“The Principle of the Codification We Recommend Has Never Yet Been Understood”

Abstract

The words of Henry Bellenden Ker, Law Commissioner, quoted as the title of this response, were truer than he knew. In protesting that the commissioners' project was less radical than was alleged by the opponents of codification, he sought principally to gain parliamentary time and space for consideration of the commissioners' work. However, his words contain a deeper vein of truth. The work of the law commissioners has been praised and criticized, celebrated and ignored, over the past one hundred and fifty years, but never yet properly understood. Even as the commissioners' reports have been plundered by successive generations of legal scholars in search of doctrinal and theoretical support for their own very contemporary concerns, there has been a continuing neglect of the commissioners' overall project and little attempt to link it to the significant transformations in punishment and the administration of criminal justice that were occurring in the same period. Accordingly, any reassessment of the commissioners' work should address these two issues: understanding their project as a whole and placing codification within the general historical context of the modernizing of the state and institutions of criminal justice. It is these two concerns that the commentators address in their responses.