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

LINDSAY FARMER

The words of Henry Bellenden Ker, Law Commissioner, quoted as the title of this response, were truer than he knew. 1 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.	1
In focusing on the first of these issues, Lobban raises a proper note of caution about the extent of Bentham's influence. Indeed, I am indebted to him for his careful reading of the correspondence between Ker and Brougham, for this further illuminates the commissioners' own understanding of their project. This reading points, in particular, to the central role played by Ker, as a moderate, non-Benthamite, law reformer, as well as drawing our attention to some of the internal tensions among the commissioners. However, while it is important to know about the individuals who made up the commission, we should be wary of reading the reports solely in terms of the views expressed by any single person. This focus on individuals can diminish the significance of the project by placing the commissioners within one of the favored narratives of codification that describes it as the product of individual initiative and thus both a stranger to the legal tradition and outwith the reform of state and government. That certain individuals holding certain views composed the final reports does not exhaust all that can be said about the Digest, particularly with respect to the underlying conceptions of the role of criminal law in the government of society.	2
This point can be illustrated by a consideration of the meaning of the term "codification." Lobban seems to suggest that there was already at this time a clear conceptual distinction between codifying and digesting the law. He argues that some of the commissioners, and Ker in particular, were opposed to the view of codification (in the sense of a new and complete statement of the law) supported by the more Benthamite members of the commission. Their understanding of codification, it is suggested, was based on Bentham's pannomion and was at odds with the more moderate aim of providing a complete digest of the law. That this distinction cannot be so strongly stated becomes clear if we examine the more overtly Benthamite Andrew Amos's discussion of this issue in his book Ruins of Time. 2 He argued that codification was of greater utility than consolidation in that it should both amalgamate common and statute law and make such amendments to the law as were necessary to secure method, consistency, and uniformity. This may be read as an orthodox statement of the Benthamite position. However, Amos also suggested that Jervis' Acts, 3 passed in 1848 and reforming pretrial procedure, were codification rather than consolidation since they embraced a good deal more than previous common or statute law: "they are, in fact, a Code upon an isolated branch of Criminal Law." 4 The interest of this lies less in whether or not his analysis is correct than in the fact that he used the term codification to describe initiatives as diverse as the Digest, on the one hand, and legislation partially reforming criminal procedure, on the other. At the very least this suggests that the meaning of the terms was less fixed at this time than Lobban would allow.	3
More importantly, it is not at all clear that Bentham considered that the pannomion should be either complete or final, a point that has been made abundantly clear by recent scholarship on Bentham's theory of legislation. 5 For Bentham the code should be compiled from existing laws and contain mechanisms for amendment and development of the law. This was not a de facto completeness, but a logical consequence of the law-making power being derived from the legislator. This is not so distant, in principle, from the form of the Digest compiled by the commissioners and points to the fact that a too ready reliance on the distinction between code and digest can lead to a failure to examine the actual content of the Digest. I do not wish to dwell on points that have already been made at greater length in my article, but we should note that the form of the law was being significantly and irrevocably altered by the abstraction of principles and rules from their origins in common law procedures. Notwithstanding any of these terminological differences, then, the proposed Digest amounted to a radical transformation in the criminal law. This is the issue that Dubber examines in his response.	4
In Dubber I am fortunate to have a reader who, in many respects, has grasped the implications of my argument better than I have myself. Considerations of space prevent a proper engagement with his argument here, but there are two important ways in which he both challenges and develops my argument. First, by focusing on the need to see the criminal law as an aspect of the history of the modern state, he reminds us of the importance of the question of legitimacy. Often dealt with by theorists as though this were a matter of penal theory or moral philosophy alone, he both restates it as an issue central to the criminal law and draws our attention to the diversity of ways in which legitimacy can, and has been, understood. Dubber is surely right to point to the assumption that the legitimacy of the law was settled as the clue to the "Englishness" of the commissioners. 6 However, this raises further important questions about how this was achieved in an era that saw the vast expansion of the use of the criminal law and the displacement of enforcement into the hands of diverse bodies of experts and specialists. Not least among these bodies were (and are) code commissions that both formulate and enforce legitimacy requirements and deflect attention from these through their technical and nonpolitical role (or through being led or dominated by one individual). The role of these bodies in the construction of legitimacy is something that must be studied in greater detail. Above all, though, we should ask what role was played by the key legitimating institution of trial by jury in this period. 7 The second point is related to this, for Dubber manages also to excavate from my argument an important observation about the addressees of legal norms. If criminal law is primarily conceived of as adjectival law, then it is law that is addressed to the enforcer rather than to the public at large (a distinction that is familiar to modern legal theory through Hart's appropriation and reformulation of it as the distinction between primary and secondary rules). That the distinction is resisted in contemporary criminal law with its concerns about clarity and comprehensibility, however, betrays a lack of awareness of its own historical roots, for it is this formal distinction that allows the transition from a loose body of thought about the laws of crime to criminal law. 8 In other words, if we are to begin to conceive of the criminal law as anything other than a body of abstract moral or philosophical norms, then this requires some reinstatement of the history of this distinction—something that is notably lacking in recent histories of the criminal law. 9	5
The commissioners' principle of codification has never yet been properly understood, though we are at last beginning to acknowledge this. It may be that Bellenden Ker himself failed to understand its radical nature as he sought to make the Digest more politically palatable. It is certainly the case that if we are to grasp this principle we must recover the political history of the English criminal law.	6
Notes       1. Henry Bellenden Ker in correspondence with Brougham, quoted by Michael Lobban, "How Benthamic Was the Criminal Law Commission?" Law and History Review 18 (2000): 428.
2. Preface, Ruins of Time, exemplified in Sir Matthew Hale's History of Pleas of the Crown (London: Stevens and Norton, 1856).
3. (1848) 11 & 12 Vict., 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 Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), part 3, and David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britian (Cambridge: Cambridge University Press, 1989).
6. Markus Dirk Dubber, "The Historical Analysis of Criminal Codes," Law and History Review 18 (2000): 436.
7. Cairns's recent work has shown that this period (1830-1850) was also when the modern adversarial jury trial took shape. See D. J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800-1865 (Oxford: Clarendon Press, 1998).
8. Compare Shaun McVeigh and Peter Rush, "Cutting Our Losses: Criminal Legal Doctrine," in Peter Rush, Shaun McVeigh, and Alison Young, eds., Criminal Legal Doctrine (Aldershot: Ashgate, 1997), 182-99, at 189.
9. See, e.g., K. J. M. Smith, Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957 (Oxford: Clarendon Press, 1998).

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