CRIMINAL LAW LECTURES
CODIFICATION AND THE CRIMINAL LAW Lecture 1
Jeremy Bentham (1748 - 1832) is arguably England's greatest intellectual commentator on law and his greatness flows both from his theoretical overview, to which I will return, and from his radical criticism of the common law and of "Judge & Co". Bentham's comments are extreme and there is nothing in Dickens celebrated condemnation of the Court of Chancery in Bleak House, a novel published in monthly parts 1852-3 not already to be found in Bentham's voluminous works. Dickens' novel contains a vigorous satire On the abuses of the old Court of Chancery, the delays and costs of which brought misery and ruin on its suitors. The tale centres on an uninteresting couple - Richard Cardstone and Ada Clare - who are wards of court in the case of Jarndyce v Jarndyce, concerned with the distribution of an estate, which has gone on so long as to become a subject of heartless jokes and a source of great profit to those professionally engaged in it ... ultimately the case comes to a sudden end when it is discovered that the costs have absorbed the whole estate in dispute.
Just by way of a flavour: "The raw afternoon is the rawest, and the dense fog is the densest, and the muddy streets are muddiest, near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation: Temple Bar. And hard by Temple Bar, in Lincoln's Inn hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery. Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth....
"On such an afternoon, some score of members of the High Court of Chancery bar ought to be - as here they are - mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep on technicalities, running their goat-hair and horse-hair warded heads against walls of words, and making a pretence of equity with serious faces, as players might ...
"This is the Court of Chancery : which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among it practitioners who would not give - who does not often give - the warning, 'Suffer any wrong that can be done to you, rather than come here!". [Dickens, Bleak House, pp1-3]
Turning from Dickens's corrosive prose, to the story of Bentham's life and his experience of legal education, in Bentham's own words: "Destined by education to ... the study of the English law ... I entered upon the task. I had been taught to believe, both in print and in conversation that it is in [its] several parts as beneficial to the people, as the whole together is profitable to those who study it as a profession: that it is as near to perfection as anything can be that is human; that if it has any imperfections, they are like spots in the sun, absorbed in the splendour of superior beauties". You may know that Sir Edward Coke, no less, said that "Reason is the life of the law; nay the common law itself is nothing but Reason" and that Blackstone, too eulogised the common law as the perfection of reason..
But the boy Bentham was disappointed, "As I advanced, every page I read seemed to furnish an exception to these general rules; till at last I began to be almost at a loss to conjecture upon what particular observations could have given occasion to those magnificent positions ... I saw crimes of the most pernicious nature pass unheeded by the law; acts of no importance put in point of punishment upon a level with the most baneful crimes; punishment inflicted without measure and without choice; satisfaction denied for the most crying injuries; the doors of justice barred against the great majority of the people by the weight of wanton and unnecessary expense; false conclusions ensured in most questions of fact by hasty and inconsistent rules of evidence; light shut out from every question of fact by fantastic and ill-considered rules of evidence; the business of hours spun out into years [as in Jarndyce v Jarndyce]; impunity extended to acknowledged guilt and compensation snatched out of the hands of injured innocence by ... impertinent and inscrutable exemption; the measure of decision in many cases unformed; in others locked up and made the object of a monopoly; the various rights and duties of the various classes of mankind jumbled together in one unsorted heap; men ruined for not knowing what they are neither enabled nor permitted even to learn; and the whole fabric of jurisprudence a labyrinth without a clew".
"These were some of the abominations which presented themselves to my view ... From the view ... I confess resulted a passionate desire of seeing them done away. It soon appeared that to cleanse the Augean stable to any purpose there was no other way than to pour in a body of severe and steady criticism and to spread it over the whole extent of the subject in one comprehensive unbroken tide."
"This I determined to attempt ... and whatever might be the success, it seemed that the labour of a life, as of a thousand more if I had them, would not be ill-bestowed in the endeavour"
Bentham Box 27, p 172
As an example, Bentham states of the English law of succession: "It is so complicated with regard to the descent of property; it admits of distinctions so singular; the previous decisions which serve to regulate it, are so subtilised, that not only is it impossible for simple good sense to presume them, it is also difficult for it to comprehend them. It is a study profound as the that of the most abstract sciences; it belongs only to a small number of privileged men; it has been necessary, even for them, to subdivide themselves; for no one lawyer pretends to understand the whole. Such has been the fruit of a too superstitious a respect for antiquity" [Works Bowring ed I 323-324].
Indeed, for Bentham, "... technical terms conceal errors, ... mask quackery, ... confine the science [of law] to a small number of adepts who have made it a species of monopoly..." Works III, 24
And Bentham would have none of this: "... while reading and musing, the Daemon of Chicane appeared to me in all his hideousness. What followed ? I abjured his empire. I vowed war against him" [Works X. 35] How was this war to be waged ? By nothing less sweeping than the abolition of the common law and its replacement by a code. For Bentham, the common law was retrospective and unfair; it was an impenetrable muddle; it was couched in a language beyond the comprehension of those to whom it applied; it was a vehicle for Sinister Interest and a source of corruption; and ultimately it failed to deliver remedies in civil matters or justice in criminal cases. So it is no surprise to find, according to Bentham's diary that he was "still codifying like any dragon" on his 82nd birthday.
Thus "It is the judges ... that make the common law. Do you know how they make it ? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then you beat him for it. That is the way you make laws for your dog and that is the way the judges makes laws for you and me" [Works V 235] Thus "... customary law [was] ... a trackless wilderness ... [and the] darkest of all chaos" [B.27 p 157] "Wherever jurisprudential [i.e. judge-made] law reigns, certainty is impossible; it has no ground to stand on. Jurisprudential law is sham law; to ascribe stability to this creature of the imagination, is to ascribe stability to a shadow" [VII, 309].
"Jurisprudential law ... is a vast hotbed of uncertainty ... Will you believe Lord Mansfield ? Judges are higher, better, fitter legislators than the king, lords and commons. 'Common law' (says he in so many words) 'is superior to an Act of Parliament' ... Mansfield, when a reforming fit came on him, chose to do everything himself ..." [VII, 310-11] Lord Mansfield, as you may already know, was regarded as a great and creative judge who systematised commercial law, producing structure, order and principles where none had been before. Bentham, however, is sarcastic: "A system for his successors to follow? - What system? - A system of doing what they please? This was the system not only taken up, but avowed by this great judge" [VI, 146.]
Accordingly, Bentham compares statute law favourably with the common law - "Statute law everywhere has a tenor - a determinate collection of words; there is the will, and there, the expression of it". [VII, 309]
Little surprise, then, that Bentham wished to sweep away jurisprudential law and substitute for it a comprehensive, clear and coherent code: "If the obscure system called custom [lex non scripta] were no longer suffered to exist; and the whole law was reduced to writing - if laws which concern every individual were collected in one volume, and those which concerned certain classes, were in separate collections ... every deviation from them would be sensible, every citizen would be their guardian; there would be no mystery to conceal them - no monopoly in their explanation - no fraud or chicane to elude them" [I, 326].
Bentham understands, and emphasises the importance of clear and determinate language, which sometimes he refers to as "Grammar". He thinks that Grammar and Legislation should work together . After all, "Till men know what it is that they say, how shall they know what they do?" [Box 127, p.3] "Proportional to the uncertainty of the words employed upon legal subjects will be the uncertainly of possession and expectation in regard to property [indeed to all rights and duties] and also the deficiency of political security against evil ... proportional therefore to the fixidity given to ... words will be the degree of security for good ... Until, therefore, the nomenclature and the language of law shall be improved, the great end of good government cannot be fully attained". [III, 270-71] So, precise language is important, not only for the expression of thought but for the avoidance of corruption and manipulation - "A good grammar [linguistic analysis] is a powerful friend to [avoid] ignorance and a powerful enemy to corruption. The same flaws in language which serve as pitfalls [leading] to ignorance are lurking holes for corruption" [B.27 p 157]
As to lawyers' manipulations of the meaning of the law, Bentham used two of his apt phrases "malificence-licence institution" and "mendacity-machine" to make his point that the structure of lawyering and legal process can itself generate "a power of frustrating the declared will of the legislator". [III 283]. For Bentham, clear language is a great antidote to such malificence and mendacity. So the first prerequisite of any codification project is theory of language (and meaning) adequate to the task. We need in short a Theory of Language." George Orwell ("Politics and the English Language" 1946) shared Bentham's passionate belief in the importance of accurate language as a necessary condition of "clear thinking" and as he writes "... to think clearly is the first step towards political regeneration" . "A scrupulous writer, in every sentence that he writes, will ask himself at least four questions, thus: What am I trying to say? What words will express it? What image or idiom will make it clearer? Is this image fresh enough to have an effect? And he will probably ask himself two more: Could I put it mote shortly? Have I said anything that is avoidably ugly? But you are not obliged to go to all this trouble. You can shirk it by simply throwing your mind open and let the ready made phrases come crowding in. They will construct your sentences for you - even think your thoughts for you, to a certain extent - and at need they will perform the important service of partially concealing your meaning even from yourself . It is at this point that the special connexion between politics and the debasement of language becomes clear"  This, for Orwell, is illustrated by "The political dialects to be found in pamphlets, leading articles, manifestos, White Papers and the speeches of under-secretaries [which] do, of course, vary from party to party, but they are all alike in that one almost never finds un them a fresh, vivid, home-made turn of speech ...A speaker who uses that kind of [party] phraseology has gone some way to turning himself into a machine. The appropriate noises are coming from his larynx, but his brain is not involved as it would be if he were choosing his words for himself"  For Orwell, "Language can ... corrupt thought" . Orwell thinks that "the following rules will cover most cases:
(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print
(ii) Never use a long word when a short one will do.
(iii) If it is possible to cut out a word, always cut it out.
(iv) Never use the passive when you can us the active.
(v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
(vi) Break any of these rules sooner than say anything outright barbarous"  Orwell thinks that if one follows these rules one will not be able to speak in the dialects of the contending parties: "If you simplify your English, you are freed from the worst follies of orthodoxy ... Political language - and with variations this is true of all political parties from Conservatives to Anarchists - is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind" 
But fine words are not enough. "Thesis" - I said to my research student , "100,000 words by the end of this term". "Don't worry", she said "I already have them all ... all I need to do now is put the in order". Yes, words come in sentences and so the question of codification is also a question of the form of the legal proposition. What is the shape or the logical structure of laws . For Bentham (and his pupil Austin it is a "command"; for Hart is "rules"( or as latterly in his Postscript, "near-conclusive rules and non-conclusive principles); for Kelsen it is "norms"; and for Tur it is "open-ended defeasible normative conditionals". I usually illustrate this point with a poem: "If all be true that I do think/ There are five reasons I do drink/ Good food, good wine, or being dry/ Or lest I should be by and by/ Or any other reason why.
Applying this in the context of a comparison of common law and statute and in relation to codification aspirations, one can posit three forms of the legal proposition [See, further, Tur, "Synthesis ..." pp 214 to 217].:
(1) Closed and exceptionless:- "If A is, B ought to be." (Where A [a,b, and c] = the legally defined facts and B = the legally attributed consequence [intermediate and ultimate].)
(2) Closed but subject to fixed, known exceptions: "If A is, B ought to be, unless x, y, or z exists." [(2) & (1) are logically equivalent]
(3) Open-ended defeasible normative conditionals:- "If A is, B ought to be, unless x, y, or z exists or there is other good reason to defeat the normal legal attribution of the legally defined consequence to the legally defined conditions".
I favour three as my conception of the form of the legal proposition. Orwell's rule of style seem to fit that structure. No lesser an authority than Professor Smith seems to agree. Turning to pp 3- 6 of Justification and Excuse in the Criminal Law, Smith's profoundly important point is that the code he favours would provide definitions of offences but leave in place a power in the courts "...to determine the existence, extent or application of any rule of the common law" which justifies or excuses the doing of an otherwise criminal act. Let me trace his argument. First, crimes have definitions. However a persons whose conduct, including circumstances and consequences, fits perfectly the definition of an offence is not necessarily guilty of that offence because the criminal law also provides defences. [see, further Tur, "Synthesis ...", pp. 219-222 re Turner and Morgan; definition/defence (i.e. Part 5)]. As it happens, even in 1999, the defences which can be raised in answer to a criminal charge are primarily a matter of common law. The question, then, is whether a criminal code should codify only the definitions of crimes or that and the definition of defences.
Professor Smith draws it to our attention that the "...great judge, Stephen J., the author of the draft Criminal Code of 1879, was firmly of the opinion that, while the power of the judges to create new crimes should certainly be taken away, it would br wrong to enact an exclusive definition of circumstances if justification or excuse. To provide that in no other circumstances than those expressly stated should there be a defence, in his opinion "... would be to run a risk, the extent of which it is difficult to estimate, of producing a conflict between the Code and the moral feelings of the public. Such a conflict is upon all possible grounds to be avoided. It would if it occurred, do more to discredit codification than anything which could possibly happen and it might cause serious evils of another kind. Cases sometimes occur in which public opinion is at once violently excited and greatly divided, so that conduct is regarded as criminal or praiseworthy according to the sympathies of excited partisans. If the Code provided that nothing should amount to an excuse or justification that was not within the express words of the Code, it would, in such a case, be vain to allege that the conduct of the accused person was morally justifiable; that, but for the Code, it would have been legally justifiable; that every legal analogy was in its favour; and that the omission of an express provision about it was probably an oversight. I think such a result would be eminently unsatisfactory".
Professor Smith states his agreement with the great judge by first observing that "However carefully offences are defined, situations will occur from time to time of which all, or almost all right-thinking people ... would say that it would be right to break the letter of the law". This is the familiar problem of rule-making; that rules are inevitably over and under-inclusive: that thee is, at least around the edges, an imperfect fit between analytical, legal definitions and intuitive, moral beliefs. In any event, Professor Smith seeks "... to illustrate the unwisdom ... of an exclusive statement of justification or excuse by reference to the law of abortion and the famous case of Bourne" 1 KB 687.
There, a surgeon of the greatest integrity and skill performed an operation of abortion on a 14 year old girl who was pregnant as a result of a vicious rape. He certainly deliberately broke the letter of the law, viz s.58 of the Offences Against the Person Act, 1861 but he was acquitted by a jury on a direction that it was a defence for the doctor if he acted in good faith to reserve the life of the mother, although at that time there was no provision of any such defence in the statute. One may also suggest that the jury was willing to take a perverse view of the facts in order to bring Dr Bourne within this apparent "defence" because, presumably, the jury thought the doctor morally blameless perhaps even praiseworthy.
Since then, as Professor Smith notes, parliament has passed the Abortion Act, 1967 which provides that a person is not guilty of an offence if he terminates a pregnancy in accordance with terms set out in section 1 of the Act. Section 5(2) provides: "For the purposes of the law relating to abortion, anything done with intent to procure the miscarriage of a woman is unlawfully done unless authorised by section 1 of this Act". Professor Smith observes that "this is evidently intended to abolish any such common law defence as was applied in Bourne" and he invites us to consider the following contrived hypothetical: "... suppose that a fully qualified doctor who is not a registered medical practitioner and so cannot satisfy the conditions of the 1967 Act, finds that the immediate termination of a pregnancy is necessary in order to save the life of a mother who is in a remote place and beyond the help of any registered practitioner. He is in a position to perform the operation safely".
Professor Smith then asks the outraged question: "Is it really the law that he must let the woman die, when he could save her by terminating the pregnancy?" He takes the answer to this question, mandated by section 5(2), to be "Yes" and on that basis he concludes that here "... we have an instance of the dreaded conflict". On the basis of this persuasive, even compelling argument, "the new draft Criminal Code which, it is hoped, will, in due course provide definitions of all offences known to the law, would leave in existence any power the courts now have "...to determine the existence, extent or application of any rule of the common law" which justifies or excuses the doing of an otherwise criminal act. So, "under the Code common law offences would disappear but common law defences, to this extent, would be retained. It seems to me that of the three forms of the legal proposition already identifies, the third is most apt to avoid the "dreaded conflict" between the moral sentiments of the people and the provision of the Code. Rather grandly, I call this third form "open-ended defeasible normative conditionals" but whether that or some other terminology is adopted, the important point is that both Stephen, and Smith advocate, and I agree, that any (morally) acceptable Criminal Code would not seek exclusively and exhaustively to define circumstances of justification or excuse, that is, circumstances which defeat the normal legal attribution of legal consequences to the legally defined fact patterns.
However if the moral sentiment of the public is a source then the code is not exhaustive and judges will have a creative role in that they must marry the provisions of the code and the (changing) moral sentiments of the public . Such a code is not one that seeks to abolish history; rather it is a code that consolidates past experience and seeks to tap into the historic values of a community, more Germanic in nature than French as Merryman pp 28-33 explains: "It will be recalled that Justinian, when he promulgated the Corpus Juris Civis, sought to abolish all prior law ... Similarly, the French, when they codified their law, repealed all prior law in areas covered by the code ... Justinian and the French sought ro abolish all prior law for different but analogous reasons: Justinian sought to re-establish the purer law of an earlier time, the French to establish an entirely new legal order. In both cases the aims were essentially utopian ... The ideology of the French codification accurately reflects the ideology of the French revolution ..".