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Bentham and Blackstone: A Lifetime's Dialectic*

Published online by Cambridge University Press:  26 January 2009

J. H. Burns
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Extract

The full range of Bentham's engagement with Blackstone's view of law is beyond the scope of a single article. Yet it is important to recognize at the outset, even in a more restricted enquiry into the matter, that the engagement, begun when Bentham, not quite sixteen years of age, started to attend Blackstone's Oxford lectures (from which the Commentaries on the Laws of England emerged in the first edition of 1765–9), was indeed a lifelong affair. Whatever Bentham had in mind when, at the age of eighty, in 1828, he began to write a work entitled ‘A familar view of Blackstone: or say Blackstone familiarized’, the manuscripts at least suffice to prove that ‘Our Author’ was still in the forefront of his mind at that octogenarian but still indefatigably active stage of his career. Every aspect of Bentham's multifarious intellectual activity over the intervening decades had been touched in some measure by his response to Blackstone's ideas. It still seems true to say what was said a dozen years ago:

It would be an exaggeration to say that Bentham elaborated his own conception of law by way of a constant and conscious dialectic with the views of Blackstone. But it would be an exaggeration for which the evidence would afford some excuse.

Type
Research Article
Information
Utilitas , Volume 1 , Issue 1 , May 1989 , pp. 22 - 40
Copyright
Copyright © Cambridge University Press 1989

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Footnotes

*

A version of this paper was presented on 6 March 1987 at the Folger Institute Center for the History of British Political Thought, which is supported by grants from the Research Programs Division of the National Endowment for the Humanities (an independent federal agency), the John Ben Stow Memorial Trust, the George Washington University, and the Exxon Education Foundation.

References

1 Bentham MSS UC xxx. 60–123, xxxi. 75–130Google Scholar, University College London. Black-stone's name is also used in the headings of UC xxx. 124–64, xxxi. 1–74, 131–229Google Scholar—bearing dates between 1828 and 1831.

2 A Comment on the Commentaries and A. Fragment on Government, ed. Burns, J. H. and Hart, H. L. A., London, 1977Google Scholar (The Collected Works of Jeremy Bentham), p. xxxivGoogle Scholar (henceforth Comment/Fragment (CW)).

3 The Correspondence of Jeremy Bentham, vol. i, ed. Sprigge, T. L. S., London, 1968Google Scholar (The Collected Works of Jeremy Bentham), p. 367Google Scholar. The phrase ‘my capital work’ is used by Bentham in a letter to his father dated 1 October 1776: ibid., i. 358.

4 Commenti Fragment (CW), p. 340.Google Scholar

5 Ibid., p. 413.

6 Ibid., p. 393

7 i.e. SirBlackstone, William, Commentaries on the Laws of England, 4 vols., Oxford, 1765–1769, iv. 49Google Scholar. Subsequent references to the Commentaries will be in the conventional abbreviated form used above in the text.

8 Comment/Fragment (CW), p. 13.Google Scholar

9 Ibid., p. 202.

10 Ibid., p. 346.

11 Ibid., p. 397.

12 Ibid., pp. 397–98.

13 Ibid., p. 399.

14 The Works of Jeremy Bentham, ed. Bowling, John, 11 vols., Edinburgh, 1838–1843, ii. 443.Google Scholar

15 Comment/Fragment (CW), p. 408Google Scholar. Bentham's footnote at this point reads: ‘I Comm. 70. If no reason can be found for an institution, we are to suppose one: and it is upon the strength of this supposed one we are to cry it up as reasonable; It is thus that Law is justified of her children.’

16 Cf. ibid., p. 404.

17 Ibid., p. 393.

18 Ibid., p. 399; and cf. Long, Douglas, Bentham on Liberty: Jeremy Bentham's idea of liberty in relation to his utilitarianism, Toronto and Buffalo, 1977, p. 89.CrossRefGoogle Scholar

19 Cf. Bowring, , i. 398Google Scholar (The Book of Fallacies). Elsewhere (Bowring, , x. 519Google Scholar) Bentham refers to ‘the ancester-worshipper's argument’. For ‘Chinese stationariness’ cf. Mill, John Stuart, Essays on Politics and Society, ed. Robson, J. M., 2 vols., Toronto, 1977 (Collected Works of John Stuart Mill, vols. xviii and xix), xviii. 197Google Scholar (‘De Tocqueville on Democracy in America [II]’); xviii. 273–4 (On Liberty).

20 Comment/Fragment (CW), p. 440.Google Scholar

21 Long, , pp. 35ff.Google Scholar; and cf. Burns, J. H., ‘Scottish philosophy and the science of legislation’, Royal Society of Edinburgh Occasional Papers, 2–6 (1985), 18–19.Google Scholar

22 Cf. his contribution to Lind, John's An Answer to the Declaration of the American Congress in Correspondence (CW), i. 341–44.Google Scholar

23 Comment/Fragment (CW), p. 346Google Scholar; and cf. pp. 55ff. and 482–83.

24 Ibid., p. 484.

25 Correspondence (CW), i. 305Google Scholar. Bentham goes on to indicate what Gibbon ‘attacks’; but, as the editor points out, this passage in the letter has been heavily deleted.

26 Cf. ibid., i. 185 and n.4: Bentham's translation was ‘in the press—almost out’ by 8 June 1774.

27 Ibid., i. 369.

28 The Correspondence of Jeremy Bentham, vol. ii, ed. Sprigge, T. L. S., London, 1968 (The Collected Works of Jeremy Bentham), pp. 115–22, 139–40, 143–53Google Scholar: letters dated in the spring and summer of 1778.

29 Bowring, , x. 54.Google Scholar

30 An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham), p. 11.Google Scholar

31 Cf. Correspondence (CW), i. 261.Google Scholar

32 Comment/Fragment (CW), p. 440.Google Scholar

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34 Ibid., p. 347.

35 Ibid., pp. 347–48.

36 Ibid., p. 495.

37 Of Laws in General, ed. Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham), p. 2n (Blackstone)Google Scholar; pp. 294–95 (paraphrasis).

38 For the interchange with Shelburne, cf. The Correspondence of Jeremy Bentham, vol. iii, ed. Christie, I. R., London, 1971 (The Collected Works of Jeremy Bentham), pp. 24–7Google Scholar and, especially, the first draft of Bentham's letter to Shelburne of 18 July 1781, printed on pp. 28–30. For the writing of the Constitutional Code, cf. Constitutional Code, Volume I, ed. Rosen, F. and Burns, J. H., Oxford, 1983 (The Collected Works of Jeremy Bentham), pp. xi–xlv.Google Scholar

39 Cf. Fragment on Government, ch. III.

40 Cf. Burns, J. H., ‘Bentham on Sovereignty: an Exploration’, Bentham and Legal Theory, ed. James, M. H., Belfast, 1973, pp. 133–50Google Scholar; Hart, H. L. A., Essays on Bentham, Oxford, 1982, ch. IX (pp. 220–12)Google Scholar, ‘Sovereignty and Legally Limited Government’; Rosen, F., Jeremy Bentham and Representative Democracy: a Study of the Constitutional Code, Oxford, 1983, ch. III (pp. 41–54)Google Scholar, ‘Sovereignty and Democracy’.

41 Comment/Fragment (CW), pp. 488–89Google Scholar. Cf. also Of Laws in General (CW), pp. 18–19nn.Google Scholar; and the passages from the ‘Vue générale d'un corps complet de droit’ discussed in Burns, , ‘Bentham on Sovereignty’, pp. 144–45.Google Scholar

42 Cf. Comment/Fragment (CW), p. 439 and n.Google Scholar

43 Ibid., p. 428.

44 Ibid., pp. 429–30n.

45 Ibid., p. 431.

46 Ibid., p. 432

47 Cf. ibid., pp. 479–80.

48 Ibid., pp. 156–57.

49 Ibid., p. 56.

50 Ibid., p. 402n.

51 Ibid., p. 485.

52 Ibid., p. 486.

53 Ibid., p. 56.

54 Ibid., p. 485.

55 Ibid., p. 484.

56 Ibid., p. 484n.

57 Ibid., p. 489.

58 Ibid., p. 490n.

59 Ibid., p. 489.

60 Cf., e.g., what he says in Constitutional Code, vol. I (CW), p. 45:Google Scholar

If, on any occasion, any ordinance, which to some shall appear repugnant to the principles of this Constitution, shall come to have been enacted by the Legislature, such ordinance is not on that account to be, by any judge, treated or spoken of, as being null and void: not even although its tendency, intended as well as actual, were to appear to him to be, to diminish the mass of power hereby reserved to the Constitutive Authority.

Judicial power in regard to any such ‘anti-constitutional arrangement’ is limited to declaring it to be ‘an apt ground for an excercise to be given by the Electors’ to their ultimately supreme political power.

61 Comment/Fragment (CW), p. 488n.Google Scholar

62 Ibid., p. 488.

63 Ibid., p. 56.

64 Ibid., p. 57.

65 Ibid., p. 489.

66 Ibid., p. 485.

67 Bentham examined the ‘Obstacles’ to critical jurisprudence in, e.g., UC xcvii. 1–116.Google Scholar