The main sources are: 1. Acts of Parliament, 2. Common law, 3. European Community law, 4. ECHR, 5. Royal Prerogatives, 6. Conventions, 7. Constitutional Writings.
1. EUROPEAN LAW
To provide for a common market for the free movement of goods, services, capital and workers. In 1952 six nations ( Belgium, France, Italy, Luxembourg, West Germany and the Netherlands) joined together to regulate their coal and steel industries. The objectives of the then EC included the elimination of customs duties and quantitative restrictions on imports and exports within the Community, the establishment of common commercial policies towards non-member States, the abolition of obstacles to the free movement of workers and capital within member States, and the creation of common policies in areas such as agriculture and transport. In 1973, three more countries entered the Community; the United Kingdom, Denmark and the Republic of Ireland. Since UK joined the EC in 1973, EU law has been a source of the constitution because of its impact on parliament and English law. This in turn has consequence for parliamentary sovereignty- the UK parliament has lost some of its exclusivity in law making power over UK citizens.
The primary sources of community law are the Treaties, for example the three founding Treaties and the Treaty of European Union. The treaties which established the European Communities( The European Coal and Steel Community 1951, The European Atomic Energy Community 1957 and the European Economic Community 1957) as well as the Single European Act 1986, the Maastricht Treaty 1992 and the Treaty of Amsterdam 1997, form the primary source of Community law.
The secondary sources are regulations, directives and decisions of the Council and the Commission and the jurisprudence of the European Court of Justice.
a)Regulations: A regulation is of `general application …binding in its entirety and directly applicable in all member States'(EC Treaty Art 249)
b) Directives: A Directive is `binding as to the result to be achieved, upon each member State to whom it is addressed’ (EC Treaty, Art 249)
c) Decisions: A decision is `binding in its entirety on those to whom it is addressed’ (EC Treaty, Art 249)
2. The ECHR
The UK was among the first signatories to the European Convention on Human Rights in 1951.
The Convention was drafted with a significant input from English lawyers and-the UK ratified the Convention in 1951 and recognized the individual right of petition in 1966.Under the dualist principles of English law, the Convention did not have legal effect domestically because it was an international treaty which had not been incorporated into our domestic law by Act of Parliament.Over the past 30 years, views on the incorporation of the Convention into domestic law have slowly changed, culminating in the Human Rights Act 1998.
In may 1997, Labour won a landslide victory, on a manifesto which included a commitment to incorporate the ECHR into domestic law. The debate then turned to how the convention should be incorporated and in particular whether it should be permitted to override statutes, subject to a `notwithstanding’ clause.The first is that the Court of Human Rights in Strasbourg (France) has the ultimate jurisdiction to rule on the meaning and scope of rights. The Act requires that decisions of the ECHR will be binding on domestic courts as regards the interpretation of relevant Convention provisions. Accordingly, where there has been a violation of a Convention right, the, victim sues his or her own government and, if successful, the government must propose and parliament passes legislation which remedies the offending law. Where rights have. been violated through policies rather than law, there is a corresponding obligation, to amend the practice. However, where a matter is regarded as essential to a state there is provision in the Convention for the state to derogate of a particular provision. An example of this is seen in relation to the right to liberty protected under Article 5, which the government derogated from in relation to the detention of suspected international terrorists under the Anti-Terrorism, Crime and Security Act 2001.
3. ROYAL PREROGATIVE
Much of the royal prerogative power is protected by the courts on these grounds and can rarely be changed. These are residual powers, privileges and immunities belonging to the Crown, such as the power to : declare, war, enter into treaty obligations issue passports,recognize foreign governments, and maintain domestic law and order. The courts will review the exercise of these powers to the extent that the subject matter is justiciable.
In 1765 Blackstonereferred to the Royal Prerogative as that `special pre-eminence which the King hath, over, and above all other persons, and out of the ordinary course of the common law, in right of his legal dignity’. However, Dicey defined prerogative powers, as `the, residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’. Since the 20th century has witnessed the diminishing influence of prerogative powers, Dicey’s description would today appear to be more accurate.
The powers of the Crown may be exercised in three ways:
a) at the personal discretion of the sovereign;
b) by the sovereign on the advice of ministers;
c) by ministers alone, through statutory powers conferred on them, but exercised on behalf of the Crown.
The Bill of Rights 1688 rationalized the use of these prerogative powers. It provided that statutes could expressly abolish or restrict the existence and exercise of the Crown’s prerogative powers. Over the years statutes have gradually whittled away these powers. For example, the Crown Proceedings Act 1947 abolished the immunity of the Crown in respect of actions .in tort and contract, although it retained the personal immunity of the sovereign
4. Constitutional conventions:
Contentions of the constitution are rules or understanding .generally observed by the politicians but not enforceable at law. They add substance to the constitution by providing a framework against when politics can operate “the flesh on the bones of the constitution”. They are followed because it is expedient to do so. There would be ”political difficulties” for a government if they were ignored or breached. The Parliament Act 1911 stipulates that general elections must be held every 5 years but conventionally the selection of the date is left to the PM. Clearly this convention cannot be breached because it is sanctioned by an Act of Parliament.Constitutional conventions represent one of the most intriguing sources of the constitution. They are defined as being :
…rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts…nor by the presiding officers in the Houses of Parliament (Marshall and Moodie, 1971, pP.23-24).An earlier definition by the 19t” century constitutional authority AN. Dicey described conventions as being:
….conventions, understanding, habits or practices which, though they may regulate t4c_.,,conduct of, the several megi4ers of the sovereign power. are not in reality laws at all _since they are not enforced by the courts. (Dicey, 1885)
Conventions are non-legal (cannot be enforced by courts of law), that they are binding (they impose obligations) and that they regulate the conduct of all actors on the constitutional stage-the Crown, Parliament, the executive and the judiciary. To breach a constitutional convention is to act unconstitutionally but not unlawfully, since these are non-legal rules. The paradox with conventions is that some are-despite their non legal nature-more important than laws. Equally, an understanding of the legal or constitutional rules can only be complete when the operation of conventions is taken into account.
In law the Crown can appoint whomsoever the monarch wishes as prime minister; by convention, the Crown appoints the leader of the political party that wins the most seats in a general election as prime minister.In law the Crown can dissolve parliament at will; by convention parliament will be dissolved on the request of the prime minister.In law the Crown can dissolve parliament at will; by convention parliament will be dissolved on the request of the prime minister In law the Crown can refuse to grant the Royal Assent, which represents the final stage before an Act of Parliament comes into being; by convention the Royal Assent will never be refused when a bill has passed the Commons and Lords.The government must resign if it loses the confidence of the House of Commons.
The origins of a law– will be found either in an Act of Parliament or in a judicial decision. A convention comes into being at an undefined point in time at which a mere practice has hardened into an obligatory rule the breach of which attracts criticism.
A change in a rule of law will be identifiable from statute or from judicial decisions. Again this is not so with conventions: they may be reinterpreted to meet a changed situation without there being any formality surrounding the change. To break a rule of law attracts a legal sanction. To breach a constitutional convention attracts no legal sanction but instead risks political repercussions. A serious breach of a convention may lead to its destruction or at least redefinition. The breaking of a rule of law has no such effect on the law’s validity or general effectiveness.
In practice we have a constitutional monarchy where the Queen acts on the advice of her Prime Minister. The royal assent has not been refused since 1708. No monarch has .refused to dissolve parliament in modern times and the Queen has been relieved-of any real responsibility as to the choice of prime minister as the various political parties have now defined rules for the election of a leader.
Such changes in the power of the monarch have arisen, not through statute, but as a result of the convention that the monarch should not become politically involved and should not be seen to favour any one political party.
They are not written down in any formal sense in that. they are not expressed as Acts of. Parliament nor are they established by judicial precedent. Occasionally an existing convention is formalised as, for example, section 43 of the Statute of Westminster ‘: 1931.
Important constitutional institution such as the Cabinet and the office of Prime Minister have been created by convention. The first statutory reference to the prime minister came in the Chequers Estate Act 1917. the relationship between government and parliament can only be understood against the background of the convention of ministerial responsibility. They have a central role in the development of the British Constitution.
7. CONSTITUTIONAL WRITINGS:
Constitutional writings are an important source of the constitution because they give guidance to politicians in the grey area where conventional practice operates. Authoritative books like A V Dicey’s Study of the Law of the Constitution, therefore, become important in any confusion over interpretation of the rights and privileges of Parliament and the meaning of rule of law.
In the absence of a written British Constitution, the writings of prominent Constitutional lawyers have acquired a greater significance than in most other areas of the law. Experts such as the Victorian Jurist AN. Dicey (The Law Of The Constitution, ed Wade, 10th edn, 1959), Jennings, (The Law and Constitution, 5th edn, 1959), W. Bagehot (The English Constitution, 1963) and de Smith (Judicial Review of administrative Action, ed Brazier, 7th edn, 1994), have directly influenced British Constitutional law. Whilst their theories are not binding legally, they remain extremely persuasive.
1. The growth of adversary procedure:
The growth of adversary procedure in criminal trials was a large step towards the development of our modern law of evidence, but one important element remained lacking: until 1907, there was no effective system of criminal appeals. Without such an appellate system, a rule-based system of law could scarcely develop to match the one that was growing rapidly in the civil courts.
2. Common law in the 19th century:
Before the 19th century the common law was generally regarded as being in a continuous process of growth, flexible enough to operate as an instrument of reform and better suited to that task than Parliament. These views depended on the belief that common law was essentially a system of reasoning, which might be partially expressed by way of maxims, and of which the decisions of the judges were only evidence. There was little scope for binding authority because the three common law courts developed separately, and law reporting was inadequate. However, a line of authority might be strong enough to be considered binding, and in this situation there was room for the idea to develop that decisions of the courts formed the substance of the law, and were not merely evidence of it. The 19th century saw a change in attitude to case law, and this affected the way in which evidence law developed. In this development treatise writers, law reporters and judges all played a part.
3. Rule based system derived from case law:
Treatise writers attempted to present their subject as a rule-based system derived from case law. Passages in the works of WM Best and of other writers show that the authors regarded their subject as having been recently developed by the judges, although based on older principles. The treatise writers’ increasingly rule-based approach left less room for judicial discretion in the admission of testimony. The writers themselves appear to have realised that this was a novel development. Several of them argued in favour of exclusionary rules, relying on the supposed lack of weight possessed by certain types of testimony, the difficulties experienced by jurors in assessing evidence, and the need for clear, general rules in the interests of certainty. There was a perception that uncertainty was a great defect in English law and, for various reasons, this could not be remedied by codification. Not least of these reasons was the fact that, in criminal evidence, the case law was underdeveloped through lack of an effective appellate system. In addition, Members of Parliament were unwilling to allow significant changes in the law to be made without thorough examination, for which there was insufficient parliamentary time. Among the judges, codification was supported only by a minority.
4. The certainty of the common law:
Any increase in the certainty of the common law had therefore to be made by the judges. In the law of civil evidence, they tried to achieve this by developing an increasingly rule-based system of exclusions. In this they were assisted by institutional changes that made for a more uniform approach to civil appeals. However, because the criminal courts lacked an effective appellate structure until 1907, the judges were unable to develop rules of criminal evidence to anything like the same extent. There were informal common practices, but no more. On the information of the Court of Criminal Appeal in that year, criminal evidence law began to develop in the same way. Only in recent decades have the benefits of a more discretionary approach to admissibility been appreciated. The result is that modern criminal evidence law is a mixture of statute law, of common law rules, and more recent discretionary powers. As for civil evidence, the rule-based, exclusionary system that had developed during the 19th century could no longer be justified after the virtual abolition during the 20th century of trial by jury in civil actions. Gradually it was demolished by statute, and today comparatively little of importance remains.
5. Abolition of the old restrictions on competence:
The other great change in evidence law during the 19th century was the gradual abolition of the old restrictions on competence, which was a long and piecemeal process. The religious bars were removed in two stages. Attention was focused during the first on the relief of those who, like Quakers, had religious conscience against taking an oath. After some partial reforms, complete success was achieved for civil proceedings when the Common Law Procedure Act 1854 made an affirmation an acceptable replacement for a religious oath. This reform was extended to criminal trials in 1861. Attention then turned to the relief of those who refused to take an oath because they subscribed to no religious belief. These attempts succeeded with the passing of the Evidence Further Amendment Act 1869.
6. The removal of witness disqualifications:
The 19th century also saw the removal of witness disqualifications based on criminal convictions and financial interest in the outcome of the litigation. Three main stages can be seen. The first was reached in 1843: in that year, Lord Denman’s Act abolished the rule whereby persons with certain criminal convictions had been disqualified from giving evidence. The Act also made a substantial inroad on the rule that an interested witness could not testify. The second stage was reached in 1851, when the Evidence Amendment Act made competent the parties to most civil proceedings in the superior courts of common law. The third stage was reached only in 1898, when the Criminal Evidence Act permitted the accused to give evidence in all criminal cases.
7. Bentham’s contribution:
Holdsworth noted that these statutory reforms were largely inspired by the critique of Jeremy Bentham, many of whose writings on evidence were published during the 1820s. There is no doubt that, for the student of jurisprudence or intellectual history, Bentham is a alarming figure. It is likely that the traditional view exaggerates Bentham’s role in the story of evidence law reform. Debates in parliament, as well as in leaflets, journals and newspapers, show that those supporting the various proposals for reform had widely different concerns from those expressed by Bentham. He had wanted competence to be extended as part of a grand campaign for reform, which was aimed at the destruction of what he called the sinister interests of Church and State. The statutory reforms were achieved for pragmatic reasons that had nothing to do with such a radical programme. Success depended on convincing enough lawyers and politicians that increased social stability made change both safe and desirable, and, so far as the 1898 reforms were concerned, that what was proposed involved no threat to the relatively new balance of power in criminal trials between judge, counsel and the accused.
In the late eighteenth century English law was a combination of common law and statute law. The volume of law enacted by parliament was increasing rapidly, but the common law was still the predominant element, and most English lawyers regarded it as essentially superior to statute. Indeed, one of William Blackstone’s chief concerns in his Commentaries on the Laws of England was to emphasize the virtues of common law and to warn against the expansion of parliamentary legislation. As he and others saw it, the common law had been built up over the centuries, and the rules and practices it embodied were the outcome of the wisdom and experience of many generations; at the same time, through the scope which judges had to introduce limited reinterpretations and adjustments, it was vulnerable of incremental (growth) change in response to changing social conditions. By contrast, statute was seen as a rather rude instrument, and one that had something inherently arbitrary and dependent about it.
2. Common law tradition use:
Blackstone faced a double dilemma: not only was it difficult to extract principles, but there were very few written rules to draw on, for the common law was, as he put it, only handed down by tradition, use, and experience. In an era where statutes were perceived as secondary additions and modifications of the common law, which were piecemeal and fragmented (split) rather than unified and general, and where law reporting was undeveloped, case adjudications rested on two often vast institutions. On the one hand lay the twelve judges of the Courts of Westminster Hall, who could discuss legal matters among themselves and develop their legal ideas in an unwritten manner. Much early eighteenth-century law was hence part of an oral culture, or the custom of judges in their practice. On the other hand lay the jury, making decisions which failed to distinguish matters of law and fact, but combined them in a single verdict.
3. Success and failure:
In addressing these two tasks, Blackstone’s Commentaries achieved both success and failure. His overall map of the law, its arrangement and categorizations, gave the common law a rationality and unity not seen before; he was widely praised for this, and as a result his work became the main diet for the law student for over a century. His methodology was similarly important, for in putting the law into an order and a method, and in seeking to analyse it as a system of rules, he allowed lawyers to treat specific areas of law as sciences capable of analysis, and not merely as terms of art to be followed. He was less successful in explaining the functioning of law at case level, as Bentham was quick to expose in his critique. In fact, the Commentaries were not a treatise on legal reasoning, but a summary of the law; and when it came to a discussion of how the courts functioned, Blackstone relied more on a theory of customs and maxims than on positive rules. Hence, a gap remained between Blackstone’s traditional view of judges, and his search for principle. He attempted to fill this gap by using the law of nature, but his careless and casual use of the concept reveals his lack of success.
4. Use of an institutional framework:
A view of the common law as based on natural law principles entailed a fundamentally different view of law from a theory of custom. What made them sit together in the Commentaries was Blackstone’s use of an Institutional framework in which to locate a customary and remedies-based system of law. The Institutional structure not only assisted his categorizations of the law, but also enabled Blackstone to use a theory of law based on rules with rational and determinate sources, in order to show that the common law was not a chaotic collection of customs and maxims, but a coherent whole. In borrowing the Institutional structure for the Commentaries, Blackstone had to borrow the natural law epistemology as an organizing concept to give it consistency; but since he did not seek to relate natural law to legal reasoning at case level, it could play no part in explaining the law. Blackstone’s theorizing on natural law was superficial and derivative. Instead of natural law being a positive source, it ended at best with reason being a limit on custom, so that unreasonable customs were prevented from being seen as law. Yet this was not particularly informative, for an unreasonable custom was little more than a custom which was not recognized as a legally binding one. This required an explanation of how and when courts first recognized customs as legally binding; something Blackstone failed adequately to cover.
B. Criticisms on common law:
1. Bentham’s critique:
Bentham’s critique of the common law took two forms. The first was an attack on Blackstone’s jurisprudence. Blackstone’s prime error was that he failed to set up a theoretical analysis that could explain the common law. Although he had been the first man successfully to put the whole together, necessary for the creation of guides to expectation, his analysis failed in the end to fulfil this function. The second attack was on common law’s technicality. For Bentham, the common law’s categories and terms of reference were entirely arbitrary and meaningless.
2. The common law tradition:
Bentham devoted a significant portion of his attack against the common law tradition to the theory of the common law and the extent to which this theory differed from its practice. The common law was, in the 18th century, considered to be the expression of immemorial custom and long-standing practice which personified natural reason. The law was thus legitimated by its historical antecedents as well as its inherent rationality. Bentham regarded such ideas as dangerous misleading notions: appeals to the Law of Nature were nothing more than private opinion in mask or the mere opinion of men self-constituted into legislatures. The most prompt and perhaps the most usual translation of the phrase ‘contrary to reason’, is ‘contrary to what I like’.
3. Private and subjective:
The only determinate concrete content that can be given to natural law or reason is entirely private and subjective because of the abstractness of these motions. They offer no public shared standards for assessment of rules, laws, actions, or decisions. This has two disastrous consequences for law and adjudication. A) justification of judicial decisions is removed entirely from the public arena. Judicial decisions resting on appeals to natural law or reason rest entirely on private sentiment. And b) this opens the door wide for corruption and the manipulation by sinister interests of those who are subject to law.
4. Dog law:
Behind the mask of legal fiction and the pretence (shame) of immemorial custom, lay an incomprehensible (unintenteligible) web of unjust laws continued in the name of precedent which Bentham ridiculed as dog law: Whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. Such irrational respect for antiquity ensures that senseless decisions of the past repeated in the future. But times obviously change. Therefore, the more antique the precedent, the more barbarous, inexperienced, and prejudice-led the race of men, by and among whom the precedent was set, the more unlike that the same past state of things is the present state of things.
5. The doctrine of stare decisis:
And, illogically, the doctrine of stare decisis produces greater rather than less arbitrariness. This is because despite the apparent rigidity of the doctrine, to avoid following a precedent judges resort to legal fictions, equity, natural law and other devices which render the law even more uncertain. Moreover, a judge is at liberty either to observe a precedent or to depart from it. The doctrine thus defeats its own avowed purpose.
6. Vague and Uncertain:
The indeterminacy of the common law is widespread. Unwritten law is essentially vague and uncertain. It cannot provide a reliable, public standard which can reasonably be expected to guide behaviour. Bentham’s positivist conception of law, in other words, is a extremely purposive or functional one, informed of course by the principle of utility. The common law falls far short of this conception not only because it fails to express rules with clarity, but because its very validity is suspect. So law’s indeterminacy infects its very legitimacy; to accept the authority of the rules themselves is often to accept the larger authority of the law itself. And this conflation results in a reluctance to question and criticise the law in general, to blind obedience.
7. The role of judges:
The role of judges in this disorder is especially destructive. As already mentioned judges conspire to preserve the common law’s delay, expense and injustice. The judiciary was insufficiently accountable to the people and its method of resolving disputes unduly complex. The first deficiency could, he argued, be remedied by rendering the whole process of judging more open and public. Publicity, he wrote, is the very soul of justice. It ensured that judges were legally and morally accountable. But it was not enough for the courts to be accessible, they had to use language which was comprehensible to the ordinary person.
8. Judges like fathers:
The second problem could, Bentham thought, be resolved by making judges more like fathers. He saw considerable merit in employing the method by which domestic disputes are resolved: a father quickly, justly and comprehensibly determines, without technical rules of evidence, whether a child has committed the act in question, and hands down the appropriate verdict and judgment or sentence. This inviting model of alternative dispute resolution assumes a number of social features from which it may seem dangerous to extrapolate a great deal, but it supplies a fairly graphic analogy in support of informal modes of adjudication.
9. The dupe of every prejudice:
Bentham’s assault on the common law was largely developed, in the first instance, by way of a critique of Blackstone’s Commentaries. Indeed this critique, though he never completed it, was something he never abandoned: at the age of eighty he added some 300 sheets of manuscript to what he had written in the 1770s. There was something almost obsessive about his hostility towards Blackstone. Though he occasionally gave him credit for producing a serviceable map of the jungle of English law, he much more frequently criticized him; Blackstone had some claim to be regarded as an improver, of a cautious and modest kind, but Bentham described him in a memorandum of the 1780s as ‘the dupe of every prejudice, and the abetter of every abuse.
1. A positivist:
A positivist is a person who acknowledges that it is possible to identify legal rules without making a moral judgment. Jeremy Bentham belongs to the early school of positivism. Motivated by a desire to distinguish between what the law is and what it ought to be, Bentham used the legal concept of sovereignty to advocate theories which explained and separated what the law is from what the law ought to be. His command theory illustrated that jurisprudence was solely concerned with positive law. Bentham felt that divine law had no place in law.
Utilitarians believe that the best action is the one which promotes the welfare of the greatest number. Bentham was a utilitarian, because he arguably felt that the law must promote the welfare of the greatest number; this means that what the law is must be separated from what it ought to be if the law is to promote the welfare of the greatest number. The criticism Bentham made against the law, especially the uncodified and unwritten law ‘nonsense on stilts, makes it plausible that his positivism was conditional on his utilitarianism.
3. Gerald Postema says:
Gerald Postema says that Bentham associates justice with law and the administration of it. He argues that the conflict between justice and utility amounts to the conflict between adherence (loyalty) to the rules, and the violation of a rule in order to secure a clear advantage in a particular case. Postema claims that Bentham does not choose between justice and utility. Rather, Bentham sees in justice an attractive political idea which concerns the utility of secure and determinate public rules.
4. Bentham represents the classical school of English legal positivism:
Bentham represents the classical school of English legal positivism, often criticized by modern theorists as misguided. But he cannot sensibly be understood without an appreciation of the historical context in which he wrote and the objectives he sought to achieve. In particular, he was uneasy about the manner in which the common law was explained and justified as the expression of community needs and interests. For him, law is an expression of political facts, as will become evident below. I shall briefly describe the main elements of his theories and then suggests where his strengths and weaknesses might lie.
5. Bentham Of Laws in General:
In 1970, professor Hart published the first authoritative edition of Bentham’s Of Laws in General, which Bentham completed in about 1782. It is clear that Bentham’s work (in particular, An Introduction to the Principles of Morals and Legislation) constitutes a major contribution to positivist jurisprudence and the systematic analysis of law and the legal system. With his extraordinary combination of a fly’s eye for detail, with an eagle’s eye for illuminating generalisations’, Bentham devoted himself for constructing a comprehensive theory of law, logic, politics and psychology, founded on the principle of utility.
6. Bentham’s careful attention:
Little escaped Bentham’s careful attention. He dealt with the courts, prisons, procedure and reform of the law on almost every subject. And his sustained, often devastating, assault on the received wisdom of his days is magnificent in its destructive power, for, as Mill put it, Bentham found the battering-ram more useful than the builder’s trowel (a tool use). But it is his critique of the common law and its theoretical underpinnings that are especially important to the student of jurisprudence. Moved by the spirit of the Explanation, Bentham sought to subject the common law to the cold light of reason.
7. Discredit the common law:
He attempted to discredit the common law by explaining what lay behind its mask. The use of fictions, the confusion and inconsistency of the Draconian criminal law with its disproportionate sanctions, including capital punishment, legal jargon, and the complex writ system were some of the features of the common law that he attacked in his characteristically hurtful and incisive manner. The law was a confusing network of technical rules created by lawyers, conveyancers, and judges which served their corrupt interests. Most people were too poor or ignorant to drive any benefit from a process which supposed to be fair and rational:
8. The techniques of manipulation:
The techniques of manipulation of ignorance, complexity, and selective terror for sinister end could not be seen, according to Bentham, as mere oddness of an essentially rational system of law. Rather, he included the latest expected chapter in a story that had been written over the centuries. If society was to see any improvement, its law must be reformed; if its law was to be reformed it must be burned to the ground and rebuilt according to a new and rational pattern. (see common law)
D. Code of Laws:
1. Two Benthams at the same time:
we can see two Benthams at the same time: one aiming to construct an ideal all-comprehensive real code of laws to be put into practice, another the critic of the common law, developing a metaphysics of law with which to reform the mass of common law materials. These two Benthams reflect the two problems as he was addressing. Blackstone’s failure to show the common law as a united body of rules encouraged Bentham to seek to throw away the common law and start again; but the problem Blackstone ignored of knowing how judges came to decisions in concrete cases was also one Bentham addressed that took him in a different direction. Bentham was known best in his life as a reformer, and hence it is the first view that has traditionally prevailed. Indeed, it is clear that he imagined drawing up large and extensive substantive codes of laws for any government that would let him, offering his services to President Madison of the United States, as well as several Latin American and Southern European states in the 1820s. Throughout his life, Bentham drew up codes of Penal, Civil, and Procedural Law, culminating in the 1820s with his Constitutional Code.
2. The chaos of the common law:
However, Bentham codified the chaos of the common law in a very simple manner. Once the law is codified: …..a man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency: what acts it is his duty to perform for the sake of himself, his neighbour or the public: what acts he has a right to do, what other acts he has a right to have others perform for his advantage….In this one repository (store) the whole system of the obligations which either he or any one else is subject to are recorded and displayed to view.
3. The power of judges:
Such a code would significantly diminish the power of judges; their task would consist less of interpreting than administering the law. It would also remove much of the need for lawyers: the code would be readily comprehensible without the help of legal advisers. Codification, in short, would wind up judges. The principle of utility dictated that the code would be structured in the most logical manner and formulated in the simplest language. It would lay down general principles in a logical and fairly detailed way, as well as justifications for these principles.
4. Historians are divided:
Historians are divided over what type of code Bentham imagined. On the one hand historians like L.J. Hume and S.R .Letwin have argued that it should be wholly comprehensive, so that judges would adjudicate in a fairly mechanical manner following the substantive rules of the code. This interpretation rests on Bentham’s persuasion that social reality had a structure that could be uncovered by classification, so that it was possible to outline all possible modes of action. On the other side, Gerald Postema has argued that Bentham’s theory of adjudication was much more flexible than has so far been realized. For Postema, Bentham’s theory of law was built on a commitment to a direct-utilitarian theory of practical reasoning: by this, the code guaranteed a co-ordination of social interaction and secured expectations, but guaranteed that, at case level, the practical reasoning of the judges would remain a direct-utilitarian one that could distribute with the code. The Benthamic code was thus only a broad set of principles which could be fleshed out by reference to utility, and the judges could ignore the code when utility dictated.
Bentham remained determined in his commitment to a complete code, seeing it in 1828, at the time of the wave of law reform, as being altogether crucial, while consolidation was insupportable and the mere reinforcement of the corrupt system. Yet the most significant feature of Bentham’s substantive proposals-whether in the form of writing a code or even in the more modest project of building and running his Panopticon-was their failure. Not only did he fail to get any government to adopt his code, but he never managed to complete a satisfactory one. Yet his ideas and his approach to law were highly influential. We must therefore distinguish between codification as an idea and as a substantive proposal.