This volume contributes to the codification debate by bringing together research articles which compare and contrast the experience of countries which have a criminal code with those operating a case law system. The articles consider the criticisms that are often made of criminal code systems such as: the implicit restrictions on judicial discretion; the tendency towards inflexibility; the discrepancy that can develop between the theory and the development of the law in practice; and the potential difficulty of a criminal code fitting into a country’s domestic socio-legal culture. The advantages of the case law system are also considered such as reliance on the judiciary for the development of the nation’s criminal law as well as the ability to legislate on the problems of the day by enacting topical laws for distinct subjects. Whereas wholesale codification is a much more accepted phenomenon in the continental law traditions, simplistic transplants from one legal tradition can result in systemic frictions and other anomalies which may offend domestic culture. This collection is an invaluable reference tool which supports the discussion over codification and promotes better understanding across the common law/civil law divide.
Table of Contents
Contents: Introduction; Part I Forming a Criminal Code: A primer on codification, Ferdinand Fairfax Stone; Structuring criminal codes to perform their function, Paul H. Robinson; Codification of the criminal law (1): the case for a code, A.T.H. Smith; Codification of the criminal law (2): the technique of codification, Francis Bennion; Codification of the criminal law (3): the draft code, complicity and the inchoate offences, Andrew Ashworth; Codification of the criminal law (4): restatement or reform, Celia Wells. Part II Attempts at Codification in England and Wales, and the British Empire: Codification of the laws in seventeenth century England, Barbara Shapiro; Reconstructing the English codification debate: the Criminal Law Commissioners 1833-45, Lindsay Farmer; R.S. Wright’s Model Criminal Code: a forgotten chapter in the history of the criminal law, M.L. Friedland; The codification of the criminal law, Gráinne de Búrca and Simon Gardner; A criminal code: must we wait for ever?, Lord Bingham; Criminal law at the crossroads: the impact of human rights from the Law Commission’s perspective and the need for a code, Mrs Justice Arden. Part III A Comparative Perspective: The challenge of a model penal code, Herbert Wechsler; The five worst (and five best) American criminal codes, Paul H. Robinson, Michael T. Cahill and Usman Mohammad; Jurisprudence in the criminal law, G.L. Radbruch; An empire of light? Learning and lawmaking in the history of German law, Stefan Vogenauer; An empire of light? II: learning and lawmaking in Germany today, Stefan Vogenauer. Part IV Some Benefits and Drawbacks of Codification: On circumstances favouring codification, Mirjan Damaška; Codification and judge-made law: a problem of coexistence, Mr Justice Scarman; Here lies the Common Law: rest in peace, H.R. Hahlo (including comment by L.C.B. Gower); Ibi renascit jus commune, M.R. Topping and J.P.M. Vandenlinden; Codifying the common law: protracted gestation, H.R. Hahlo; Codification and law reform: some lessons from the Canadian experience, Gilles Létourneau and Stanley A. Cohen; Codification of the criminal law: an attainable ideal?, Jenny Lavery. Name index.