Bentham II--October 7

Professor William R. Long 10/06/04

On Tuesday we began our discussion of Bentham and the Fragment of Government (1776). Important for me to discuss was your perception of the tone of the work. I agree with those of you who suggested a tone of intemperance, petulance or even scorn of Blackstone. Yet, I couldn't read it without a sense that Bentham was smart, energetic, pointed and unrelenting in his criticsm and, contrary to many, able to suggest an alternative system of jurisprudence that he would like to inaugurate. I will refer to a text below (not assigned) in which Bentham's spirit as it relates to law in his day comes out (The Truth versus Ashurst, 1792) in order to illustrate some specifics that sparked Bentham's outrage. This and the next mini-essays will consist of two major points: (1) three general observations about Bentham's biography and work and (2) eight additional points about The Fragment, chapter 1 ("Formation of Government").

I. General Points. A. Bentham's Biography. The Fragment was his first major work (written at age 28). That same year he drafted a letter to Voltaire, the French Enlightenment philosopher, saying that Voltaire's influence on him in legal theory exceeded that of all English and Continental theorists combined. He stated that his analysis of utility derived from the French philosophe Helvetius. He also credited the Italian Beccaria with inspiring his analysis of pleasures and pain. In 1789 he published his most famous work of law: An Introduction to the Principles of Morals and Legislation. Between 1776 and 1789 Bentham switched into writing in French and visited/lived in Russia with the hope of interesting Catherine the Great in his proposals for legal reform. When the French Revolution occurred in 1789, Bentham flooded the new government with proposals on legal reform; the Revolution made him an honorary citizen. He then turned his attention to persuading the British government to issue him a contract to build and manage a "panopticon" prison (where the guard tower was in the center, with unobstructed views of all cells) [Here I will say something in class about Bentham's theory of punishment--remind me if I forget!]. Bentham almost bankrupted himself in trying to get his idea accepted; it never was.

Beginning in the early 1800s some of his work was published in a French edition. He also began to write on economics, evidence and judicial organization. His Rationale of Judicial Evidence (when it finally was finished in 1827) reached to 2,500 pages. In the 1810s he expanded into logic, language, ontology and criticism of the religious and legal establishment. The last productive decade of his life (d. 1832) was spent in working on an ideal code of law. Many newly formed countries consulted with him about legal reform. He transmitted his influence most of all through John Stuart Mill, one of the significant philosophers of the 19th century. At his death Bentham had left nearly 70,000 pages of scrawled, handwritten manuscripts in the care of University College, London. The pages were written on "foolscap"--i.e., pages of 16x13 inches.

B. The Hedonic Calculus. We talked briefly last time about his significant sentence at the beginning of the Fragment: "with so little method and precision have the consequences of this fundamental axiom, it is the greatest happiness of the greatest number that is the measure of right and wrong, been as yet developed." Utilitarianism (a word Bentham coined in 1782) presupposes this one overriding moral principle. He said that it could not be proved, but he does not say, of course, that it is part of a "natural law" (a manner of thinking he detested, since he saw behind the "natural law" jargon all manner of obfuscation and oppression in the British legal system). Though he couldn't "prove" the truth of the principle, I believe he would have said it comports with empirical evidence: that a careful analysis of human judgments would show that they tended to pursue their own happiness, happiness not necessarily being defined as immediate pleasure but as sustained and long-term satisfaction.

Make no mistake about it, however. For Bentham gratification is good. The only rational way to judge between alternative courses of action is to choose the one that gratifies one the most. In this regard he does not seem to be too different from Adam Smith, writing at the same time. Pursue one's own individual self-interest and somehow society will be benefited. Question: Where does Bentham's "pleasure principle" intersect with the pleasure of others, too? Can one, on utilitarian principles, argue for ethical action on behalf of another? Can it ever lead to revolution?

C. Thinking About Law. Bentham was, above all, a jurisprude. His father and grandfather were practicing lawyers, but he never entered into the practice of law because he felt he could effect more change by writing about what he knew rather than by representing clients. I will read in class from an essay he wrote in 1792 (which was not published until 30 years later) called Truth verses Ashurst (the document is on the Net. Note, Ashurst was a judge) in which he subjects the procedures and substance of English law in his day to withering scorn and blistering attack.*

[*One of his most famous statements criticizing "natural rights" and "natural law" is that is it "nonsense upon stilts."]

He claims that law in England only serves the rich; that it is improper for the judge to derive his fees from litigants (this was changed in the 19th century); that the law is so unclear that even judges and well-heeled lawyers don't know what it is; that the remedy for these problems are procedures that are clear and fair and for statutory law that lucidly presents what is expected of every person and which sanctions are applicable to the case at hand. Though he does not mention it in the Ashurst piece, he also develops a theory of punishment based on utilitarianism: that the sole purpose of punishment is to deter, and that therefore, it is, in a sense improper to punish criminals because the state is doing it not for their sake but for the sake of those who have not committed crimes.

The next page will return us to The Fragment.