IV. BENTHAM ON LAW

Bentham is a harder nut to milk than Godwin or Malthus, for Godwin offered tempting ideals and Malthus some fascinating terrors, while Jeremy Bentham (1748–1832) wrote on economics, usury, utility, law, justice, and prisons—none of which is very charming; besides, he himself was a seclusive giant, endlessly learned, pondering imponderables, publishing little, reforming everything, and crying out for the marriage of two ogres—logic and law. Yet his influence, rising through his eighty-four years, surmounted his time and pervaded a century.

He was the son of a wealthy attorney, who almost crushed him with education. We are told that by the age of three he had read Paul de Rapin’s eight-volume History of England, and had begun the study of Latin. (This suffocating pedagogy was passed on to Bentham’s disciple James Mill, who used it on his son John.) At Westminster School Jeremy excelled in writing Greek and Latin poetry. At Oxford he specialized in logic, and took his degree at fifteen. He went on to study law at Lincoln’s Inn, but the chaos of the lawbooks aroused his ire, and he resolved, at whatever cost, to bring reason and order into British jurisprudence and legislation. In December, 1763, aged fifteen, he heard Sir William Blackstone’s eulogy of English law; he was astonished and repelled by this unquestioning adulation, which could only delay legal reform. From that time almost to his death he thought of bringing rationality, consistency, and humanity into English law. “Have I,” he asked himself, “a genius for anything? What can I produce?… What, of all earthly pursuits, is the most important? Legislation. Have I a genius for legislation? I gave myself the answer, fearfully and tremblingly: ‘Yes’ “43 This timid pride can be the fount of achievement.

He brought to his task a mind realistic, sworn to order and reason. He resented such oppressive abstractions as duty, honor, power, and right; he liked to break them down into specific realities, and to examine each part with a persistent view to fact. What, for instance, is a right? Is it “natural”—something due us from birth, as the French Revolution’s Declaration of the Rights of Man supposed?—or is it merely an individual liberty subordinate to public good? What is equality? Is there any such thing outside of a mathematical abstraction? Is inequality of ability, possessions, and power the inevitable fate of every living thing? What is “common sense” or “natural law”? All these abstractions, in Bentham’s opinion, were “nonsense on stilts,”44 strutting obstructively in universities, Parliaments, and courts.

We may imagine what such an impatient realist did to the theology current in his time and place. He found no use for the traditional deity in his attempt to see with impartial eye the world of science, history, economics, law, or government.45 He tried to hold his sharp tongue about these matters, for he felt that the Anglican Church was comparatively rational, and might be made beneficent; but the clergy felt his silent hostility, and denounced his utilitarianism, quite justly, as a “godless philosophy.”46

He began by trying to depose Blackstone as the web-weaving encomiast of the British Constitution. That mystical entity appeared to him as a patchwork and antiquated product of casual contingencies, contradictory compromises, hasty amendments, and passing inspirations, bound with no logic and rooted in no principle. So (while the American colonies were ignoring that landed gentlemen’s agreement) Bentham issued, as one spark from his anvil, A Fragment on Government (1776)—the first blow of that “philosophical radicalism” which was to struggle for half a century before winning half a victory in 1832.

The twenty-eight-year-old challenger, while praising Blackstone for having “taught jurisprudence to speak the language of scholars and gentlemen,” reproved him for reducing the constitution to the sovereignty of the king. É contra, a sane constitution will distribute the powers of government among the different parts thereof, and will facilitate their cooperation and mutual restraint. The guiding principle of legislators must be not the will of a superior but “the greatest happiness of the greatest number” of those for whom they legislate; and the proper test of a proposed law is its utility to that end.47 Here, in the famous “principle of utility,” was the essence of Bentham’s legal and ethical teaching. It was a remarkable correlate of the Declaration of Independence that Thomas Jefferson had issued in that same year; philosophy and history briefly embraced; and the Christian tradition—Bentham unwitting—warmed and blessed the union.

The little book had been written in a style more intelligible, and in a spirit more attractive, than those of Bentham’s later treatises. He spent some time now in travel. From Russia, in 1787, he sent to England a Defence of Usury—i.e., interest. He opposed the theological condemnation of interest; in economics, as in politics, the individual should be left as free to use his own judgment as the good of the community would allow. Bentham was a liberal, but in the eighteenth-century understanding of that word as meaning a defender of liberty; he agreed with the Physiocrats and Jefferson that the state should keep to a minimum its interference with individual freedom. He was a radical—a get-to-the-root man; but he was not in favor of nationalizing industry. In 1787 there was not much industry to nationalize.

On his return from Russia, Bentham prepared for publication his major work: The Principles of Morals and Legislation (1789; his press inclined to revolutionary dates). It is a difficult book, sternly propped with a hundred definitions, yet leaving the unprofessional reader considerably confused at the close. But Bentham was undertaking a mind-breaking task: to replace a theological with a natural ethic; to base conduct and law upon group or national need rather than upon the will of an executive or a class; and to liberate law and conduct from religious decrees at one end and revolutionary dreams at the other. A man undertaking such tasks might be allowed an occasional sin against a writer’s moral obligation to be clear.

The new basis, of both morality and law, was to be the principle of utility —the usefulness of an act to the individual, of a custom to the group, of a law to the people, of an international agreement to mankind. Bentham took it for granted that all organisms seek pleasure and shun pain. Pleasure he defined as any satisfaction, pain as any dissatisfaction, of body or mind. Utility is the quality of producing pleasure or avoiding pain; happiness is the continuity and consistency of pleasures. The utility need not be entirely to the individual agent; it may be, partly or primarily, to the family, the community, the state, or mankind. The individual may (through his social instincts) find pleasure—or avoid pain—in subordinating his satisfaction to that of the group to which he belongs.48Consequently, aside from its immediate purpose, the final object and moral test of all actions and laws is the degree in which it contributes to the greatest happiness of the greatest number. “I would have the dearest friend I have to know that his interests, if they come in competition with those of the public, are as nothing to me. Thus I would serve my friends—thus would I be served by them.”49

Bentham did not pretend to have originated his utilitarian formula. He declared, with his usual candor, that he had found it in Joseph Priestley’s Essay on the First Principles of Government (1768). He could have found it in Francis Hutcheson’s Enquiry Concerning Moral Good and Evil (1725), which defined the good citizen as one who has promoted “the greatest happiness of the greatest number”;50 or in Beccaria’s Trattato dei delitti e delle pene (1764), which described the moral test and goal as “la massima felicità divisa nel maggior numero”; or, most clearly, in Helvétius’ De l’Esprit (1758): “Utility is the principle of all human virtues, and the foundation of all legislation…. All laws should follow a single principle, the utility of the public—i.e., of the greatest number of the persons under the same government.”51 Bentham was merely giving a quantitative form to the Biblical injunction “Thou shalt love thy neighbor as thyself.”52

His achievement was to apply “the principle of the greatest happiness” (his final formula) to the laws of England. He now had a moral imperative of clear import, and a test by which to judge the injunctions of preachers, the exhortations of teachers, the principles of parties, the laws of legislators, the edicts of kings. The law must admit no mystical entities like “rights,” natural, popular, or divine; no revelations from God to Moses or Mohammed or Christ; no punishments for vengeance’ sake. Every proposal must answer the question Cui bono?, For whose good will it be?—for one, or a few, or many, or all? Law must adjust itself to the ineradicable nature and limited capacities of men, and to the practical needs of society; it must be clear, and permit of practical enforcement, expeditious trial, prompt judicial judgment, and penalties corrective and humane. To these ends Bentham devoted the last ten chapters of his book, and the final years of his life.

Meanwhile he applied his testing rod to the issues of the day. He upheld the Physiocratic doctrine of laissez-faire in industry and politics. Generally the individual is the best judge of his own happiness, and should be left as free as socially practicable to seek it in his own way; however, society should encourage voluntary associations, whose members would surrender part of their liberties to united effort for a common cause. From the same principles Bentham argued that representative government, with all its faults and multiple corruption, is best.

The Principles of Morals and Legislation received a wider acclaim than might have been expected from the difficulties of its form and style, its critical spirit, and its strongly secular bent. Its welcome abroad was warmer than at home. France translated him, and made him a French citizen in 1792. Political leaders and thinkers corresponded with him from various capitals and universities on the Continent. In England the Tories condemned utilitarianism as unpatriotic, un-Christian, and materialistic. Some writers urged that many actions—romantic or parental love, self-sacrifice, mutual aid—involve no conscious calculation of egoistic satisfactions. Artists balked at judging works of art according to their usefulness. But all except officeholders agreed that self-interest is the ethic and policy of all governments, when disguise and pretense have been removed.

Bentham lived up to his philosophy, and made his years unremittingly useful. In Rationale of Judicial Evidence (1825), and elsewhere, he strove to clarify old laws and present cases, and succeeded in moderating the barbarous excesses of traditional penology. He began in 1827, aged seventy-nine, to codify English law, but death caught him between Volumes I and II. He took part in establishing The Westminster Review (1823) as an organ of liberal ideas. He gathered about him a band of disciples who recognized the warm heart behind the crusty exterior. Pierre-Etienne Dumont was his apostle in France; James Mill, himself an outstanding thinker, edited the master’s manuscript into readability; John Stuart Mill raised the cause from calculus to humanity.

Led by Bentham, these “philosophical radicals” worked for adult male suffrage, secret ballot, free trade, public sanitation, the improvement of prisons, the cleansing of the judiciary, the chastening of the House of Lords, and the development of international law. Till the 1860s the individualistic and freedom-oriented elements in Bentham’s philosophy were stressed by his followers; thereafter the socialism lurking in “the greatest happiness of the greatest number” turned the current of reform toward the use of government as an agent of the public will in attacking public ills.

Dying, Bentham puzzled over the problem of making his corpse fully useful to the greatest number. He directed that it should be dissected in the presence of his friends. It was. Then the cranium was filled and faced with wax, the skeleton was dressed in Bentham’s somber and habitual garb, and was set upright in a glass case in University College, Cambridge, where it remains to this day.

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