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The Common Law and Benthamic Praxis

Published online by Cambridge University Press:  09 June 2015

James E. Crimmins
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Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 1 , January 1990 , pp. 145 - 159
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Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

For their helpful comments on an earlier draft of this essay I am indebted to Margaret R. Moore of York University and Douglas G. Long of the University of Western Ontario.

* Postema, G.J. Bentham and the Common Law Tradition, Clarendon Law Series, 1986; corrected edition, New York: Clarendon Press, 1989, pp. 16 Google Scholar, 490. Page numbers given in brackets in the text.

1. The Collected Works of Jeremy Bentham (1968 –), General Editors: Burns, J.H., Dinwiddy, J.R., and Rosen, F., in progress. Henceforth CW. On the editorial problems associated with CW Google Scholar see Burns, J.H., “The Bentham Project”, in Baird, J.D. (ed.), Editing Texts in the Romantic Period (Toronto: Univ. of Toronto Press, 1972), 73–87 Google Scholar.

2. The Works of Jeremy Bentham, Published under the Superintendence of his Executor, John Bowring (1838–43). Henceforth Works. G.F. Bartle argues that Bowring had little direct responsibility for the individual texts published in the Works (or, it seems, for the detailed arrangement of the volumes which he left to the publisher William Tait), though he did determine what was to be included and what left out: “Jeremy Bentham & John Bowring: A Study of the Relationship between Bentham and the Editor of his Collected Works” (1963) 36/93 Bulletin of the Institute of Historical Research London University, 34–5.

3. Empson, W. (1843), in 78 Edinburgh Review, 516.Google Scholar The incompleteness can in part be explained by the offensive nature of some aspects of Bentham’s writings, esp. on religion and homosexuality. The principal works on religion are Church-of-Englandism and its Catechism Examined (1818); An Analysis of the Influence of Natural Religion on the Temporal Happiness of Mankind (1822), by “Philip Beauchamp” [ed. Grote, G. Google Scholar]; and Not Paul, but Jesus (1823), by “Gamaliel Smith”. A sample of Bentham’s views on homosexuality (ca. 1785) can be gleaned from Crompton, L. (ed.), “Jeremy Bentham’s Essay on ‘Paederasty’”, two parts (1978), 3/4 Journal of Homosexuality, 383–405, and 4/1, 91–107.Google Scholar

4. The Bentham MSS at University College, London are indexed in the catalogues compiled by Milne, A.T., Catalogue of the Manuscripts of Jeremy Bentham in the Library of University College, London (2nd edn., London: Athlone Press, 1962);Google Scholar and Long, D.G., The Manuscripts of Jeremy Bentham: A Chronological Index to the Collection in the Library of University College London (unpublished, printed and distributed by the Bentham Committee, University College, London, 1982).Google Scholar

5. Prior to the establishment of the Bentham Project few of Bentham’s writings were available in modern editions, e.g. Bentham, J., A Comment on the Commentaries, ed. Everett, C.W. (Oxford: Clarendon Press, 1928);CrossRefGoogle Scholar The Theory of Legislation, ed. Ogden, C.K. (London: Kegan Paul, Trench, Trubner & Co., 1931);Google Scholar Bentham’s Theoiy of Fictions, ed. Ogden, C.K. (London: Kegan Paul, Trench, Trubner & Co., 1932);Google Scholar Bentham’s Handbook of Political Fallacies, ed. Larrabee, H.A. (Baltimore: Johns Hopkins Press, 1952);Google Scholar and Jeremy Bentham’s Economic Writings, ed. Stark, W. (London: George Allen & Unwin, 1952–4).Google Scholar

6. The Correspondence of Jeremy Bentham (CW) I–II (1968), ed. Sprigge, T.L.S. (1968);Google Scholar III (1971), ed. I.R. Christie; IV–V (1981), ed. A.T. Milne; VI–VII (1984, 1988), ed. J.R. Dinwiddy; and VIII–IX (1988, 1990), ed. S.R. Conway.

7. An Introduction to the Principles of Morals and Legislation (1970), ed. Burns, J.H. and Hart, H.L.A. Google Scholar Of Laws in General (1970), ed. Hart, H.L.A.;Google Scholar A Comment on the Commentaries and A Fragment on Government (1977), ed. J.H. Burns, J.H. and Hart, H.L.A.;Google Scholar Chrestomathia (1983), ed. Smith, M.J. and Burston, W.H.;Google Scholar Constitutional Code I (1983), ed. Rosen, F. and Burns, J.H.;Google Scholar Deontology together with A Table of the Springs of Action and Article on Utilitarianism (1983), ed. Goldworth, A.;Google Scholar and First Principles Preparatory to Constitutional Code (1989),ed. Schofield, T.P..Google Scholar

8. Additional volumes for CW are underway on Bentham’s “Preparatory Principles” of the 1770s, critique of religion, the political writings of the 1790s, and assorted features of his work on legislation, evidence, and constitutional codification.

9. See the continuing comprehensive bibliography included in Utilitas: A Journal of Utilitarian Studies, first published May 1989, and its forerunner (together with The Mill News Letter, 1966–88) The Bentham Newsletter, 1978–88.

10. Long, D.G., Bentham on Liberty: Jeremy Bentham’s Idea of Liberty in Relation to his Utilitarianism (Toronto, Univ. of Toronto Press, 1977);Google Scholar Rosenblum, N., Bentham’s Theory of the Modern State (Cambridge, Mass: Harvard Univ. Press, 1978);CrossRefGoogle Scholar Hume, L.J., Bentham and Bureaucracy (Cambridge: Cambridge Univ. Press, 1981);CrossRefGoogle Scholar Bahmueller, C.F., The National Charity Company: Jeremy Bentham’s Silent Revolution (Berkeley: Univ. of California Press, 1981);Google Scholar and Rosen, F., >Jeremy Bentham and Representative Democracy: A Study of The Constitutional Code (Oxford: Clarendon Press, 1983).Google Scholar In addition, L.C. Boralevi has discussed several aspects of Bentham’s supposed “liberalism” (notably his attitude towards and concerns for women, homosexuals, Jews, the indigent, slaves and animals) in Bentham and the Oppressed (Berlin and New York: Walter de Gruyter, 1984), and for Bentham’s liberal attitude toward sexual offences also see Crompton, L., Byron and Greek Love: Homophobia in Nineteenth-Century England (Berkeley: Univ. of California Press, 1985), esp. 38–62, 251–83.Google Scholar Finally, Williford, M. (among others) has dealt with Bentham’s extensive involvement in the drafting of constitutions for Latin American and Mediterranean countries in the 1820s, Bentham on Spanish America: An Account of his Letters and Proposals to the New World (Baton Rouge: Louisiana State Univ. Press, 1980).Google Scholar

11. See Lyons, D., In the Interest of the Governed: A Study in Bentham’s Philosophy of Utility and Law (Oxford: Clarendon Press, 1973);Google Scholar Hart, H.L.A., Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982);CrossRefGoogle Scholar and Twining, W.L., Theories of Evidence: Bentham and Wigmore (London: Weidenfield and Nicolson, 1985).Google Scholar Lyons’s work on Bentham’s moral thought focuses almost exclusively on the Introduction (supra n. 7). A more substantial, if dated study is D. Baumgardt, Bentham and the Ethics of Today (New Jersey: Princeton Univ. Press, 1952).

12. For example, Long’s interpretation of the “Newtonian” character of Bentham’s legislative science and its concomitant view of human nature (as negative, essentially passive and exclusively reactive) is tackled on the grounds of both exaggeration and incompleteness (162–5). Hume is reproached for adhering to the conventional view of Bentham’s positivist jurisprudence (160,218–19) – with its emphasis on the centrality of the concept of “offence” for structuring a code of laws (176) – and for rendering Bentham’s theory of adjudication in strictly mechanical terms (404). Hart’s conventional account of Bentham on the foundations of law is criticized (see esp. 256–60), together with his perception of the conflict between utilitarianism and legal positivism in Bentham’s jurisprudence (303,452), and his view of Bentham as an advocate of artificially identifying interests (361, 389–90), especially where judges and other public officials are concerned (392). I respond in general terms to a few of these charges in what follows.

13. Bentham, Fragment on Government (CW) at 440 n.

14. As to the first two volumes, Bentham states “they might, without any great loss to the science of Human Nature, be dispensed with”. He even thought that the same could be said “of a considerable part” of volume three, but that “after all retrenchments, there will still remain enough to have laid mankind under indelible obligations”. Ibid., 440 n.

15. Ibid. It is likely that Bentham was mistaken and that he had in mind Hume’s Enquiry Concerning the Principles of Morals (1751), sec. V “Why utility pleases”.

16. Bentham, Deontology (CW) at 57.

17. Ibid., 290.

18. Works VIII at 128 n.

19. Bentham’s essays “On the Influence of Time and Place in Matters of Legislation” and “Of Indirect Legislation” have been edited for CW by C. Bahmueller and H. Weiting Jr. but not yet published.

20. For a discussion of this aspect of Bentham’s work see Long, Bentham on Liberty, 136 ff.

21. For the influence of Hume, Helvétius and Beccaria on Bentham see Mack, M., Jeremy Bentham: An Odyssey of Ideas 1748–1799 (London: Heinemann, 1962), Ch.3;Google Scholar Rosenblum, Bentham’s Theory of the Modern State, Ch.2; Hart, “Bentham and Beccaria” in Essays on Bentham; and Harrison, R., Bentham (London: Routledge & Kegan Paul, 1983) esp. Ch.5.Google Scholar

22. In support of this Postema cites the two prefaces to Fragment on Government (CIV), esp. the second, and also Comment on the Commentaries (CW), App. F.

23. This is evident from Bentham’s letter to Ashburton, quoted in Of Laws in General (CW), App. E, 310.

24. See Bentham MSS UC 69/6; UC 63/4; and Of Laws in General (CW) Ch. 13, and UC 69/159 – all cited by Postema, 276–7.

25. Bentham, Comment on the Commentaries (CW), App. F, 346, cited Postema, 277–8.

26. C. Silver in 99/1 Ethics (1988), 165.

27. See, for example, Bentham, Comment on the Commentaries (CW), 185.

28. Ibid. 306 n, quoted Postema, 227.

29. It would appear that Postema’s claim fails to fulfill the first of Quentin Skinner’s three necessary conditions for substantiating a connection of “influence”: (i) that there should be a genuine similarity between the ideas or doctrines expounded by two given writers; (ii) writer A could not have found the doctrine in any other source than writer B; and (iii) that the probability of the similarity being random should be very low. See “Meaning and Understanding in the History of Ideas” (1969) 8 History and Theory, 26.Google Scholar

30. Postema’s argument is that what Bentham has to say of the role of the judge in Equity Dispatch Court, Works III, 416, can be treated as a model for his general theory of adjudication.

31. Works X, 511, and Constitutional Code (CW) I, 322, quoted by Postema, 279.

32. Bentham MSS UC 50/124, quoted by Postema, 193. The same view is reiterated by Bentham in an unpublished fragment also dating from ca. 1780, “Law Common v. Statute”, UC 63/49.

33. See esp. Blackstone, W., Commentaries on the Law of England (1767) 1, 69–71.Google Scholar

34. Bentham, , Comment on the Commentaries (CW), 196, quoted Postema, 195.Google Scholar

35. See Bentham, , Comment on the Commentaries (CW), 204–5.Google Scholar

36. Bentham, , Fragment on Government (CW), preface, 409.Google Scholar

37. Dinwiddy, J.R., “Adjudication under Bentham’s Pannomion” (1989) 1/2 Utilitas: A Journal of Utilitarian Studies, 283–9.CrossRefGoogle Scholar

38. Much of the evidence can be found in Bentham, Constitutional Code, Works IX, 504–11, esp. 508.

39. Ibid., 533 (emphasis added), quoted by Dinwiddy, “Adjudication under Bentham’s Pannomion”, 287–8.

40. Silver in 99/1 Ethics (1988), 166.

41. See, for example, Stephen, L., The English Utilitarians (London: London School of Economics and Political Science, 1950) 1,179;Google Scholar and Halevy, E., The Growth of Philosophic Radicalism (Clifton, N.J.: Agustus M. Kelley, 1972),Google Scholar 6. Indeed, I may be guilty of this myself, see Crimmins, J.E., Secular Utilitarianism: Social Science and the Critique of Religion in the Thought of Jeremy Bentham (Oxford, Clarendon Press, 1990), Ch. 1.CrossRefGoogle Scholar

42. Postema has in mind Long, Bentham on Liberty, esp. 18,23–5,82,115–8, 147–9,207–20. See Postema, 162–7.

43. For Bentham’s Utopian vision see Bentham MSS UC 142/200.

44. Bentham MSS UC 142/200 (emphasis added).

45. Bentham, , Fragment on Government (CW), 406, quoted Postema, 166.Google Scholar

46. For a discussion of the variety of ways in which Newton was viewed by the eighteenth century see Buchdahl, G., The Image of Newton and Locke in the Age of Reason (London, Sheed & Ward, 1961).Google Scholar

47. Bentham MSS UC 157/32.

48. Schwartz, R.B., Samuel Johnson and the New Science (Madison: Univ. of Wisconsin Press, 1971), 61.Google Scholar

49. What distinguishes Bentham’s own efforts from Newton’s, and what is worthy of special consideration, however, is the central role he gave to metaphysics (definition, clarification, classification), for which see the essays on ontology, logic, and language in Works VIII.

50. Fuller, L.L., “Human Interaction and the Law”, in Winston, K.I. (ed.), Principles of Order: Selected Essays of Lon L. Fuller (Durham: Duke Univ. Press, 1981);Google Scholar and The Morality of Law (New Haven: Yale Univ. Press, 1964).Google Scholar

51. Works I, 322, quoted Postema, 175.

52. See, for example, Bentham, Of Laws in General (CW) Chs. 1 –2.

53. Bentham, , A General View of a Complete Code of Laws, Works 3, 163.Google Scholar

54. The “managerial” conception of law, which has often been attributed to Bentham, is exhibited, perhaps at its crudest, in Bahmueller’s always stimulating if overly judgemental examination of Bentham’s pauper management plan of 1797 in The National Charity Company; for a brief but concise critique of which see Lieberman, D., “Historiographical Review: From Bentham to Benthamism” (1985) 28/1 The Historical Journal, 199–224,esp. 210–14.Google Scholar

55. Bentham, Introduction to the Principles of Morals and Legislation (CW), 290.

56. Steintrager, J., “Language and Politics: Bentham on Religion” (1980) 4 The Bentham Newsletter 4–20.Google Scholar

57. Bentham, Introduction to the Principles of Morals and Legislation (CW) at 293. See also Bentham, Method and Leading Features of an Institute of Political Economy (1801 –04), Jeremy Bentham’s Economic Writings III, 311: “That the uncoerced and unenlightened propensities and powers of individuals are not adequate to the end without the control and guidance of the legislator is a matter of fact of which the evidence of history, the nature of man, and the existence of political society are so many proofs”.

58. T.W. Hutchison has suggested that a transition took place in Bentham’s political economy, from the economic liberalism one usually associates with Adam Smith — and which gives great weight to the injunction to government to “Be Quiet!” — to an interventionist philosophy more in tune with his attitude to social policy generally. See “Bentham as an Economist” (1956) 66 Economics Journal, 288–306.Google Scholar For the injunction “Be Quiet!” see Bentham, , Institute of Political Economy, Jeremy Bentham’s Economic Writings 3, 333.Google Scholar

59. P.J. Kelly argues that none of the schemes suggested in these works “are direct attempts at producing the maximum social well-being”, but “are best seen as attempts to maintain a stable pattern of expectations”. See “Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham’s Economic Thought” (1989) 1/1 Utilitas: A Journal of Utilitarian Studies, 62–81.Google Scholar

60. Jeremy Bentham’s Economic Writings III, 257–58. For a discussion see Hutchison, , “Bentham as an Economist”, 295–99,Google Scholar 302–4, and Kelly, “Utilitarianism and Distributive Justice” passim. D.G. Long’s interpretation of these competing tendencies in Bentham’s thought is that Bentham had a kind of Disraelian “two-nations” view of English society which determined two quite different approaches and sets of limits on government interference. See “Bentham on Property”, in Flanagan, T.M. and Parel, A. (eds), Theories of Property: Aristotle to the Present (Toronto: Univ. of Toronro Press, 1978), 221–54.Google Scholar

61. On Bentham’s notorious Panopticon — a penitentiary for “grinding rogues honest and idle men industrious” [Works IV, 342) — see Himmelfarb, G., Victorian Minds (New York: Knopf, 1968), Ch.2,Google Scholar and “Bentham’s Utopia: The National Charity Company” (1970), 10/1 The Journal of British Studies, 80–125;Google Scholar L.J. Hume, “Bentham’s Panopticon: An Administrative History”, two parts (1973–74), 15/61, Historical Studies 703–21, and 16/62, 36–54; and Semple, J., “Bentham’s Haunted House” (1987) 11 The Bentham Newsletter, 35–44.Google Scholar

62. Long, “Bentham on Property”, 244.

63. Bentham MSS UC 152b/332–333.

64. Long, “Bentham on Property”, 244.

65. Though he does not share my conclusion, in arriving at it I have benefitted from an exchange of views with Paul Kelly.