Bentham’s Exposition of Common Law

Abstract

Bentham is a severe critic of common law, denouncing it as ‘sham law’. Bentham’s denunciation of common law as ‘sham law’ is, however, an evaluative censure, not a descriptive account. A realistic account of the nature of common law can be constructed from his writings. According to this account, first, common law is a collection of authoritative mandates. Second, judicial decisions do not evidence common law; on the contrary, judges, through their decisions, create common law by means of legalizing both customs and single actions. Common law is not, therefore, immemorial, nor did it originate in the people’s consent. Third, stare decisis is necessary for common law to fulfil the function of law, but it has no independent value: it is the principle of utility alone that explains, justifies, and decides the use of stare decisis.