Hostname: page-component-78c5997874-m6dg7 Total loading time: 0 Render date: 2024-11-10T08:25:57.424Z Has data issue: false hasContentIssue false
  • English
  • Français

Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45

Published online by Cambridge University Press:  28 October 2011

Lindsay Farmer
Get access Rights & Permissions [Opens in a new window]

Extract

Sir Henry Maine, the eminent Victorian jurist, once remarked, in frustration at being unable to secure his desired reforms of the Indian criminal law, that no one cared about the penal code except theorists and habitual criminals. This has been the recurrent lament of the English criminal lawyer. Repeated initiatives in the field of codification over the last 150 years have enjoyed little popular support or understanding, and as the most recent project stumbles forward into its fourth decade, an air of fatalism surrounds the entire question of the code. There are calls for a new political initiative to revive the project, and there have been more modest appeals for a reexamination of the principles of existing penal legislation, though neither seems likely to provoke much response. Yet, for all of the recent discussion of codes and codification, the question of the significance of codification to the modern law remains something of an enigma.

Type
Forum: Codifying Crime, Finding Government
Information
Law and History Review , Volume 18 , Issue 2 , Summer 2000 , pp. 397 - 426
Copyright
Copyright © the American Society for Legal History, Inc. 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Dennis, Ian “The Critical Condition of Criminal Law,” Current Legal Problems (1997): 213–49CrossRefGoogle Scholar; Ashworth, Andrew “Towards a Theory of Criminal Legislation,” Criminal Law Forum 1 (1989): 41–63.CrossRefGoogle Scholar

2. The term was coined by Andrew Amos, professor of law at University College, London, and a former law commissioner, to describe the failure of the English legislator to grasp the nettle of codification. Ruins of Time, exemplified in Sir Matthew Hale's Pleas of the Crown (London: Stevens and Norton, 1859), xvii.

3. Goodrich, Peter, Reading the Law: A Critical Introduction to Legal Method and Technique (Oxford: Blackwell, 1986), 24Google Scholar, for example, defines codification in terms of rupture or break from the past, something that is thereby completely antithetical to a common law tradition founded on the idea of continuity.

4. Shapiro, Barbara, “Codification of the Laws in Seventeenth-Century England,” Wisconsin Law Review 1974: 428–65 at 428–31.Google Scholar

5. Weber, Max, Economy and Society (Berkeley: University of California Press, 1978), 839–59.Google Scholar

6. Murphy, W. T., The Oldest Social Science? Configurations of Law and Modernity (Oxford: Oxford University Press, 1997), chap. 2.Google Scholar

7. For a discussion of this, see Lascoumes, Pierre, Lenoel, Pierre, and Poncela, Pierrette, Au nom de l'ordre. Une histoire politique du code pénal (Paris: Hachette, 1989).Google Scholar

8. Thomas, D. A., “Form and Function in the Criminal Law,” in Reshaping the Criminal Law, ed. Glazebrook, P. R. (London: Stevens and Sons, 1978), 23Google Scholar, praises their “functional analysis” and points to its possible contemporary significance. Rupert Cross, “The Reports of the Criminal Law Commissioners (1833–-9) and the Abortive Bills of 1853,” in Reshaping the Criminal Law, 20, warns of the perils to the modern lawyer of neglecting their work.

9. By narrowing the focus of legal culpability and restricting the role of the jury. See Norrie, A. W, Crime, Reason and History: A Critical introduction to Criminal Law (London: Weidenfeld and Nicolson, 1993), 78–80Google Scholar and chap. 2. Horder, Jeremy, “Two Histories and Four Hidden Principles of Mens Rea,” Law Quarterly Review 113 (1997): 95–119Google Scholar at 109, makes a similar point, as does Hostettler, John, The Politics of Criminal Law Reform in the Nineteenth Century (Chichester: Barry Rose, 1992), chap. 7.Google ScholarWiener, Martin, Reconstructing the Criminal: Culture, Law and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990), 63–64Google Scholar, cautions against this interpretation.

10. It follows from this that rather than treating the Reports in a strictly chronological order, I am claiming that there is a basic consistency in their argument that means that they can be cited more or less interchangeably.

11. See An Introduction to the Principles and Morals of Legislation (London: Athlone Press, 1970) and Of Laws in General (London: Athlone Press, 1970). The extent of Bentham's direct influence is difficult to establish here. Of Laws in General, though written in 1782, was not published in any form until 1945, and there is no direct evidence that any of the commissioners had read it, though there were strong links with the Bentham circle.

12. Compare Allen, C. J. W., The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997)Google Scholar, which seeks to establish the precise extent of Bentham's influence on the nineteenth-century law of evidence.

13. Letter of Commission. Parliamentary Papers [hereinafter PP].1834.XXVI.117.

14. The original members were Andrew Amos, Henry Bellenden Ker, Thomas Starkie, William Wightman, and John Austin. Austin resigned after the production of the Second Report and was replaced by David Jardine. On the background and membership of the commission, see Radzinowicz, Leon and Hood, Roger, A History of English Criminal Law and Its Administration, vol. 5, The Emergence of Penal Policy in Victorian and Edwardian England (London: Stevens and Sons, 1985), chap. 22Google Scholar; Lobban, Michael, The Common Law and English Jurisprudence, 1760–1850 (Oxford: Clarendon Press, 1991), chap. 7Google Scholar; Cross, “Reports.” Hostettler, The Politics of Criminal Law Reform, reviews their work in the context of nineteenth-century law reform.

15. First Report PP. 1834.XXVI.117 (On common law of theft); Second Report PP. 1836.XXXVI.183 (On prisoner's counsel and the death penalty); Third Report PP. 1837.XXXI. 1 (On trial of juveniles); Fourth Report PP. 1839.XIX.235 (On crimes against person and property); Fifth Report PP. 1840.XXI. 1 (On crimes against the public peace); Sixth Report PP. 1841 Session 1.X.1 (On treason, religion, and public revenue); Seventh Report PP. 1843.XIX.1 (Digest of the criminal law); Eighth Report PP. 1845.XIV.161 (Digest of criminal procedure).

16. Leading eventually to Prisoner's Counsel Act, 6 & 7 Wm. 4, c. 114 (1836). For a review of this report and the background to this issue, see Beattie, J. M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67.CrossRefGoogle Scholar See also now Cairns, D. J. A., Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998), chap. 4.Google Scholar

17. Radzinowicz and Hood, Emergence of Penal Policy, chap. 22, is the best account of the fate of the commissioners' work, though concentrating mainly on their proposals for sentencing reform. See also Cross, “Reports,” especially 8–13; Manchester, A. H., “Simplifying the Sources of the Law: An Essay in Law Reform,” Anglo-American Law Review (1973): 395–413.Google Scholar

18. Lord Chancellor's Letter to the Judges etc. PP. 1854.LIII.389. See Greaves, C. S., The Criminal Law Consolidation and Amendment Acts of 24 & 25 Vict., 2d ed. (London: V & R Stevens, Sons & Haynes, 1862)Google Scholar for a contemporary account, written by the drafter of these statutes, of the political opposition to codification.

19. Greaves, Criminal Law Consolidation and Amendment Acts, vii. 24 & 25 Viet., cc. 94–100, covering aiders and abettors, larceny, malicious injuries to property, forgery and offenses against the coin, and offenses against the person.

20. Cross “Reports,” 5, describes it as “the largest and most abortive codification enterprise yet seen in this country,” while for Radzinowicz and Hood, Emergence of Penal Policy, 737, it was a “drawn out and fruitless movement.” See also Dennis, “Critical Condition,” 213–14.

21. See, in particular, Lieberman, David, “Introduction,” The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar

22. On discontent with common law procedure, see Lobban, Common Law and English Jurisprudence, chap. 7; Wiener, Reconstructing the Criminal, chap. 2, discusses the intellectual and social context of law reform.

23. There is an extensive literature on this point. The best statement is still Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975), ed. Hay, Douglas et al., 17–63.Google ScholarBeattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986)Google Scholar is a substantial and important review of the use of the criminal law in the eighteenth century.

24. See, e.g., McGowen, Randall, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England,” Buffalo Law Review 32 (1983): 89–126Google Scholar, on the centrality of law reform and changing conceptions of the criminal trial. Radzinowicz, Leon, A History of English Criminal Law and Its Administration from 1750, vol. 1, The Road to Reform (London: Stevens and Sons, 1948)Google Scholar presents a magnificent and exhaustive summary of the contemporary debates. Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994)Google Scholar, provides a valuable corrective to the narrative of increasing humanitarianism.

25. Blackstone, William, Commentaries on the Law of England (Oxford: Clarendon Press, 1765; reprint, Chicago: University of Chicago Press, 1966), 4:1–5, 237–40.Google Scholar

26. These involved moving greater numbers of offenses into the jurisdiction of the Quarter and Petty Sessions and providing financial assistance to private prosecutors. See Radzinowicz, The Road to Reform, 573. See also Greaves, Criminal Law Consolidation and Amendment Acts, v–vii.

27. 7 & 8 Geo. 4, c. 29 (on larceny and allied offenses); 7 & 8 Geo. 4, c. 30 (on malicious injuries to property); 9 Geo. 4, c. 31 (on offenses against the person); 11 Geo. 4 and 1 Will. 4, c. 66 (on forgery). Radzinowicz, The Road to Reform, assesses their value in negative terms: “If the value of these Acts is measured by what they replaced, they certainly constituted a very material improvement.” Gatrell, Hanging Tree, chap. 21, is damning in his assessment of Peel's status as a reformer.

28. 2 & 3 Will. 4, c. 34 (for offenses against the coin); 2 & 3 Will. 4, c. 62 (restricting capital punishment for larceny); 2 & 3 Will. 4, c. 123 (for forgery); 3 & 4 Will. 4, c. 44 (further restrictions for larceny and capital offenses).

29. PP. 1824.IV.39; PP. 1824.IV.349 (considering proposals drafted by A. Hammond).

30. This uncertainty has led Lobban, Common Law and English Jurisprudence, chap. 7, 196, and 202 following, to argue that since the commissioners did not attempt to construct a code composed of completely new laws, this was not a proper attempt at codification. It should also be noted that the term “code” was used in a much looser sense as a collective term referring to any body of laws. See, e.g., the references in Hume, L. J., Bentham and Bureaucracy (Cambridge: Cambridge University Press, 1981), 38.CrossRefGoogle Scholar

31. See, e.g., First Report, 25 and 34–35. Their commission was clarified in a letter from Lord Melbourne dated 8 July 1834, quoted in Second Report, 1. See also Fourth Report, v.

32. Seventh Report, 1.

33. Fourth Report, viii. See also Fifth Report, 65–68, on forgery; Seventh Report, 2, complaining of the difficulty of digesting much of the statute law since there were no identifiable general principles. Compare Greaves, “Introduction,” Criminal Law Consolidation and Amendment Acts, identifying the 1861 Acts with the process of consolidation initiated by Peel's Acts, where minor amendments could be made.

34. Fourth Report, v–vi. See also Seventh Report, 10. This point was anticipated in a review of the first two reports in the Edinburgh Review 65 (1837) cxxxii: 214, which pointed out that the aim was not the codification of the law: “The object of the Criminal Law Commission has frequently been misunderstood.”

35. Compare Amos, “Preface,” Ruins of Time, identifying the work of the commissioners as codification rather than consolidation.

36. Lieberman, Province of Legislation, “Introduction” and chap. 9; see also Lobban, Common Law and English Jurisprudence.

37. See Lieberman, Province of Legislation, 184.

38. Compare Fourth Report, viii, arguing that difficulties “of a very embarassing nature” were said to arise in the law of England due to the confusion and inapplicability of the common law, often exacerbated by the interventions of the legislature – although Peel's reforms were expressly excluded from censure.

39. Compare Bentham's view of codification in Of Laws in General, chap. 18. This is discussed at length in Postema, Gerald J., Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), especially chap. 12.Google Scholar

40. Seventh Report, 9.

41. Burns, J. H., The Fabric of Felicity: The Legislator and the Human Condition (London: U.C.L., 1967), 15.Google Scholar Hume, Bentham and Bureaucracy, chap. 2, discusses the origins of the idea of the sovereignty of the legislator. The commissioners (Seventh Report, 6–8) discuss the role of the legislator: the same general principles are common to all systems of criminal law, and hence their attention to comparison with other codes, but their particular expression is a matter for the discretion of the legislator.

42. See Lieberman, Province of Legislation, 209–15, arguing that the foundations of a legislative science based on moral and social theory were laid by Eden and Romilly under the influence of Beccaria, but that the early proposals to reform the criminal law did not follow through on this. Radzinowicz and Hood, Emergence of Penal Policy, chap. 22, also point to the influence of Beccaria, but largely in relation to sentencing.

43. See, generally, Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1981)Google Scholar; Lobban, Common Law and English Jurisprudence, chaps. 1–3.

44. Compare Hadden, Tom, “Contract, Tort and Crime: The Forms of Legal Thought,” Law Quarterly Review 87 (1971): 240–60Google Scholar, who argues that the common law of crime retains its dependence on the forms of action.

45. Seventh Report, 1.

46. Theft had to be from the possession of the owner and the courts had extended the idea of possession to cover a variety of situations where the owner did not have actual possession of the property. First Report, 7–9 and 14–25. The best modern discussions of this are to be found in Hall, Jerome, Theft, Law, and Society, 2d ed. (Indianapolis: Bobbs-Merrill, 1952)Google Scholar, chaps, l–4, and Fletcher, George P., Rethinking Criminal Law (Boston: Little, Brown. 1978), chaps. 1–3.Google Scholar

47. Compare Codification of the Criminal Law. A Report to the Law Commission (Law Comm. No. 143), (London: HMSO, 1985), chap. 1. In establishing the aims of accessibility and comprehensibility the English codifiers were broadly following the American Law Institute's Model Penal Code. See also A Criminal Code for England and Wales, vol. 1, Report and Draft Criminal Code Bill (Law Comm. No. 177), (London: HMSO, 1989), part 2. See also Ashworth, “Towards a Theory,” on representative labeling and procedural fairness.

48. See, e.g., First Report, 25–28. See also R. M. Jackson, “The Incidence of Jury Trial During the Past Century,” Modern Law Review 1 (1937): 132–44; Vogler, Richard, Reading the Riot Act: The Magistracy, the Police and the Army in Civil Disorder (Milton Keynes [England]: Open University Press, 1991)Google Scholar; Landau, Norma, Justices of the Peace, 1679–1760 (Berkeley: University of California Press, 1984).Google Scholar

49. Seventh Report, 92.

50. Ibid., 7. See also Fifth Report, 3: “To enable the great mass of society to obey the law, detailed practical rules are absolutely essential.”

51. Seventh Report, 5. It was expressly stated (First Report, 25) that, while uncertainty in language or flexibility in definition might be acceptable in civil rights, this could not be the case in the criminal branch of the law. An incidental point was that the criminal law was seen as being less complex than the civil law and more susceptible to definition.

52. See, e.g., Sixth Report, 12–13, on the constructive extensions to the crime of treason. Note also that First Report, 10, recommends substitution of the term “theft” for that of “larceny” as being “better suited to popular comprehension.” See also Fourth Report, lvii, on simplifying the language of theft so as to include offenders who might otherwise have escaped.

53. Fourth Report, xii. It is interesting to note that they eschewed the use of illustrative cases or examples such as had been adopted by Macaulay in the Indian Penal Code published in 1837. See Fourth Report, xvi. Macaulay's Code is discussed by Sanford Radish, H., “Codifiers of the Criminal Law,” Blame and Punishment: Essays in the Criminal Law (New York: Macmillan, 1987), 205–40Google Scholar at pages 211–22.

54. See, generally, Seventh Report, 92–111, on punishment. See also Second Report on capital punishment. The best discussion of this is in Radzinowicz and Hood, Emergence of Penal Policy, chap. 22.

55. Once again it is the law of theft that is singled out as requiring reform. Seventh Report, 97–100. On the impact of graduated punishment on the criminal law, see especially Beattie, Crime and the Courts.

56. Eighth Report, 14. See also at 9: “[T]he requiring of a formal degree of precision which may be wholly disregarded, cannot but be looked upon as a matter of vain affectation, unworthy of the dignity of the law.” See also Fourth Report, liii, on technicalities in charging the crime of theft.

57. See, generally, Eighth Report, 5–25, especially 12–16.

58. See, for example, Fourth Report, liv, arguing that the distinction between theft and embezzlement could be treated as one of fact and not law. Compare Twining, William, Bentham and Wigmore: Theories of Evidence (London: Arnold, 1985), chap. 2, especially 66–88.Google Scholar

59. See Beattie, “Scales of Justice,” and Cairns, Advocacy and the Making of the Adversarial Criminal Trial, on the debate over prisoner's counsel and the entry of lawyers into the trial. See also Second Report on defense counsel. The more general transformation of the ideology of justice is discussed in McGowen, “The Image of Justice.”

60. The formalities were directive, with the aim of informing the accused, rather than being formal statements of rights. See, e.g., Eighth Report Digest, chap. 2, sect. 2. In Second Report, 18, it is explicitly stated that it was hoped that the product of greater certainty would be that more prisoners would be convicted.

61. Fourth Report, Prefatory Remarks on Homicide, xix–xxx, and Seventh Report, 17–30. See also Second Report, 36. See the discussion of changes in the law of homicide in Farmer, Lindsay, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge: Cambridge University Press, 1997), chap. 5.Google Scholar

62. Seventh Report, 22 and footnote.

63. Ibid., 22 (emphasis in original).

64. And to which end they adopted an inclusive definition of intention: not only those who directly intended to inflict an injury, but also those who wilfully and knowingly incurred the hazard of causing it. See Seventh Report, 23. See Wiener, Reconstructing the Criminal, 63–64.

65. Fifth Report, 2, citing Beccaria.

66. Second Report, 19.

67. Seventh Report, 6. See Lobban, Common Law and English Jurisprudence, chap. 5, on Bentham and the deductive code; see also Hume, Bentham and Bureaucracy, 72, on the code being greater than the sum of its parts.

68. See Seventh Report, 8–9, for an example of the awareness of the whole system. This was founded on Beccaria and Bentham. The debt to Beccaria is acknowledged in the general introductory remarks to Fourth Report and also in Fifth Report, 2. The debt to Bentham is more implicit; see below. On Bentham and classification, see Lobban, Common Law and English Jurisprudence, chap. 6. See also Hart, H. L. A., Essays on Bentham: Jurisprudence and Political Theory (Oxford; Clarendon Press, 1982).CrossRefGoogle Scholar

69. Seventh Report, 8.

70. First Report, 28.

71. See the explanation of their mode of proceeding in Fifth Report, 1–3.

72. See, e.g., Prefatory Remarks on Praemunire (Seventh Report, 37–39) concluding that there was nothing other than the penalty and a special mode of prosecution holding the various offenses together and that those offenses that were not obsolete should therefore be redistributed among the divisions of the Digest to which they properly belonged according to their nature. See also Prefatory Remarks on Treason and Offences against the State (Sixth Report, 2–20).

73. Fourth Report, xlviii–lvii.

74. For a summary, see ibid., lix–lx (wrongful removal of property; property obtained by some specific false pretense; wrongful obtaining by fraud; wrongful obtaining by extortion; and embezzlement or abuse of confidence).

75. There are some groupings of offenses that appear strange to our eyes. Burglary, for example, was discussed in the Fifth Report together with offenses against executive power and in the finished Digest formed, together with the offense of arson, a chapter of offenses against the habitation.

76. Seventh Report, 113–283.

77. Ibid., 15.

78. Ibid., 6. This is similar to Bentham's critique of legal fictions discussed in Hart, Essays on Bentham, 42–44.

79. Fourth Report, xiii. See also First Report, 8.

80. Seventh Report, 16; see also Fourth Report, x–xii; First Report, 31–32; Second Report, 2–6, on illogicality of allowing defense counsel in the trial of treasons and misdemeanors, but not felonies.

81. Seventh Report, 15–17.

82. Second Report, 223; Fourth Report, xvii; Seventh Report, 280–82.

83. Radzinowicz and Hood, Emergence of Penal Policy, 728–33 at 730.

84. This discussion appears in the course of the two general discussionsof the scope of the Digest: Fourth Report, v–xviii; Seventh Report, 1–11. On limits in criminal law, see Farmer, Criminal Law, Tradition and Legal Order, chap. 1.

85. Fourth Report, vi.

86. Seventh Report, 11.

87. Fourth Report, xiii.

88. Seventh Report, 7. See also 94: “The greatest inconvenience and annoyance would result from confounding civil with criminal liability.”

89. Commentaries, 3:2, and 4: chap. I.

90. It should be noted that although Bentham uses the terms adjectival and substantive in a different way from the commissioners, his more general distinction, comminative/circum-stantiative, corresponds directly to this usage. See below.

91. See Bentham, “Author's Preface,” Principles and Morals, 1–10.

92. “Last, The most intricate distinction of all, and that which comes most frequently on the carpet, is that which is made between the civil branch of jurisdiction and the penal, which latter is wont, in certain circumstances, to receive the name of criminal” (Bentham, Principles and Morals, chap. 17, para. 29). This is discussed in Postema, Bentham, chap. 5; Long, Douglas G., Bentham on Liberty (Toronto: University of Toronto Press, 1977)Google Scholar, chap. 9; Lobban, Common Law and English Jurisprudence, chap. 5; Lieberman, Province of Legislation, part 4.

93. See Bentham, Of Laws in General, chaps. 16–18, and App. A. See also Hart, Essays on Bentham, chap. 5.

94. Bentham, Principles and Morals, chap. 17, para. 29, fn. See also “Preface,” 8.

95. “It is probably this methodological point … that sets his positive legal theory off from its Common Law and natural law rivals” (Postema, Bentham, 428 and chap. 5).

96. Bentham, Of Laws in General, chap. 16. See especially Postema, Bentham, chap. 5.

97. Note that Bentham uses these same terms in a slightly different sense in Of Laws in General, chap. 11, para. 16. He argues that all procedural laws are adjective or enclitic, depending on the existence of other laws, while substantive laws can be self-subsisting. Thus far it would seem to be similar to the position advanced by the commissioners; however, in one of his examples he suggests that the law of murder might be self-subsisting without the existence of further adjectival laws. The distinction drawn by Bentham is more like that between laws for citizens and laws for officials, otherwise termed principal and subsidiary laws. Ibid., 139.

98. Though the term penal is used in a much wider sense than criminal to include all legal sanctions. See, for example, the discussion in Of Laws in General, 134–36, and chap. 17. Compare Hobbes, Thomas, Leviathan (Harmondsworth: Penguin, 1981), 330–31Google Scholar, on distributive and penal laws. See Hume, Bentham and Bureaucracy, chap. 2, for a discussion of the influence of Hobbes on Bentham.

99. Bentham, Of Laws in General, 197.

100. See ibid., chap. 17, paras. 10–20, discussing the distribution of penal and civil in relation to person, property, etc., including “offences against the positive increase of national felicity”! This corresponds to the lengthier discussion of the division of offenses in Bentham, Principles and Morals, chap. 16. See also Seventh Report, 9–10.

101. Bentham, Of Laws in General, chap. 17.

102. See ibid., chap. 11, para. 18: “It should be remembered once for all, that there is no judging of the logical division of a law from the grammatical divisions of the discourse in which it happens to be contained.” The civil code would always be the larger because of the need to establish all the general rights and duties and circumstances. Compare Henry Maine, Ancient Law (London: J. M. Dent, 1917), 216: “On the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. The proportion of criminal to civil law is exceedingly different…. The more archaic the code, the fuller and minuter is its penal legislation.”

103. None of which were entirely satisfactory. See Bentham, Of Laws in General, 211, and chap. 17, sec. 1, para. 8, and 10–15, sec. 2, para. 3 (in terms of the degree of punishment). See also ibid., chap. 18 (in terms of whether the right violated is consummate or inconsummate). It follows, of course, that Bentham did not require a code to be a production of entirely new rules.

104. For, as was remarked in a footnote, “Labour is sweetened by utility.”

105. Bentham, Of Laws in General, 234.

106. See ibid., 244. The terminology of empires runs through the chapter, e.g., ibid., 240, where he describes how bad legislation has allowed judicial power to spring up “in the very cradle of the legislative empire.” See also Lieberman, “Conclusion,” Province of Legislation.

107. See Seventh Report, 11.

108. “[p]enal laws against offences consisting of the violation of the right to property are much more simple than those which define and regulate the civil right” (Fourth Report, xlviii). It was also pointed out in the Seventh Report, 9, that the structure of criminal trial and procedure had inhibited the development of a criminal jurisprudence.

109. “Cattle,” for example, were to continue to be defined as including any horse, mule, ass, sheep, pig, or goat (Fourth Report, lix).

110. See especially Bentham, Principles and Morals, chap. 16, on the division of offenses. Postema, Bentham, 174, suggests that Bentham viewed property as extending to all rights secured to individuals. Rights were thus property. See also Hume, Bentham and Bureaucracy, 79–86, arguing that Bentham's views about private offenses were essentially conservative and related to contemporary ideas about police.

111. Bentham, Of Laws in General, 246.

112. On the panopticon, see now Bentham, Jeremy, The Panopticon Writings, ed. Bozovic, Miran (London: Verso, 1995)Google Scholar, especially Bentham's preface and the introduction by Bozovic. On panopticism and modernity, see Foucault, Michel, Discipline and Punish: The Birth of the Prison (Harmondsworth: Penguin, 1977).Google Scholar

113. Bentham, Panopticon Writings, 31. See also Miller, J.-A., “Jeremy Bentham's Panoptic Device,” October 41 (1987): 3–29 at 14–16.CrossRefGoogle Scholar

114. See, e.g., Kadish, Blame and Punishment, 205–40; Hume, Bentham and Bureaucracy, chap. 2; Postema, Bentham, 430–34.

115. This theme has most famously been addressed in Foucault, Discipline and Punish. See also Wiener, Reconstructing the Criminal.

116. See Foucault, Michel, “The Discourse on Language” (“L'Ordre du Discours”), in his The Archaeology of Knowledge (New York: Barnes and Noble, 1993).Google Scholar

117. Lieberman, Province of Legislation, chap. 13 and “Conclusion.

118. See, e.g., Seventh Report, 92–93.

119. This suggests an obvious parallel with the claim in autopoietic theory that the law is normatively closed but cognitively open. See Teubner, Gunther, “How the Law Thinks: Toward a Constructivist Epistemology of Law,” Law and Society Review 23 (1989): 727–57.CrossRefGoogle Scholar

120. Compare Murphy, W. T., The Oldest Social Science? 44–46, linking codification to German idealism.Google Scholar