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The scientific approach to legal history and legal reform: comparing the legal philosophy, historical methodology, and legal science of Blackstone, Kames, and Bentham

Gourlay, KA; (2016) The scientific approach to legal history and legal reform: comparing the legal philosophy, historical methodology, and legal science of Blackstone, Kames, and Bentham. Doctoral thesis , UCL (University College London). Green open access

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Abstract

This thesis examines how William Blackstone, Lord Kames, and Jeremy Bentham each understood the significance of history in relation to legal development. By dedicating a chapter to each writer, discussing their legal and moral theory, and then examining their use of history within their writings, I show how each writer incorporated historical study within their legal sciences, and how it informed their ideas for legal reform. Each writer was representative of a specific moral theory – natural law, moral sense and common sense, and utilitarianism – and advocated a type of legal system. Blackstone adopted natural law theory and argued that it was the common law’s consistency with natural law that gave it validity. Kames advocated the idea of moral sense and common sense, and argued that legal change could occur within a court of equity. Finally, Bentham advocated the principle of utility, and argued that the English common law legal system should be replaced with a system of legislation based on the principle of utility. Thus, explaining the role that history played within their legal sciences provides a window into their views on the study of history and its usefulness for understanding law and society. While it is often assumed that Bentham’s philosophy was ahistorical, Bentham’s use of history was un-tendentious in comparison to Blackstone and Kames, who were concerned to appeal to history in order to support their legal and moral theories. Because Bentham’s legal science did not directly rely on history for validation or for determining legal reform, he was able to investigate and examine history at face value without being influenced by contemporary eighteenth-century issues. Bentham, moreover, wished to create a legal system that was clear, transparent, public, and rationally calculated. The rationality and transparency of Bentham’s legal system aimed to permit legal change to occur openly and quickly whenever needed.

Type: Thesis (Doctoral)
Title: The scientific approach to legal history and legal reform: comparing the legal philosophy, historical methodology, and legal science of Blackstone, Kames, and Bentham
Event: University College London
Open access status: An open access version is available from UCL Discovery
Language: English
Keywords: Bentham, Kames, Blackstone, utilitarianism, moral sense, common law, natural law
UCL classification: UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of SandHS > Dept of History
URI: http://discovery.ucl.ac.uk/id/eprint/1496049
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