The Scientific Approach to Legal History and Legal Reform

324 Pages·2016·1.53 MB·English

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

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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.

_______________________________________

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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.

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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.

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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
1.1: Blackstone ………………………………………………… 183
1.2: Kames……………………………………………………… 187
1.3: Bentham…………………………………………………… 193
1.4: Comparison………………………………………………… 196
Section 2: The Bible as a Source of History……………………………………… 198
2.1: Blackstone ……………………………………………………199
2.2: Kames ……………………………………………………… 203
2.3: Bentham……………………………………………………… 206
Section 3: The Study of the Feudal System and its Laws………………………… 214
3.1: Blackstone…………………………………………………… 215
3.2: Kames…………………………………………………………225
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

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