Codification and the Criminal Law Lecture 2

One reason for the attempt to repeal all prior law was statism, the glorification of the nation-state. Earlier law was not French but European, the jus commune, and that was offensive to the aspirations of French nationhood. Another reason was rampant rationalism. Only an exaggerated rationalism can explain the belief that history can be abolished by a repealing statute yet the assumption of the time was that by reasoning from basic principles, established by natural law thinkers, one could derive a legal system that would meet the needs of the new, revolutionary society. Although one cannot simply abolish the legal culture and thought-ways of a community the fiction was certainly maintained by many jurists in France for several decades after the enactment of the Code Napoleon, that is, the French Civil Code of 1804, that history was irrelevant to interpretation and application of the Code.

Consistent with its Utopian aspirations, one of the objectives of the French Revolution was to make lawyers unnecessary ... there was a desire for a legal system that was simple, non-technical, and straight forward - one in which the obscurities and technicalities, often blamed on the legal profession, could be avoided. One way to do this was to state the law clearly in a straight forward fashion so that the ordinary citizen could read the law and understand his rights and obligations without having to consult lawyers. The French civil code was envisaged as a kind of popular book that could be put on the shelf next to the family Bible in every household, as a handbook for citizens, rather like the "small paperback" that Canadian citizens can buy for C$25 which contains everything one needs to know about the substantive criminal law in Canada (referred to by Lord Bingham in 1998 Crim LR 969). Indeed some of the revolutionaries were so disillusioned with judicial law making disguised as interpretation that they sought - somewhat absurdly - to deny judges even the power to interpret legislation. But if the code was to be lawyer-proof and judge proof, it had to be a comprehensive and exhaustive source of all law. It had to be complete, clear and coherent. So the attempt was to construct a code with no gaps (to stop judges filling them) There could be no conflict in the provisions (to stop the judges exercising a creative choice). Nor could there be any ambiguities (for the same reason). So the radical separation of powers whereby the legislature only made law and the judiciary only applied law demands a comprehensive, clear and coherent code. Meanwhile the optimistic rationalism insisted that the task could be done and that leads to detailed provisions designed to reduce the role of the judge to merely selecting the applicable provisions and giving them their obvious meaning in the context of the individual case. As Montesquieu put it, on such assumptions, the judges are merely the "mouthpieces that speak the law"

So we have as the first of four models of codification the Justinianic, Benthamite, Napoleonic, French style, the radical, revolutionary, rationalist, non-technical code - addressed to the populace at large - and entirely new.

In contrast to this there is the German Civil Code of 1896 (effective in 1909) which was historically oriented, scientific and professional (discussed at some length by Professor Zimmermann in his Claredon Lectures earlier this term). Much of the responsibility for this difference rests with Karl Von Savigny, perhaps the single most famous thinker in the history of European codification. There was much interest in codification and the Napoleonic Code (1804) was much admired. There were advocates urging that Germany follow France's lead. Savigny prevented this by arguing his powerfully persuasive "Volksgeist thesis" namely that unless a code corresponded to the spirit of a people, it could not be successfully implemented. This in turn was closely linked to the "historical school in jurisprudence" whose main tenets include the notion that the law of a people was a historically determined product of that people's development and not something to be gleaned from the rationalistic principles of natural law and imposed from above.

Consequently a thorough study of existing German law and of its historical development was the necessary prelude to effective codification ...under Savigny's influence German scholars turned their attention to an intensive study of legal history. Savigny's idea was that by this study one would glean the historically derived principles that were an essential part of the law of a people. These principles, rather than the a priori rationalist principles of natural law would then be the basis for a code that grew out of its own culture. Codification was therefore an essentially empirical and scientific activity. In this way Savigny as has often been remarked, "delayed codification in Germany for a century (i.e. French Civil Code 1804; German Civil Code of 1896 effective 1909)

Finally, the Germans were convinced that it was neither possible nor desirable to rid the world of lawyers though Hitler, apparently had different ideas: "I shall not rest content until every German sees that it is a shameful thing to be a lawyer" [Adolf Hilter 1889 - 1945 in Kennbeth Redden, Modern Legal Glossary (1983)]The idea that law could be clearly and simply stated so that it could be understood and applied by everyone was expressly rejected. The German view was that lawyers would be needed, that they would engage in interpreting and applying the law, and accordingly that the code should be prepared to be responsive to the needs of those trained in the law. Thus the German Civil Code of 1896 is the opposite of revolutionary. It was not intended to abolish prior law and substitute a new legal system. The idea was to codify emergent historical principles gleaned from painstaking historical study of German law and culture. Here there are no a priori assumptions about man's nature and fundamental human rights; rather there is a scientific study of existing German law and its rational reconstruction in the form of a code, which is not conceived of nor intended to be a text book for the layman. Rather it is a tool to be used chiefly or solely by those trained in the profession of law.

So we have as the second of four models of codification the Von Savignyan, Historical, Germanic style, celebrating tradition and culture, and addressed to professional elite.

A third style of code is the English, consolidation style which is technical and legislative and which, essentially, gathers together in one consolidated statute legislation previously enacted in piecemeal fashion over many years. Such a "code", if code it is at all, does not purport to be an exhaustive and exclusive source of all law, nor is it founded either in rationalist or historical principles, and it is not aimed specifically at a universal audience

A fourth style is the American "Model Code", the restatement of an area of law which is advisory only and provides guidance which states may but need not adopt.

The obvious question is what style of code is appropriate to the Criminal Law of England and Wales? The rhetoric of the codification lobby is oftentimes suggestive of the radical model, but, as we have seen, one senior member of the codification lobby, Professor Sir John Smith is open to some amount of judicial rewriting by way of incorporating cultural values through the creation, where appropriate, of new defences or the extension of old ones. Bentham of course would have none of this culturally or historically based revisionism. If the moral sentiments of the people were inconsistent with his code that was because they were misinformed. "The people is my Caesar but I appeal to Caesar better informed". Bentham could contemplate a closed, exceptionless code because he had, he believed, access to the one right moral answer. Bentham was a Utilitarian. That is, he accepted the principle of the greatest happiness for the greatest number. In practical terms that requires a felicific calculation; and assessment of total happiness resulting from the one's acts. In principle one is to act in such a way as to maximise (human) happiness. Bentham had a literal cast of mind. He genuinely believed that the principle of utility was necessarily the basic principle of morality and that it was determinate in application. I disagree with both points but it suffices to address only the second of these two points. What I call the "tract of future time argument" shows that the principle of utility is indeterminate.

1 (a) French Revolution; "Bliss was it in that dawn to be alive and to be young was very heaven" [don't believe it. I've been young and I've been old: old is better!]

(b) Nuclear Power

2 Meat-eating

3 Environmental questions

Do my rule fetishist argument on act cf rule utilitarianism.

Then values generally: What values should inform the code ?

Bentham was a radical and exhaustive utilitarianism. That principle, he thought, would provide all the answers but, as we have seen, even that apparently scientific and rationalist principle is indeterminate and cannot eliminate judicial interpretation in the course of applying law in particular cases. So what values do inform our criminal law ? (1)Subjectivism (mind); (2) Objectivism (harmful consequences) (3) A Synthesis of Subjectivism and Objectivism ? [See, further Tur, "Synthesis ..." pp 213-214] Subjectivism is frequently presented as morally compelling, locking criminal liability into the favoured conceptual apparatus of consciousness, choice and control. Objectivism is frequently stigmatised as random and unfair, visiting liability for harmful consequences on those who did not choose nor could control outcomes that they did not contemplate.

In discussing the issue of what values should inform a criminal code, and especially the opposition of subjectivism and objectivism, I invoke the concept of "moral luck" and here I rely on Nagel's chapter on "Moral Luck" in his book Mortal Questions (1979) pp 24-38 and more directly upon my own article on "Criminal Law and Legal Theory" at pp 210-211: Nagel observes that " is intuitively plausible that people cannot be morally assessed for what is not their fault, or for what is due to factors beyond their control". Of course this makes sense in the case of insanity, automatism or involuntary movement but the range of factors over which one has no control is obviously wider than such clear instances of total lack of control. Nagel identifies four classes of situation in which the agent might plausibly be regarded as lacking control. These are -

constitutive luck - the kind of person one is; contemporary circumstantial luck - the kind of circumstances in which one is placed; antecedent circumstantial luck - the kind of circumstances which led up to the situation one faces; and consequential luck - the way things turn out.

These categories of luck threaten the very notion of moral responsibility in that if the precondition of control is consistently applied we would be disbarred from making the wide range of moral judgments that we find it entirely natural to make. Nagel offers several examples: "Whether we succeed or fail in what we try to do nearly always depends to some extent on factors beyond our control. This is true of murder, altruism, revolution the sacrifice of certain interests for the sake of others - almost any morally important act. What has been done, and what is morally judged, is partly determined by external factors. However jewel-like the good will may be in its own right, there is a morally significant difference between rescuing someone from a burning building and dropping him from a twelfth storey window while trying to rescue him. Similarly there is a morally significant difference between reckless driving and manslaughter. But whether a reckless driver hits a pedestrian depends upon the presence of the pedestrian at the point where he recklessly passes a red light."

Such examples lead on to Nagel's definition of moral luck: "Where a significant aspect of what someone does depends upon factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can he called moral luck. In such circumstances actual results influence judgments of responsibility and culpability even though the agent did not contemplate the result which occurred. The traditional response of moral philosophy has been to narrow down each act to its pure and innermost core, an act of pure will that, alone, is susceptible of moral assessment. This is how Kant, for example, dealt with morality. Nagel's profound point is that even where the agent is at the mercy of fate, and though it seems irrational upon reflection, our ordinary moral attitudes would be unrecognizable without attributing to the agent responsibility and culpability in a wide range of cases of moral luck. Although the Kantian, subjectivist approach is appealing to logic and the intellect, it appears to be lacking in social validity Nagel refers to Adam Smith whom he takes to he advocating, as a matter of reason, the restriction of moral judgment only to that which the agent has done in a narrow sense because to attribute responsibility for that beyond the agent's control seems irrational and is akin to strict liability. However, Nagel is well aware that this Smith himself had doubts as to the social validity of the subjective principle. Indeed, Adam Smith tried very hard to be a "good" subjectivist, advocating, as a matter of reason, the restriction of moral judgment only to that which the agent has done in the narrow sense of chosen and/or contemplated but as the following passage from The Theory of Moral Sentiments reveals, he succeeded imperfectly, if at all: "... how well soever we may seem to be persuaded of the truth of this equitable maxim, when we consider it after this manner, in abstract, yet when we come to particular cases, the actual consequences which happen to proceed from any action, have a very great effect upon out sentiments concerning its merit or demerit, and almost always either enhance or diminish our sense of both. Scarce in any one instance, perhaps, will out sentiments be found, after examination, to be entirely regulated by this rule, which we acknowledge ought entirely to regulate them". [A Theory of Moral Sentiments (1759) Part II section 3 Introduction para 5.]

I conclude that it can be argued that the elements of harmful consequences liability which are exhibited by the criminal law do not disqualify it on ethical grounds because conventional morality (as opposed to the critical morality of Kant or Bentham, for example) incorporates a notion of moral luck and indeed our ordinary moral attitudes would he unrecognizable without some such idea. Furthermore, I think that the categories of constitutive, circumstantial, and consequential moral luck contribute to and enrich out understanding of the subjectivist-objectivist debate in criminal law. The category of moral luck allows us to treat individuals as objects of moral judgment even where some elements of their conduct, circumstances, and consequences are beyond the individual's control even though that runs counter to the subjectivism prevailing in much of the criminal law literature and in reform proposals. So in our ordinary day-to-day lives we adopt a style of moral judgment quire different from that urged upon us by subjectivist theorists and that seems to me to be quite an important fact. Clearly the moral sentiments of the people may not coincide with the deliverances of subjectivist philosophy and if such a conflict is recognised, then it is difficult indeed to see how a code, based remorselessly on subjectivist principles could endure. Nor is it clear what point enacting such a code would serve if it is susceptible of judicial rewriting in response to the promptings of the moral sentiments of the people

Professor Smith recognises, in the crucial passages already cited in these lectures that the "dreaded conflict" between code and moral sentiments of the people is to be avoided but the consequence of that is to allow the code to be modified, indeed subverted, where it clashes with these sentiments. The limitation of the role of moral sentiment to defences may appear to leave much of the code intact and immune from such revision but that depends on the following central consideration: However, a technical legal argument that Smith's attractive proposal nonetheless supposes that definition and defence are clearly distinguishable. But they may not be. This is especially important re "consent". Do my Turner versus Morgan argument. Did the judges in Morgan (a) create a defence or (b) define or redefine an offence ?

I turn to assault and to Legislating the Criminal Code Law Commission Report No 218 which contains a Draft Criminal Law Bill (1993) which is a useful source of reform proposals. I will focus on Clause 6 relating to Assault but, first, a few words about the Law Commission itself may be helpful. The following is the Law Commission's own account of itself: "The Law Commission is the independent body set up by Parliament in 1965 (along with a similar Commission for Scotland) to keep the law of England and Wales under review and to recommend reform when it is needed. Our law is a combination of the common law - decisions of judges of the higher courts - and of statute law enacted or authorised by Parliament; sometimes those decisions and statutes may go back many centuries".

"Reform of the law is a task for Parliament and not for the judges who, in the course of deciding a particular case, are not usually able to consider the wider social and legal implications of a particular decision. But proposals for reform may well not be satisfactory unless they are preceded by research and by wide consultation with experts and with those who may be affected by the reforms. Our job is to carry out this research and consultation, and to modernise, improve and simplify the law by formulating proposals on a systematic basis for consideration by Parliament"

"There are five Commissioners all of whom work full-time at the Commission. The Chairman is a High Court judge. The other four Commissioners are experienced barristers, solicitors or teachers of law. They are appointed by the Lord Chancellor for up to five years, and their appointments can be extended. They are supported by a Secretary to the Commission and 15 other members of the Government Legal Service, four or five Parliamentary Counsel (who draft the Bills to amend and consolidate the law), and about 15 research assistants (usually recently qualified law graduates), as well as a librarian and other administrative staff."

"Our main work is the reform of the law, but we also work on consolidation of statutes and statute law revision" and under the 1965 Act, there is a requirement to keep "all the law" under review. At any one time the Commission will be engaged on between 20 and 30 projects of law reform, at different stages of completion. A typical project will begin with a study of the area of law in question, and an attempt to identify its defects. Foreign systems of law will be examined to see how they deal with similar problems. It will usually appear that a number of different solutions are possible, and a consultation paper will be issued setting out in detail the existing law and its defects, giving the arguments for and against the possible solutions, and inviting comments. The paper will be circulated widely to practising and academic lawyers, and other interested persons and bodies including the media. It will be available to the public at The Stationery Office and on order from other bookshops [and increasingly on the internet]"

"This process enables the Commissioners to draw, not just on their own experience, but also on that of others - lawyers, other professionals, interest groups, the public and especially those likely to be particularly affected by a change in the area of law In question. In the light of the comments we receive, and of our own knowledge of the law, we will decide on the solution

which seems to us best. We will prepare a report to the Lord Chancellor, giving our final recommendations with the reasons for them; and if, as is nearly always the case, we recommend a change in the law, we will append to our report a draft Bill to give effect to our recommendations. That Bill is ready to be introduced into Parliament. The report, like the consultation paper, will be available to the general public".

Codification: "In most countries whole areas of law are contained in a single code rather than, as in England, being divided between the common law, which is derived from decisions of judges over the centuries, and statute law enacted by Parliament. It has always been the Commission's objective that English law should similarly be governed by a series of statutory codes, to make the law more accessible to the citizen and easier for the courts and litigants to

understand and handle. For instance, in family law much of the Commission's work has resulted in the production of what is in effect a code, though contained in a series of separate Acts of Parliament.

More particularly, since 1968 (now 31 years) the Commission has had in hand a project to produce a criminal code, such as exists in almost every other country in the world. In 1989 we published a Draft Code in rational and modern form and language, and we have now embarked upon a programme to produce a series of draft Bills, based on the Code but incorporating appropriate law reform treatment, which will in themselves make substantial improvements in the law. If enacted, these Bills will form the criminal code which this country has lacked for so long."

Some measure of the extent of the Commission's activities may be gleaned from the number and range of items including in the list of materials and sources that accompany these lectures.

In particular, I turn to Legislating the Criminal Code Law Com No 218, Draft Bill Clause 6 on Assault :-

6.- (1) A person is guilty of the offence of assault if-

(a) he intentionally or recklessly applies force to or causes an impact on the body of another-

(i) without the consent of the other, or

(ii) where the act is intended or likely to cause injury, with or without the consent of the other: or

(b) he intentionally or recklessly, without the consent of the other, causes the other to believe that any such force or impact is imminent.

(2) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person.

Clause 6 is an attempt to put the law as it then stood into statutory form but there are difficulties with it. "The Criminal Law Bill presented with Law Com 218 in Nov 1993 maintains the common law position as it was confirmed in Brown" (Law Com 134, 1994 at 1.6) . That may be a trifle optimistic in that it is quite difficult to state the criminal law of assault after Brown or to state clearly how the common law treats the relationship of violence and consent. There are two ways in which I can develop this point. One is to review Lord Mustill's judgment in Brown. The other is to review articles by Leng and by Shute in Crim L R I will deal with each in turn (when we meet next week).