A memorial for Jeremy Bentham: Memory, fiction, and writing the law

Law and Critique

Volumn 15, Issue 3, 2004, Pages 207-229

  Kayman, Martin A ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

Common law; Cultural memory; Jeremy Bentham; Law and literature; Legal fictions; Positive law; Written constitutions

Indexed keywords

EID: 13844280584     PISSN: 09578536     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10978-004-5443-7     Document Type: Review

References (74)

1. This article is based on a paper originally given as part of a plenary panel on Law and Memory at a conference on 'Cultures of Memory/Memories of Culture', held by the Cyprus Society for the Study of English (CYSSE) in association with the European Thematic Network: Approaches to Cultural Memory (ACUME), 20-22 February 2004, Nicosia, Cyprus. My thanks to the University of Cyprus and ACUME for the invitation to contribute to this panel.
2. J. Bentham, 'Legislator of the World': Writings on Codification, Law, and Education, P. Schofield and J. Harris, eds. (Oxford: Clarendon Press, 1998), 170.
3. J. Bentham, Constitutional Code, Vol. I [1830], F. Rosen and J.H. Burns, eds. (Oxford: Clarendon, 1983).
4. Bentham was fully aware of the unlikelihood that any sovereign state would accept the proposal of one man - and a foreigner to boot - writing their legal code. He thus offered his services to a range of states in the hope that acceptance by one would turn his proposal into a concrete example whose success would inevitably make others follow. See Bentham, supra n. 2, at 169.
5. Bentham argued that there were actually positive benefits deriving from the employment of a foreigner rather than a native draughtsman, due to the former's distance from the potentially corrupting influences of 'particular and sinister interests and affections' (290). By the same token, as Bentham also points out (279 et seq.), an individual author also provides better guarantees that the key requirements of comprehensiveness and coherence will be met than would a drafting committee.
6. See M. Minow, M. Ryan and A. Sarat, eds., Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992).
7. The locus classicus for the shift to the modern disciplinary regime in regard of the Panopticon is, of course, M. Foucault, Discipline and Punish: The Birth of the Prison [1975], A. Sheridan, ed., trans. (London: Allen Lane, 1977).
8. The classic treatment of Bentham's reading of the Common Law is G.J. Posterma, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986). See also M. Lobban, The Common Law and English Jurisprudence 1760-1850 (Oxford: Clarendon Press, 1991).
9. The classic treatment of Bentham's reading of the Common Law is G.J. Posterma, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986). See also M. Lobban, The Common Law and English Jurisprudence 1760-1850 (Oxford: Clarendon Press, 1991).
10. At the same time, recent shifts towards the military enforcement of global principles of parliamentary legality, the universal and would-be 'post-historical' application of the values of Western liberal democracy against cultures, such as Islam, founded in different textualities, make such issues pertinent in a broader context.
11. See J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century. A Reissue with a Retrospect [1957] (Cambridge: Cambridge University Press, 1987).
12. Blackstone's role in constructing English law deserves particular mention. As the first professor of English Law at Oxford, his lectures, later published as the Commentaries on the Laws of England, provided academic respectability and a historical and a theoretical coherence for what had hitherto been an exclusively professional body of knowledge. See D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989) and Lobban, supra n. 8.
13. Blackstone's role in constructing English law deserves particular mention. As the first professor of English Law at Oxford, his lectures, later published as the Commentaries on the Laws of England, provided academic respectability and a historical and a theoretical coherence for what had hitherto been an exclusively professional body of knowledge. See D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989) and Lobban, supra n. 8.
14. Cf. 'all those ['unwritten'] Laws have their several Monuments in Writing, whereby they are transferred from one Age to another, and without which they would soon lose all kind of Certainty.' Sir Matthew Hale, The History of the Common Law of England [1713, 1739], C.M. Gray, ed. (Chicago: Chicago University Press, 1971), 16.
15. W. Blackstone, Commentaries on the Laws of England (1765-1769), 4 Vols. (Chicago: Chicago University Press, 1979), I, 67.
16. Hale and Blackstone also cite legal treatises as sources of law, which in the English tradition are generally also texts parasitic on legal practice and procedures, rather than purely theoretical undertakings. See Richard Helgerson's discussion of the importance of Coke's generic strategies in Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), 80-87.
17. Hale, supra n. 12, at 17.
18. For the nationalism of English law and its principal genres, see J.W. Cairns, 'Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State', Oxford Journal of Legal Studies 4.1 (1984), 318-360. As the Oxford English Dictionary notes, the word 'International' is a coinage of Bentham's own, produced precisely in the context of the need for 'international' law in J. Bentham, The Principles of Morals and Legislation [1780] (New York: Prometheus Books, 1988), xvii. §25.
19. For the nationalism of English law and its principal genres, see J.W. Cairns, 'Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State', Oxford Journal of Legal Studies 4.1 (1984), 318-360. As the Oxford English Dictionary notes, the word 'International' is a coinage of Bentham's own, produced precisely in the context of the need for 'international' law in J. Bentham, The Principles of Morals and Legislation [1780] (New York: Prometheus Books, 1988), xvii. §25.
20. Sir John Davies, Irish Reports (London: 1674), quoted in Pocock, supra n. 10, at 32-33.
21. Cf. Hale: 'it is not only a very just and excellent Law in itself, but it is singularly accommodated to the Frame of the English Government, and to the Disposition of the English Nation, and such as by a long Experience and Use is as it were incorporated into their very Temperament, and, in a Manner, become the Completion and Constitution of the English Commonwealth' - Hale supra n. 12, at 3.
22. Thus, for example, Blackstone: 'The idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection... And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti a freeman' - Blackstone, supra n. 13, at I, 125. (Blackstone's reading was not totally accurate here, which makes it even more significant.) See also P. Goodrich's discussion of the question of the spirit of justice and the English law in his chapter on 'The Eucharist and English Law: A Genealogy of Legal Presence in the Common Law Tradition', in Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990), 53-110.
23. See J. Bentham, A Fragment on Government [1776], R. Harrison, ed. (Cambridge: Cambridge University Press, 1988). 'Blackstone's lectures as the newly established Vinerian Chair of English Law were attended by the young Bentham in 1763.'
24. J. Bentham, 'Truth Versus Ashhurst; or, Law as It Is, Contrasted with What It Is Said to Be' [1792, 1823], in J. Bowring, ed., The Works of Jeremy Bentham Vol. V (New York: Russell & Russell, 1962), 231-237.
25. Bentham, supra n. 2, at 102.
26. Bentham, supra n. 20, at 21. The most influential compilation and presentation of Bentham's writings on fiction is C.K. Ogden, Bentham's Theory of Fictions (London: Kegan Paul, Trench, Trubner, 1932).
27. See Blackstone, supra n. 13, at 267-268. Legal fictions were much relied upon in the history of law to develop jurisdiction (e.g. 'the King's peace') and to adapt the Common Law to emerging realities (as in the case of the use of ancient writs for contemporary property or contract disputes). Their development was particularly intense in the seventeenth and eighteenth centuries, as proto-capitalist social and commercial relations began to supersede the feudal relations embodied in the Common Law, and the role of the central state grew in relation to local governance. For relations between legal and literary fictions in the eighteenth century, see M.A. Kayman, "The Reader and the Jury: Legal Fictions and the Making of Commercial Law in Eighteenth-Century England', Eighteenth-Century Fiction 9.4 (1997), 373-394, and 'The New Sort of Speciality and the New Province of Writing:' Bank Notes, Fiction and the Law in Tom Jones,' ELH 68 (2001), 633-653.
28. See Blackstone, supra n. 13, at 267-268. Legal fictions were much relied upon in the history of law to develop jurisdiction (e.g. 'the King's peace') and to adapt the Common Law to emerging realities (as in the case of the use of ancient writs for contemporary property or contract disputes). Their development was particularly intense in the seventeenth and eighteenth centuries, as proto-capitalist social and commercial relations began to supersede the feudal relations embodied in the Common Law, and the role of the central state grew in relation to local governance. For relations between legal and literary fictions in the eighteenth century, see M.A. Kayman, "The Reader and the Jury: Legal Fictions and the Making of Commercial Law in Eighteenth-Century England', Eighteenth-Century Fiction 9.4 (1997), 373-394, and 'The New Sort of Speciality and the New Province of Writing:' Bank Notes, Fiction and the Law in Tom Jones,' ELH 68 (2001), 633-653.
29. P. Langford provides a helpful account of this tension in Public Life and the Propertied Englishman 1689-1798 (Oxford: Clarendon Press, 1991). For concerns of Common Lawyers regarding the legal literacy - in effect memory of custom - of parliamentarians, see also Lieberman, supra n. 11.
30. Bentham, supra n. 20, at 119.
31. Bentham, supra n. 2, at 123.
32. Ibid., 125. One assumes that Bentham is referring to what is usually distinguished in Romance languages as, for example, loi and droit.
33. J. Horne Tooke was the author of The Diversions of Purley, 1829 ed., 2 vols. (London: Routledge/ Thoemmes Press, 1996), first published in 1786/1805. For Tooke's importance to the history of linguistics in Britain, see H. Aarsleff, The Study of Language in England 1780-1860 (London: The Athlone Press, 1983). For his importance to the relation between law and language, see M.A. Kayman, 'Trials of Law and Language: Caleb Williams and John Horne Tooke', in M. Fludernik and G. Olson, eds., In the Grip of Law: Trials, Prisons and the Space Between (Frankfurt: Peter Lang, 2004), 83-104.
34. J. Horne Tooke was the author of The Diversions of Purley, 1829 ed., 2 vols. (London: Routledge/ Thoemmes Press, 1996), first published in 1786/1805. For Tooke's importance to the history of linguistics in Britain, see H. Aarsleff, The Study of Language in England 1780-1860 (London: The Athlone Press, 1983). For his importance to the relation between law and language, see M.A. Kayman, 'Trials of Law and Language: Caleb Williams and John Horne Tooke', in M. Fludernik and G. Olson, eds., In the Grip of Law: Trials, Prisons and the Space Between (Frankfurt: Peter Lang, 2004), 83-104.
35. J. Horne Tooke was the author of The Diversions of Purley, 1829 ed., 2 vols. (London: Routledge/ Thoemmes Press, 1996), first published in 1786/1805. For Tooke's importance to the history of linguistics in Britain, see H. Aarsleff, The Study of Language in England 1780-1860 (London: The Athlone Press, 1983). For his importance to the relation between law and language, see M.A. Kayman, 'Trials of Law and Language: Caleb Williams and John Horne Tooke', in M. Fludernik and G. Olson, eds., In the Grip of Law: Trials, Prisons and the Space Between (Frankfurt: Peter Lang, 2004), 83-104.
36. J. Bentham, Ontology' [1813], The Works of Jeremy Bentham, Vol. VIII, supra n. 21, at 194-211 at 195.
37. Ibid., at 197. However, Bentham goes on to explain, in this sense, 'Every fictitious entity bears some relation to some real entity, and can no otherwise be understood than in so far as that relation is perceived, - a conception of that relation is obtained.' Bentham distinguishes fictions by the degree of 'remove' they have from a 'really existing entity'. Thus, for example, motion and rest are fictions of the 'first remove'; qualities, of the second remove. The further one moves from the world of empirical sensation, the more fictitious, and thus the more potentially deceitful, fictions become.
38. Ibid., at 198.
39. Ibid., at 199.
40. Bentham, supra n. 2, at 124.
41. J. Bentham, 'Essay on Language', The Works of Jeremy Bentham, Vol. VIII, supra n. 21, at 294-338 at 304.
42. Bentham, supra n. 2, at 117.
43. Ibid., 137.
44. Coke's assertion that 'The original laws of this land were composed of such elements as Brutus first selected from the ancient Greek and Trojan institutions' (Preface to Sir Edward Coke, 'Third Report', Reports, Thomas and Fraser, eds. Vol. II (London: 1826) at xiv. That this was a strategic fiction is attested by J.G.A. Pocock who demonstrates that Coke did not set great store by the historicity of this narrative - see Pocock, supra n. 10, at 50. However, its potency is equally attested by the fact that it is quoted in M.A. Clarke, 'Britain's Unique Heritage of Law Threatened by an EU Police State: A Napoleonic System of Repression Now Confirmed in Corpus Juris', European Institute of Protestant Studies (2000), at 〈http://www.ianpaisley.org〉, last accessed 7 March, 2004.
45. Coke's assertion that 'The original laws of this land were composed of such elements as Brutus first selected from the ancient Greek and Trojan institutions' (Preface to Sir Edward Coke, 'Third Report', Reports, Thomas and Fraser, eds. Vol. II (London: 1826) at xiv. That this was a strategic fiction is attested by J.G.A. Pocock who demonstrates that Coke did not set great store by the historicity of this narrative - see Pocock, supra n. 10, at 50. However, its potency is equally attested by the fact that it is quoted in M.A. Clarke, 'Britain's Unique Heritage of Law Threatened by an EU Police State: A Napoleonic System of Repression Now Confirmed in Corpus Juris', European Institute of Protestant Studies (2000), at 〈http://www.ianpaisley.org〉, last accessed 7 March, 2004.
46. Apart from Pocock, supra n. 10, see, for example, H. Nenner, By Colour of Law: Legal Culture and Constitutional Politics in England 1660-1689 (Chicago: Chicago University Press, 1977).
47. 'Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor... But though society had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together...' - Blackstone, supra n. 13, at I, 47.
48. See, for example, E. Burke, Reflections on the Revolution in France, C. Cruise O'Brien, ed. (Harmondsworth: Penguin, 1986), 117-121.
49. Cf. '...its memories were not the memories of man, of the lifeworld or of lived history and language... it was traditio, which is to say authoritative clericist tradition, sclerotic sacral wisdom, that was recollected in the most excellent and antique of laws... Memory in the hands of the legal tradition is not an historical method but rather a technique of faith: through the recollection of previous instances of legal presence, through establishment or precedent, the law continuously rediscovers itself, it is made present to itself as logos or the word incarnate. Memory within such a rigorously internal history of a discipline is simply the witness of presence, the testimony of authority, the repetition of externally given truths.' Goodrich, supra n. 19, at 50-51. Future references to this edition will be given in the text.
50. One outcome of this endeavour was the original 'Interpretation Act' of 1850, introduced by Lord Brougham, establishing statutory meanings for key terms used in legislation in England and Wales.
51. Bentham, supra n. 3, at 6.
52. For Bentham, 'motion' is the classic 'fiction of the first order', and hence relatively close to a 'real entity'. See Bentham, 'Essay on Language', supra n. 35, at 325. See also 'Rule IV' of the 'Rules for Clearness' at 315.
53. See Ibid., at 327.
54. Cf. Bentham's Rule VI 'for Clearness', which, once more, enacts its own norm: 'Of that idea which is the principal one, and to which the sentence in question the purpose requires that the attention should be principally attached, put the sign in the first place, or as near the first place as the state of the grammatical relation will admit' - Ibid., at 317.
55. Bentham, The Principles of Morals and Legislation, supra n. 16, at VI, ii. 29.
56. 49 Bentham, supra n. 3, at 6.
57. See Ibid., at 218-267.
58. Ibid., 160.
59. A further consequence of the faith in writing to drive out 'fiction' and tyranny is the exclusion from the electorate (along with women and children) of 'non-readers'. See Ibid., V.I (2) at 29.
60. Ibid., 4.
61. J.E. Crimmins, ed., Bentham's Auto-Icon and Related Writings (Bristol: Thoemmes, 2002).
62. As Bentham wrote in his will, 'Having from my earliest youth devoted my mental faculties to the service of mankind what remains for me is to devote my body to that same purpose'. Ibid., 6. The Anatomy Act was in fact passing through Parliament when Bentham died.
63. See F.R. Leavis and J. Stuart Mill, Mill on Bentham and Coleridge (London: Chatto & Windus, 1967).
64. See Bentham's last will of 13 April 1830, particularly the account of 'The manner in which Mr. Benthams body is to be disposed of after his death', written in the hand of Thomas Southwood Smith, the doctor who performed the dissection and delivered the required lecture, in Jeremy Bentham, Bentham's Auto-Icon and Related Writings, supra n. 54, at 16-17.
65. For details of the effigy, see C.F.A. Marmoy, The "Auto-Icon" of Jeremy Bentham at University College, London', Medical History II.2 (1958): 77-86, 〈〈http://www.ucl.ac.uk/Bentham-Project/info/marmoy.htm〉 last accessed 21 December 2003.
66. J.E. Crimmins, 'Introduction', Bentham's Auto-Icon and Related Writings, supra n.54, xi.
67. The sub-title, Further Uses of the Dead to the Living, prolongs the meaning of Southward Smith's original lecture on dissection, Use of the Dead to the Living of 1828.
68. Bentham, Ontology', supra n. 30 at 195.
69. Bentham, Bentham's Auto-Icon and Related Writings, supra n. 54, at 2. Future references to this edition will be given in the text. 'Every man his own lawyer' appears in Bentham, 'Legislator of the World', supra n. 2, at 137.
70. Bentham characteristically also declares: 'Every man is his best biographer' (2).
71. Again here his project is a denial of the slippages involved in inheritance, of the relinquishment of property on behalf of a next generation, a transmission of memories, to use as they, not the dead, see fit.
72. The issue was whether the Statute of 1710 (8 Anne c.19) replaced or merely supplemented what was argued by some to be a previously existing Common Law right - which defenders of the supremacy of the Statute in turn argued could not exist over a form of property that had not previously been recognised as such. See M.A. Kayman, 'Lawful Writing: Common Law, Statute and the Properties of Literature', New Literary History 27.4 (1996), 761-783.
73. For a good while the only available edition of this text was a bi-lingual publication edited by M. Hellenthal - J. Bentham, Auto-Ikone oder Weitere Verwendungsmöglichkeiten von Toten zum Wolhe der Lebenden (Englisch und Deutsch), M. Hellenthal, ed. (Essen: Die Blaue Eule, 1995). In his introduction to Bentham, Bentham's Auto-Icon and Related Writings, supra n. 54, J. Crimmins concludes that 'In general, the tract is written with a good deal of humour and a degree of irony, characteristic of Bentham's correspondence and occasionally found in his writings. Nevertheless, there is a serious purpose' (lii).
74. It is fitting too that the preserved head was not a success, and had to be lodged, out of view, in the rib-cage. After all, a man is not his own best signifier; Bentham himself is in fact a waxwork, precisely what he wished to avoid: a man-made image of himself. As Crimmens points out (lv), Madame Tussaud had introduced her touring wax museum into England in 1802 and opened the Baker Street premises in 1835.