One of the charges Bentham made against the Church of England was that it aimed at, and achieved to some degree, the ‘prostration of understanding and will’. The phrase was taken from a visitation sermon by Bishop Howley, in which he warned against the dangers of Unitarianism as a shelter for ‘infidelity’. Fortunately, in Howley’s view, the appeal was as yet confined to men of limited education who had not spent much thought on religion, or who, ‘loving rather to question than to learn, [had] approached the oracles of divine truth without that humble docility, that prostration of the understanding and will, which [were] indispensable to proficiency in Christian instruction’.

This chapter explores the potential for the revival of the common law of contract.The emphasis is on the possibility of judicial action to reverse some of the movements explored earlier in the work. Contract scholars with a more pragmatic or practical approach to the subject have long maintained that contract law must do more to distinguish different contracting contexts and to develop appropriate rule sets accordingly. The recent engagement with the concept of relational contracting demonstrates a judicial ambition (admittedly not shared by all) to create a more responsive, contextual and flexible contract law.The development of relational contracts is considered and critiqued in the chapter. Developments in other common law jurisdictions (notably the elaboration of an organising principle of good faith in Canada) are contrasted with English law. The chapter concludes that English law is unlikely to follow the lead of other common law countries in articulating good faith principles. Limitations on the litigation system in England are also examined.

Jeremy Bentham wrote both these passages, although eighteen years separated them. The first, praising the Seditious Meetings Act of 1795, which banned large political meetings unless licensed by a magistrate, appears in Bentham’s little-known writings of 1798–9 on preventive police.3 The second, in critique of both the Seditious Meetings Act of 1817, which repeated the provisions of the Act of 1795 and added new penalties, and the suspension of habeas corpus, appears in the work by publication of which, eight years after initial drafting, Bentham declared himself a proponent of radical parliamentary reform. How is the contradiction to be explained, or how did the Bentham of 1799 come to view draconian restraints on liberty of association as a guarantor of security, when at all other times he viewed that liberty as a crucial characteristic of free governments? An examination of Bentham’s attitude to democracy sheds light upon this question and on ambiguities and developments in Bentham’s thinking about the exercise of political power and the appropriate means for its control.

This chapter subjects the revival of formal and classical law values in contract law to critical examination. The emergence of a commercially oriented contract law is explored across a number of contract developments over recent years: the reassertion of party autonomy and the emphasis on contract law as default rules; the return to a formalist style of contract interpretation; the marginalisation of equity and considerations of public policy in contract; the tendency of judges to uphold contract terms whose validity was previously regarded as questionable (‘no oral modification’ and ‘no reliance’ clauses); the dilution of common law controls on contract terms (in relation to penalties, for example).The first part of the chapter examines recent contract law developments that suggest the re-emergence of formalism in law. The second part explores the common law’s retreat from a role as general regulator of contracting activity in the context of an increasingly contractualised society.

Enterprise law is the regulation of finance, governance and rights of economic life. It includes everything from global tech corporations, to universities, to oil cartels, to arms-makers, to the health service. Enterprise law is probably the dominant cause of the most basic threats that we must resolve in the twenty-first century, namely escalating inequality, climate damage and war, because the enterprise is the primary type of association that stands between polities and families. In its literal sense, enterprise means ‘doing’ or ‘undertaking’, after the French word entreprende.

This chapter sets out the main objectives and major themes of the work. The overall aim of the project is to establish the implications of a diminishing contract law (common law in particular).By ‘diminishment’ is meant the return to formal and classical law values in the common law and a reduced field of application for the rules of contract law. A brief outline is given of the topics that are explored during the course of the book: the rise of private ordering through contracts and the legal response to this; the ‘contractualisation’ of society; the formalist turn in modern contract law; the likely future pressures on legal development (such as ‘smart contracts’).The chapter raises some initial arguments concerning the drawbacks of a diminishing contract law (lack of development of public rules of contract law; lack of legal scrutiny of many modern contracts, or aspects of them; lack of opportunity for courts to express and apply the normative values that should underpin contracting). The chapter also anticipates, and responds to, some initial questions or criticisms about the project.

As Chapter 3 explored, corporate governance centres upon the accountability of directors through votes and duties to members. Membership is mainly monopolised by shareholders. So, who are shareholders, and what influence do they exert in financial markets? For many years, real people held shares directly. Characters like Mr Salomon with his boots, Mr Macaura and his (company’s) smouldering timber, and Mr Pender in his telecoms empire helped write the script, and still animate the world imagined in company law texts.

When I got my first full-time job as an academic, a professor that I admired very much took me for lunch, and I said wanted to start a course on ‘enterprise law’. I said it would be about the economic constitution, rights, corporations and public services. ‘Oh, don’t worry about that’, said the professor, ‘what you should really think about is who you want to be.’ I went away and I thought about this carefully. I decided I wasn’t so interested in ‘being’ anybody particular, if that just meant having a title or an office, but rather I wanted to ‘do’ something.

‘Nothing travels faster than the speed of light’, wrote the author Douglas Adams, ‘with the possible exception of bad news.’ Just like our personal communications, the Internet has revolutionised our media, both in speed and nature. With ever-faster technology, public news and entertainment has shifted from print, to radio, to television and now to the web. Each new development widened the audience, and created greater psychological intimacy. Politicians and other performers entered the living room, as personal as a coffee house, a debating club in a pub, or a theatre.

‘If you want peace, prepare for war’, wrote Vegetius in the fourth century. Whether or not this was true in the twilight of Rome’s military empire, it has little evidential basis today. ‘Peace can be established’, wrote the Versailles Treaty, ‘only if it is based upon social justice.’ And as this wisdom went unheeded, as victors demanded reparations, World War Two engulfed the globe in flames again. Humanity’s desire to end war was enshrined in the United Nations (UN) Charter, and the ideals of a just society in the Universal Declaration of Human Rights. The Preamble to the UN Educational, Scientific and Cultural Organization recalled that ‘since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed’.

The present collection arises from a research project (MYRG2017–00140-FLL) funded by the University of Macau, where most of the papers were presented. It consists of fourteen chapters on related aspects of Bentham’s constitutional theory written by scholars from eight countries. None of these chapters have been previously published.

The neologism ‘legisprudence’ refers to ‘the name for the branch of legal theory that deals with legislation from a theoretical and a practical perspective’.1 In what follows, I will present an analysis of Bentham’s ‘art and science’ of legislation and try to show the relevance of his theory for modern legisprudential concerns. A fundamental problem with this field of study concerns its boundaries and its place within the domain of legal science. This is closely related to the question of whether, and possibly how, legal scholars can contribute to legisprudence rather than leaving it (for instance) to sociologists, political scientists, and other experts. I will try to show that, for Bentham, the ‘art and science of legislation’ was a branch of normative ethics that constituted a completely legitimate and indeed crucial field of research for legal scholars. I will then focus on how Bentham treated the problem of rational law-making and legislative reason-giving, which is central to legisprudence as a ‘rational theory of legislation’.2 Lastly, I confront Bentham’s theory with some of the problems that current legisprudence is addressing and examine – including in light of his late constitutional theory – the kinds of answers, if any, he would provide.

How does one begin an all-comprehensive code of laws? If you’re Jeremy Bentham, a pretty good start is the famous beginning of An Introduction to the Principles of Morals and Legislation (IPML): ‘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.’1 I suggest that Bentham never managed to improve upon this opening echo of Claude Helvétius’s De l’Esprit2 – nor could he. And this even though he was a very busy man indeed between 1780 – when IPML was printed – and his death in 1832, never losing sight of his grand ambition, and in his last years still ‘codifying like any dragon’.3

Given enterprise law’s dynamism, and the time to publish a book, many things changed since the Afterword. First, despite the cautious optimism of February 2021, Putin launched a full criminal war in Ukraine in February 2022, lost over 25 per cent of the Russian army’s combat capability in two months, instructed massacres, mass rape, and countless war crimes. This is another fossil fuelled war (Ch. 19). Europe and Germany (with ex-Chancellor Gerhard Schröder as a Gazprom director) bankrolled Putin with imports for years. Now, the EU and UK have begun to eliminate Russian fossil fuels. As must be clear, the law should stop all fossil fuels. Swapping one dictator’s oil or gas for another’s will not reduce geopolitical risk, nor stop climate damage, nor deploy the clean, cheap technology already have.