Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

158 Legal History in the Making
remove'. 62 Such blemishes fail to detract from the overall superb
clarity which is the Code's hallmark; something encouraging belief in
Macaulay's claim that in seeking the desired effect in several chapters
he had 'changed the whole plan ten or twelve times, which contain not a
single word as it originally stood'. 63
IV. The Code's Substantive Nature
The Code's substantive provisions rival its style for innovation and progressiveness.
A distinct rationalistic and subjectivistic approach is displayed in the
culpability requirements and punishment provisions for offences. Throughout
the Code a strong strain of legal modernism is recognizable, with some
instances where the Code provisions are arguably more enlightened than
equivalent areas of current Anglo-American law.
The key to subtle gradations and appropriate labelling of criminal culpability
is clarity in the terminology of fault. These linguistic building blocks of liability
received scrupulous and detailed attention: the meanings of 'intention',
'knowledge', 'negligence' are each methodically laid out. 64 Defined terms are
then consistently employed throughout the Code. Much the same treatment
is accorded to quasi-technical expressions such as 'fraudulent'. 65 This served
Macaulay's objective of ensuring that fixed degrees of culpability could be
accurately and reliably included in individual offence definitions and not
subject to the infinite vagaries of applying indistinct common law notions.
In turn this facilitated the Code's firm declared stance against the English
62 H.C.L., iii, 306. By far the most extravagant example of overdefinition in the Code is section 349
which defines force:
A person is said to use force to another, if he causes motion, change of motion, or cessation of
motion to that other; or if he causes to any substance such motion, or change of motion, or cessation
of motion as brings that substance into contact with any part of that other's body, or with any thing
which that other is wearing, or carrying, or with anything so situated that that contact affects that
other's sense of feeling, provided that the person causing the motion, cessation of motion, or change
of motion in one of the three ways hereinafter described: first, by his own bodily power; secondly,
by disposing any substance in such a manner that the motion, or change or cessation of motion takes
place without any further action on his part, or on the part of any other person; thirdly, by inducing
any animal to move, to change its motion, or to cease to move.
63 Undated Council Minute, C. D. Dharker, ed., 253. Within a few weeks before completion Macaulay
wrote to Ellis: 'Whether it is well or ill done heaven knows. I know only that it seems to me to be very
ill done when I look at it by itself, and well done when I compare it with Livingston's Code, with the
French Code or with the English [consolidating] statutes', 8 March 1837, Letters, iii, 210.
64 Austin was well aware of the necessity of carefully defining culpability terms and matters of mens
rea generally. See 'Fragments of a Scheme of a Criminal Code', Lectures, op. cit., 1,086-100 and
'Tables 1 & 2', 1,103-4. Note also Bentham's discussion 'Of Intentionality', ch.viii. Introduction to
the Principles of Morals and Legislation; Works, i. The English Criminal Law Commissioners in their
Fourth Report (1839) were similarly concerned to achieve reasonable definitional precision although
noting that 'metaphysical exactness is visionary and absurd' (xv).
65 One slip where the bad old (English) ways are resorted to is the use of 'malignantly and wantonly'
in section 257. Noted by Kadish, loc. cit., 1,119 n.168.