ABSTRACT

Answer Plan Bentham was rigorously hostile towards the common law of England, which he saw as serving the sinister interests of lawyers. Bentham argued for the systematic codification of the law, which would mean the extinguishing of the common law although judges would still be needed to apply and interpret the codes. A judge could override the codes where utility demanded that course, but no judicial decision would have precedent value – a judicial decision would be like a bus ticket valid for only one journey. If there were gaps in the code the judges should refer the case back to the legislature for decision. This extremely utopian scheme of Bentham never saw its realization, but some law was codified in the nineteenth century, e.g. the Sale of Goods Act 1893 and statute became the dominant legal source over the common law in the twentieth century. It was John Austin, Bentham’s friend and student who became the ‘voice’ of early legal positivism in the nineteenth century, partly because Austin ‘depoliticised’ Bentham’s legal theory by leaving out the radical law reform measures and therefore Austin was a more palatable legal theorist than Bentham in the eyes of nineteenth century lawyers.