Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-30T17:26:52.587Z Has data issue: false hasContentIssue false
  • English
  • Français

Bentham on the Identification of Interests*

Published online by Cambridge University Press:  26 January 2009

Philip Schofield
Get access Rights & Permissions [Opens in a new window]

Extract

It has been commonly accepted that Bentham, in his theory of constitutional law, aimed to replace the natural opposition of interests which existed between rulers and subjects with an artificial identification or junction of interests. This was brought about by making it the self-interest of rulers to act in such a way as to promote the general interest. In other words, any sinister interest to which the ruler was exposed, that is any desire he might feel to sacrifice the general interest to his own particular interest, had to be nullified: this would leave that part of his interest which coincided with the general interest as the only interest by which his conduct could be determined.

Type
Research Article
Information
Utilitas , Volume 8 , Issue 2 , July 1996 , pp. 223 - 234
Copyright
Copyright © Cambridge University Press 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I am grateful to Professor Fred Rosen and Mr Oren Ben Dor for commenting on a draft of this paper.

References

1 See for instance Halévy, E., The Growth of Philosophic Radicalism, trans. Morris, M., new edn., London, 1972, pp. 404–6Google Scholar; Dinwiddy, J. R., Bentham, Oxford, 1989, pp. 79–80Google Scholar; and for a more detailed discussion Harrison, R., Bentham, London, 1983, especially pp. 106–34, 225–62Google Scholar. The locus classicus for this interpretation is a passage written for ‘Constitutional Code Rationale’: see First Principles preparatory to Constitutional Code, ed. Schofield, P., Oxford, 1989 (The Collected Works of Jeremy Bentham), pp. 232–6Google Scholar. The passage originally appeared in The Works of Jeremy Bentham, ed. Bowring, J., 11 vols., Edinburgh, 1843, ix. 5–8Google Scholar.

2 Postema, G. J., Bentham and the Common Law Tradition, Oxford, 1986, pp. 361–2, 389–90Google Scholar.

3 Bentham himself did not use the plural ‘aptitudes’, but referred to moral, intellectual, and active ‘aptitude’.

4 Postema, pp. 390–3. This, continues Postema, , must lead also to the abandonment of ‘the standard understanding of … Bentham's egoism’, namely that all actions are motivated by some form of narrow self-interest (p. 377)Google Scholar. A revised interpretation of Bentham's psychology is, however, perfectly compatible with the artificial identification of interests. Though Bentham regarded self-interest as usually the predominant motive, he nevertheless did not deny the influence of social interest – the pleasure a person felt in seeing someone else happy. The point was that in so far as constitutional law was concerned, the legislator had to assume the worst – ‘In the framing of laws, suspicion can not possibly be carried to too high a pitch’ – he had to assume that the functionary would act according to his self-interest whatever the consequence for the general interest. See First Principles (CW) pp. 14–15.

5 Postema, pp. 393–402.

6 Ibid., p. 361.

7 Bentham's most detailed and systematic account of aptitude is in ‘Economy as applied to Office’ and ‘Identification of Interests’: see First Principles (CW), pp. 1–122 and 123–47 respectively. Here Bentham divided aptitude into three branches or elements: 1. moral aptitude; 2. intellectual aptitude (which was again divided into scientific aptitude or knowledge, and judicial aptitude or judgement); and 3. active aptitude. Aptitude has been largely overlooked in the scholarly literature: the fullest account is Rosen, F., Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code, Oxford, 1983, pp. 58–67Google Scholar.

8 The maximization of official aptitude was one of two ‘subordinate’ ends of government identified by Bentham: the other was the minimization of expense. Bentham intended expense to be understood not merely as pecuniary expense, but as evil generally, that is any act which diminished the greatest happiness. The two subordinate ends were complementary: to maximize aptitude and to minimize expense was to increase good and diminish evil. Bentham believed that the same measure would often promote both ends. For instance, on discussing the possibility of establishing a public examination system, he commented: ‘On this occasion as on so many others, the interests of appropriate aptitude and the interests of frugality will be seen going hand in hand: the cheapest plan it will be seen is not only the cheapest but in every other respect the best.’ See First Principles (CW), pp. 4–5, 85.

9 Ibid., pp. 4–5.

10 Ibid., p. 125.

11 Ibid., p. 17.

12 Ibid., pp. 132–3. For a discussion of Bentham's theory of popular sovereignty see Rosen, , Bentham and Democracy, pp. 48–54Google Scholar.

13 First Principles (CW), pp. 135–6. Within the constitutional framework of a representative democracy, Bentham recommended a host of further securities for moral aptitude: (1) the minimization of the functionary's power; (2) the minimization of public money at his disposal; (3) the minimization of his pay; (4) the exclusion of factitious dignity (these reduced the means he might have at his disposal to corrupt others); (5) the maximization of legal responsibility (he was made legally punishable for any misdeed he committed); and (6) the maximization of moral responsibility (his acts were to be given maximum publicity so that in the event of his committing a misdeed or neglecting to perform a duty he would stand open to censure and loss of reputation in the eyes of the people acting as members of the public opinion tribunal). See ibid., pp. 30–76.

14 See ibid., pp. 77–94.

15 Securities against Misrule and other Constitutional Writings for Tripoli and Greece, ed. Schofield, P., Oxford, 1990 (CW), p. 267Google Scholar.

16 Ibid., pp. 272–3.

17 Bentham indeed condemns such a reliance in his discussion of delusion: ‘An abundant source of delusion is the conception or opinion by which, in men in general, greater degrees of strength are ascribed to the social affection than is generally capable of being possessed by it. Of this error, those by whom power is exercised and abused have all the benefit.’ See First Principles (CW), pp. 261–7.

18 Colonies, Commerce, and Constitutional Law: Rid Yourselves of Ultramaria and other writings on Spain and Spanish America, ed. Schofield, P., Oxford, 1995 (CW), pp. 35–6Google Scholar.

19 Cf. Rosen, , Bentham and Democracy, p. 59Google Scholar: ‘for Bentham, moral aptitude means maximizing the responsibility of rulers to the ruled by means of punishment or the threat of punishment’.

20 See for instance First Principles (CW), pp. 71–3, where Bentham explained how the self-interest of each member of the ‘subject many’ naturally coincided with the universal interest, whereas that of the ‘ruling few’ naturally opposed it.

21 Ibid., p. 270.

22 Ibid., p. 144.

23 See, e.g., Bentham Papers, UC xxxvi. 5 (26 April 1821): ‘As to appropriate moral aptitude. If, in the breast of the individual in question, instead of appropriate aptitude in this shape, the opposite inaptitude have place, the result will be that, by any extra-ordinary degree of appropriate intellectual aptitude and appropriate active talent, the aggregate quantity of appropriate aptitude, so far from being augmented, will be diminished. … the greater the degree of appropriate intellectual aptitude and correspondent active talent the individual possesses, the greater is the degree of facility he will possess with respect to the carrying into effect that disposition of his which, by the supposition, has place: viz. the disposition to make sacrifice of the greatest good of the greatest number to his own private interest, according to the conception that happens to be entertained by him in relation to it.’

24 See Rosen, , Bentham, Byron, and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought, Oxford, 1992, p. 69CrossRefGoogle Scholar: ‘A system of representative government was a necessary though not a sufficient condition for the identification of the interests of rulers and ruled’.

25 On publicity generally in Bentham's later political thought see Rosen, , Bentham and Democracy, pp. 19–40Google Scholar, and Schofield, P., ‘Bentham on Public Opinion and the Press’, in Economical with the Truth: The Law and the Media in a Democratic Society, ed. Kingsford-Smith, D. and Oliver, D., Oxford, 1990, pp. 95–108Google Scholar.

26 In the essay ‘Securities against Misrule’ where Bentham drew up a charter containing detailed provisions of reform which he hoped the Pasha of Tripoli would be induced to promulgate, he argued that the only remedy for misrule was publicity, but this on the understanding that the form of government was to remain unchanged. Better still would have been the introduction of representative democracy. See Securities against Misrule (CW), pp. 23–111.

27 Ibid., pp. 54–5, 60–4.

28 First Principles (CW), pp. 301–3, 306–9.

29 Ibid., p. 291.

30 See Securities against Misrule (CW), p. 65.

31 Postema, pp. 349, 403–6.

32 See, for instance, ibid., pp. 390–1.

33 See, for instance, First Principles (CW), p. 192: ‘In every political community, every member has a share in the aggregate interest composed of that of all the members of the community taken together – in a word the universal interest. But in every community, every member has a particular interest in which the rest of the members have no share – and on every one of a multitude of occasions this interest is liable to be in a state of opposition to the universal interest; in such sort that on each such occasion his felicity can not receive encrease, but the aggregate felicity of the rest of the members must in a certain proportion undergo decrease – this particular interest, when and in so far as thus circumstanced, may be stiled, and commonly is stiled, a sinister interest.’ Thus, a part of every person's self-interest was a right and proper interest, and another part a sinister interest. In contrast Postema seems to think that, for Bentham, the universal interest was something different from the particular interests which constituted it: see Postema, pp. 371–2.

34 Postema, p. 362.

35 This analysis of official aptitude is compatible with both a direct and an indirect utilitarian interpretation of the role of judges within Bentham's pannomion, or complete code of laws. Dinwiddy, J. R., ‘Adjudication under Bentham's Pannomion’, Utilitas, i (1989), 183–9Google Scholar, argues that the judges were in fact bound to implement the provisions of the code, unless they exercised their ‘emendative’ function, which was subject to the veto of the legislative power. Some such interpretation of the judicial function, or else an argument which shows that procedural law is distinguishable in some relevant respect from substantive law, is required to strengthen the indirect utilitarian interpretation of Bentham's thought advanced by Kelly, P. J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Oxford, 1990Google Scholar, and Rosen, Bentham, Byron, and Greece.