Lectures on the Relation between Law and Public Opinion in England Book

Introduction to the Liberty Fund Edition,
by Richard VandeWetering xiii
Editor’s Note xxiii
Preface to the First Edition xxv
Preface to the Second Edition xxix

LECTURE I. Relation between Law and Public Opinion

Law not always the result of public opinion 3
(i.) Law may be the result of custom 5
(ii.) Opinion governing law may not be public opinion 5
(iii.) Want of legislative organ representing public opinion 6
Law in modern England the result of public opinion 8
How far law-making public opinion is always the opinion of the
sovereign power 9
Objection considered, that in legislation men are guided not by
their opinion but by their interest 10

LECTURE II. Characteristics of Law-making Opinion in England

Precise scope of lectures 14
Characteristics of English legislative opinion 15
(1) Existence at any given time of predominant current of
legislative opinion 16
(2) Legislative opinion may originate with thinker or
school of thinkers 17
(3) Development of legislative opinion in England slow
and continuous 21
Slowness 21
Continuity 24
(4) Dominant legislative opinion never despotic 27
(5) Laws create legislative opinion 30

LECTURE III. Democracy and Legislation

Does not advance of democracy explain development of English
law since 1800? 36
The plausibility of idea suggested by question 36
Advance of democracy only to slight extent explanation of
development of English law 37
Delusion that democratic form of government always favours
same kind of legislation 40

LECTURE IV. The Three Main Currents of Public Opinion

Three main currents of legislative opinion corresponding to
three periods 45
I. The period of old Toryism or legislative quiescence
(1800–1830) 45
II. Period of Benthamism or Individualism (1825–1870) 46
III. Period of Collectivism (1865–1900) 46
Observations on the three different currents of opinion 47
(i.) Number of years during which each current of opinion
predominant 47
(ii.) Different relation of each current of opinion to
legislation 48
(iii.) Peculiar difficulty presented by examination into
character and influence of Collectivism 48

LECTURE V. The Period of Old Toryism or Legislative Quiescence

(A) State of Opinion 51
Optimism—
Blackstone—Burke—Paley—Goldsmith
Reaction—
Eldon
(B) Absence of changes in law 60
Abuses 62
Legal fictions and survivals 66
(C) Why considerable changes took place during period of
quiescence 68
Reactionary laws 68
Combination Act, 1800
The Six Acts, 1819
Reforms 75
Act of Union with Ireland
Humanitarian reforms—Health and Morals Act, 1802
(D) Close of period of quiescence 80
(1) Change in social conditions of England 81
(2) Incongruity between social condition and legal
institutions of England 83
(3) Lapse of time 88
(4) Existence of Benthamism 89

LECTURE VI. The Period of Benthamism or Individualism

Bentham’s genius 91
(A) Benthamite ideas as to the reform of the law 96
The principles of law reform 96
I. Legislation is a science 97
II. The right aim of legislation is the carrying out of
the principle of utility 98
III. Every person is in the main the best judge of his
own happiness 104
Corollaries—
(i.) Extension of sphere of contract 107
(ii.) Every man to count for one and no
man for more than one 113
The method of law reform 117
(B) The acceptance of Benthamism 119
Why did Benthamism obtain acceptance? 120
General answer 120
Benthamism furnished reformers with ideal
and programme
Special answers 122
Benthamism met wants of day
Utilitarianism the creed of the time
Benthamism fell in with English Conservatism
Benthamism is only systematised Individualism
To what extent did Benthamism obtain acceptance? 126
Answer 126
Acceptance all but universal
(C) Trend and tendency of Benthamite legislation 131
The congruity of Benthamite legislation; its objects 131
Transference of political power to middle class 131
Parliamentary Reform Act, 1832
Municipal Reform Act, 1836
Humanitarianism 133
Mitigation of criminal law
Prohibition of cruelty to animals
Emancipation of slaves
Extension of individual liberty 135
Freedom of contract
Combination Acts, 1824, 1825
Companies Acts, 1856–1862
Freedom in dealing with property in land
Poor Law Act, 1834
Freedom of opinion or discussion
Extension of Toleration Act to Unitarians, 1813
Roman Catholic Relief Act, 1829
Oaths Acts
Adequate protection of rights 146
Evidence Acts, 1833–1898
County Courts Acts, 1846–1888
Procedure Acts, 1851–1862
Judicature Acts, 1873–1894
Benthamite reform an illustration of influence of opinion 149

LECTURE VII. The Growth of Collectivism

Opposition even at era of Reform Act between Individualism
and Collectivism 150
Transition from Individualism of 1832 to Collectivism of 1870–
1900 154
Explanation of change to be found not in advance of
democracy, but in following conditions 154
Tory philanthropy and factory movement 156
Movement originally fruit of humanitarianism
Movement guided by Tory leaders
Southey—Oastler—Sadler—Lord Shaftesbury
Movement the first battlefield of individualism and
collectivism
Movement introduced socialism into law of England
Changed attitude of working classes 170
Modification in economic and social beliefs 172
Characteristics of modern commerce 174
Introduction of household suffrage 176

LECTURE VIII. Period of Collectivism

(A) Principles of Collectivism 183
Fundamental assumption—Faith in benefit to be derived
from State intervention 183
Extension of idea and range of protection 184
Workmen’s Compensation Acts
Agricultural Holdings Acts
Restriction of labour of women in factories
Adulteration of Food Acts
Restrictions on freedom of contract 186
Irish Land Acts
Agricultural Holdings Acts
Preference for collective action 188
Combination Act, 1875
Modern Arbitration Acts
Equalisation of advantages 195
Elementary education
Employers’ liability
Municipal trading
(B) Trend of collectivist legislation 204
Factory Acts
Public Health Acts
Housing of Working Classes Acts and Allotments Acts
Change in ideas as to poor law
Collectivist Bills of 1904
Legislation of British colonies
Reflections on course of law and opinion from 1830

LECTURE IX. The Debt of Collectivism to Benthamism

Modern socialism inherits from Benthamism:
(1) Legislative principle—the principle of utility 215
(2) Legislative instrument: use of parliamentary
sovereignty 216
(3) Legislative tendency: extension and improvement of
governmental mechanism 217

LECTURE X. Counter-Currents and Cross-Currents of
Legislative Opinion

Effect of counter-current already sufficiently explained 221
Effect of cross-current best understood from history of
ecclesiastical legislation, 1830–1900 222
(A) Course of legislative opinion with regard to ecclesiastical
legislation 222
Apparent weakness of Church establishment in 1832, and
anticipation of policy of comprehension or of
disestablishment 222
The actual policy of conservatism and concession and the
reasons for its adoption 225
Liberals without any ecclesiastical policy 226
Strength of Church 231
(B) Actual course of ecclesiastical legislation 238
Concessions to liberalism tempered by conservatism, i.e.,
deference to ecclesiastical opinion 238
As to internal reform 238
Ecclesiastical Commission
As to external reform 244
Marriage Law
Divorce Act, 1857
Burial Law
University Tests
Tithes and Church Rates
Consideration of objections to above view of ecclesiastical
legislation 251
Attempts to widen foundations of Church
Disestablishment of Irish Church
Survey of ecclesiastical legislation 254

LECTURE XI. Judicial Legislation

I. Special characteristics of judicial legislation in relation to
public opinion 257
(i.) Judicial legislation logical 259
(ii.) Judicial legislation aims at certainty rather than
amendment of law 260
(iii.) Difference between judicial and parliamentary ideas
of expediency 261
II. Effect of judge-made law on parliamentary legislation 264
Law as to property of married women 264
Comparison between judicial and parliamentary legislation 281

LECTURE XII. Relation between Legislative Opinion and
General Public Opinion

I. Analogous changes of opinion in different spheres of thought
and in convictions of individuals 284
Different Spheres—
Theology 284
Politics 291
Political economy and jurisprudence 293
Convictions of Individuals—
Harriet Martineau 295
Charles Dickens 297
John Mill 300
II. Dependence of legislative opinion on general tendencies of
English thought 307
Freedom of discussion and the disintegration of beliefs 307
Apotheosis of instinct 318
Historical method 324
All these tendencies have weakened authority of
Benthamism 329

APPENDIX

Note I. The Right of Association 331
” II. The Ecclesiastical Commission 340
” III. University Tests 342
” IV. Judge-made Law 346
” V. Proposed Collectivist Legislation of 1905 356

Introduction to the Second Edition 359

Index 403