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Bentham and The Boot-Strappers of Jurisprudence: The Moral Commitments of a Rationalist Legal Positivist

Published online by Cambridge University Press:  06 July 2004

Amanda Perreau-Saussine
Amanda Perreau-Saussine*
Affiliation:
Newnham College, Cambridge
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Abstract

This article suggests that Jeremy Bentham's principle of utility plays a crucial role in his work as a ground not only of moral or censorial judgment but also of expositorial legal judgment. If we are to reject the characterisation of Bentham as a natural lawyer, the most coherent re-interpretation of his position, a morally sceptical interpretation of his insistence on law as a cause of social order, would be as a noble or enlightened despotism, a decision to defend utility as a politically authoritative but philosophically unjustified principle. It concludes that other rationalist legal positivists face similar versions of this dilemma.

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The Cambridge Law Journal , Volume 63 , Issue 2 , 18 June 2004 , pp. 346 - 383
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Copyright © The Cambridge Law Journal and Contributors 2004

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Footnotes

This paper was completed during a period of research leave funded by the AHRB. I am grateful and indebted to the members of the Moral Sciences Club in Cambridge for their responses to my talk on this topic, and to Trevor Allan, Sylvie Delacroix, David Dyzenhaus, Hyman Gross, David Ibbetson, Emran Mian, Jim Murphy, Peter Oliver, Onora O’Neill, Cristobal Orrego, Emile Perreau-Saussine, Veronica Rodriguez-Blanco, Nigel Simmonds and Michael Singer for their comments and advice on earlier drafts of this essay.

References

1 In this paper I use the phrase ‘legal judgment’ to refer to any judgment determining the content of a legal rule.

2 The most conservative of conservatives believe that reason plays at best an obstetric role, treating custom as a rationally necessary prerequisite or vehicle for moral and political reasoning. They argue that knowledge of practical ends is impossible without comprehending particular manifestations or actualisations of those ends: practical reason is guided by customary understandings, and reason's role is to contemplate and immerse itself in customs, which will deliver themselves out of apparent internal conflicts. More pragmatic conservatives treat custom as a useful guide for stable practice. They argue that a philosophical understanding of practical aims is possible because and in so far as people customarily assume and accept those ends in everyday life. Reason's role is modest and formal: it will be used to untangle or reorient apparently inconsistent customs, and to release people from a grander (vacuous) vision of the role of reason, from a focus on either certainty or potential instability which would lead them off, quite unnecessarily, on confused paths into a vacuum. The most rationalist of conservatives argue, like their more conservative colleagues, that some customs are an articulation of and prerequisite for moral and political reasoning, but that others are a dangerous shackle on practical wisdom: for the rationalist conservative, the role of reason is to discriminate between these two realms of custom, rejecting those customs which are inimical to moral and political reasoning.

3 The concluding paragraphs of this essay offer a rapid sketch of pragmatist legal positivism and noble lie legal positivism: these two versions of legal positivism are the focus of my forthcoming essays, Raz and the torch-bearers of jurisprudence and Hart and the noble liars.

4 Harrison, Ross, Bentham (London 1983) pp. 168Google Scholar, 7-9, 13, 11 (referring to Leading principles of a constitutional Code, for any State vol. II (1823) of Bowring's The works of Jeremy Bentham (Edinburgh 1838-1843) (hereafter ‘Bowring’), p. 146. Harrison explicitly acknowledges (p. 14) that ‘Once we get beyond the satisfying sound produced by constant invocation of the word ‘reason’ we meet the problem of what actually it is that carries the weight of justification in Bentham's philosophy’. See Bentham's Ladder p. 356 below.

5 Postema, Gerald, Bentham and the common law tradition (Clarendon 1986) pp. 327, 308Google Scholar and generally pp. 302-336. In addition to Harrison's and Postema's studies, the account of Bentham's position which follows is also greatly indebted to Lieberman, David, The Province of Legislation (Cambridge 1989)Google Scholar; to Long, Douglas, Bentham on Liberty: Jeremy Bentham's Idea of Liberty in Relation to his Utilitarianism (Toronto 1977)Google Scholar; to Mack, Mary, Jeremy Bentham: an Odyssey of Ideas (London 1962)Google Scholar; and to Baumgardt, David, Bentham and the Ethics of Today (Princeton 1952).Google Scholar

6 Postema, op. cit. pp. 311, 313, 316, 319,327 (original emphasis).

7 Mack develops her interpretation of Bentham, op. cit. at pp. 129-144, relying on Baumgardt who ‘does great service in exposing the rationalist fiction’ (n. 33 p. 26).

8 Bryce, James, Studies in history and jurisprudence (Oxford: 1901), vol. II, pp. 181–183.Google Scholar

9 Hart, Herbert, ‘The demystification of the law’ (1973) 36 M.L.R. 2, reprinted in Hart, , Essays on Bentham (Oxford 1982), ch. 1, pp. 21–23.Google Scholar

10 Hart Essays on Bentham pp. 28, 27, 28, 2. Other commentators who reject the characterisation of Bentham as a rationalist include Baumgardt (who treats Bentham as a philosophical pragmatist), Mack (whose interpretation is considered below), and Karl Olivecrona (interpreting Bentham's project as an ‘empirical investigation of the facts’, although one undermined by ‘bias’: ‘The will of the sovereign: some reflections on Bentham's concept of ‘a law’’ (1975) 20 American Journal of Jurisprudence 95 at pp. 107-108).

11 See Holdsworth ‘Some aspects of Blackstone and his commentaries’ [1932] C.L.J. 260; Hart's Introduction at p. xx to Bentham, , A comment on the commentaries and a fragment on government Burns, J.H. and H.L.A Hart, (eds.) (London 1977)Google Scholar [hereafter ‘‘Comment”! ‘Fragment“] and Fragment editorial n. 1 p. 526.

12 Fragment p. 526.

13 Literally ‘out of your lungs’: ‘… Veteres avias tibi de pulmone revello’. Fifth Satire, line 92.

14 ‘Prefatory materials’ for the Comment, published as Appendix F in Comment p. 336 at p. 344.

15 Bentham UCL MSS 140 p. 92, quoted by Lieberman at pp. 201, 252. On Bentham's influence on the common law, see Lobban, Michael The Common Law and English Jurisprudence (Oxford 1991) pp. 185–222.Google Scholar

16 On the Benthamite legislator, see Harrison pp. 106-166; Lieberman pp. 257-290; Philip Schofield ‘Jeremy Bentham: Legislator of the World’ (1998) 51 Current Legal Problems pp. 115-147 (reprinted in Gerald Postema (ed.) Bentham: Moral, Political and Legal Philosophy (Aldershot 2002), vol. II, pp. 483-515) at pp. 126-129.

17 Gerald Postema Introduction in Postema (ed.) Bentham vol. II, pp. xi-xxx at p. xxvii, summarising his own position in his Bentham (n. 5, above). For Dinwiddy's counterinterpretation, see p. 355 below.

18 Legislator of the world P. Schofield & J Harris (eds.) (Oxford 1998) p. 116 (Bentham to the Citizens of the US, quoting Dumont with approval) (original emphasis); View of the Rationale of Evidence ch. XIV, s. 6 in Bowring vol. VI, p. 64; Postema Bentham (n. 5, above) pp. 451, 447 and generally chapters 10-13.

19 ‘A total failure in any one of these eight directions does not simply result in bad law; it results in something that is not properly called a legal system at all, except perhaps in the Pickwickian sense in which a void contract can still be said to be one kind of contract’. Lon Fuller, The Morality of Law (London and New Haven, 1969) p. 39. The authority of a profoundly unjust law is ‘in the end no more than the ‘authority’ of the Syndicate, of powerful people who can oblige you to comply with their will on pain of unpleasant consequences, but who cannot create what any self-respecting person would count as a genuine obligation’. John Finnis, ‘On the Incoherence of Legal Positivism’ (1999) 75 Notre Dame Law Review 1597 at p. 1610.

20 So Finnis writes ‘in some limiting cases (e.g. of judges or other officials administering the law) the morally required degree of compliance may amount to full or virtually full compliance, just as if the law in question had been a just enactment’. Natural Law and Natural Rights (Oxford 1980) p. 361.

21 See Finnis, op. cit. pp. 284-285.

22 Haltivy, Elie, La Formation du Radicalisme Philosophique (Paris 1904), vol. I, p. 14.Google Scholar

23 Schumpeter, Joseph, History of Economic Analysis (London 1955) pp. 131–134.Google Scholar Nineteenth century German jurists commonly classified Bentham as a natural law theorist: see Bryce, James, Studies in History and Jurisprudence vol. II, p. 180.Google Scholar

24 Except, perhaps, in its fondness for classification. Francis Jeffrey, the editor and one of the founders of the Edinburgh Review, in reviewing Dumont's publication of Bentham's Principes de Legislation, compares Bentham to ‘the old scholastic doctors who substituted classification for reasoning, and looked upon the ten categories as the most useful of all human inventions’. Edinburgh Review 1804 (April) 1 at p. 17. (Dumont thought this review a ‘scandalous irreverence’: Correspondence Dinwiddy (ed.) Bentham's Collected works, vol, VII, p. 266.) Hatevy writes similarly (vol. I, pp. 49, 52): ‘Est-ce que le gout de la classification ne fait pas tort, chez Bentham, a l’esprit d’analyse? […] Le propre des ecrivains de l’ecole utilitaire, et, entre tous, de Bentham, ce sera d’etre moins de grands inventeurs que de grands arrangeurs d’idees’.

25 Comment pp. 56, 54-55.

26 Dinwiddy, J.R., ‘Adjudication under Bentham's Pannomion’ (1989) 1 Utilitas 283 at p. 289Google Scholar (reprinted in Postema (ed.), Bentham vol. II, pp. 517-523).

27 Rationale of Judicial Evidence Bowring vol. VII, note p. 269 at p. 270; Fragment (Preface) p. 406. Hart, Essays on Bentham p. 29.Google Scholar See also Postema Bentham (n. 5 above), pp. 165-166, 319 and Harrison, Bentham (n. 5 above), pp. 175-176.

28 Bentham is understood to have been an atheist; his Genevan disciple and editor, Etienne Dumont, was a calvinist minister. For an introduction to current debate on the impact or otherwise of Bentham's religious views on his legal theory, see Philip Schofield, ‘Political and Religious Radicalism in the Thought of Jeremy Bentham’ (1999) 20 History of Political Thought 272, James Crimmins ‘Bentham's Religious Radicalism Revisited: a Response to Schofield’ (2001) 22 History of Political Thought 494 and Robert Yelle ‘Bentham's Fictions: Canon and Idolatry in the Genealogy of Law’ (forthcoming).

29 D. Martin Luthers Werke (Weimar 1883-) vol, 11, p. 279—see J.M. Headley, ‘More against Luther: on Laws and the Magistrate’ (1967) 4 Moreana 211 at pp. 215-216 and more generally Headley's Luther's View of Church History (New Haven 1963).

30 The idea of reason as a handmaid is usually traced to Thomas Aquinas, who treats human reasoning as participating in a divinely sustained order, and as the servant to theology in so far as it can lead humans to accept revealed theological truths as complimenting and completing rationally accessible (‘natural’) knowledge. (Aquinas Summa Theologica I q.1 a.5 ad.2, referring in the corpus to Proverbs 9:3 ‘Wisdom sent her maids to invite to the tower’.)

31 Mack Bentham (n. 5 above), p. 23, quoting from Essay on Logic, chapter 6:3, Bowring vol. VIII, p. 241.

32 Bentham ‘consciously new-modelled himself according to his own hedonist principles and offered himself as a case study in human happiness. He was not, as Mill said, a boy all his life. […] A serious joyless boy, he became a gay and whimsical old man’. Mack op. cit. pp. 6-7, quoting from a letter of 1820 (British Library MS Add. 33551, p. 30, 22 September 1820) in which Bentham writes ‘I am 72—am, for one reason or other, gayer than I was at 17. Venerable they call me—every now and then—those who have never seen me. Those who do see me would as soon think of calling a kitten venerable. When [John] Quincy Adams had been with me two or three times, I told him I would thaw some of his ice for him, before I had done with him: and so I did’.

33 See e.g. Morals and Legislation, n. 4 p. 273: ‘The discovery of truth leads to the establishment of order: and the establishment of order fixes and propagates the discovery of truth’. The equivocation between ‘propagating’ and calculating will be central to my argument below.

34 Bentham, , An introduction to the Principles of Morals and Legislation Burns, J.H. and Hart, H.L.A. (eds.) (London 1982)Google Scholar [hereafter ‘‘Morals and Legislation“] p. 25 and n.d. 6, p. 27; Comment p. 198.

35 UCL MSS box 69 p. 155 (see Long Bentham (n. 5 above), p. 69).

36 Rationale of Judicial Evidence book I chapter III. ii: Bowring vol. VI, p. 217 (see Mack Bentham (n. 5 above), p. 155).

37 For an introduction to Benthamite metaphysics (analysis) and his modification of Locke's position, see Harrison (n. 5 above) pp. 47-76; see also Long (focussing on Bentham's analysis of liberty) (n. 5 above) pp. 69-83, and Postema (n. 5 above) pp. 295-301 defending the neutrality of Benthamite analysis.

38 Postema aims to sever Benthamite analysis from utility, arguing that the notion of ‘real’ here is ‘not an ontological notion at all’ (p. 300) and that ‘Bentham's defence of his conception of the nature of law rests not on normatively neutral, analytical or conceptual considerations, but on his analysis of fundamental human and social needs and the ways in which law can be used to meet them’. (p. 301). But see Harrison chapters II-IV, esp pp. 69-74 and the discussion of Bentham's evaluative distinction between ‘real’/acceptable/necessary/logical fictions (in particular legal rights, analysed into duties and in turn to commands backed by a threat of sanctions) and ‘imaginary’ fictions (in particular natural rights) pp. 84-90.

39 Bentham UCL MSS 102, p. 78 (1814); cf. Essay on Logic VII bisection 2: Bowring vol. VIII, p. 247. (See Mack Bentham (n. 5 above), pp. 156-157, pp. 162-163.)

40 Bentham, Preparatory Principles p. 155 (see Mack, Bentham (n. 5 above), p. 152).

41 See p. 349 above.

42 Mack, Bentham (n. 5 above), pp. 12-13.

43 Mack, Bentham (n. 5 above), p. 162.

44 Bentham places on the title page of his unpublished Critical Elements of Jurisprudence a quotation from Bacon's Advancement of Learning', ‘‘all those which have written of laws, have written either as philosophers, or as lawyers, and none as statesmen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars, which give little light because they are so high. For the lawyers, they write according to the states where they live, what is received law, and not what ought to be law; for the wisdom of a lawmaker is one, and of a lawyer is another’. (Francis Bacon, Advancement of Learning (ed. Michael Kieran) (Oxford 2000) p. 180.) Referring to his ‘motto’ from Bacon, Bentham writes (‘Critical elements of jurisprudence: prefat’ UCL MSS 27 p. 12) that his ‘master science’ of Critical Jurisprudence ‘stands between two busy spots, both in a high state of population if not of culture, that of Moral Philosophy above and that of Practical Law beneath. Between the two lies a dreary trackless waste: trackless except where marked by the short, transient and irregular excursions of the inhabitants of the two regions. It is this waste I proposed to take on hand for cultivation: and in so doing to open a communication’ [text ends].

45 Cf. Professor Burns, concluding that, although Bentham admired Bacon, ‘in this as in other cases it may be a matter of some doubt whether the Enlightenment understood what it professed to admire’. J.H. Burns, ‘Dreams and destinations: Jeremy Bentham in 1828’ (1978) I Bentham Newsletter 21 at p. 27.

46 Bentham, Morals and legislation, n. b (‘Principle’) pp. 11-12; First Principles Preparatory to Constitutional Code Schofield, Philip (ed.) (Oxford 1989) p. 230Google Scholar; Harrison pp. 182, 192, acknowledging at pp. 177-178 that reading Bentham's utilitarianism as underpinned by a natural psychology and so a natural law ‘would not be an absurd way’ of reading Bentham, but arguing that ‘Bentham did not wish to make morality itself a natural science; if there is a naturalistic fallacy, then it was not committed by Bentham’.

47 Bentham, Morals and legislation, pp. 15-16. Cf., Harrison, arguing that however far Bentham ‘indulged in the emotivist retreat from the common pursuit of true judgment’ it is fatal for his position ( p. 193 and see pp. 185-186).

48 Bentham, Morals and Legislation, n. b pp. 11-12, n. d p. 26 at p. 28. In an earlier essay developing his argument at more length, Harrison presents this as a ‘transcendental argument’ (‘The only possible morality’ (1976) Aristotelian Society Supplementary Volume 50 pp. 21-42). Harrison's arguments here are not about the source of justificatory concepts, about how those concepts are necessary if judgment of a world is to be possible, but about concepts inherent in a coherent practice of moral judgment—which is why I prefer to characterise them as pragmatist. Baumgardt also implicitly defends Bentham as a philosophical pragmatist, arguing that ‘the preferableness of the utility principle to other hypothetical tenets can be demonstrated, if it can be critically shown that the hypothetical utility principle is less capricious and gives a more coherent explanation of ethical phenomena than its rivals’. Baumgardt, Bentham (n. 5 above) p. 530.

49 Harrison, Bentham (n. 5 above) pp. 173, 172; Bentham, Morals and legislation p. 13.

50 Harrison, op. cit., pp. 173, 176. Harrison relies on Bentham, Morals and legislation p. 31 (‘it is necessary to know first whether a thing is right, in order to know from thence whether it be conformable to the will of God’) and p. 120 (‘the dictates of religion [can] be neither more nor less than the dictates of utility’): these combined extracts put utility and knowledge of ‘the right’ before ‘the will of God’ but do not ground the use of reason in utility.

51 Harrison, op. cit., p. 179.

52 Harrison, op. cit. pp. 182-187 (relying on Morals and Legislation pp. 13-15). Harrison explicitly draws an analogy between his defence of Bentham and Wittgenstein's private language argument in the Philosophical Investigations (section 258) that if it is true that ‘whatever is going to seem right to me is right’ then ‘we can't talk about right’. Harrison develops the analogy and his argument in defence of Bentham in The only possible morality (n. 47 above). I develop my argument against this position in my Raz and the torch-bearers of jurisprudence.

53 Harrison, op. cit., pp. 187-190.

54 Cf. Halevy, n. 23 above, vol. III, p. 373: ‘Si chaque individu est le meilleur juge de son interet et si tous les interets sont harmoniques, toute intervention gouvernementale est condamnee. Si chaque individu est le meilleur juge de son interêt et si les interêts sont contradictoires, il est necessaire que le gouvernement exerce un contrôle sur les manifestations des volontes individuelles’.

55 Halevy, n. 23 above, vol. I, pp. 23-24: ‘[Bentham] pourra bien appliquer, accidentellement, le principe de la fusion des interets. […] Mais la forme primitive et originale que revet, dans sa doctrine, le principle de l’utilite, c’est le principe de l’identification artificielle des interets. Bentham s’adresse au legislateur, pour résoudre, par l’application bien reglee des peines, le grand probleme de la morale, pour identifier l’interêt de l’individu avec l’interêt de la collectivité; son premier ouvrage est une ‘introduction aux principes’ non seulement ‘de la morale’, mais encore et surtout ‘de la législation’ ‘’. See in particular J.R. Dinwiddy, ‘Bentham on private ethics and the principle of utility’ (1982) 36 Revue Internationale de Philosophie 278, reprinted in Postema (ed.), Bentham, vol. I, pp. 233-255 with an introductory summary by Postema at pp. xxi, xxiv; Schofield, n. 16 above; Rosen, F., Jeremy Bentham and Representative Remocracy: a Study of the Constitutional Code (Oxford 1983).Google Scholar

56 Philip Schofield ‘Bentham on the identification of interests’ (1996) 8 Utilitas 223 (reprinted in Postema (ed.), Bentham, vol. I, pp. 435-446); Dinwiddy, op. cit., at pp. 246-249; Rosen, op. cit., p. 59.

57 Dinwiddy, op. cit., p. 297.

58 N. Cooper, ‘The only possible morality’ (1976) Aristotelian Society Supplementary Volume 50 p. 43 at p. 56. Compare Long at p. 136: ‘The object of indirect legislation was to be nothing less than the conditioning and even mutation of human behaviour: the remoulding of human nature, as manifested in the social activities of Bentham's contemporaries, into conformity with the shape of human nature as it ought to be’.

59 Taylor, Charles, Introduction to both volumes of his Philosophical papers (Cambridge 1985) pp. 11–12.Google Scholar

60 Taylor, Charles, ‘Interpretation and the sciences of man’ in Philosophical papers vol. II, pp. 57, 53–54.Google Scholar Cf. MacIntyre, Alasdair, First Principles, Final Ends and Contemporary Philosophical Issues (Milwaukee 1990)Google Scholar; John Finnis Natural Law and Natural Rights p. 15 and n. 37 p. 15. The stained glass analogy is Elizabeth Anscombe’s, quoted by Hilary Putnam in his ‘Thoughts addressed to an analytical Thomist’ (1997) 80 The Monist 487 at p. 491.

61 Bentham gives this as his ‘primary aim’ in the concluding paragraph of the Prefatory materials for his Comment—Appendix F at p. 349.

62 In the concluding paragraph of The Only Possible Morality, Harrison treats Bernard Williams’ suggestion that transcendental arguments involve idealism as ‘a searching objection to transcendental arguments in the philosophy of mind’ but suggests that ‘we do not feel the same objection to the suggestion that moral judgments depend upon us or upon the structure of our minds’ (p. 42). Cf. also Long, Bentham (n. 5 above), p. 121: ‘Having set out to write an introduction to a plan of a penal code, Bentham had been led deeper and deeper into the labyrinthine maze of legal metaphysics by the insatiable hunger of his own intellect for firm and full first principles’.

63 Ross, Alf (trans. Margaret Dutton), On Law and Justice (London 1958) pp. 290–291.Google Scholar

64 Cf. Long, Bentham (n. 5 above), p. 201: ‘Bentham's commitment to the unrestricted growth and continuing criticism of public knowledge testifies to his profound belief in the value of popular enlightenment in political and social affairs. In this sense he remained a philosophe to the last’.

65 On Bentham's requirements for high competence and independence in legislators, see Steintrager, James, Bentham (London 1977)Google Scholar (suggesting at p. 109 that Bentham's legislators would be ‘elected educators of the people’); Fred Rosen, ‘Jeremy Bentham and democratic theory’ (1979) The Bentham Newsletter 46 (reprinted in Postema (ed.), Bentham, vol. I, pp. 419^434, arguing at p. 57 for a weaker interpretation of these requirements). For an interpretation of Bentham's notion of moral aptitude diverging from that offered by Schofield and Rosen, see Postema, Bentham, n. 5 above, pp. 389-393. On Mill's and Austin's approaches to moral authority, see Friedman, Richard B. An Introduction to Mill's Theory of Authority in Schneewind, J.B. (ed.), Mill: a Collection of Critical Essays (Macmillan, London 1968) pp. 379–425.Google Scholar

66 On the main tenets of positivist philosophy, see Leslek Kolakowski, Positivist philosophy: from Hume to the Vienna Circle (revised trans. Harmondsworth 1972), pp. 9-19.

67 For influential presentations of Bentham as ‘despotic’ or ‘authoritarian’, see Halevy, vol. III, p. 335: ‘Le tégislateur est, dans la societe, le grand dispensateur des plaisirs et des peines. C’est lui qui crée l’ordre moral, l’équilibre des interets. La societe est l’oeuvre de ses artifices’. Allen, C.K. Law in the making (Oxford 1964) pp. 13–15Google Scholar: ‘Bentham, like Rousseau, ‘compels men to be free’. [… He] hardly stopped to inquire whether material benefits necessarily constitute happiness, or indeed, whether they are benefits at all unless they satisfy conscious desires. [… T]he apostle of individualism was destined to become the founder of Statesocialism’. Long also concludes (Bentham n. 5 above, pp. ix, 9, 10, largely concurring with Halevy) that Bentham ‘produced what can only be called an illiberal defence of liberty’: ‘What Bentham called liberty others would call subjection: enslavement to the dictates of an institutionalised theory of human nature’. On the authoritarianism of the later Luther, cf. Acton's argument that in the Zwinglian schism, the rise of the Anabaptists, and the Peasants’ War, ‘Luther recognised […] the fruits of his theory of the right of private judgment and of dissent, and the moment had arrived to secure his Church against the application of the same dissolving principles which had served him to break off his allegiance to Rome’. ‘The protestant theory of persecution’ (March 1862) The Rambler, reprinted in Acton, , History of Freedom and other Essays, Figgis and Laurence, (eds.) (London 1907) pp. 150-187 at p. 155).Google Scholar

68 Introduction to Essays on Bentham at p. 3.

69 Interpreters like Hart and Olivecrona are themselves confused, argues Postema in so far as they treat Bentham's refusal to recognise the common law as law as a consequence of Bentham's focussing his analysis on a confused idea of law as the naked expression of sovereign will. (‘The Expositor, the Censor, and the Common Law’ (1979) 9 Canadian Journal of Philosophy 643 at pp. 667, 645, building on Long's argument that ‘Bentham's recurrent demand for the conversion of judge-made law into statute law, first explicitly stated in the Comment, was based on the belief that, to be validated by habitual obedience and improved by constructive criticism, that is, to be utilitarian, the law must be made accessible, understandable, and justifiable to as many citizens as possible’. (Long, Bentham n. 5 above, p. 201, quoted by Postema at p. 650).)

70 Rationale of judicial evidence Bowring vol. VII, note p. 269 at p. 270. See p. 356 above.

71 See UCL MSS 27 where Bentham writes (p. 163) that ‘Censorial is to expository what chemistry is to natural history’ and in a marginal note (p. 169) that ‘the way is to refer to books of mathematics in books of natural philosophy—the way should be to refer to books of natural philosophy in books of mathematics’. See also Long, Bentham, n. 5 above, p. 13: ‘It was to the perfection of knowledge in all its forms and applications that Bentham dedicated his life's work. […] The active process of advancing the cause of Enlightenment began with censure—the criticism of established ideas. In defence of his censorial stance, however, the philosophe must surely become his own expositor. The perfection of knowledge was to be achieved by this synthesis of the censorial and expositorial functions’. Harrison, Bentham, n. 5 above, p. 48: ‘Something was needed which would clarify the whole area, which would show both what law really was, and also how it really ought to be. […] Bentham wants to show how things really are, and how they are falsely or misleadingly described by others’.

72 Postema, Bentham, n. 5 above, at p. 315, quoting UCL MSS 69 pp. 142, 99, 102.

73 Postema, ‘Bentham's Early Reflections on Law, Justice and Adjudication’ (1982) 36 Revue Internationale de Philosophie 219 at pp. 239–240Google Scholar (reprinted in Postema (ed.), Bentham, vol. II, pp. 459-481) quoting Bentham UCL MSS 69 p. 199.

74 Comment pp. 160-161, 320; Lieberman, Legislation, n. 5 above, p. 244-245; Fragment Appendix E p. 320.

75 UCL MSS 79 pp. 15-16, quoted by Lieberman, op. cit., at p. 251.

76 Comment p. 95; n. g p. 251; pp. 206-215; A general view of a complete code of laws, ch. XXXI ‘On the integrality of the code of laws’: Bowring vol. III p. 206; Lieberman op. cit., pp. 236-244.

77 Bentham, Codification proposal (London 1830) pp. 16, 13-14Google Scholar; First Principles Preparatory to a Constitutional Code ed Philip Schofield (Oxford 1989) p. 180; Schofield, Legislator of the World n. 16 above.

78 Laws in General p. 241, 232-3; Lieberman op. cit, pp. 278-279, 282; Schofield, op. cit., pp. 127-128.

79 Cf. Simmonds, Nigel, The Decline of Juridical Reason (Manchester 1984) esp. pp. 117–118Google Scholar; Dworkin, Ronald, Law's Empire (London 1986).Google Scholar N.B. this point has no necessary link with the doctrine of precedent: see in particular Goodhart ‘Precedent in English and Continental Law’ (1934) 50 L.Q.R. 40, at pp. 53-54.

80 Postema, Bentham, n. 5 above, pp. 456-457.

81 Above, n. 26.

82 A general view of a complete code of laws, ch. XXXI ‘On the Integrality of the Code of Laws’: Bowring vol. III p. 206; UCL MSS 69 pp. 142, 143, quoted by Lieberman, Legislation, n. 5 above, pp. 225-226. My account of Bentham's notion of a ‘natural arrangement’ of law is deeply indebted to Lieberman chapters 11-13.

83 Laws in General pp. 152, 153, 154, 193. On fictions, see p. 359 above.

84 Comment pp. 43, 199, 223.

85 Section II, above.

86 The common law is presented, objects Bentham, as if ‘the Oracles were not the words of Pythia that spake them, but her words were the evidence of an Apollo whose oracles they were’. Comment p. 195. See Robert Yelle ‘Bentham's Fictions: Canon and Idolatry in the Genealogy of Law’ (forthcoming), arguing that Bentham's Auto-Icon was ‘like its verbal counterpart the code, a critique of false images, and a mode of iconoclasm’.

87 Fragment (Preface) p. 414. Bentham credits Blackstone's efforts as surpassing ‘anything in that way that has hitherto appeared’: Fragment pp. 414-415 (Lieberman, Legislation, n. 5 above, pp. 258-259).

88 On the Digest, see Lieberman, op. cit., pp. 241-256.

89 ‘Turnpike Act’ UCL MSS 95 p. 32. The box is dated ‘1770-1774?’ and by A. Taylor Milne (Catalogue of the Manuscripts of Jeremy Bentham in the Library of University College London (2nd edn., London 1962)) as ‘c. 1780’.

90 Taylor Milne, op. cit.

91 ‘Turnpike Act’ UCL MSS 27 p. 161.

92 ‘Turnpike Act’ UCL MSS 27 p. 161.

93 ‘Turnpike Act’ UCL MSS 27 p. 123; Lieberman, Legislation, n. 5 above, pp. 262-263.

94 ‘Turnpike Act’ UCL MSS 27 p. 161.

95 Fragment p. 415.

96 ‘Law in General: Introduction—law of nature’ c. 1780 UCL MSS 95 p. 21.

97 Fragment (Preface) pp. 415-416, 417.

98 Fragment (Preface) p. 416; Morals and legislation pp. 273-274; Lieberman, op. cit., pp. 263264, 282.

99 Fragment p. 501 (Bentham's emphasis); Matthew 11:3 and 11:10 (quoting Malachi 3:1).

100 ‘Legal Duty and Obligation’, in Essays on Bentham, text and n. 36 at p. 137.

101 Postema The expositor, n. 68 above, p. 669.

102 Fragment, Preface p. 413, chapter IV p. 480.

103 ‘Relying on the discernment and the justice of a numerous and powerful public, shielded by its countenance from the shafts of the hypocrite and the bigot, indifferent to the idle whistling of that harmless storm, they would scrutinise established institutions, and current or received opinions, fearlessly, but coolly; with the freedom which is imperiously demanded by general utility, but without the antipathy which is begotten by the dread of persecution, and which is scarcely less adverse than ‘the love of things ancient’ to the rapid advancement of science’. Austin The Province of Jurisprudence Determined Lecture III, W. Rumble (ed.) (Cambridge 1995) p. 73.

104 ‘Why’, asks Plato's Meno, ‘on what lines will you look, Socrates, for a thing of whose nature you know nothing at all? Pray, what sort of thing, amongst those that you know not, will you treat us to as the object of your search? Or even supposing, at the best, that you hit upon it, how will you know it is the thing you did not know?’ Meno (80d) trans. Lamb. For an introduction to classical debates about the origins of knowledge and in particular the the relation between received opinions/tradition and philosophical understanding, see Scott, Dominic, Recollection and Experience: Plato's Theory of Learning and its Successors (Cambridge 1995).Google Scholar

105 Simmonds Central Issues in Jurisprudence (2nd edn., London 2002) pp. 238-241; Finnis Natural Law and Natural Rights pp. 18, 275, 357-365.

106 See e.g. Onora O’Neill Bounds of Justice (Cambridge University Press, 2000).

107 Nigel Simmonds ‘The Ethics of Legal Positivism’ (1999) 2 Legal Ethics 87 at p. 101. (See also Simmonds Central Issues (2nd edn) pp. 162-179.)

108 See e.g. Simon Blackburn Ruling Passions: a Theory of Practical Reasoning (OUP 1998).

109 I am (not uncontroversially) equating intuitionism with non-cognitivism. Cf. MacIntyre After Virtue (Duckworth 1981) chapter 2, pp. 17-18: ‘And what if two observers disagree? Then, so the answer went, according to Keynes, either the two were focusing on different subject matters, without recognizing this, or one had perceptions superior to the other. But of course, as Keynes tells us, what was really happening was something quite other: ‘In practice, victory was with those who could speak with the greatest appearance of clear, undoubting conviction and could best use the accents of infallibility’ and Keynes goes on to describe the effectiveness of Moore's gasps of incredulity and head-shaking, of Strachey's grim silences and of Lowes Dickinson's shrugs’.

110 In my Raz and the torchbearers of jurisprudence, I argue that a pragmatist legal positivist will find that her position also reduces to that of either a natural lawyer or a noble liar.

111 Jeremy Waldron (on Waluchow), ‘Normative (or Ethical) Positivism” in J.L. Coleman (ed.), Hart's Postscript (Oxford 2001), p. 433 and n. 73.