Teoría de costos

Certainty of punishment was, for example, one of the main reasons for Blackstone's interest in Beccaria's work. See Blackstone, Commentaries, iv. 17.

This being certainty in both the punishment attributed to offences and in the execution of sentences.

“ See Eden, Principles. 13; and discussion above at Ch. 1.

and corresponding punishments, he claimed, as did Blackstone, that it was not possible to produce a fixed scale of penalties as an aid to consistency because even apparently similar offences differed to such considerable degrees.

Bentham began his work on reform in the criminal law by planning a digest of existing statute laws, which would incorporate all valid customary law, and, in valuing the

work of the legal antiquarian Barrington, Bentham

continued to support the consolidatory call that aimed to 'take notice of such acts of parliament from which no good effects could be e x p e c t e d ' B e n t h a m took from Barrington the message that reform of the statutes was needed immediately to remove anomalies and redundancies, and to eradicate the most outdated remnants of statute law. In this he was close to Eden. But in the degree to which he called for consolidation he again went further since Eden did not seek to replace common law with a new digest of statute law; Eden cannot be said to have required such a comprehensive reordering of existing legislation as did Bentham.

Definition was what Bentham sought, for it was essential for individuals, open to the expectation of pain in return for unlawful action, to assess satisfactorily their choice of possible actions. Bentham tried to establish a clarity in the 'meaning' of law by his use of

Daines Barrington, Observations on the More Ancient Statutes..., iii. See also below Ch. 2.

paraphrasis, and correspondingly, he sought clarity of 'misdeeds' by attempting a comprehensive method of bipartition which could define a thoroughly extensive range of o f f e n c e s . ^ it was in the name of clarity that Bentham itemized the objects of legal p u n i s h m e n t . ^ These, all aiming at the balancing of happiness against mischief, sought primarily to prevent any offence from being committed at all. This was the logical end for a system designed to adjust the desires of individuals to what ought to be done for the happiness of all.®’ If offences were to be perpetrated, however, the second object of punishment was to prevent the worst offences from being committed. The third object further aimed to cause the offender to 'do no more mischief than is

On paraphrasis Bentham said, it is 'the only method in which any abstract terms can, at the long run, be expounded to any instructive purpose', A Fragment on Government, ed. J.H. Burns and H.L.A. Hart, with an Introduction by R. Harrison (Cambridge, 1988), 108. Harrison describes paraphrasis as a method which 'relates sentences about rights to sentences about obligations, and sentences about obligations to sentences about laws or commands'. See Harrison, Bentham, 81. Thus, from the threat of the political sanction real obligations are established. It has also been noted how 'the abiding interest in clarification... stretches from the earliest manuscripts', in which Bentham was 'concerned "to frame a Dictionary of moral terms... in which clear ideas shall stand annexed to each expression" through to such later work as that published in the L o g i c ' . See ibid. 13; and compare UC xxvii. 4.

Interestingly, he did not think that such

definition was as urgently necessary for punishments. See UC cxliii. 14.

®® IPML (CW), 165.

See Harrison, 'Introduction', A Fragment on Government, p. xvii.

necessary to his purpose'. Finally, his fourth object was that, whatever the mischief might be, it was necessary to prevent it at 'as cheap a rate as possible'; meaning that as little pain as possible was to be applied in order to achieve the first three objectives.^

Clarity was emphasised throughout since the system

required that potential criminals have a detailed

knowledge of the threats from the law so that judgements concerning likely punishments could be made. To achieve this clarity the law must be publicized, applied with consistency, and its punishments known. Bentham's whole argument against common or judge-made law was that 'uncertainty is the very essence of every particle of law so denominated'

The questions of clarity and certainty were no less important than the notion of celerity in punishment. From the very earliest manuscripts it is clear that weeks, months and years spent languishing in a prison awaiting trial, or awaiting the execution of a penalty after

sentencing, was regarded by Bentham as entirely

detrimental to the workings of an effective penal system.’® The principle reason was that such behaviour would inflict an unknown, yet certainly greater, amount of

IPML (CW) , 165.