Jeremy Bentham was a fierce critic of the common law system and advocated for the codification and rationalization of laws according to the principle of utility. While Blackstone praised the common law tradition, Bentham argued it perpetuated errors and benefited judges. The Napoleonic Code provided a clear example of codification, which Bentham largely approved of despite some criticisms. In Britain, there was increasing support for reforming and consolidating laws in the early 19th century through various acts, though full codification was not achieved. Bentham sought to codify laws for numerous countries and be a "Legislator of the World" through systematically rationalizing legal systems.
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CHAPTER 1 Legal Heritage and the Digital AgeStatue of Liberty,.docxtiffanyd4
CHAPTER 1 Legal Heritage and the Digital Age
Statue of Liberty, New York Harbor
The Statue of Liberty stands majestically in New York Harbor. During the American Revolution, France gave the colonial patriots substantial support in the form of money for equipment and supplies, officers and soldiers who fought in the war, and ships and sailors who fought on the seas. Without the assistance of France, it is unlikely that the American colonists would have won their independence from Britain. In 1886, the people of France gave the Statue of Liberty to the people of the United States in recognition of friendship that was established during the American Revolution. Since then, the Statue of Liberty has become a symbol of liberty and democracy throughout the world.
Learning Objectives
After studying this chapter, you should be able to:
1. Define law.
2. Describe the functions of law.
3. Explain the development of the U.S. legal system.
4. List and describe the sources of law in the United States.
5. Discuss the importance of the U.S. Supreme Court’s decision in Brown v. Board of Education.
Chapter Outline
1. Introduction to Legal Heritage and the Digital Age
2. What Is Law?
1. Landmark U.S. Supreme Court Case • Brown v. Board of Education
3. Schools of Jurisprudential Thought
1. CASE 1.1 • U.S. Supreme Court Case • POM Wonderful LLC v. Coca-Cola Company
2. Global Law • Command School of Jurisprudence of Cuba
4. History of American Law
1. Landmark Law • Adoption of English Common Law in the United States
2. Global Law • Civil Law System of France and Germany
5. Sources of Law in the United States
1. Contemporary Environment • How a Bill Becomes Law
2. Digital Law • Law of the Digital Age
6. Critical Legal Thinking
1. CASE 1.2 • U.S. Supreme Court Case • Shelby County, Texas v. Holder
“ Where there is no law, there is no freedom.”
—John Locke Second Treatise of Government, Sec. 57
Introduction to Legal Heritage and the Digital Age
In the words of Judge Learned Hand, “Without law we cannot live; only with it can we insure the future which by right is ours. The best of men’s hopes are enmeshed in its success.”1 Every society makes and enforces laws that govern the conduct of the individuals, businesses, and other organizations that function within it.
Although the law of the United States is based primarily on English common law, other legal systems, such as Spanish and French civil law, also influence it. The sources of law in this country are the U.S. Constitution, state constitutions, federal and state statutes, ordinances, administrative agency rules and regulations, executive orders, and judicial decisions by federal and state courts.
Human beings do not ever make laws; it is the accidents and catastrophes of all kinds happening in every conceivable way that make law for us.
Plato
Laws IV, 709
Businesses that are organized in the United States are subject to its laws. They are also subject to the laws of other countries in which they operate. Busin.
Lord Sumption indexes relevance or Otherwise of
Limit
Knowledge of Which is Precondition re: and Requisite for
Management
Management according to Law
Legal Concourse
Legitimate Conduct
Current or Future - Past or Present
determinable by and with reference to
Currency - Communication - Currency of Communication and Communication of Currents - as may or may not be evidenced by or deployed - deployable or otherwise according to Marine Law - Maritime Regard and Observance of Seabord - basis of which indicates and is indicative of
Thalassocracy - Evidencing The Precedent of Trafalgar and the License of Those Who Provision and In regard of Whose
SEAT - Tenure - Tenet and Capacity - (The 4 Agreements)
Provision is Made - See: Legacy of Royal Exchange (Sir John Gresham) Gresham Institute and Gresham's LAW.
The primary object of this assignment is to offer a systematic study of the Civil Law Legal System. An attempt has been made to examine what is civil law legal system, historical basics of civil law legal system, common types of legal system to the world, salient features of civil law legal system, differentiation from other major legal systems, modern Common and Civil Law Systems, countries following Civil or Common Law, a comparative study between Common Law and Civil Law Systems, Civil Courts and their Jurisdictions in Bangladesh, Hierarchy of Civil Courts in Bangladesh, Pecuniary Jurisdiction of Civil Courts in Bangladesh...
LLB LAW NOTES ON PUBLIC INTERNATIONAL LAW
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FREE LLB LAW NOTES
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FREE LLB LAW FIRST SEM NOTES
FREE LLB LAW SECOND SEM NOTES
FREE LLB LAW THIRD SEM NOTES
FREE LLB LAW FOURTH SEM NOTES
FREE LLB LAW FIFTH SEM NOTES
FREE LLB LAW SIXTH SEM NOTES
FREE CA ICWA FOUNDATION NOTES
FREE CA ICWA INTERMEDIATE NOTES
FREE CA ICWA FINAL NOTES
KANOON KE RAKHWALE INDIA
HIRE LAWYER ONLINE
LAW FIRMS IN DELHI
CA FIRM DELHI
VISIT : https://www.kanoonkerakhwale.com/
VISIT : https://hirelawyeronline.com/
CHAPTER 1 Legal Heritage and the Digital AgeStatue of Liberty,.docxtiffanyd4
CHAPTER 1 Legal Heritage and the Digital Age
Statue of Liberty, New York Harbor
The Statue of Liberty stands majestically in New York Harbor. During the American Revolution, France gave the colonial patriots substantial support in the form of money for equipment and supplies, officers and soldiers who fought in the war, and ships and sailors who fought on the seas. Without the assistance of France, it is unlikely that the American colonists would have won their independence from Britain. In 1886, the people of France gave the Statue of Liberty to the people of the United States in recognition of friendship that was established during the American Revolution. Since then, the Statue of Liberty has become a symbol of liberty and democracy throughout the world.
Learning Objectives
After studying this chapter, you should be able to:
1. Define law.
2. Describe the functions of law.
3. Explain the development of the U.S. legal system.
4. List and describe the sources of law in the United States.
5. Discuss the importance of the U.S. Supreme Court’s decision in Brown v. Board of Education.
Chapter Outline
1. Introduction to Legal Heritage and the Digital Age
2. What Is Law?
1. Landmark U.S. Supreme Court Case • Brown v. Board of Education
3. Schools of Jurisprudential Thought
1. CASE 1.1 • U.S. Supreme Court Case • POM Wonderful LLC v. Coca-Cola Company
2. Global Law • Command School of Jurisprudence of Cuba
4. History of American Law
1. Landmark Law • Adoption of English Common Law in the United States
2. Global Law • Civil Law System of France and Germany
5. Sources of Law in the United States
1. Contemporary Environment • How a Bill Becomes Law
2. Digital Law • Law of the Digital Age
6. Critical Legal Thinking
1. CASE 1.2 • U.S. Supreme Court Case • Shelby County, Texas v. Holder
“ Where there is no law, there is no freedom.”
—John Locke Second Treatise of Government, Sec. 57
Introduction to Legal Heritage and the Digital Age
In the words of Judge Learned Hand, “Without law we cannot live; only with it can we insure the future which by right is ours. The best of men’s hopes are enmeshed in its success.”1 Every society makes and enforces laws that govern the conduct of the individuals, businesses, and other organizations that function within it.
Although the law of the United States is based primarily on English common law, other legal systems, such as Spanish and French civil law, also influence it. The sources of law in this country are the U.S. Constitution, state constitutions, federal and state statutes, ordinances, administrative agency rules and regulations, executive orders, and judicial decisions by federal and state courts.
Human beings do not ever make laws; it is the accidents and catastrophes of all kinds happening in every conceivable way that make law for us.
Plato
Laws IV, 709
Businesses that are organized in the United States are subject to its laws. They are also subject to the laws of other countries in which they operate. Busin.
Lord Sumption indexes relevance or Otherwise of
Limit
Knowledge of Which is Precondition re: and Requisite for
Management
Management according to Law
Legal Concourse
Legitimate Conduct
Current or Future - Past or Present
determinable by and with reference to
Currency - Communication - Currency of Communication and Communication of Currents - as may or may not be evidenced by or deployed - deployable or otherwise according to Marine Law - Maritime Regard and Observance of Seabord - basis of which indicates and is indicative of
Thalassocracy - Evidencing The Precedent of Trafalgar and the License of Those Who Provision and In regard of Whose
SEAT - Tenure - Tenet and Capacity - (The 4 Agreements)
Provision is Made - See: Legacy of Royal Exchange (Sir John Gresham) Gresham Institute and Gresham's LAW.
The primary object of this assignment is to offer a systematic study of the Civil Law Legal System. An attempt has been made to examine what is civil law legal system, historical basics of civil law legal system, common types of legal system to the world, salient features of civil law legal system, differentiation from other major legal systems, modern Common and Civil Law Systems, countries following Civil or Common Law, a comparative study between Common Law and Civil Law Systems, Civil Courts and their Jurisdictions in Bangladesh, Hierarchy of Civil Courts in Bangladesh, Pecuniary Jurisdiction of Civil Courts in Bangladesh...
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1. Bentham, Common Law
& Codification
Anne Brunon-Ernst
Senior Lecturer Panthéon Assas (Paris 2)
Institut Michel Villey (Paris 2), Centre Bentham (ScPo, Paris)
2. Preliminary comments
Lecture in English
Complexity of language used: 18th century
English
BUT:
Recorded => audio/video available on the
Paris2 website for a limited time
PPT slides to help understanding of key points
Full text of the lecture available on academia
website:
http://u-paris2.academia.edu/AnneBrunon
=> Concentrate on listening rather than taking
notes
3. Introduction
Common Law System Continental Systems
No written constitution Written constitutions
Civil law based on caselaw Civil law based on Civil Codes
Binding precedents Persuasive jurisprudence
Judge-made law Statute laws
4. Introduction
Jeremy Bentham (1748-1832)
◦ fierce critic of the common law
◦ advocated systematic codification of the laws
◦ termination of a legal system based on case-
law
◦ rationalisation of the laws according to the
principle of utility.
5. Introduction
Aim of the lecture
better understanding of the reforms and
foundations of the system through the
lens of opponents of the common law.
6. Introduction
Lord Bingham in Kay v Lambeth (2006):
‘While adherence to precedent has been
derided by some, at any rate since the
time of Bentham, as a recipe for the
perpetuation of error, it has been a
cornerstone of our legal system’ (at
paragraph 148)
8. I. Bentham’s life and ideas
1748 1832
George II (GB) Queen Victoria (GB)
Louis XV (France) Louis-Philippe (France)
Candle Public gas lamps
Horse-drawn coaches Steam railways
Enlightenment
Voltaire
Helvetius
Beccaria
JB Say
Ricardo
(Darwin)
(Marx)
9. I. Bentham’s life and ideas
58 year long career as a philosopher
◦ Financially independent
◦ Precocious child (at Oxford U. at 12 yrs old)
◦ Legal background (called to the Bar)
approx 75.000 folio written
10. I. Bentham’s life and ideas
Bowring edition
◦ Works of Jeremy Bentham, ed. J. Bowring,
1838-1843, 11 vols
Scientific edition of the Bentham
Project
◦ The Collected Works of Jeremy Bentham, ed. J.
H. Burns (1961-79), J. R. Dinwiddy (1977-83),
F. Rosen (1983-94), F. Rosen and P. Schofield
(1995-2003), P. Schofield (2003-), London and
Oxford. 30 vols to date
12. I. Bentham’s life and ideas
Utility = Happiness
‘The principle of utility is the foundation of
the present work […]. By the principle of
utility is meant that principle which approves
or disapproves of every action whatsoever
according to the tendency it appears to have
to augment or diminish the happiness of the
party whose interest is in question: or, what
is the same thing in other words to promote
or to oppose that happiness. I say of every
action whatsoever, and therefore not only of
every action of a private individual, but of
every measure of government’, Bentham,
Introduction, p. 11
13. I. Bentham’s life and ideas
Utility = Happiness = Pleasures > Pains
‘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. They govern us in all we do, in all we say, in
all we think: every effort we can make to throw off
our subjection will serve but to demonstrate and
confirm it. In words a man may pretend to abjure
their empire: but in reality he will remain subject to it
all the while. The principle of utility recognises this
subjection, and assumes it for the foundation of that
system’, Bentham, Introduction, p. 11
14. I. Bentham’s life and ideas
TIMELINE OF BENTHAM’S WORKS
1770-1785:writings on law and
legislation
1785-1791:practical projects (in Russia,
Prison Panopticon etc)
1791-1795:writings for the French
Revolution
1795-1803:practical projects (Poor
Panopticon, police reform etc)
1808/9: conversion to democratic ideals
1809-1832: codification proposals
15. I. Bentham’s life and ideas
Legislator of the World
Madison, the American President on the topic
(1811), as well as to different State
legislatures
Spanish and Portuguese revolutions
Bentham writes for Greece, to offer a new
system of government in their emancipation
from Turk power
in correspondence with Presidents of
Argentina and Columbia, to push forward his
reforms
in close contact with Bolivar, the South
American revolutionary
16. II. Codes in Context
Codes are foreign to the English legal
tradition
But does not mean that there was no
debate around codification
Outline
◦ A. Blackstone’s reading of the common law,
and Bentham’s criticism
◦ B. Code Napoleon, and Bentham’s opinion
◦ C. Codification in Britain
17. II. Codes in Context
Blackstone and the common law
18. II. Codes in Context
Blackstone and the common law
Scope
◦ rights of persons
◦ the rights of things
◦ private rights
◦ public wrongs
Pros/Cons
◦ Handy
◦ Codification of the common law?
◦ Whig interpretation of history
◦ Contradictions:
English government best government
BUT: Ideal government in the past
19. II. Codes in Context
Blackstone and the common law
- Human reason
- Vs
- Laws of nature/ laws of revelation
- ‘it is still necessary to have recourse to
reason; whose office it is to discover (…)
what the law of nature directs in every
circumstance of life: by considering, what
method will tend the most effectually to
our own substantial happiness’
Blackstone, Commentaries
20. II. Codes in Context
Blackstone and the common law
Flawed arguments (1/3)
‘the goodness of a custom depends upon having
been used time out of mind’
‘And indeed it is one of the characteristic marks of
English liberty, that our common law depends
upon custom; which carries this internal
evidence of freedom along with it, that it
probably was introduced by the voluntary
consent of the people’.
‘the original contract of society; which, though
perhaps in no instance it has ever been formally
expressed at the first institution of a state’
Blacktone, Commentaries
21. II. Codes in Context
Blackstone and the common law
Flawed arguments (2/3)
Original contract (individuals agree
voluntarily to laws in society)
Laws & Customs used since time
immemorial
Laws & Customs are good
The English legal system is good (‘English
Liberty’)
Do not reform the system
22. II. Codes in Context
Blackstone and the common law
Flawed arguments (3/3)
Original contract
In theory, but not in practice
Where lies the justification of the English
legal system?
23. II. Codes in Context
Blackstone and the common law
Judges at the heart of the system
‘How are these customs or maxims to be known,
and by whom is their validity to be determined?
The answer is, by the judges in the several
courts of justice. They are the depositories of the
laws. […] For it is an established rule to abide by
former precedents, where the same points come
again in litigation […] it is not in the breast of
any subsequent judge to alter or vary from [a
permanent rule], according to his private
sentiments: he being sworn to determine, not
according to his own private judgment, but
according to the known laws and customs of the
land; not delegated to pronounce a new law, but
to maintain and expound the old one.’
24. II. Codes in Context
Bentham vs Blackstone
=/=> status quo (tradition)
Good = pleasure > pains
=/=> ‘sinister’ interests (Judge and co)
25. II. Codes in Context
Bentham vs Blackstone
e.g.: Jarndyce v. Jarndyce (Court of
Chancery) in Charles Dickens, Bleak
House (1852-1853).
27. II. Codes in Context
Bentham vs Blackstone
Form
◦ Layout
◦ Absence of definition
◦ Style
Substance
◦ inconsistency of the contractual theory
◦ Unfounded statements about the nature and
form of government
◦ expositor vs. censor
28. Bentham and Code Napoleon
One generation later, clearer codification
experiments on the Continent (1804 - )
29. II. Codes in Context
Bentham and Code Napoleon
the Napoleonic codes [were] ‘to the
French nation a treasure of unspeakable
value’, Bentham, dated 21st June 1821
‘the Augean stable [of French Law],
though he has not purified altogether,
[Napoleon] has ridden of no small part of
its filth: and by this title alone, had he no
other, Bonaparte would have been a
Hercules’, Bentham, dated 21st June 1821
30. II. Codes in Context
Bentham and Code Napoleon
In the 1820s
◦ Bentham praises the Napoleonic Code:
Not perfect venture
But helped to clarify/rationalize French laws
However
◦ Increasing criticism of the Napoleonic Code:
Lacks adaptability of judge-made law
Law as arithmetical calculations
31. II. Codes in Context
Codification in Britain
In the 1820s
Common law no longer praised for its
respect of tradition
Consensus that the common law is in
need of reform
32. II. Codes in Context
Codification in Britain
Piece-meal changes
Codification of the Criminal law
◦ Non-binding digest of criminal laws
Codification of the Civil law
◦ Moderate attempts at reforming some
substantive aspects of conveyancing and
inheritance
◦ Some procedural reforms:
abolition of original writs
abolition of real actions
33. II. Codes in Context
Codification/Consolidation in Britain
1826 Criminal Law Act (consolidation of acts
related to criminal procedure)
1827 Larceny Act (consolidating ninety-two
statutes)
1827 Malicious Injuries to Property Act
(consolidating forty-eight statutes)
1828 Offences against the Person Act
(consolidating fifty-six statutes)
1830 Forgery Act (consolidating 120
statutes)
1848 Criminal Law Consolidation Bill (failed)
34. II. Codes in Context
Codification in Britain
Codification consolidation
36. III. Bentham’s Codes
Bentham coins the term ‘codification’
Bentham and codification abroad
◦ Fertile grounds for codes in 19th c
(emancipation and reform)
◦ Experiments
Russia in the 1770s
France in the 1790s
Legislator of the World
38. III. Bentham’s Codes
Bentham, Essay in the Influence of Time and
Place in Matters of Legislation, in Works of
Jeremy Bentham, ed. J. Bowring, 1843, Vol.
1, chap 3, oll.libertyfund.org
Of the circumstances which make the laws
that would be expedient in one country
ineligible in another, some are grounded in
nature, some in prejudice: some depend on
the state and condition of objects that are
extrinsic with regard to the mind of man,
some on the state and condition of the mind
of man itself.
39. III. Bentham’s Codes
Codes for all
- Publicity of government action:
proceedings and daily work
- Public Opinion Tribunal (POT): critical
assembly of the people handing down
praise and blame for public action
- Nomography: the science of writing
legislation
40. III. Bentham’s Codes
Redefining Codes
- Codes of law for people from all walks of
life: Law accessible to all users (builders,
children, employees)
- Three-tier division of Codes
- Criminal/penal code
- Civil code
- Constitutional code
41. III. Bentham’s Codes
Redefining Codes
‘What is a penal code of laws? What is a civil
code? Of what nature are their contents? Is it
that there are two sorts of law, the one penal,
the other civil, so that the laws in a penal code
are all penal laws, while the laws in a civil code
are all civil laws? Or is it, that in every law there
is some matter which is of a penal nature, and
which therefore belongs to the penal code and at
the same time other matter which is of a civil
nature, and which therefore belongs to the civil
code? Or is it that some laws belong to one code
or the other exclusively, while the others are
divided between the two?’
Bentham, Introduction p. 299.
42. III. Bentham’s Codes
Redefining Codes
‘Now an offence is an act prohibited, or (what
comes to the same thing) an act of which the
contrary is commanded, by the law: and
what is it that the law can be employed in
doing, besides prohibiting and commanding?’
Bentham, Limits, p. 3.
‘That book belongs to the penal branch which
dwells most upon the subject of punishment:
that, to the civil, which, without making any
mention, or at least without making much
mention, of the article of punishment, dwells
most upon cases in which punishment is or is
not to be applied’. Bentham, Limits, p. 241
43. III. Bentham’s Codes
Redefining Codes
‘The civil code would consist chiefly of
mere masses of expository matter. The
imperative matter, to which those masses
of expository matter respectively
appertained, would be found – not in that
same code – not in the civil code – nor in
a pure state, free from all admixture of
punitory laws; but in the penal code – in a
state of combination – involved […] in so
many correspondent punitory laws.’
Bentham, Introduction, p. 306.
44. III. Bentham’s Codes
Redefining Codes
Criminal code list of offenses to which
are appended punishments
Civil code dictionary of offenses, rights
and duties
Constitutional code rights and duties in
the allocation of power in a government.
45. Conclusion
Bentham and the common law tradition: a
re-assessment
◦ Bentham in line with the ideas of the Continent
(Enlightenment, 19th c. Napoleonic Codes etc)
BUT
◦ Bentham at odds with the common law
tradition in England (where consolidation >
codification)
46. Conclusion
Want to know more about Bentham?
Transcript of the lecture onhttp://u-
paris2.academia.edu/AnneBrunon
Up-to-date bibliography
◦ P. Schofield, ‘The Legal and Political Legacy of
Jeremy Bentham’, in Annual Review of Law and
Social Science, Vol. 9 (2013): 51-70
Start with the websites of
◦ Bentham Project (UCL)
◦ Centre Bentham (Ecole de Droit, ScPo, Paris)
Two academic journals on Bentham (online)
◦ Journal of Bentham Studies (Bentham Project)
◦ Revue d’études benthamiennes (Centre Bentham)