영국 형법의 성문화가 이루어지지 않은 이유에 대한 고찰

Abstract

Britain was the first country in the world to develop the rule of law, starting with the Magna Carta, and it has long used its maritime power to influence many countries around the world, and countries that were colonised by Britain, such as India and Australia, still retain the culture, institutions, etc. of the colonial era. This influence is not limited to culture and institutions, but is even more pronounced in the realm of law. The British did not simply use the ideology of the rule of law in their mainland politics and institutions, but also used it as a tool for governance in their colonies, either in the name of promoting modernisation in the colonies, or in the direction of the colonies themselves using the rule of law to develop. In the case of India and Australia, two of Britain's major colonies, they went beyond the British common law system to enact modern laws through the process of codification, which is considered a symbol of modernisation. In the case of India, the British saw it as a bridgehead to Asia and, given its importance, actively used the rule of law as a tool to govern India, while in Australia, the rule of law was further developed. Civil law was perceived to be the domain of each country, so there was little need for codification, but criminal law was used as an efficient means of imperial power, so codification proceeded more quickly than civil law. In contrast to this trend in the colonies, however, the common law system in England has remained essentially uncodified to the present day. This behaviour seems quite unusual for a country that was one of the first to develop the rule of law. There were many people in England, such as Jeremy Bentham, who believed that codification was necessary for the development and efficient administration of criminal law. However, due to the fact that the common law system was already deeply entrenched in England and the lawyers did not want to change it, the political situation at the time when the opinions of the lawyers could not be ignored due to the majority of lawyers in Parliament, and the sense of superiority that England could not have the same form of law as the colonies as a country ruling over the colonies, codification in the essential sense did not proceed. The criminal law, which was perceived as a universal law at the time, is now in a situation where crimes have diversified due to advances in technology and require active responses based on in-depth discussions, so it seems best to actively promote codification even now to proactively respond to the diversification of crimes.