Navigation – Plan du site

AccueilNuméros16Special IssueBentham’s Comprehensive and Effec...

Special Issue

Bentham’s Comprehensive and Effective Challenges Against the Common Law Tradition

Les défis complets et effectifs de Bentham contre la tradition de la Common Law
Michihiro Kaino

Résumés

La présente étude se propose d’examiner de manière exhaustive les critiques de Bentham à l’encontre de la Common Law. Pour situer la critique de Bentham dans le contexte du droit anglais, cette étude explique d’abord les trois principaux types de théories de la Common Law qui étaient établis avant que Bentham ne développât sa critique, à savoir « la Common Law comme raison artificielle », « le positivisme de la Common Law », et la théorie de la loi naturelle de la Common Law. Bien que des études approfondies aient déjà été menées sur les critiques de Bentham à l’encontre de la Common Law, la présente étude apporte une perspective nouvelle en situant la critique de Bentham dans la tradition de la Common Law. Nous ferons valoir que le Pannomion de Bentham, qu’il conçut pour servir de code de lois complet, peut être mieux compris comme une alternative complète à la tradition de la Common Law.

Haut de page

Texte intégral

Introduction

  • 1 For instance, see D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth- (...)

1Bentham’s criticism of the Common Law and his alternative, the Pannomion, which he designed to serve as a complete code of laws, have been thoroughly studied by Bentham scholars.1 According to recent research on Common Law theory, the Common Law tradition prior to Bentham can be broadly divided into two viewpoints, with one represented by Edward Coke equating the Common Law with professional reasoning and the other represented by Matthew Hale and William Blackstone, grounding the Common Law in the “consent” of the people or the general custom of the land. While Bentham’s Comment on the Commentaries was directed at Blackstone, I will argue that Bentham’s criticism of the Common Law and his Pannomion must be understood as a more comprehensive and effective challenge against the Common Law tradition as has been suggested by Bentham studies.

Two Types of Common Law Theory

  • 2 A. Cromartie, “The Idea of Common Law as Custom”, in A. Perreau-Saussine and J. Murphy (eds.), The (...)

2In a study on customary law, Alan Cromartie noted that in pre-Benthamite Common Law lies the tension “between its account of what the lawyers did-the patterns of thought and behaviour that might be said to constitute a trained professional-and its attempt to identify their esoteric practice with principles engendered by the wider population.”2 The former account is represented by Coke and the latter by Hale and Blackstone.

Common Law as Artificial Reason

  • 3 E. Coke, The First Part of the Institutes of the Lawes of England, in The Selected Writings of Sir (...)
  • 4 A. Boyer, Sir Edward Coke and the Elizabethan Age, Stanford, 2003, p. 88.
  • 5 E. Coke, Part Twelve of the Reports, in The Selected Writings of Sir Edward Coke, vol. 1, ed. S. Sh (...)

3In The First Part of the Institutes of the Lawes of England (1628), Coke argued that “reason is the life of the Law, nay the common law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every mans naturall reason.”3 In short, Coke’s Common Law was based on “the communal, professional wisdom of the bar-intelligence refined by training, by artifice.”4 In terms of the rule of law, Coke, in 1608, famously argued against James I who tried to judge a legal case by himself on the basis that “he thought the Law was founded upon reason, and that he and others had reason, as well as the Judges”:5

  • 6 Ibid.

that true it was, that God had endowed his Majesty with excellent Science, and great endowments of nature; but his Majesty was not learned in the Lawes of his Realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law, which Law is an act which requires long study and experience, before that a man can attain to the cognizance of it; And that the Law was the Golden metwand and measure to try the Causes of the Subjects; and which protected his Majesty in safety and peace.6

4In addition, Coke, in his Reports, writes that:

  • 7 E. Coke, Third Reports, 84b, cited at A. Cromartie, Sir Matthew Hale 16091676: Law, Religion and P (...)

the office of an interpreter is to make such construction not only that one and the same author be not against himself, but also that the resolutions of judgements reported in any one book be not by any literal interpretation expounded against any resolution or judgement reported in any other, but that all si fieri possit should stand together.7

  • 8 Cromartie, Sir Matthew Hale 16091676, p. 18.
  • 9 See ibid., p. 101.

5According to Cromartie, it was Coke’s idea that “(o)nly a professional could hope to accomplish this feat, because only a mind that was soaked in legal detail could hope to preserve the coherence of the system as a whole.”8 Thus, it can be said that for Coke, the artificial reason of the Common Law demonstrated the coherence of the Common Law as a whole, as conveyed by the reasoning of judges.9

  • 10 E. Coke, Part Seven of the Reports, in The Selected Writings of Sir Edward Coke, vol. 1, p. 229.

6And when Coke stated in Reports that the judgment of difficult cases is “rather a renovation of judgments and censures of the reverend Judges and Sages of the law in so many ages past, than any innovation”,10 he was arguing that even in novel or challenging cases, judges do not make but rather develop the law by extending the coherence of the Common Law.

  • 11 T. Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England, in A. Cro (...)
  • 12 Ibid., p. 89.

7As is well known, however, Thomas Hobbes fiercely criticised Coke’s theory of the Common Law by pointing out the subjectivity and the indeterminacy of artificial reason. In A Dialogue Between a Philosopher and a Student, of the Common Laws of England, Hobbes introduced and criticised Coke’s definition of theft. According to Hobbes, Coke defined theft as “a Felonious, and fraudulent taking and carrying away by any Man, or Woman, of the meer Personal Goods of another, not from the Person, nor by night in the House of the owner.”11 For Coke, if anything that was annexed to real property was stolen, it was not in fact theft but should be considered as trespass on real property. However, as theft was a felony and punished severely than trespass, Hobbes could point out that “how unconscionable a thing is it, that he that steals a shilling worth of Wood; which the Wind hath blown down, or which lyeth Rotten on the ground, should be Hang’d for it [because it is theft and a felony], and he that takes a Tree worth 20 or 40 shillings, should Answer only for the Dammage [because it is trespass and not a felony].”12

  • 13 Ibid., p. 88 n(288).
  • 14 These are the maxims explained by Francis Bacon. See M. Lobban, A History of the Philosophy of Law (...)
  • 15 See ibid., p. 40.

8Coke’s definition of theft was based on a maxim of the Common Law which was “everything that is more worthy draws to itself that which is less.”13 For Coke and the Common Law lawyers, this maxim was the most important judicial source and indeed, more important than approved precedent. Other examples of the maxim included “the law look to proximate, and not remote causes since it would be infinite for the law to judge the causes of causes” and “a man was not held to be at fault where the act is compulsory and not voluntary, and where there is not a consent and election.”14 These maxims were obtained by induction from cases running through the Common Law. As these maxims were refined by learned Common Law lawyers, Coke and the lawyers thought that they were based on the artificial reason of the Common Law. In addition, Coke and the lawyers used maxims to resolve cases where there was no clear authority or precedent, believing these maxims to reflect the reasons of the Common Law.15

9However, due to the absurd result of Coke’s definition of theft, which was based on a maxim of the Common Law, Hobbes refuted Coke’s artificial reason:

  • 16 Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England, p. 88.

But if his Definitions must be the Rule of Law; what is there that he may not make Felony, or not Felony, at his Pleasure? But seeing it is not Statute-Law that he says, it must be very perfect Reason, or else no Law at all; and to me it seems so far from Reason as I think it ridiculous.16

  • 17 Ibid., p. 10.

10For Coke, the Common Law as, and by, artificial reason should have an inherent authority. However, there was a possibility that the layman’s conception of reason would replace professional reason and Hobbes argued “that the Reason which is the Life of the Law, should be not Natural, but Artificial I cannot conceive.”17 For Hobbes, considering the subjectivity and the indeterminacy of what was reasonable in the Common Law-which was, for Hobbes, illustrated by the example of the definition of theft-Coke’s identification of the law with lawyers’ reasons was gravely insufficient for the foundation of law and had deprived the sovereign of legislative power. Thus, Hobbes could argue that law should be based on the natural reason of the sovereign or the interpretation of natural law by judges who were authorised by the sovereign itself. This was a crisis of the authority of the Common Law and Hale attempted to reply to Hobbes by grounding the authority of the Common Law on more positive sources.

Common Law Positivism

  • 18 M. Hale, The History of the Common Law of England, ed. C.Gray, Chicago, 1971, p. 3.

11Hale’s theory of the Common Law was developed in The History of the Common Law of England, posthumously published in 1713. At the beginning of the work, Hale divided the English law into the written law and the unwritten law. He also divided the unwritten law into three constituents. First, although Hale noted that the unwritten law or the Common Law “obtain’d their Force by immemorial Usage or Custom”,18 he argued that the great bulk of the Common Law had old statutes as their sources and therefore were authorised and legitimised. For instance,

  • 19 Ibid., p. 4.

those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of Parliament, (because what is before Time of Memory [i.e. 1189] is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom.19

  • 20 Ibid., p. 44.
  • 21 See Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, p. 86.
  • 22 Hale, The History of the Common Law of England, p. 3.
  • 23 See Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, p. 70.

12For Hale, “many of those Things that we now take for Common Law, were undoubtedly Acts of Parliament.”20 As quoted above, Hale himself admitted that it was difficult to pinpoint the original statutes that transformed into the Common Law. Hale argued that there was an original contract in England that created a system which could make and amend laws.21 Although there was no concrete evidence of this original contract, Hale noted that the content of the contracts could be inferred by constant usage in England to be “the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old.”22 In addition, Hale noted that people had also consented to the legislative power of the King and both Parliaments.23 Thus, for Hale, those parts of the Common Law that were first introduced as acts of Parliament received their authority from the consent of the people as well.

13One of the other two constituents of the Common Law was judicial customs, such as those of conveyances, wills, deeds and judicial decisions that did not begin as statutes. However, the authority of these customs also seemed to have been derived from the positive source. According to Hale, they have “obtain’d their Force by immemorial Usage or Custom”:

  • 24 M. Hale, “Touching the Nature of Law in General”, in G. Postema (ed.), Matthew Hale: On the Law of (...)

(b)ecause the long usage carries with it, not only the consent of the community that is bound by it, but also of the legislative authority that tacitly consents to it; and so though it hath not the formality of other instituted laws, yet it hath the substance and equivalence of an institution by the legislative authority.24

14In summary, rather than basing the Common Law on the artificial reason of lawyers as Coke did, Hale was essentially arguing that the Common Law was authorised by the consent of the English people through legislation or continual acquiescence.

  • 25 E. Coke, Part Six of the Reports, in The Selected Writings of Sir Edward Coke, vol. 1, p. 151.
  • 26 Hale, The History of the Common Law of England, p. 45.
  • 27 See C. Gray, “Editors Introduction”, in Hale, The History of the Common Law of England, pp. xxxix (...)
  • 28 Hale, The History of the Common Law of England, p. 45.
  • 29 Ibid., p. 46.

15According to Hale, the third constituent of the Common Law was judicial decisions. The difference between Coke and Hale’s approaches can be highlighted by their respective attitudes towards judicial decisions. Coke’s argument that “generalities never bring any thing to a conclusion”25 implies the superiority of the reasonableness or substance of the law to the formality of rules in judicial decisions. Hale, by contrast, emphasised that precedents “have a great Weight and Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is.”26 One of the grounds for the difference was the emergence of a sharper awareness of the distinctions between the roles of each branch of government and a clear subordination of the court to the parliament in terms of legislation in seventeenth-century England.27 However, the view that artificial reason points to the coherence of the Common Law was important for Hale as well. Therefore, Hale argued that it was necessary for decisions to “hold a Consonancy and Congruity with Resolutions and Decisions of former Times.”28 His main device of legal development was by analogy, which referred judges to “former Resolutions, either in Point or agreeing in Reason or Analogy with the Case in question.”29

  • 30 W. Blackstone, Commentaries on the Laws of England, 4 vols., Chicago, 1979, vol.1, p. 68.
  • 31 J. Bentham, A Comment on the Commentaries and A Fragment on Government, eds. J. H. Burns and H. L. (...)
  • 32 See Cromartie, “The Idea of Common Law as Custom”, p. 223.

16In comparison to Coke and Hale, it is possible to say that in Blackstone’s legal theory, artificial reason was supposed to be crystallised in the Common Law. This aspect of Blackstone’s thinking was ascertained when he argued that the established customs and maxims were the same because “the authority of these maxims rests entirely upon general reception and usage.”30 For Coke, maxims such as “law looks to proximate and not remote causes” are the summation of the reason of the Common Law, which helped judges to develop it coherently. By contrast, Blackstone’s identification of the maxims with established customs reflects his static, rather than dynamic, view of the Common Law. As Bentham pointed out in A Fragment on Government that Blackstone “decked her [the Common Law] out …. from the toilette of classic erudition”,31 Blackstone’s Common Law was not found in the “classic erudition” or the reasoning of judges, but comprised of rules that received the force of law due to usage or universal reception.32

17On the other hand, we should not overemphasise the role of natural law in Blackstone’s theory. In the first volume of his Commentaries on the Laws of England (1765), Blackstone famously stated:

  • 33 Blackstone, Commentaries on the Laws of England, vol.1, p. 41.

This law of nature, being co-eval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.33

  • 34 See Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, p. 100.
  • 35 See Blackstone, Commentaries on the Laws of England, vol.1, p. 32.
  • 36 See A. Alschuler, “Rediscovering Blackstone”, University of Pennsylvania Law Review 145(1), 1996, p (...)

18However, as Michael Lobban argued, the substantial part of Blackstone’s descriptions of English law was derived from customary law, and his notion of law is more similar to Hale’s than it is to John Locke’s natural law theory.34 Blackstone was, as is well known, the first professor to teach English law at the University. He was highly critical of Coke’s view of law as artificial reason or as consisting of the collective wisdom of lawyers, which, according to him, could only be learnt through the practice of law.35 Therefore, he tried to replace it by a view of law as a system of rules which could be easier to understand. In his Commentaries on the Laws of England, Blackstone tried to describe the Common Law as a system of rules by using a few core principles of natural law. However, he derived most of the rules from English customary law and argued that civil authorities could complement these principles differently in different places and at different times.36

  • 37 See D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britai (...)
  • 38 See ibid., p. 135.

19Blackstone was particularly critical of natural law reasoning in areas such as real property law where there were many established Common Law rules. The typical case was his criticism against Lord Mansfield, who argued that law was founded in equity, reason and good sense.37 In his Perrin v. Blake (1769) judgment, Mansfield criticised Shelley’s rule on inheritance as obsolete from the natural law standpoint. Shelley’s rule stated, “a grant to A for life, then to the heirs of A, gives A a fee simple absolute”, which was established after Shelley’s Case (1581). Mansfield criticised this rule as it placed priority on the formalities in law without respect to the “natural” intentions of testators.38 Against this, Blackstone, in 1772, replied:

  • 39 W. Blackstone, “An Argument, By Mr. Justice Blackstone, upon delivering Judgment in the Exchequer C (...)

[T]here is hardly an antient rule of property, but what has in it more or less of a feodal tincture … but, whatever their parentage was, they are now adopted by the common law of England, incorporated into its body, and so interwoven with its policy, that no court of justice in this kingdom has either the power or (I trust) the inclination to disturb them.39

20Thus, it is possible to say that Blackstone had a positivistic view of the Common Law. As to the role of judges, Blackstone argued that judges:

  • 40 Blackstone, Commentaries on the Laws of England, vol. 1, p. 69.

[decide] not according to his own private judgment, but according to the known laws and customs of the land; [are] not delegated to pronounce a new law, but to maintain and expound the old one.40

Bentham’s Comprehensive Criticism of Common Law Theories

21Relying upon recent research, we can summarise that there were three categories of Common Law theory before Bentham: (1) law as artificial reason, which based the Common Law on the reasons or the collective wisdom of lawyers (Coke); (2) the more static or positivistic view of law where the Common Law was supposed to be a system of positive rules which were said to be consented to by the legislatures (Hale) and the people (Hale/ Blackstone); and though less dominant, (3) the Common Law based on natural law as argued by Mansfield. Of course, like Hale’s Common Law theory, there may be some hybrids, but this is a useful context in which to analyse Bentham’s criticisms of the Common Law.

Bentham’s Criticisms of Natural Law and the Common Law

  • 41 See Postema, Bentham and the Common Law Tradition, 2nd, ed., p. 279.

22One of Bentham’s criticisms of the Common Law was, as explained by Gerald Postema, against the contradiction between “Liberalist” and “Rigorist” as to the nature of legal precedent.41 In Of the Limits of the Penal Branch of Jurisprudence (written from 1780 to 1782), Bentham argued that:

  • 42 J. Bentham, Of the Limits of the Penal Branch of Jurisprudence, ed. P. Schofield, Oxford, 2010 [The (...)

Whenever any past decision, in itself apparently absurd, is brought in the character of a law to govern the proposed decision in the case of litigation, there are two maxims that point different ways and press for opposite determination. … Stare decisis is the maxim of the one; salus reipublicae [the welfare of people], or something like it, the motto of the other.42

23This dilemma was restated by Bentham as that between:

  • 43 Ibid., p. 194.

Utility viewed through a different medium: the one of the general utility which results from the adherence to established precedents: the other of the particular utility which results from the bringing back the current of decision at any rate into the channel of original utility from which the force of precedent, they suppose, had drawn it aside.43

  • 44 According to Postema, Lord Camden represented the “Rigourist”. See Postema, Bentham and the Common (...)

24Although Bentham did not refer to it, he might have had in mind the disagreement between Blackstone and Mansfield’s views as to Shelley’s rule, as discussed in the preceding section.44

  • 45 Bentham, Of the Limits of the Penal Branch of Jurisprudence, p. 163.
  • 46 J. Bentham, An Introduction to the Principles of Morals and Legislation, eds. J. H. Burns & H. L. A (...)
  • 47 Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, p. 2 (...)

25On the other hand, David Lieberman has comprehensively analysed Bentham’s criticism against the Common Law’s rule-making, which also involved his criticism of natural law. In Of the Limits of the Penal Branch of Jurisprudence, Bentham argued that in the Common Law, “whether there be any thing in it or not that has been marked with the stamp of authority, makes no difference: if authoritative, it is particular; and therefore, no law: if general, it is unauthoritative: and therefore, again no law.”45 According to Lieberman, Bentham’s point was that because the authoritative, legalistic nature of judicial functions was confined to a personal case, the general rule of the Common Law was just appearances or ideas. In addition, Bentham severely criticised natural law theory as a principle of sympathy and antipathy which “approves or disapproves of certain actions … merely because a man finds himself disposed to approve or disapprove of them.”46 Based on this, Lieberman concluded that “(b)y reducing reason and principle to mere individual opinion Bentham had eliminated” the Common Law lawyers’ option to “appeal to those maxims of nature and reason with which common law ultimately harmonized and those general principles of law which a particular judicial ruling in fact only served to illustrate.”47

  • 48 D. Lieberman, “Bentham on Codification”, in S. Engelmann (ed.), Selected Writings: Jeremy Bentham, (...)
  • 49 Although not examined in this paper, Bentham fiercely criticised lawyers’ use of legal fiction, as (...)

26Thus, Postema and Lieberman seemed to have focused on Bentham’s criticism of Common Law theory which was based on his criticism of natural law. The criticism of natural law theory was relevant to Bentham’s criticism of the Common Law. However, if we analyse Bentham’s Comment on the Commentaries (written in 1774 and 1775), we can find that Bentham’s criticism was more directly related to the context of the Common Law. As I described in the preceding section, the Common Law’s development had predominantly been explained by artificial reason, although there was also a positivist view of the Common Law at the time of Bentham’s writing. In this section, I will emphasise my contention that Bentham’s criticism of the Common Law was comprehensive by examining Bentham’s criticism on those streams of Common Law theory which, in recent research, have been emphasised as the main streams throughout seventeenth- and eighteenth-century England. Of course, as to Bentham’s criticism against traditional Common Law reasoning, significant analysis has been made in Bentham studies. Lieberman, for instance, referred to Bentham’s criticism that the “practitioners’ manuals, pedagogic guides, privately assembled reports of cases, antiquarian treatises” cannot make “a system of general rules and thus never attained the certainty and stability available in legislation.”48 However, I would like to show that Bentham’s criticism in the Common Law context can be argued more concretely. In the following, I will focus on Bentham’s criticism of the notion of artificial reason advanced by Common Law lawyers and on the positivistic view of the Common Law, which has received little attention in Bentham studies.49

Bentham’s Criticism of the Artificial Reason of Common Law Lawyers

  • 50 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 417 n.

27According to Bentham’s definition, artificial reasons are “such reasons as pass with Lawyers, and with no one else, have got the name of technical reasons; reasons peculiar to the art, peculiar to the profession.”50 In the section “Common Law: division of it into customs and maxims” of Comment on the Commentaries, Bentham’s criticism of the artificial reason of the Common Law began with his distinction between a maxim and a custom. As discussed above, Blackstone equated the established customs and maxims by grounding both in terms of general reception and usage. Against this, like the Common Law lawyers before Blackstone, Bentham attempted to distinguish those, but his distinction arose from a more critical point of view. According to Bentham:

  • 51 Ibid., p. 185.

A custom is an assemblage of acts… What then is a maxim? Is this too an assemblage of acts? nothing like it. What then is it? a species of discourse, a proposition containing the opinion of him who is the author of it concerning what is in some respect or other the state of the Law.51

  • 52 Ibid., p. 190.
  • 53 Ibid.
  • 54 Ibid.
  • 55 Ibid., p. 191.

28For the Common Law lawyers, the maxims should have been formulas of logic immanent in the common law or conclusions of the artificial reason. For Bentham, however, the maxim was “(a) general proposition serving to express some observation made by him that utters it, concerning the coincidence of sundry Legislative regulations or Judicial usages in some point of view”.52 He added that “(a)s these regulations or usages are more or less numerous the proposition is the more general, the maxim is the more extensive.”53 Bentham attempted to demonstrate the indefinable nature of the maxim by saying that there was no “consideration to fix the least extent such a proposition can have consistent with its title to the name of maxim”,54 but what mattered the most for him was the authority of the maxim, echoing Hobbes. In contrast to legal custom, which should be made by judges, a maxim can be made by “anyone whatsoever. A judge it may be, it may be any one else. The maxim becomes current or not current, according to the apparent truth and importance of it, or the credit of him who utters it.”55

  • 56 Ibid., p. 240.

29Bentham also depicted the artificial and legal reason as what “a lawyer would not dislike”,56 and this criticism seemed quite similar to his own criticism of natural law, which we saw at the beginning of this section. For the Common Law lawyers, the maxims reflected the artificial reason derived from legal materials. However, for Bentham:

  • 57 Ibid., p. 191.

Of Maxims the number is arbitrary and unlimited. Any man has the making them, and every man may make as many as he pleases. For the number of points of resemblance real or imaginary between so copious a collection of rules as those which may be requisite to announce the commands and authoritative usages that constitute the body of the Law is unlimited and inexhaustible.57

  • 58 Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, p. 2 (...)

30Thus, Bentham could argue that the appeals to artificial reason through the maxims of the Common Law were “nothing more than any individual’s particular claim about the substance of the law”58 as the appeals to the maxims of nature were.

  • 59 Blackstone, Commentaries on the Laws of England, vol. 1, p. 72.
  • 60 Ibid.
  • 61 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 208.
  • 62 Ibid.
  • 63 Ibid.

31In Comment on the Commentaries and Of the Limits of the Penal Branch of Jurisprudence, we find Bentham’s direct criticism against artificial reason or “the toilette of classic erudition” which, according to Bentham, Blackstone had attempted to eliminate. In the section of “Common Law: Judicial Decisions” in Comment on the Commentaries where Bentham discussed the reports and the treatises of the Common Law, Bentham commented on Blackstone’s statement that “besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law”59 and “whose treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles.”60 According to Bentham, the law treatises possessed no historical authority and “the authority it possessed, if any, would be argumentative.”61 What Bentham attempted to demonstrate against Blackstone was “(h)ow a Law treatise, by being made to serve as an index of unapparent decisions, may be made to do the office of a report”,62 or similarly, “how a work of the argumentative kind may be transformed, as it were, into an historical one.”63

  • 64 Ibid.

32For Blackstone and other Common Law lawyers generally, the function of legal treatises is to admit and assume the existence of decisions. For Bentham, however, “it is only an indirect one [function]: an use which is made of it only out of necessity: and which, where that necessity ceases, is no longer made of it.”64 Instead, for Bentham:

  • 65 Ibid., p. 209.

The direct function of a Law Treatise may be thus conceived. Decisions, to a given effect, being given, what is the general rule of Law to be deduced from them? The direct and natural function of a Law Treatise on any subject is to give answer to this question.65

  • 66 Ibid., p. 208.
  • 67 Ibid.
  • 68 Ibid.

33In other words, the legal treatise “is used as presumptive evidence of the existence of decisions to such or such an effect: but it is used as such only on supposition that there are no direct accounts of decisions on that behalf extant.”66 According to Bentham, the authors of legal treatises “lay down, as the results of argumentation, a general rule of Law”67 and “produce the decisions themselves; if conformable, they supersede it: if unconformable, they over-rule it.”68 This shows that Bentham was fully aware of the role of artificial reason in the Common Law; using his criticism of maxims, Bentham developed a strong argument against that tradition.

  • 69 Boyer, Sir Edward Coke and the Elizabethan Age, p. 117.

34As we saw, the rule in Shelley’s case set out in Wolfe v Shelley (1579–81) stated that “a grant to A for life, then to the heirs of A, gives A a fee simple absolute.” This rule “appears in Coke’s Report [which is a legal treatise rather than an official law report], but in no other account of what the judges held.”69 This was an interesting instance of “the direct function of a Law Treatise” which Bentham criticised in Comment on the Commentaries. According to David Smith:

  • 70 D. Smith, “Was There a Rule in Shelley's Case?” The Journal of Legal History 30(1), 2009, p. 54.

Coke’s manuscript report of Wolfe v Shelley, in contrast to the printed report, reveals that he did not believe that the judges based their decision on the rule, but that they accepted another line of reasoning that relied upon the intent of the settlor. Yet the redaction of the manuscript account in the printed Reports presented the judges’ reasoning in the case more ambiguously. Invested with Coke’s authority and skill as a reporter, his statement of the rule in Wolfe v Shelley has assumed a canonical place in legal history. When combined with the assumption by much later commentators that the rule was simply a declaration of a principle acknowledged in late Elizabethan law, it was possible for historians to assume that the decision itself had applied the rule. Such tidiness is misleading.70

  • 71 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 95.
  • 72 Bentham, Of the Limits of the Penal Branch of Jurisprudence, p. 196.
  • 73 Ibid., p. 191.
  • 74 Ibid.

35For Coke, this rule was derived from the artificial reason and the result of the coherent development of the Common Law, which was mostly ensured by maxims. However, it was not the case with Bentham. Even the decision was a genuine one. The force of decisions “was spent upon the particular parties, and the particular points of their conduct they were meant to regulate”,71 and given that the maxims which deduced Common Law rules were “arbitrary and unlimited”, the rule in the Common Law could not have the authority of law. In Of the Limits of the Penal Branch of Jurisprudence, Bentham restated, “in short, if there be still a man who will stand up for the existence and certainty of a rule of customary law, give him every thing he asks, he must still have recourse to fiction to produce any such rule.”72 In Common Law rule-making, “first in point of original authority comes the record: then comes the report: last of all comes the treatise.”73 However, the rules in the legal treatises were “the shadow of the shadow of a shade: and it is this shadow that is worshiped as the substance.”74

Bentham’s Challenge Against Common Law Positivism

  • 75 Blackstone, Commentaries on the Laws of England, vol. 1, p. 74.

36On the other hand, Bentham also developed a criticism of Common Law positivism which was dominant during the eighteenth century and represented by Blackstone. Bentham argued against Blackstone’s statement that “it is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.”75 Bentham’s criticism of this statement was based on his distinction of “custom in pays” and “custom in foro”. “Custom in pays” is the general custom upon which Blackstone attempted to ground the Common Law. However, with Bentham, the Common Law had nothing to do with the general custom but was “custom in foro”, meaning the custom of judges. Thus, Bentham argued that:

  • 76 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 183.

To constitute … a custom in the legal sense of the word, to constitute what I would call a custom obligatory, or a custom legalized, two things are necessary. 1st The Custom in pays, the custom itself that is to be legalized. 2dly One act at least of the person or assemblage of persons that are to legalize it.76

37He goes on to argue that:

  • 77 Ibid., p. 191.

Who is it makes a Custom? (I mean a custom in pays that is become a legal one) any one? no, but the judge who first punishes the non-observance of it after it has become a Custom in pays. Who is it makes a Custom in foro? any one? no, but the Judges only whose acts are those which go to make it up.77

38In the section “Common Law: how far Consented to by the People” of Comment on the Commentaries, Bentham discussed perjury from the distinction of custom in pays and custom in foro:

  • 78 Ibid., pp. 21819.

(T)he mode of conduct legalized is the forbearance of the complex mode of action characterized by that name. Judges by punishing some instance of the sort of act thus named, may be said to have legalized, that is, we may remember, rendered obligatory, the forbearance of it. A mode of action thus mischievous is plainly of such nature that it is not any custom of forbearing from it, but the mischievousness of the act that the Judges would look to as a warrant for their punishing the act, that is, for their legalizing the forbearance. It is not therefore on a mere spontaneous custom of forbearing from such an act that the Judge, we may suppose, whoever it was that first punished it, grounded his decision.78

  • 79 J. Waldron, “Customs Redeemed by Statute”, Current Legal Problems 51, 1998, p. 105.
  • 80 Ibid., p. 100.

39According to Bentham, there was a “missing link” between the general custom and the custom of judges. Therefore, as Jeremy Waldron argued, the rules of the Common Law were decided by the judges’ “own reasoning about what is desirable and undesirable in settling the details of legalization of a custom.”79 This, of course, leads us to Bentham’s famous criticism of the Common Law as “judge-made law”. Moreover, it may be argued from Bentham’s point of view as a law-reformer that the Common Law was defective because it could be changed merely by changing the judicial custom.80

  • 81 Lieberman, “Bentham on Codification”, pp. 4645.
  • 82 P. Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham, Oxford, 2006, p. v.

40With regard to this criticism, Lieberman recently contrasted Bentham’s Pannomion, where the question of legal rights and obligations was “to be determined by the standard of the greatest happiness principle”, and the Common Law, where “rights and obligations came to be identified over time through the course of legal practice.”81 It may be interesting to relate Bentham’s criticism with his broader political theory that lawyers were protecting the sinister interests of the ruling class, although “the sinister interest” was Bentham’s notion emerging around 1804,82 about 30 years after writing Comment on the Commentaries. In this article, however, I would like to focus on the wide scope of availability of Bentham’s distinction between the general custom and the custom of judges, rather than Bentham’s substantive criticism.

  • 83 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 223n.
  • 84 Ibid.

41In Comment on the Commentaries, Bentham argued that grounding the Common Law in general custom was an error which “his predecessors seem to have embraced with open arms.”83 Although Bentham was not explicit, he might have had Hale in mind, who attempted to ground the Common Law upon the consent of the people which were supposed to be testified by the acquiescence of the English nation or the long usage in that country. In another statement, Bentham argued that “it was an error indeed too favourable to their [lawyers’] interests and prejudices to be severely scrutinized”,84 suggesting that Bentham had a thorough understanding of the positivistic tradition of the Common Law, which, as we saw in the preceding section of this paper, based the Common Law on the “consent” of the people.

Bentham’s Pannomion and the Common Law

42In his famous book, Ancient Law, Henry Maine summarised the development of Common Law as follows:

  • 85 H. Maine, Ancient Law, London, 1920, p. 35-6.

It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. In fact they have been changed. A clear addition has been made to the precedents … .85

43This description of Maine is applicable to the two types of Common Law theory which we saw in Section 1. Coke was arguing that judges were revisiting past judgments and, according to Hale and Blackstone, judges were expounding the rules consented to by the people, notwithstanding the substantial changes in the Common Law made by judges. However, as seen in the preceding section, Bentham could convincingly show that these arguments did not hold by exposing the fact that the judges did actually make laws. In the following, I will argue that Bentham’s Pannomion could provide a reasonable explanation for legal development as an alternative to the Common Law theory and enjoyed a legitimacy that Common Law theory could not provide.

Bentham’s Pannomion and the Coherence of Law

  • 86 P. Schofield, “Jeremy Bentham and H.L.A.Hart’s ‘Utilitarian Tradition in Jurisprudence”’, Jurisprud (...)
  • 87 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 416.
  • 88 Ibid., p. 417.
  • 89 Ibid.

44Like Coke, Bentham was pursuing coherence and integrity in his Pannomion, which was meant to serve as a complete code of laws. The coherence of the Pannomion was to be supplied by the principle of utility. As Philip Schofield pointed out, from Bentham’s view of natural arrangement, which was integrated by the principle of utility and classified offences according to the harms that they produced, the coherence by artificial reason or “the technical arrangement of English Law…was ‘confused’ and ‘unsatisfactory”’86 and, in Bentham’s words, “is a sink that with equal facility swallow any garbage that is thrown into it.”87 Here, Bentham was focusing on replacing “technical reasons, such as none but a Lawyer gives, nor any but a Lawyer would put up with”88 by utilitarian “reasons, such as were they in themselves what they might and ought to be, and expressed too in the manner they might and ought to be, any man might see the force of as well as he [a lawyer].”89

45As argued in Of the Limits of the Penal Branch of Jurisprudence, in Bentham’s Pannomion:

  • 90 Bentham, Of the Limits of the Penal Branch of Jurisprudence, p. 221.

the civil branch of each law … is but the complement of the penal: it is on the penal that every proposition which can be found in a book of law depends for its obligative force. [So, by…] parcelling out what relates to the several offences, the whole law is parcelled out.90

46Bentham admitted that new laws would be added to his Pannomion:

  • 91 J. Bentham, “Pannomial Fragments”, in J. Bowring (ed.), The Works of Jeremy Bentham, 11 vols., New (...)

By power of classification a species of legislative power is exercised. Thus when an enactment to any effect has been framed, if by any proposition bearing the form of a command or a rule, enlargement or retrenchment is applied to the genus, or say class of objects which contribute to constitute the subject-matter of the command;—by this means, in a sort of indirect way, by and with the help of the other words which enter into the composition of the enactment, is produced the effet of a different enactment: one of the classes of which that same subject-matter is composed receives thereby contraction or enlargement, and a fresh classification is made thereby.91

47Bentham thought that new offences, which would create new laws, would be placed in appropriate species of offences in his Pannomion. Therefore, Bentham thought that the coherence or integrity in his Pannomion would be maintained unlike in the Common Law where the supposed coherence was meant to be provided by the “arbitrary and unlimited” maxims:

  • 92 J. Bentham, “A General View of a Complete Code of Laws”, in The Works of Jeremy Bentham, vol. 3, p. (...)

It is objected to the forming a code of laws, that it is not possible to foresee every case which can happen. I acknowledge that it is not possible to foresee them individually, but they may be foreseen in their species; for example, a person may be assured that every species of offence are comprised in the tables which this work includes, although he may not be assured that every possible individual offence has been foreseen.92

Implications of Bentham’s Distinction Between Custom in pays and Custom in foro

48The purpose of Bentham’s distinction between Custom in pays and Custom in foro was summarised by Postema:

  • 93 Postema, Bentham and the Common Law Tradition, 2nd ed., p. 268.

If we wash the history of Common Law with the realist’s acid we will see that it could not exist except for the constant creative, though absolutely unauthorized, actions of the judiciary. Quite literally, Common Law is nothing if it is not judge-made.93

49Bentham’s criticism has many followers in the Anglo-American legal academy. For instance, Roscoe Pound, one of the most influential scholars in the United States in the early twentieth century, argued that:

  • 94 R. Pound, “Common Law and Legislation”, Harvard Law Review 21(6), 1908, p. 406.

Formerly it was argued that the common law was superior to legislation because it was customary and rested upon the consent of the governed. Today we recognize that the so-called custom is a custom of judicial decisions, not a custom of popular actions. We recognize that the legislation is the most truly democratic form of law-making. We see in legislation the more direct and accurate expression of the general will.94

50Similarly, John Gardner, a leading contemporary legal philosopher, argued that:

  • 95 J. Gardner, “Some Types of Law”, in D.Edlin (ed.), Common Law Theory, Cambridge, 2007, p. 73.

The founding myths of the Common Law as a legal tradition tend to present it as a system of custom in pays. It is law that rises up from the general population, as opposed to statue law, which descends upon the population from the king. This founding myth is in many ways ridiculous. … The common law doctrines in use now are the creatures of judicial use.95

  • 96 N. Graham, “Restoring the Real to Real Property Law, in W. Prest (ed.), Blackstone and his Comme (...)

51One of Bentham’s aims in introducing the Pannomion was to abolish the Common Law, which had privileged landowners by mythologising the traditional Saxon land law. Benham thought that traditional land law benefited the few by limiting the land ownerships mainly to hereditary successions. Bentham tried to replace such a person-thing model of the Common Law with the person-person model of his Pannomion by eroding the distinction between real property and personal property. In other words, Bentham, to promote “the greatest happiness of the greatest number”, tried to transform the locus of social wealth from land to law, as suggested by Nicole Graham.96 This was facilitated by Bentham’s criticism of Common Law positivism through his distinction between Custom in pays and Custom in foro, namely, through his point that the “consent” or the “assent” of the people according to Common Law positivists, such as Blackstone and Hale, was a fiction.

  • 97 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 221.

The fallacy lies in the abusive application of the term “assent”: in the giving to a uniform course of action according to a Law, after that Law is passed, and punishment threatened for the breach of it, that same name “assent”, as is given to an express declaration of the concurrence of the party’s will with the Law before its passing.97

52Contrastingly, Bentham’s Pannomion would not be introduced without members of Parliament, who were in turn elected by the people. Thus, according to Bentham, his Pannomion could provide the legitimacy that the Common Law could not.

Conclusion

53In this paper, I have aimed to situate Bentham’s criticism of the Common Law in the context of English law. As we saw in section 1, there are three major types of Common Law theory: “Common Law as an Artificial Reason”, “the Common Law Positivism” and the natural law theory of the Common Law. In section 2, we also discussed Bentham’s criticism of each of the three types of Common Law Theory. For Bentham, the artificial reason of the Common Law, which was supposed to demonstrate the coherence of the Common Law as a whole, was a fiction. Bentham also refuted the Common Law Positivism’s core claim that the Common Law was authorised by the consent of the English people. On the other hand, Bentham’s Pannomion seems to have escaped these defects. As discussed in section 3, Bentham’s Pannomion, in theory, was integrated by the principle of utility and was meant to be introduced by elected members of Parliament. In Bentham studies, Bentham’s criticism of the natural law theory of the Common Law has been thoroughly discussed. However, if we take Bentham’s criticism of “Common Law as an Artificial Reason” and “the Common Law Positivism” into consideration, it becomes clearer that Bentham’s criticism was a comprehensive one against the entire tradition of the Common Law, and that Bentham’s Pannomion was meant to be a comprehensive replacement of that tradition.

Haut de page

Bibliographie

Alschuler, A. (1996), “Rediscovering Blackstone”, University of Pennsylvania Law, 145(1), pp. 1–55.

Bentham, J. (1966), “Pannomial Fragments”, in J. Bowring (ed.), The Works of Jeremy Bentham, 11 vols., New York, vol. 3, pp. 211–30.

Bentham, J. (1966), “A General View of a Complete Code of Laws”, in The Works of Jeremy Bentham, vol. 3, pp. 155–210.

Bentham, J. (1977), A Comment on the Commentaries and A Fragment on Government, eds. J. H. Burns and H. L. A. Hart, London [The Collected Works of Jeremy Bentham].

Bentham, J. (1996), An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns & H. L. A. Hart with a New Introduction by F. Rosen, Oxford [The Collected Works of Jeremy Bentham].

Bentham, J. (2010), Of the Limits of the Penal Branch of Jurisprudence, ed. P. Schofield, Oxford [The Collected Works of Jeremy Bentham].

Blackstone, W. (1787), “An Argument, By Mr. Justice Blackstone, upon delivering Judgment in the Exchequer Chamber, in Perrin and another v. Blake”, in F. Hargrave (ed.), A Collection of Tracts, Relative to the Law of England, London [Eighteenth Century Collection Online], pp. 489–510.

Blackstone, W. (1979), Commentaries on the Laws of England, 4 vols., Chicago.

Boyer, A. (2003), Sir Edward Coke and the Elizabethan Age, Stanford.

Coke, E. (2003), Reports, in The Selected Writings of Sir Edward Coke, vol. 1, ed. S. Sheppard, Indianapolis.

Coke, E. (2003), The First Part of the Institutes of the lawes of England, in The Selected Writings of Sir Edward Coke, vol. 2, ed. S. Sheppard, Indianapolis.

Cromartie, A. (1995), Sir Matthew Hale 16091676: Law, Religion and Philosophy, Cambridge.

Cromartie, A. (2007), “The Idea of Common Law as Custom”, in A. Perreau-Saussine and J. Murphy (eds.), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, Cambridge.

Gardner, J. (2007), “Some Types of Law”, in D. Edlin (ed.), Common Law Theory, Cambridge, pp.51–77.

Graham, N. (2009), “Restoring the ‘Real’ to Real Property Law”, in W. Prest (ed.), Blackstone and his Commentaries: Biography, Law, History, Portland, pp.151-67.

Gray, C. (1971), “Editor’s Introduction”, in M. Hale, The History of the Common Law of England, ed. C. Gray, Chicago.

Hale, M. (1971), The History of the Common Law of England, ed. C. Gray, Chicago.

Hale, M. (2017), “Touching the Nature of Law in General”, in G. Postema (ed.), Matthew Hale: On the Law of Nature, Reason, and Common Law, Oxford, 2017, pp. 3-16.

Hobbes, T. (2005), A Dialogue between a Philosopher and a Student, of the Common Laws of England, in A. Cromartie and Q. Skinner (eds.), Writings on Common Law and Hereditary Right, Oxford.

Lieberman, D. (1989), The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, Cambridge.

Lieberman, D. (2011), “Bentham on Codification”, in S. Engelmann (ed.), Selected Writings: Jeremy Bentham, New Haven and London, pp. 460–77.

Lobban, M. (1991), The Common Law and English Jurisprudence 17601850, Oxford.

Lobban, M. (2007), A History of the Philosophy of Law in the Common Law World, 16001900, Dordrecht.

Postema, G. (2019), Bentham and the Common Law Tradition, 2nd, ed., Oxford.

Pound, R. (1908), “Common Law and Legislation”, Harvard Law Review 21(6), pp. 383–407.

Schofield, P. (2006), Utility and Democracy: The Political Thought of Jeremy Bentham, Oxford.

Schofield, P. (2010), “Jeremy Bentham and H. L. A. Hart’s ‘Utilitarian Tradition in Jurisprudence’’’, Jurisprudence 1(2), pp. 147–67.

Smith, D. (2009), “Was There a Rule in Shelley's Case?”, The Journal of Legal History 30(1), pp. 53–70.

Tusseau, G. (2019), “Towards a Linguistic Criticism of Legal Hegemony: Some remarks on ‘Bentham v. Judges and Co.’”, Canadian Journal of Law & Jurisprudence 32 (1), pp. 173-94.

Waldron, J. (1998), “Customs Redeemed by Statute”, Current Legal Problems 51, pp.93–114.

Haut de page

Notes

1 For instance, see D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, Cambridge, 1989; M. Lobban, The Common Law and English Jurisprudence 17601850, Oxford, 1991; G. Postema, Bentham and the Common Law Tradition, 2nd, ed., Oxford, 2019.

2 A. Cromartie, “The Idea of Common Law as Custom”, in A. Perreau-Saussine and J. Murphy (eds.), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, Cambridge, 2007, p. 203.

3 E. Coke, The First Part of the Institutes of the Lawes of England, in The Selected Writings of Sir Edward Coke, vol. 2, ed. S. Sheppard, Indianapolis, 2003, p. 701.

4 A. Boyer, Sir Edward Coke and the Elizabethan Age, Stanford, 2003, p. 88.

5 E. Coke, Part Twelve of the Reports, in The Selected Writings of Sir Edward Coke, vol. 1, ed. S. Sheppard, Indianapolis, 2003, p. 481.

6 Ibid.

7 E. Coke, Third Reports, 84b, cited at A. Cromartie, Sir Matthew Hale 16091676: Law, Religion and Philosophy, Cambridge, 1995, p. 18.

8 Cromartie, Sir Matthew Hale 16091676, p. 18.

9 See ibid., p. 101.

10 E. Coke, Part Seven of the Reports, in The Selected Writings of Sir Edward Coke, vol. 1, p. 229.

11 T. Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England, in A. Cromartie and Q. Skinner (eds.), Writings on Common Law and Hereditary Right, Oxford, 2005, p. 87.

12 Ibid., p. 89.

13 Ibid., p. 88 n(288).

14 These are the maxims explained by Francis Bacon. See M. Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, Dordrecht, 2007, pp. 389.

15 See ibid., p. 40.

16 Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England, p. 88.

17 Ibid., p. 10.

18 M. Hale, The History of the Common Law of England, ed. C.Gray, Chicago, 1971, p. 3.

19 Ibid., p. 4.

20 Ibid., p. 44.

21 See Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, p. 86.

22 Hale, The History of the Common Law of England, p. 3.

23 See Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, p. 70.

24 M. Hale, “Touching the Nature of Law in General”, in G. Postema (ed.), Matthew Hale: On the Law of Nature, Reason, and Common Law, Oxford, 2017, p. 14.

25 E. Coke, Part Six of the Reports, in The Selected Writings of Sir Edward Coke, vol. 1, p. 151.

26 Hale, The History of the Common Law of England, p. 45.

27 See C. Gray, “Editors Introduction”, in Hale, The History of the Common Law of England, pp. xxxixxxii.

28 Hale, The History of the Common Law of England, p. 45.

29 Ibid., p. 46.

30 W. Blackstone, Commentaries on the Laws of England, 4 vols., Chicago, 1979, vol.1, p. 68.

31 J. Bentham, A Comment on the Commentaries and A Fragment on Government, eds. J. H. Burns and H. L. A. Hart, London, 1977 [The Collected Works of Jeremy Bentham], p. 413.

32 See Cromartie, “The Idea of Common Law as Custom”, p. 223.

33 Blackstone, Commentaries on the Laws of England, vol.1, p. 41.

34 See Lobban, A History of the Philosophy of Law in the Common Law World, 16001900, p. 100.

35 See Blackstone, Commentaries on the Laws of England, vol.1, p. 32.

36 See A. Alschuler, “Rediscovering Blackstone”, University of Pennsylvania Law Review 145(1), 1996, p. 26.

37 See D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, p. 86-7.

38 See ibid., p. 135.

39 W. Blackstone, “An Argument, By Mr. Justice Blackstone, upon delivering Judgment in the Exchequer Chamber, in Perrin and another v. Blake”, in F. Hargrave (ed.), A Collection of Tracts, Relative to the Law of England, London, 1787 [Eighteenth Century Collection Online], p. 498.

40 Blackstone, Commentaries on the Laws of England, vol. 1, p. 69.

41 See Postema, Bentham and the Common Law Tradition, 2nd, ed., p. 279.

42 J. Bentham, Of the Limits of the Penal Branch of Jurisprudence, ed. P. Schofield, Oxford, 2010 [The Collected Works of Jeremy Bentham], pp. 1934.

43 Ibid., p. 194.

44 According to Postema, Lord Camden represented the “Rigourist”. See Postema, Bentham and the Common Law Tradition, 2nd ed., p. 279.

45 Bentham, Of the Limits of the Penal Branch of Jurisprudence, p. 163.

46 J. Bentham, An Introduction to the Principles of Morals and Legislation, eds. J. H. Burns & H. L. A. Hart with a New Introduction by F. Rosen, Oxford, 1996 [The Collected Works of Jeremy Bentham], p. 25.

47 Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, p. 235.

48 D. Lieberman, “Bentham on Codification”, in S. Engelmann (ed.), Selected Writings: Jeremy Bentham, New Haven and London, 2011, p. 469.

49 Although not examined in this paper, Bentham fiercely criticised lawyers’ use of legal fiction, as discussed in G. Tusseau’s “Towards a Linguistic Criticism of Legal Hegemony: Some remarks on ‘Bentham v. Judges and Co.’”, Canadian Journal of Law & Jurisprudence 32 (1), 2019. As Tusseau noted, Bentham argued that by using legal fiction, and therefore “(b)y transforming the legal language into a separate language which could not be understood by the average citizen, the judges created a specific language for their use only” (Ibid., p. 187). Bentham argued that this made it possible for lawyers to monopolize profits accrued from holding judicial office.

50 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 417 n.

51 Ibid., p. 185.

52 Ibid., p. 190.

53 Ibid.

54 Ibid.

55 Ibid., p. 191.

56 Ibid., p. 240.

57 Ibid., p. 191.

58 Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain, p. 235.

59 Blackstone, Commentaries on the Laws of England, vol. 1, p. 72.

60 Ibid.

61 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 208.

62 Ibid.

63 Ibid.

64 Ibid.

65 Ibid., p. 209.

66 Ibid., p. 208.

67 Ibid.

68 Ibid.

69 Boyer, Sir Edward Coke and the Elizabethan Age, p. 117.

70 D. Smith, “Was There a Rule in Shelley's Case?” The Journal of Legal History 30(1), 2009, p. 54.

71 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 95.

72 Bentham, Of the Limits of the Penal Branch of Jurisprudence, p. 196.

73 Ibid., p. 191.

74 Ibid.

75 Blackstone, Commentaries on the Laws of England, vol. 1, p. 74.

76 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 183.

77 Ibid., p. 191.

78 Ibid., pp. 21819.

79 J. Waldron, “Customs Redeemed by Statute”, Current Legal Problems 51, 1998, p. 105.

80 Ibid., p. 100.

81 Lieberman, “Bentham on Codification”, pp. 4645.

82 P. Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham, Oxford, 2006, p. v.

83 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 223n.

84 Ibid.

85 H. Maine, Ancient Law, London, 1920, p. 35-6.

86 P. Schofield, “Jeremy Bentham and H.L.A.Hart’s ‘Utilitarian Tradition in Jurisprudence”’, Jurisprudence 1(2), 2010, p. 157.

87 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 416.

88 Ibid., p. 417.

89 Ibid.

90 Bentham, Of the Limits of the Penal Branch of Jurisprudence, p. 221.

91 J. Bentham, “Pannomial Fragments”, in J. Bowring (ed.), The Works of Jeremy Bentham, 11 vols., New York, 1966, vol. 3, p. 215.

92 J. Bentham, “A General View of a Complete Code of Laws”, in The Works of Jeremy Bentham, vol. 3, p. 205.

93 Postema, Bentham and the Common Law Tradition, 2nd ed., p. 268.

94 R. Pound, “Common Law and Legislation”, Harvard Law Review 21(6), 1908, p. 406.

95 J. Gardner, “Some Types of Law”, in D.Edlin (ed.), Common Law Theory, Cambridge, 2007, p. 73.

96 N. Graham, “Restoring the Real to Real Property Law, in W. Prest (ed.), Blackstone and his Commentaries: Biography, Law, History, Portland, p. 160.

97 Bentham, A Comment on the Commentaries and A Fragment on Government, p. 221.

Haut de page

Pour citer cet article

Référence électronique

Michihiro Kaino, « Bentham’s Comprehensive and Effective Challenges Against the Common Law Tradition  »Revue d’études benthamiennes [En ligne], 16 | 2019, mis en ligne le 20 décembre 2019, consulté le 11 février 2025. URL : http://journals.openedition.org/etudes-benthamiennes/5963 ; DOI : https://doi.org/10.4000/etudes-benthamiennes.5963

Haut de page

Auteur

Michihiro Kaino

Doshisha University (Japan)  

Articles du même auteur

Haut de page

Droits d’auteur

Le texte et les autres éléments (illustrations, fichiers annexes importés), sont « Tous droits réservés », sauf mention contraire.

Haut de page
Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search