Introduction

Should a country have a criminal code or not? What is a criminal code? What are its advantages over a case law system which relies on the judiciary for the development of the nation’s criminal law? Do codes not unduly restrict judicial discretion? Are codes not too cumbersome to maintain? Will they not be inflexible and lag behind the development of the law in practice? Does a code fit into a country’s domestic socio-legal culture? Is it not better to legislate on the problems of the day by enacting topical laws for distinct subjects? Questions like these have been – and are still being – asked in England and Wales and other common law jurisdictions, albeit to differing degrees. The United States, for example, has a much more relaxed attitude to codification than England and Wales. The Model Penal Code and the US state codes are testament to that. What is more, former British colonies have managed to codify their criminal law in one coherent piece of legislation. Yet, England and Wales have so far been unsuccessful in arriving at that state of affairs. Wholesale codification is a much more commonly accepted phenomenon in the civil law or continental law traditions, for example in German law. However, simplistic transplants from one legal tradition to another must be avoided because they create systemic frictions and further anomalies and may offend domestic culture. For this reason, we have mostly chosen contributions from the wider common law world in this collection, because the comments by the authors are grounded in concerns arising from experiences in common law jurisdictions. Occasional references to civil law experiences are naturally unavoidable