jeremy bentham and fragment of government and blacksone and social contract

This and the next essay focus on the 48 paragraphs, with notes, of ch. 1 of the Fragment of Government. Though the first impression you might receive about Bentham ("Be") is that he is a niggling, nit-picking critic of Blackstone ("B"), once you patiently consider what he is saying you see that he is truly formulating his own "utilitarian" approach to law. This essay will focus on the first half of the chapter and especially his critical review of B's discussion of society and government; the next essay probes Be's view of the "social contract" (par. 36-48).

Getting Started

Be begins with a long quotation from pp. 47-48 of the first edition of B's Commentaries. This section of B is a digression of sorts from B's long definition of municipal law earlier in ch. 2 of Commentaries. I have argued elsewhere that ch. 2 in fact consists of five separate sections, and so Be is correct in isolating 47-53 as a separable unit. You should not miss what Be tries to do with B's quotation. He does two things: (1) tries to show that B is inconsistent in his use of terminology; and (2) introduces his own terminology which, when buttressed with the concept of "habit of obedience" that he explains in depth in n. 46, allows him to accept B's basic distinction but now with much sharper terminology and clarity. Maybe that is ultimately what Be contributes to the study of English law, which is already evident in this (his first) work: he brings an unrelenting sharpness to the issue of definition and he creates categories and distinctions which will help him in his later work of codification. When this mental acuity is combined with the principle of utility, his mind acts as a sort of scythe, cutting down the aberrant growths of the common law as if they were so much wheat and chaff, and planting his own "crop" of (proposed) statutes in its place.

Be's basic criticism of pp. 47-48 of B is that B uses the term "society" inconsistently. Sometimes it is equated with the so-called "state of nature" and other times with "government" in an organized society. His laborious effort to show this is the case occupies him through par. 6. But he isn't merely playing linguistic "gotcha." He wants to show that B's writing style and habit of mind is to cover over all kinds of important distinctions with flowery phrases and erudite rhetoric. When he says in par. 6 that B must be "bantering" with us by slyly going back and forth in his definitions, Be himself is "winking" at the reader. Be thinks that B's habit of writing like this stands behind B's rather "ho-hum" attitude towards the common law. Thus, Be gives no ground to B at all; Be's very style shows how utterly antipathetical he is to reform.

After all these words about B's inadequate definitions, however, Be basically adopts a twofold distinction about types of societies that looks similar to B's. In par. 9 he talks about "natural society" vs. "political society." These two categories will be analytically helpful for Be, and he then says, "Of the difference between these two states, a tolerably distinct idea, I take it, may be given in a word or two" (par. 9). Then he proceeds to lay out his approach to these two "states."

The "Habit of Obedience"

I think Be clings to the distinction he has just invented with help from B and other earlier writers not because it can be historically demonstrated that societies moved from one to another (indeed he unmercifully criticizes B's use of the two little words "of course" when B talked about the inevitability of moving from one to another. Be discusses this in par. 29-30), but because it is an analytically helpful tool for him to develop his theory of the "habit of obedience." In brief, Be argues that "the circumstance that has been spoken of as constituting the difference between these two states, is the presence or absence of an habit of obedience" (par. 12). This allows him to develop a "mathematical" way to look at the development of society, and once he is on mathematical ground, he is home free. That is, to the extent to which a society has developed a "habit of obedience" (where people believe it is in their interests to obey the established authorities), to that extent we have a "political society." Where there is no "habit of obedience," or a lesser degree of it, we are closer to a "natural society."

Now that Be's distinction-making mind has been released from its prison (you get the impression that is the way he looks at reading B), he begins to develop this distinction at length. "With respect then to a habit of obedience, it can neither be understood as subsisting in any person, nor as not subsisting in any person, but with reference to some other person" (par. 14). You can be in a habit of obedience toward one state and not toward another. States can be in various types of relationship with each other. Thus, in par. 15 he explains how the Kings of France and Spain are in a perfect state of nature with respect to each other (because they are not subject to each other), while the German states are in a political society because of their subjection to the Holy Roman Empire. He really begins to enjoy the distinction he has made, and in par. 17, he extends this analysis to individuals:

"In any political society the same man may, with respect to the same individuals, be, at different period, and on different occasions, alternately, in the state of governor and subject: to-day concurring, perhaps active, in the business of issuing a general command for the observance of the whole society, amongst the rest of another man in quality of Judge: to-morrow, punished, perhaps, by a particular command of that same Judge for not obeying the general command which he himself....had issued."

Solving the "One Difficulty"

Now that Be has laid out his theory of types of societies, based on the habit of obedience (and this habit is defined in great detail in fn. 46), he recognizes that "one difficulty there is that still sticks by us" (par. 21). He wants to search for a "characteristic mark whereby to distinguish a society in which there is a habit of obedience...from a society in which there is not" (Id.). He posits that this mark, this almost imperceptible passing over from the natural society to political society happens when there is "the establishment of names of office" (Id.). When a society starts using titles such as King, Sachem, Burgomeister, etc., that society is now a "political society." But once he has made this observation, his mind won't let him rest. New distinctions loom as certainly as the iceberg before the Titanic. First, he asks the question of when a state reverts to a state of nature when it breaks away from or becomes disobedient to the other (par. 25).

Then he turns his mind to the situation of individuals. If a state reverts to natural society by being disobedience, does every human act of disobedience then return the human back to the natural state (par. 26)? He doesn't think so, but he has to invent another distinction or two, between conscious and unconscious disobedience and then, in par. 27, between disobedience that is with respect to law or fact. All of a sudden his fertile mind has created loads of difficulties for him and Be says, "These remarks it were easy to extend to a much greater length...But that could not be done without exceeding the limits of the present design" (par. 28). We can almost see Bentham reining in his enthusiasm as he moves to the next point, the social contract, which is the subject of the next essay.

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