Macaulay's Penal Code, Adam Smith and the Jurisprudence of Resentment

Abstract

The ‘offences affecting the human body’ in Chapter 16 of the Indian Penal Code were shaped by Thomas Macaulay’s distinctive vision of the moral principles that should constrain criminal liability for unlawful homicide and lesser offences of causing harm. Though the general structure of Macaulay’s Draft Penal Code owes much to Bentham, the offences affecting the human body display far closer affinity with the jurisprudence of Adam Smith’s Theory of the Moral Sentiments. The offences proposed in the Draft Code were radically different from the corresponding offences against the person in English statutory and common law. Though Macaulay’s provisions did not survive unscathed when the Indian Penal Code was enacted in 1860, those radical differences from English law were not eliminated. Two principles in particular distinguish the Indian offences affecting the human body: first, the ‘correspondence principle’ - that fault rather than results should determine criminal responsibility for causing injury or death; and, second, the ‘comparative fault principle’ – that fault on the part of the victim can extenuate the offender’s crime. Macaulay’s Draft Code offences affecting the human body were an idealistic experiment that anticipated campaigns for criminal law reform in the late 20th century in the United States and Australia. From an immediate, pragmatic point of view however, the Indian experiment was an instructive failure. The effect of Macaulay’s reform of the offences of affecting the human body was to exacerbate Indian disaffection with British justice and precipitate a constitutional conflict between the British colonial administration in India and its judiciary.