Bentham_Common_Law_and_Codification_2017.pptx

Bentham, Common Law
& Codification
Anne Brunon-Ernst
Senior Lecturer Panthéon Assas (Paris 2)
Institut Michel Villey (Paris 2), Centre Bentham (ScPo, Paris)

Preliminary comments
Lecture in English
 Complexity of language used: 18th century
English
BUT:
 Recorded => audio/video available on the
Paris2 website for a limited time
 PPT slides to help understanding of key points
 Full text of the lecture available on academia
website:
http://u-paris2.academia.edu/AnneBrunon
=> Concentrate on listening rather than taking
notes

Introduction
Common Law System Continental Systems
No written constitution Written constitutions
Civil law based on caselaw Civil law based on Civil Codes
Binding precedents Persuasive jurisprudence
Judge-made law Statute laws

Introduction
 Jeremy Bentham (1748-1832)
◦ fierce critic of the common law
◦ advocated systematic codification of the laws
◦ termination of a legal system based on case-
law
◦ rationalisation of the laws according to the
principle of utility.

Introduction
 Aim of the lecture
 better understanding of the reforms and
foundations of the system through the
lens of opponents of the common law.

Introduction
 Lord Bingham in Kay v Lambeth (2006):
 ‘While adherence to precedent has been
derided by some, at any rate since the
time of Bentham, as a recipe for the
perpetuation of error, it has been a
cornerstone of our legal system’ (at
paragraph 148)

Outline
 1. Bentham’s life
 2. Codes in context
 3. Bentham’s codes

I. Bentham’s life and ideas
1748 1832
George II (GB) Queen Victoria (GB)
Louis XV (France) Louis-Philippe (France)
Candle Public gas lamps
Horse-drawn coaches Steam railways
Enlightenment
Voltaire
Helvetius
Beccaria
JB Say
Ricardo
(Darwin)
(Marx)

 58 year long career as a philosopher
◦ Financially independent
◦ Precocious child (at Oxford U. at 12 yrs old)
◦ Legal background (called to the Bar)
 approx 75.000 folio written

 Bowring edition
◦ Works of Jeremy Bentham, ed. J. Bowring,
1838-1843, 11 vols
 Scientific edition of the Bentham
Project
◦ The Collected Works of Jeremy Bentham, ed. J.
H. Burns (1961-79), J. R. Dinwiddy (1977-83),
F. Rosen (1983-94), F. Rosen and P. Schofield
(1995-2003), P. Schofield (2003-), London and
Oxford. 30 vols to date

 Utility = Happiness
 ‘The principle of utility is the foundation of
the present work […]. By the principle of
utility is meant that principle which approves
or disapproves of every action whatsoever
according to the tendency it appears to have
to augment or diminish the happiness of the
party whose interest is in question: or, what
is the same thing in other words to promote
or to oppose that happiness. I say of every
action whatsoever, and therefore not only of
every action of a private individual, but of
every measure of government’, Bentham,
Introduction, p. 11

 Utility = Happiness = Pleasures > Pains
 ‘Nature has placed mankind under the governance of
two sovereign masters, pain and pleasure. It is for
them alone to point out what we ought to do, as well
as to determine what we shall do. On the one hand
the standard of right and wrong, on the other the
chain of causes and effects, are fastened to their
throne. They govern us in all we do, in all we say, in
all we think: every effort we can make to throw off
our subjection will serve but to demonstrate and
confirm it. In words a man may pretend to abjure
their empire: but in reality he will remain subject to it
all the while. The principle of utility recognises this
subjection, and assumes it for the foundation of that
system’, Bentham, Introduction, p. 11

TIMELINE OF BENTHAM’S WORKS
 1770-1785:writings on law and
legislation
 1785-1791:practical projects (in Russia,
Prison Panopticon etc)
 1791-1795:writings for the French
Revolution
 1795-1803:practical projects (Poor
Panopticon, police reform etc)
 1808/9: conversion to democratic ideals
 1809-1832: codification proposals

Legislator of the World
 Madison, the American President on the topic
(1811), as well as to different State
legislatures
 Spanish and Portuguese revolutions
 Bentham writes for Greece, to offer a new
system of government in their emancipation
from Turk power
 in correspondence with Presidents of
Argentina and Columbia, to push forward his
reforms
 in close contact with Bolivar, the South
American revolutionary

II. Codes in Context
 Codes are foreign to the English legal
tradition
 But does not mean that there was no
debate around codification
 Outline
◦ A. Blackstone’s reading of the common law,
and Bentham’s criticism
◦ B. Code Napoleon, and Bentham’s opinion
◦ C. Codification in Britain

Blackstone and the common law

 Scope
◦ rights of persons
◦ the rights of things
◦ private rights
◦ public wrongs
 Pros/Cons
◦ Handy
◦ Codification of the common law?
◦ Whig interpretation of history
◦ Contradictions:
 English government best government
 BUT: Ideal government in the past

- Human reason
- Vs
- Laws of nature/ laws of revelation
- ‘it is still necessary to have recourse to
reason; whose office it is to discover (…)
what the law of nature directs in every
circumstance of life: by considering, what
method will tend the most effectually to
our own substantial happiness’
Blackstone, Commentaries

Flawed arguments (1/3)
‘the goodness of a custom depends upon having
been used time out of mind’
‘And indeed 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’.
‘the original contract of society; which, though
perhaps in no instance it has ever been formally
expressed at the first institution of a state’
 Blacktone, Commentaries

Original contract (individuals agree
voluntarily to laws in society)
Laws & Customs used since time
immemorial
Laws & Customs are good
The English legal system is good (‘English
Liberty’)
Do not reform the system

Original contract
In theory, but not in practice
Where lies the justification of the English
legal system?

Judges at the heart of the system
‘How are these customs or maxims to be known,
and by whom is their validity to be determined?
The answer is, by the judges in the several
courts of justice. They are the depositories of the
laws. […] For it is an established rule to abide by
former precedents, where the same points come
again in litigation […] it is not in the breast of
any subsequent judge to alter or vary from [a
permanent rule], according to his private
sentiments: he being sworn to determine, not
according to his own private judgment, but
according to the known laws and customs of the
land; not delegated to pronounce a new law, but
to maintain and expound the old one.’

Bentham vs Blackstone
=/=> status quo (tradition)
Good = pleasure > pains
=/=> ‘sinister’ interests (Judge and co)

e.g.: Jarndyce v. Jarndyce (Court of
Chancery) in Charles Dickens, Bleak
House (1852-1853).

 Form
◦ Layout
◦ Absence of definition
◦ Style
 Substance
◦ inconsistency of the contractual theory
◦ Unfounded statements about the nature and
form of government
◦ expositor vs. censor

Bentham and Code Napoleon
 One generation later, clearer codification
experiments on the Continent (1804 - )

 the Napoleonic codes [were] ‘to the
French nation a treasure of unspeakable
value’, Bentham, dated 21st June 1821
 ‘the Augean stable [of French Law],
though he has not purified altogether,
[Napoleon] has ridden of no small part of
its filth: and by this title alone, had he no
other, Bonaparte would have been a
Hercules’, Bentham, dated 21st June 1821

 In the 1820s
◦ Bentham praises the Napoleonic Code:
 Not perfect venture
 But helped to clarify/rationalize French laws
 However
◦ Increasing criticism of the Napoleonic Code:
 Lacks adaptability of judge-made law
 Law as arithmetical calculations

Codification in Britain
 In the 1820s
 Common law no longer praised for its
respect of tradition
 Consensus that the common law is in
need of reform

 Piece-meal changes
 Codification of the Criminal law
◦ Non-binding digest of criminal laws
 Codification of the Civil law
◦ Moderate attempts at reforming some
substantive aspects of conveyancing and
inheritance
◦ Some procedural reforms:
 abolition of original writs
 abolition of real actions

Codification/Consolidation in Britain
 1826 Criminal Law Act (consolidation of acts
related to criminal procedure)
 1827 Larceny Act (consolidating ninety-two
statutes)
 1827 Malicious Injuries to Property Act
(consolidating forty-eight statutes)
 1828 Offences against the Person Act
(consolidating fifty-six statutes)
 1830 Forgery Act (consolidating 120
statutes)
 1848 Criminal Law Consolidation Bill (failed)

Codification  consolidation

III. Bentham’s Codes
Outline
 Legislator of the World
 Codes for all
 Redefining Codes?

 Bentham coins the term ‘codification’
 Bentham and codification abroad
◦ Fertile grounds for codes in 19th c
(emancipation and reform)
◦ Experiments
 Russia in the 1770s
 France in the 1790s
 Legislator of the World

 Bentham, Essay in the Influence of Time and
Place in Matters of Legislation, in Works of
Jeremy Bentham, ed. J. Bowring, 1843, Vol.
1, chap 3, oll.libertyfund.org
 Of the circumstances which make the laws
that would be expedient in one country
ineligible in another, some are grounded in
nature, some in prejudice: some depend on
the state and condition of objects that are
extrinsic with regard to the mind of man,
some on the state and condition of the mind
of man itself.

Codes for all
- Publicity of government action:
proceedings and daily work
- Public Opinion Tribunal (POT): critical
assembly of the people handing down
praise and blame for public action
- Nomography: the science of writing
legislation

Redefining Codes
- Codes of law for people from all walks of
life: Law accessible to all users (builders,
children, employees)
- Three-tier division of Codes
- Criminal/penal code
- Civil code
- Constitutional code

Redefining Codes
 ‘What is a penal code of laws? What is a civil
code? Of what nature are their contents? Is it
that there are two sorts of law, the one penal,
the other civil, so that the laws in a penal code
are all penal laws, while the laws in a civil code
are all civil laws? Or is it, that in every law there
is some matter which is of a penal nature, and
which therefore belongs to the penal code and at
the same time other matter which is of a civil
nature, and which therefore belongs to the civil
code? Or is it that some laws belong to one code
or the other exclusively, while the others are
divided between the two?’
 Bentham, Introduction p. 299.

Redefining Codes
 ‘Now an offence is an act prohibited, or (what
comes to the same thing) an act of which the
contrary is commanded, by the law: and
what is it that the law can be employed in
doing, besides prohibiting and commanding?’
Bentham, Limits, p. 3.
 ‘That book belongs to the penal branch which
dwells most upon the subject of punishment:
that, to the civil, which, without making any
mention, or at least without making much
mention, of the article of punishment, dwells
most upon cases in which punishment is or is
not to be applied’. Bentham, Limits, p. 241

Redefining Codes
 ‘The civil code would consist chiefly of
mere masses of expository matter. The
imperative matter, to which those masses
of expository matter respectively
appertained, would be found – not in that
same code – not in the civil code – nor in
a pure state, free from all admixture of
punitory laws; but in the penal code – in a
state of combination – involved […] in so
many correspondent punitory laws.’
Bentham, Introduction, p. 306.

Redefining Codes
 Criminal code  list of offenses to which
are appended punishments
 Civil code  dictionary of offenses, rights
and duties
 Constitutional code  rights and duties in
the allocation of power in a government.

Conclusion
 Bentham and the common law tradition: a
re-assessment
◦ Bentham in line with the ideas of the Continent
(Enlightenment, 19th c. Napoleonic Codes etc)
BUT
◦ Bentham at odds with the common law
tradition in England (where consolidation >
codification)

Conclusion
Want to know more about Bentham?
 Transcript of the lecture onhttp://u-
paris2.academia.edu/AnneBrunon
 Up-to-date bibliography
◦ P. Schofield, ‘The Legal and Political Legacy of
Jeremy Bentham’, in Annual Review of Law and
Social Science, Vol. 9 (2013): 51-70
 Start with the websites of
◦ Bentham Project (UCL)
◦ Centre Bentham (Ecole de Droit, ScPo, Paris)
 Two academic journals on Bentham (online)
◦ Journal of Bentham Studies (Bentham Project)
◦ Revue d’études benthamiennes (Centre Bentham)

Bentham_Common_Law_and_Codification_2017.pptx

Recommandé

Recommandé

Contenu connexe

Similaire à Bentham_Common_Law_and_Codification_2017.pptx

Similaire à Bentham_Common_Law_and_Codification_2017.pptx (15)

Plus de ruinslastrefuge

Plus de ruinslastrefuge (14)

Dernier

Dernier (20)

Bentham_Common_Law_and_Codification_2017.pptx