A Comment on the Commentaries and A Fragment on Government

In the two related works in this volume, Bentham offers a detailed critique of William Blackstone's Commentaries on the Laws of England (1765-9). In 'Comment on the Commentaries', on which Bentham began work in 1774, he exposes the fallacies which he claims to have detected in Blackstone, criticizes the theory of the Common Law. He goes on to provide important reflections on the nature of law, and more particularly on the nature of customary and of statute law, and on judicial interpretation.A Fragment on Government, which was published in 1776, was detached from the 'Comment on the Commentaries'. Concentrating on a passage of five or six pages in which Blackstone discusses the origin of society and government, Bentham offers three main criticisms. First, he criticizes Blackstone's methodology for failing to distinguish between the role of the expositor and the role of the censor, and thereby confusing the question of what the law is with the question of what the law ought to be. Second, he criticizes Blackstone's assumption that the theory of the social contract represents an adequate justification of the obligation to obey government. Third, he criticizes Blackstone's theory of sovereignty, which claims that in every state there must exist some absolute, undivided power, whose commands are law. Bentham points to the existence of states where sovereign power is both divided and limited.