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Bentham on the Public Character of Law

Published online by Cambridge University Press:  26 January 2009

Gerald J. Postema
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Extract

Bentham belongs to a long tradition of reflection on law according to which the nature of law can best be understood in terms of its distinctive contribution to the solution of certain deep and pervasive problems of collective action or collective rationality. I propose to take a critical look at Bentham's unique and penetrating contribution to this tradition. For this purpose I will rely on the interpretation of the main lines of Bentham's jurisprudence and its philosophical motivations which I have developed in Bentham and the Common Law Tradition. will not attempt further to defend it here. I wish, rather, to reflect on themes and arguments which this interpretation of Bentham's jurisprudence has uncovered.

Type
Research Article
Information
Utilitas , Volume 1 , Issue 1 , May 1989 , pp. 41 - 61
Copyright
Copyright © Cambridge University Press 1989

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References

1 Postema, G. J., Bentham and the Common Law Tradition, Oxford, 1986 (hereafter cited BCLT).Google Scholar

2 Bentham, J., A Comment on the Commentaries and A Fragment on Government, ed. Burns, J. H. and Hart, H. L. A., London, 1977Google Scholar (The Collected Works of Jeremy Bentham), p. 119.Google Scholar (Hereafter cited Comment/Fragment (CW).)

3 Of Laws In General, ed. Burns, J. H. and Hart, H. L. A., London, 1970 (CW), pp. 153–54.Google Scholar

4 Blackstone, W., Commentaries on the Laws of England, 4 vols., Oxford, 1765–1769, i. 71.Google Scholar See also Hale, M., A History of the Common Law, 3d edn., ed. Gray, C. M., Chicago, 1971, p. 45.Google Scholar

5 See Bentham, J., An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970Google Scholar (CW), Ch. XVII, section 22, where ‘authoritative’ is understood by Bentham to mean ‘saying makes it so’.

6 Recall Hobbes's assertion in his Dialogue between a Philosopher and a Student of the Common Laws, ed. Cropsey, J., Chicago, 1971, p. 69Google Scholar: ‘Statutes are not philosophy as in Common Law and other disputable Arts, but are Commands or Prohibitions…’

7 Michelman, F., ‘Justification (and Justifiability) of Law in a Contradictory World’, Nomos, xxvii (1986), 73.Google Scholar

8 Hume, D., Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. Selby-Bigge, L. A., 3d edn., revised P. H. Nidditch, Oxford, 1975, p. 272.CrossRefGoogle Scholar The Treatise expresses the same view: ‘[E]very particular person's pleasure and interest being different, 'tis impossible men cou'd ever agree in their sentiments and judgments, unless they chose some common point of view, from which they might survey their object, and which might cause it to appear the same to all of them’. A Treatise of Human Nature, ed. Selby-Bigge, L. A., 2d edn., revised P. H. Nidditch, Oxford, 1978, p. 591.Google Scholar

9 In Hobbes's ‘state of nature’ each man calls good that which he desires and evil that which he seeks to avoid: see Leviathan, ed. Macpherson, C. B., Baltimore, 1968, p. 120Google Scholar (Ch. x). But that is precisely because the state of nature as described by Hobbes is the condition in which there are no recognized common standards (even, it appears, standards of ‘right reason’). Thus, the state of nature represents a condition of radical isolation. Only in the commonwealth where common standards are accessible to each member can a genuine exchange of evaluative judgments take place. These standards can only take the form of law (commands of the Soverign). See BCLT, pp. 48–51.Google Scholar

10 On this score, Hume's view is more complicated. For Hume at times sympathy or the sentiment of utility provides an adequate common point of view. See, e.g., Enquiries, pp. 272–73.Google Scholar Nevertheless, like Hobbes and Bentham, Hume argues for the necessity of common public rules of justice. See Treatise, pp. 484–513.Google Scholar For a discussion of Hobbesian and Humean accounts of law and its public character see BCLT, Chs. 2.2, 3, and 4.

11 Comment/Fragment (CW), pp. 474–92.Google Scholar

12 UC lxix. 6Google Scholar, discussed in BOLT, p. 206.Google Scholar

13 In BCLT, ch. 2 I give some evidence for this claim.

14 The Works of Jeremy Bentham, ed. Bowring, John, 11 vols., Edinburgh, 1838–1843, viii. 94.Google Scholar

15 See Postema, , ‘Co-ordination and Convention at the Foundations of Law’, Journal of Legal Studies, xi (1982), 172–79.Google Scholar

16 Raz, J., ‘Authority, Law and Morality’, Monist, lxviii (1985), 296.Google Scholar See also Raz, , The Authority of Law, Oxford, 1979, ch. 3.Google Scholar

17 Hart, H. L. A., Essays on Bentham, Oxford, 1982, pp. 18–19, 253–54.Google Scholar

18 ‘Elements of Law’, The English Works of Thomas Hobbes, ed. Molesworth, W., 16 vols., London, 1839–1845, iv, 204.Google Scholar

19 This is a rather strong version of the preremption thesis. Joseph Raz's weaker version holds only that it is an essential feature of authoritative directives, like those of law, to exclude from individual practical deliberation some considerations which in the absence of the directive would be relevant. See Raz, , The Morality of Freedom, Oxford, 1986, pp. 46, 57–62.Google Scholar

20 UC cxxvi. 1Google Scholar; Bowring, , iv. 539.Google Scholar See BCLT, pp. 368–71.Google Scholar

21 Comment/Fragment (CW), p. 406.Google Scholar

22 Lewis, D. K., Convention: A Philosophical Study, Cambridge, Mass., 1969, pp. 44, 48.Google Scholar For these criticisms see Green, L., ‘Law, Co-ordination, and the Common Good’, Oxford Journal of Legal Studies, iii (1983), 315–20.Google Scholar

23 For a useful standard treatment of these problems see Ullman-Margalit, Edna, The Emergence of Norms, Oxford, 1978, Ch. 2.Google Scholar For a very short intuitive description of the major types of problems of collective action see Elster, J., Sour Grapes, Cambridge, 1983, pp. 26–30.CrossRefGoogle Scholar Hardin's, R. Collective Action, Baltimore, 1982Google Scholar, applies the game-theoretic models to several issues in social and political theory.

24 Prisoner's dilemma and free-rider problems are not identical when the goods sought are so-called ‘step goods’, but since they overlap in a very wide range of cases free-rider problems can be treated for my purposes as the n-person analogue of two-person PD problems. See Hardin, , pp. 55–61.Google Scholar

25 John Finnis maintains that ‘co-ordination problems’ should be broadly conceived to cover problems of interaction ranging from pure co-ordination problems to prisoner's dilemmas to pure conflict/zero-sum games. See Finnis, J., Natural Law and Natural Rights, Oxford, 1980, p. 255Google Scholar; Finnis, , ‘The Authority of Law in the Predicament of Contemporary Social Theory’, Notre Dame Journal of Law, Ethics, and Public Policy, i (1984), 133.Google Scholar Finnis is right to insist on a broader, non-technical use of ‘co-ordination problems’ for his jurisprudential purposes, but I think this empties the term of any useful content and obscures the complexities of real social interaction.

28 See Sen, A. K., ‘A Game-Theoretic Analysis of Theories of Collectivism in Allocation’, Growth and Choice, ed. Majumdar, T., London, 1969, pp. 12–15Google Scholar; Elster, J., ‘Weakness of Will and the Free-Rider Problem’, Economics and Philosophy, i (1985), 247–49.Google Scholar

27 Hobbes, T., ‘De Cive’, Man and Citizen, ed. Gert, B., New York, 1972, p. 98Google Scholar; Leviathan, pp. 125, 216Google Scholar; for a more extensive discussion and references see BCLT, pp. 48–51.Google Scholar

28 Hobbes, , Leviathan, Ch. 17Google Scholar; BCLT, pp. 51–55.Google Scholar

29 Hume, , Treatise, pp. 484–513.Google Scholar For a discussion of Hume's analysis of this problem see BCLT, pp. 110–34.Google Scholar

30 This is now widely, though not universally, recognized in game-theoretic discussions of social interaction. See A. Sen, K., ‘Goals, Commitment, and Identity’, Journal of Law, Economics, and Organization, i (1985), 344–45Google Scholar; Parfit, D., ‘Prudence, Morality, and the Prisoner's Dilemma’, Proceedings of the British Academy for 1979, Oxford, 1981, pp. 539–64Google Scholar; Elster, J., ‘Rationality, Morality, and Collective Action’, Ethics, xcvi (1985), 136–55.CrossRefGoogle Scholar

31 On the class of intrinsically collective goods or aims see Postema, G. J. ‘Collective Evils; Harms, and the Law’, Ethics, xcvi (1987), 418–33.Google Scholar

32 Hume, , Treatise, p. 555.Google Scholar This is essentially Bentham's criticism of natural law principles (and, at some points in his career, of the principle of utility itself). It is the argument at the heart of Hobbes's criticism of appeals to ‘right reason’, Leviathan, Ch. 6, pp. 111–12Google Scholar; ‘Questions Concerning Liberty, Necessity and Chance’, in Hobbes, , English Works, ed. Molesworth, v. 193Google Scholar, and notion of ‘metaphysical goodness’, ibid., 192.

33 See Green, L., ‘Authority and Convention’, The Philosophical Quarterly, xxxv (1985), 339.Google Scholar

34 In the original example, husband and wife both wish to go out for an evening's entertainment together rather than alone, but the husband wants to go to a fight and the wife to the ballet. See Luce, R. and Raiffa, H., Games and Decisions, New York, 1957, pp. 90–94, Ch. 6. See also Ullman-Margalit, Ch. 4.Google Scholar

35 For support for the reading of Bentham set out in this paragraph, see BCLT, pp. 172–83.Google Scholar

36 Hume, , Treatise, p. 535.Google Scholar

37 Compare Finnis, ‘Authority of Law’, pp. 117–20Google Scholar; but see Raz, , ‘The Obligations to Obey: Revision and Tradition’, Notre Dame Journal of Law, Ethics, and Public Policy, i (1984), 150–52.Google Scholar

38 Hume, , Treatise, p. 490.Google Scholar

39 ‘Principles of the Civil Code’, Bowring, i. 309.Google Scholar Bentham's immediate reference in this passage is to the law of property, and to both the assurance and security and the encouragement to foresight which it provides. But the generalization of this sentiment in the text above is in the spirit of this passage.

40 Hume, , Treatise, p. 502.Google Scholar

41 See my ‘“Protestant’ Interpretation and Social Practices’, Law and Philosophy vi (1987), 313–15.Google Scholar