bentham and fragment on government and blackstone and state of nature and morals and legislation and hume and autobiography

The purpose of this page is to highlight eight additional features from the "Introduction" and "Chapter 1: Political Institutions" to the 1776 Fragment on Government. My purpose is to have us understand Bentham's tone, exposit his approach to Blackstone and weigh his own statement of jurisprudential theory. As one of you mentioned to me after class on Tuesday, Bentham would probably have been well served by an editor. But once you understand that Bentham was fundamentally a writer, that he looked at his major task and preoccupation in life as writing, you see that a large and unlimited "canvas" is the only thing that would have satisfied him. I think I understand what that means.

1. His Argument against Blackstone's terminology--state of nature, society, and government. Bentham spends the first 12 or so paragraphs quoting a long passage from Blackstone (pp. 47-48 of the first edition), and then launching into the most hair-splitting critique of Blackstone's use of words. What do you think of his effort to show that Blackstone uses the term "Society" in a confusing manner (to refer both to the STATE OF NATURE and the STATE OF GOVERNMENT)?

2. Beginning about paragraph 14, he seemingly isolates his focus of concern--Blackstone's differentiation of the two societies in a "habit of obedience." Then he proceeds, over the next dozen paragraphs or so to posit all kinds of examples where the "line" between the two societies is not that firmly fixed and, indeed, where a "habit of obedience" was both practiced and ignored at the same time. The question in my mind during his long screed against Blackstone's paragraph is whether Blackstone himself would have placed the kind of importance on this page in his first edition as Bentham does. I see it really as Blackstone's attempt to be rather "progressive," that is, he is showing himself aware of the criticisms that had been launched by 1765 against the "state of nature" type of argument--an argument seemingly de rigueur among political scientists in the 17th and 18th centuries, and which fell out of fashion under the blazing Enlightenment critique.

3. This multipage critique of one page of Blackstone affords an insight into Bentham's mind. He would frequently begin to write long critiques on things in which he spent pages focused on minutiae before getting to his main point. Often he would become distracted in the task, lay it aside, and only return to it a decade later (if he ever did so). Rather than simply characterizing this negatively (which is easy to do), I see it as an example of the power of a focused mind. Indeed, his ability to isolate the principle theme of his life before age 28, put it in one sentence, stay with it for the next 50+ years and bequeath to the West a philosophical school of great influence because of the sentence shows a most rare intellect. This kind of mind is briefly illustrated also, for example, in his subtle distinctions in paragraph 26. Note also his brief paragraph 28 in this regard.

4. He sees Blackstone shifting from the Expositor to Censor again in paragraph 30. Bentham tries to show that Blackstone's inconsistency in thinking about a natural or political society relates to his (unconscious) moving back and forth from Expositor to Censor. We should also note here why Bentham is so upset with Blackstone's mode of argument regarding the "state of nature" and "state of government." I think it relates to his sense that this form of argument carries with it all the dreaded and despised mode of thought of natural law--that God has ordained things just so, and that "we" (according to Blackstone) just happen to live in this most wonderful society, where we just happen to control the legal and economic system, and isn't it wonderful that the great common law has given us such a just and pleasant society? Bentham spews his vituperation against such a manner of thinking. For Bentham, statute law will come in to save us from this obfuscating and unclear common law.

5. Bentham can occasionally use metaphor, as in paragraph 33, to dismiss Blackstone--that the work is beautiful from a distance but, when dissected closely, is quite ugly.

6. I think Note 52 is the most self-revelatory note of the whole section. In it he not only shows his indebtedness to Hume as the one who brought the whole edifice of "state of nature" thinking crashing down but he also gives a paragraph on the "wanderings of a raw but well-intentioned mind, in its researches after moral truth (i.e., his own mind). Autobiography will be your strongest companion as you articulate your own "moral philosophy" or jurisprudential theory. You may not think you yet have much of an autobiography, but you have already experienced a good deal of the things that will become your building blocks for your mature thought.

7. Bentham introduces his concept of Legal Fictions beginning in paragraph 38. In his voluminous writings the word "fiction" both has a negative and positive connotation: it can be used to describe the "technical" jurisprudence of the past as well as the nature of every sentence of law that tries to communicate a truth. The "fiction" he desires to explore here is the nature of a "compact," which supposedly places obligations on both sides of the agreement. Over the next several paragraphs Bentham will try to expose that manner of thinking as "anti-utilitarian." That is, ultimately if a system does not conduce to the greatest happiness, it is to be overthrown, despite the fact that it was initiated with the most solemn "compact."

8. Note, finally, footnote 55, where he goes into depth about his principle of felicity. He connects this work with the Introduction to the Principles of Morals and Legislation, which he had begun in 1776, finished by 1780 but did not publish until 1789. As is characteristic of Bentham, it is only an "Introduction." Most of life for Bentham, it seems, is proglegomena, as the Germans might say...or at least this is my reading of what Bentham's early life and conception included. It reminds me of a massive paper I wrote in my Ph. D. program in 1978 criticizing John Cardinal Newman's history of Christian doctrine. While subjecting his scheme to an unmerciful attack, I remember saying that this was only my first salvo in a multi-volume work on the history of Christian doctrine. But, alas, my interest in that subject flagged, and I have not returned to it, nor can I now imagine myself ever doing so.