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

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. ISSN 1441-9769

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.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Permanent restricted access to published version due to publisher copyright policy.
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 15 Jan 2013 10:40
Last Modified: 03 Feb 2015 05:40
Uncontrolled Keywords: Bentham; comprehensive Criminal Code
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940407 Legislation, Civil and Criminal Codes
URI: http://eprints.usq.edu.au/id/eprint/22719

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