Towards a Good and Complete Criminal Code for Scotland
| Date | 01 May 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00546.x |
| Published date | 01 May 2005 |
| Author | Timothy H. Jones |
REPORTS
Towardsa Good and Complete Criminal Code for
Scotland
Timothy H. Jones
n
INTRODUCTION
In a jurisdiction where the articulation of a common law of crimes has been a
judicial function, the publication of a draft criminal code (albeit ‘uno⁄cial’) by
the Scottish Law Commission
1
has to be regarded as a signi¢cant event. In Scot-
land, it is a body of case law that de¢nes many of the more serious crimes, as well
as the fundamental concepts of criminal responsibility. The legal academics
responsible for drafting the code seek‘toconvert the common law to statutory
form’.
2
This is based on the premise that codi¢cation‘is a useful thing to do’, since
‘[a]n organised set of legal rules is betterthan a disorganised set’.
3
Given the extent
to which codi¢cation has in the past been regarded as distinctly counter to Scot-
tish tradition, there is aburden of history for the codi¢ers to overcome.Writing
towards the end of the nineteenthcentury, J. A. Dixonwas dismissive of those
who‘saw no di⁄culty at all inreplacing by a Code, made to order by any set of
juridical journeyme nth atth e moment might provide, the whole existi ng lawand
law sources of a nation.’
4
The prevailing view in Scotland seems to have been that
it is appropriate for judges to be involved in the shaping and de¢ning of crimes,
and that the common lawallows the courts a desirable £exibility in dealing with
the cases that come before them.
5
This approach owes much to the continuing
in£uence of David Hume, who was a strong advocate of a common law system.
6
Although the Humean tradition may have prevailed, there have been dissenting
voices, re£ecting (in part at least) an intellectual concernwith the perceived legal
n
Professor of Public Law,University of Wales Swansea.
1A Draft Criminal Code for Scotland with Commentary (2003). Thiswill becited as‘Draft Criminal
Code’ or ‘Commentary’, as appropriate. Its issuance has been noted in E. M. Clive,‘Submission
of a Draft Criminal Code for Scotland to the Minister for Justice’ (2003)7Edin LR 395.
2E. M.Clive and P.R. Ferguson,‘Unravelling the Enigma: A Reply to Professor Farmer’(2002) 7
SLPQ 81, 82. See also Draft Criminal Code 2: ‘The intention was toput intostatutory form the
existing law of Scotland.’
3E.M. Clive,‘Law-Makingi n Scotland fromAPS to ASP’ (1999) 3 Edi n LR 131,149.See also Draft
Criminal Code 2: ‘It is generally better tohave the core of a country’s cr iminal law in an organised
form rather than a disorganised form.’
4J. A. Dixon,‘The Codi¢cation of the Law’ (1878) 18 Journal of Jurisprudence 305, 309^310. Since
Dixon’s primary target was Jeremy Bentham, would-becodi¢ersare in good company.
5KhaliqvH.M. Advocate,1984 JC 23,26 (Lord Avonside).
6D.Hume, Commentariesonthe Law of Scotland RespectingCrimes (Edinburgh: Bell & Bradfute,4
th
ed
by B.R. Bell, 1844),VolI, 2.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 6 8(3) MLR 448^ 463
backwardness of Scotla nd.
7
Dissatisfaction has continued tobeexpressedwith the
expanded role accorded to the judiciary in the development of the criminal law
under the common law system.
8
The draft criminal code might be seen as the
logical outcome of this alternative tradition.
At the riskof obscurantism, however, one cannot dismiss the possibility that
the Scottish system of criminal law has survived into the modern era because it
has some merit. It may be that the legal tradition has contemporary value.
9
It has
long been thought that Scotland’s law (including criminal law) served as a foun-
dation of nationhood.
10
Thus an historian has written:‘In Scotland, the indigen-
ous Lawwas (and is) the corner-stone of the principle of the common citizenship
of the entire population.’
11
Although the impact of this rhetoric may be exagger-
ated,
12
it cannot be disregarded.
CODIFICATIONIN ABSTRACTANDCONCRETE
Although dated in some respects, John Austin’sincisive discussion of codi¢cation
provides a useful analytical framework.‘The question of codi¢cation maybe con-
sidered in the abstract or in the concrete.’
13
This distinction will be used here.The
abstract question is‘whether a good and complete c ode is betterthana body of law
(supposing it to be well expressed in its way) consisting inwhole or in part of
judiciary law.’
14
The concrete question is‘whether, having regard to the circum-
stances of a given community, it is expedient to attempt the reduction of the law
to a code.’
15
Codi¢cation in the abstract
There is little new that can be said on the merits or otherwise of codi¢cation.
Lindsay Farmer has referred aptly to‘a certain weariness about most of thewrit-
7See C. Kidd, Subverting Scotland’s Past: Scottish Whig Historians and the Creation of an Anglo-British
Identity,1689-c.1830(Cambridge: Cambridge UniversityPress, 1993)162^165.
8See, for example, Lord Cockburn,‘Scottish Criminal Jurisprudence and Procedure’(1838) Edin-
burghReview196;W.A. Elliott,‘Nulla Poena Sine Lege’, 1956JR 22; G. H. Gordon,‘CrimesWith-
out Laws’,1966 JR 214.
9The contemporaryargument for thecommon law is explored subsequently in the article.
10See H. L. MacQueen,‘RegiamMajestatem,Scots Law,and National Identity’ (1995) 74 ScottishHis-
toricalReview 1; J. M. Thomson,‘Scots Law, National Identity, a ndthe European Union’ (1995) 10
ScottishA¡airs25.
11 J. Davies, A History ofWales (London: Allen Lane,1993) 168.
12For critical discussion of the ‘unsubstantiated legend’,see Kidd n 7 above,144^165; and of the role
of the criminal law as a site of cultural nationalism, see L. Farmer,CriminalLaw,Tradition, and L egal
Order: Crimeand theGenius of Scots Law,1747to the Present (Cambridge: CambridgeUniversity Press,
1997). Literature played an importantrole alongside law; see A. Bardsley, ‘Beliefa ndBeyond: The
Law, The Nation, and The Dramai nJoanna Bail lie’s Witchcraft’ (2002) 14 YaleJnl of Law and the
Humanities231, 237.
13J. Austin, Lectures onJurisprudenceorThe Philosophy of Positive Law (abridged by R.Campbell, Lon-
don: Murray, 1880) 331.
14 ibid.
15 ibid.
TimothyH. Jones
449rThe Modern LawReview Limited 2005
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