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Full Description
The debate between Bentham and classical Common Law theory is philosophically fundamental and has shaped contemporary conceptions of the nature, tasks, and limits of law and adjudication. This book offers a philosophical interpretation of this historical debate. The author draws on the full range of Bentham's published and unpublished writings, and explores the philosophical foundations of Common Law theory especially in the writings of Sir Matthew Hale and David Hume. 'Scholars have much to thank Professor Postema for, in mapping out so clearly the relationship between Bentham's thoughts on substantive law and procedure, and for placing it so firmly in the context of eighteenth century common law thought. It is rare to find a book which changes the way one thinks about great jurists: this is one such book.'The Cambridge Law Journal
Contents
Abbreviations; PART I: LAW, CUSTOM AND REASON: Elements of classical common law theory; Law, social union, and collective rationality; Hume's jurisprudence: Law, justice, and human nature; Hume's jurisprudence: Common law conventialism; PART II: BENTHAM'S CRITIQUE OF COMMON LAW; THE ROOTS OF POSITIVISM: Utilitarian justice and the tasks of law; Bentham as a common law revisionist; Custom, rules and sovereignty; Plucking off the mask of mystery; Utilarianism positivism; PART III: LAW, UTILITY AND ADJUDICATION: The judge as Paterfamilias; Judicial virtues and the sanctions of public opinion; Utilitarian adjudication within the shadow of the code; The coherence of Bentham's theory of law.
