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Jefferson’s “Laws of Nature”: Newtonian Influence and the Dual Valence of Jurisprudence and Science

Published online by Cambridge University Press:  20 July 2015

Allen Mendenhall
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Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an Enlightenment homme du monde, a veritable encyclopedia of knowledge, able to discourse on any number of topics and to confront, as it were, his overseas counterparts, George Louis Leclerc and Comte de Buffon. Jefferson’s jurisprudence pivots on the dual valence of law and science. Jurisprudes have mostly ignored the sometime symbiotic relationship of law and science, just as they have downplayed or altogether ignored Jefferson’s unique contributions to legal philosophy. How does Jefferson’s natural philosophy conceptualize law? Science is all about studying objects and predicting their behaviors. If law is more than bills or statutes or glorified pieces of paper - if it is intangible but somehow immanent - how does one collect or observe it in nature? What is its ontology? Its epistemology? How do we discover it? How do we experiment with it? In what way is it, as Jefferson apparently believed, innate to humankind? This article will consider all of these questions while arguing for the inclusion of Jefferson into what I call the “natural law canon” of jurisprudence. I submit that Jefferson’s ideas about nature are tied to his ideas about reason and that his scientific approach to jurisprudence was not only innovative but nearly unprecedented. I have divided the article into two sections, the first dealing with Jefferson as a counteractive force to the positivist jurisprudence of Jeremy Bentham and John Austin, and the second dealing with such issues of materiality, reason, and experiment that make Jefferson’s jurisprudence truly distinctive. I am less concerned with tracing snippets of Jefferson’s writing back to Newton’s precise works or quotes than I am with demonstrating how Jefferson’s jurisprudence appropriates science, what makes that appropriation unique, and why that appropriation matters to a 21st century audience. These concerns alone should merit Jefferson’s inclusion in jurisprudence textbooks.

Keywords

Jeffersonjurisprudencescientific methodNewtonnatural lawNotes on the State of VirginiaDeclaration of Independencesciencenaturepositive lawBenthamJohn Austin
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 319 - 342
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2010 

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References

The author thanks Timothy Sweet for inspiring this article and for reviewing its early drafts.

1. Tucker, Benjamin, Enlightened Republicanism: A Study of Jefferson’s Notes on the State of Virginia (Lanham, MD: Lexington Books, 2008) at 29.Google Scholar

2. The original rough draft is available in the Library of Congress. For more about this opening line in the original draft, see Boyd, Julian P., The Papers of Thomas Jefferson, 1760-1776, Vol. 1 (Princeton, NJ: Princeton University Press, 1950) at 22–23.Google Scholar

3. See, e.g., Aquinas, Thomas, Summa Theologica (Rome, IT: Typographia Forzani et S., 1894).Google Scholar

4. See, e.g., Hooker, Thomas, The Laws of Ecclesiastical Polity, Books I-IV (Glasgow and New York: G. Routledge, 1888).Google Scholar

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11. A number of mid-20th century historians appear to have made the connection between Newton and the Founding Fathers as a whole. See, e.g., Cohen, Morris, American Thought: A Critical Sketch (Glencoe, Il: The Free Press, 1954) at 138 Google Scholar; Cohen, Edward S., “The ‘Higher Law’ Background of American Constitutional Law” (1928-29) 42 Harv. L. Rev. 149 continued on 365Google Scholar; Dahl, Robert A., A Preface to Democratic Theory (Chicago, Il: University of Chicago Press, 1956) at 5 Google Scholar; Gabriel, Ralph H., The Course of American Democratic Thought (New York: The Ronald Press, 1940) at 15 Google Scholar; Hofstader, Richard, The American Political Tradition (New York: Knopf Vintage Books, 1954) at 8 Google Scholar; Mosier, Richard, The American Temper (Berkeley: University of California Press, 1952) at 97 CrossRefGoogle Scholar; and Wright, Benjamin F Jr., American Interpretation of Natural Law (Cambridge, MA: Harvard University Press, 1931) at 12.Google Scholar Most recently and most thoroughly, Bernard Cohen spelled out the various links between law and the Founding Fathers. See, e.g., Cohen, Bernard, Science and the Founding Fathers: Science in the Political Thought of Thomas Jefferson, Franklin, Benjamin, Adams, John & Madison, James (New York & London: W W Norton, 1997).Google Scholar

12. Jefferson is not mentioned at all in the following landmark jurisprudence textbooks: Salmond, Sir John, Jurisprudence, 7th ed. (London: Stevens and Haynes, 1929)Google Scholar; Pound, Roscoe Jurisprudence (St. Paul, MN: West, 1959)Google Scholar; Christie, George C., Jurisprudence: Text and Reading on the Philosophy of Law (St. Paul, MN: West, 1973)Google Scholar; Michael, Reginald Walter, Jurisprudence, 5th ed. (London: Butterworths, 1985)Google Scholar; Morrison, Wayne, Jurisprudence: From the Greeks to the Moderns (London: Cavendish, 1997)Google Scholar; Bix, Brian, Jurisprudence: Theory and Context, 5th ed (Durham, NC: Carolina Academic Press, 2009)Google Scholar; Gottlieb, Stephen E., Bix, Brian H., Lytton, Timothy D. & West, Robin L., eds., Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications, 2nd ed. (Newark, NJ: LexisNexis, 2006)Google Scholar. Other jurisprudence textbooks pay Jefferson only scant attention. Edward Bodenheimer mentions Jefferson in a few instances, most notably when commenting on natural law, but he never talks about Jefferson vis-à-vis science. Bodenheimer, Edward, Jurisprudence: The Philosophy and Method of Law (Cambridge, MA: Harvard University Press, 1962) at 52 CrossRefGoogle Scholar. (“[James Wilson’s natural law philosophy] was shared by most of the fathers of the U.S. Constitution. John Adams, Thomas Paine, and Thomas Jefferson were convinced that there existed natural rights which could not be restrained or repealed by human laws. And the view that it was the function of the courts to defend human rights, as recognized and sanctioned by the constitution, against any violations by the legislature, was held not only by Wilson but also by Jefferson and Hamilton.”) William Seal Carpenter mentions Jefferson only once and that in passing: “Almost a quarter of a century before Thomas Jefferson in the Declaration of Independence appealed to nature and nature’s God in behalf of the rights of colonial America, the theory of natural law had begun to crumble.” Carpenter, William Seal, Foundations in Modern Jurisprudence (New York: Appleton-Century-Crofts, 1958)Google Scholar. These textbooks serve only as a representative sampling.

13. Bernstein, R B., “Wrestling with Jefferson: The Struggles of a Biographer” (2002) 46 N.Y.L. Sch. J. Int’l & Comp. L. 757 at 758.Google Scholar

14. Miller, Charles A., Jefferson and Nature: An Interpretation (Baltimore, MD: Johns Hopkins University Press, 1988) at 1.Google Scholar

15. Ibid. at 3.

16. “Jefferson’s use of the word ‘nature’ is not only extensive in itself but, in an important way, different from ‘nature’ as used by Europeans of the Enlightenment. Jefferson came to ‘know’ nature in America in the way that Thoreau said he came to ‘know’ beans at Walden Pond, by working with it day after day. Further, insofar as nature symbolized America in its entirety, nature was America for Jefferson. His interest in nature and his use of the word are therefore a form of nationalism. In Europe national sentiment was ex Pressed through a common history, a royal family, a culture, or a literature. In America and for Jefferson it was ex Pressed through, and as, nature.” Ibid. at 3.

17. See, e.g., Fuller, Lon, The Morality of Law (New Haven, CT: Yale University Press, 1964).Google Scholar

18. See, e.g., Finnis, John, Natural Law and Natural Rights (Oxford & New York: Clarendon Press, 1980).Google Scholar

19. Dworkin has offered up a “third way” theory to distinguish himself from both positivists and traditional natural law theorists. See generally Dworkin, Ronald M., Law’s Empire (Cambridge, MA: Harvard University Press, 1986)Google Scholar and Dworkin, Ronald M., Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).Google Scholar

20. See, e.g., Robinson, Edward S., “Law. An Unscientific Science” (1934) 44 Yale L. Rev. 235.CrossRefGoogle Scholar

21. Friedman, Lawrence M., American Law in the 20th Century (New Haven, CT: Yale University Press, 2002) at 34 Google Scholar. (“Langdell considered law a science, which had to be taught in a scientific way. The students were supposed to extract the principles of law from reading appellate cases. The most startling of his innovations was in fact the case method—teaching law not by lecture but by Socratic questions and answers. The students would study appellate cases, selected and collected in ‘case-books’; the questions and answers would be based on these cases. Langdell also invented (one might say) the law professor. The Harvard faculty had always consisted of distinguished lawyers and judges—men who had made their mark in the legal world Joseph Story, for example, a justice of the United States Supreme Court, once taught law at Harvard on the side. Langdell rejected this notion, and began to hire young, bright men—men who had done nothing much at the bar, but who were good (he thought) at the Langdell method of teaching.”)

22. Taylor, Hannis, The Science of Jurisprudence (New York: Macmillan, 1908).CrossRefGoogle Scholar

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24. Foley, Michael, Laws, Men and Machines (London & New York: Routledge, 1990).Google Scholar

25. The degrees are abbreviated either S.J.D or J.S.D.

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28. Jefferson, Thomas, Michie, Thomas Johnson, and Grattan, Peachy Ridgway, Virginia Reports (Charlottesville, VA: The Michie Co. 1903) at 92 [emphasis added].Google Scholar

29. Jefferson, Thomas, Notes on the State of Virginia 31 (Richmond VA: J.W. Randolph, 1853) at 31 [emphasis added].Google Scholar

30. See Tucker, supra note 1 at 24.

31. Ibid.

32. Ibid.

33. After speaking derogatively of blacks, Jefferson immediately states, “The Indians, with no advantages of this kind will often carve figures on their pipes not destitute of design and merit. They will crayon out an animal, a plant, or a country, so as to prove the existence of a germ in their minds which only wants cultivation. They astonish you with strokes of the most sublime oratory; such as prove their reason and sentiment strong, their imagination glowing and elevated. But never yet could I find that a black had uttered a thought above the level of plain narration; never seen even an elementary trait of painting or sculpture.” Jefferson, supra note 29 at 151 [emphasis added].

34. “Comparing [blacks] by their faculties of memory, reason, and imagination, it appears to me that in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they are dull, tasteless and anomalous.” Ibid.

35. Ibid. at 149.

36. See Jefferson, Thomas & Magnis, Nicholas E., “Thomas Jefferson and Slavery: An Analysis of His Racist Thinking as Revealed by His Writings and Political Behavior” (1999) 29 J. Black Studies 491 at 491-92Google Scholar(“[ … ] a review of Jefferson’s major published work, Notes on the State of Virginia (1787/1954), indicates that Jefferson was not rational and scientific when he wrote of the African-descended slaves in Virginia. His conclusion, developed in his book, that the slaves were inferior in body and mind resulted from thinking that was extremely emotional and illogical. His bias is especially obvious when compared to his own standards ex Pressed in this same work. Jefferson, who considered himself among the enlightened persons of his time, broke with the prevailing Enlightenment thought when he speculated on the causes for what he believed was the innate inferiority of the Black race [ … ]”).

37. “Jefferson held that reason is implanted in both physical nature and human nature. The reason of physical nature is its order. The reason of human nature is our ability to understand a fair portion of that order. Because of that, Jefferson’s ‘nature’ is sometimes identified with reason.” Miller, supra note 14 at 4.

38. Jefferson, supra note 29 at 100.

39. Miller, supra note 14 at 23.

40. Jefferson, Thomas, The Writings of Thomas Jefferson, ed. by Lipscomb, Andrew Adgate, Bergh, Albert Ellery & Johnson, Richard Holland (Washington, DC: Thomas Jefferson Memorial Association, 1907) at 404.Google Scholar

41. Even in Notes, Jefferson seems to disclaim the possibility that science can “prove” everything; he notes, for instance, that anatomical knife, magnifying lenses, and “analysis by fire” or “by solvents” cannot access human internalities like thought and law, which elude “the research of all the senses” and possibly “bid defiance to calculation.” Jefferson, supra note 29 at 155.

42. Georg Wilhelm Hegel, Friedrich, Natural Law: The Scientific Ways of Treating Natural Law, Its Place in Moral Philosophy, and Its Relation to the Positive Sciences of Law (Philadelphia: University of Pennsylvania Press, 1975) at 55.Google Scholar

43. Compare Jefferson’s line to John Adams: “When once we quit the basis of sensation, all is in the wind.” Jefferson, Thomas, “letter to John Adams, from Monticello, August 15, 1820” Thomas Jefferson: Writings Peterson, Merrill D., ed. (New York: Library of America, 1994) at 1440.Google Scholar

44. Thomas Jefferson, “Letter to James Madison, September 6 1789” in The Writings of Thomas Jefferson, supra note 40 at 28.

45. Jefferson, supra note 29 at 59-60.

46. Ibid. at 130.

47. One could argue that Jefferson might have wanted to reduce this anomaly to regularity.

48. Tucker, supra note 1 at 20, 21. Tucker points to several passages in query 6 to back up his claims here: Jefferson’s various arguments against Buffon, his examination of races of animals, his letter to a nephew, etc.

49. Ibid. at 22.

50. Ibid.

51. Ibid. at 21.

52. See generally Lovejoy, Arthur O., The Great Chain of Being: A Study of the History of an Idea (Cambridge, MA: Harvard University Press, 1936) at 183–208.Google Scholar These particular pages spell out the idea as manifest in 18th century thought about nature.

53. Jefferson, supra note 29 at 55.

54. Tucker, supra note 1 at 22.

55. Ibid.

56. Jefferson, supra note 29 at 48.

57. Ibid. at 100.

58. Ibid.

59. Doren, Mark Van, ed., Travels of William Bartram (New York: Courier Dover Publications, 1955) at 385.Google Scholar

60. Ibid. at 388.

61. Ibid.

62. Jefferson, Thomas, The Writings of Thomas Jefferson, Vol. 3, ed. by Ford, Paul Leicester (New York & London: G.P. Putnam’s Sons, 1895) at 225.Google Scholar

63. Jefferson, supra note 29 at 170.

64. Ibid.

65. Ibid

66. Ibid.

67. “At the common law, heresy was a capital offence, punishable by burning. Its definition was left to the ecclesiastical judges, before whom the conviction was, till the statute of the 1 El., c. 1, circumscribed it, by declaring that nothing should be deemed heresy, but what had been so determined by authority of the canonical Scriptures, or by one of the four first general councils, or by some other council having for the grounds of their declaration the ex Press and plain works of the Scriptures. Heresy, thus circumscribed, being an offence at the common law, our act of assembly of October, 1777, c. 17, gives cognizance of it to the General Court, by declaring that the jurisdiction of that court shall be general in all matters at the common law. The execution is by the writ De haeretico comburendo. By our own set of assembly of 1705, c. 30, if a person brought up in the Christian religion denies the being of a God, or the Trinity, or asserts there are more Gods than one, or denies the Christian religion to be true, or the Scriptures to be of divine authority, he is punishable on the first offence by incapacity to hold any office or employment ecclesiastical, civil or military; on the second by disability to sue, to take any gift or legacy, to be guardian, executor, or administrator, and by three years imprisonment, without bail. A father’s right to the custody of his own children being founded in law on his right of guardianship, this being taken away, they may of course be severed from him, and put, by the authority of a court, into more orthodox hands. This is a summary view of that religious slavery, under which a people have been willing to remain, who have lavished their lives and fortunes for the establishment of their civil freedom.The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws.” Ibid.

68. Ibid. at 170-71.

69. Jefferson, supra note 26 at 366.

70. Jefferson, supra note 29 at 93.

71. Jefferson, Thomas, “Georgetown Republicans” in Foley, John P., ed., The Jefferson Cyclopedia (New York & London: Funk & Wagnalls, 1900) at 721.Google Scholar

72. Jefferson, supra note 29 at 174.

73. See Tucker, supra note 1 at 25-29.

74. Saint Aquinas, Thomas, Treatise on Law, ed. by Regan, Richard J. [being Summa Theologiae I-II; QQ. 90 through 97] (Indianapolis, IN: Hackett, 2000) at 35.Google Scholar

75. Ibid.

76. Griesbach, William C., “The Joy of Law” (2009) 92 Marq. L. Rev. 889 at 909 Google Scholar.

77. “Drawing together Jefferson’s characterizations of nature in Notes, we can say that he understood nature to be constant, orderly and lawful, not capricious or arbitrary; efficient and purposeful, not wasteful and pointless; and hierarchical, not unordered or randomly distributed. Unique among natural beings in their incompleteness, humans formed one link in the chain, one rank in the scale of beings; but the human being was endowed with a need to complete himself which perfected nature’s order. Taken together, the natural world was an order, which, as Musschenbroek claimed lacked nothing. It was in this sense, at least, perfect.” Tucker, supra note 1 at 23. Jefferson apparently believed that science informed all intellectual disciplines: “I am for encouraging the progress of science in all its branches; and not for raising a hue and cry against the sacred name of philosophy; for awing the human mind by stories of raw head and bloody bones to a distrust of its own vision, and to repose implicitly on that of others; to go backward instead of forward to look for improvement; to believe that government, religion, morality, and every other science were in the highest perfection in the ages of darkest ignorance and that nothing can ever be devised more perfect than what was established by our forefathers.” Jefferson, supra note 26 at 51.

78. Bentham’s jurisprudence—analytical positivism—is in a way a reaction to Blackstone’s natural law theories. Supposedly, when Bentham was 16, he attended Blackstone’s lectures for the price of six guineas. See J.H. Burns & H.L.A. Hart, eds., “Introduction” in Bentham, Jeremy A Comment on the Commentaries and A Fragment on Government (London: Athlone Press, 1977) at xix-xxiGoogle Scholar. Bentham’s more mathematical or scientific approach supposedly counteracted Blackstone’s abstractions.

79. Reck, Andrew J., “Natural Law and the Constitution” (1989) 42 Rev. Metaphysics 483 at 490 Google Scholar.

80. Statistician Charles Murray describes this historical transition as follows: “By the 1750s the Enlightenment had become the continent’s child as well, but it had been Britain’s baby. Isaac Newton’s revelation in Principia Mathematica (1687) that the universe is rational, obeying fixed and predictable laws, had changed the way that people perceived the universe. God was no longer the interfering, jealous God of the Old Testament nor the loving personal God of the New, but God the Clockmaker, setting the universe on a course governed forever after by mathematically perfect immutable laws. If only mortals had enough data, they could predict everything that happened and the tool whereby they could do this in a clocklike universe was reason. Reason, sweet and infallible, should be brought to bear on hoary traditions that governed the pursuit of knowledge, relationships between the sexes and the social classes, standards of art and music, and the exercise of political power.” Murray, Charles, Human Accomplishment (New York: HarperCollins, 2003) at 49.Google Scholar

81. “Thomas Jefferson lived in a world boiling with political and social ferment. He stood on the thresholds of the great revolutions of the 18th and 19th Centuries, and at the ideological core of one of them. “He also stood on the brink of scientific developments every bit as precedent-shattering as the political upheavals of his time. Electricity was just beginning to yield some of its secrets. The discovery of oxygen and oxidation provided the first hints of the ecological complementarity of resperation and photosynthesis. The harnessing of steam power was revolutionizing transportation and manufacturing. Jefferson was a Founding Father keenly attuned to science’s potential for improving the human condition, and adding to man’s understanding of himself. Furthermore, he envisaged the newly independent America as a nation where the natural sciences could expand freely, nourished by that intellectual liberty which strikes the brightest creative sparks from active minds.” Quinn, C. Edward, “Thomas Jefferson and the Fossil Record” (1976) 47 Bios 159 at 159.Google Scholar

82. Thirteen years after drafting the Declaration, Jefferson, traveling through Paris, likely helped his friend marquis de Lafayette, draft the sweeping language of the French Declaration of the Rights of Man and Citizen, which cast rights in terms of abstract universalities. According to Lynn Hunt, “the publication of the [French] declaration immediately galvanized worldwide opinion on the subject of rights, both for and against. In a sermon given in London on November 4, 1789, Richard Price, friend of Benjamin Franklin and frequent critic of the English government, waxed lyrical on the new rights of man. ‘I have lived to see the rights of men better understood than ever, and nations panting for liberty, which seemed to have lost the idea of it.’ Outraged by Price’s naïve enthusiasm for the ‘metaphysical abstractions’ of the French, the well-known essayist and member of Parliament Edmund Burke dashed off a furious response. His pamphlet, Reflections on the Revolution in France (1790), gained instant recognition as the founding text of conservatism. ‘We are not the converts of Rousseau,’ Burk thundered. ‘We know that we have made no discoveries, and we think that no discoveries are to be made, in morality. … We have not been drawn and trussed in order that we may be filled like stuffed birds in a museum, with chaff and rags and paltry blurred shreds of paper about the rights of man.’ Price and Burke had agreed about the American Revolution; they both supported it. But the French Revolution upped the ante enormously, and battle lines soon formed: was it the dawn of a new era of freedom based on reason or the beginning of a relentless descent into anarchy and violence?” Hunt, Lynn, Inventing Human Rights (New York: W.W. Norton, 2007) at 17.Google Scholar Thomas Paine’s publication of Rights of Man in 1791 would explode Burke’s assertions and further intensify the natural law/pos-itive law debates.

83. That Bentham, Austin, and Jefferson espoused a scientific or mathematical angle on law might explain how at least one scholar has lumped Austin and Jefferson in the same camp: “The Declaration of Independence and the Constitution are the culmination of centuries of legal thought and support our thesis that American law is founded on the form and spirit of mathematics. The legal developments of the nineteenth century continued this tradition in the work of John Austin (1790-1895), the founder of analytical jurisprudence. This is the notion of law as established fact subject to scientific treatment and orderly classification, as a science built upon the mathematical model. It attempted to reduce a large number of legal concepts to a basic few that were not themselves further analyzable. It is a study of what law is as opposed to what an individual or group thinks it ought to be.” Kenton, Stephen A., “Mathematical Foundations of Constitutional Law” (1979) 52 Mathematics Mag. 223 at 224CrossRefGoogle Scholar. Stephens corroborates two of my claims—first, that many scholars do in fact attribute analytical positivism to Austin and not Bentham; and second that Austin was in conversation with Jefferson, the author of the Declaration. Because Bentham preceded Austin, and because theories like Bentham’s and Austin’s were in discursive circulation at the time of Jefferson’s writings, it is possible that Jefferson was likewise responding to analytical positivism, even if he was not directly responding to Bentham and Austin (who came later).

84. “For Bentham, natural law was mere rhetoric, clothed in subjective value judgments. In its place Bentham argued for a new science of law based on legislation. Bentham’s idea of legal science was not so much based on ‘empirical observation’ but rather on careful analysis of law according to ‘objective’ categories and subcategories. He insisted on the development of a technical vocabulary which would allow politics and law to be analyzed ‘neutrally.’ For Bentham, and other utilitarian philosophers of the 19th century, there was seemingly no end to the power of reason and the possibilities of science to achieve social change.” Laster, Kathy, Law as Culture (Sydney, AU: Federation Press, 2001) at 203.Google Scholar

85. It bears noting some chronological comparisons. Bentham passed the bar exam in 1769, seven years before Jefferson’s writing of the Declaration. Harrison, Ross, Bentham (London: Routledge, 1983) at 15 Google Scholar. By 1780, Bentham had authored much of the introduction to the penal code. Ibid. Bentham’s widespread fame did not come about until the 1780s. Ibid. at 17-18. Bentham published his criticism of Blackstone in 1776, the same year that Jefferson authored the Declaration. Charles Atkinson, Milner, Jeremy Bentham: His Life and Work (London: Methuen, 1905) at 35 Google Scholar. During his lifetime, Bentham lectured to an extraordinary number of prominent individuals. According to Charles Noble Gregory, “Bentham, or ‘the Hermit,’ as he loved to call himself, did not hesitate to address, by post or the public Press, potentates or powers, wherever circumstances seemed to make it probable that a change of law was contemplated or possible, and to offer his services to advise on any measure in discussion or to furnish a complete code. So he addressed Alexander I., the Emperor of all the Russias, the people of Spain, Simon Snyder, Governor of Pennsylvania, his fellow-citizens of France, ‘James Madison, then President of the Congress of the American United States,’ Mehemet Ali, Albert Gallatin, Prince Adam Czartoriski of Poland and in a circular communication, ‘the respective governors of the American United States,’ and in a series of letters, ‘The Citizens of the several American United States.’ He even proposed that, as we were not the only United States of America, and as the name ‘The Anglo-American United States’ was a circumlocution, we should rename our country ‘Washingtonia,’ and advised us to ‘shut our ports against the common law as’ we ‘would against the plague.’” Gregory, Charles Noble, “Bentham and the Codifiers” (1900) 13 Harv. L. Rev. 344 at 346.CrossRefGoogle Scholar

86. See, e.g., Duncanson, Ian, “Cultural Studies Encounters Legal Pluralism: Certain Objects of Order, Law and Culture” (1997) 12 Can. J. L. & Policy 115 at 139Google Scholar (“Unlike the later Bentham, Austin was never a democrat.”).

87. Austin is not indifferent to moral questions; nor does he deny the existence of universal, transcendental laws immanent in nature. In fact, he lists “divine laws” or “the laws of God” as examples of “laws proper” or “commands.” Austin, John, On Jurisprudence (London: John Murray, 1879) at 81 Google Scholar. He also points out that these universal rules “cannot be styled the jus omnium gentium, or the commune omnium hominum jus” because they “cannot be purely or simply of human position or invention.” Ibid. at 84. Instead, they are “made by men on laws coming from God, or from the intelligent and rational Nature which is the soul and the guide of the universe.” Ibid. at 84-85. Accordingly, they are not “so properly laws of human device and institution, as divine or natural laws clothed with human sanctions.” Ibid. That universal rules are made, according to Austin, on God’s laws suggests that they are additions, supplements, revisions, or complements to God’s laws but that they never actually constitute God’s laws.

88. Blackstone may be disingenuous on this score because he concedes under the guise of the natural what is in fact gleaned from already existing English common law.

89. Bentham, Jeremy, The Works of Jeremy Bentham, ed. by Bowring, John (Edinburgh: W. Tait, 1843) at 94 Google Scholar. See also, the much later Austin’s, John L. (1911-1960) speech-act theory in How to Do Things With Words, ed. by Urmson, J.O. (Cambridge, MA: Harvard University Press, 1975).Google Scholar

90. Bentham, supra note 89 at 94.

91. If Foucault, Michel relied heavily on Bentham’s Panopticon in Discipline and Punish (New York: Pantheon Books, 1977)Google Scholar, he could have relied on Bentham’s, “law-as-discourse” premise in such works as The Order of Things (New York: Pantheon Books, 1970)Google Scholar and Archaeology of Knowledge (New York: Pantheon Books, 1972).

92. Bentham, Jeremy, The Principles of Morals and Legislation (Amherst, NY: Prometheus Books, 1988) at 224.Google Scholar

93. Ibid. at xxxii.

94. Ibid. at 330.

95. Austin, supra note 87 at 91.

96. Ibid. at 100. This point is true in a different way for Jefferson, who believes that law emanates from the creator through nature.

97. The idea that discourse constitutes relationships or power structures is resonant in the poststructuralist works of, most notably, Michel Foucault, and it begs further explanation, especially since Foucault attributes his working paradigms to Bentham, not Austin, unlike the various legal theorists who treat Austin as analytical positivism’s intellectual frontrunner. Bentham explains in Principles that “[p]ower, whether over a man’s own person, or over other persons, or over things, is constituted in the first instance by permission,” thus lending critical substance to Austin’s belief that a “superior” legitimately commands laws to an “inferior” only so long as that inferior consents. Bentham, supra note 92 at 224. An “inferior,” in turn, consents only so long as he or she perceives that those commands are good. This process recalls Locke’s idea of social contract (appropriated by Adam Smith, Bentham, et al.), which holds that citizens surrender a certain amount of individual liberty to gain collective liberty. In light of this apparent mutual dependence, Austin refers to the relationship between superiors and inferiors as reciprocal (“in all or most cases of human superiority, the relation of the superior and inferior, and the relation of inferior and superior, are reciprocal”). Austin, supra note 87 at 99. He substantiates this logic with the following concrete example: “To an indefinite, though limited extent, the monarch is the superior of the governed: his power being commonly sufficient to enforce compliance with his will. But the governed, collectively or in mass, are also the superior of the monarch: who is checked in the abuse of his might by his fear of exciting their anger; and of rousing to active resistance the might which slumbers in the multitude.” Ibid. That is to say, the monarch has power over subjects only so long as subjects allow that power; and subjects allow that power only so long as the monarch serves their interests (if only minimally). The fatal flaw of this reasoning is that subjects probably do not have the luxury of dismantling previously established power structures. If subjects decide no longer to channel power to the commanding monarch, will the monarch simply concede without resort to coercion? More than just signifying a desire, Bentham and Austin seem to suggest, laws entail mutual consent, which subsequently gives rise to duties and obligations and therefore to power (im)balances. One can see here the foundations of Foucault’s power/knowledge and power/pleasure principles. These binary oppositions, rather than compete with or exclude each another, actually participate with each other to produce or activate and then perpetuate power. For Austin, laws are relational and reciprocal but never totally unilateral. Well over a century after Austin and Bentham, Foucault would extend these principles to suggest that power itself is active, productive, and participatory rather than passive or one-sided. This is not to say that power cannot be unidirectional—for instance, if the consent is, as Noam Chomsky puts it, “manufactured”—only that power requires the energies of both controller and controlled. See generally Herman, Edward S. & Chomsky, Noam, Manufacturing Consent: The Political Economy of the Mass Media (New York: Pantheon Books, 1988).Google Scholar

98. In Notes, Jefferson actually footnotes the compiler of Blackstone’s letters, Philip Furneaux (1726-1783). The footnote appears after the following line: “The error seems not sufficiently eradicated that the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws.” Jefferson, supra note 29 at 170.

99. Bentham, supra note 92 at 224.

100. The following quote substantiates this point while illuminating Bentham’s influence on Jefferson: “The greatest happiness of the greatest number is Beccaria’s phrase, plagiarized by Bentham; and the pursuit of happiness might well be the turn given it by one with as fine a feeling for language as had Jefferson.” Ganter, Herbert Lawrence, “Jefferson’s ‘Pursuit of Happiness’ and Some Forgotten Men” (1936) 16 Wm. & Mary Q. 558 at 559.CrossRefGoogle Scholar

101. One may deduce this conclusion from Albert W. Alschuler’s comment about Jefferson and Blackstone: “In 1812, while describing Blackstone’s Commentaries as ‘the most elegant and best digested of our law catalogue,’ Jefferson protested ‘canonization] of the book: ‘A student finds there a smattering of everything, and his indolence easily persuades him that if he understands that book, he is the master of the whole body of law.” Alschuler, Albert W., “Rediscovering Blackstone” (1996) 145 U. Pa. L. Rev. 1 at 10CrossRefGoogle Scholar (quoting Jefferson in Jefferson, supra note 27 at 65-66). Alschuler goes on to suggest, however, that Jefferson’s views about Blackstone were complicated. Sometimes Jefferson praised Blackstone; sometimes he criticized Blackstone.

102. Blackstone, who wrote with “graceful prose,” was also a poet and the author of critical notes on Shakespeare. Alschuler, supra note 101 at 8.

103. Bentham, supra note 92 at 224. Bentham’s discussion of penal legislation gives rise to another telling footnote that couches law in language most probably lifted by Austin. “Every law,” Bentham says, “is either of a coercive or an uncoercive nature,” and those of a coercive nature are properly called “commands.” Ibid. at 330. He adds that coercive laws yield corresponding offenses because they convert particular actions into wrongdoings (i.e., they define particular actions as illegal). Ibid. at 330-31. “It is only by doing so,” Bentham elaborates, “that [law] can impose obligation, that it can produce coercion.” Ibid. at 331. Acts are never per se valid or invalid in other words, but discourse assigns them such categories, which people then accept and perpetuate. It is not enough that one party merely declares an action unlawful; other parties must approve that declaration and then abide by it. On a communal level, such compliance is more likely if disobedience occasions formal punishment. “A command,” Bentham explains in an earlier passage, constitutes a legal obligation when “punishment [is] appointed for the breach of it.” Ibid. at 226. After all, a declaration by itself, being nothing more than discourse, carries no weight unless respected by its subjects; and punishment, or rather the power to punish, brings about this respect.

Nevertheless, Bentham says that “all punishment in itself is evil” because it subtracts from happiness, the ultimate objective of utilitarianism. Ibid. at 170. But punishment seems a central ingredient to command theory. Rather than reject punishment altogether, Bentham proposes it as a last resort that “ought only to be admitted in as far as it promises to exclude some greater evil.” Ibid. Accordingly, society may punish a serial killer if doing so prevents the random deaths of other victims—if that is, it prevents greater evils. The utilitarian implication here is that law should never aspire to retributivism. It is enough that law simply remove or prevent further mischief but putatively moral punishments—”just deserts”—are unnecessary. Worse, they are against happiness and therefore not moral at all. Bentham is adamant that punishment is inappropriate if it is groundless (i.e., not a reaction to some corresponding mischief), inefficacious, unprofitable, or needless. Ibid. at 171-72, 175, 177. He spends a great deal of energy classifying and arranging punishment precisely because punishment is inherently at odds with happiness, which is rooted in pleasure, not pain. Although his ideas generally inspired Austin’s command theory, a central tenet of positivism, they do not maintain that laws necessarily entail punishment but, instead that the measure of law be utility. Whatever principle differs from this principle of utility, in fact, “must necessarily be a wrong one.” Ibid. at 8. Incidentally, punishment emanating from the sovereign almost never conforms to the principle of utility. “If the sovereign must needs take a part in the controversy,” Bentham explains, “the pen is the proper weapon to combat error with, not the sword.” Ibid. at 177. Suspicious of institutions and of course, pain, Bentham seems to imply that the collective benefit is enhanced when law involves personal interactions and not grand political programs, especially those prone to violence.

104. Specifically, he says, “The meanings of the term right, are various and perplexed; taken with its proper meaning, it comprises ideas which are numerous and complicated; and the searching and extensive analysis, which the term, therefore, requires, would occupy more room than could be given to it in the present lecture. It is not, however, necessary, that the analysis should be performed here.” Austin, supra note 87 at 103.

105. Jefferson manages to have 200 copies of Notes printed in 1785, having more or less completed the manuscript by 1784. Shuffelton, Frank, “Introduction” in Notes on the State of Virginia (New York: Penguin Classics, 1999) at xiv-xvGoogle Scholar. By this time, Bentham has achieved some level of fame and has met with many notables like William Pitt. See generally Atkinson, supra note 85 at 30-75. By the 1787 printing of Notes, Bentham has secured for himself an even more prominent reputation.

106. “Bentham’s creed of utility had long been the accepted creed of many thinkers of many different political parties.” Holdsworth, William, “Bentham’s Place in English Legal History” (1940) 28 Cal. L. Rev. 568 at 572CrossRefGoogle Scholar. Moreover, as Albert Venn Dicey elucidates: “Dr. Johnson, the moralist of the preceding generation, had admitted, and Paley, still the accepted English theologian of the day, had advocated the fundamental dogma of Benthamism, that the aim of existence was the attainment of happiness. The religious teachers who touched the conscience of Englishmen tacitly accepted this doctrine. The true strength of Evangelicism did not, indeed lie in the fervour with which its preachers appealed as they often did, to the terrors of hell as a sanction for the practice of virtue on earth, but the appeal was in fact a recognition of the principle of utility. When Bentham applied this principle to the amendment of the law he was in thorough harmony with the sentiment of the time; he gave no alarm to moderate reformers by applying to the appropriate sphere of legislation that greatest happiness principle which the public had long accepted as something like a dictate of common sense.” Albert Dicey, Venn, Lectures on the Relation Between Law & Public Opinion in England During the Nineteenth Century (London: Macmillan, 1905) at 173–74.Google Scholar

107. Bentham, Jeremy, The Correspondence of Jeremy Bentham, ed. by S. Sprigge, Timothy L. & Christie, Ian R (London: Athlone Press, 1968) at 343.Google Scholar

108. Jeremy Bentham, Memoirs and Correspondence, reprinted in Bentham, supra note 89 at 63.

109. “All of our formative documents—the Declaration of Independence, the Constitution, the Federalist Papers, and the seminal decisions of the Supreme Court under John Marshall—were drafted by attorneys steeped in [Blackstone’s Commentaries].” Ferguson, Robert A., Law and Letters in American Culture (Cambridge, MA: Harvard University Press, 1984) at 11.Google Scholar What with Bentham’s prominence, his American contacts, and his outspokenness about Jefferson, it seems highly likely Jefferson was aware of Bentham’s reputation if not Bentham’s ideas.

110. Jefferson, Thomas, A Summary View of the Rights of British America (New York: Burt Franklin, 1976) at 30.Google Scholar

111. As Sweet indicates, “Perhaps the political context—the war to substantiate a document [the Declaration] grounding a government in the ‘Laws of Nature’—made generalizations a matter of greater urgency than in the case of moose or mammoth.” Sweet, supra note 10 at 108. Likewise, Quinn writes, “The unimpeded pursuit of anthropology, genetics, paleontology, archeology, and psychology has unquestionably helped establish a clear scientific rationale for justice, the logical consequence of that human equality proclaimed in the Declaration of Independence. Jefferson would have been deeply gratified that this key passage [quoted by Quinn] from his very last letter should have been confirmed by the conclusions of those biological sciences in which he had so deeply involved himself. His constant vigilance over the right of free inquiry and unconstrained by responsible ex Pression helped make the United States a country in which biological science took deep root and enjoyed unprecedented growth.” Quinn, supra note 81 at 166-67.

112. Douglass Anderson says the following of Jefferson’s use of science, in Notes, to counter British culture and institutions: “Jefferson indicts the state of English culture by treating its conduct of the American war as a monstrous birth, an inhuman ‘issue’ that signals an ‘awful dissolution.’ The scientific contest over the fertility of American nature, in vegetables, quadrupeds, and men, may be conducted in reasonably civil, scientific fashion. The political and military contest with Great Britain, on the other hand takes a bitter, inward turn to which the gestational metaphors of Query VI seem inevitably to turn.” Anderson, Douglas, “Subterraneous Virginia: The Ethical Poetics of Thomas Jefferson” (2000) 33 Eighteenth-Century Studies 233 at 240.CrossRefGoogle Scholar

113. See generally Meyer, John, Political Nature (Cambridge, MA: MIT Press, 2001)CrossRefGoogle Scholar. Meyer opens his book with this provocative passage: “How should human communities be ordered? Those who engage in politics—in its broadest sense—seek to address this question. What is and what should be the relationship between the order of human communities and the order of nature? This is one of the monumental questions confronted—sometimes explicitly, always implicitly—by political thinkers over the millennia. It is also a question that contemporary environmentalists regularly seek to address. Thus the question is not only a perennial one, it is timely.” Ibid. at 1.

114. See, e.g., Cohen, Morris R. & Cohen, Felix S., Readings in Jurisprudence & Legal Philosophy (Boston, MA: Little, Brown, 1951) at 430, 382-84, 699-700, 702, 888-90, 900-01, 910Google Scholar; Dias, R. W M., Jurisprudence, 5th ed. (London: Butterworths, 1985) 79–80, 101Google Scholar; Christie, George C., Jurisprudence: Text and Readings on the Philosophy of Law (St. Paul, MN: West, 1977) at 293–94, 297-305Google Scholar; Jurisprudence: The Philosophy and Method of the Law (Cambridge, MA: Harvard University Press, 1974) at 33-34, 37, 39-46, 53, 55, 57, 168, 186, 200, 222, 237, 296, 341; Pollack, Ervin H., Jurisprudence: Principles and Applications (Columbus: Ohio State University Press, 1979) at 430, 20, 318, 3, 12-14, 53, 112, 101, 49, 51, 534Google Scholar; Freedman, M. D. A., Lloyd’s Introduction to Jurisprudence (London: Sweet & Maxwell, 1994) at 99, 101-02, 107, 109, 206, 216, 358, 513, 745, 892, 1073, 1079.Google Scholar

115. See, e.g., Rand, Ayn, The Fountainhead (Indianapolis, IN: Bobbs-Merrill Co., 1943)Google Scholar and Rand, Ayn, Atlas Shrugged (New York: Random House, 1957).Google Scholar

116. See, e.g., Burke, Edmund, Reflections on the Revolution in France, ed. by Pocock, J.G.A. (Indianapolis, IN: Hackett, 1987).Google Scholar

117. Wilson, Woodrow, Constitutional Government in the United States (New York: Columbia University Press, 1907) at 54–55.Google Scholar