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Subject Area: Political Theory

Blackstone vs. Bentham on Law - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Blackstone vs. Bentham on Law

Richard A. Posner

  • University of Chicago Law School

“Blackstone and Bentham.” The Journal of Law and Economics 19 (October 1976): 569–606.

Blackstone's originality lay in analyzing the abstract social function of law and then demonstrating how these English laws operated to achieve the economic, political, and other goals of English society. With this in mind, Bentham's violent attacks on the Commentaries of the Laws of England are all the more mysterious.

Among other things, Blackstone presented a “competent statement of the economic theory of property rights.” For Blackstone, the ultimate objective of law is to secure fundamental rights so that people can pursue their own ends—the liberal or eighteenth-century conception of rights. Though Blackstone denied that a court could invalidate a duly enacted Parliamentary statute, he argued that abridgments of fundamental rights legitimated revolution. He here accepted the Lockean argument, an argument later incorporated into the Declaration of Independence. Likewise, Blackstone strongly defended a separation of powers and trial by jury. His strong adherence to common law was a commitment to rediscovering pre-Norman and pre-feudal Saxon justice, and applying it to new circumstances—an evolutionary view of law. This contrasts sharply with Bentham's attack on Blackstone as a defender of the status quo, “the dupe of every prejudice. . . the abettor of every abuse.”

Indeed, the more one analyzes Blackstone's views, the more difficult it is to comprehend Bentham's antipathy toward them and their author. For example, Blackstone adopted a utilitarian or preventive rationale for punishment, rather than a retributive one. In this, Blackstone and Bentham each drew on a common source, Beccaria. In seeking to apportion punishment to guilt and in attacking the extensive use of capital punishment, Blackstone anticipated Bentham. Why then Bentham's hatred of his ex-teacher?

Blackstone was most of all “guilty” of having eloquently demolished a number of what were to be Bentham's pet proposals. This appears in the codification of law. Moreover, history vindicates Blackstone's skepticism about codification. Similarly, Blackstone's commitment to procedural rights, to trial by jury, to the right to refuse making self-incriminating statements were commitments to what became the basis of our Bill of Rights. Bentham viewed these as impertinent obstacles to his reformist measures. “Bentham is not a little the fanatic whose willingness to sweep aside the obstacles to implementation of his proposals draws sustenance from a boundless confidence in his own reasoning powers.” Blackstone, on the other hand, had spent so long studying the complex order of society that he had developed a respect for its powers to evolve and to adapt without superimposing reforms on it.

Above all else, what separated Blackstone and Bentham were their attitudes toward political power. Blackstone adopted an essentially classical liberal view of the state. “Bentham's blind spot about the problem of social order is of a piece with his enthusiasm for social planning. He worried about all monopolies except the most dangerous, the monopoly of political power.”