CHAPTER THREE
HOW THE LAW WAS LOST
LEGAL PHILOSOPHERS HAVE approached the study of jurisprudence from different paradigms—for example, natural law versus positive law and legal formalism versus legal realism. In recent years legal paradigms have fueled public policy debates in America. In 1987 the nomination of a distinguished judge and legal scholar to the United States Supreme Court became entangled in a furious dispute between partisans of “judicial activism” and advocates of “original intent.” For us, these paradigms are interesting but irrelevant.
The real question is whether law protects people from government or enables government to lord it over people. The English struggled long to achieve law that would protect people from arbitrary power. Once this was achieved and the sovereign was made accountable to law, the nature of government changed.
The control that democracy gave the people over government made them feel safe. Free from the unaccountable power of the sovereign, they ceased to perceive law as a threat. The questions arose: Since the government is ours and accountable to us, what is the purpose of a legal system that protects us from a power that we control? Doesn’t the emphasis on individual rights preclude us from using our mechanism of government to achieve the greatest benefit for the greatest number?
Eighteenth-century British philosopher Jeremy Bentham answered in the affirmative and began a legal revolution in which people’s rights would again become subservient to a politically defined greater interest. In this chapter we contrast William Blackstone’s concept of law as the people’s shield with Bentham’s concept of law as a tool for socially engineering a higher level of happiness.
Most Americans are accustomed to thinking of law as a list of deeds that the government prohibits. This list is long. The U.S. Code, which contains all federal statutes, occupies 56,009 single-spaced pages. Its 47 volumes take up 9 feet of shelf space. An annotated version, which attempts to bring order out of chaos, is 36 feet long and has 230 hardcover volumes and 36 paperback supplements. Administrative lawmaking under statutes fill up the 207-volume Code of Federal Regulations, which spans 21 feet of shelf space and contains more than 134,488 pages of regulatory law. The Federal Register updates federal regulations daily. In 1994, its 250 volumes had a total of 68,107 pages. Federal law is further augmented by more than 2,756 volumes of judicial precedent, taking up 160 yards of law library shelving.
State and local governments also have laws, regulations, and judicial precedents. Tiny Rhode Island has 21,880 pages of statutory law supplemented by 22 thick volumes of interpretive regulations. The California Code is 11 yards long. The Golden State’s 329 volumes of judicial opinions occupy 35 yards of shelf space. New York’s code is 6 yards long. The Empire State’s 929 volumes of judicial precedent fill 90 yards of shelf space.
This gigantic corpus, however, is not what Blackstone means by law. Little of value would be lost if these volumes disappeared overnight. What Blackstone means by law are prohibitions on government, not prohibitions from the government. According to Blackstone, law is a handful of principles that prevent the government from using the legal system as an instrument of oppression. What differentiates the fortunate few who live under Anglo-Saxon jurisprudence is not the number of laws—other nations have vast quantities of their own—but the requirement that law serve justice, not government.
In all other systems of jurisprudence, the government is presumed to define justice, thus leaving people vulnerable to government persecution. This is why the English legal system has, throughout the ages, been revered. At the end of his Commentaries of the Laws of England, Blackstone praised England’s “laws and liberties” as “the best birthright, and noblest inheritance of mankind.”
Blackstone’s reverence for law as a guarantor of liberty resonated in hearts and minds in the colonies across the Atlantic. According to historian Daniel Boorstin, in American history “no other book—except the Bible—has played so great a role as Blackstone’s Commentaries on the Laws of England.” Boorstin concludes that “Blackstone was to American law what Noah Webster’s speller was to American literacy.” Edmund Burke declared in the House of Commons in 1775 that “in no country perhaps in the world is the law so general a study” as in America, where “all who read, and most do read, endeavor to obtain some smattering in that science.” As proof, Burke reported that a prominent bookseller told him that Blackstone’s Commentaries were a colonial American best-seller, nearly matching English sales.
Burke’s point was underlined one year later when colonists penned their Declaration of Independence, essentially an affirmation of their rights as Englishmen that they felt King George III had trampled. “Even without Blackstone,” Boorstin wrote, “the Americans surely would have fought their Revolution and doubtless would have preserved English institutions in America. But the convenient appearance of the Commentaries within the decade before the Declaration of Independence made it much easier for Americans to see what they were preserving; and made it feasible to perpetuate those institutions in remote villages without trained lawyers or law libraries.”
If King George III had behaved toward colonial Americans with the wisdom of Alfred the Great, Blackstone’s Commentaries might have collected dust in Boston and Philadelphia book shops. But to people experiencing “repeated injuries and usurpations,” Blackstone struck a chord with his description of the “absolute rights inherent in every Englishman” and his dramatic presentation of their “rise, progress, and gradual improvements.” Backed by Blackstone, colonial Americans saw their struggle in the context of the epic struggle between the virtuous ancient constitution “concerted by Alfred” that guarded “public and private liberty” and tyrannical deviations from it. Blackstone said, “The liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king’s prerogative, extorted from our princes by taking advantage of their weakness; but a restoration of that ancient constitution, of which our ancestors had been defrauded.” Blackstone detailed how through the ages courageous Englishmen fought to restore Alfred’s constitution from servility to alien legal conceptions that William the Conqueror imported from Normandy in 1066. At that time, the Rights of Englishmen were “totally buried under the narrow rules and fanciful niceties of metaphysical and Norman jurisprudence.” Blackstone detailed the drama through the ages—with the Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689)—that restored Alfred’s constitution. When members of the Continental Congress signed the Declaration of Independence—pledging “to each other our Lives, our Fortunes, and our sacred Honor”—on July 4, 1776, they were infused with confidence that they, and not King George, stood with both feet firmly planted in English law.
The same year that Americans asserted their Rights as Englishmen in the Declaration of Independence, Blackstone’s concept of law was attacked in an anonymous tract. The author was Jeremy Bentham, a vainglorious economist whose embalmed remains sit today in the University of London. In time, ideas from this pamphlet would spread across the Atlantic and gradually nibble away the basis of American liberty. But that would come later.
In December 1763 Blackstone stepped to the podium of his Oxford classroom to begin teaching his popular course—what academic department heads today would call a “cash cow”—for the tenth year. As England’s foremost legal scholar spoke, two students who sat next to each other had totally different reactions. For one, Blackstone inspired reverent awe. For the other, Blackstone inflamed contemptuous disgust.
Samuel Parker Coke was enthralled with Blackstone’s every word. His imagination soared with images of Alfred the Great consulting with England’s wise men about customs from the past before restating the common law after defeating the Danes at Edington in 878. He envisioned himself standing at Runnymede when King John signed the Magna Carta in 1215. More than ever before, he appreciated the courage of his forebear, Sir Edward Coke, for reasserting the principles of the Magna Carta in parliamentary disputes with Charles I, culminating in the Petition of Right in 1628. He could feel the cool Channel breezes at Brixham in November 1688 when William III arrived from the Netherlands in the Glorious Revolution. William and Mary, his queen, ascended to the throne in exchange for recognizing the supremacy of Parliament and affirming the Bill of Rights.
For the young Coke, Blackstone eloquently described how law rests in the people and their sense of what is fair and just—the essence of the Rights of Englishmen. He saw how English law embodied the achievement and triumph of freedom in the ancient struggle against tyranny. As he carefully took notes, Coke pondered how much better off he was than his cohorts who were studying law in Paris, Bologna, or Berlin. As an Englishman, the law was a shield he held instead of a sword a sovereign held. It was the Rights of Englishmen, rather than the king’s good graces, that restrained England’s sovereign authorities from doing harm.
Sitting next to Coke was his friend Jeremy Bentham, a sixteen-year-old prodigy and son of a wealthy London lawyer, who had already completed a bachelor’s degree at Oxford and a year of legal study at London’s Lincoln’s Inn. When he was only five, Bentham’s precocity earned him the nickname “Philosopher.” In one of London’s “logical disputations,” in vogue in his childhood, young Jeremy defeated not only his opponent, but also the presiding moderator. He had also achieved fame for writing a Latin ode in honor of the accession of King George III.
To the diminutive Jeremy Bentham, Blackstone merely aroused antagonism by prattling about legal history, which Bentham dismissed as irrelevant mythology, reminiscent of the imaginary ghosts that had tormented his childhood. Bentham later wrote that he could not take notes during Blackstone’s lectures because “my thoughts were occupied in reflecting on what I heard. I immediately detected his fallacy concerning natural rights; I thought his notions very frivolous and illogical.” The notion of “natural rights” is the rationalization that philosophers such as John Locke put on the historical achievement of the English in making law accountable to the people.
Bentham derided it all as “nonsense on stilts.” What Blackstone lauded as historic struggle and achievement that secured the Rights of Englishmen, Bentham lamented as the erection of new legal barriers that blocked government from doing good.
Back from Oxford at Lincoln’s Inn, Bentham vented his gnawing disdain for Blackstonian law in an essay titled “A Fragment on Government,” which was widely distributed in London in 1776. Because eighteenth-century Englishmen held Blackstone’s Commentaries in the same high esteem as Shakespeare’s plays and the King James Bible, Bentham’s attack on Blackstone was anonymous. The “Fragment” caused an uproar in British legal and political circles because of both its shocking content and its “ungentlemanly” anonymity. Of course, the essay’s disregard for honor and etiquette was in line with Benthamism’s core—a slashing assault on all inherited values, institutions, and customs, especially as embodied in law. Bentham assailed Blackstone for glorifying the status quo: “He is the dupe of every prejudice and the abettor of every abuse. No sound principles can be expected from that writer whose first object is to defend a system.”
Young Jeremy Bentham wanted to remake the world. Sitting in Blackstone’s Oxford classroom, he quickly grasped that English law was a barrier. Liberty—what Blackstonian law secured—has always been a barrier to those who want to remake society. When law resides in the will of the people, the elites, who wish to proclaim their will from on high, lack power. To reverse this, Bentham determined that he would reinvent the millennia of English jurisprudence from his desk in his London study—in the same Westminster residence where the author of Paradise Lost, John Milton, had lived during Oliver Cromwell’s mid-seventeenth-century interregnum.
In order to undercut Blackstone, Bentham ambushed English liberty. He derided it as a “fictitious legal entity.” He found liberty and liberal to be mischievous words. The real issues, he declared, were happiness and security. What good is liberty, he asked, if the absence of government action means people are unhappy and insecure?
Bentham’s “Fragment on Government” recognized the “jealous antagonists” of individual liberty and government, but in contrast to Blackstone, he sided with government. He did this by viewing liberty as the freedom of government from restraint, not the freedom of people from government. He insisted that “freedom in a government depends not upon any limitation to the Supreme Power.” Rather than a restraint on government, Bentham considered law to be government’s instrument for doing good. This reformulation posed no danger, Bentham stated, because the purpose of both government and law was to promote the “greatest happiness for the greatest number.”
From Bentham’s perspective, Blackstone made the individual count for too much, thereby frustrating the government’s ability to act in the public’s wider interest. Instead of the tyranny of the government, it was the tyranny of the individual whose petty individual rights stood in the way of the rational reconstruction of society.
Bentham spent the rest of his life evaluating almost anything and everything according to the “utilitarian principle”—the extent to which it promoted the “greatest happiness for the greatest number.” Using his utilitarian razor, Bentham shaved the Rights of Englishmen out of English jurisprudence. As Gertrude Himmelfarb has written, “The principle of the greatest happiness of the greatest number was as inimical to the idea of liberty as to the idea of rights.” Friedrich A. Hayek reached the same conclusion: “Bentham and his Utilitarians did much to destroy the beliefs which England had in part preserved from the Middle Ages, by their scornful treatment of most of what until then had been the most admired features of the British constitution.”
Bentham wrote in the “Fragment” that “the age we live in is a busy age; in which knowledge is rapidly advancing towards perfection.” Bentham had total confidence in his ability to construct a science of good government focused on promoting happiness and minimizing suffering. He believed that social engineering to enhance the greater good took precedence over the Rights of Englishmen. Historian David A. Lockmiller notes in his biography, Sir William Blackstone, that while “Blackstone was a commentator on laws as they existed,” Bentham “was the prophet of a new era” who audaciously “created a Heaven of his own and invited mankind to join him.”
Bentham’s “heaven” was a gulag. Historian Paul Johnson has described how Bentham “wanted to treat as criminals and apprehend people who were likely, because of their social and economic status, to fall into crime, whether or not they had committed one.” Bentham suggested that these people be put into hundreds of “industry houses,” where they would be reformed with heavy labor. Johnson says that “there were many respects in which Bentham’s industry houses adumbrated the work camps set up in Hitler’s Germany and Lenin’s Russia over a hundred years later.”
Bentham’s influence as an English legal philosopher was entirely dependent upon the success of the English in making government accountable to law. Prior to the Glorious Revolution, the concept of government as an entity that could be trusted to devote itself to the happiness of its subjects would have been too strange for words. At Runnymede, King John did not defend himself as a promoter of the public interest. Any such claims would have fallen on deaf ears.
It is easy to impute good motives and draw up lists of good things that government could do if only there were no chains on its powers. For Bentham, the more power the government had, the more power it had to do good. This could make sense only to a people who had tied government down so that it could do them no harm. Blackstone viewed law as an assertion of the people’s independence. Bentham thought this independence was foolish, because it obstructed the government’s power to induce progress. He said, “Government is good in proportion to the happiness of which it is productive on the part of the body of the people subject to it.”
Blackstone said to his students at the end of his lectures that “we have taken occasion to admire at every turn” the “ancient simplicity” of English law. But he did not stop there. He also said, “Nor have its faults been concealed from view; for faults it has, lest we should be tempted to think it of more than human structure.”
It was on this point that England’s foremost jurist left his role as a chronicler of how the Rights of Englishmen were achieved and took on the role of a seasoned barrister imploring his students to heed his wisdom. Blackstone acknowledged the rage for modern improvement that lurked within each age, especially from those desiring “to show the vast powers of the human intellect, however vainly or preposterously employed.” Beseeching his students to be patient, Blackstone said that English law’s grounding in the values, customs, and traditions of the people ha[d] allowed the Rights of Englishmen to meet the “exigencies of the times.” “We plainly discern the alteration of the law from what it was five hundred years ago, yet it is impossible to define the precise period in which that alteration accrued, any more than we can discern the changes of the bed of a river, which varies its shores by continual decreases and alluvions.”
To reiterate his theme of patience and the importance of treading slowly, Blackstone said, “We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The inferior apartments, now converted into rooms of convenience, are cheerful and commodious, though their approaches are winding and difficult.” As political scientist Herbert Storing observes, Blackstone “is careful to warn against reform that might loosen some apparently useless stone or weaken some inconvenient timber and cause the whole edifice, the pleasant apartments as well as the noble shell, vital damage.”
Blackstone’s lesson was lost on Jeremy Bentham, for indeed, impatience is the essence of Benthamism. One of Bentham’s admirers, parliamentarian Henry Peter Brougham, who served as lord chancellor from 1830 to 1834, said that the age of law reform and the age of Jeremy Bentham were one and the same, as no one before him had ever seriously thought of adapting law to the task of promoting human happiness. Brougham concluded his accolade: “Not only was he thus eminently original among the lawyers and the legal philosophers of his country; he might be said to be the first legal philosopher that had appeared in the world.” Brougham dismissed the champions from Alfred the Great to William Blackstone in the long struggle for accountable law as mere clerks concerned with perpetuating the law that they inherited, whereas he saw Bentham as a “legal philosopher” seeking to radically transform law into something new. Brougham’s uninformed opinion became commonplace.
Bentham’s advocacy of torture underscores the radical nature of his “legal philosophy.” Torture is anathema to the Rights of Englishmen. Blackstone proudly declared that “trial by rack is utterly unknown to the law of England.” Torture’s absence from English jurisprudence long distinguished it from legal systems in the rest of Europe, where torture was a legally sanctioned instrument of investigation and adjudication. Holding the law in their hearts and minds, the English disdained the idea that they could ever be put on the rack. In contrast, across the English Channel on the European continent, people had no say in the matter, because the sovereign defined the law.
Jeremy Bentham advocated the legalization of torture, which, of course, would destroy everything for which English jurisprudence stood. But that was Bentham’s aim. In his self-proclaimed role as an impartial “deontologist”—an expert on the maximization of aggregate happiness—he postulated that the systematic use of torture to extract evidence could contribute to the greater happiness of the greater number just as flowers in London parks and sport fishing did. Bentham blithely used his “felicific calculus”—the calculation of units of felicity—to assess everything, including mandatory chapel at Oxford.
Bentham defined torture as making a person suffer “any violent pain of body in order to compel him to do something or to desist from doing something which done or desisted from the penal application is immediately made to cease.” Dispelling the “sentimental prejudice” against torture with the “dictates of reason and utility,” Bentham concluded that “torture might be made use of with advantage.” Just as “a Mother or Nurse seeing a child playing with a thing which he ought not to meddle with, and having forbidden him in vain pinches him till he lays it down,” the government can promote security against crime by torturing suspects. Bentham dismissed dangers of sadistic impulses and false confessions to terminate unbearable pain. He believed judges could be as trusted to prescribe the proper degree of torture as they are to properly sentence the guilty. We hear much the same thing today from those who tell us we can trust prosecutors and police with wide latitude and discretion.
As much as Jeremy Bentham disliked William Blackstone, only with Blackstonian law taming government could Bentham credibly advocate torture. Commenting on Bentham’s advocacy of torture, English legal historians W. L. Twining and P. E. Twining write that “apart from the enormous practical difficulties of devising workable safeguards, there is the perennial question of the extent to which one is prepared to trust those in authority.” Bentham benefited from the fact that government is trustworthy only when the Rights of Englishmen are in place. The Rights of Englishmen are most appreciated when they are absent.
Tyranny was such a distant memory for Bentham that he did not take protections against it very seriously. Undercutting the legal achievements proscribing torture would restore tyranny quickly. Torture would, by definition, establish a class of torturers who were prone to violence and who would endanger society. Torture treats individuals as means to an end, rather than ends unto themselves who are shielded by the Rights of Englishmen. As Bentham casually dismissed Rights of Englishmen that prohibited torture, he likewise did away with other Rights of Englishmen. Richard Posner has summarized the implications of Bentham’s “deontological” prescriptions:
Bentham’s assault on traditional language and the habits of thought encapsulated in it prefigured the totalitarian assault on language by Newspeak, Hitler, and the Soviet press. In his suggestions for prison reform, Bentham was a pioneer in developing techniques of brainwashing. He toyed with the idea of having everyone’s name tattooed on his body to facilitate criminal law enforcement. Compulsory self-incrimination, torture, anonymous informers, abolition of the attorney-client privilege and of the jury, and depreciation of rights are other parts of Bentham’s legacy to totalitarian regimes.
Blackstone’s concept of law gave us the Rights of Englishmen. Bentham’s concept undermined the Rights of Englishmen. For Blackstone, law was the people’s shield. For Bentham, it was permissible for the government to trample the individual in the name of a “greater good.” Blackstone respected property as an “absolute right, inherent in every Englishman.” Bentham thought private property was merely a legally dispensable creation of the government. Blackstone thought law was grounded in the values and traditions of the people. Bentham thought law could be scientifically remade by the government in pursuit of “the greatest happiness for the greatest number.” Blackstone revered juries and reviled the Court of Star Chamber, which Parliament had abolished in 1641 for its tyranny. Bentham hated juries and praised the Court of Star Chamber for its efficacy in securing convictions. For Blackstone, law was a shield held by the people against government. For Bentham, law was a sword wielded by government over the people for their own good.
Bentham believed in the wisdom and perfectibility of public administrators. Blackstone feared the government’s “evil and pernicious counselors” and defended constitutional diffusions of power, while Bentham favored the consolidation of government authority. Blackstone was conscious of human fallibility. Bentham trumpeted the limitless powers of reason, especially his own. Blackstone was an incrementalist, Bentham a radical.
Surrounded by 70,000 pages of unpublished manuscript, Bentham died on June 6, 1832. But his legacy has continued. The history of English legal reform “in the nineteenth century is the story of the shadow cast by one man—Bentham,” said A. V. Dicey, holder of Blackstone’s Oxford chair from 1882 to 1909. The day after Bentham died, the first of England’s reform bills crafted in his image received royal assent. Three days after Bentham’s death, his utilitarian disciples, leading doctors, and medical students gathered in London’s Webb Street School of Anatomy in order to observe the dissection of his body. It did not take long for Bentham’s shadow to reach America, where his calculus would ultimately dissect the Rights of Englishmen out of U.S. law.
Over the decades Benthamite influences have eaten away at the Rights of Englishmen. There was never a radical frontal assault that overthrew these rights. Rather, it has been a piecemeal and incomplete process. Benthamite concepts were grafted, so to speak, onto the legal tree of liberty. Enough of Bentham has found its way into our law that we can no longer take for granted that we will be afforded the protections provided by the Rights of Englishmen. In the following chapters we show infringements of the rights that prevent government from using law as a weapon.