Renovate or Rebuild? Treatises, Digests and Criminal Law Codification

Bentham coined the term ‘codification’, a sweeping reform based on his critique of the common law and his ambitious science of legislation. All existing criminal laws were to be replaced by comprehensive provisions set out in rational, consistent and accessible form, anchored in the principles of utility, and amenable to efficient administration and minimal judicial discretion. Such a code held out the promise of a universal jurisprudence, applicable, as Bentham put it, to places as diverse as England and Bengal.¹ Soon after his death in 1832, imperial authority in India was reconstituted by his utilitarian colleague, James Mill, and Macaulay was appointed legal representative on the Governor-General of India’s new Legislative Council. His code, drafted by 1837, was not only the first in the British Empire, but also came closest of all the nineteenth-century criminal codes to a practical implementation of Bentham’s ideas. Enacted in 1860 in the wake of the Mutiny, it was the basis for codes enacted in British colonies throughout South Asia and an important reference point for Robert Wright’s draft Jamaica Code (1877), a model for those enacted elsewhere in the West Indies and beyond. Criminal law codification was never realised in England and Wales, despite its central place in nineteenth-century law reform debates there. Notwithstanding the Law Commission’s recent effort (1968–2008), Fitzjames Stephen’s Draft English Code, a cautious effort that reflected accommodation with the common law, came closest to success. The bill died with the fall of the government in 1880, but Stephen’s draft became the main external reference for the first wave of British self-governing jurisdiction codes beginning with Canada.

The modern treatise and code were Enlightenment-inspired projects, concerned about the rational systematisation of the law and the enticing possibility of approaching law as a science. Brian Simpson portrays codification as the next logical step beyond the discursive treatise, a more concise statement of law, and one of the most interesting developments of the treatise form.³ Morton Horwitz suggests treatises were a defensive response to the threat codification posed to judicial power, led by legal scholars committed to assumptions about the logic and internal consistency of legal doctrine.⁴ The generalisations capture some elements found in my examples but the patterns and intersections are more complex. Simpson accurately portrays the later nineteenth-century English scene but neglects Bentham’s earlier rejection of the treatise form as means to modernise the law. Horwitz is more applicable to the US, which is not examined here, although the defensive legitimacy question does arise.

This portrayal of the Indian and Canadian codes as manifestations of different stages of nineteenth-century English criminal law reform debates is not intended to suggest they were essentially products of the metropole, or to diminish the place of local influences on their development. But both codes were informed and shaped by this law reform context and pervasive legal connections within an imperial network. My analysis follows KJM Smith’s narrative of this period in which Bentham’s critique and the interventions of Macaulay and Stephen figure prominently and codification, despite failing domestically, prompts more conceptually sophisticated law.⁵ Lindsay Farmer’s chapter presents an alternative narrative that focuses on the practical nineteenth-century criminal law literature in Britain rather than the reform debates in which codification looms large. The narratives are not necessarily at odds. Indeed, they represent different ends of a legal literature spectrum, one theoretically oriented and imperial in reach, the other practical and local in application. The influence of professional power, a legal culture that neglects the criminal law as a branch of public law, to see it as an adjunct of private law primarily about the protections of private interests or hardly rated as law at all, in such contrast with Bentham’s outlook, is a common theme.

I. BENTHAM, MACAULAY AND THE INDIA PENAL CODE

Bentham developed the term ‘codification’ to describe his ambitious legislative agenda and radical break from the common law.⁷ Bentham’s critique of his former teacher began with his 1776 Fragment on Government and continued throughout his long life.⁸ He acknowledged Blackstone’s achievement in technical arrangement and lending rational order to English law.⁹ But he concluded that the Commentaries were ultimately ‘an elegant palliative to the inherently chronic confusion of the common law’.¹⁰ The common law, Blackstone’s preoccupation, was beyond the reach of rational reform, its arcane nature and needless complexities the invariable result of random cases and self-serving judges. Blackstone’s defence of judicial power, based on the incredible claim that judges exercised little discretion around common-law rules, and his neglect and suspicion of legislation, were nonsense.¹¹ Blackstone’s modern ordering of the common law was futile and the common law should be eliminated.

Bentham’s taxonomy of criminal harms, prohibitions and penalties took the rationalising spirit of the Enlightenment much further than Blackstone. He sought to map out and categorise the entirety of the criminal law, all offences, forms of liability and defences set out leaving no terra incognita, in provisions expressed so clearly that an average person would understand it, an average judge unable to claim not to. Yet Bentham never completed a working criminal code.¹⁴ And while his criminal institutional proposals were well known, the transformations in the administration of English criminal law in the 1820s and 30 s were influenced by complex factors, more a matter of reform consensus between leading Tories and Whigs than Bentham’s advocacy.¹⁵ As for reforms to the substantive criminal law, consolidation (collection and update of all statutes), digests (organised presentation of the law) and yet more comprehensive rationalisations falling short of Bentham’s call were debated. Peel’s consolidations of 1827–31, which repealed or modernised hundreds of statutes and scaled back the death penalty from over 200 to a dozen offences, was a modest rather than transformative advance. It was nonetheless an important one, relatively neglected by scholars compared to the new police, professionalisation of the criminal trial and the rise of the penitentiary.

India became a utilitarian laboratory where Macaulay explored the possibilities of Bentham’s scientific legislation and universal jurisprudence. Smith aptly describes the IPC as an important episode in the development of criminal jurisprudence and nineteenth-century intellectual history.¹⁹ While it was the most Benthamite code enacted, giving form and practical content to Bentham’s ideas, and making them work in the context of a specific time and place, proved difficult. Macaulay confronted the challenges with a Baconian pragmatism, relying in part on a synthesis that resembles the modern treatise.²⁰

That Macaulay fell short of Bentham’s ideals is unsurprising for modern legal theorists.²⁴ Unlike Bentham, Macaulay devised working provisions. The IPC remains the groundbreaking British code, the most Benthamite in nature and ambition, and many of its qualities remain as progressive law reform aims in the twenty-first century.²⁵ At the same time it must be recognised that Macaulay’s reform did not occur in a vacuum. A product of a particular time and place, cultural and intellectual context, Macaulay’s premises were informed by the limits of his experience, outlook and an intellectual milieu of European Enlightenment rationalism and British liberalism.

Macaulay’s involvement in such an ambitious reconstitutive project, assuming the role and very image of the utilitarian enlightened despotic legislator, was surprising. He was not part of the tight circle of Bentham and Mill disciples and published criticism of utilitarianism, warning of the threat it posed to British liberties. But shortly after Bentham’s death he collaborated closely with James Mill on the reorganisation of India’s colonial government. Between contributions to the Reform Act, 1832 and the 1834 legislation to prohibit slavery throughout the British Empire, Macaulay became the main Commons advocate for Mill’s Charter Act bill, declaring in parliamentary debate, ‘[a code] is almost the only blessing, perhaps the only blessing, which absolute governments are better fitted to confer on a nation than popular governments’.²⁹ After arriving in India as legal representative on the Governor-General of India’s new Legislative Council, he wrote, ‘I have immense reforms in hand . . . such as would make old Bentham jump in his grave . . .’³⁰ His Press Act (1835) ended press licensing and prior restraint, the Black Act (1836) ended special privileges of European residents in the civil courts, and his education reforms widened accessibility and modernised curriculum, but the IPC, which he largely authored, was by far his biggest project.³¹ As he started, he wrote to Mill expressing the hope it would inspire codification at home as Brougham’s commissioners grappled with the continuing chaotic state of English law.³²

The IPC is a comprehensive presentation of criminal law, a taxonomy that precludes the common law, and very different in form from existing British legislation. Macaulay fully embraced Bentham’s extension of logic of classification in the natural sciences to law, aiming for a systematic and exhaustive statement of criminal harms and attendant prohibitions, liability standards and penalties (maximums) expressed precisely and consistently.³⁵ Following Bentham’s principles of ‘nomography’, Macaulay devised concise, direct legal expression, characterised by simplicity, clarity, economy and lack of technicality, within a rationally organised and self-contained legislative whole.³⁶

The substantive doctrines reflect wider influences. Precise attribution is difficult but the Notes suggest they derived mostly from what Macaulay was familiar with, English laws reworked, simplified and modernised according to more general liberal sensibilities. Most are progressive for the time, indeed a number of the original provisions remain more advanced than current criminal laws in most common-law jurisdictions. Principles of liability are not defined in a general part but there is consistent attention to fault requirements and terms, emphasis on subjective standards, with occasional use of lesser standards of rashness (the Macaulayan term for recklessness) and negligence for endangering offences or where public duties were specified. Offences are accompanied, where relevant, by specified exemptions (the Macaulayan term for defences). The arcane English laws of murder and theft are thoroughly reconstituted. Political offences reflect a libertarian orientation, manifested in Macaulay’s narrow definition of treason, abolition of seditious libel, and criminal liability for abuse of state and official powers. Innovations appear in offences concerning the exploitation of vulnerable groups, endangering and intangible harms. Punishments follow a utilitarian logic of deterrence, certainty and proportionality. Capital punishment is limited to two offences (Peel’s dramatic reduction was to a dozen offences) and corporal punishment is abolished.³⁷

Macaulay’s Notes reveal more connections with the treatise. Indeed, they can be viewed as a succinct critical treatise on English criminal law in the 1830s, warranting recognition as one of the most interesting examples of the form. Incisive critique of existing English laws dominates the text and Macaulay takes obvious delight in pointing out common-law absurdities. But the basic doctrinal ideas build from a background he knew best, Peel’s English consolidations, peppered with occasional explicit reference to the 1810 French Code penal and the draft Louisiana code.⁴¹ The combination of critique and concise explanation reflects Macaulay’s historical sensibilities and skills at theoretical and technical synthesis, but Stokes observes that the separate appearance of the rationales for the laws was a departure from Bentham’s legislative method.⁴² It is an important departure. The Notes reveal the significant place of existing laws as Macaulay’s starting point and primary reference, prefiguring the more open reliance on the treatise form in subsequent codification efforts.