The Brief: A Short Story on English Legal Codification

| | August 28, 2023

The processes of law can be almost like figuring out a new language with little but a book written completely in a dialect you don’t understand, or charting a course to a new fantastic place with no road map; it’s rife with hiccups, missteps, retractions, and maybe just a few little moments of pure, unadulterated fear. And when it comes to codification, the same story goes.

When it comes to Anglo-American processes of law, it may seem like a bundle better left untampered with, but the truth is that the entire backbone of the modern tradition of British law comes down to understanding the importance of modernizing the legal codes and processes, because if the rules don’t change with the people, then what good are the laws?

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What is codification?

To start, let’s break it down from the beginning with exactly what codification is. Beginning in Britain in 1810, codification became the rule of thumb for turning a bunch of different laws into one, strong legal code. When it came to the British law, much of these laws were actually unwritten customs or law codes that had created the standard by which English courts came to jurisdictions. The thing that made it sticky was the unrecorded, or unstated, nature of these laws, and the flexible environment where lawmakers could use things that favored them while ignoring the things they didn’t like. As concerns the English system, their constitution, formed with the Glorious Revolution in the 17th century, was old and unchanged for two hundred years, making it obsolete, or at the best, outdated, when it came to modern law processes. And it wasn’t until the early part of the 19th century that lawmakers decided to do something about it.

Early Changes

When the Whigs came to power in 1833, a wave of reform came out of their legislation, and that included the criminal justice system. With the appointment of a Royal Commission of Criminal Law, corrupt practices and the entire legal system came under reconstruction and modernization.

Originally comprised of 5 members, they immediately went to tackling the system, with three major waves of reports. The first report outlined the excesses and backdoor navigation of the current criminal system, the second brought up the question of whether prisoners charged with felonies deserved to have representation, and the third broke down the letter of the law when it came to juvenile defenders. All in all, the practices established with the commission revolutionized the system, but threatened the status quo, and therefore created friction when it was time to implement the new system.

By the time the codes were ready to be voted into practice, fear that the new codification would threaten the existing tradition of common law was felt by the electing bodies. In both 1945 and 1949, the legislatures failed to bring the practices into effect, and even in 1961 when the Criminal Law Consolidation Act came into play, it was a serious retraction on the aspirations that the Royal Commission started with. Though despite the collapse of the intent of the body of reformers, the intention, and the eventual lead to the modernization of governmental institutions, meant the codification processes were not done in vain, only slightly premature.

Coming To Terms With Reform

As the formation of the Royal Commission of Criminal Law suggests, law reform was at the forefront of political agendas during the beginning of the 19th century. Well-known literature and critics of the age not only posed questions to the reported successes of old regimes, but began offering ideas for reform that sparked within the intellectual population. The new ideals of morality codes lead to the first big step toward codification; the repealing of the “Bloody Code.”

Modern contemporaries of the time believed that the “Bloody Code”, or death penalty and use of capital punishment, was ultimately a bastardization of the penal code. With this change in ideals for how to deal with lawbreakers, the criminal statutes in place began to change dramatically, in many areas, over a relatively short time period. Not only did this affect the changing nature of the actual laws, but it changed the way the population regarded sovereignty, the regulation and inherent rights of the human condition, and the pull between elected laws and monarchical edicts.

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Ensuing Change

It was understood that the new changes made by the original commission be processable by the common man; the new codes weren’t just meant for the judges, lawyers, and politicians of the age, but for the changes not to create a class war where only the highly educated understood them.

Throughout the implementation of the new codes, other ideas unfolded, and added to the new codes. With the death penalty losing steam, new sentencing was assigned to certain crimes, and became common, creating cause and effect rules within the code, and attaching themselves to the growing codification of the legal system. Another change that grew through this reform was the actual practice of courtroom sentencing; no longer was sentencing tied to the discretion of individual judges, but the process was growing more impersonal, and the formulation of criminal procedure saw an expedition of the process as well as the creation of a system where justice could be seen, time and time again.

The key to the implementation of these new codes is to discover the true nature of their use; it had nothing to do with the Enlightenment and the rise of the individual within the judicial process as many have proclaimed, but instead grew out of a need to formulate a systematic sentencing procedure that illustrated how the law could be regulated despite being enacted by different legislatures.

Modern Ramifications

The beginnings of English legal codification is a standout blip in the country’s history that is not similar to many other changes and reforms within the British legal code, and it’s scientific processes of incident equals punishment was more technical than many other reforms of the time. It’s rife with inconclusive dreams that ended without being implementation, and today remains a little less codified than the original committee envisioned; but just because the enactment isn’t as to the letter as the 5 members imagined, it doesn’t mean the ramifications weren’t felt throughout the Western world’s own transitions.

In the grander scheme of influence, it was an outreach of the traditional civil laws to include the criminal jurisdiction that dictated much of common life. By making crime and punishment a social issue, which the new penal codes did, it introduced the notion of individual laws being the stronghold of the system, rather than the individual within those laws. In turn, this affected the American political system, which was experiencing the push to codify at the same conjecture. Even today, the American system runs on the ideal that principal is less influential in sentencing than precedent.

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Ultimately this transference of power from unspoken common laws to a scientific system lifted the idea of modern law into the next wave of human rights and government action as it relates to crime, and solidified the nature of laws as being systems that can be devoid of any one individual’s interaction with it.

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