Document Type

Review

Publication Date

1991

Abstract

David Lieberman's lucid and sure-footed reinterpretationof late-eighteenth and early-nineteenth-century jurisprudence is original, thoughtful, analytically acute, and a pleasure to read. Lieberman argues that Bentham's law reform ideas must be viewed in relation to earlier (and contemporary) reform traditions. Bentham's views were more complex than the long-held myth would have it, partly because they were more derivative, at least in his early enterprises, combining as they did a reception of earlier notions with the novelty for which he is usually credited. Blackstone and Mansfield, on this account, were not the match stick figures they are sometimes made out to be; the former was not the complacent jurist oblivious to the need for reform, and the latter was not the purely instrumentalist, piece meal reformer who lacked a sense of system that embraced the most fundamental ideas of common law and equity. As Lieberman shows, both Blackstone and Mansfield sought to create a system of common law and legislation in which fundamental principles dominated, and wherein what was fundamental rested upon a principled melding of custom and reason. Both sought to simplify and to prune the law, to make it more widely accessible and acceptable, not only for its usefulness, but also for its appeal to an ethically-based and rational embodiment of tradition. And both shared the widespread impression that, as things stood, Parliament not only lacked the ability to undertake such reform, but was in fact engaged in a legislative spree that threatened to obscure - or even destroy - whatever coherence the common law still possessed. Neither succeeded in constructing a truly new, "scientific" form of legislation; therein lay Bentham's originality, but even Bentham could not have achieved his breakthrough without having worked toward it on the basis of the principles (including a kind of "science of legislation") of the earlier reform traditions.

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