Bentham and common law Flashcards
what is common law?
This is when a judge makes a decision for a case and it becomes a binding precedent for all lower courts and they must follow the same.
Apart from distinguishing precedents if the case is different in some way
what are the problems with common law?
Some judges are more radical than others
Distinguishing cases is subjective
Issues with Parliamentary Supremacy that stem from the unelected position of judges
The fact that any change in law is done from a minority ( depends on the level of the case how many)
Who was Bentham?
A British philosopher
Found utilitarianism: “ the greatest good for the greatest number.
what were the problems with Bentham and what were his views on common law?
Judges & Co’– Bias in favour of high class people
Hated technicalities of law that allowed them to extract money from general population and into the hands of lawyers
He thought lawyers dragged out cases to gain more money
Managed to interpret acts inline with benefitting the upper class and creating exceptions that were also to their benefit
what was bantams alternative to common law?
For him therefore instead of ruling in favour of one class, should therefore aim for……..’the greatest happiness for the greatest number’
That’s why he was concerned with number of people
MAJORITARIAN
what is a MAJORITARIAN?
Governed by or believing in decision by a majority.
what did Bentham think of judges?
He referred to judge made law and common law decisions as ‘ auto-cratico judicial decisions‘
What would be better than an idea of precedent ( which he didn’t think applied) would be lots more legislation to fill the gaps in the law
He did not think he could get rid of judges but thought their job should be limited to applying (if not informal modes of adjudication)– but definitely not making the law
who does bentham think should make laws?
Legislators should create only
This would only work if citizens elected the legislators ( unlike Hobbes)
Democracy enhancing and a failure to represent removes them from office
what was benthams further aims?
Prevent judicial creativity
Even with a written constitution no way to prevent any risk of this
Best way is with time and judges accepting their role
Liked the idea of electing judges but not successful
All the court should be doing is translating message from legislator to citizen(unchanged)
