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CHAPTER 11 Blackstone's Challenger The death of Hume was but one of several omens that 1776 marked the end of an era. The list of great monuments to Whig civilization was completed with the publication of Gibbon's Decline and Fall and Smith's Wealth of Nations. The Americans declared their independence in terms that gave intimations of something new to come. And not least among the signs announcing another era was the appearance of a small book, called A Fragment on Government, by an anonymous author. At first glance, it was simply a tirade against Blackstone's Commentaries, which hadbecome the canonical interpretation of law in England. But there was much more to the Fragment on Government. In the opening lines, it declared a new spirit: "The age we live in is a busy age; in which knowledge is rapidly advancing towards perfection. In the natural world, in particular, every thing teems with discovery and with improvement." It had become recognized besides, the author declared, that if discovery and improvement were possible in the natural world, there could be "reformation" in the moral realm. But this, he felt, was too modest a hope, for why should there not be discovery and improvement in the moral as well as in the physical world? Men already had available to them an axiom which, if explored with method and precision, might produce far-reaching improvement in the moral realm-the axiom that "the greatest happiness of the greatest number" was the measure of right and wrong. However, for the moment the author would content himself with denouncing and exposing Blackstone, in whose work he found "scarce a syllable ... by which a man would be led to suspect that the affair in hand was an affair that happiness or unhappiness was at all concerned ."1 1. Jeremy Bentham, A Fragment on Government, ed. W. Harrison (Oxford, 1948), p. 28. 132 Jeremy Bentham Until Blackstone's works lost the esteem they had acquired, there would be no hope for the interests of "true science" and "liberal improvement."1 For Blackstone deluded the public with an elegant style and spurious reasoning into accepting whatever was established. He spoke the language of a gentleman , using metaphor and allusion, instead ofwriting as a scientist, with pure precision. Yet the only reason he gave for unquestioning submission to the existing laws was that they were issued by a government whom men had promised to obey, thus resting his argument on the fiction of an original contract already thoroughly demolished by Hume. Moreover, Blackstone asked men to obey a law that was no law, the common law, which was nothing but a large and muddled mass of judicial opinions from which lawyers could draw whatever they liked. The only ground for obeying any law or for observing any promise, the anonymous author asserted, was its utility. Indeed whatever the practice, there was but one all-sufficient reason for it, the principle of utility. "Accurately apprehended and steadily applied,"2 utility could give the clue to distinguishing good from bad without useless disputes about words. It rested every case on a "matter of fact; that is future fact-the probability of certain future contingencies,"3 so that debates about politics and legislation could be settled by judgement, not passion, by bringing evidence of "such past matters of fact as appear to be analogous to those contingent future ones."4 Utilitygave clarity and certainty, unlike Blackstone's haphazard method of "cross and pile"5 that made all governments equally good or bad and freed legislators from any possibility of doing wrong. There was no longer any need for the law to remain an obscure matter of conjecture that left the public a prey to unscrupulous lawyers. On the principle of utility, it could be made perfectly explicit and settled. For once the law was arranged on a natural basis, such as the principle of utility provided, and not according to some irrelevant technical nomenclature, it would be easy to see at once the mischief in a bad law, or at the least, the doubtfulness of its utility, simply because no bad law could fit into such an arrangement.6 There was no need for any of the law to remain hidden in the form of unwritten or common law, whose false halo must go. Above all, legal fictions 1. Ibid. p. 7· 3· Ibid. p. 101. 5· Ibid. p. 64. 2. Ibid. p. 93· 4. Ibid. p. 102. 6. Ibid...

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