Bentham's Legal Writings*
Prof. Bill Long 9/25/05
[*The first half of class on Sept. 27 will consist of an Internet exercise we will do together to try to understand the extent of Bentham's work and influence by considering the work of the Bentham Project. Please bring a laptop to class.]
It is only in the past decade or so that scholars have begun to recognize that Jeremy Bentham (1748-1832) is probably the most influential English jurisprudential thinker of the 19th century. His reputation suffered in the field of law for a century and a half after his death, however, because of the fragmentary or polemical nature of many of his writings, the centrality of Bentham for other fields such as philosophy (i.e., his contribution to utilitarianism) and, frankly, a sense that he was one really weird guy (the auto-icon is indicative of that). The purpose of this and the next essay is to state his general approach to the common law tradition and then introduce his five most significant legal works.
Common Law Criticism
The thing that made Bentham so sputtering mad about his teacher Blackstone was the latter's indifference to reform when the common law ("CL"), for Bentham, was in drastic need of revision. He referred to the CL as "dog-law"--"When your dog does anything you want to break him of, you wait till he does it, and then beat him for it." In other words, the CL-style of decision making, where the judge only pronounced judgment after the action was done, by deciphering a bewildering and inaccessible collection of precedents, amounted to beating the dog after the dog had done something that the master didn't like. In his book on Bentham, James Steintrager summarizes Bentham's attitude further:
"Under the CL men often committed crimes when they did not even know that the activity which they pursued was criminal. Even when they did know, they might still pursue the course of action either because the penal sanctions levelled against the crime were insufficient to deter them, or because the application of those sanctions was erratic and uncertain...Once a case came to trial there were many obstacles to obtaining a speedy and fair conclusion. The rules of evidence were highly technical and unnecessarily complicated. Useful evidence was precluded on obscure or even absurd grounds. The system of procedure in the courts caused cases to be spun out for years which, along with law taxes and legal fees, effectively prevented a great many subjects from receiving just treatment. Neither the rights nor duties of the citizens were well defined, and the law was not properly promulgated. Under the CL system judges were guided by precedents, but these precedents were collected, at best, in obscure books which were frequently written in Latin and inaccessible to anyone except judges and lawyers. Such laws were as good as no laws at all....Such a law might be suitable for 'those who neither know how to write, nor how to speak,' that is to say 'for brutes.' Yet in England it was what passed for the rule of law" (Bentham, 20-21).
Bentham constantly criticized the legal system's use of fictions and fables. An example of the former would be the doctrine of ejectment, while by the latter, Bentham meant the reliance on natural law. The principle of utility--the greatest good for the greatest number--would be Bentham's guiding principle.*
[*The principle of pleasure-maximization, which lay at the heart of Bentham's philosophical and jurisprudential agenda, consisted of seven things. Pleasure was to be measured by its intensity, duration, certainty, propinquity, fecundity (tendency to produce further pleasures or pain), purity (possibilty of pleasure being followed by another pleasure) and extent (the number of people who experienced it).]
Five Works on Law
Bentham's literary production was breathtaking (upwards of 80,000 MS. pages of foolscap), and his script so crabbed that it has taken an international team of scholars more than 40 years to edit his works, and only about 1/2 the volumes have been published to date (the Bentham Project anticipates about 70 volumes will be required to cover all his writing). After his father died in 1792, Bentham inherited his large estate in London and enjoyed sufficient means that he could devote each day to writing--between 10 and 20 MS. pages. We are mistaken if we think, however, that each page contained an orderly and detailed essay; indeed, this facsimile page presents a more accurate representation of what scholars have to work with. Of the many works on law or legal themes, the following five are the most important.
(1) A Fragment on Government (1776) and Commentary on the Commentaries of Blackstone. We are reading portions of the Fragment this week, and further description is unnecessary. However, mention should be made of the fact that when Bentham wrote this work, his first, he was planning a comprehensive review and critique of Blackstone's four volumes. It was Bentham's normal mode of operation to announce huge projects (such as the drafting of a penal code) and then devote months and even years to planning the project and drafting his approach and then losing heart or interest in it. Later in his life he wrote about 300 MS. pages of comment on Blackstone's Commentaries.
(2) Introduction to the Theory of Morals and Legislation. This work was printed in 1780 but was not widely circulated until after its publication in 1789. This is Bentham's most famous work but it is heavier on theory than practical suggestion. For example, his treatment of the divisions of offenses (and most scholars have suggested that Bentham shines when he tries to divide a subject) doesn't appear until Chapter 16 of the work. Earlier chapters cover the following: the principle of utility, principles adverse to that of utility, the four sanctions or sources of pain and pleaure, how a lot of pleasure is to be measured, the kinds of pain and pleasure, of human actions in general, of intentionality, of consciousness, of motives, etc. This work begins with perhaps the most oft-quoted lines in the whole Bentham corpus:
"Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, ar fastened to their throne..."
The next essay summarizes the other three works (to be written on 9/28--Note on 10/2/06--I still haven't summarized his other three major legal works...). Please go to Bentham III next.
Copyright © 2004-2007 William R. Long