Kristi gourlay thesis post viva submission

The  Scientific  Approach  to  Legal  History  and  Legal  Reform:   comparing  the  legal  philosophy,  historical  methodology,  and  legal   science  of  Blackstone,  Kames,  and  Bentham By Kristi Gourlay A thesis submitted to University College London for the degree of PhD January 2016 Faculty of Laws UCL   1     2   I, Kristi Gourlay, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. _______________________________________   3     4   Acknowledgements I would like to thank my supervisor Philip Schofield. Without his guidance and support this thesis would not have been possible.

Thank you for believing in me and making me a better historian. I would also like to thank David Lieberman, whose feedback and suggestions inspired many ideas in this thesis. I like to think that Philip trained me to appreciate the importance in detail and precision – like looking at a masterpiece close up and seeing the detail that goes into the whole – and working with David was like stepping back and seeing how the detail comes together in the complete painting. Words cannot express how grateful I am to have worked with these two geniuses.

I would also like to thank the Bentham Project for their support, and the Faculty of Laws at University College London for their support and for providing me with funding to attend multiple conferences, which aided in the development of my thesis. Also, thank you to the Center for the Study of Law & Society at University of California, Berkeley for having me as a Visiting Scholar in Winter 2015. My time at Berkeley proved to be a fruitful experience. Furthermore, thank you to Ian Williams and Colm O’Cinneide for their advice and suggestions during the upgrade procedure.

Likewise, thank you to Prince Saprai and Simon Palmer for reading the final draft of the thesis and providing helpful feedback. Finally to my family in Canada – my mother, brothers, and sisters – thank you for always believing in me and always being there for me when I need you.                 5                                                 6       Abstract     This thesis examines how William Blackstone, Lord Kames, and Jeremy Bentham each understood the significance of history in relation to legal development. By dedicating a chapter to each writer, discussing their legal and moral theory, and then examining their use of history within their writings, I show how each writer incorporated historical study within their legal sciences, and how it informed their ideas for legal reform.

Each writer was representative of a specific moral theory – natural law, moral sense and common sense, and utilitarianism – and advocated a type of legal system. Blackstone adopted natural law theory and argued that it was the common law’s consistency with natural law that gave it validity. Kames advocated the idea of moral sense and common sense, and argued that legal change could occur within a court of equity. Finally, Bentham advocated the principle of utility, and argued that the English common law legal system should be replaced with a system of legislation based on the principle of utility.

Thus, explaining the role that history played within their legal sciences provides a window into their views on the study of history and its usefulness for understanding law and society. While it is often assumed that Bentham’s philosophy was ahistorical, Bentham’s use of history was un-tendentious in comparison to Blackstone and Kames, who were concerned to appeal to history in order to support their legal and moral theories. Because Bentham’s legal science did not directly rely on history for validation or for determining legal reform, he was able to investigate and examine history at face value without being influenced by contemporary eighteenth-century issues. Bentham, moreover, wished to create a legal system that was clear, transparent, public, and rationally calculated.

The rationality and transparency of Bentham’s legal system aimed to permit legal change to occur openly and quickly whenever needed.   7                   8         Table of Contents Chapter One: Introduction ……………………………………………………………… 13 Chapter Two: Blackstone’s History of English Law: the role of natural law in directing progress and validating continuity ……………………………………………………… 40 Section 1: Blackstone’s Legal Theory…………………………………………… 46 Section 2: Blackstone and the use of History…………………………………… 54 Chapter Three: Discovering the Science of Improvement: Kames’s study of history and human nature…………………………………………………………………………… 91 Section 1: Kames and the Holistic Understanding of Human Nature and Law… 95 Section 2: Kames, Scotland, and the History of the Law……………………… 110 Chapter Four: Bentham and the Utility of History: using history and experience to justify reform …………………………………………………………………………………… 134 Section 1: Bentham’s Legal and Moral Theory…………………………………. 136 Section 2: Bentham’s Views on History………………………………………… 149 Chapter Five: Blackstone, Kames, and Bentham and the Role of History in Determining Eighteenth-Century Law………………………………………………………………… 176 Section 1: Sources and Examples of History…………………………………… 183 1.4: Comparison………………………………………………… 196 Section 2: The Bible as a Source of History……………………………………… 198 2.3: Bentham……………………………………………………… 206 Section 3: The Study of the Feudal System and its Laws………………………… 214 3.3: Bentham……………………………………………………… 235 Chapter Six: History, Utility, and Legal Reform: The ‘Rational Legal Sciences’ of Blackstone, Kames, and Bentham……………………………………………………… 245 Section 1: The distinctive legal sciences developed by Blackstone, Kames, and Bentham………………………………………………………………………… 249 1.1: Blackstone’s Legal Science………………………………… 250 1.2: Kames’s Legal Science……………………………………… 256 1.3: Bentham’s Legal Science…………………………………… 264 1.4: Comparison………………………………………………… 272 Section 2: Social Contract vs. Habit of Obedience……………………………… 275   9     10   2.1: Blackstone and the Social Contract Theory………………… 276 2.2: Bentham and the Habit of Obedience……………………… 280 2.3: Kames and the Habit of Obedience………………………… 283 2.5: The Juncture for Resistance and Reform …………………… 287 Section 3: Punishment………………………………………………………….1: Blackstone on Punishment………………………………… 292 3.2: Bentham and Kames on Punishment ……………………… 298 Chapter Seven: Conclusion ……………………………………………………………… 308 Bibliography …………………………………………………………………………….

311   11     12   Chapter One: Introduction This thesis examines how William Blackstone, Henry Home, more commonly referred to as Lord Kames, and Jeremy Bentham each understood the significance of history in relation to legal development.1 Considerable attention has been paid towards the debate on the common law between Blackstone and Bentham. In 1758, Blackstone was appointed as the first Vinerian Professor of English Law at Oxford and remained in that role until he resigned in 1766.2 In 1765-1769, he published the four volumes of Commentaries on the Laws of England. In response to what Bentham heard as a student present at Blackstone’s Oxford lectures in 1764, and what he read in Commentaries on the Laws of England, he wrote ‘A Comment on the Commentaries’ and A Fragment on Government (1776). A Fragment on Government, which was published anonymously, received, for a short time, a degree of acclaim from a number of prominent legal and political figures in England.3 The work focused on a short section of Blackstone’s ‘Introduction’ that discussed the origin of society and government.

Both works, however, illustrated what Bentham regarded as the errors in Blackstone’s arguments, including:                                                                                                                 1 Sir William Blackstone (1723-1780), first Vinerian Professor of English Law at Oxford University 1758- 1766, MP for Hindon 1761-1768 and Westbury 1768-1770, Justice of the Common Pleas 1770, 1770-1780, Justice of the King’s Bench 1770: see his Commentaries on the Laws of England, 4 vols. Henry Home, Lord Kames (1696-1782), Lord Ordinary of the Court of Session 1752-1763, Lord Commissioner of Justiciary 1763-1782. Jeremy Bentham (1748-1832), philosopher and jurist. Bentham is considered the founder of utilitarianism.

When he died, he left his personal estate to the University of Oxford to create a common law chair. 3 A Fragment on Government was so well received that speculation on its author was wide spread. It was attributed to many prominent figures, such as: John Dunning, Lord Camden, Lord Mansfield, Edward Gibbon, and John Lind. Jeremy Bentham, A Comment on the Commentaries and A Fragment on Government, eds.

Hart, The Collected Works of Jeremy Bentham (Oxford: Oxford University Press, 2008), xxx-xxi. John Dunning (1731-1783), first Baron Ashburton, Solicitor General 1768-1770, Chancellor of the Duchy of Lancaster 1782-1783. Charles Pratt, Lord Camden (1714-1794), first Baron and first Earl Camden, Chief Justice of the Common Pleas 1761-1766, Lord Chancellor 1766-1770, Lord President of the Council 1782-1783, 1784-1794. William Murray, Lord Mansfield (1705-1793), first Baron and first Earl of Mansfield, Lord Chief Justice of the Court of King’s Bench 1756-1788.

  13   Blackstone’s nonsensical ideas and definitions, his appeal to natural law, divine law, and natural rights, his belief in the social contract, and his antipathy to reform. Burns have produced detailed accounts of the Blackstone and Bentham debate. In ‘Blackstone and Bentham’, Posner contends that Blackstone and Bentham did not display a fundamental ideological inconsistency, but that Blackstone anticipated some of the views that Bentham presented on criminal justice. Posner argues that in order to comprehend Bentham’s dislike for Blackstone, it is important to understand Bentham’s goals and methods.4 As Bentham’s aim was to advocate complete legal reform, he thought that Blackstone represented four things that prevented a speedy adoption of his reform proposals: first, the common law legal system and the lawyers and judges that profited from it; second, intellectual confusion from semantic ambiguity; third, the imperfectly representative system of government in contemporary England; and fourth, perhaps the worst from Bentham’s point of view, Blackstone’s attack on the very principle of codification.5 Posner contends that their differences were not over substantive politics but were due to Blackstone’s defence of a gradualist approach to legal reform, and his use of traditional language.

Bentham saw all of these stances as obstacles to the adoption of his reform proposals. Posner concludes that both Blackstone and Bentham purposefully misrepresented the English legal system. Blackstone knew that the administration of the English legal system was not perfect. An example of this imperfection was that the English government was more oligarchic than Blackstone admitted.6 Similarly, Bentham knew that England had made enormous strides and its legal system was impressive in comparison to other                                                                                                                 4 Richard A.

Posner, “Blackstone and Bentham,” Journal of Law and Economics 19, no.   14   eighteenth-century systems of law and governance.7 Blackstone focused on the strengths of the system, while Bentham focused on its weaknesses.8 These two methods suited the purposes of their works: one was a textbook elucidating the current state of English law and the other was a tract arguing for legal reform. In ‘Bentham and Blackstone: A Lifetime’s Dialectic’, Burns contends that most of Bentham’s views throughout his writings on law and governance can be viewed as a continuation of his initial refutation of Blackstone’s Commentaries. Burns agrees with Posner that it was Blackstone’s antipathy to reform that was Bentham’s principal charge against him.

According to Bentham, Blackstone confused the roles of censor and expositor, and hence justified the existing law, claiming that everything is as it should be.9 Furthermore, Blackstone’s reliance on natural law as a fundamental law that prevailed over the ordinary law, and his belief that the ordinary law was void if it was repugnant to the fundamental law, was a view that Bentham found unacceptable.