I.: Legislation is a Science.

English law, as it existed at the end of the eighteenth century, had in truth developed almost Edition: current; Page: [135] haphazard, as the result of customs or modes of thought which had prevailed at different periods. The laws actually in existence had certainly not been enacted with a view to any one guiding principle. They had, indeed, for the most part never been “enacted” (in the strict sense of that word) at all. They were, as they still indeed to a great extent are, the result of judicial legislation built up in the course of deciding particular cases. English law had in fact grown, rather than been made, and the language used by Paley with regard to the constitution might, with the change of one word, be applied to the whole law of England.

“The [law] of England, like that of most countries in Europe, hath grown out of occasion and emergency; from the fluctuating policy of different ages; from the contentions, successes, interests, and opportunities of different orders and parties of men in the community. It resembles one of those old mansions, which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency of its successive proprietors. In such a building we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the beholder than the accommodation of the inhabitant.”1

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But Bentham saw clearly several facts which Paley failed to recognise. The revered mansion was not only antiquated, but in many respects so unsuited to the requirements of the times, that it was to its numerous inhabitants the cause not only of discomfort but even of misery. In order to amend the fabric of the law we must, he insisted, lay down a plan grounded on fixed principles; in many instances not amendment but reconstruction was a necessity; and even gradual improvements, if they were to attain their object, must be made in accordance with fixed rules of art. Legislation, in short, he proclaimed is a science based on the characteristics of human nature, and the art of law-making, if it is to be successful, must be the application of legislative principles. Of these ideas Bentham was not the discoverer but the teacher; he may be described as the prophet who forced the faith in scientific legislation upon the attention of a generation of Englishmen by whom its truth or importance was denied or forgotten.