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Bentham and Blackstone: A Lifetime's Dialectic*

  • J. H. Burns (a1)

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.

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1 Bentham MSS UC xxx. 60123, xxxi. 75130, University College London. Black-stone's name is also used in the headings of UC xxx. 124–64, xxxi. 174, 131229—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, 1977 (The Collected Works of Jeremy Bentham), p. xxxiv (henceforth Comment/Fragment (CW)).

3 The Correspondence of Jeremy Bentham, vol. i, ed. Sprigge T. L. S., London, 1968 (The Collected Works of Jeremy Bentham), p. 367. 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.

5 Ibid., p. 413.

6 Ibid., p. 393

7 i.e. SirBlackstone William , Commentaries on the Laws of England, 4 vols., Oxford, 17651769, iv. 49. Subsequent references to the Commentaries will be in the conventional abbreviated form used above in the text.

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

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, 18381843, ii. 443.

15 Comment/Fragment (CW), p. 408. 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.

19 Cf. Bowring, i. 398 (The Book of Fallacies). Elsewhere (Bowring, x. 519) 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. 197 (‘De Tocqueville on Democracy in America [II]’); xviii. 273–4 (On Liberty).

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

21 Long, pp. 35ff.; and cf. Burns J. H., ‘Scottish philosophy and the science of legislation’, Royal Society of Edinburgh Occasional Papers, 2–6 (1985), 1819.

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

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

24 Ibid., p. 484.

25 Correspondence (CW), i. 305. 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, 143–53: letters dated in the spring and summer of 1778.

29 Bowring, x. 54.

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.

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

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

33 Ibid., pp. 346–47.

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); 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. 24–7 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. xixlv.

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. 133–50; Hart H. L. A., Essays on Bentham, Oxford, 1982, ch. IX (pp. 220–12), ‘Sovereignty and Legally Limited Government’; Rosen F., Jeremy Bentham and Representative Democracy: a Study of the Constitutional Code, Oxford, 1983, ch. III (pp. 4154), ‘Sovereignty and Democracy’.

41 Comment/Fragment (CW), pp. 488–89. Cf. also Of Laws in General (CW), pp. 1819nn.; and the passages from the ‘Vue générale d'un corps complet de droit’ discussed in Burns, ‘Bentham on Sovereignty’, pp. 144–45.

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

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:

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.

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. 1116.

* 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.

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