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Adjudication and Expectations: Bentham on the Role of Judges

Published online by Cambridge University Press:  14 May 2013

FRANCESCO FERRARO
FRANCESCO FERRARO*
Affiliation:
Università degli Studi di [email protected]
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Abstract

According to a well-established interpretive line, the Benthamic judge would be allowed no room for autonomous calculations of utility and his or her task would only be that of mechanically applying substantive law, which expresses the legislator's will. For Gerald Postema, in contrast, Bentham's judge would be granted ample power to decide cases by directly applying the principle of utility. This article criticizes both views, by showing that a ‘mechanical’ adjudication was for Bentham utterly impossible, although this does not mean that judges should be free to decide according to direct utility calculations. Judges must be the tutors of the citizens’ expectations, which, under a system of statute law, will focus on the code. However, they can avoid suboptimality in cases where applying a general rule would not maximize utility, without preponderant damage for law-induced expectations: Bentham's suggestion is that they do so by proposing amendments of the code to the legislature.

Type
Research Article
Information
Utilitas , Volume 25 , Issue 2 , June 2013 , pp. 140 - 160
Copyright
Copyright © Cambridge University Press 2013 

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References

1 See, for instance, Bentham, J., An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., with a new introduction by F. Rosen and an interpretative essay by H. L. A. Hart (Oxford, 1996) (hereafter IPML), p. 6Google Scholar.

2 Letwin, S., The Pursuit of Certainty (Cambridge, 1965), p. 128Google Scholar; see also Alfange, D. Jr., ‘Jeremy Bentham and the Codification of Law’, Cornell Law Review 55 (1969), pp. 58–77Google Scholar.

3 See Postema, G., Bentham and the Common Law Tradition (Oxford, 1986), pp. 430–4Google Scholar.

4 Lobban, M., The Common Law and English Jurisprudence 1760–1850 (Oxford, 1991), p. 117Google Scholar.

5 ‘judges would make adjudications by reference to a clear body of deductive rules for all situations’ (Lobban, The Common Law and English Jurisprudence, p. 128).

6 ‘Bentham's ambition [was] to form a complete deductive code a priori’ (Lobban, The Common Law and English Jurisprudence, p. 131).

7 Lobban, The Common Law and English Jurisprudence, p. 131.

8 See Lieberman, D., ‘Bentham's Digest’, The Bentham Newsletter, no. 9 (June 1985), pp. 7–19Google Scholar; see also Lieberman, D., The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989), pp. 179–98CrossRefGoogle Scholar.

9 Lobban, The Common Law and English Jurisprudence, p. 145.

10 See Bentham, J., Chrestomathia, ed. Smith, M. J. and Burston, W. H. (Oxford, 1983), pp. 206–26Google Scholar.

11 See Bentham, Chrestomathia, pp. 221–6.

12 IPML, p. 187 n.

13 See Bentham, Chrestomathia, pp. 156–78.

14 See General View of a Complete Code of Laws, in The Works of Jeremy Bentham. Published under the Superintendence of his Executor, John Bowring, 11 vols. (Edinburgh, 1838–43) (hereafter Works), vol. 3, pp. 163–71.

15 See Bentham, Chrestomathia, pp. 221–2.

16 See Bentham, J., ‘Legislator of the World’: Writings on Codification, Law, and Education, ed. Schofield, P. and Harris, J. (Oxford, 1998), p. 117CrossRefGoogle Scholar.

17 See Bentham, ‘Legislator of the World’, p. 145.

18 Bentham, J., Of the Limits of the Penal Branch of Jurisprudence, ed. Schofield, P. (Oxford, 2010) (hereafter Limits), p. 223Google Scholar.

19 Limits, p. 220. See also General View of a Complete Code of Laws, p. 159.

20 Bentham, J., Place and Time, ed. Schofield, P. and Engelmann, S. G., in Jeremy Bentham: Selected Writings, ed. with an Introduction by S. G. Engelmann (New Haven and London, 2011), p. 205Google Scholar; see also Of the Influence of Time and Place in Matters of Legislation, in Works, vol. 1, p. 192.

21 Bentham, Place and Time, p. 208; see also Of the Influence of Time and Place in Matters of Legislation, p. 193. The four rules or principles above are discussed by Bentham respectively in IPML, chs. XIII, XIV, XV, and XVI.

22 ‘The power of enacting particular laws, the power as it may be called of imperating de singulis, is one sort of power: the power of enacting general laws, that is of imperating de classibus, of making laws in general terms, is, as we shall see, another and very different sort of power. . . . To the words power of legislation we naturally annex the idea of the power of enacting general laws . . . Neither of them [i.e. the power of imperating de singulis and the power of imperating de classibus] of itself includes the power of doing every thing that is to be done by commanding and countermanding’ (Limits, pp. 102–4).

23 Limits, p. 104.

24 Limits, p. 105. Bentham coins ‘accensitive’ from the Latin verb accensere, which means ‘to aggregate to a class’.

25 ‘Neither of them of itself includes the power of doing every thing that is to be done by commanding and countermanding. Let a man possess either of them in the amplest extent there will always be something which he can not do without the other’ (Limits, p. 104).

26 Lobban, The Common Law and English Jurisprudence, p. 139.

27 Limits, pp. 24–5.

28 Lobban, The Common Law and English Jurisprudence, p. 151.

29 ‘Under the term “law”, then, . . . we must include a judicial order, a military or any other kind of executive order’ (Limits, p. 26).

30 Limits, pp. 27–8.

31 ‘it would naturally be expected that the signification given to the word law should be correspondent to that of its conjugates legislation and legislative power: . . . that, consequently, the term law should be applied to every expression of will, the uttering of which was an act of legislation, an exertion of legislative power; and that, on the other hand, it should not be applied to any expression of will of which those two propositions could not be predicated. Accordingly, in the former of these points it does indeed quadrate with these two expressions: but it can not be said to do so in the latter. It has all the amplitude which they have: but the import of it is not every where confined within the bounds which limit their's’ (Limits, p. 26).

32 See Limits, p. 175.

33 See Bentham, J., A Comment on the Commentaries and A Fragment on Government, ed. Burns, J. H. and Hart, H. L. A. (London, 1977) (hereafter Comment), p. 115Google Scholar.

34 Comment, p. 115.

35 ‘Let the judge be required, wheresoever he determines in the way of liberal interpretation, to declare openly his having done so: at the same time drawing up in terminis a general provision expressive of the attention he thinks the case requires, which let him certify to the legislator: and let the alteration so made, if not negatived by the legislator within such a time, have the force of law’ (Limits, pp. 228–9).

36 See, for instance, Hoeflich, M. H., ‘Law and Geometry: Legal Science from Leibniz to Langdell’, American Journal of Legal History 30 (1986), pp. 95–121CrossRefGoogle Scholar; Berkowitz, R., The Gift of Science: Leibniz and the Modern Legal Tradition (Cambridge, Mass., 2005), esp. pp. 17–27CrossRefGoogle Scholar.

37 See, for instance, Schuster, E. J., ‘The German Civil Code’, Law Quarterly Review 45 (1896), pp. 17–35Google Scholar, esp. at 21–2.

38 See, for instance, Lobingier, C. Sumner, ‘Napoleon and his Code’, Harvard Law Review 32 (1918), pp. 114–34CrossRefGoogle Scholar.

39 See Kelsen, H., General Theory of Law and State (Cambridge, Mass., 1945), pp. 112–13Google Scholar.

40 See, for instance, Kelsen, General Theory, pp. 134–5: ‘The judicial function is thus, like legislation, both creation and application of law . . . Statutes and customary laws are, so to speak, only semi-manufactured products which are finished only through judicial decision and its execution. . . . the judicial function . . . has, by no means, as is sometimes assumed, a purely declaratory character. Contrary to what is sometimes asserted, the court does not merely formulate already existing law . . . the judicial decision has a constitutive character’.

41 See, for instance, Equity Dispatch Court Proposal, in Works, vol. 3, p. 312.

42 These manuscripts were written by Bentham mainly in 1806–7 and responded to Lord Grenville's plan for the reform of the administration of civil justice in Scotland, which sought to transplant many of the English common law procedures to Scottish courts. Only a small part of Bentham's work has been published and is now in Works, vol. 5, in the form of five letters addressed to Lord Grenville. See Draper, A. J., ‘“Corruptions in the Administration of Justice”: Bentham's Critique of Civil Procedure, 1806–1811’, Journal of Bentham Studies 7 (2004)CrossRefGoogle Scholar, www.discovery.ucl.ac.uk/1323720/1/007_Draper_2004.pdf.

43 University College London, Bentham MSS, Box cvi, fo. 194 (henceforth U.C. cvi 194).

44 U.C. cvi 196. In Bentham's opinion, ‘in many instances such, for example, must have been the situation of many a Judge in England, at the time of the last civil war, in the middle of the 17th century’ (U.C. cvi 195).

45 U.C. cvi 196.

46 Bentham, by the way, distinguishes between a ‘strict and proper sense’ and a ‘popular and improper sense’ of the word ‘sovereign’. In its popular and improper sense, the term is taken as designating only the legislative authority; in its strict and proper sense, it is instead to be taken as referring to all the authorities of the state, to which the people are usually accustomed and disposed to pay obedience (see Limits, p. 91 n.). The judiciary is, for Bentham, a branch of the ‘sovereign efficient power’, which includes also the legislative and the executive power; more precisely, it is one of the three branches of the executive (see U.C. lxix 110, cited in Schofield, P., Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006), p. 226 n.CrossRefGoogle Scholar). Strictly speaking, then, for Bentham there is no logical problem with the judiciary exercising sovereignty, since the judicial authority is, in a sense, sovereign. For him, a moral problem would arise if the judges appropriated an undue share of sovereignty, that pertaining to the legislative authority.

47 IPML, p. 302.

48 Limits, pp. 120, 129, 181–2 and 220.

49 ‘The judge will treat the code as a guide setting out the relevant (utilitarian) considerations to be taken into account, and indicating the most important expectation utilities, but he will not regard it as a set of fixed rules determining his decision in a mechanical way’ (Postema, Bentham and the Common Law Tradition, p. 405). ‘Bentham's theory, on my interpretation, allows judges considerable freedom to consult directly the principle of utility when deciding particular cases. . . . But this suggests that either the judge is free to ignore the code at will, or that the code is composed of little more than broad general principles’ (Postema, Bentham and the Common Law Tradition, pp. 421–2); ‘on Bentham's view judges are not bound to adhere strictly to this code. They are encouraged to give the utilitarianly best judgment in every case, taking into account the important role of the code of focusing expectations’ (Postema, Bentham and the Common Law Tradition, p. 454).

50 For the reasons which have pressed for a new edition of the text known as Of Laws in General (edited by H. L. A. Hart and published in 1970) with the new title Of the Limits of the Penal Branch of Jurisprudence, see P. Schofield, ‘Editorial Introduction’, in Limits, pp. xi–xl.

51 In Bentham's definition of ‘a law’ the volition expressed by the sovereign trusts ‘for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question’ (Limits, pp. 24–5).

52 Limits, p. 25 n.

53 As is well known, Bentham also recognizes the existence of laws which appeal to ‘alluring’ rather than ‘coercive’ motives, that is, which promise rewards rather than threatening punishments: these are ‘invitative’ or ‘praemiary’ laws (see Limits, pp. 142–3, 146). Such laws, in any case, will occupy a very small part of any legal system, since punishments are much more reliable as an instrument for influencing conduct (see Limits, p. 144 n.).

54 Limits, p. 33.

55 Limits, p. 80.

56 See, for instance, Essay on Logic, in Works, vol. 3, p. 247.

57 See Bentham, J., Deontology together with A Table of the Springs of Action and Article on Utilitarianism, ed. Goldworth, A. (Oxford, 1983), pp. 193, 196–7, 249, 334Google Scholar. See also Harrison, R., Bentham (London, 1983), pp. 263–77Google Scholar.

58 See Postema, Bentham and the Common Law Tradition, pp. 421–34.

59 Postema, Bentham and the Common Law Tradition, p. 433.

60 See Postema, Bentham and the Common Law Tradition, pp. 425–6. See also Principles of the Civil Code, in Works, vol. 1, p. 324, and U.C. xciv 201: ‘Taken by itself, every law . . . is prima facie an evil: its very existence is prima facie evidence of its mischievousness. Even supposing no fresh load of obligation imposed by it, still the new law is prima facie an evil: it adds to the difficulty of comprehending and thence being governed by, the rule of action taken in its whole extent: it adds to the uncognoscibility, to the relative uncertainty, of the whole body of the laws.’

61 See Nomography, in Works, vol. 3, p. 239.

62 See U.C. xciv 201.

63 See Comment, p. 231.

64 See, for instance, Postema, G., ‘Bentham on the Public Character of Law’, Utilitas 1 (1989), pp. 41–61CrossRefGoogle Scholar.

65 On the importance of expectations and their relation with the Benthamic utilitarian end of security, see Kelly, P. J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, 1990), pp. 71–103Google Scholar.

66 See Comment, pp. 49–51 n.; Limits, pp. 189–90 n.

67 See Truth Versus Ashhurst, in Works, vol. 5, p. 235; Limits, p. 186: ‘it is evident . . . that a blow which is given to a dog (for here dogs and men are put upon the same footing) is no lesson to the dog who is in the next yard’.

68 See Postema, G., ‘Bentham's Early Reflections on Law, Justice, and Adjudication’, Revue internationale de philosophie 141 (1982), pp. 219–41Google Scholar, reprinted in Jeremy Bentham: Moral, Political, and Legal Philosophy, vol. 2: Legal Philosophy, ed. G. Postema (Aldershot, 2002), pp. 459–81.

69 Comment, p. 196.

70 Comment, p. 197 n.

71 See for instance ‘Legislator of the World’, p. 248.

72 Comment, p. 115.

73 See Constitutional Code, in Works, vol. 9, pp. 502–4.

74 See Constitutional Code, p. 504.

75 The material of the Equity Dispatch Court Proposal and of the Bill was written at different periods in 1829, 1830 and 1831.The eight first sections of the Equity Dispatch Court Bill were prepared for publication and sent to press by Bentham himself. See ‘Editor's Note’, in Works, vol. 3, p. 320.

76 See Equity Dispatch Court Bill, in Works, vol. 3, p. 388.

77 See Equity Dispatch Court Bill, p. 312.

78 See Equity Dispatch Court Bill, p. 312.

79 See Twining, W., Theories of Evidence: Bentham and Wigmore (London, 1985), pp. 66–75Google Scholar.

80 See Ferraro, F., ‘Direct and Indirect Utilitarianism in Bentham's Theory of Adjudication’, Journal of Bentham Studies 12 (2010)CrossRefGoogle Scholar, www.discovery.ucl.ac.uk/1323709/1/012_Ferraro__2010_.pdf. With regard to specific passages in the Equity Dispatch Court writings, my interpretation differs slightly from that of Dinwiddy, John, ‘Adjudication under Bentham's Pannomion’, Utilitas 1 (1989), pp. 283–9CrossRefGoogle Scholar, reprinted in Bentham: Selected Writings of John Dinwiddy, ed. W. Twining (Stanford, Calif., 2004), pp. 155–62. An opposite interpretation is put forward in Postema, Bentham and the Common Law Tradition, pp. 415–16.

81 See Constitutional Code, p. 508.

82 ‘In all ordinary cases . . . between decision in precise conformity to the will of the sovereign, and decision in non-conformity and opposition to it, there is a middle course: and a course which under every government might be permitted and pursued with perfect safety. This is – to authorize the Judge when he sees occasion, after declaring that decision which to him appears to be conformable to, and called for by the declared will of the sovereign, . . . to suspend the execution (taking the requisite measures for the prevention of irreparable damage) till after the particular case shall have been represented to the sovereign, and his particular will signified in consequence’ (U.C. cvi 197).

83 See Constitutional Code, p. 508.

84 On Bentham's definition of ‘responsibility’ see, for example, Bentham, J., Constitutional Code, vol. 1, ed. Rosen, F. and Burns, J. H. (Oxford, 1983), pp. 21–2Google Scholar.

85 Postema, Bentham and the Common Law Tradition, p. 435.

86 Postema, Bentham and the Common Law Tradition, p. 437.

87 John Dinwiddy too considers as strained Postema's interpretation of the sistitive function: see Dinwiddy, ‘Adjudication under Bentham's Pannomion’.

88 See Constitutional Code, p. 509.

89 See U.C. cvi 177.

90 Principles of the Civil Code, in Works, vol. 1, p. 322.

91 Comment (Fragment), p. 417.

92 Principles of the Civil Code, p. 324.

93 Constitutional Code, p. 509.

94 See Constitutional Code, p. 509.

95 An earlier version of this article was presented at the annual series of Bentham Seminars at University College London. I wish to thank all the participants and particularly Michael Lobban, Gianfranco Pellegrino, Michael Quinn, Philip Schofield, Mary Sokol, and Xiaobo Zhai for their helpful comments and suggestions.