Is Bentham's vision of a comprehensive criminal code suitable as a model design for a code?

  • Andrew George Hemming

    Student thesis: Doctor of Philosophy (PhD) - CDU


    This thesis question examines whether Jeremy Bentham’s concept of a criminal code having ‘no blank spaces’, thereby minimising the role of the common law and judicial interpretation, is first, desirable and secondly, achievable. Desirability and achievability are clearly interwoven. The disparity between the theory that a code should be internally self-consistent and self-sufficient with the practice that ‘inevitable ambiguities of language make this impossible’ is a central theme. The thesis seeks to test whether the latter statement can be overcome. An alternative way of considering the central question is to examine whether Bentham’s vision of the legislature clearly stating its intentions sufficient for the ordinary citizen to fully comprehend his or her criminal liability is beyond the capacity of any criminal code architect in the 21st century.

    A criminal code should be as comprehensive as practicable in its description of rules of conduct. Second, it must communicate those rules effectively to the general public. Australian Criminal Codes will be evaluated against these two criteria. The Model Criminal Code which became Chapter 2 of the Criminal Code (Cth) is the most ‘Benthamite’ Criminal Code in Australia, and has been taken up by both the Australian Capital Territory in 2002 and the Northern Territory in 2006. As such the Model Criminal Code can be compared to the ‘Griffith’ Codes of Queensland (1899), Western Australia (1902) and Tasmania (1924). The Indian Penal Code (IPC) is presented as the best example of a Benthamite Code in the 19th century. Building on Macauley’s work on the IPC, it is argued that the development in criminal law theory since Bentham’s death in 1832, most notably the U.S. Model Penal Code in 1962 and the Model Criminal Code in Australia in 1992, leave open the possibility that Bentham’s vision is more achievable today than in Bentham’s own era.
    Date of AwardOct 2013
    Original languageEnglish
    SupervisorDavid Price (Supervisor)

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