Breaking the Thrall of Ambiguity: Simplification (of the Criminal Law) as an Emerging Human Rights Imperative
| DOI | 10.1350/jcla.2010.74.6.667 |
| Date | 01 December 2010 |
| Author | Candida Harris,Kim Stevenson |
| Published date | 01 December 2010 |
| Subject Matter | Comment |
COMMENT
Breaking the Thrall of Ambiguity:
Simplification (of the Criminal Law) as an
Emerging Human Rights Imperative
Kim Stevenson* and Candida Harris†
Keywords Legal certainty; Over-criminalisation; Codification; Simpli-
fication; Lawmaking
There is wide acceptance that law requires some measure of certainty.
Clarity, accessibility, and lack of ambiguity have been universally recog-
nised as vital components of legal systems and of substantive laws for
centuries. The concept of the rule of law is now commonly accepted as
one of the key elements of any democratic system, and although com-
mentators seem unable to agree on what the ‘rule of law’ actually
means, one aspect on which there is almost complete consensus is that
the law should be clear and accessible. However, contemporary criminal
law, both substantive and procedural, is unquantifiable, poorly organ-
ised and unknowable making it virtually impossible for lawyers, pro-
fessionals and especially the public to understand and engage with the
criminal justice process. The continual uncertainty of the criminal law,
condoned and reinforced by modern government through kneejerk
policy reactions, headline-grabbing initiatives, instantaneous and dis-
organised legislative responses, etc., has, albeit inadvertently, signific-
antly undermined the integrity of the law. Visionary criminal
codification attempts initiated by Brougham and Stephen in the 19th
century made relatively limited practical impact at the time, and late
20th century initiatives to revive them went nowhere. Now, in seeking
to rationalise and reorder the criminal law, the Law Commission has
shifted its emphasis from codification to ‘simplification’. The Holy Grail
of the codification of the criminal law has yet again been suspended, this
time in favour of a simplificative methodology to be instigated as a
prerequisite to any ultimate codification enterprise in the future: the
current project is now to formalise the more anachronistic common law
provisions rather than undertake any radical reorganisation.
This comment highlights some of these issues reflecting on historical
and modern parallels offering an overview of the history of codification
initiatives and the problems that have arisen in the criminal law as a
result of the failure to simplify. It then considers the potential impedi-
ments to clarity in development of the law and examines why, despite
the consensus on certainty as a predicate of the rule of law, uncertainty
* Associate Professor in Law, School of Law, University of Plymouth; e-mail:
Kim.Stevenson@plymouth.ac.uk.
† Lecturer in Law, School of Law, University of Plymouth; e-mail:
Candida.Harris@plymouth.ac.uk.
516 The Journal of Criminal Law (2010) 74 JCL 516–532
doi:10.1350/jcla.2010.74.6.667
and ambiguity remain the norm rather than the exception. More funda-
mentally, it is suggested that in the light of growing responsibilities to
bring British law in line with human rights obligations, it is essential to
acknowledge more formally that there should be a ‘constitutional right’
to certainty in respect of the criminal law. Certainty must be afforded a
more positive and principled status as part of the law-making process, to
mitigate the equivalent legal rule that ignorance of the law is no defence.
It will be argued that a coalition government which is constrained in its
legislative ability may present the perfect ‘stationary period’ in which to
produce law that is reasoned, comprehensible and coherent to all.
A ‘simple’ matter of simplification?
Simplification of law does not come naturally to the British legal system.
In many parts of Europe, the codification of law became an embedded
part of legal tradition at a very early stage of development. From the
Athenians’ dramatic housekeeping of Solon’s laws in 403–402 BC;1
Justinian’s Code in 530, attempting to put laws ‘in clear order . . . with
every repetition and evil discord removed’;2St Isidore’s plea that law
should be ‘necessary, useful and clear (so as to contain nothing to trip
people up through misunderstanding)’;3Gratian’s Decretum (c.1140)
which ‘produced from the confusion of ecclesiastic laws a coherent
system of Canon law’;4in the revival of interest in Roman codes across
Europe from the 13th century onwards5and again in the promulgation
of the Code Napoléon in 1804, codification became the legal stratagem
adopted in emerging European states. In England, these great codifica-
tion schemes failed to impinge in any significant way on the develop-
ment of the common law. To the extent that simplification was involved,
early focus was on collating and explaining the writs and forms of
action.6By the end of the 16th century, English law was ‘a many-headed
hydra [with] no single, universally understood code of law which
governed the realm’.7Resolution of the power struggle that began in the
late 16th century and culminated in the 17th century was undoubtedly
a necessary, if not sufficient, condition for the achievement of some
measure of coherence in English law since weaknesses in its sources
inevitably injected ambiguities into the law itself.8The need for certainty
1 Declaring that no laws passed before that date would be valid unless included in the
new inscriptions made between 410–403 BC; S. R. Letwin, On the History of the Idea
of Law, (Cambridge University Press: Cambridge, 2005) 2.
2 In his constitution on the construction of the Digest, cited in A. Watson, Sources of
Law, Legal Change and Ambiguity (University of Pennsylvania Press: Philadelphia,
1984) 94.
3Etymologiae 5.21, in J. M. Kelly, A Short History of Western Legal Theory (Oxford
University Press: Oxford, 1992) 95–6.
4 J. H. Baker, An Introduction to English Legal History, 4th edn (Butterworths: London,
2002) 13.
5 See Watson, above n. 2 at 25–75.
6 For example, the treatise of Glanvill (c.1187–89); De legibus et consuetudinibus Angliae
(traditionally referred to as Bracton after its supposed author, and probably written
in the 1220/30s).
7 J. S. Hart Jr, The Rule of Law 1603–1660 (Pearson Education: Harlow, 2003) 2.
8 See Watson, above n. 2 at 102.
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