Jurisprudence and Jeremy Bentham and Blackstone and Fragment on Government and major points and criticism of Blackstone

Jeremy Bentham is one of the more exciting intellects of the late 18th-early 19th centuries. His vast achievements in philosophy, ethics, theories of penology, legislation and other areas, as well as his quirky personality and writing style, make him an attractive but difficult person to grasp. In addition, he left more than 80,000 manuscript pages of his work to the University of London, most of which is now in the process of being edited. His importance for jurisprudence is in his challenge to Blackstone and his emphasis on the importance of statutory law (hence he is one of the first "positivists") to the derogation of the common law. We will be reading the first 23 pages of A Fragment on Government (1776), from the Internet edition, along with the corresponding notes begininng on page 49, for the week. Rather than trying to summarize the Fragment, I will make brief reference to about a dozen points I think you should note from the reading today (pages 1-13). For Thursday we will examine some of his criticism of the chapter I assigned in Blackstone.

1. The Epigraph is from Montesquieu, whose "Spirit of the Laws" (1748) was the most significant book in political philosophy of the 18th century, influencing Jefferson and others. The quotation can be roughly translated, "Nothing draws back the progress of knowledge more than a bad work of a celebrated author: because before one can instruct, you have to correct the mistakes." What is he referring to?

2. The Spirit of the Preface. Bentham is writing this as a young man (he is 28). This will be his first "major work," and the spirit it breathes is one of energy and excitement. The first sentence gives us an impression of this man: he strives for the perfection that the 18th century philosophers says is possible, but he will seek to realize this perfection in the intellectual/moral/legal sphere. "Improvement" was in the air, and Bentham was fully committed to it.

3. Bentham's Significant Idea. Already as a young man he had come up with the central insight and goal of his philosophy, what he calls his "fundamental axiom," that "it is the greatest happiness of the greatest number that is the measure of right and wrong (p.1)." This insight has not yet been developed by other thinkers and he will try to define a legal system with the help of this principle.

4. The Fundamental Criticism of his teacher, William Blackstone. Blackstone held the first endowed chair of jurisprudence at Oxford, where Bentham studied. Bentham thinks that Blackstone's approach in his massive and popular Commentaries is completely wrong-headed. In a word, Bentham dislikes Blackstone because of a "grand and fundamental" reason--Blacktone's "antipathy to reformation." What does Bentham mean by that phrase?

5. Bentham's Vocabulary is often difficult and arresting. For example, he is the only one who uses the word condivident (p.2) to speak of the other competing or areas of law into which Blackstone has divided the world. What would be the condivident branches, for Blackstone? Then, he refers to the work of censure, in Blackstone's work as being a "parergona work of supererogation (p. 5)." What might he mean by that? By the way, Bentham also coined a term that is spoken by most of us almost every day ("internationalism"), yet others of his terms failed to connect (a "post-prandial vibration" was an after-lunch walk).

6. Note Bentham's Method, explained on pages 3 and 4. "My design, therefore, was to take such a portion of it (the Introduction to Blackstone's Commentaries), as might afford a fair and adequate specimen of hte character and complexion of the whole...This, however narrow in extent, was the most conspicuous, the most characteristic part of our Author's work." Or, as he says later, "What determined me to begin with this small part of it is, the facility I found in separating it from everything that precedes or follows it (p. 8)."

Question for Thought/Discussion. How would you characterize the tone of Bentham's address of Blackstone's work? Patronizing? withering scorn? respect? gentle criticism? outrage? impatience? high regard? Find texts to support your reading. Do you think he is overstating the case when he talks about a "war" he thinks himself "bound to wage against this work" (p. 4)?

7. Differentiate in your mind between the role of the Censor and the Expositor, for Bentham (pp. 4-5). Which is Blackstone? I think the issue is more complex than it appears at first. Bentham says that if Blackstone's work is merely expositional, he would have loads of other historical critics and Bentham woudn't need to enter the fray. So, something about Blackstone's work is "censorial." But then Bentham says that Blackstone considered the censorial task a "paregona work of supererogation." How do you reconcile this? What does Bentham see his task as censor? What does he mean when he says, "it is the censorial part alone that has drawn from me that sort of animadversion I have been led to bestow indiscriminately on the whole (p. 7)"?

8. How does he characterize his countrymen and the past of his country (p. 6)? He begins by calling them a "passive and enervate race." But then he also says some choice things about the nature of the lawmaking process. He goes on to contrast the work of two Europeans: Tourreil and Beccaria. Do you see him deriving pleasure in his characterization of the former (note 7, p. 50)?

9. He uses a well-known literary device called paralepsis beginning on page 8, where he seems to say, "I am not going to mention XYZ of Blackstone's work," and then he goes ahead and mentions them in the footnotes. That is, paralepsis (and the extreme form of it, called proslepsis) is a rhetorical device in which one seems to "lay aside" a point but, by mentioning that you are going to lay it aside, you draw attention to it. We will look at several of the things he "passes over" in class. What is the effect of the rhetorical method?

10. Fictions, Fables, Presumptions, Technical Categorization of law. These, it seems to me, are the reasons that he criticizes Blackstone's method of arrangement and argumentation in the Commentaries. For example, in the very long note 15 (pp. 53-54), when he discusses the evils of "Law Latin," he goes on to say, "This was doing much; but it was not doing every thing. Fiction, tautology, technicality, circuity, irregularity, inconsistency remain. But above all the pestilential breath of Fiction poisons the sense of every instrument it comes near (p. 54)." He mentions the "Artifice" of lawyers which tends to keep people ignorant of what the law really is.

11. What merits does Bentham see in Blackstone's work? Beginning in the middle of page 9, he goes through the ways that Blackstone has "put a polish upon that rugged science (i.e., jurisprudence)."

12. In the middle of page 10, Bentham contrasts Blackstone's method and his own. The contrast is between the "technical" style of the former and the "natural" style which Bentham says will be characteristic of his work. He adopts the Aristotelian emphasis (from the Nicomachean Ethics) on happiness as the goal of life; he sees his principle of "utility" as capturing the essence of happiness for the greatest number. Laws should reflect the principle of utility. Using this principle, Bentham can lop off all those sections in Blackstone concerned with "prerogative, misprisions, contempts, felonies, praemunires (p. 11)."

On Thursday we will discuss Bentham's criticism of Blackstone more particularly, as well as aspects of Bentham's biography and philosophy of interest to understand his work.

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