Perspectivas interculturales - 1. Descripción del problema

8. Análisis

8.1. Perspectivas interculturales

Bentham and Austin represent the classical school of English legal positivism, oft en dis-paraged by modern theorists as quaint or simply misguided. But they cannot sensibly be understood without an appreciation of the historical context in which they wrote and the objectives they sought to achieve. In particular, they were (in diff erent ways) apprehensive about the manner in which the common law was explained and justifi ed as the expression of community needs and interests. For them, law is an expression of political facts, as will become evident below. I shall briefl y describe the main elements of their theories and then suggest where their strengths and weaknesses might lie.

Jeremy Bentham (1748–1832) was a prolifi c author. His prodigious manuscripts lay unknown, gathering dust in the University of London for more than a century aft er his death in 1832. Especially since 1970, when Professor Hart published the fi rst authoritative edition of Bentham’s Of Laws in General (which Bentham completed in about 1782), it is clear that Bentham’s work (including, 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. But it is a good deal more. With his

‘extraordinary combination of a fl y’s eye for detail, with an eagle’s eye for illuminating generalizations’,⁶ Bentham devoted himself to exposing what he saw as the shibboleths of his age and constructing a comprehensive theory of, inter alia, law, logic, politics, and psychology, founded on the principle of utility.

Little escaped his meticulous and scrupulous attention. He dealt with the courts, pris-ons, procedure, and reform of the law on almost every subject. And his sustained, oft en devastating, assault on the received wisdom of his day is magnifi cent in its destructive power, for, as Mill put it, Bentham found the battering-ram more useful than the build-er’s trowel.⁷ 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 Enlightenment, Bentham sought to subject (some would say reduce) the common law to the cold light of reason.

5 R Tur, ‘Th e Kelsenian Enterprise’ in R Tur and W Twining (eds), Essays on Kelsen (Oxford: Clarendon Press, 1986), 166.

6 HLA Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), 4.

7 Quoted in Gerald J Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), 148.

so much because of the minimum core of empirical good sense which he perceives in the terminology of natural law but because his positivism purports to be normative rather than fact-based. Given, however, the facticity of the rule of recognition, Hart might prop-erly remain nearer the positivist end of the continuum. Aquinas, as interpreted by Finnis, clearly cannot go too far out from the centre towards the natural law end partly because, apparently, he allows that an unjust law is still a law but primarily because he apparently rejects the rationalist stance that all decisions fl ow from logical deductions, allowing for

‘determinations’ in his system . . . [G]iven a stronger normativity than Hart’s, [Kelsen]

must be placed nearer to natural law than Hart’s theory.⁵

He attempted to demystify the common law, to expose what lay behind its mask. Th e use of fi ctions, 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 charac-teristically stinging and incisive manner. Th e law was a perplexing network of technical rules created by lawyers, conveyancers, and judges (‘Judge & Co’) which served their, usually corrupt, interests (see 3.2.2). Most people were too poor or ignorant to derive any benefi t from a process which purported to be fair and rational:

Th e techniques of manipulation of ignorance, complexity, and selective terror for sinister ends . . . could not be seen, according to Bentham, as mere aberrations of an essentially rational system of law. Rather, they comprised the latest expected chapter in a saga 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 accord-ing to a new and rational pattern.⁸

Bentham, says Hart, ‘surely recognised in himself the Luther of jurisprudence’.⁹ He derided not only lawyers’ language (which was designed to render the law incomprehensible to the layman and hence multiply lawyers’ fees) but also their wigs, robes, and anachronistic forms of address (which sought to lend legal proceedings ‘lustre and splendour’), and the ambiguity, complexity, and irrationality of the rules of evidence. His critique inspired the major legislative reforms of the English law of evidence of 1843, 1851, and 1898.

Th ere is, as has already been stressed, no substitute for the reading of primary sources (though the oft en turgid writings of Bentham and Austin demand a fair amount of patience and resilience). Indeed, Bentham himself described Of Laws in General as a ‘dry cargo of speculative metaphysics’—not an entirely fair self-criticism, for there are cer-tainly more laughs in Bentham than Austin. But you will fi nd the principal features of Bentham’s legal positivism (as well as other themes in his writings) analysed with charac-teristic clarity and elegance in Professor Hart’s Essays on Bentham.

3.2.1 In search of determinacy

Bentham devoted a signifi cant portion of his onslaught against the common law tradition to the ‘theory’ of the common law and the extent to which this theory diff ered from its practice. Th e common law was, in the eighteenth century, considered to be the expression of immemorial custom and long-standing practice which embodied natural reason. Th e law was thus legitimated by its historical (and hence popular) antecedents as well as its inherent rationality. Bentham regarded such ideas as dangerous fallacies: appeals to the Law of Nature were nothing more than ‘private opinion in disguise’ or ‘the mere opinion of men self-constituted into legislatures’. Th e ‘most prompt and perhaps the most usual translation of the phrase “contrary to reason”, is “contrary to what I like”.’¹⁰

Th e only determinate, concrete content that can be given to natural law or reason is entirely private and subjective because of the abstractness of these notions. Th ey off er no public shared standards for assessment of rules, laws, actions, or decisions. Th is has two disastrous consequences for law and adjudication. (a) Justifi cation of judicial decisions is removed entirely from the public arena. Judicial decisions resting on appeals to natural law

8 Ibid, 267. ⁹ Hart, Essays on Bentham, 29.

10 Quoted in Postema, op cit, 269 and 270.

or reason rest entirely on private sentiment or whim. And, (b) this opens the door wide for corruption and the manipulation by sinister interests of those who are subject to law.¹¹

Behind the mask of legal fi ctions (vaunted, especially by Blackstone, as the spirit of the common law) and the pretence of immemorial custom, lay an incomprehensible web of unjust laws perpetuated 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. Th is is the way you make laws for your dog: and this is the way the judges make law for you and me.¹²

Such ‘superstitious respect for antiquity’ ensures that senseless decisions of the past are repeated in the future. But times obviously change:

[T]he more antique the precedent—that is to say, 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.¹³

And, paradoxically, the doctrine of stare decisis produces greater rather than less arbi-trariness. Th is is because despite the apparent rigidity of the doctrine, to avoid following a precedent judges resort to legal fi ctions, ‘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. Th e doctrine thus defeats its own avowed purpose.

Th e indeterminacy of the common law is endemic. Unwritten law is, in Bentham’s view, intrinsically 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 profoundly purposive or functional one, informed of course by the principle of utility. Th e common law falls far short of this conception not only because it fails to express rules with clarity, but because (and as a consequence) its very validity is suspect. So law’s indeterminacy infects its legitimacy; to accept the authority of the rules themselves is oft en to accept the larger authority of the law itself. And this confl ation results in a reluctance to question and criticize the law in general, to blind obedience.

3.2.2 Judge & Co

Th e role of judges in this disorder is especially pernicious. As already mentioned, ‘Judge

& Co’ conspire to preserve the common law’s delay, expense, and injustice. Th e judiciary was insuffi ciently accountable to the people and its method of resolving disputes unduly complex. Th e fi rst defi ciency could, he argued, be remedied by rendering the whole process of judging more open and public. Publicity, Bentham 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 (an ideal which still shows little sign of realization!).

Th e second problem (which also continues to affl ict modern courts) 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 (or per-haps a servant) has committed the act in question, and hands down the appropriate verdict

11Ibid, 270. ¹² Quoted in ibid, 277. ¹³ Ibid, 278.

[T]he more antique the precedent—that is to say, the more barbarous, inexperienced, and prejudice-led the race of men, by and among whom the precedent was set—the more unlike that the samepasttstate of things . . . is the presentt state of things.¹³

or reason rest entirely on private sentiment or whim. And, (b) this opens the door wide for corruption and the manipulation by sinister interests of those who are subject to law.¹¹

and judgment or sentence. Th is cosy model of alternative dispute resolution assumes, of course, 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.

Bentham’s attack on the conventional common law model of the judicial function is entirely consistent with his argument for grounding the legitimacy of law in rationality, accessibility, and utilitarianism, see 3.2.1.

3.2.3 Codiﬁ cation

Th e chaos of the common law had to be dealt with comprehensively. For Bentham this lay, quite simply, in codifi cation. Once the law is codifi ed:

[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 pub-lic: 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 the whole system of the obligations which either he or any one else is subject to are recorded and displayed to view.¹⁴

Such a code would signifi cantly 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.

Codifi cation, in short, would wind up ‘Judge & Co’.

Th e principle of utility dictated that the code be structured in the most logical man-ner and formulated in the simplest language. It would lay down geman-neral principles in a coherent and fairly detailed way, as well as justifi cations for these principles (these are particularly important for the judge).

For Bentham codifi cation demanded the construction of a complete body of laws based on natural and universal principles. Indeed, his great work, An Introduction to the Principles of Morals and Legislation, was conceived of as an introduction to a penal code, and he pursued it in Of Laws in General where he concludes that its boundaries could not be properly drawn without tackling the distinction between civil and penal law:

[T]he most intricate distinction of all, and that which comes most frequently on the car-pet, is that which is made between the civil branch of jurisdiction and the penal, which latter is wont, in certain circumstances, to receive the name of criminal.¹⁵

And this, he maintained, raised the question of the individuation of law, which was cen-tral to the relationship between an individual law and the complete code:

Th e wonder will cease when it comes to be perceived that the idea of a law, meaning one single but entire law, is in a manner inseparably connected with that of a complete body of laws: so that what is a law and what are the contents of a complete body of the laws are questions of which neither can be answered without the other.¹⁶

14 Bentham, Of Laws in General (London: Athlone Press, 1970), Ch 19, para 10, quoted in Postema, op cit, 423.

15 Bentham, An Introduction to the Principles and Morals and Legislation, ed JH Burns and HLA Hart (London: Athlone Press, 1970) (Th e Collected Works of Jeremy Bentham, ed JH Burns), Ch 17, para 29.

16 Ibid.

[T]he most intricate distinction of all, and that which comes most frequently on the car-pet, is that which is made between the civill branch of jurisdiction and thepenal, which latter is wont, in certain circumstances, to receive the name of criminal.¹⁵

Bentham described civil law as primarily expository or ‘circumstantiative’ while penal law concerned sanctions and was ‘comminative’.¹⁷ We would today perhaps portray this dis-tinction as one between substantive and procedural law. Th e importance in drawing these (and other) fi ne distinctions lay for Bentham in the fact that codifi cation was not merely the division or control of sovereign power, but the very defi nition of law. Distinguishing the sort of acts that should attract criminal liability was closely related to that of distin-guishing between particular criminal acts as a component of the correct promulgation of the law.

But this approach was not simple: to express all the elements of every individual law would be a taxing chore, since each individual law would need to include a complete account of the relevant rights, duties, exceptions, penalties, etc.¹⁸ To simplify the formula-tion, the elements were broken up according to the nature of the rules, and expressed in separate and complementary codes of civil and criminal law.¹⁹ But since not every law was criminal in nature, his classifi cation distinction was based on its expression in specifi c legal systems: no unqualifi ed boundary could be drawn.²⁰

Th ough both branches of the law had common features, Bentham argued that it was vital to distinguish them for the purposes of ‘intellection and enunciation’.²¹ Th e distinc-tion lay behind the idea of a natural and universal system of laws, the proposal to create a legislative digest of customary law, the explanation for the promulgation of the law, the form of legislative expression, and the enhancement of the science of legislation through the institution of a school to teach ‘the art of legislation for the benefi t of empires’.²²

Th ough Bentham argued for codifi cation with passionate conviction for most of his life, his views fell on deaf ears in both England and America.

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