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CHAPTER XXIV.: NINETEENTH DEVICE—LAUDATION OF JURISPRUDENTIAL LAW. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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NINETEENTH DEVICE—LAUDATION OF JURISPRUDENTIAL LAW.
Wherever jurisprudential law reigns, certainty is impossible: it has no ground to stand upon. Jurisprudential law is sham law: to ascribe stability to this creature of the imagination, is to ascribe stability to a shadow.
Statute law has everywhere a tenor—a determinate collection of words: there is the will, and there is the expression of it:—we know whose will it is, where signified, by what signs expressed, what parts are to be found in it. Jurisprudential law, is law made by nobody, at no time, and in no words.
In statute law, words may here and there be ill chosen; and, from the infelicity of the choice, uncertainty as well as misconstruction may arise; but no sooner is the flaw perceived than it may be remedied. Jurisprudential law is perpetual disease, perpetually unsusceptible of all cure. From statute law, yes: but, so far as statute law extends, jurisprudential law is (or at least ought to be) extirpated; if it be not, the disease, so far from being cured, is aggravated. There is the statute law to give certainty: there is the jurisprudential law to take it away.
In jurisprudential law may be seen, not the parent only, but the protecting guardian, of all these other abuses. In it, the founders of the fee-collecting system have ever beheld the offspring of their own brain, the work of their own hands, the fruit and pledge of their own power. Statute law is the work of whom? Of the legislator—the lawful, the real, legislator. Jurisprudential, of whom? Of the judge—of the underhand workman, always making work, always disavowing it when made—of the Birmingham come making his own trash, and passing it off for the king’s—of the dishonest valet, stealing out in the dark, going about in his master’s name, and receiving homage in his clothes.
By what legislator, by what genuine legislator, recognised as such, and in pursuit of public ends, could any devices such as those over which we have been glancing, have been set up? By what legislator? unless, perchance, under the guidance of some Achitophel member and instrument of the fee-collecting partnership, serving the ends of judicature while talking of the ends of justice.
That which exists not, cannot be known. So far as the dominion of jurisprudence spreads, ignorance is universal, misconception endless.
An article of statute law is a drop of water, in the state of water, or in that of ice: an article of jurisprudential law is the same drop in the state of vapour. In the solid or liquid state, you know where the drop is, you see it, you may weigh it, you may measure it: you see the bounds of it: those bounds are narrow and determinate. In the state of gas or vapour, unless you have it in a bottle, you know not where it is, you do not see it, you cannot weigh it, you cannot measure it: assignable bounds it has none, unless it be the limits of the atmosphere.
Such is an article of jurisprudential law. In the form of statute law, a single line might, perhaps, contain the substance of it, and that perfectly: in the form of jurisprudential, the same article shall fill a folio volume; and the larger the folio, the more indeterminate the import of the article. To a command, there is an end: to a dissertation, there need be none.
In statute law, non-notoriety is an accidental disease: of common law, it is the inseparable essence. In statute law, the disease may be cured as soon as discovered: in common law, every remedy is so much added to the disease.
Non-notoriety is sometimes an inbred but always curable disease, sometimes an extraneous defect, in statute law; not non-notoriety merely, but uncognoscibility, an aggravated and incurable exacerbation of the same disease, cleaves to the essence of jurisprudential law.
Introduced by jurisprudential law, every pretended improvement, every improvement that, if introduced by statute law, would be a real one—every slip of common sense and common honesty forced into a soil so repugnant to both, brings into action the double-fountain principle. Fear not on this ground to earn the praise of liberality. Plant your improvements; round your periods; proclaim the ardour of your zeal for justice: all this you may do, and earn the praise of justice without prejudice to the ends of judicature. While under the genial influence of the double-fountain principle, the old rank weeds are numerous and strong enough to spring up and choke the new plants: all this liberality is but a more refined way of carrying on the manufactory of made business.*
By the uncertainty of the law, the partnership interest is served in three distinguishable ways:—1. The number of suits is increased; 2. The quantity of business receives a further increase, from the quantity of advice which men are necessitated to purchase—advice before a suit, during a suit, and for fear of a suit; 3. In proportion to the degree of uncertainty, the judicial members are invested with a degree of power proportionably arbitrary, and thence applicable to the purposes of the partnership in all imaginable ways.
Going to law, I have a chance—not going to law, I have none: such is the encouraging speech which the interest of the partnership requires should as often as possible be made by the parties, each to himself, on both sides. The oftener a speech to this effect is made and acted upon (provided always it be on both sides,) the greater and more glorious, and thence the richer in profit, the uncertainty.
Out of the manufactured necessity of advice—advice which, by the operation of the same cause that gives birth to the necessity, is so often rendered fallacious—arises that branch of the partnership concern which may be called the opinion trade. Of this, a few words under a separate head.†
Jurisprudential law—the imaginary law extracted by each man for himself out of a mass of jurisprudence—is a vast hot-bed of uncertainty. By statute law, in proportion as it extends, keeping clear of entanglement with jurisprudential law, that most poisonous of all weeds is extirpated.
Hence we have two distinguishable devices, hatched by the technical system, more especially the English branch of it laudation of jurisprudential law—contempt of statutory law.
In two instances that I have chanced to meet with (there may be twenty for aught I know,) the single word policy‡ has served a chief justice or puisne judge of the King’s Bench, for superseding the use, as they have on so many occasions set at nought the declared will, of king, lords, and commons.
Transplanted from parliament (its only proper soil) to the King’s Bench, this word, coupled with the unlimited faculty of applying it (and what limits are ever set to the faculty of applying it?) was of itself sufficient to erect judicature into a despotism. Omnipotence required but a word to create light; jurisprudence required but a word to create darkness.
Not but others, each of them capable of supplying its place, might be found in superfluous abundance, to the right and left, by any one that had taste and courage for the task.
In Christianity is the law of the land:∥ there are seven words; but in those seven words, coupled with the application made of them, there is matter sufficient to supply the place of an inqusition, and to afford to orthodoxy, under each successive change, a perpetual security against disturbance, by barring out all argument on either of two sides at pleasure, and supplying the place of it on the other side.
Temporal tyranny established by a single word, and spiritual added to it by seven more!
What security does any such word as policy afford against the sinister interests and inclinations of the judge?—what security has it ever afforded in taking into his own hands offices, on the abuse of which his power is supposed to afford a check?
Will you believe Lord Mansfield? Judges are higher, better, fitter legislators, than king, lords, and commons. “Common law” (says he in so many words) “is superior to an act of parliament.”* Superior? how so? The reason is not the less brilliant for being unintelligible. “It works itself pure from the fountains of justice:” fountains abundant on the ground-floor of the great hall, unknown (it seems) above stairs. Send a man to common law for purity! Send him to the common sewer to cleanse himself. As he taught, he practised.
Mansfield superior, in his own theory, to king, lords, and commons. Mansfield, when a reforming fit came on him, chose to do everything by himself, with io, mio, and arrio, in the character of mutes and train-bearers.
Another sort of thing, whose reputation for working itself pure is rather better established, is Thames water. Working itself pure on ship-board, it has nothing to do with fountains.
[* ]Compared with the absence of everything that can be called law, imaginary as well as real—of every pre-existing standard which can serve either to the use of the judge in the way of direction, or as against the judge in the way of controul,—even jurisprudential law is a blessing of prime magnitude.
[† ]Infrà, Chap. XXVI.
[‡ ]Utility would not have served the purpose. Utility is a familiar unassuming word, recognising all men’s competence to judge, and for that purpose inviting them to hear, and look, and weigh, on both sides. Policy involves mystery, importing exclusive wisdom, and excluding from the research all who do not expect to be recognised in the character of politicians.
[∥ ]3 Keb. 307. 1 Vent. 293. Rex v. Carlisle, 3 B. & A. 161.—Ed.
[* ]Atkins, i. 33.