, and within clans. In an attempt to decrease the frequency of blood feuds, the person in power designated recompense for various crimes that would normally trigger a blood feud. The society as a whole gained a “peace benefit”.
4) Codes sometimes proposed radical redefinitions of societies and social relations within them. Code Napoleon, for example, swept away many of the rights and privileges of nobles across Europe. Plato’s envisioned law only in a radically different and non-existent society.
5) Codes could be an attempt to limit the role of the judiciary in governance, preventing a judge from interpreting and making decisions on the “spirit” of the law rather than the “letter” of the law. Recall the Laws of Leviticus or the Three Strikes law in California.
6) Several codes were promulgated in response to the immediate situation in society: a political crisis or success or failure in war or a changed economic situation. The society at large needed an answer and the crisis made it more open to breaking new ground, establishing new rights, recognizing new relationships, (Sharia, Confucius, Magna Carta, Declaration of Human Rights)
7) Some codes were written not to enhance the power of the ruler but to limit it, especially to limit his power to impose his or her will on individuals or groups unsupported by representatives of the group. (Magna Carta, US Constitution)
Law codes also differ in their legitimacy claims.
1) Some codes claimed to be the direct revelation of God (Ten Commandments, the Koran, the words of Jesus). These codes are not subject to direct change, but only re-interpretation. Clerics are the expected judges and interpreters. It is clerics who decided what sorts of people had rights, what those rights might be, and held the power to enforce the code. The normal functioning of such a code was inquisitorial. It was the function of such a court to ascertain whether the defendant had violated the code or not and to punish violators. This was, for example, the basic position of St. Augustine. Laws were to be obeyed, most particularly the laws of God. It was not man’s place to question those laws.
2) Some codes claimed to be the particular wisdom of a ruler. He was the highest judge. Power to define the rights of groups and individuals rested only with the king. Typically, such societies saw ongoing tension between the king as the ultimate legal authority and clerics, who claimed ultimate moral authority.
3) Some codes claimed to express truths about humans and their situation that preceded any form of government, and appeal to “natural rights”, “natural laws”, and “natural truths”. This sort of thinking was strong in eighteenth century Europe and influenced Lord Mansfield’s Somerset decision, the Declaration of Independence, and the Bill of Rights. This tradition continues today in documents such as the Universal Declaration of Human Rights. These codes should be independent of religion or ruler. They have, even underlying them, a conception of the “natural” relations of man and man, either following Bentham’s war of all against all or Pufendorf, who saw the “natural” relations between man and man as relatively peaceful and cooperative. Grotius extended these ideas of “natural rights” to a theory of international law and law of the sea.
5) Some law codes were explicitly a “contract” between government and the people. Government legitimacy and the legitimacy of the law code stem from the consent of the governed.
6) Sometimes a code’s legitimacy came from a simple claim of superior civilization, consciously imposing its law on an inferior society (Roman Law, Chinese law in Vietnam, colonial laws of European colonies). The implicit assumption is that the law code would become universal as the obviously superior civilization gradually conquered the known world.