Introduction

In the preceding pages, I have considered the orthodox claim that the fundamental bases of the criminal law are principles of rational legalism and individual justice. Although this claim is made in the writings of academic and practising lawyers, we have also seen it negated by these same people. This raises the obvious question, ‘Why?’ An explanation of this phenomenon must go deeper than the principles of law themselves, to a level at which we can understand the co-existence of principle and its negation within the law. As Horwitz has claimed, to go deeper involves going into history. The Prologue is a starting point. It tells of an imaginary world which, I suggest, corresponds roughly to the historical world of which we are a part. English society (along with most of continental Europe) had its own reactionary, bloody penal system, which gave way to an ‘enlightened’ project of legal reform in the second quarter of the nineteenth century. But this project of legal reform was not without its contradictions, and a more thorough analysis of the most important developments shows this to be so. That is the task of this chapter, which attempts to substantiate the sketch of the Prologue and provisionally to indicate its significance for modern criminal law doctrine.