Why Bentham's vision of a comprehensive Criminal Code remains viable and desirable as the model design for a code

Article

Hemming, Andrew. 2012. "Why Bentham's vision of a comprehensive Criminal Code remains viable and desirable as the model design for a code." University of Notre Dame Australia Law Review. 14, pp. 125-186.
Article Title

Why Bentham's vision of a comprehensive Criminal Code remains viable and desirable as the model design for a code

ERA Journal ID36726
Article CategoryArticle
AuthorsHemming, Andrew
Journal TitleUniversity of Notre Dame Australia Law Review
Journal Citation14, pp. 125-186
Number of Pages62
Year2012
Place of PublicationPerth, Australia
ISSN1441-9769
Abstract

This paper contends that Bentham's vision of a comprehensive criminal code that displaces the common law and minimises the scope for judicial interpretation is both viable and desirable today. The argument is made that Chapter 2 of the Criminal Code 1995 (Cth) points the way forward and that the original Griffith Codes are not codes at all but sparsely written restatements of the common law. To be a true code, the relevant law needs to be spelt out in detail for each offence and defence, with offences conforming to the general part of the code unlike the Griffith Codes which were demolished by Dixon CJ in Vallance v The Queen. Bentham identified the characterisation problem nearly two hundred years before modern element analysis emerged in the form of the United States Model Penal Code in 1962. The conventional wisdom that Blackstone and the adaptability of the common law triumphed over Bentham's grand scheme of codification is challenged now that criminal law theory has developed sufficiently to put Bentham's vision into practice.

KeywordsBentham; comprehensive Criminal Code
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
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Byline AffiliationsSchool of Law
Institution of OriginUniversity of Southern Queensland
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