The Vitality Of Case‐Law Under A Criminal Code
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00562.x |
| Date | 01 November 1959 |
| Author | Harry Calvert |
| Published date | 01 November 1959 |
THE
VITALITY
OF
CASE-LAW UNDER
A CRIMINAL CODE
RECENT
years have seen
an
understandable increase in dissatisfaction
with the present form and machinery of the English criminal law.
Dr.
Glanville Williams has recently expressed the view .that
:
“
The English criminal law
is
a
disorganised mass of statutes
and precedents, the latter scattered over many hundreds of
volumes of law reports. Although the law as
a
whole
is
well
settled, some of it is intricate to the last degree; some precedents
are conflicting;
in
some the extent of the decision is uncertain;
some are of doubtful authority, either because of the unsatis-
factory nature of the rule laid down in them, or because of mme
precedent or argument not having been brought
to
the
attention of the
court.”
This
is here accepted
as
being
a
fair
summary
of
the present
position. Whether, however,
this
present position
is
“
due
to
the
failure of the two great &cation movements of the nineteenth
century
”
a
and whether
it
necessarily follows that
‘‘
we should
begin
to think of codification again
”
a
are different matters. There is a
need to resolve conflicts between precedents; there is a
need
to
clarify decisions the extent of which
is
uncertain; one might perhaps
add that there is
a
need
to correct mistakes; but
this
says
no
more than that there
is
a
need
for piecemeal reform of
a
cldcatory
nature. Some branches
of
the law are
no
doubt outmoded, and
hence there is a
need
for remoulding according to the demanda
of
a
more enlightened policy. None of this, however, juati5es
codification.
There remains the question of the intricacy of the
English
criminal
law.
Does
this
justify codification? Before one
can
answez
this
question in the affirmative, one must
be
satis5ed
on
two
points.
The first of these is that intricacy is
an
unntxe~rary
evil.
On
this
point,
it
is
enough
to
point out that merely
to
demonstrate
that
intricacy may and does result in injustice does not establish the
converse proposition that simplicity
will
eradicate injustice.
It
is yet to
be
established that
a
certain and knowable law
will
be
a
just law.
Do
codes
ciispenet
with
intricacy?
Does
codification bring independence
of
case-law?
It
is with these
points
that
this
article
is
concerned.
The Society of Public Teachers of Law Memorandum
on
the
Establishment of
a
Criminal Law Reform Committee envisaged that
such
a
body “would
no
doubt
be
greatly
assisted
by the various
1
(1968)
Jomd S.P.T.L.
91748.
2
Ibid.,
p.
mO.
The second
of
these points
is
this.
a
Ibid.
621
622
THE
MODERN
LAW REVIEW
VOL
22
Dominion and Colonial Codes.
. .
.”‘
Always remembering that
the potential
of
the Tasmanian experience to render such assistance
is very limited, these comments are offered in this connection.
Tasmania inherited the principles
of
the Common Law, including
its criminal law. For over a century, the criminal law administered
in Tasmania was to be found basically in the cases, part of
it
via
the
medium of legislation drafted
on
English lines.
In
1924,
a
criminal
code, based largely
on
that of
Sir
James Fitzjames Stephens, was
introduced. Whilst
it
is
too early
to
form a
final
conclusion as
to
its
success or otherwise as a code,
it
is
not too early to discern certain
trends in the attitude towards the
“
old
”
law-an attitude which
may shed light
on
the problem of codification as a whole.
WHAT
18
A
CODE?
The word
“
code
”
is
not
a term
of
art.
Codification may, however,
be distinguished from consolidation.
“.
. .
consolidation
merely reduces into shape the law
as
already written in many existing statutes; whereas
codification
not only does that, but fuses into the new whole the Common
Law (as laid down by judicial decisions) besides.”
The hall-mark of the
‘‘
code
”
would therefore seem to be that
it
purports to contain within its terms
all
the law, as opposed to merely
one part
(Le.,
statute law)
of
that law. Even thus delimited,
however, two possibilities remain. A code may,
on
the one hand,
purport
to
destroy
all
the pre-existing law, as did the Code NapolCon.
Such
a
code pretends
to
be
sufficient unto itself and all other
sources are proscribed.
On
the other hand, the word
“
code
”
in
common law jurisdictions
is
applied
to
compilations which do not
necessarily go as far as this. Cases decided before its coming into
force are still frequently cited in connection with actions brought
under the Sale of
Goods
Act,
1898,
the function of which is therein
described as that of “codifying the law relating to the Sale of
Goods.”
We may justifiably describe as a
“
code,” therefore, an
enactment which purports to contain all the law upon
a
particular
subject, but which, nevertheless, may allow some reference
to
previously decided cases in order
to
make its provisions meaningful.
Is
THE
TABMA”
CRIMINAL CODE
A
CODE?
The Tasmanian Criminal Code comprises the First Schedule to the
Tasmanian Criminal Code Act,
1924.
By section
2
(1)
of that Act,
it
is provided:
‘‘
After the passing of this Act, the rovisions contained in
the Code of Criminal Law set forth in
t
g
e First Schedule, and
4
Re
roduced
in
(1958)
Journal
S.P.T.L.
231 at 232.
5
W/kton*e
I,aw
Lezicon,
12th
ed.,
1916,
sub
mm.
’’
Code.”
6
Long
title,
[1893]
L.R.
Statutes 353.
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