Week 4 - Benthams and the united states

Introduction to Jeremy Bentham

Common Law: Judge-made laws or case law established through court decisions. Represents a body of law reliant on precedents set by judicial rulings.
Panomenon: Greek terms: "pan" (all) and "nomos" (law), meaning a comprehensive set of laws.
Natural Law vs. Legal Positivism:
- Natural Law: Validity of law derived from moral principles and nature.
- Legal Positivism: Law is valid based solely on human enactments, not necessarily linked to morality.

Bentham criticized common law, viewing it as unwritten and unclear.
Common law necessitates legal advisers due to its complexity and reliance on case law.
Common law is seen as arbitrary, with power concentrated in the judiciary.

Unreliability: Makes law uncertain; case interpretations vary. This leads to inconsistent outcomes in similar cases, challenging the principle of equality before the law.
Creates Disparities: In access to justice based on individuals' ability to navigate legal jargon, creating inequalities.
Judicial Power: Empowers judges and lawyers disproportionately, possibly leading to unjust outcomes due to personal biases and interpretations.
Access to Courts: Not everyone can easily access the courts to challenge or clarify laws, leading to further exclusion from the legal process.

Codification of Law: Bentham advocates for the writing down of laws for clarity and accessibility, arguing that a well-documented legal code would serve as a guide for citizens. This would help demystify the legal landscape, allowing individuals to better understand their rights and obligations without needing specialized legal training.
Sovereign Command: Laws originate from the commands of the sovereign, distinguished from natural law. Legitimacy comes from the people's compliance with the sovereign's commands.

In 1811, Bentham offered to write a set of legal codes, termed "panomenon," for the U.S.
Criticized the continued use of British common law in America post-revolution. He viewed this as an impediment to the establishment of a truly American legal system that reflected contemporary values and needs.
Affirmed the potential for a new legal system that could reflect modern needs and contexts.

Expresses Bentham's ambition to create a comprehensive body of law.
Advocates for removing old British laws and establishing new ones that are clear and accessible.

Measurable Simplicity: Reducing thousands of pages of common law to a manageable code.
Public Accessibility: By making laws public, individuals can understand their legal rights and responsibilities without needing a lawyer, fostering a more informed citizenry.
Democratic Representation: Laws should express the will of the legislature and reflect the interests of the people, thus ensuring their societal relevance.

Efficiency in Law Enforcement: A codified set of laws allows for consistent enforcement and interpretation. This can streamline legal processes and reduce the burden on courts managing complex cases.
Clarity of Legal Terms and Statutes: Reducing ambiguity leads to better compliance and understanding among citizens. Clearly defined laws help prevent unintentional legal breaches by individuals who may be unaware of specific legal nuances.
Reduction of Judicial Power: Limits the discretion of judges in interpreting laws, which may help prevent biases. This addresses concerns about judicial activism and ensures that laws are applied as intended.
Encouragement of Legislative Accountability: Lawmakers can be held accountable for enacting laws that serve the public good rather than judicial opinions. This fosters a culture of responsibility and transparency within government.

Concerns over Property Rights: Argues that existing expectations are the only obstacle to reform, not the reforms themselves. He believed that such reforms could be implemented without undermining established property rights.
Fear of Revolutions: Reminds that existing common law creates more instability than his proposed codification, suggesting that progress can alleviate discontent. His arguments posit that predictable and clear laws can enhance social stability.

Legal Positivism: Emphasized by Bentham, it separates law from morality, establishing that law only needs to be verifiably enacted, thereby allowing for a clearer understanding of legal frameworks. This shift has profound implications for contemporary jurisprudence.
Influences on Legal Scholars: His critiques of common law influenced modern legal theorists and legal positivists, encouraging ongoing developments towards clarity and accessibility in law. Bentham's contributions continue to inform discussions about the role of law in society.

Bentham's vision was rooted in creating a more logical, accessible, and rational system of law. His work invites ongoing debate regarding the intersection of law, morality, and the practical realities of legal systems. As legal frameworks continue to evolve, Bentham's principles remain relevant in discussions about efficiency, transparency, and democratic governance in law.