The Growth of Philosophic Radicalism

By Elie Halévy; Mary Morris | Go to book overview

CHAPTER II
THE ORGANISATION OF JUSTICE AND OF THE STATE

IN 1789, in a final note to his Introduction, Bentham had proposed to distinguish, in a complete body of laws, three distinct codes: the civil code, the penal code and the constitutional code. But in the Traités, which were published by Dumont, he suggested a new division of laws, into 'substantive' and 'adjective' laws. This second class of laws Bentham called adjective because they can only exist in relation to substantive laws, as the adjective, in grammar, exists in relation to the substantive: they are the laws of procedure whose object is, or ought to be, to give effect to the commands the sum of which constitutes substantive law.1 Now, as far as concerns the two fundamental parts of substantive law, civil law and penal law, Bentham's doctrine had long been definitely formed; the period of propaganda and of influence now succeeded the period of invention and of organisation of ideas. At last, Bentham had become a prophet in his own country: his Sophismes Politiques which appeared at Geneva in 1816, were translated into English by Bingham two years later. In 1822 there appeared almost simultaneously a third edition of the Fragment on Government and a second edition of the Introduction. In 1825, Richard Smith supplied an English translation of the Théorie des Récompenses, which was completed in 1830 by a translation of the Théorie des Peines.2 Meanwhile Mackintosh and Peel undertook one after the other the reform of enal law in Parliament. There remained adjective law on the one and, and on the other constitutional law, the third branch of substantive law. The Introductory View of the Rationale of Judicial Evidence, which was drawn up by James Mill from Bentham's manu

____________________
1
Bowring, vol. iii. p. 158, vol. vi. p. 7 and p. 210, vol ii. p. 5.
2
On the various English translations of Bentham's works see Bowring, vol. x. pp. 497. 548, and Stuart Mill, Autobiography, p. 115.

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