JEREMY BENTHAM: THE FATHER OF UTILITARIANISM IN ENGLISH JURISPRUDENCE

When the name Jeremy Bentham, is exemplified in the English law and practice, he is acknowledged, as a theoretical jurist, and in sharp contrast to Sir William Blackstone, who was his former lecturer, and known of his careful philosophical review, as commentaries on the English common law, during the 17^th and 18^th Century AD. Bentham became an arch-developer of the Utilitarian doctrine of the English law, and therefore, was accorded, the status, as the father of Utilitarianism.

Utilitarian, in the normative ethics of the law, from it inception within the 18^th Century AD, had examined ‘Actions’ as either ‘Right’ or ‘Wrong’, and the effects, either creating happiness /pleasure or unhappiness /pain, which goes beyond the performer of the action, to it community.

In the writings of Bentham, on censorial jurisprudence, of what the law ought to be, as an analysis to the existing English legal system of the 17^th Century AD, and the development of utilitarian pannomiom, he argued; in the theory of language, words, ideas and propositions, must represent or describe real entities, in a form of perception or substance.

For detail discussion, and elaboration of the theory of utility, in the English law, demand knowing who is Jeremy Bentham? The young boy Bentham Jeremy, was born in the year 15^th February 1748 at the Spitalfields, London, England; to a father, who was an Attorney, Mr. Jeremiah Bentham Jr., and mother, Alicia Woodward. He is noted to have spent much of his early days with the Grand mother, Rebecca Tabor, and got himself admitted to Westminister School; a School noted of it early inception, as a charity school founded by Benedictine monks, in the year (1179), which became a secular school through King Henry VIII, in the year (1540), and got refounded by Queen Elizabeth I, in the year (1560), as a distinguished public school. In his graduation from Westminister School, Bentham got admission to the Queen’s College, Oxford University, in the year (1760) at the age of 12 years old. In his three years of study at Oxford University, got him admitted to Lincoln’s Inn, to study law at the King’s Bench division of the High Court in the year (1764). At the age of 16 years, he was under the tutelage of the Chief Justice Lord Mansfield, and Sir. William Blackstone. And went further with his studies, until the year (1767) to obtain his Master of Arts degree in Law at Oxford University, during his 19^th birth day.

And was called to the bar in the year (1769) as a trained Barrister at law, at age of 21 years, but never practice, rather, spent the greater part of the remaining years of his life, developing the utilitarian theory and penal code, within the framework of the English legal system.

The tenet of  Bentham’s argument was, ‘Utility’ as a principle of ethics, should be rooted in empirical and verifiable facts, felt in the experience of pains and pleasures. He sought to dismiss concept used by advocates, in analyzing ‘Utility principles’, as ‘moral sense’, ‘common sense’, ‘law of reason’, ‘natural justice’ and ‘natural equity’. He considered those choices of words, as merely empty phrases, that lacks, verifiable reality. The theoretical focus of Bentham work, was how do legislators, influence individual actions, to stimulate conformity to a common decision?

He, therefore, delineated four sanctions, as either a source of pain or pleasure, serving as control mechanism of behaviour. These sanctions were labeled as Physical, Political, Moral and Religious, as a tool for self-interested individuals, to be encouraged, in other to perform actions that promote, the greatest happiness of both themselves and others. With doctrinal view, that utility of an action, is independent of its originating motives, the act , is determined solely by its consequence. Thereby, the performer of the act, should be responsible to calculate, reasonably, how to handle the pain, and the pleasure, for oneself and the community, so should the legislator, be guided by similar calculation, in formulating laws.

Thou, the above assertion, constituted the implicit of consequentialism in utilitarian theory, the bedrock to Bentham theory of Punishment. Arguing that, punishment prescribed by law, should be in proportion to the mischief, produced by the crime, and sufficient to deter others, from committing the same offence, hence, his postulation, has been the fundamental doctrine of modern penal code, in the English legal system.

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Photo of Jeremy Bentham © H. W. Pickersgill 1829. National Portrait Gallery, London.

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Emmanuel Tweneboah Senzu, DBA, Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone. Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.

 

SIR. WILLIAM BLACKSTONE AND THE COMMON LAW

 

                         SIR. WILLIAM BLACKSTONE AND THE COMMON LAW

Among the English Jurists, and the doctrinal development of the English Law, Sir. William Blackstone name, is eminent, though, not touted as extraordinary advocate before the English Court, in the midst of colleagues, yet, his compendium of commentaries, had a significant influence in the development of the Common law doctrine, and did cast eternal light, as shield against tyranny of Sovereignty. Hence, is the subject of discuss.

The English common law, in it early birth, consisted of procedural remedies to ‘rights’, in the early middle ages, for the King’s Court. The continual working out of these procedural remedies, produced a modern system, in which, ‘rights’ were seen as a primary request, over the procedures, as a practice that became a substantive rules creation, after the Norman Conquest, in replace of the Anglo-Saxons succession, as a colonial rule in the year (1066) of our Common era.

The newly centralized government of the Anglo-Norman, centralized their Judiciary, to uphold a practice of outlawry, where actions and deeds of a person, is confined within the law. Thou, in the reign of King Henry II, the administration of Justice, became preeminent, where the Church and the Kingdom, had separate laws and Court systems, with centuries of rivalry over jurisdiction, with the appeals of the Church Court, taken to Rome, because of it Canon law development by the Rome University, in the 12^th Century, for the English Church Courts, while the customs of the Anglo-Norman, largely on Feudal Land laws, Compensation for exercising wardship and marriage, Successions, Tenancy, Impact of inflation's, Inheritance,etc... in it improved remedies, held at the King’s Court, in the same era. Hence, led to the elaboration, and standardization of both the Church rules, and the customs of the Kingdom, forged together, to serve as the foundation, and the origin of the common law.

Therein, a young boy, William Blackstone, born on the 10^th July 1723 at Cheapside, London; as the fourth born son of Mr. Charles Blackstone and Mrs. Mary Blackstone. William, got admitted to Charter House School, in the year (1730), at the age of (7)year. A school founded by Mr. Thomas Sutton in the year (1611) in Godalming, Surrey, England.

On the 1^st of October 1738, William Blackstone was offered a Scholarship, based on academic excellence, at the Charter House School, towards his admission at Pembroke College, Oxford University, at the age of (15)years. After a year and half study of Bachelor of Arts, he got re-admitted to the study of the programme, Bachelor of Civil Law degree, which was the only recognized legal programme of the Oxford University, as at 9^th July 1740; and required seven years of completion, and got admitted to the middle Temple, as a Barrister in the year (1748), and follow-up with his election, as a fellow to All Souls College, Oxford, at the age of (25)years. He went ahead to pursue his Doctor of Civil Law degree, and graduated in the year (1751), at the age of (28)years, and got admitted to convocation, by the governing body of Oxford University, in his 29^th birth day. And did personally announced his intent, as a resident scholar for Oxford University, on the 3^rd July 1753. Afterwards, got appointed as the Chief legal officer of the Chancellor’s Court.

On the 20^th October 1759,  Dr. William Blackstone was appointed, as the first vinerian professor of English Law, for Oxford University, at the age of (36)years. And later became, a Justice of the Common Pleas, and Serjeant-at-law, on the 9^th February 1770 at the age of (47)years. As earlier alluded to, the eminence of the name William Blackstone in English Law, significantly depends on his commentaries of the laws of England as at then, which served as the best known description, for the doctrines of the English common law. These commentaries, were compartmentalized into four books, as follows;

I. Of the Rights of Persons, a book, which dealt with the family and public law.

II. Of the Rights of Things, a book, which outline real-property law.

III. Of Private Wrongs, a book, which discussed Civil liability, Courts and Procedures.

IV. Of Public Wrongs, a book, which dealt excellently with criminal law.

Even though, there were criticism on his work by few proponent, who believed his work, was full of superficiality, and lack of historical sense; largely, his works were acknowledged by  many, as a style and intelligibility, especially, with majority of the English lawyers, and regarded it, as authoritative exposition of the common law. His work grew more famous, after the American declaration of Independence, in the year (1776).

The Blackstone commentaries of the English law, became the chief source of knowledge, in the American new World, hence, his efforts has been recognized, as an extraordinary influence, in the development of the common law doctrine.

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Photo of Sir. William Blackstone ©  Thomas Hamilton Crawford (1860 -1948), Digital Collection of British Library

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Emmanuel Tweneboah Senzu, DBA., Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.

 

CHIEF JUSTICE JOHN MARSHALL AND THE U.S SYSTEM OF CONSTITUTIONAL LAW

                                       

CHIEF JUSTICE JOHN MARSHALL AND THE U.S SYSTEM OF CONSTITUTIONAL LAW

If, Jurisprudence, in the eye of the legal practice, is recognized of it feature, as in the current state, of two well established genre; the Common law, and the Constitutional Law, in a canonical form, upon which all divisions of study, is rooted from, then, it globally undoubted, the Americans, are touted, as the lead in Constitutional law, and the foundation of modern written constitutional text.

And for the record purpose, Chief Justice John Marshsall, is acclaimed as the fourth Chief Justice of the United States, and the Principal founder of the U.S system of Constitutional Law. And further, known to have been responsible for constructing, and defending  both the foundation of Judicial power, and principles of American Federalism.

John Marshall on records, was born on the 24^th September 1755, in Fauquier County near Germantown, in current Virginia State. The American colony as at then, and the revolt, conscribe him to the American Army in the early stage of his life. In the year (1775), he was already serving as a Lieutenant, at the age of (20)years, under Captain George Washington, who was then the General and the Commander in Chief, of the Colonial Armies, for American Revolution, until his death in the year (1799). During Marshall service in the Army, he went ahead to enlist himself into George Wythe lectures, who was a Law professor and Attorney General of Virginia State, under the College of William & Mary. George Whythe, was a legal scholar and the founding fathers of the United States, as part of the first seven signatories of the United States declaration of Independence from Virginia, serving as a representative of Virginia State, to Continental Congress, and the Philadelphia Convention.

 John Marshall, eventually rose to the rank of a Captain, in the year (1783) at the age of (28)years, and admitted to bar in the year (1780), and finally, sought to be discharged from the Army completely, in the year (1785) at the age of (30)years, to enter into private law practice, and entered into the Federal Government, as President John Adams’s envoy to France, and later as secretary of [S]tate, while he played the role  in the year (1788) convention, at which the Virginia State, ratified the U.S Constitution. On January 20^th  1801, John Adams, the 2^nd President of the United States, nominated John Marshall, at the age of (46)years, to serve as the youngest Chief Justice, to replace the Chief Justice Oliver Ellisworth, as the 4^th Chief Justice of the United States, sworn to office on the 4^th February of that same year.

In other to appreciate the crucial role, and relevance of Chief Justice John Marshall, in modern Supreme Court of United States, the reader memory has to be awoke, on the status of the Court prior to the year (1801). It was a Supreme Court, which was relatively insignificant institution. And most legal disputes were resolved at the [S]tate Courts, rather that the Federal Courts, which was expected to be the Omnipotent to the law. It took Marshall’s (34)years tenure, serving as the Chief Justice, to emerge the Supreme Court, out of oblivion, as a formidable force, to be reckon with, by the Federal Government, and to re-shape the Nation understanding of Constitutional law. Having the new Marshall Court issuing series of landmark cases, decisions, with greater part written by John Marshall himself, as the Chief Justice, and an adopted practice, contrary to the previous Court procedure, in airing their public cases.

 This time, the Supreme Court, hand-down, a single majority opinion of the Court, to present a clear rule to the Public, which was defined by Del Dickson in his Article published in (2001) of the Supreme Court in Conference(1940-1985); the Private discussions behind nearly 300 Supreme Court decisions. There is a consensus of the Associate Justices, to build the reputation of the Court, as a source, reliable, predictable and definitive final Judgment, in legal and constitutional matters.

In John Marshall wisdom of personal leadership to the Court, he has set forth his general principles of Constitutional interpretation, and acknowledging his vulnerability, as not widely read and rigour in the law, thou, seldom cite precedents, after the Court comes to a decision by all Associate Justices, he will do the write-up to all the opinions by himself, and call on his long time friend, Justice Joseph Story, with him at the Bench, as a renowned legal scholar, to do the ‘chores’ of locating the precedents, saying, ‘the Story’ that is the law of this case, now go and find the authorities, to complete the write-up, as a formal document for the Court. This was the foundational anchor, and the wisdom in steering the Marshall Court, which has become the modern precedent for Supreme Court, practices and procedures, though, slightly modified, dependent on jurisdiction affairs.

 The following are outlined landmark cases, presided by the Marshall Court, as the Supreme Court of the United States, and the notable dissents from the Chief Justices, John Marshall;

 I. Marbury Vs. Madison (1803)

“ It is emphatically, the province and duty of the Judicial Department, to say what the law is. If, Courts are to regard the Constitution, and the Constitution, is superior to any ordinary Act, of the Legislature, the Constitution, rather that such ordinary Act, must govern the case, to which they both apply. A law repugnant to the Constitution, is void.”

II. Fletcher Vs. Peck (1810)

“ The question of whether a law is void, for its repugnance to the Constitution, is a question of much delicacy, which ought seldom to be decided, in the affirmative, and doubtful case. The opposition between the Constitution, and the law, should be such that, a Judge is clear and in strong conviction, of their incompatibility, with each other.”

III. MuCulloch Vs. Maryland (1819)

“ Let the end be legitimate, let it be within the scope of the Constitution, and all means that are appropriate, and plainly adapted to that end, which are not prohibited, but in consistent with the letter and spirit of the Constitution, are constitutional.”

IV. Cohens Vs. Virginia (1821)

“ A case arising under the Constitution, or laws of the United States, is cognizable in the Courts of the Union, and whoever maybe the parties to that case.”

V. Johnson & Graham’s Lessee Vs. Mcintosh (1823)

“ Native American inhabitants, are to be considered merely occupants, to be protected, while in peace in the possession of their lands, but deemed incapable, of transferring absolute title to others.” 

VI. Gibbons Vs. Ogden (1824)

“ The power to regulate commerce, does not stop at the external boundary of a [S]tate, although it does not extend to commerce, that is completely internal.”

VII.  U.S Vs. PERCHEMAN (1832)

“ Private property, generally should not be confiscated, and private right, annulled on a change in the sovereignty of a territory.”

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Photo of Chief Justice John Marshall © Supreme Court of United States Historical Society

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Emmanuel Tweneboah Senzu, DBA., Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA.

 

 

SIR. BHIMRAO RAMJI AMBEDKAR AND CONSTITUTIONAL ECONOMICS

                  SIR. BHIMRAO RAMJI AMBEDKAR AND INDIA REFORMATION

India in her pre-independence era, had numerous and renowned Intellectual revolutionists, and dozen lists of social reformists, yet, certain iconic names, appears as renowned figures, in their independence struggle, herein Sir. Mahatma Gandhi, the leader of Indian Independence Movement, against the British rule, came to be considered, ‘the Father of the nation’, Sir. Jawaharlal Nehru, as the first Prime Minister of India, and Sir. Bhimrao R. Ambedkar, as the Founder of India, Independent Labour Party, became recognized, as ‘the Father of India Constitution’. Having the India Constitution recognized globally, as the longest structurally written text.

Dr. Ambedkar as a jurists and economist, was born on 14^th April 1891 into Hindu Mahar Caste (an Upper Class elite) of  India society. Received his High School Education in Elphinstone Secondary School, passed his matriculation examination in the year (1907) to enter Elphinstone College, an affiliate to the University of Bombay. At the age of (21)years, he has obtained his first degree in Economics and Political Science, from the University of Bombay, in her contemporary form incorporated as, University of Mumbai. And in the year (1913), did receive a scholarship grants from Baroda State of India, to have a post-graduate study at Columbia University in New York at USA. In the year (1915), he has obtained the Masters degree in Economics, with minor study in Sociology, History, Philosophy and Anthropology, from University of Columbia, and further pursued the Doctoral study in Economics, and graduated in the year (1927).

He furthered his study to be admitted, and enrolled at the Bar Course at Gray’s Inn as a Barrister-at Law in London, and received an admission to the London School of Economics, as a second doctoral degree in Economics, with a strong major in Finance, in the year (1928), and graduated in the year (1931) at the age of (41)years.

Dr. Ambedkar returning to his home country, India, after a long tour of study in Europe and United States, was offered a lectureship position, as a professor of Political Economy in Sydenham College of Commerce and Economics. And invited to testify before the Southborough Committee, which was then, preparing Government of India Act (1919), to create an electoral college. Onwards, Dr. Ambedkar began his social reformation intellectual work, as an activist, against Socio-culture inequality in India society, under the castes system, and sought for constitutional abolition of discriminatory practice, which emerged as a religious form of Hindu caste system. And went ahead to practice his law at Bombay High Court. He was later appointed, as a Principal to the Government Law College at Bombay, and oversaw her consolidation, with the the Law Department created by Aligarh Muslim University, by the founder Sir. Syed Ahmad Khan, in the year (1883), under the inaugural ceremony of Justice Douglas Straight (1844 - 1914), as a British Lawyer and Indian Jurist, having such a Law Department, recognised in the history of India Legal Education, as the oldest English Law School of India, with pedagogical concentration on philosophical teachings and writings of the English law, and in the year (1960) became a full-fledged Aligarh Muslim University Law Faculty. Dr. Ambedkar, thereafter, became the Chairman, of the Governing Body of Ramjas College, University of Delhi. And honoured up to this day, for his significant contribution to the early draft Constitution, of the Republic of India, towards her Independence, having the India Constitutional text, known in the world, as the highest volume of articles, in Constitutional law history.

 When, India attained her independence on the 15^th August 1947, the first Prime Minister Sir. Jawaharlal Nehru, appointed Dr. Ambedkar, to serve as the first Law and Justice Minister, and the Chairman to the drafting Committee of the Constitution, for the future and sovereignty of the Republic of India. When, he assumed office, he lay a foundation to a Constitution, which will guarantee and protect, a wide range of civil liberties for individual citizens, as an Indian, including, Freedom of religion, the abolition of ‘untouchability’, as well outlining all forms of discrimination. With a depth of understanding, to the prevailing challenges of the India society at that era, went further, to advocates, and in documentation propose for extensive economic and social rights for women, introduced a system of reservations of jobs, in the civil services, schools and colleges, for members of scheduled castes, scheduled tribes, and other backward class, as an affirmative constitutional economics policy drive.

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Photo of Dr. B. R. Ambedkar © Republic of India National Archives

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Emmanuel Tweneboah Senzu, DBA., Ph.D., SJD.

Professor of Constitutional Law and Economic Criminology, fellow, University of Sierra Leone.

Fulbright Research Fellow, J. Reuben Clark Law School, Brigham Young University, USA. Visiting fellow, Dr. Ambedkar Chair of Legal Studies & Research- Aligarh Muslim University, Faculty of Law, India.