Book Review

S. F. C. Milsom once famously remarked that nothing worthwhile was created in the development of the English criminal law. Although few historians would now assent to such a bald assertion, there remains considerable disagreement over the precise nature of the achievement, particularly with respect to the so-called age of reform, the period following the dismantling of the "Bloody Code" in the mid-nineteenth century. Recent years have seen an explosion of interest in this period of the history of the English criminal law, yet very little of that interest has been focused on the substantive law—as opposed to patterns of enforcement, prosecution, and execution—unless to view it as an ideological bulwark for the oppression and exploitation of the poor. In this view, the achievements of the law were at best negative, achieved in spite, rather than because, of legal principle, and this has tended to deflect attention from the study of important legal developments in this period. K. J. M. Smith's book on the development of English criminal jurisprudence between 1800 and 1957 is thus to be welcomed for the light that it throws on this previously ignored area and for its attempt to impose some sort of pattern on the morass of case law and legal writing.	1
An important aim of the book, as the subtitle suggests, is to trace a progress in the development of English criminal jurisprudence through evolving concepts of fault, moral agency, and attempt. The story that is told, though it is cautiously stated, is one of a gradual and piecemeal movement from conceptual disorder to order as, with the reform of bench and academy, subjective concepts of fault gradually take hold—with leading roles being given to John Austin and Glanville Williams. Through a careful analysis of fault concepts Smith suggests that rigorous and principled thought about the nature of culpability replaced the particular and pragmatic as the basis of criminal jurisprudence. This being so, however, it is curious that on completion of the book the reader should be left with the sense of a lack of achievement. Time and again it points to the absence of consensus among members of the judiciary, the conceptual carelessness of legislators and proto-legislators, the lack of rigor of the theorists on important issues of principle. At the risk of caricature, the main thesis might be more easily summarized as follows: the legislators achieved little that was worthy of note, the quality and application of the theorists varied widely, and judicial decisions were almost permanently confused, failing to adopt conceptual innovations even when they were available.	2
At one level it is clear that there is a tension running through the book between the degree of order of the subject matter and the authorial need or desire to impose some sort of order. The wealth of detail means that occasionally the broader sweep of development is obscured, while at the same time inhibiting the easy formulation of an overall pattern of development. The tension, in this sense, can be a proper tribute to the detailed nature of the research and the care taken by the author to avoid the easy answer—and there is a great deal that is of enormous value to the historian of the criminal law in this lengthy book. However, I think that the tension runs more deeply to the nature of the project itself. This is presented by Smith as "an analytical account of the intellectual and institutional forces promoting and driving core developments in English criminal jurisprudence from 1800 to 1957" (1). Yet in the elaboration of this statement, we are already encountering certain self-imposed limitations: institutional forces are to include only the judiciary, Parliament, and governmental reform bodies. Criminal jurisprudence is understood to include only "criminal fault, moral agency, and minimum criminal harm and action as manifested in attempt liability" (1). These limitations have important consequences for the project as a whole.	3
First, it gives a sense of a certain narrowness of conception. The portrayal of legal development as a matter of the interaction among these three areas gives the impression of development as solely internal to the law. Much has been written about the development of the police and penal institutions in the nineteenth century, and it is surely not fanciful to suggest that these must have had an enormous impact on criminal jurisprudence—though Smith declines an encounter with these "seductive dangers" (6). This reluctance to engage in theoretical or historical speculation (see 5–6) gives the book a crabbed and doctrinaire feel that unconsciously mimics the common lawyers that are the object of study. This is not to suggest that there is no speculation in the book at all. In the conclusion (361–69) Smith makes some valuable comments on the changing legal culture and the importance of the reform of criminal appeals, but these are not integrated into the general narrative. More to the point, there is little explicit discussion even of institutions such as criminal procedure and the trial that had a more direct relationship with the substantive law. Smith gestures toward this in recording, for example, that from the 1833 Criminal Law Commissioners onward there was an increasing conviction that it should be trial procedures and not presumptions that should determine a defendant's mental state (see, e.g., 132) and by tracing the gradual displacement of the presumption of intention of consequences in murder cases (288–92). That these are not considered in relation to the developing jurisprudence on the presumption of innocence or the changing role of the lawyer within the adversarial trial suggests that we have at best a partial account. However, the narrow definition of criminal jurisprudence adopted by Smith would seem to preclude broadening the study in this way.	4
It is without question a bold move to limit the study to the development of subjective liability, and one that reflects the concerns of lawyers in our own time, but it also gives the study a rather lopsided feel. A good example of this might be seen in the treatment of moral agency and defenses. Smith chides the courts and legal commentators for using the terms excuse and justification interchangeably, without working out a clear conceptual distinction (375). It might, however, be as pertinent to examine the origins of this distinction—and indeed why it was regarded as of little consequence among earlier theorists. There is detailed consideration of the concept of fault in criminal homicide, but this is without reflection on the status of the law of homicide in the criminal law as a whole and the way in which concepts of fault in homicide came to dominate general theories of criminal liability. There is no consideration of the jurisprudence of theft, though this was unquestionably of great practical and symbolic importance to the English criminal law throughout this period. The overall effect is to create the impression that things that are of great concern to lawyers now may not have been of any particular concern to lawyers in the 1850s—and, conversely, to lead the reader to question whether this type of reading is failing to pick up on matters that were of importance. The problem with such an approach is that it has about it a slightly whiggish tone, portraying development as the inevitable working out of inner tensions, moving inexorably toward the more complete realization of subjective fault concepts and the general part that we find in the criminal law today.	5
Overall, then, Smith has done much to illuminate the case law and commentary of the period, but the book falls short as an account of the development of modern criminal jurisprudence. The true nature of the achievement in this particular area remains hidden.	6
Lindsay Farmer University of Glasgow

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