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“The Principle of the Codification We Recommend Has Never Yet Been Understood”

Published online by Cambridge University Press:  28 October 2011

Lindsay Farmer
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Extract

The words of Henry Bellenden Ker, Law Commissioner, quoted as the title of this response, were truer than he knew. In protesting that the commissioners' project was less radical than was alleged by the opponents of codification, he sought principally to gain parliamentary time and space for consideration of the commissioners' work. However, his words contain a deeper vein of truth. The work of the law commissioners has been praised and criticized, celebrated and ignored, over the past one hundred and fifty years, but never yet properly understood. Even as the commissioners' reports have been plundered by successive generations of legal scholars in search of doctrinal and theoretical support for their own very contemporary concerns, there has been a continuing neglect of the commissioners' overall project and little attempt to link it to the significant transformations in punishment and the administration of criminal justice that were occurring in the same period. Accordingly, any reassessment of the commissioners' work should address these two issues: understanding their project as a whole and placing codification within the general historical context of the modernizing of the state and institutions of criminal justice. It is these two concerns that the commentators address in their responses.

Type
Forum: Response
Information
Law and History Review , Volume 18 , Issue 2 , Summer 2000 , pp. 441 - 444
Copyright
Copyright © the American Society for Legal History, Inc. 2000

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References

1. Henry Bellenden Ker in correspondence with Brougham, quoted by Lobban, Michael, “How Benthamic Was the Criminal Law Commissing?” Law and History Review 18 (2000): 428.CrossRefGoogle Scholar

2. Preface, Ruins of Time, exemplified in Sir Hale's, MatthewHistory of Pleas of the Crown (London: Stevens and Norton, 1856).Google Scholar

3. (1848) 11 & 12 Viet., cc. 42, 43, and 44. Amos claimed that there was “an unmistakeable family likeness” with the procedural reforms discussed by the commissioners in the Eighth Report. Amos, Ruins of Time, xviii. However, he was all too ready to detect the influence of the commissioners in every area of criminal law reform.

4. Ibid., xvii.

5. See particularly Postema, Gerald J., Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986)Google Scholar, part 3, and Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britian (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar

6. Dubber, Markus Dirk, “The Historical Analysis of Criminal Codes,” Law and History Review 18 (2000): 436.CrossRefGoogle Scholar

7. Cairns's recent work has shown that this period (1830–1850) was also when the modern adversarial jury trial took shape. See Cairns, D. J. A., Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998).Google Scholar

8. McVeigh, Compare Shaun and Rush, Peter, “Cutting Our Losses.' Criminal Legal Doctrine,” in Rush, Peter, McVeigh, Shaun, and Young, Alison, eds., Criminal Legal Doctrine (Aldershot: Ashgate, 1997), 182–99, at 189.Google Scholar

9. See, e.g., Smith, K. J. M., Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800–1957 (Oxford: Clarendon Press, 1998).CrossRefGoogle Scholar