The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Ideas in Context)
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A comprehensive account of English legal thought in the age of Blackstone and Bentham for nearly a century, The Province of Legislation Determined advances an ambitious reinterpretation of eighteenth-century attitudes to social change and law reform. Professor Lieberman's bold synthesis rests on a wide survey of legal materials and on a detailed discussion of Blackstone's Commentaries, the jurisprudence of Lord Kames and the Scottish Enlightenment, the chief justiceship of Lord Mansfield, the penal theories of Eden and Romilly, and the legislative science of Jeremy Bentham. The study relates legal developments to the broader fabric of eighteenth-century social and political theory, and offers a novel assessment of the character of the common law tradition and of Bentham's contribution to the ideology of reform.
more ambitious reform of the substance of parliament's enactments. Others suggested that consolidation might prove a sufficient solution to the problems attending parliamentary lawmaking. But what is perhaps most striking was the extent to which statute consolidation came to be seen as a crucial if rather uncontroversial program for English law — a scheme for legal improvement endorsed by the most fulsome and seemingly complacent apologists for the system of law in England. The attitude of Edward
Hence, in this legal area the courts were always prepared to sacrifice rules to prevent "a failure of justice," and precedents remained firmly subservient to principles: General rules of evidence may therefore be considered as afforded by the decisions of certain cases and entitled to govern all cases similar... But, if other circumstances enter into the case,... and, if the principle does not reach such additional circumstances, it should seem that the rule ought not to be applied, if a failure
part of language presents itself, men never can think themselves in security."49 In the multitude of provisions for a reformed legal policy Bentham canvassed in the 1770s, he particularly recommended that judicial decisions "concerning the construction of words" never be preserved.50 Given the technical demands of the conveyancing system, mistakes were easily made, and in the many cases concerning wills and devises which entered Westminster Hall, the courts were forced to determine between an
sympathetic commentators observed, this branch of English law had to be explained in terms of precedents and not principles. The standard defence of Shelley's case based on the need to preserve the stability of real property, Francis Hargrave shrewdly noted, contained "a sort of implied admission" that were it not for "the accumulation of authorities and practice," the "technical and artificial sense" of the rule could never be sustained. 76 Wooddeson likewise acknowledged that "in framing laws
hives, and then went on to praise the judge's "law writings " by claiming, inaccurately, that they enjoyed the same status "as those of Coke and Blackstone in the courts of England." 22 Kames brought to the study of the law two general methodological principles, and their application gave a general unity to his diverse and voluminous legal texts. First was his insistence that law had to be studied as an historical subject. He introduced his Historical Law Tracts by stressing that " law in