Jeremy Bentham [1 ed.] 9780815389934, 9781351155045

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Jeremy Bentham

International Library of Essays in the History of Social and Political Thought Series Editor: Tom Campbell

Titles in the Series: Hannah Arendt Amy Allen Friedrich Hayek Norman Barry Charles-Louis de Secondat Montesquieu David Carrithers Emile Durkheim Roger Cotterrell

Talcott Parsons John Holmwood

Thomas Paine Bruce Kuklick Max Weber Peter Lassman T.H. Green John Morrow Martin Heidegger Stephen Mulhall Jean-Jacques Rousseau Timothy O ’Hagan John Rawls David Reidy Jeremy Bentham Frederick Rosen Theodor Adorno James Schmidt

David Hume Knud Haakonssen Thomas Aquinas John Inglis Aristotle George Klosko

Thomas Hobbes Gabriella Slomp Friedrich Nietzsche Tracy Strong Isaiah Berlin Scott Veitch

Vilfredo Pareto Joseph Femia Jean Bodin Julian H. Franklin Edmund Burke Iain Hampsher-Monk

Jeremy Bentham Edited by

Frederick Rosen University College London, UK

First published 2007 Ashgate Publishing Reissued 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint o f the Taylor & Francis Group, an informa business © Frederick Rosen 2007. For copyright of individual articles please refers to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. A Library of Congress record exists under LC control number: 2006034816 Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Publisher’s Note The publisher has gone to great lengths to ensure the quality of this reprint but points out that some imperfections in the original copies may be apparent. Disclaimer The publisher has made every effort to trace copyright holders and welcomes correspondence from those they have been unable to contact. ISBN 13: 978-0-815-38993-4 (hbk) ISBN 13: 978-1-351-15504-5 (ebk)

Contents A cknowledgem ents Series Preface Introduction PART I

ix xi xiii

THE UTILITARIAN TRADITION

1 Douglas G. Long (1990), 4“Utility” and the “Utility Principle”: Hume, Smith, Bentham, Mill’, Utilitas, 2, pp. 12-39. 2 Frederick Rosen (2003), ‘Reading Hume Backwards: Utility as the Foundation of Morals’, in Frederick Rosen, Classical Utilitarianism from Hume to Mill, London: Routledge, pp. 29-57, 257a-57c. 3 Ross Harrison (1983), ‘The Clew to the Labyrinth’, in Ross Harrison, Bentham, London: Routledge and Kegan Paul, pp. 47-76.

3 31 63

PART II LIBERTY AND JUSTICE 4 Douglas G. Long (1977), ‘Fundamental Words’, in Douglas G. Long, Bentham on Liberty: Jeremy Bentham’s Idea of Liberty in Relation to his Utilitarianism, Toronto: University of Toronto Press, pp. 65-83, 83a-83b. 5 Gerald J. Postema (1986), ‘Utilitarian Justice and the Tasks of Law’, in Gerald J. Postema, Bentham and the Common Law Tradition, Oxford: Clarendon Press, pp. 147-90. 6 P.J. Kelly (1990), ‘Security, Expectation, and Liberty’, in P.J. Kelly, Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Oxford: Clarendon Press, pp. 71-103. 7 Frederick Rosen (1992), ‘Liberty and Constitutional Theory’, in F. Rosen, Bentham, Byron and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought, Oxford: Clarendon Press, pp. 25-76.

95 116 161 195

PART III SOVEREIGNTY AND THE STATE

8 H.L.A. Hart (1967), ‘Bentham on Sovereignty’, Irish Jurist, 2, pp. 327-35. 9 J.H. Bums (1973), ‘Bentham on Sovereignty: An Exploration’, Northern Ireland Legal Quarterly, 24, pp. 399-416. 10 Frederick Rosen (1983), ‘Sovereignty and Democracy’, in Frederick Rosen, Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code, Oxford: Clarendon Press, pp. 41-54.

249 259 277

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PART IV POLITY AND ECONOMY 11 P.J. Kelly (1989), ‘Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham’s Economic Thought’, Utilitas, 1, pp. 62-81. 293 12 David Lieberman (2000), ‘Economy and Polity in Bentham’s Science of Legislation’, in S. Collini, R. Whatmore and B. Young (eds.), Economy, Polity, and Society: British Intellectual History 1750-1950, Cambridge: Cambridge University Press, pp. 107-34. 313 13 Takuo Dome (2004), ‘Jeremy Bentham’, in Takuo Dome, The Political Economy 341 of Public Finance in Britain 1767-1873, London: Routledge, pp. 66-91. PART V SOCIETY 14 Janet Semple (1992), ‘Foucault and Bentham: A Defence of Panopticism’, Utilitas, 4, pp. 105-20. 15 Roy Porter (1994), ‘Rethinking Institutions in Late Georgian England’, Utilitas, 6, pp. 65-80. 16 Michael Quinn (1994), ‘Jeremy Bentham on the Relief of Indigence: An Exercise in Applied Philosophy’, Utilitas, pp. 81-96. 17 Lea Campos Boralevi (1987), ‘Utilitarianism and Feminism’, in Ellen Kennedy and Susan Mendus (eds.), Women in Western Political Philosophy, Brighton: Wheatsheaf Books, pp. 159-78. 18 Louis Crompton (1985), “‘Not Paul but Jesus’” , in Louis Crompton, Byron and Greek Love: Homophobia in 19th-Century England, London: Faber and Faber, pp. 251-83.

369 385 401 417 437

PART VI THE FRENCH REVOLUTION AND POLITICAL RADICALISM 19 J.H. Bums (1966), ‘Bentham and the French Revolution’, Transactions of the Royal Historical Society, 5th Series, 16, pp. 95-114. 20 J.R. Dinwiddy (1975), ‘Bentham’s Transition to Political Radicalism, 1809-10’, Journal of the History of Ideas, 35, pp. 683-700. 21 James E. Crimmins (1994), ‘Bentham’s Political Radicalism Reexamined’, Journal of the History of Ideas, 55, pp. 259-81. 22 Philip Schofield (2004), ‘Jeremy Bentham, the French Revolution and Political Radicalism’, History of European Ideas, 30, pp. 381^101.

473 493 511 535

PART VII REVOLUTION IN GOVERNMENT 23 S.E. Finer (1972), ‘The Transmission of Benthamite Ideas, 1820-1850’, in G. Sutherland (ed.), Studies in the Growth of Nineteenth-Century Government, London: Routledge, pp. 11-32.

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24 L.J. Hume (1967), 4Jeremy Bentham and the Nineteenth-Century Revolution in Government’, Historical Journal, 10, pp. 361-75. 25 Stephen Conway (1990), ‘Bentham and the Nineteenth-Century Revolution in Government’, in R. Bellamy (ed.), Victorian Liberalism: Nineteenth-Century Political Thought and Practice, London: Routledge, pp. 71-90. Name Index

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581 597 611

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. Cambridge University Press for the essays: L.J. Hume (1967), ‘Jeremy Bentham and the Nineteenth-Century Revolution in Government’, Historical Journal, 10, pp. 361-75. Copyright © 1967 Cambridge University Press. Reprinted with permission; David Lieberman (2000), ‘Economy and Polity in Bentham’s Science of Legislation’, in S. Collini, R. Whatmore, and B. Young (eds), Economy, Polity, and Society: British Intellectual History 1750-1950, Cambridge: Cambridge University Press, pp. 107-34. Copyright © 2000 Cambridge University Press. Copyright Clearance Center for the essay: Louis Crompton (1985), “‘Not Paul but Jesus’” , in Louis Crompton, Byron and Greek Love: Homophobia in 19th-Century England, London: Faber and Faber, pp. 251-83. Elsevier Limited for the essay: Philip Schofield (2004), ‘Jeremy Bentham, the French Revolution and Political Radicalism’, History of European Ideas, 30, pp. 381^101. Copyright © 2004 Elsevier Limited. Northern Ireland Legal Quarterly for the essay: J.H. Bums (1973), ‘Bentham on Sovereignty: An Exploration’, Northern Ireland Legal Quarterly, 24, pp. 399^116. Oxford University Press for the essays: Gerald J. Postema (1986), ‘Utilitarian Justice and the Tasks of Law’, in Gerald J. Postema, Bentham and the Common Law Tradition, Oxford: Clarendon Press, pp. 147-90; P.J. Kelly (1990), ‘Security, Expectation, and Liberty’, in P.J. Kelly, Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Oxford: Clarendon Press, pp. 71-103; Frederick Rosen (1992), ‘Liberty and Constitutional Theory, Constitutional Theory’, in F. Rosen, Bentham, Byron and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought, Oxford: Clarendon Press, pp. 25-76; Frederick Rosen (1983), ‘Sovereignty and Democracy’, in Frederick Rosen, Jeremy Bentham and Representative Democracy: A Study of the Constitutional Code, Oxford: Clarendon Press, pp. 41-54. Pearson Education for the essay: Lea Campos Boralevi (1987), ‘Utilitarianism and Feminism’, in Ellen Kennedy and Susan Mendus (eds.), Women in Western Political Philosophy, Brighton: Wheatsheaf Books, pp. 159-78. Royal Historical Society for the essay: J.H. Bums (1966), ‘Bentham and the French Revolution’, Transactions of the Royal Historical Society, 5th Series, 16, pp. 95-114.

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Taylor and Francis for the essays: Stephen Conway (1990), ‘Bentham and the N ineteenthCentury Revolution in Governm ent’, in R. Bellamy (ed.), Victorian Liberalism: N ineteenthCentury Political Thought and Practice, London: Routledge, pp. 71-90; Ross Harrison (1983), ‘The Clew to the Labyrinth’, in Ross Harrison, Bentham, London: Routledge and Kegan Paul, pp. 47-76; Frederick Rosen (2003), ‘Reading Hume Backwards: Utility as the Foundation of M orals’, in Frederick Rosen, Classical Utilitarianism from Hume to Mill, London: Routledge, pp. 29-57, 257a-57c; Takuo Dome (2004), ‘Jeremy Bentham’, in Takuo Dome, Political Economy o f Public Finance in Britain 1767-1873, London: Routledge, pp. 66-91; S.E. Finer (1972), ‘The Transmission o f Benthamite Ideas, 1820-1850’, in G. Sutherland (ed.), Studies in the Growth o f Nineteenth-Century Government, London: Routledge, pp. 11-32. University o f Pennsylvania Press for the essays: J.R. Dinwiddy (1975), ‘Bentham’s Transition to Political Radicalism, 1809-10\ Journal o f the History o f Ideas, 35, pp. 683-700. Copyright © 1994 Journal o f the History of Ideas, Inc; James E. Crimmins (1994), ‘Bentham’s Political Radicalism R e-exam ined’, Journal o f the History o f Ideas, 55, pp. 259-81. Copyright © 1994 Journal o f the History o f Ideas, Inc. University o f Toronto Press for the essay: Douglas G. Long (1977), ‘Fundamental Words’, in Douglas G. Long, Bentham on Liberty: Jeremy Bentham ’s Idea o f Liberty in Relation to his Utilitarianism, Toronto: University o f Toronto Press, pp. 65-83, 83a-83b. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface The International Library of Essays in the History of Social and Political Thought brings together collections of important essays dealing with the work of major figures in the history of social and political thought. The aim is to make accessible the complete text with the original pagination of those essays that should be read by all scholars working in that field. In each case, the selection is made from the extensive available literature by an established expert who has a keen sense of the continuing relevance of the history of social and political thought for contemporary theory and practice. The selection is made on the basis of the quality and enduring significance of the essays in question. Every volume has an introduction that places the selection made in the context of the wider literature, the historical period, the contemporary state of scholarship and the editor’s particular interests. TOM CAMPBELL Series Editor Centrefor Applied Philosophy and Public Ethics (CAPPE) Charles Sturt University Canberra

Introduction Jeremy Bentham (1748-1832), the influential philosopher, jurist, and social and political theorist, was a prolific writer whose various works have contributed to numerous contemporary academic disciplines, including philosophy, ethics, law, penology, political science, public administration and public policy, international relations, economics and sociology. Since the early 1960s the Bentham Project at University College London, drawing on a vast corpus of manuscripts at UCL, the British Library and other depositories, has endeavoured to publish a new edition of The Collected Works of Jeremy Bentham to replace the inadequate Works (1838^13) edited by his literary executor, John Bowring.1 Thus far, 26 of a projected 65 volumes have been published, with another 12 close to completion. With a few exceptions, the essays selected for publication in the present volume draw on and reflect the research carried out to produce the Collected Works. This research has led to a renaissance in Bentham studies, and only a small portion of this new material can be published in a single volume.2 Several criteria have been employed in the selection of these works. First, they reflect (with a few exceptions) the ongoing research stimulated by the new edition. Second, they contribute to important and long-standing debates in political and social thought regarding Bentham’s views and their significance. Third, they can form useful starting points for students and more advanced scholars to enter into these areas of academic study and debate. The Utilitarian Tradition As Douglas Long points out in Chapter 1, Bentham first coined the term ‘utilitarianism’ in 1781, so to write of a utilitarian tradition prior to this time may be somewhat misleading. Nevertheless, David Hume, Adam Smith, Bentham and John Stuart Mill frequently invoked the term ‘utility’, particularly in the sense of public utility. They were also aware of the importance of the Epicurean background to the idea of utility as the foundation of morality and its connection to hedonism (see Moore, 1988, 2002; Rosen, 2003). In exploring the utilitarian tradition, Long shifts the focus of attention away from treating Bentham and these related philosophers in terms of their contributions to ‘liberalism’ or ‘bourgeois ideology’. Like Frederick Rosen in Chapter 2, he argues that the tendency to see English utilitarianism as a fundamentally different enterprise from that of the so-called Scottish Enlightenment is mistaken. For Rosen, one must read Hume backwards (from the Enquiry concerning the Principles of Morals to the Treatise of Human Nature), which, despite Hume’s own advice, 1 See Bentham (1838-43). For a list of the volumes already published in the new edition of The Collected Works of Jeremy Bentham, see the References, p. xx. 2 For a number of reprinted essays on Bentham’s moral, political, and legal philosophy, see the two-volume collection, edited by Gerald Postema and published by Ashgate in 2002.

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is rarely done by Hume scholars. In doing so, one more fully appreciates the importance of utility to Hume, and Bentham’s subsequent employment of Hume’s ideas. The establishment of this context for understanding Bentham as a utilitarian would be incomplete without considering his unique contribution to philosophy, based on his writings on logic and language. In Chapter 3, Ross Harrison provides a clear and succinct account of how Bentham began with Locke’s theory of language, which he then criticized and developed in such a way that, according to Quine, Bentham took a crucial step which led to the projects of Russell and Carnap in the twentieth century. This chapter is also important for calling attention to aspects of Bentham’s philosophy that are not directly connected with the principle of utility (see also Bentham, 1997). Liberty and Justice There have been numerous debates over what Bentham meant by the principle of utility. Some of these have arisen from the contrast of his thought with that of Mill (see the discussions and references in Rosen, 2003, pp. 166-206). Two obvious points of contrast relate to an apparent absence of discussions of liberty and justice in Bentham, while they are particularly prominent themes for Mill in On Liberty and in the fifth book of Utilitarianism respectively. Recent scholarship on Bentham, however, has emphasized the importance of liberty and his belief that security (a kind of civil liberty) has an additional importance as the major ‘means to the end’ of happiness in society. A similar conception of security is also an important theme in Mill’s account of justice in Utilitarianism. In Chapter 4 Douglas Long provides a useful account of Bentham’s early writings on liberty and the basic distinction between liberty and security. These themes are developed in important directions by Gerald Postema and RJ. Kelly in Chapters 5 and 6. If, as Long points out, liberty means the absence of restraint and constraint, such a conception is incompatible with the state, law and coercion. For liberty in relation to law, Bentham develops the idea of security, which functions in several ways. Like subsistence, abundance (future subsistence) and equality, security is a secondary principle under utility and can be regarded as a means to generate increasing happiness in society. Security can also be seen as embodying subsistence, abundance and equality, and, hence, as forming the most important secondary principle under utility. Finally, security should be regarded as being oriented towards the future, distinguishing human beings from other animals in allowing them to secure their interests in expectations to be realized in the future. In Chapter 5 Postema explores security of expectation in terms of law, while in Chapter 6 Kelly considers this important theme in terms of distributive justice. In Chapter 7 Rosen takes up Bentham’s concepts of liberty and security and explores them in terms of the evolution of his ideas of constitutional government. Sovereignty and the State. The theme of sovereignty is at the heart of political theory. Until recently, Bentham’s ideas were identified with those of his so-called disciple, John Austin, whose account of sovereignty emphasized positive law as the command of the sovereign. As H.L.A. Hart points out in

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Chapter 8, Bentham’s own discussion o f sovereignty, particularly in O f Laws in General, was far more complex and subtle than that o f Austin, and Bentham allowed for limitations on sovereignty as well as for its divisibility. Although Hart challenges Bentham’s argument that limited sovereignty can be explained in terms o f a limited disposition to obey, he nonetheless believes that Bentham’s discussion o f sovereignty was original and important to an account of law and government. In Chapter 9 J.H. Bums surveys the doctrine o f sovereignty in Bentham’s early and later writings, including the Constitutional Code, where sovereignty ceases to be the power to make law, but in a representative democracy becomes the power to choose and reject rulers. Although Bums points out that some o f this transition was foreshadowed in earlier writings, he also believes that the consequences o f Bentham’s placing sovereignty in the people are important not only for his theory o f law, but also for the traditional doctrine of sovereignty as the exercise o f unlimited and indivisible power in a state. Rosen explores in Chapter 10 the theme o f sovereignty in a constitutional democracy, as worked out by Bentham in Constitutional Code and related writings. In comparisons with Blackstone and Rousseau he shows that Bentham was able to sustain a view o f popular sovereignty, unencumbered by absolute power either in the state or in the people. Even though sovereignty passes to the people and ‘omnicompetence’ is assigned to the legislature, Bentham managed to retain an idea o f sovereignty that is flexible and potentially limited and divisible. Polity and Economy Although Bentham was an early admirer o f Adam Smith’s An Inquiry into the Nature and Causes o f the Wealth o f Nations (1776), he was neither a disciple nor did he hesitate to criticize Smith on a number o f important issues (see Rosen, 2003, pp. 80-81, 114-30). Bentham’s conception o f economics was more closely integrated with his accounts o f law and government, and even his theory o f punishment, as developed in An Introduction to the Principles o f Morals and Legislation, was strongly influenced by economic considerations (see Bentham, 1996, pp. 165ff). Nevertheless, as Lionel Robbins has argued, Bentham has a strong case for being regarded, along with Smith, Ricardo, Malthus and McCulloch, as one of the originators o f classical economics (Robbins, 1952, p. 2, as quoted in Kelly, this volume, p. 295). In Chapter 11 Kelly develops a new interpretation o f Bentham’s principle o f utility based on the connection between this principle and Bentham’s civil law writings. According to Kelly, Bentham’s object was: . . . to construct a utilitarian theory o f distributive ju stic e w hich reconciles an in d iv id u al’s pursuit o f his ow n ends w ith the pursuit o f the m axim um social w ell-being. T his w ill involve a rejection o f the principle o f utility as a direct source o f obligations, and use the concepts o f security and ‘ex p ectatio n ’ to construct a system o f individual entitlem ents, (p. 297)

This perspective is then used to shed light not only on the utility principle but also on the case for seeing Bentham as an economic liberal. Rather than interpreting the role o f the legislator as one o f directing the economy, Kelly sees Bentham’s theory o f the economy and the related idea o f distributive justice as emerging from the framework o f security o f expectation which was discussed earlier in Chapters 4 to 6. In Chapter 12 David Lieberman explores

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the connections between polity and economy in a number of contexts with a focus on how Bentham’s economic writings fit into such a structure. The question then becomes one of whether or not Bentham’s legislative programme swallowed up his economics or vice versa. In attempting to answer such a question in the context of Bentham’s approach to taxation and public finance, Takuo Dome, in Chapter 13, shows how Bentham’s use of the idea of security dominated the way in which he regarded the role of taxation in society. Bentham tended to favour forms of taxation that would raise necessary revenue to enable the state to protect the individual without threatening that individual’s security. For example, one proposal was for an extension of taxation on inheritance which was carefully designed to avoid the pain of disappointed expectations while conferring numerous benefits on individuals in society, not least of which might be the gradual advancement of equality. If Bentham’s approach to the relationship between the state and the economy was not overtly redistributive, it nonetheless did not fail to appreciate the importance of an increasing equality in society as a means to happiness. Society It may appear peculiar to begin an assessment of Bentham’s social thought with two essays on Michel Foucault whose well-known critique of Bentham’s panopticon prison in Discipline and Punish might be seen more as a contribution to penal theory (see Foucault, 1975, 1977). But Foucault’s depiction of the panopticon as an image of a totalitarian society where rationality joins social control to establish a regime of human subjugation has served to define the legacy of Bentham’s social thought to the present age. In Chapter 14 Janet Semple challenges Foucault’s use of panopticon as an accurate interpretation of Bentham’s account of society and the state. Roy Porter’s contribution in Chapter 15 extends Semple’s interpretation to challenge Foucault’s position more comprehensively. He argues that the Foucauldian paradigm of institutions embodying rational control does not fit the facts of Great Britain around 1800 and that even the actual efforts to establish Bentham’s panopticon, as explored in Semple’s Bentham’s Prison (1993), reveal ‘real people politicking’ rather than Foucault’s paradigm. As a further dimension to this discussion Michael Quinn (Chapter 16) draws on Bentham’s writings on the Poor Laws and his conception of panopticons for the poor. He explores Bentham’s ideas concerning poor relief in the context of debates current in Bentham’s day and in relation to aspects of Bentham’s views on subsistence, property, labour and related concepts. Numerous other social issues are raised and discussed in Bentham’s writings. In Chapter 17 Lea Boralevi assesses generally the utilitarian approach to feminism and, particularly, Bentham’s contribution. Calling Bentham ‘the father of historical feminism’, Boralevi considers his belief in principle in extending the right to vote to women and the social and legal assumptions behind such a proposal. For Boralevi, Bentham confronted numerous deepseated prejudices against women and argued for an end to their oppression in society. Boralevi also discusses the way in which Mill’s feminist ideas developed from similar utilitarian premises. Louis Crompton’s stark contrast in Chapter 18 between Bentham, ‘the philosophical hedonist and moral revolutionary [who] lived the life of an ascetic’ and Byron, ‘the rake who mocked society [but] never seriously challenged its moral premises’ forms the background to

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his analysis of Bentham’s writings on homosexuality. These writings evolve from three areas: writings on penal law where he criticized the numerous sexual offences which often caused no harm, but were severely punished (at times by the death penalty); writings on ethics where he consistently attacked asceticism as denying happiness and favoured liberty in matters of taste; and, finally, writings on religion where he portrayed Paul as the ascetic and Jesus as not opposed to pleasure. Bentham favoured the abolition of much long-established legislation on sexual morality, where no harm was caused to consenting adults or to society. The French Revolution and Political Radicalism The development of Bentham’s radicalism has stimulated several important debates in recent decades. One of these is concerned with Bentham’s response to the French Revolution and his involvement in the Lansdowne circle, which included not only the Marquis of Lansdowne (formerly Lord Shelburne), but also Samuel Romilly and Etienne Dumont, whose friendships with Bentham deepened and expanded at this time. Although Bentham was made an honorary citizen of France in 1792, his response to the revolution was a complex one, which culminated in a major retreat from radicalism, as the Terror developed. In Chapter 19 J.H. Bums explores Bentham’s writings for France and challenges the earlier view of Mary Mack (1962) that Bentham’s retreat from radicalism was simply a tactical withdrawal. Bentham wrote nothing in favour of parliamentary reform until 1809 and published nothing of consequence until the appearance of Plan of Parliamentary Reform in 1817. J.R. Dinwiddy in Chapter 20 presents an account of Bentham’s ‘transition to radicalism’ in 1809-10. He rejects Mack’s view that as Bentham was already a radical at the time of the French Revolution, he was simply waiting for favourable circumstances to reassert his radical credentials. Dinwiddy also questions the widely established view that James Mill in 1809 converted Bentham to support radical reform. He considers a number of factors, besides the presence of James Mill, that led Bentham to adopt a programme of radical reform - from the failure of the panopticon prison scheme to the impact of events in Spain and Spanish America, from the revival of radicalism more generally in Britain to the increasing opportunities to advance legal reform in numerous spheres. (These themes are explored more fully in Dinwiddy, 1992.) In Chapter 21 James Crimmins seems to accept that Bentham was a radical thinker throughout his life and that his political radicalism was kindled at the time of the French Revolution in 1788-90. Like Mack, he takes the view that Bentham’s retreat from radicalism was mainly tactical, and that he remained a radical reformer until the time was more appropriate to write on parliamentary reform. Thus, for Crimmins, Bentham’s democratic credentials were fully established at the time of the French Revolution. Crimmins also considers in some detail the relationship between Bentham and James Mill in 1809-10 and suggests that the radical and democratic Bentham might have influenced Mill as much as Mill influenced Bentham. In Chapter 22 Philip Schofield reconsiders Bentham’s radicalism at the time of the French Revolution, particularly in light of the publication of a number of his important writings of that time in the Collected Works (see Bentham, 1999, 2002). Besides clarifying the development of Bentham’s ideas, he also emphasizes the importance of Bentham changing his views in light of circumstances and opportunities to advance various projects. He presents Bentham more as a ‘projector’ than as a fully-fledged democrat at this time. For example, while Bentham advocated radical reform in Britain in 1789, he also held ambitions to become

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a member of parliament representing one of the pocket boroughs under the control of the Marquis of Lansdowne. Schofield concludes that Bentham’s radicalism was motivated more by his utilitarian philosophy and disappointment with his efforts at moderate reform than by the events of the French Revolution. Revolution in Government Bentham’s influence throughout the world, particularly in the nineteenth century, has been the subject of considerable debate. The three essays selected for Part VII concentrate mainly on Britain, though some recent scholarship has emphasized the influence of Bentham’s ideas in a wider and, in particular, a colonial, context (see Pitts, 2003, 2005; Rosen, 2005). In Chapter 23 S.E. Finer challenges Dicey’s view that Bentham’s ideas were influential roughly between 1825 and 1870, because they reflected the spirit of the times. This spirit apparently included the prevailing ideas of the English middle class, such as utilitarianism and individualism. Finer counters this view by asking a different question: How did Bentham, the relatively solitary scribbler, develop circles of influence in personal friendships, access to influential legislative committees and more generally to the press and other means of publicity, and the infiltration of government bodies to effect Benthamite reforms? Although Finer is cautious as to what was actually achieved by the Benthamites, particularly in social and administrative reform, he concludes that Bentham’s ‘thoughts and attitudes’ played a significant role in numerous spheres including penology, health, education, the protection of paupers and workers, finance, fiscal policy and the machinery of government. In Chapter 24 L. J. Hume takes up the debate concerning the importance of Bentham and Benthamism in the ‘nineteenth-century revolution in government’ by challenging writers such as J.B. Brebner, David Roberts and Oliver MacDonagh, who questioned Dicey’s interpretation of the extent of Bentham’s influence (see Brebner, 1948; MacDonagh, 1958; Roberts, 1959; cf. Parris, 1960; Hart, 1965). Hume concentrates on Bentham’s Constitutional Code and uses it to show that while MacDonagh and Roberts were able to establish that nineteenth-century administrative reform differed from the provisions of Bentham’s Code, they then proceeded to distort the truth by pointing to an opposition between Bentham and these reforms. They did so by placing an undue emphasis on laissez-faire in Bentham’s thought, adopting static views of Bentham’s idea of social regulation and taking a misleading view of checks and balances in Bentham’s constitutional theory. Stephen Conway seeks to show in Chapter 25 that Bentham’s thought was in harmony with the general thrust of government reform in the middle decades of the nineteenth century and anticipated some features of these developments. Drawing on the new edition of the Collected Works and, in particular, the Correspondence, he assesses the extent to which Bentham’s friends and associates were actually applying his principles. He also examines the possibility that other participants in the revolution in government might have been influenced by Bentham’s ideas (see also Conway, 1990, 1991).

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Conclusion The essays selected for this volume provide a useful guide to past research as well as an essential starting point for understanding new developments in both Bentham scholarship and the broader historical and philosophical contexts of classical utilitarianism. Building on some of the essays included here, scholars may wish to explore further the Epicurean foundations of utilitarianism, or the development of Bentham’s logic. New editions of his writings on logic and language, on political fallacies, and on evidence are at an advanced stage at the Bentham Project. Reliable, annotated and indexed editions of these works will constitute a great boost to scholarship in these fields. For example, the writings on evidence should illuminate both Bentham’s logic and his moral psychology in a socio-legal context. The new edition of the writings on logic and language will replace the wholly inadequate version in the Bowring edition which was later used by C.K. Ogden (see Bentham, 1838^13, vol. 8, pp. 192-357; Ogden, 1932), enabling us to obtain a more coherent, accurate, and comprehensive understanding of this dimension of Bentham’s thought. Bentham’s democratic theory has already attracted a number of scholars across several disciplines. Lawyers are concerned with his view of sovereignty; others explore bureaucracy and liberty in government institutions; and new work is proceeding on the link between democracy and publicity and public opinion (see Ben Dor, 2000; Engelmann, 2001; de Champs, 2006).3With the transcription of Bentham’s voluminous manuscripts on parliamentary reform and the publication of recent volumes of Correspondence, a new historical assessment of the development of Bentham’s political ideas generally can be made (see Schofield, 2006). The essays published here under the heading o f4Polity and Economy ’ will provide a useful basis for further work on Bentham’s economic thought in the broader context of his political and legal ideas. With the first volume of the Poor Law Writings published and the second and concluding volume at an advanced stage, a fuller assessment of Bentham’s writings on poor relief and the poor panopticon can be made. The main essays on colonies have also been published, and although the Stark edition of Bentham’s Economic Writings has not yet been replaced, it is possible to reconsider his position as a classical economist and the role of economics generally in his thought. There has been a renewed interest in Bentham’s economic thought in France, Japan and Britain, and new writing on empire and slavery in Britain and the United States (see, for example, Sigot, 2001; Dome, 1999; Warke, 2000; see also Schultz and Varouxakis, 2005). With some notable exceptions, Bentham’s writings on religion and the political significance of religious institutions have yet to be thoroughly investigated (see Steintrager, 1980; Crimmins, 1990, 2001; Schofield, 1999). Nevertheless, editorial work on Bentham’s Churchof-Englandism is now at an advanced stage and all of the manuscripts on religion have been transcribed. This material will enable a reassessment to take place of Bentham’s complex views on religion and the role of religious institutions in society. In addition, it is now possible to link Bentham’s theological views with those of earlier philosophers (particularly, though by no means exclusively, with Hume and Paley) and to estimate his legacy to later thinkers, such as J.S. Mill. 3 See also D. Lieberman’s recent lecture at the 2005 Dartmouth College ISUS conference on democracy and publicity and Sina Odugbemi’s doctoral work at University College London on public opinion in Bentham and Dicey.

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References Bentham’s Works The Works of Jeremy Bentham, 11 volumes, ed. J. Bowring, Edinburgh: William Tait, 1838-43. Jeremy Bentham s Economic Writings, ed. W. Stark, London: George Allen and Unwin, 1952-4. The Collected Works of Jeremy Bentham, general editors, J.H. Burns, J.R. Dinwiddy, F. Rosen and R Schofield, London: Athlone Press and Oxford: Clarendon Press, 1968-. Of a projected total of 65-8 volumes, 26 have now been published: Correspondence, volumes 1 and 2, 1752-1776 and 1777-1780, ed. T.L.S. Sprigge, London: Athlone Press, 1968. An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns and H.L.A. Hart, London: Athlone Press, 1970; reprinted with a new introduction by F. Rosen and an additional essay by Hart, Oxford: Clarendon Press, 1996. Of Laws in General, ed. H.L.A. Hart, London: Athlone Press, 1970. Correspondence, volume 3, 1781-1788, ed. I. Christie, London: Athlone Press, 1971. A Comment on the Commentaries and A Fragment on Government, ed. J.H. Burns and H.L.A. Hart, London: Athlone Press, 1977. Correspondence, volumes 4 and 5, 1788-1793 and 1794-1797, ed. A. Taylor Milne, London: Athlone Press, 1981. Chrestomathia, ed. M.J. Smith and W.H. Burston, Oxford: Clarendon Press, 1983. Constitutional Code, volume I, ed. F. Rosen and J.H. Burns, Oxford: Clarendon Press, 1983. Deontology together with A Table of the Springs of Action and Article on Utilitarianism, ed. A. Goldworth, Oxford: Clarendon Press, 1983. Correspondence, volume 6, 1798-1801, ed. J.R. Dinwiddy, Oxford: Clarendon Press, 1984. Correspondence, volume 7, 1802-1808, ed. J.R. Dinwiddy, Oxford: Clarendon Press, 1988. Correspondence, volume 8, 1809-1816, ed. S. Conway, Oxford: Clarendon Press, 1988. First Principles Preparatory to Constitutional Code, ed. P. Schofield, Oxford: Clarendon Press, 1989. Correspondence, volume 9, 1817-1820, ed. S. Conway, Oxford: Clarendon Press, 1989. Securities against Misrule and other Constitutional Writings for Tripoli and Greece, ed. P. Schofield, Oxford: Clarendon Press, 1990. Official Aptitude Maximized; Expense Minimized, ed. P. Schofield, Oxford: Clarendon Press, 1993. Correspondence, volume 10, 1820-1821, ed. S. Conway, Oxford: Clarendon Press, 1994. Colonies, Commerce and Constitutional Law: Rid Yourselves of Ultramaria and other writings on Spain and Spanish America, ed. P. Schofield, Oxford: Clarendon Press, 1995. Legislator of the World’: Writings on Codification, Law, and Education, ed. P. Schofield and J. Harris, Oxford: Clarendon Press, 1998. Political Tactics, ed. M. James, C. Blamires and C. Pease-Watkin, Oxford: Clarendon Press, 1999. Correspondence, volume 11, 1822-1824, ed. C. Fuller, Oxford: Clarendon Press, 2000. Writings on the Poor Laws, volume I, ed. M. Quinn, Oxford: Clarendon Press, 2001. Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution, ed. P. Schofield, C. Pease-Watkin and C. Blamires, Oxford: Clarendon Press, 2002. Correspondence, volume 12, 1824-1828, ed. L. O’Sullivan and C. Fuller, Oxford: Clarendon Press, 2006. De I’ontologie et autres textes sur les fictions, ed. P. Schofield, Jean-Pierre Clero and Christian Laval, Paris: Editions du Seuil, 1997.

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Secondary Works Ben Dor, O. (2000), Constitutional Limits and the Public Sphere: A Critical Study of Bentham’s Constitutionalism, Oxford: Hart. Brebner, J.B. (1948), ‘Laissez Faire and State Intervention in Nineteenth-Century Britain’, Journal of Economic History, 8, pp. 59-73. Conway, S. (1990), ‘Bentham, the Benthamites, and the Nineteenth-Century British Peace Movement’, Utilitas, 2, pp. 221-43. Conway, S. (1991), ‘John Bowring and the Nineteenth-Century Peace Movement’, Historical Research, 64, pp. 344-58. Crimmins, J. (1990), Secular Utilitarianism: Social Science and the Critique of Religion in the Thought of Jeremy Bentham, Oxford: Clarendon Press. Crimmins, J. (2001), ‘Bentham’s Religious Radicalism Revisited: A Response to Schofield’, History of Political Thought, 22, pp. 494-500. de Champs, E. (2006), Les fonctionnaires dans le Code Constitutionel, Hierarchie et liberte, La Revue Benthamienne, no. 1 (online). Dinwiddy, J. (1992), Radicalism and Reform in Britain 1780-1850, London: Hambledon Press. Dome, T. (1999), ‘Bentham and J.S. Mill on Tax Reform’, Utilitas, 11, pp. 320-39. Engelmann, S. (2001), ‘Imagining Interest’, Utilitas, 13, pp. 289-322. Foucault, M. (1975), Surveiller etpunir: Naissance de la prison, Paris: Gallimard. Foucault, M. (1977), Discipline and Punish: The Birth of the Prison, London: Allen Lane. Hart, J. (1965), ‘Nineteenth-Century Social Reform: ATory Interpretation of History’, Past and Present, 31, pp. 39-61. MacDonagh, O. (1958), ‘The Nineteenth-Century Revolution in Government: A Reappraisal’, Historical Journal, 1, pp. 52-67. Mack, M. (1962), Jeremy Bentham: An Odyssey of Ideas 1748-1792, London: Heinemann. Moore, J. (1988), ‘Natural Law and the Pyrrhonian Controversy’, in P. Jones (ed.), Philosophy and Science in the Scottish Enlightenment, Edinburgh: John Donald. Moore, J. (2002), ‘Utility and Humanity: The Quest for the Honestum in Cicero, Hutcheson and Hume’, Utilitas, 14, pp. 365-86. Ogden, C.K. (1932), Bentham s Theory of Fictions, London: Kegan Paul, Trench, Trubner. Parris, H. (1960), ‘The Nineteenth-Century Revolution in Government: A Reappraisal Reappraised’, Historical Journal, 3, pp. 17-37. Pitts, J. (2003), ‘Legislator of the World? A Rereading of Bentham on Colonies’, Political Theory, 31, pp. 200-234. Pitts, J. (2005), A Turn to Empire: The Rise of Imperial Liberalism in Britain and France, Princeton, NJ: Princeton University Press. Postema, G. (ed.) (2002), Bentham: Moral, Political and Legal Philosophy, 2 vols, Aldershot: Ashgate. Robbins, L. (1952), The Theory of Economic Policy in English Classical Economy, London: Macmillan. Roberts, D. (1959), ‘Jeremy Bentham and the Victorian Administrative State’, Victorian Studies, 2, pp. 193-210. Rosen, F. (2003), Classical Utilitarianism from Hume to Mill, London: Routledge. Rosen, F. (2005), ‘Jeremy Bentham on Slavery and the Slave Trade’, in B. Schultz and G. Varouxakis (eds), Utilitarianism and Empire, Lanham MD: Lexington Books. Schofield, P. (1999), ‘Political and Religious Radicalism in the Thought of Jeremy Bentham’, History of Political Thought, 20, pp. 272-91. Schofield, P. (2006), Utility and Democracy: The Political Thought of Jeremy Bentham, Oxford: Oxford University Press.

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Schultz, B. and Varouxakis, G. (eds) (2005), Utilitarianism and Empire, Lanham, MD, Lexington Books. Semple, J. (1993), Bentham s Prison: A Study of the Panopticon Penitentiary, Oxford: Clarendon Press. Sigot, N. (2001), Bentham et I’economie, Une histoire d ’utilite, Paris: Economica. Steintrager, J. (1980), ‘Language and Politics: Bentham on Religion’, The Bentham Newsletter, 4, pp. 4-20. Warke, T. (2000), ‘Multi-Dimensional Utility and the Index Number Problem: Jeremy Bentham, J.S. Mill, and Qualitative Hedonism’, Utilitas, 12, pp. 176-203.

Part I The Utilitarian Tradition

[1]

‘Utility’ and the ‘Utility Principle’: Hume, Smith, Bentham, Mill D OU GL AS G. LONG University of Western Ontario

I. ‘UTILITY’ AND ‘UTILITARIANISM ’: A METHODOLOGICAL NOTE David Hume, Adam Smith, Jeremy Bentham and John Stuart Mill are often viewed as contributors to or participants in a common tradition of thought roughly characterized as 'the liberal tradition’ or the tradition of ‘bourgeois ideology’. This view, however useful it may be for polemical or proselytizing purposes, is in some important respects historiographically unsound. This is not to deny the importance of asking what twentieth-century liberals or conservatives might find in the works of, say, David Hume to support their respective ideological persuasions. It is only to insist that attempts to use selected arguments, or parts of arguments, from great eighteenth-century thinkers to shore up twentieth-century programmatic political positions must be cate­ gorically distinguished from attempts to understand what Hume, Smith, Bentham or Mill actually meant, or could imaginably have meant, to say. What Professor Quentin Skinner has rightly called ‘mythologies’1 seem the unavoidable result when commentators insist on assessing the ‘completeness’, ‘adequacy’ or ‘success’ of the work of these four theorists in terms of their contributions to enterprises of which they can have had no conception even remotely similar to that employed by their twentieth-century interpreters. Neither Hume nor Smith, Ben­ tham nor Mill was forging an ideology or attempting forcibly to sustain—as distinct from explicating—the hegemony of a given class in civil society. I wish, therefore, simply to set aside questions like ‘Was Hume the father of classical liberalism?’, or ‘Were Bentham and J. S. Mill possessive individualists?’. Similarly, I do not propose to speak of Hume’s or Smith’s ‘utilitarian­ ism’. Neither of these thinkers used this term, which first appears in Bentham’s vocabulary in 1781. More importantly, I think it misleading to characterize the thought of either man as comprehensively ‘utili1 Quentin Skinner, ‘Meaning and Understanding in the History of Ideas’, History and Theory, viii (1969), 7.

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Utility and the Utility Principle 13 tarian’, even in a negative or ‘contemplative*2 sense. What the relevant texts actually show us is that Hume and Smith used the term ‘utility’, and also the phrase 'principle of utility’ or reasonable facsimiles thereof, in a specifiable range of contexts and ways. These usages can, I think* be very usefully compared to the practices of Bentham and J. S. Mill, and in the present paper I shall try to make at least a few such comparisons. Even in the cases of Bentham and Mill, I propose to focus on what they had to say about ‘utility’ and the ‘utility principle’, rather than couching my analysis in terms of their respective versions, so to speak, of utilitarianism. It seems to me that major methodological problems begin to materialize as soon as we speak of ‘versioi>s’ of utilitarianism: was Bentham an act or rule utilitarian? Did he ‘succeed’ in anticipat­ ing in any way the preference-based utilitarianism of modern econo­ mists or the ideal utilitarianism of modern philosophers? To pose such questions is to ask, not what Bentham said or meant, but to what degree his words happen to harmonize with the insights, aspirations or predispositions of a wide variety of subsequent theorists. Hume, Smith, Bentham and Mill do not provide us with four ‘versions’ of utilitarian­ ism. Each does, however, carefully characterize ‘utility’ and discuss the nature and operations of a ‘principle of utility’ within the broad context of a science of human nature and society. I shall argue that the distinctive treatment of the meaning of ‘utility’ and of the idea of a ‘principle of utility’ provided by each of these four theorists is strongly shaped by, and indeed presupposes, a particular conception of the methodology, scope and goals of that science. II. FROM SCOTTISH MORAL PHILOSOPHY TO ‘BENTH AM ISM ’ In Adam Smith’s politics Donald Winch issued a salutary call for attention to the contrasts which an attentive textual analysis reveals between the moral, political and methodological theories of Hume and Smith on the one hand, and of the English utilitarians on the other: ... any history of the social sciences which fails to confront the discontinuity marked by the transition from Scottish moral philosophy and its associated histories of civil society on the one side, to Benthamism on the other, would be guilty of sidestepping one of the most intriguing problems in that history.3 2 ‘While [Smith] is consistently hostile to utility both as an explanation for the origin of moral rules and as a principle to be applied routinely in everyday circumstances, it is to the criterion of utility ... that he has recourse in his evaluation of practices, institutions, and systems as a whole.’ T. D. Campbell and I. S. Ross, ‘The Utilitarianism of Adam Smith’s Policy Advice’, Journal of the History of Ideas, xlii (1981), 73-92. See also T. D. Campbell, Adam Smith's Science of Morals, London, 1971, pp. 217-20. 3 Donald Winch, Adam Smith's Politics, Cambridge, 1978, p. 184. Winch refers the reader to J. W. Burrow, Evolution and Society: a Study in Victorian Social Theory, Cambridge, 1965, Chapters 1-3 for a full discussion of this issue.

Jeremy Bentham

14 Douglas G, Long Winch especially emphasizes the claim that Smith’s moral and political thought was not as radically ‘individualist’ as that of Bentham or the two Mills: ... Smith’s values were ... both post- and pre-individualist in the sense defined, say, by Hobbes on the one side, and redefined by Bentham and James Mill on the other. When the most is made of Smith’s negative and contemplative utilitarianism, and when his concept of self-interest is reduced to its narrowest form, it is still not possible to bridge the gap between his politics and the radical individualism of nineteenth-century utilitarianism: his science of the legislator is not the Benthamite science of legislation.4 I agree wholeheartedly with Winch’s suggestion that the discon­ tinuities between the moral and political theories of the Scottish Enlightenment and those of the English Utilitarians are in need of clarification and emphasis. I am not sure that this cause is well served, however, by Winch’s concentration on the putative contrast between Smith’s civic humanist conception of the citizen/subject and the ‘radical individualism of nineteenth-century utilitarianism’. An ex­ amination of the use of the idea of ‘public utility’ or the ‘common interest’ in Hume, Smith, Bentham and Mill reveals more continuity than this polarized view seems to postulate. Moreover, ‘individualism’ seems to me a term dangerously prone to anachronistic—and/or partisan—misuse. The fecundity, as Bentham might say, of Winch’s line of historiographic inquiry might be better sustained if we pursued our ‘history of the social sciences’ by examining the features of, say, jurisprudence, political economy and moral philosophy as understood in each author in relation to the over-arching conception of a science of human nature and society. A comparison of Smith’s ‘science of the legislator’ with ‘the Benthamite science of legislation’, for example, would be immensely valuable. It is well known that Bentham literally had no use for such central figures in the tradition of Natural Jurisprudence as Grotius, Pufendorf, Barbeyrac, Burlamaqui and Vattel. The antagonism between Scottish natural jurisprudence and Ben­ tham’s ‘censorial jurisprudence’ is only one of many possible illustra­ tions of Winch’s claim that ‘the gulf between Smith’s intellectual enterprise and those that are often regarded as his successors runs deeper than has been suspected’.5 In the field of political economy, despite his public stance of discipleship and indebtedness to the work of Smith, Bentham developed a conception of the ‘art and science’ of political economy as a ‘branch of the art of government’6 which was 4 Winch, p. 181. 5 Ibid., p. 184. 6 See Jeremy Bentham’s Economic Writings: critical edition based on his printed works and unpublished manuscripts, ed. W. Stark, 3 vols., London, 1952-54, ii. 318ff.

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Utility and the Utility Principle 15 much more interventionist7 than anything entailed by the ‘contempla­ tive utilitarianism’8 of Smith. I can do little more here than to recognize what I take to be the great potential value of such lines of inquiry, and to invite any who have not yet had the pleasure of doing so to read the recent works on these topics of Knuud Haakonssen, Gerald Postema and others.9 Jurisprudence and Political Economy, from the perspective of the present discussion, are of interest as fields in which a given author’s concepts of ‘utility’ and the ‘utility principle’ may be applied. The field of moral philosophy requires more detailed study here, for this will help us to see how those concepts are shaped. Evidence of Bentham’s attitude toward Scottish moral philosophy (which he took to be the source of what was distinctive in the Scottish version of Natural Jurisprudence), is provided by some of the marginal observations he added to his ‘Table of the Springs of Action’ just prior to the printing of the ‘Table’ in 1815. There he named ‘A. Smith’ as a teacher of the principle of ‘ipse-dixitism’, and thus a practitioner of the art of ‘substituting smoke to light’.10 He spoke of an ipse-dixitist ‘philosophy’ as one ... Setting up SENSE or feeling, real or pretended, as a sufficient reason for obligation to act in opposition to utilitarianism: discarding calculation, disregarding consequences in respect of pleasure and pain.11 The ascendancy of Scottish moral philosophy in the eighteenth cen­ tury had, he charged, been won largely by default. Scottish moral sense theory moved into the vacuum left by the substitution of unquestion­ ing religious orthodoxy for ethical thinking at Oxford and Cambridge: In English universities, religion kept Ethics out of the schools and drove her to Scotland. The Scotch Universities received those who looked for instruction. The English and Irish, those who looked for patronage. Subscriptions, not exacted in Scotland.12 7 ‘Bentham’s utilitarianism is a highly interventionist creed ... ’: see M. H. James, ‘Public Interest and Majority Rule in Bentham’s Democratic Theory’, Political Theory, ix (1981), 62. ‘I have not ... any horror, sentimental or anarchical, of the hand of government. I leave it to Adam Smith, and the champions of the rights of man ... to talk of invasions of natural liberty, and to give as a special argument against this or that law, an argument the effect of which would be to put a negative upon all laws.’ ‘Defence of a Maximum’, in Bentham’s Economic Writings, iii. 257-58. 8 See note 2 above. 9 On Jurisprudence, see Haakonssen’s The Science of a Legislator, Cambridge, 1981, and Postema’s Bentham and the Common Law Tradition, Oxford, 1986. On Political Economy, see for example S. Hollander, ‘The Role of Bentham in the Early Development of Ricardian Theory’, Bentham Newsletter, iii (1979), 2-17, and R. D. C. Black, ‘Bentham and the Political Economists of the Nineteenth Century’, Ibid., xii (1988), 24-36. 10 See ‘A Table of the Springs of Action: Marginals—Added Observations’, in Deon­ tology: together with A Table of the Springs of Action and Article on Utilitarianism, ed. A. Goldsworth, Oxford, 1983 {The Collected Works of Jeremy Bentham), p. 29 (hereafter cited as Deontology). u Ibid., p. 24. 12 Ibid., p. 55.

Jeremy Bentham

16 Douglas G. Long Bentham seems to have seen this Scottish monopoly on ethical theoriz­ ing as conducive to a lax and subjective approach to the task: When everything is done by feeling and talking about feeling, the task of a teacher is not difficult ... Hume, Reid, Smith, etc. vied in cultivating it. No wonder [—] it fitted everyone and proved all DESIDERATA without skill or practice. ... In morals, instruction could be delivered without thought, so as to please every man.13 The teaching of moral theory in Scotland failed, in Bentham’s eyes, to exhibit the methodological features of ‘advanced sciences’ such as ‘Cosmography’, chemistry, ‘Electricity or Galvanism’, ‘Natural His­ tory’ or even ‘Domestic Economy’.14 Speaking of the scientific study of motives, as exemplified in his ‘Table of the Springs of Action’, he claimed that ‘Of this as of other sciences, a man’s view is the more correct and complete the fewer the leading terms under which he has been able to reduce it.’15 Instead of progressing toward this methodolo­ gical goal, the Scottish Enlightenment had moved in precisely the opposite direction: Independent principles in multitudes imagined by a host of Scotch Sophists erroneously accounting for psychological phenomena already correctly accounted for by few principles: for each phenomenon a separate innate principle.16 More than 25 years before the printing of the ‘Table of the Springs of Action’, in his Introduction to the Principles of Morals and Legisla­ tion,11 Bentham had already identified the methodological master principle responsible for the proliferation of operative principles in Scottish moral theory. Among anti-utilitarian principles, he wrote, this principle was the one ‘which at this day seems to have the most influence in matters of government... the principle of sympathy and antipathy’.18 Bentham’s use of ‘sympathy’ here is profoundly different from the crucial use made of that term by both Hume and Smith in their moral and social theories. ‘Sympathy’ had been indispensable to Hume’s and Smith’s explanations of duty and obligation, and of that combination of self-interest and limited generosity upon which realis­ tic moral and political theorists must rest their expectations of human13 Ibid. 14 Ibid., p. 23. 15 Ibid., p. 55. 16 Ibid., p. 28. 17 Largely completed by 1780 but revised in 1789 just before publication. Ch. II, para. 11, note c, in which the principle of sympathy and antipathy, the principle of caprice and the phantastic principle are discussed, was first printed in 1789. See An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, London, 1970 (CW), pp. 21-4 (hereafter cited as IPML). 18 IPML (CW), Ch. II, para. 11, p. 21.

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Utility and the Utility Principle 17 kind. Sympathy, as something distinct from the perception of utility, made propriety and benevolence possible in civil society as well as ensuring a continuing commitment by citizens to the observance of the rules of justice. Sympathy—the modern equivalent would be ‘empathy’ with our fellow citizens—was for both Hume and Smith an integral part of the conception of self-interest. Given this assumption, the intelligently self-interested citizen could be expected to exhibit an adequate understanding of public utility. In Bentham, however, the phrase ‘sympathy and antipathy’ implied the very opposite of social ‘empathy’. Bentham strove to attach to it connotations of self-centred sentimentalism and selfish partisanship. ‘Sympathy’ and ‘Antipathy’ thus amounted to little more than Hobbesian desire and aversion, with the activity of the individual’s will resembling Hobbes’s process of ‘deliberation’.19 In 178920 Bentham considered trying to capture the arbitrariness and subjectivity of the principle of sympathy and anti­ pathy by christening it the ‘principle of caprice’, or evoking its connection with the multiplication of unwanted ‘fictions’ by entitling it ‘the phantastic principle’. Whichever guise it assumes, he argued, this principle ‘. .. approves or disapproves of certain actions ... merely because a man finds himself disposed to [do so]’;21 it is really ‘a term employed to signify the negation of all principle’.22 To adopt and apply it ‘you need but to take counsel of your own feelings .. ... if you hate much, punish much: if you hate, little punish little: punish as you hate. If you hate not at all, punish not at all: the fine feelings of the soul are not to be overborne and tyrannized by the harsh and rugged dictates of political utility.23 In 1815, Bentham summarized the contrast, as he saw it, between his own social and political thought and the perspective of Scottish ‘Sentimentalists’: Utilitarianism, working by calculation, is consistent and solicitous benefi­ cence. Sentimentalism, in so far as independent of utilitarianism, is in effect a mask for selfish [ness?] or malignity, or both for despotism, intolerance, tyranny.24 Bentham hated Scottish ‘sentimentalism’ as scientists despise sophists. Its popularity depressed him. To postulate that anything other than utility could be the basis of morals and government, he wrote, was ‘as absurd in psychology as to say in physics that to take aim diminishes the chance of hitting a mark’.25 Bentham’s hopes for a Helvetian/ Newtonian moral science seem not tohave been altogether quenched, 19 See Hobbes, Leviathan, Book I, Ch. 5-6. 20 See IPML (CW), Ch. II, para. 11, note c, p. 21. 21 Ibid., para. 11, p. 25. 22 Ibid., para. 12, p. 25.

23 Ibid., para. 13, p. 25. 24 Deontology, (CW) p. 35. 25 Ibid., p. 47.

Jeremy Bentham

18 Douglas G. Long but must have been weakened, by his diagnosis of the general social situation he faced: In politics, religion and morals every man clings to the notions most accordant to his prepossessions and all turn a deaf ear to truth which might shackle their will while it enlightened their understanding. Each man wishes to do his will. Truth, if subservient to this, is acceptable; if obstructive, odious.26 III. THE ‘CONTINENTAL ALTERNATIVE’ Clearly Jeremy Bentham perceived the moral thought of the Scottish Enlightenment, of the whole ‘host of Scotch sophists’,27 as a major alternative to his own utilitarian theory. He saw in Moral Sense theory an introspective mysticism, an impenetrable subjectivism which was the antithesis of a genuinely scientific approach to moral choice and action. Scottish philosophers treated ‘sentiment’ as an important component of the human understanding, and specifically as a source of sociable behaviour. Bentham understood ‘sentiment’ only as a special kind of desire, a mode of volition in the context of his ‘logic of the will’.28 Bentham largely substituted his dictum that ‘physical sensi­ bility is the ground of law’29 for the Scottish conviction that moral sentiments are the basis of sociability. Even as he rejected and attacked the Scots, he embraced with almost indiscriminate enthusi­ asm the Continental alternative. He particularly invoked, as is well known, the guidance of Helvetius and Beccaria, and portrayed himself as an intermediary strategically placed so as to be able to take advantage of English civil liberties in disseminating the ideas of his continental masters. This age, say they [?], is the age of Philosophy. All the nations of Europe have produced men of genius in this walk. All seem to occupy themselves in our days in searching after moral truth. Be it so. But in what country can it with impunity be divulged?—There is but one: ’tis England. No, England any more than Portugal is not wanting in men who as far as wishes can make them are oppressors. But against the press what in London is their power?30 He also paid homage after a fashion to the genius of Montesquieu. In a draft preface for his never-published masterwork, the ‘Elements of Critical Jurisprudence’, he described Montesquieu as ‘the 1st architect who saw the possibility’ of building a ‘bridge’ between the ‘worlds’ of Philosophy and Law: 26 Ibid. 27 See above at note 16. 28 See 1PML (CW), ‘Preface’, pp. 8-9. 29 See UC lxix. 10. Discussed in D. Long, Bentham on Liberty, Toronto, 1978, p. 17. 30 UC xxvii. 4: Draft ‘Introduction’ to ‘The Elements of Critical Jurisprudence’, a work Bentham regarded in the 1770s as his projected magnum opus.

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Utility and the Utility Principle 19 ... he has attempted it: But his structure neither having any solid foundation on the shore of Philosophy nor reaching hence to that of Law, nor being built of any other than light and crumbling materials, is unable, as men begin already to perceive & to acknowledge[,] to stem the tide of time.31 In relation to Montesquieu Bentham was capable of adopting a critical stance. In the case of Helvetius, as I have argued elsewhere,32 Bentham the censor was tongue-tied. Bentham seems to have been utterly inspired by De L ’Esprit (1759), a book whose qualities Hume grasped perfectly when he told Smith that it was ‘worth your reading, not for its philosophy, which I do not highly value, but for its agreeable composition’.33 Bentham first read De L ’Esprit in 1769. In 1817 he was still so enamoured of the work that he seized upon a passage in which Helvetius had suggested that ‘une analyze exacte des phrases et des expressions dont se servent les differentes passions’ would be the key to a scientific understanding of human motivation34 and decided to place these words on the verso of the title page of the 1817 ‘Table of the Springs of Action’. Thus, 48 years after his first reading of it, De L ’Esprit was still conveying to Bentham the same message: a ‘diction­ ary of moral terms’35 was the key to moral and political science. In the 1770s Bentham had written that Helvetius had been the first to appreciate the importance of such a work: It was for him to proclaim it that Talisman before which the chimaeras of Idolastic Metaphysics & the contradictions of commonplace political morality must vanish into smoke.36 The technique of dictionary-making would constitute nothing less than the quintessence of scientific method, and the Dictionary-maker would rightly have the last word in disputes about scientific truths, for he would set the standard for correct scientific language: Tis to the authors of such a Dictionary that it is reserved to give the deathstroke to that legion of disputes, which otherwise the abuse of words would make immortal: Tis for them and them alone, to reduce what men call Science to what really they know. This Dictionary, copied into all languages, would be the general repository for almost all the ideas that men have__ 31 UC xxvii. 6. Bentham appears to have understood (correctly) the gap which separated his own approach from Montesquieu’s as a result of the latter’s reliance on the idea of Laws of Nature: see UC lxx. 9, ‘INTRODUCTION “LAW”. Its different Senses collated.’ 32 See D. Long, ‘Censorial Jurisprudence and Political Radicalism', The Bentham Newsletter, xii (1988), 4-23. 33 In De L'Esprit, or Essays on the Mind and its Several Faculties by C. A. Helvetius, translated [anonymously] from the French, to which is now prefix’d a Life of the Author, new edn., New York, 1970; see the ‘Life’, p. xiv. 34 See Deontology (CW), ‘Editorial Introduction’, p. xiii and n2. 35 UC xxvii. 3. 38 Ibid.

Jeremy Bentham

20 Douglas G. Long Truths37 moral, political, metaphysical rendered equally demonstrable with any in the mathematics, the ideas relative to those Sciences will be the same in all men, because of necessity (as I have shewn) between the same objects the same relations are recognized by all men.38 As we shall see, the concept of the nature and efficacy of language explicated here had a decisive influence on the character and method­ ology of Bentham’s social science. Moreover, it is in sharp contrast to the understanding of language which shaped the distinctive theory of science developed by Hume and Smith. The early Bentham manuscripts include a considerable body of draft material meant to form part of the Introduction’ to Bentham’s ‘Ele­ ments of Critical Jurisprudence’. Much of this introduction was intended to deal with the problems of the measurement of pleasures and pains. At one point, in the course of an extended explanation of the extent, duration, certainty, magnitude, fecundity, and proximity of pleasures and pains, Bentham paused to acknowledge some of his main intellectual debts: The idea of considering happiness as resolvable into a number of individual pleasures, I took from Helvetius: before whose time it can scarcely be said to have had a meaning__ The idea of aestimating the value of each sensation by analyzing it into... four ingredients I took from M. Beccaria: gleaning up those several articles from different places in which I saw them made use of in aestimating the force and utility of punishments. Considering... that pains and pleasures, and actions in as far as they had a tendency to produce or prevent the one or the other were all that morals and politics or so much as was of any use or meaning [in] those sciences had in view, it seemed to me that such an analysis was the very thing that was wanted as the foundation for a compleat system of moral science.39 At a different level of analysis, Helvetius, Bentham wrote, ‘estab­ lished the principle of utility as the universal test of the merit of all actions as well those which are the objects of Law as any others’. The comprehensive (‘universal’) scope and monolithic (single-principled) structure of Bentham’s system may thus be traced to Helvetian influence—though not to the exclusion of the influence of Bacon and Newton. Beccaria’s role was, more specifically, to show that a system of law could be built entirely upon the application of the utility principle: ‘Beccaria first set it [the maxim formed upon this principle] at the head of a work of jurisprudence.’40 Grotius, Pufendorf and the advocates of Natural Jurisprudence had failed to grasp ‘the doctrine 37 MS. orig. ‘Propositions’. 38 UC xxvii. 5: ‘PREFAT. Dictionary of Moral terms. Helvetius. IV.’ 39 UC xxvii. 34: ‘Pleasures and Pains. How measured.’ In the same passage, Bentham observes that Maupertuis, in his Essay on Moral Philosophy, London, 1750, had anticipated Beccaria’s use of this method of analysis, but had ‘pursued it but by halves’, and had made a ‘fundamental error’ in his definition of pleasure. 40 UC lxx(a). 23: ‘Helvetius X Beccaria.’

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Utility and the Utility Principle 21 that Civil laws should be immediately governed by the principle of General utility’: From the charge of silent neglect [of this principle] either by having made no accurate aestimate or even taking no notice of the subserviency to it of the Laws they explain or the maxims they recommend, but one of the whole body of Jurists theoretical as well as practical is to be excepted: The Marquis Beccaria is that one: He alone has dared to establish this principle in the front of his performance: and to adhere to it with ... uniformity ... .41 Helvetius, Beccaria and Bentham were thus—in Bentham’s eyes— linked as contributors to the development of ‘that Mode of Investiga­ tion of which Locke had an implicit notion when he maintained ... that moral Truths were susceptible of Demonstration as truly as those of Mathematics’. Locke, Bentham wrote, had ‘sown the seeds’ of that development, but ‘had not settled into the Track, rejecting all techni­ cal and fictitious standards, of resorting on all Occasions to the one true & natural [principle] of Utility’. But Helvetius and Beccaria were not the only colleagues whose role in this momentous progression of thought Bentham recognized. There was also, as we have seen, Maupertuis* Bentham also named D’Alembert and Voltaire in a list of those who had helped reap a ‘full Harvest of Intelligence’ from the ‘great and original Genius’ of Locke.42 Only one Scot qualified for inclusion on this list, and that was a Scot who had a way of getting on with the French: David Hume. IV. BENTHAM ON HUME Bentham’s response to the work of Hume follows a pattern interest­ ingly similar to that seen in his response to Smith. Under a layer of deference and admiration that is at times paper-thin lurks an aggres­ sively critical attitude. There is a sense of competition: it is clearly very important to Bentham that his own work succeed, in his own eyes at least, in superseding the contributions of Hume to moral and political theory. Consider the case of Bentham’s assessment of Hume’s Treatise. Bentham embraces its author as an ‘acute and penetrating metaphysician’ to whom Bentham is linked by a common opposition to Blackstone.43 The Treatise is ... that celebrated book: of which the criminality in the eyes of some, and the merits in the eyes of others, have since been almost effaced by the splendour of more recent productions of the same pen.44

41 UC lxx(a). 30: ‘INTROD. Pr. of Utility reprobated. Grotius, Pufendorf.’ 42 UC lxix. 118: ‘Introd. Jurisprudence whether susceptible of Demonstration.’ 43 See A Comment on the Commentaries and A Fragment on Government, ed. J. H. Bums and H. L. A. Hart, Oxford, 1977 (CW), p. 439 (hereafter cited as Comment!Fragment): i.e. Fragment, Ch. 1, para. 36, note v, pt. 1. 44 Ibid.

Jeremy Bentham

22 Douglas G. Long This encomium is followed, however, by some extensive qualifications to Bentham’s praise of ‘that celebrated book’. He ‘would not wish’, he states, to ‘send the Reader’ to any volume of the Treatise but the third: As to the two first, the Author himself, I am inclined to think, is not ill disposed ... to join with those who are of opinion, that they might, without any great loss to the science of Human Nature, be dispensed with. ‘The like might be said’, he suggests, even ‘of a considerable part’ of volume three: But, after all retrenchments, there will still remain enough to have laid mankind under indelible obligations.45 Bentham’s speculation to the effect that Hume would himself recognize that about three-quarters of the Treatise was dispensable is comically blithe—and, one surmises, disingenuous to boot. It is well worth clarifying what is being accepted and what rejected here. The rejection of volumes one and two of the Treatise reflects Bentham’s judgement that Hume’s metaphysics and epistemology, however ‘acute and penetrating’, were not so much unacceptable as totally dispensable. Hume’s epistemological scepticism, after all, had not prevented him from going on to establish a science of human nature resting on an experimental basis. But where Hume’s method of experimentation had reflected his belief in the contingent and uncer­ tain nature of our judgements about the external world and our fellow humans, experimentation in Bentham was the procedural form taken by the process of ‘demonstration’, and what excited Bentham was the precision and conclusiveness, for practical purposes, of that process. ‘Science’ was a mode of inquiry for Hume, and an authoritative edifice of thought for Bentham. The voice of science, so to speak, was interrogative for the former and imperative for the latter. Bentham’s and Hume’s distinctly differing conceptions of science both as a method and as a corpus of thought provided importantly different contexts for the development of their ideas of ‘utility’. Adopting for convenience the terminology of David Fate Norton,46 we may say that what Bentham entirely jettisoned in his response to Hume was the latter’s ‘scepticial metaphysics’. His reaction to Hume the ‘common-sense moralist’, while ultimately hostile, was more measured and mixed. It was with regard to the principle of utility itself that Bentham acknowledged Hume’s influence most warmly. He even seems to have exaggerated it in his retrospective reflections from the vantage point of the 1820s. His recollection was that 45 Ibid., p. 440. 46 D. F. Norton, David Hume: Common-Sense Moralist, Sceptical Metaphysician, Prin­ ceton, 1982.

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Utility and the Utility Principle 23 Under the name of the PRINCIPLE OF UTILITY (for that was the name adopted from David Hume), the Fragment set up ... the greatest happiness principle in the character of the standard of right and wrong in the field of morality in general, and of Government in particular. .. .47 Certainly Hume had explained the relationship between morality and utility in Book HI of the Treatise, and again in his second Enquiry But nowhere had he established anything as comprehensively sover­ eign in morals and legislation as Bentham’s utility principle. It was precisely because his metaphysical and epistemological principles were not irrelevant to his moral and political theories that he could not do so. Bentham insisted on viewing the absence of a sovereign utility principle in Hume as a matter of lack of rigour or structural incomple­ teness in the latter’s thought. It was nothing of the sort. In Book III of the Treatise Hume had said that ‘the chief spring or actuating principle of the human mind is pleasure or pain’, and that ‘moral distinctions depend entirely on certain peculiar sentiments of pain and pleasure’. But this was said only in the context of his discussion of natural virtues and vices, those which ‘have no dependance on the artifice and contrivance of men’. That entire sphere of social activities in which fundamental conventions of civil life such as justice and property were involved, the entire theory of obligation, and the whole world of politics, were beyond the scope of this explanation. Even within the realm of natural moral sentiments, it was not the perception of utility but the capacity for sympathy which was pivotal in Hume’s account. The ‘sentiments’ of pain and pleasure to which Hume referred reflected a recognition of certain ‘qualities’ in the self (or, through sympathy, in others). What is striking about the explanation of moral actions which immediately follows is that it links the assessment of actions not to consequences but to the ‘quality or character’ of the agent: If any action be either virtuous or vicious, ’tis only as a sign of some quality or character. It must depend upon durable principles of the mind, which extend over the whole conduct, and enter into the personal character. Actions themselves, not proceeding from any constant principle, have no influence on love or hatred, pride or humility; and consequently are never consider’d in morality.49 Actions are ‘consider’d in morality’ not in light of their consequences, but in so far as they are symptomatic of ‘character’ and indicative of a ‘principled’ pattern of behaviour or thought. Hume concludes this section of his analysis of morals with the assertion ‘that sympatky [my 47 In Comment!Fragment (CW), ‘Appendix-Preface for the Second Edition [of] the Fragment’ (1822), p. 509. 48 See ibid., pp. 508-9, n3. 49 This quotation and the preceding analysis are from Hume's Treatise of Human Nature, ed. L. A. Selby-Bigge, 2nd edn., Oxford, 1973, Book III, Part III, Section I: ‘Of the origin of the natural virtues and vices’, pp. 574-75.

Jeremy Bentham

24 Douglas G. Long emphasis] is a very powerful principle in human nature ... and that it produces our sentiment of morals in all the artificial virtues ... [and] ... also gives rise to many of the other virtues’.50 In the light of even this partial reconstruction of Hume’s account of morals Bentham’s reaction to Book III of the Treatise is remarkable: That the foundations of all VIRTUE are laid in UTILITY, is there demon­ strated, after a few exceptions made, with the strongest force of evidence: but I see not, any more than Helvetius saw, what need there was for the exceptions.51 But Hume was simply not, as we have seen, a utilitarian who occa­ sionally and inexplicably made ‘exceptions’. He was a moral sense theorist, for whom ‘sympathy’ (not in Bentham’s sense, but in the sense Smith was to learn from Hume) was a moral principle more fundamen­ tal than utility. Nevertheless, Bentham was determined to extract from Hume’s text a utilitarian premise, ‘that UTILITY was the test and measure of all virtue ... and that the obligation to minister to general happiness, was an obligation paramount to and inclusive of every other’.52 Hume sometimes gave considerable emphasis to ‘the obliga­ tion to minister to general happiness’, and in the second Enquiry he asserted that ‘in common life we have every moment recourse to the principle of public utility’.53 But this did not prevent him from main­ taining that the sense of natural duties arose independently of any consideration of utility: All moral duties may be divided into two kinds. The FIRST are those, to which men are impelled by a natural instinct or immediate propensity, which operates on them, independent of all ideas of obligation, and of all views, either to public or private utility.54 Moral action was shaped by ‘a view to utility’ only in the case of Hume’s ‘second kind of moral duties’, comprising ‘such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation, when we consider the necessities of human society ... \ 55 The ‘principle of public utility’ was thus rooted, in Hume’s account of it, not in human nature directly, but in the necessities and artificialities of civil society. With the passage of time the Bentham who, on reading Hume’s critique of social contract theory in the Treatise, felt ‘as if scales had 50 Ibid., pp. 577-78. 51 CommentjFragment (CW), p. 440; i.e. Fragment, Ch. I, para. 36, note v, part 2. 52 Ibid., p. 441. 53 See ‘Concerning the Principles of Morals’, Section III, Part II, in Hume’s Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. L. A. Selby-Bigge, 3rd edn. revised by P. H. Nidditch, Oxford, 1975, p. 203. 54 See ‘Of the Original Contract’, in Hume: Essays Moral, Political, and Literary, ed. E. F. Miller (Liberty Classics), Indianapolis, 1985, Part II, Number XII, p. 479. 55 Ibid., p. 480.

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Utility and the Utility Principle 25 fallen from [his] eyes’,56 adopted a more forthrightly critical posture in relation to Hume’s moral and political theory. He never, of course, withdrew his admiration for Hume’s demolition of the theory of the original contract. But in the marginal ‘Added Observations’ on the ‘Table of the Springs of Action’ he indicted Hume’s account of morals as ‘a compromise of incompatible contradictions’: 611. OF ERROR, inconsistency is a natural accompaniment—not so of TRUTH. 612. Hume acknowledges the dominion of utility, but so he does of the moral sense: which is nothing more than a fiction of IPSE-DIXITISM. 613. So before him Hutchinson of Glasgow. 614. Here then is a compromise of incompatible contradictions—necessary result, inconsistency.57 By 1828, more than 50 years after ‘the scales had fallen from his eyes’, Bentham saw more clearly than ever that he and Hume simply held different views about virtue. Presumably having in mind Hume’s treatment of natural virtues as consisting in ‘qualities or characters of the mind’,58 Bentham argued at length that ‘Hume’s virtues’ were not virtues at all, but only ‘intellectual faculties’.59 Bentham recognized the necessity of integrating his account of morality totally into the ‘logic of the will’ which gave monolithic structure to his theory of morals and legislation, and so he gave his own, radically different, characterization of virtues: Every virtue is a moral quality in contradistinction to an intellectual: i.e., a quality that belongs to the volitional, not to the intellectual part of the human frame: a quality which is the result of the exercise given to the will, not of the state and condition of the understanding, except in so far as the beneficial state of the understanding is itself the result of exercise given to the will ... .®° By this move Bentham confined moral qualities to the volitional realm, thus establishing in place of Hume’s argument that virtue is what arouses in us a certain kind of natural admiration the ‘classical utilitarian’ position that the good is what is or ought to be desired. More than this, by making moral theory an aspect of the ‘logic of the will’ Bentham was able in turn to subsume the science of morals effectively under the master science of legislation, thus emulating the priority of the sciences in the system of Helvetius: as in De L ’Esprit, morals and legislation were thoroughly interdependent, but the root science, the more fundamental of the two, was that of legislation. For 56 CommentjFragment (CW), p. 440: i.e. Fragment, Ch. I, para. 36, note v, part 2. 57 Deontology (CW), p. 57. 58 See above at note 49. 59 See Deontology (CW), pp. 345-63, especially at p. 345. 60 Ibid., p. 347.

Jeremy Bentham

26 Douglas G. Long the study of legislation in its broadest sense was the study of command, of imperation, of volition, of the logic of the will directly.61 Bentham was in this instance quite correct: he and Hume did differ profoundly about virtue. Their differences were just as great in relation to utility. In his analysis of ‘Why utility pleases’,62 Hume argued against the ‘deduction of morals from self-love, or a regard to private interest’.63 In his account, utility possessed what may be described as an aesthetic dimension: it was a kind of appropriateness. Thus the utility of inanimate objects was not assessed in the same way as that of human actions. ‘A man, whose habits and conduct are hurtful to society’ is an object of ‘disapprobation’, ‘disgust’ and ‘hatred’, not simply because his behaviour causes pain or diminishes pleasure, but because it is inappropriate to a human being. The analogy Hume chooses to convey the essence of human vice is aesthetic, not consequentialist: vicious behaviour is like poor design in a building, which ‘hurts the eye’ because it is ‘ill adapted’ to its purpose, or like the shape of a ship ‘framed with a precise geometrical regularity, in contradic­ tion to all the laws of mechanics’.64 Utility resides not solely in efficacy or expedience, but in a fitting relationship between form and function. What makes the utility of the actions of a public-spirited person virtuous is the conformity between the consequences of his acts and our view, based on moral sentiments, of how a person ought to act. In overlooking or disregarding this Humean emphasis on the fittingness or propriety of moral action, Bentham omitted from his account of Hume the one thing Hume had held to be indispensable to its moral character. The criterion of ‘physical sensibility’ permitted Bentham to distinguish ‘sentient’ from ‘insentient’ creatures. Hume’s distinction between the effects, or consequences, of utility and the quality of ‘fittingness’ which gave it moral status was aimed at distinguishing patterns of principled moral action from mechanical chains of purely instrumental causes and effects. What mattered most to Bentham was the fact that all sentient creatures, whether rational or articulate or neither, had a natural interest in maximizing pleasure and avoiding pain. It was this interest, he argued, which the law ought to recognize and serve.65 For Hume, moral principles and moral action were avail­ able only to rational and articulate creatures—only to homo sapiens. 61 See IPML (CW), ‘Preface’, pp. 8-9. 62 See Hume: Enquiries, ‘ ... concerning the Principles of Morals’, Section V, Part 1, pp. 212-18. 63 Ibid., p. 215. 64 Ibid., pp. 212-13. 66 Being susceptible to pleasure and pain, animals, unlike inanimate objects, may be said to have interests which the law ought to protect: ‘The question is not, can they reason? nor can they talk? but, can they suffer?’; see IPML (CW), Ch. 17, para. 4 and note 6, p. 283n.

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Utility and the Utility Principle 27 Hume meant to distinguish between the way in which the principle of ‘public utility’ was commonly, consequentially used when the benefical effects of action were praised, and the grounds on which utility might be treated as a moral attribute. The logic of Bentham’s argument tended to reduce moral attributes to the mere intention to produce beneficial effects. Morality ceased to involve the capacity to appreciate a certain kind of beauty, to admire a certain fitness of things, and became instead a kind of technology. This was partly, as we have seen, because the concept of utility had changed. It was also because the idea of a ‘principle’ had changed. Hume, as we have seen, had linked ‘durable principles of the mind’ with ‘personal character’.66 Bentham gave a vaguer and more mechanical definition of a ‘principle’: It is a term of very vague and very extensive signification: it is applied to any thing which is conceived to serve as a foundation or beginning to any series of operations ... physical... [or] ... mental... .67 V. ADAM SMITH AND THE PHILOSOPHY OF SOCIAL SCIENCE The differences we have uncovered between the views of Bentham and Hume as to the moral status of ‘utility’ and the nature of moral ‘principles’, are major illustrations of the ‘discontinuity’ in the history of the social sciences remarked upon by Donald Winch.68 To identify the sources of their differences, however, we must probe yet more deeply the methodological presuppositions of their social theories, for the root causes of their divergent views are deep-seated, involving nothing less than incompatible positions in the areas of language, metaphysics, epistemology and the structure and methods of science. A clearer view of these underlying discontinuities may be achieved if we take as representative of the Humean position an author who faith­ fully developed to the best of his extraordinary abilities the impli­ cations of Hume’s theory of moral sentiments, his concept of sympathy, his theory of language and his philosophy of science. This was Adam Smith. In 1776, the year in which Hume died, Adam Smith published the first edition of The Wealth of Nations and Jeremy Bentham published his Fragment on Government. It was in the Fragment that Bentham responded to Hume’s writings with the peculiar combination of praise and dismissal which we have just examined. Smith, Hume’s dear friend and literary executor, quoted Hume six times in the Wealth of Nations, 66 See above at note 49. 67 IPML (CW), Ch. I, para. 2, note b, pp. 11-12. 68 See above at note 3.

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28 Douglas G. Long referring to the Essays and to the History for comments relevant to a variety of problems in political economy,69 and offering a general characterization of Hume as ‘by far the most illustrious philosopher and historian of the present age’.70 Both Smith and Bentham saw themselves as carrying forward Hume’s pivotal idea that ‘all the sciences have a relation, greater or less, to human nature’ and are thus ‘in some measure dependent on the science of MAN’.71 Both took up Hume’s invitation to apply ‘experimental philosophy to moral sub­ jects’.72 But Smith understood far better than Bentham the caveat Hume attached to his invitation: ... tho’ we must endeavour to render all our principles as universal as possible, by tracing up our experiments to the utmost, and explaining all effects from the simplest and fewest causes, ’tis still certain we cannot go beyond experience; and any hypothesis, that pretends to discover the ultimate original qualities of human nature, ought at first to be rejected as presumptuous and chimerical.73 Viewed against this background, the differences between the theor­ ies of morals, jurisprudence and political economy developed by Smith and Bentham are complementary parts of a larger pattern: they are symptomatic of a profound disagreement about the structure, func­ tions and methodological (i.e. linguistic and epistemological) presup­ positions of science in general and social science in particular. Donald Winch is, I think, quite right to suggest that this duality of conceptions of a ‘science of Man’ poses ‘one of the most intriguing problems’ in the history of the social sciences. Moreover, we can learn more about what Smith and Bentham actually meant by ‘utility’ or a ‘principle of utility’ by adopting this as the putative context in which those terms were used than we can by attempting to compare the ‘liberalisms’, ‘individualisms’ or even the ‘utilitarianisms’ of the two thinkers. Smith was remarkably, though not of course slavishly, faithful to Hume’s concep­ tions of human nature, human knowledge, morals and politics. Episte­ mological scepticism, sensitivity to the imaginative and rhetorical components of scientific and philosophical discourse, awareness of the contingent and shifting nature of even the most fundamental rules and principles in all of the sciences: these Humean attributes consistently characterize Smith’s works, and they shape quite decisively his under­ standing of ‘utility’ and the ‘principle of utility’. Bentham, seized with an enthusiasm (traceable to his reading of Helvetius) for devising universal principles and explaining ‘all effects from the simplest and 69 See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H. Campbell, A. S. Skinner and W. B. Todd, 2 vols., Oxford, 1976 (The Glasgow Edition of the Works and Correspondence of Adam Smith), pp. 247, 325, 354, 412, 445, 790-91. 70 Ibid., p. 790. 71 Hume, Treatise, Introduction, p. xv. 72 Ibid., p. xvi. 73 Ibid., p. xvii.

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Utility and the Utility Principle 29 fewest causes’, took ‘experience’—indeed, experience in its most ele­ mental hedonistic sense—as an adequate foundation not merely for contingent scientific hypotheses but for irrefutable knowledge of ‘the ultimate original qualities of human nature’ of precisely the sort which Hume had deemed ‘presumptuous and chimerical’. To know that Bentham subscribed to some form of utility principle is not to know anything very specific about his thought. What scholars naturally want to know is what was distinctive about the idea of utility and a utility principle in Bentham. The best way to answer this question is to show how Bentham’s particular understanding of ‘uti­ lity’ and its principle reflected the methodological, structural and functional requirements of his particular version of the ‘science of Man’. A comparison of Smith and Bentham under these headings reveals striking contrasts at every stage, and illuminates discontinui­ ties in moral and political thought which have been underemphasized by those predisposed to use Smith and Bentham to illustrate a conti­ nuum of ‘liberal’ thought. A way of looking at language which is most helpful in investigating Bentham and Smith is provided by a surprising trio of authors: Giambattista Vico,74 Jean-Jacques Rousseau,75 and the great Canadian literary critic and theorist, Northrop Frye.76 This approach to dis­ course, intimated in Vico’s theory of ricorsi and Rousseau’s suggestive aphorism that ‘at first men spoke only poetry; only much later did it occur to anyone to reason’,77 is extensively developed by Frye as a systematic approach to the reading of texts in the history of ideas. Frye postulates ‘three types of verbal expression’. These may be seen as recurring cyclically, or as being interwoven throughout the history of language, but much of the time Frye presents them as succeeding one another. Thus there is an ancient, a pre-modern and a modern ‘phase’ to the history of language as it has unfolded to the present day.78 The earliest ‘phase’ is the one which Vico and Rousseau both call ‘poetic’, and which Frye calls ‘hieroglyphic’: in it, the basic modern distinction between subject and object is blurred or entirely absent. Thus, for example, the shaman who utters a word thereby acquires a power associated with it. This ‘magical’ usage is almost untranslatable into ‘normal’, ‘civilized’ modern categories of thought, but is said still to 74 See The New Science of Giambattista Vico, trans. T. G. Bergin and M. Fisch, New Haven, 1968, para. 401 ff. 75 See Rousseau’s ‘Essay on the Origin of Languages, in which something is said about Melody and Musical Imitation’, Chs. 1-4, and especially Ch. 3, in Jean-Jacques Rousseau: The First and Second Discourses... and Essay on the Origin of Languages, trans. and ed. V. Gourevitch. New York, 1986, pp. 240-48. 76 See Frye’s The Great Code: The Bible and Literature, New York, 1982, Part 1: ‘The Order of Words’, Chapter 1: ‘Language I’, pp. 5-15. 77 Rousseau, ‘Origin of Languages’, p. 246. 78 Frye, p. 5.

Jeremy Bentham

30 Douglas G. Long pervade some ‘primitive’ societies today.79 The second phase of lan­ guage is Vico’s ‘heroic’ or ‘noble’ phase, one which Frye categorized as ‘allegorical’.80 Plato may be thought to introduce it, at least to the Western world. It is an authoritative, ‘culturally ascendant’ language, ‘produced by an intellectual elite’, which uses words to express inner thoughts and ideas: Subject and object are becoming more consistently separated. ... The intellec­ tual operations of the mind become distinguishable from the emotional opera­ tions; hence abstraction becomes possible, and the sense that there are valid and invalid ways of thinking, a sense which is to a degree independent of our feelings, develops into the conception of logic.81 Adam Smith’s essay on ‘The Principles which Lead and Direct Philosophical Inquiries; Illustrated by the History of Astronomy’, is one of the finest examples in the history of ideas of the application of this view of language to the problem of the methodology and functions of science and philosophy.82 For Smith the realm of scientific and philosophical discourse is the realm of the imagination. The function of philosophy is to facilitate, not to replace or circumvent, the ‘easy movement of the imagination’ along the stream of phenomena and events that make up our experience of the world. Success is constituted not by the replacement of imaginings by ‘facts’, but by the restoration to the imagination of ‘that tone of tranquility and composure, which is both most agreable in itself, and most suitable to its nature’.83 Smith understands systems of science and philosophy as highly abstract intellectual constructs which are to be judged by their elegance, their neatness, and their logical beauty. Thus in the Theory of Moral Sentiments Smith, recapitulating Hume, sees the sense of utility as expressive of a ‘regard to the beauty of order, of art and contrivance’.84 It is this sense of awe and wonder at the great beauty of the social and political system that is civil society, this flight of the imagination, this ‘deception which rouses and keeps in continual motion the industry of mankind’.85The ‘History of Astronomy’ presents 79 Ibid., p. 6. 80 Ibid., p. 5. 81 Ibid., p. 7. 82 See Adam Smith: Essays on Philosophical Subjects, ed. W. P. D. Wightman and J. C. Bryce, Oxford, 1980 {The Glasgow Edition of the Works and Correspondence of Adam Smith), pp. 33-106. His essays on ‘The History of the Ancient Physics’ and ‘The History of the Ancient Logics and Metaphysics’ are parts of the same explanatory project. See Ibid., pp. 106-33. 83 Smith, History of Astronomy, pp. 45-6. 84 Adam Smith, The Theory of Moral Sentiments, ed. A. L. Macfie and D. D. Raphael, Oxford, 1976 {The Glasgow Edition of the Works and Correspondence of Adam Smith), Part IV, ‘Of the Effect of Utility upon the Sentiments of Approbation’, Ch. 1, pp. 179-87: ‘Of the beauty which the appearance of UTILITY bestows upon all the productions of art, and of the extensive influence of this species of Beauty’, at p. 185. Cf. Hume, Treatise, Book II, Part II, sec. V, pp. 363-65. 85 Ibid., p. 183.

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Utility and the Utility Principle 31 the world’s greatest systems of science as a series of powerful explana­ tory metaphors. Smith’s own legacy to the history of ideas takes the form in part of a cluster of vivid metaphors: ‘the invisible hand’, 'the impartial spectator’, the 'system of natural liberty’—all evoke an imaginative response to an imaginative depiction of reality. Given the epistemological scepticism of Hume and Smith, this seemed an appro­ priate final aspiration for the philosopher of social science. According to Northrop Frye, it was dissatisfaction with syllogistic logic and an intensifying desire for a language which would sharply distinguish ‘existents from non-existents’86 that led to the emergence, from the sixteenth century onward, of the third phase of language: the phase which Vico called ‘vulgar’, and which Frye calls ‘demotic’ or ‘descriptive’.87 In Frye’s view, this mode of language ‘attains cultural ascendancy in the eighteenth [century]’: In English literature it begins theoretically with Francis Bacon, and effec­ tively with Locke. Here we start with a clear separation of subject and object, in which the subject exposes itself, in sense experience, to the impact of an objective world. The objective world is the order of nature; thinking or reflection follows the suggestions of sense experience, and words are the servomechanisms of reflection ... all deductive procedures are increasingly subordinated to a primary inductive and fact-gathering process.88 As Frye observes, language of this kind seeks similes and is suspicious of metaphors, for it uses a correspondence model of truth: A verbal structure is set up beside what it describes, and is called ‘true’ if it seems to provide a satisfactory correspondence to it. The criterion of truth is related to the external source of the description rather than to the inner consistency of the argument... a true verbal structure is one that is like what it describes. ... extreme forms of third-phase thinking demonstrate the ‘impossibility of metaphysics’, or declare that all religious questions are unmeaning.89 The rise to ascendancy of ‘third-phase’ language accompanies and reflects ‘the growth of science on a basis of inductive observation’, and epistemologically brings a seemingly simple and basic pair of questions to centre-stage: ‘What is really there? and What are we really seeing?’ The ‘problem of illusion and reality therefore becomes a central one’.90 Post-Enlightenment ‘modernity’—the ‘modernity5in relation to which ‘post-modernism’ is defined—is characterized by a widespread belief, at a ‘vulgar’ level, that conclusive truths are discoverable by the applica­ tion of scientific method to fundamental problems of every kind, and 86 Frye, p. 12. Presumably the use of ‘existence’ rather than ‘being’ here is carefully premeditated. The criterion of ‘existence’ is experiential. That of ‘being’ may be metaphysical, as in Plato. 87 Ibid., p. 5. 88 Ibid., p. 13. 89 Ibid. 90 Ibid., p. 14.

Jeremy Bentham

32 Douglas G. Long that the language of science can somehow convey these truths to auditors in an unvarnished, transparent way. The rhetorical embel­ lishments and literary devices of poetic, metaphorical or allegorical language are to be stripped away, leaving only the ‘plain’ truth conveyed in verifiable and falsifiable propositions describing ‘external reality’. Bentham seems to me to be a quintessentially ‘third-phase’ theorist of language. From his dismissal of Hume’s sceptical metaphysics to his insistence that, through paraphrastic definition, words be related directly and transparently to the concrete particular things they describe.91 Bentham epitomizes the ‘third-phase’ drive to produce a perfectly descriptive language. He is not under the illusion that everyday ‘talk’ can or ought to become perfectly descriptive. His science, once again conforming strikingly to Frye’s ‘third-phase’ model, is a science which ‘assumes two levels of sense perception: a particular accidental level that is largely illusion, and an ideal level that is our real source of knowledge’.92 Thus, without formally break­ ing with Hume’s assertion that we can not go beyond experience, the ‘third-phase’ scientist achieves ‘true knowledge’ of a kind that Hume had declared unattainable. Bentham repeatedly informed his readers, especially in his early writings, that metaphysics was an exceedingly important, if arid, field of study.93 Perhaps now we are better able to see why. For him, metaphysics was the study o f‘what things exist’,94 and at the core of that study was the project of producing a scientifically descriptive language. ‘Define your words!’95was Bentham’s intellectual call to arms. In the light of the foregoing analysis one is better able to appreciate the passion with which he responded to that call. But who, we may ask, was the more perceptive or the more persuasive theorist— the one who identified scientific discourse as a powerful form of imaginative depiction subject to recurrent modification and superces­ sion, or the one who saw scientific language as bare description of what was ‘out there’, stripped of all imaginative and ‘fictitious’ elements? The meaning of ‘utility’ tends to undergo a change in so far as thirdphase language replaces its predecessor as the ascendant model of philosophical and scientific discourse. In ‘second-phase’ language, what was useful, or had utility, was what was fitting, appropriate, or well-suited to a given end or ends. The idea of utility, the notion that something could be utile just as it might be dulce et decorum, was an 91 On ‘paraphrastic definition’, see R. Harrison, Bentham, London, 1983, pp. 53-74. 92 Frye, p. 14. 93 ‘Metaphysics, the most sublime and useful of all human sciences, according as it is applied, or the most futile,’ UC lxix. 155. See also Long, Bentham on Liberty, pp. 68-9. 94 See UC lxix. 52-3, 227, 228, 241. Discussed in Long, ‘Censorial Jurisprudence and Political Radicalism’, 14. 95 UC xxvii. 45. Discussed in Long, Bentham on Liberty, p. 65.

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Utility and the Utility Principle 33 integral part of the classical theory of natural law. The strong influence of Stoicism on Adam Smith, which Professor Raphael has noted,96 is reflected in his ‘second stage’ emphasis on the ‘beauty’ of utility, its ‘pleasing’ quality consisting for him in its contribution to the maintenance of a beautiful vision of the order of civil society. But there is a tension, in both Smith and Hume, between what may be called aesthetic and consequentialist usages of the idea of utility. Their sensitivity to the aesthetic resonances of the term links them with its classical origins in works by authors such as Cicero, Marcus Aurelius, Epictetus and even Plato. On the other hand, they are clearly aware that utility is widely resorted to as a principle of expediency in social and political activities, and that in this usage only the efficacy of action in relation to specified goals is considered: the aesthetic criter­ ion of appropriateness is replaced by the consequentialist standard of efficiency. The aesthetic aspect, so to speak, of utility as treated by Hume and Smith is most prominent in the context of moral philosophy proper, when those qualities of human ‘character’ which are both the basis and the object of moral judgment are under consideration. ‘Propriety’ and ‘sympathy’ are both, in the classical sense, beautiful. Moreover, their beauty is not merely ‘cosmetic’—it is the expression of their value, of their utility. We have seen that utility in this particular sense is an essential part both of Hume’s science of human nature and of Smith’s theory of moral sentiments. In Bentham’s system this sense of the word is virtually eliminated. Utility is in Bentham not an aesthetic quality but a kind of causal efficacy, what he called ‘fecundity’ in his analysis of pleasures. The consequentialist usage of utility is ascendant: the aesthetic is vestigial. Thus the Stoic notion of ‘self-command’ as a foundation of virtue, which had been prominent in Smith’s Moral Sentiments,97 is replaced in Bentham by a command theory of law, and external imperatives thus replace ‘character’ as the decisive source of motives for utilitarian behaviour. The duality of aesthetic and conse­ quentialist usages of ‘utility’ which had reflected the qualitative distinction between moral theory and social or political science in Smith and Hume becomes in Bentham the monolithic domination of a consequentialist ‘logic of the will’, the systematic superstructure of a philosophy, not of morality in the classical sense, but of action. In relation to this logic, the distinction between morals and legislation is no longer qualitative, but instead quantitative. It is presented in quasispatial terms: the ‘universal system of human actions’ is ‘a boundless expanse in which the several efficient laws appear ... like islands and continents projecting out of the ocean: or like material bodies scat96 Theory of Moral Sentiments, Editorial Introduction, pp. 5-10. 97 Ibid., p. 6.

Jeremy Bentham

34 Douglas G. Long tered over the immensity of space’.98 Actions of great consequentialist significance are centrally placed within the system of human actions over which the legislator watches. They naturally become the objects of legislative science. The sphere of morality, in so far as it is distinguished from that of legislation, is ‘outside’ it: peripheral to it. The principles of morals are the principles of legislation. Only its comparative (consequentialist) insignificance distinguishes that which is merely moral from that which is political. Hume’s science of human nature is replaced by a science of human behaviour, and this shift involves changes in the theory of language, in metaphysics, and in the idea of social science which are more extensive and more significant than has perhaps been appreciated in the past. VI. CONTINUITY, CHANGE AND RECURRENCE: FROM HUME TO J. S. MILL In the midst of the sweeping changes we have noted we also find some surprising continuities. For the consequentialist usage of ‘utility’ is acknowledged and developed by both Smith and Hume, although it is not elevated to the supreme position it occupies in Bentham’s system. It is specifically in the field of politics that this continuity is most noticeable. Hume argued that we have constant recourse to utility in the public realm, not as the criterion of public virtue, but as an indicator of the ‘necessities of human society’.99 Smith presented ‘the principle of utility’ as a specifically ‘democraticall’ political principle, complementing the ‘principle of authority’ upon which the ‘aristocraticall’ and ‘monarchical!’ components of the British Constitution rest. The ‘distinctions between Whig and Tory’, he said, arose from the competition between these two principles for influence over the citizen body.100 The principle of utility is the specifically Whig principle in politics, expressive of ‘the general interest of society’101 in a ‘mercen­ ary’, if not a moral sense. For it rules not in a morally ideal civil society resting on ‘generous and disinterested motives’ and ‘mutual love and affection’ among citizens, but in a society such as ... may subsist among different men, as among different merchants, from a sense of its utility, without any mutual love or affection; and though no man in [such a society] should owe any obligation, or be bound in gratitude to any other, it may still be upheld by a mercenary exchange of good offices, according to an agreed valuation.102 98 Of Laws in General (CW), ed. H. L. A. Hart, London, 1970, Ch. 10, Section iv, ‘Alterative [Laws]’, para. 16, p. 120. 99 Notes 53-5 above. 100 Lectures on Jurisprudence, ed. R. L. Meek, D. D. Raphael and P. G. Stein, Oxford, 1978 (The Glasgow Edition of the Works and Correspondence of Adam Smith), p. 319. 101 Moral Sentiments, II. ii. 3.1-2, p. 88. 102 Ibid., pp. 85-6.

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Utility and the Utility Principle 35 It might easily be concluded on the basis of a well-known passage from A n Introduction to the Principles of Morals and Legislation that in Bentham we see a shift away from the conception of public utility emphasized by Hume and Smith and toward a conception of personal utility. But the divergence of views here is not nearly so substantial as those who would contrast Scottish and Utilitarian ‘individualisms’ might suggest. Bentham does, famously, say that the principle of utility ‘approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happi­ ness of the party whose interest is in question9[my emphasis].103 He then adds that ‘utility’ is: that property in any object, whereby it tends to produce ... happiness ... or... prevent ... unhappiness to the party whose interest is considered ... if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.104 The phrase ‘the interest of the community’, he notes, is a very general moral expression, of uncertain meaning. When it has a meaning, it is this. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what?—the sum of the interests of the several members who compose it.105 Thus ‘it is vain to talk of the interest of the community, without understanding what is the interest of the individual’.106 But it is certainly not ‘vain to talk of the interest of the community’ properly understood. The metaphysical reduction of the fictitious idea of a public or community interest to a summing of individually experienced plea­ sures accurately reflects the methodological principles of Bentham’s social science, and particularly of his theory of language. This does not alter the fact that for purposes of politics, legislation and social theor­ izing generallyit is the sum of happiness in the community that matters: An action then may be said to be conformable to the principle of utility, or, for shortness sake, to utility (meaning with respect to the community at large) when the tendency it has to augment the happiness of the community is greater than any it has to diminish it.107 A man may be said to be a partisan of the principle of utility, when the approbation or disapprobation he annexes to any action, or to any measure, is determined by, and proportioned to the tendency which he conceives it to have to augment or to diminish the happiness of the community ... .m It should be clear from this that Bentham employed a principle of public utility just as Hume and Smith had done, although his was an aggregative rather than an organic conception of the ‘public’ and its 103 IPML (CW), Ch. I, para. 2, p. 12. 104 Ibid., para. 3, p. 12. 105 Ibid., para. 4, p. 12.

106 Ibid., para. 5, p. 12. 107 Ibid., para. 6, pp. 12-13. 108 Ibid., para. 9, p. 13.

Jeremy Bentham

36 Douglas G. Long interest. A case could in fact be made on the basis of their respective moral theories for asserting that Bentham’s system was less ‘individu­ alist’ than that of the Scots. The meaning of the term ‘individualism’ is sufficiently malleable to make comprehensive judgements on the sub­ ject suspect. What is clear is that Bentham did not put some model of an apolitical self-interested individual agent in place of the Scots’ model citizen. In draft material for the introduction to his ‘Elements of Critical Jurisprudence’, a work in which he planned to give a fuller account of his basic principles than could be provided within the confines of A n Introduction to the Principles of Morals and Legislation, he endorsed both the primacy of public utility and the necessity that individuals see themselves as fractions of the polity, not as selfsufficient entities. He announced That ‘Utility’ standing by itself without any epithet (as ‘Private’) to restrict it shall mean Public or general utility—viz: utility accruing either to many at once, or even to a single person so it be not counterbalanced by a prejudice equal in magnitude ... to any others.109 And he added in a marginal note that The question lies not between the Public on one part, & himself distinct from the public on the other: but between that part of the public which he is, on the one part, and the remainder of the persons of which the public is composed, on the other.110 In view of this explanation it is not surprising that in A n Introduction to the Principles of Morals and Legislation we find Bentham suggesting the replacement of the phrase ‘principle of utility’ with the title ‘the greatest happiness or greatest felicity principle’ partly because the use of the proposed new title will ‘lead us to the consideration of the number, of the interests affected ... as being the circumstance, which contributes, in the largest proportion, to the formation of the standard here in question’.111 In practical effect his emphasis on public utility is every bit as great as that of the Scots. His emphasis on the individual; as a component of the public is almost Rousseauian. Given what we have seen of the moral theory of Bentham and the Scots, Donald Winch’s eagerness to contrast Scottish moral philos­ ophy and Adam Smith’s politics, on the one hand, with ‘Benthamism’ and ‘the radical individualism of nineteenth-century utilitarianism’, on the other, is quite understandable. But the contrast is not quite as simple as he suggests.112 Bentham’s social science is demonstrably radically different from that of the Scots in its language, method, structure and goals. His understanding of individuality from the 109 UC lxx(a). 17: ‘INTRODUCTION. Utility etc. Definiend[a].’ 110 Ibid. 111 IPML (CW), Ch. I, para. 1, note a, p. 11. 112 See above at notes 3 & 4.

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Utility and the Utility Principle 37 from, and even founded on a rejection of, theirs. Yet in the area of political and social thought his system of censorial jurisprudence is in some ways less, not more, individualistic than theirs. In one way the movement toward ‘radical individualism’ seems greater when we compare Bentham with his Godson than when we compare him with the Scots. For whereas Bentham sustained, mutatis mutandis, the Scots’ requirement that in social and political science the individual must be seen not as ‘distinct from the public’, but as a ‘part of the public’, J. S. Mill emphasized the threat to individuality posed by the prospect of an arithmetically democratic ‘tyranny of the majority’. For Mill the problem was not how to make individuals serve the public interest in Bentham’s aggregative sense, but how to make public life serve the ends of individuality. It is not, obviously, that in Mill the claims of authority and the duties of citizenship were ignored. The point is a more positive one: Mill recovered in his version of utilitarianism a conception of morality as a sphere of thought and action standing apart from, and not subsumed under, politics and legislation which had been present in the Scots and lost in Bentham. Perhaps here, if not in Bentham, we shall discover what Winch calls ‘the radical individualism of nineteenth-century utilitarianism’. But then again, perhaps not. In resting the very idea of a principle of utility on his conception of ‘the permanent interests of man as a progressive being’,113 Mill certainly distanced himself from Bentham’s more static and less open-ended vision of optimization of the condition of mankind ‘as far as depends upon the law’.114 The context in which Mill placed his individual, the context within which his utility prin­ ciple was to operate, was not a system of jurisprudence but an evolving society, and in Mill the idea of individuality itself was shaped by a set of ‘social questions more fundamental than what is commonly called politics’: I understand by Sociology not a particular class of subjects included within Politics, but a vast field including it—the whole field of enquiry and specula­ tion respecting human society and its arrangements, of which the forms of government, & the principles of the conduct of governments are but a part.115 In relation to this social context, Mill expounded not a radically individualist doctrine of self-love or self-interest, but a civic and social notion of responsibility. It was not by any means identical to the Scots’ idea of sympathy, but neither was it incompatible with it. Reviewing the arguments presented in Plato’s Gorgias, Protagoras, Philebus and 113 J. S. Mill, On Liberty and Other Writings, ed. Stefan Collini, Cambridge, 1989 (Cambridge Texts in the History of Political Thought), p. 14. 114 See Long, Bentham on Liberty, p. 148. 115 Mill to John Chapman, 9 June 1851, in Later Letters, ed. F. E. Mineka and D. N. Lindley, Toronto, 1972 (Collected Works of John Stuart Mill vols. xiv-xvii), xiv. 68.

Jeremy Bentham

38 Douglas G. Long Republic regarding the relationship between justice and the ideas of pleasure, goodness, benefit and reason, Mill mounted the following general criticism: All these theories lay themselves open to Mr. Grote’s criticism, by defining virtue with reference to the good only of the agent himself... in disregard of the fact that the idea and sentiment of virtue have their foundation not exclusively in the self-regarding, but also, and even more directly, in the social feelings: a truth first fully accepted by the Stoics, who have the glory of being the earliest thinkers who grounded the obligation of morals on the brother­ hood ... of the whole human race. The essential part of the virtue of justice’, he added, is ‘the recognition and observance of the rights of other people.’116 And if his appreciative reference to the Stoics reminds one of Smith, it may be worth noting that in another commentary on the classics he referred equally appre­ ciatively to the philosophy of Protagoras and noted that his ‘metaphy­ sical doctrines ... seem to have been, in their fundamental points, not very remote from those of David Hume’.117 The successor, in J. S. Mill’s thought, to the versions of the science of Man and society developed in Hume, Smith and Bentham is clearly outlined in the System of Logic: it is ... a body of doctrine, which is properly the Art of Life, in its three depart­ ments, Morality, Prudence or Policy, and Aesthetics; the Right, the Expedient, and the Beautiful or Noble, in human conduct and works. To this art, (which, in the main, is unfortunately still to be created,) all other arts are subordinate. 118

In this distinctive intellectual construct aesthetic and consequentialist considerations are balanced more delicately and interwoven (es­ pecially in the ‘department’ of morality) more intricately than they had been in Hume or Smith, by the thinker who of all thinkers had been most totally steeped, in his early education, in the consequentialism of Bentham. Mill is often seen as a man engaged in an heroic—if doomed—effort to harmonize such incorrigibly dissonant voices as those of Bentham, Coleridge and Comte in some grand nineteenthcentury synthesis. In the present context we might more properly see him as taking the measure of the differing insights of Hume, Smith and Bentham into the nature of ‘utility’ and a ‘utility principle’, and weaving from these threads the fabric of an unprecedently rich and powerful understanding of ‘utility in the largest sense, grounded on the permanent interests of man as a progressive being’.119

116 Essays on Philosophy and the Classics, ed. J. M. Robson, Toronto, 1978 (Collected Works of John Stuart Mill, vol. xi), xi. 419. 117 Ibid., p. 44. 118 A System of Logic Ratiocinative and Inductive, ed. J. M. Robson, Toronto, 1974 {Collected Works of John Stuart Mill, vols. vii and viii), viii. 949. 119 On Liberty, ed. J. M. Robson, Toronto, 1977 (Collected Works of John Stuart Mill, vol. xviii), xviii. 224.

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Utility and the Utility Principle 39 All of this seems to direct one to the conclusion that the notion of utilitarianism as originally or genericaily a radically individualist doctrine, the polar opposite of all communitarianism or socialism, is a myth. No such usage of ‘utility’ or a ‘principle of utility’ is to be found in any of the four seminal figures whom I have considered here. Among those four we find substantial and important discontinuities and differences concerning the philosophy of social science—or, if one prefers, the science of social philosophy. We find significant changes in the view of the relationship between moral and legislative sciences. But we do not find an abandoning of public for private utility. Physiological hedonism does not, for these thinkers, entail socio­ political individualism. Those who in recent years have called for the minimization of the role of the state as a condition for the maximiza­ tion of individual happiness, and who have attacked the very ideas of social justice and the public interest must themselves take responsi­ bility for the social impact (for better and for worse) of their innovative thinking—they have no claim to be merely applying the social and political principles of Hume, Smith, Bentham or J. S. Mill in letter or in spirit.

[2]

READING HUME BACKWARDS Utility as the foundation of morals Frederick Rosen

Few contemporary scholars place much emphasis on the idea of utility in Hume’s thought or on his influence or anticipation of the later utilitarianism of Bentham and J.S. Mill.1 In reading Hume backwards, that is to say, from the themes of Bentham to those of Hume and from the Enquiry concerning the Principles of Morals to book III of the Treatise of Human Nature, I hope to reveal a different Hume from the one commonly presented today.2 For example, John Stewart has argued that there is no evidence in the Enquiry that Hume abandoned the idea of sympathy, which he had made so important in the Treatise (see Stewart 1963: 329). Reading Hume backwards may not lead to a rejection of this argument but perhaps to a different question. For it is utility and not sympathy which is the key principle of the Enquiry, and I shall seek to determine why Hume placed so great an emphasis on it in the Enquiry but not in the Treatise, where sympathy seems to be of greater importance. From the perspective of the Enquiry, that Hume did not expressly abandon sympathy is less important than the emphasis he placed on utility. My approach to Hume is not as unusual as one might think. Knud Haakonssen’s important study of Hume and Adam Smith explores Hume to great effect through the later writings of Smith, which owed a good deal to Hume’s analyses of similar topics. But when it comes to the theme of utility in Hume, Haakonssen asserts that ‘it is a complete illusion to see the later work [Enquiry concerning the Principles of Morals] as an approach towards the utilitari­ anism of a later age’ (Haakonssen 1981: 5-6). The word ‘utility’, he continues, has a meaning ‘rather different from what Bentham and the Mills meant’ (Haakonssen 1981: 6, see also 8). To support these assertions, Haakonssen supplies no analysis or references, and no works of utilitarians of ‘a later age’ appear in the otherwise extensive bibliography. If Haakonssen is prepared to read Hume backwards from Smith, he is not willing to read him backwards from ‘Bentham and the Mills’.3 In attempting to do so, one is asking not only about the importance Hume gave to utility in his moral and political philosophy, but also whether Hume’s idea of utility was adopted by the ‘utilitarians of a later age’. One might argue that utility was an important idea in Hume’s thought, but that later utilitarians took little from him. I shall advance the stronger thesis that

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utility was of prime importance in Hume’s thought, and, in addition, influenced the way Bentham, for example, formulated his own principle of utility. Some writers on Hume acknowledge the importance of utility in his thought, but use various categories to distinguish his approach from those of later utilitar­ ians. H.O. Mounce, for example, distinguishes between the ‘naturalism5 of Hume (taken supposedly from Hutcheson) and the ‘rationalism’ he ascribes to both deontological views (linked with Kant) and the utilitarianism of Bentham (Mounce 1999: 77ff). Mounce omits to consider the very first word and subse­ quent paragraph of Bentham’s IPML where Bentham invoked ‘nature’ and noted the way nature, placing humans ‘under the governance of two sovereign masters, pain and pleasure*determines what they do and what they ought to do (Bentham 1996: 11). The reason he omits this important reference to nature is that he concentrates on the role of rational calculation in Bentham. He also omits to consider the foundational role of feelings of pleasure and pain in Hume, and simply asserts that rational calculation presupposes the passion of benevolence. Mounce only refers to pain and pleasure in Bentham in so far as it makes rational calculation possible, supposedly by providing a mechanism through which quality can be reduced to quantity (see Mounce 1999: 79—80). But contrary to Mounce’s view, it is clear that for both Hume and Bentham plea­ sure and pain provide motives for action and reason is used in subordination to passion within this framework. Hence the distinction between naturalism and rationalism serves only to obscure this fundamental point which links most clas­ sical utilitarians. Mounce also attempts to distinguish between Hume and Bentham by arguing that Hume’s conception of rationality differed from that of social contract theo­ rists who tended to see the individual abstracted from society, to which he or she became subsequendy attached by rational calculation. In contrast to Hume, according to Mounce, Bentham supposedly started with a collection of individ­ uals who were treated as the main elements in the societal equivalent of a chemical equation (see Mounce 1999: 90). Mounce again fails to consider what Bentham actually wrote, when in A Fragment on Government he explicitly followed Hume not only in adopting the principle of utility but also in rejecting the doctrine of the social contract in favour of custom, habit, and convention as the basis of civil society (see Bentham 1988: 51—3). Mounce clearly cannot place Hume and Bentham in the separate categories he has invented for them. Bentham did not subscribe to the rational individualism Mounce ascribes to him, and Hume’s penchant for utilitarian calculation does not fit into the natu­ ralist category, wholly separate from rational calculation, that Mounce creates for him. Mounce becomes frustrated at times with Hume’s refusal to fit into his cate­ gories, and when faced with Hume’s use of utility and rational calculation with regard to justice in the Treatise, he first berates him for not sticking to his original position and then complains that ‘having criticized the social contract theorists for explaining society in utilitarian terms, he switches over, in the course of his account, precisely to those terms himself’ (Mounce 1999: 98). Mounce does not

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consider the possibility that the problem may rest with his categories rather than with Hume’s argument. Utility in the Enquiry and Treatise

Reading Hume backwards takes one initially to the Enquiry and to Hume’s strongest statement about the role of utility: It appears to be matter of fact, that the circumstance of utility, in all subjects, is a source of praise and approbation: That it is constantly appealed to in all moral decisions concerning the merit and demerit of actions: That it is the sole source of that high regard paid to justice, fidelity, honour, allegiance, and chastity: That it is inseparable from all the other social virtues, humanity, generosity, charity, affability, lenity, mercy, and moderation: And, in a word, that it is a foundation of the chief part of morals, which has a reference to mankind and our fellowcreatures. (Hume 1998: 5.44) So strong a statement about the role of utility as ‘a foundation of the chief part of morals’, that concerned with ‘mankind and our fellow-creatures’, would appear difficult to discount. But the most recent generation of Hume scholars has found no great difficulty in doing so. This has been achieved partly by discounting the role of the Enquiry in Hume’s moral and political philosophy in spite of Hume’s express statements to the contrary (see, for example, Bricke 1996; Snare 1991). Few scholars today would accept Henry Sidgwick’s approach that ‘as the earlier Treatise was expressly repudiated by its author, I have in the main confined my attention to the later work, which in Hume’s own opinion was of all his writings “incomparably the best” ’ (Sidgwick 1906: 205n; see also Gauthier 1998: 17-18; Holthoon 2000). D.D. Raphael has argued that Hume’s statement about the Treatise was mainly a 'literary judgment’ and leaves open the question of the philosophical importance of the Enquiry in relation to the Treatise (Raphael 1972-3: 92; see also Whelan 1985: 4n). David Fate Norton takes this position a step further. He argues that both Enquiries represent attempts to recast the substantive arguments of the Treatise into clearer and more palatable forms. As there was little difference in substance between the Treatise and the first Enquiry, ‘we can assume that Hume thought the second Enquiry to be essentially consistent with the Treatise, and to improve on this earlier work principally by simplifying and clarifying the views found there’ (Norton 1993b: 171; see Norton 1982). Although Norton recognizes some differences between the Treatise and the Enquiry, the emphasis on utility in the Enquiry is not one of them. Haakonssen seems more aware of the problem of the relationship between the Treatise and Enquiry, and makes no simple assumption about consistency. But as he is reading Hume backwards from Smith, and since his interpretation 31

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focuses on the way Smith brings together two different strands of argument concerning justice from the Treatise, the whole of the Enquiry tends to be discounted. When one adds to this Haakonssen’s assertion that the idea of utility was different from that of later utilitarians, it is no wonder that he then turns to examine the fate of sympathy rather than the promise of utility in the Enquiry. As Haakonssen puts it, ‘the following account is, therefore, mainly based on the Treatise, although the Enquiry will not be forgotten’ (Haakonssen 1981: 7). Let us begin this examination of the Enquiry by considering first the concep­ tion of utility advanced in it. Haakonssen is not unique in wanting to draw attention to a perceived difference between Hume’s employment of utility and later versions. J.L. Mackie, for example, acknowledges the importance of utility in Hume but emphasizes a number of differences between Hume in the Enquiry and later utilitarians. For Mackie, Hume does not incorporate an idea like maxi­ mizing utility through some sort of calculus, which aims at the greatest happiness of the greatest number. He has no conception of measuring utility. Furthermore, Hume, in his view, is more concerned with motive and character than with the rightness and wrongness of actions and their measurement (Mackie 1980: 151-4; see Harrison 1981: 19-20, 87-8). Geoffrey Sayre-McCord also wants to distinguish between contemporary util­ itarianism and that of Hume by first denying that Hume’s employment of utility is compatible with versions of act, rule, or motive utilitarianism currently in vogue (Sayre-McCord 2001: 483). For Sayre-McCord, Hume did not write of maximizing utility, did not endorse a calculus for determining the public good, looked to the interests of each as opposed to those of all when determining justice, saw virtue as being desirable in itself and regarded some virtues as not having any regard to public advantage (Sayre-McCord 2001: 483). He goes on to call Hume’s approach the ‘Bauhaus theory of ethics’ - which ‘gives a central place to utility, but does so without making either actual or expected utility of acts, or rules, or motives, or character traits the measure or ground of virtue’ (Sayre-McCord 2001: 484). He depicts the Bauhaus theory in terms of ‘some­ thing (a chair, a house, or when it comes to ethics, a durable feature of mind or character) [which] commands approbation, when it does, in virtue of its being well-suited for the achieving of certain ends or the solving of certain problems’ (Sayre-McCord 2001: 485). Although this element of usefulness and suitability as means to ends may well have been part of Hume’s idea of utility, it neither exhausts the idea of utility in Hume nor is it an idea peculiar to Hume’s theory. It is fair to say that what Sayre-McCord calls the Bauhaus theory was ascribed to utility throughout the Epicurean tradition and was a characteristic of classical utilitarianism. But as a defining category that would clearly enable one to see what is distinctive in Hume’s ethics or in classical utilitarianism generally, it is only one element in a more complex story. This sort of depiction of Hume’s use of utility depends on a view of what utilitarianism is, which bears little resemblance historically to utilitarians like

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Bentham and J.S. Mill and more to a crude version of act utilitarianism conceived in the twentieth century as a straw man to be attacked and rejected.4 As we shall see, Bentham, for example, did not subscribe to such a view, and in fact took many of his ideas from Hume. And in the quotation placed at the beginning of this section, Hume clearly asserted that utility ‘is constantly appealed to in all moral decisions concerning the merit and demerit of actions5contradicting Mackie’s view of his idea of utility as being primarily concerned with motives and character. The foundational role o f utility

We might begin to understand the role of utility in Hume and its influence on later utilitarians by examining the foundational role he gave to it, as in the quota­ tion at the beginning of the last section where he claimed that utility was ‘in all subjects ... a source of praise and approbation5. One contemporary critic of Hume's Enquiry called attention to the significance of cthat loose and vague idea of approbation, which he [Hume] makes to include the whole of moral feeling, and upon which he founds the distinction betwixt virtue and vice5 (Anon 1753: 24). He added: It is to be observed, that approbation is a word of a very undetermined signification; and the author has never endeavoured to fix its meaning. It is whatever we take pleasure in; whatever we consider useful or agree­ able. (Anon 1753: 25) According to this author, the idea of approbation was a way of linking utility to pleasure. Although he accepted that virtue was useful to society in promoting the general happiness, he denied that we give approbation to virtue because of its utility (Anon 1753: 33—4). While he agreed with Hume that chastity, for example, had great public utility, he argued that what sustained chastity as a virtue was ‘an instinct of natural modesty, or a sense of honour or pride’ and not its utility (Anon 1753: 34—5). Thus, one problem with Hume’s concept of appro­ bation was that approbation was not necessarily linked only to utility. Hume, of course, never claimed that only utility received approbation, but he did insist that utility always received it. We always prefer what is useful to ourselves and to society. The anonymous author also criticized Hume for failing to note that while justice, which was based on utility, might receive approbation, other, more ‘exalted virtues’ and characteristics, such as magnanimity, generosity, and heroism, received greater approbation. This fact seemed to undermine Hume’s view that utility was ‘the chief foundation of the approbation and praise5 (Anon 1753: 36). Hume, of course, never attempted to determine greater or lesser amounts or degrees of approbation and hence was content to argue that

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however little approbation we might give to justice and its foundation in utility, the amount or degree of approbation did not undermine that foundational role given to utility. These comments on and criticisms of Hume’s use of 'approbation5call atten­ tion to the importance he gave to the concept in this foundational sense. The utility of an action, practice or even a plant or animal recommends it to our approbation. We approve it because it gives us pleasure: ‘The eye is pleased with the prospect of corn-fields and loaded vineyards; horses grazing, and flocks pasturing: But flies the view of briars and brambles, affording shelter to wolves and serpents’ (Hume 1998: 2.9). Hume later expanded his account of the rela­ tionship between utility and pleasure: Usefulness is only a tendency to a certain end; and it is a contradiction in terms, that any thing pleases as means to an end, where the end itself no wise affects us. If usefulness, therefore, be a source of moral senti­ ment, and if this usefulness be not always considered with a reference to self; it follows, that every thing, which contributes to the happiness of society, recommends itself directly to our approbation and good-will. Here is a principle, which accounts, in great part, for the origin of morality: And what need we seek for abstruse and remote systems, when there occurs one so obvious and natural? (Hume 1998: 5.17) Utility (which embraces the means, the ends, and the way the two fit together (cf. Haakonssen 1981: 41)) nearly becomes synonymous here with ‘the happiness of society’, and such utility recommends itself to our approbation by virtue of its connection with happiness in giving us pleasure. Furthermore, Hume was willing to consider this utility as the foundation or origin of morality. In a footnote he added that ‘no man is absolutely indifferent to the happiness and misery of others. The first has a natural tendency to give pleasure; the second, pain’ (Hume 1998: 5.17n). Hume was attempting in this material to reject the idea that moral approba­ tion was based on self-love, and used the idea of approbation of utility, based on the pleasure it gives, to do so. We approve of the utility of a practice or object, not because it appeals to our selfish regard for our own welfare, as opposed to that of others, but because it gives us pleasure, regardless of whether or not it appeals to self-interest. Connected with this link between utility, approbation, and pleasure is a sympathy with the pain and pleasure of others that we share as part of our humanity. Our sympathy with humanity, however, is not the source of pleasure; our feelings of pleasure through the approbation of utility is the source of our humanity. If we did not experience pleasure at the sight of the great and useful deeds and practices of other human beings, we would not be able to develop the sympathy with humanity which is one aspect of moral appro­ bation. Hume clearly took this view in a cautious, though clear note he added to

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the passage just quoted, in which he detached utility and happiness from selfinterest. He first wrote: It is needless to push our researches so far as to ask, why we have humanity or a fellow-feeling with others. It is sufficient, that this is expe­ rienced to be a principle in human nature. We must stop somewhere in our examination of causes; and there are, in every science, some general principles, beyond which we cannot hope to find any principle more general. (Hume 1998: 5.17n) Had Hume’s note ended here, one might ascribe to human beings a fellowfeeling or sense of humanity that was itself the foundation of human well-being. But he then continued as follows: No man is absolutely indifferent to the happiness and misery of others. The first has a natural tendency to give pleasure; the second, pain. This every one may find in himself. It is not probable, that these principles can be resolved into principles more simple and universal, whatever attempts may have been made to that purpose. (Hume 1998: 5.17n) It thus seems that happiness and misery in others stimulates in us a response in terms of pleasure and pain. These feelings in turn are the source of the devel­ opment of our sense of humanity and our approval of utility particularly in relation to humanity in general or to members of our own community. This developed sense of humanity enables us to express ‘a general approbation of what is useful to society, and blame of what is dangerous or pernicious5 (Hume 1998: 5.39). That Hume gave foundational status to feelings of pleasure and pain was clearly stated at a number of points in the earlier Treatise: The chief spring or actuating principle of the human mind is pleasure or pain; and when these sensations are remov’d both from our thought and feeling, we are, in a great measure, incapable of passion or action, of desire or volition. (Hume III.III.I, 1978: 574) We have already observ’d, that moral distinctions depend entirely on certain peculiar sentiments of pain and pleasure, and that whatever mental quality in ourselves or others gives us a satisfaction, by the survey or reflexion, is of course, virtuous; as every thing of this nature that gives uneasiness, is vicious. (Hume III.III.I, 1978: 574-5)

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Hume also linked feelings of pleasure with approbation (Hume III.II.I, 1978: 477), and in general the Treatise contains a number of important discussions of pleasure and pain, particularly in relation to virtue and utility (see, for example, Hume IILI.I, III.LII, III.ILVI, III.IILV 1978: 469-71, 472, 475, 528, 614). In part, these discussions of pleasure and happiness, in the Treatise as well as in the Enquiry, are related to Hume’s belief that virtue is based on happiness and that it fits in with the morality of the ordinary person. This underlying propensity for happiness is then reflected in what one commentator has called Hume’s ‘unblinking acceptance of the actual desires and preferences of mankind —that is, in its entire accordance with common life, or at least with the principles implicit in it and discernible to a careful eye’ (Danford 1990:160). In this respect, and in numerous others, Bentham was a close student of Hume, as when he wrote with regard to the principle of utility: Nor is this a novel and unwarranted, any more than it is a useless theory. In all this there is nothing but what the practice of mankind, wheresoever they have a clear view of their own interest, is perfectly conformable to. (Bentham 1996: 40) Earlier in IPML he noted that ‘by the natural constitution of the human frame on most occasions of their lives men in general embrace this principle, without thinking of it’ (Bentham 1996: 13). Furthermore, both Hume and Bentham believed that the theory and practice of austere and ascetic moral doctrines was the source of much unhappiness in society. When Hume wrote of character, he tended to use terms like ‘sociable’, ‘good natured’, ‘humane’, ‘merciful’, all of which were useful to oneself and to society, and which gave pleasure and received approbation. In an important passage Hume listed numerous qualities that were immediately agreeable in giving pleasure, apart from their utility, and in the process he rejected a line from Horace to the effect that the melancholy hated the merry. Hume responded with the remark that ‘where the jollity is moderate and decent, serious people are so much the more delighted, as it dissi-, pates the gloom with which they are commonly oppressed; and gives them an unusual enjoyment’ (Hume 1998: 7.1). Nature itself seemed to dictate that we respond to pleasure and approve it, however misanthropic we might be or however much we take pleasure in acts of cruelty. Although Hume was aware of the dark side of human character, he stressed the way pleasure enabled human sympathy to develop and respond favourably to utility and other more directly agreeable feelings. This is a powerful force and the main motivating factor behind morality. Although Hume gave utility an important role in his thought, in many respects a greater role than that given to it by ancient or early modern writers in the Epicurean tradition, he did not simply assume that we should approve of utility as a moral doctrine or imperative. As one commentator has pointed out: 36

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In fact, Hume’s Enquiry is an attempt to empirically substantiate the validity of the utilitarian principle. Hume is not maintaining merely that spectators should approve of those qualities which tend to promote the happiness of humanity. He is trying to show that as a matter of fact those qualities which tend to promote the happiness of humanity are approved by disinterested spectators. (Glossop 1967: 536) At times, however, Hume’s attempt to show that empirically utility nearly always receives a response in humans in terms of pleasure seems to be mingled with a recommendation that this should be the case. For example, Hume did not clearly distinguish between sentiments of approval and judgements of approval so that the link between feelings of pleasure and approbation is not as straight­ forward as he seemed to indicate. Furthermore, it is arguable that Hume’s acceptance of the utility principle as the common standard involved his moving ‘gradually from descriptive elucidation to approval or acceptance of utility as the appropriate standard, without ever affirming unequivocally a prescriptive ethical formula’ (Whelan 1985: 211). While these criticisms are commonplace and rele­ vant, Hume himself was emphatic that utility could be first understood in empirical terms: How, indeed, can we suppose it possible in any one who wears a human heart, that, if there be subjected to his censure, one character or system of conduct, which is beneficial, and another, which is pernicious, to his species or community, he will not so much as give a cool preference to the former, or ascribe to it the smallest merit or regard? (Hume 1998: 5.39) Hume then continued in this vein to argue that however self-interested we might be, we still have ''some propensity to the good of mankind’. ‘Would any man’, he continued, ‘who is walking along, tread as willingly on another’s gouty toes, whom he has no quarrel with, as on the hard flint and pavement?’ (Hume 1998: 5.39). This feeling for humanity, then, has '‘some authority over our sentiments, and gives us a general approbation of what is useful to society, and blame of what is dangerous or pernicious’ (Hume 1998: 5.39). Hume then generalized this position as follows: All mankind so far resemble the good principle, that, where interest or revenge or envy perverts not our disposition, we are always inclined, from our natural philanthropy, to give the preference to the happiness of society, and consequently to virtue above its opposite. Absolute, unprovoked, disinterested malice has never, perhaps, place in any 37

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human breast; or if it had, must there pervert all the sentiments of morals, as well as the feelings of humanity. (Hume 1998: 5.40) In this material Hume thus claims that utility gives pleasure and that we respond to this pleasure by giving approbation to utility. On the face of it, Hume has effected a great revolution and consequent simplification of moral theory. If we assume that morality exists, and we must because we see it empirically every­ where in human society, utility and pleasure must function in the way he indicates that they should. Absolute, unprovoked, disinterested malice’ either does not exist or if it does, there cannot be morality Hume was not so naive as to believe that no one would prefer to tread on a person’s gouty toes rather than to walk on the pavement, and he believed (as indicated in the last quotation) that there were sources of unhappiness (e.g. interest, revenge, envy, etc.). He acknowledged other sources of unhappiness as when he referred at one point to a ‘want of STRENGTH OF MIND’, which would otherwise enable people to resist the temptations of immediate pleasure and look to happiness over the longer term (Hume 1998: 6.15). At another point he recognized the existence of a type of person (‘this fancied monster’) who had no concern for his fellow creatures (Hume 1998: 6.5). But he seemed to deny this source of unhappiness a separate basis in human nature: ‘One may venture to affirm, that there is no human creature, to whom the appearance of happiness (where envy or revenge has no place) does not give pleasure, that of misery, uneasiness. This seems inseparable from our make and constitution’ (Hume 1998: 6.3n). As an example of this he referred to the ‘griping miser’ whom, he argued, praised frugality in others even though the miser would not part with a shilling to help an industrious person. But the miser did respond with pleasure to the ideas of industry and frugality, and in so doing reflected both the feelings of humanity and the connection with utility and pleasure Hume ascribed to everyone (Hume 1998: 6.3n). Self-love, for Hume, was neither a source of morality nor of evil. It simply prevented one from understanding the language, forms, and, above all, the foundations of morality. When we call someone ‘vicious’, ‘odious’, or ‘depraved’, we are using a language common to society and to humanity, and this use of language presumes the acceptance of a common morality and its foundation in pleasure and pain to which even the most depraved has access. Even robbers and pirates, Hume believed, must have a system of morality, even a system of distributive justice, which regulates their organizations (Hume 1998: 4.15). It would be tempting to use Hume’s own examples against him, and to assert that the melancholy often hate the merry for making them feel their melancholy even more acutely when they compare their disposition with that of others. Furthermore, there are people who take great pleasure in treading on gouty toes (and even worse acts of cruelty) even though numerous alternatives are available. Hume did not deny that such acts of cruelty take place, and he recognized a 38

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kind of struggle between morality and virtue on the one hand and immorality and vice on the other, as in the following passage: But these principles, we must remark, are social and universal: They form, in a manner, the party of humankind against vice or disorder, its common enemy: And as the benevolent concern for others is diffused, in a greater or less degree, over all men, and is the same in all, it occurs more frequently ... Other passions, though perhaps originally stronger, yet being selfish and private, are often overpowered by its force, and yield the dominion of our breast to those social and public principles. (Hume 1998: 9.9) Why should the ‘social and public’ principles take the ascendancy over the party of vice and disorder? How can Hume be so confident that on the whole the melancholy will take pleasure in the merry and that few will intentionally tread on someone’s gouty toes? Hume’s answer is given in the last quotation and is simply that utility and humanity are highly prized, because they give pleasure, and, furthermore, allow pleasure to be increased through the way it permeates and resonates in society (see Hume 1998: 5.45-6). The happiness of others gives us pleasure and their suffering gives us pain. In addition, we obtain a degree of pleasure from the way our sympathy intermin­ gles with the pain of others. The pleasure we obtain from utility is primarily social in nature. We take pleasure in practices, events, laws, and institutions, which are useful to society not only because we receive a benefit from such prac­ tices, etc., but also because we are pleased by the pleasure others take in such usefulness. Utility and humanity go hand in hand creating a force for morality in society. They prevail over selfishness and cruelty, because they provide many opportunities for pleasure and happiness. The anonymous critic of Hume’s moral theory had no doubt that ‘utility is his favourite and capital principle, to which he reduces all the several branches of morals’ (Anon 1753: 13). Furthermore, one modern critic, writing nearly 250 years later, has noted that in invoking utility Hume was the father of ‘the most famous tradition of English-speaking ethics’ (Penelhum 2000: 15). Even if we grant the foundational role of utility in Hume’s system, we have not yet seen how he intended utility to work in practice. Benevolence, justice and utility

One important theme for Hume was benevolence to which he gave a prominent, but, unlike Hutcheson, not a foundational role in human affairs.5 It is a powerful sentiment and one that is connected with the sense of humanity and fellowfeeling considered above. Hume discussed benevolence in four brief examples where he showed that on its own benevolence could not form the basis of 39

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morality but required guidance and supplementation from the principle of utility. As he put it: In all determinations of morality, this circumstance of public utility is ever principally in view; and wherever disputes arise, either in philos­ ophy or common life, concerning the bounds of duty, the question cannot, by any means, be decided with greater certainty, than by ascer­ taining, on any side, the true interests of mankind. If any false opinion, embraced from appearances, has been found to prevail; as soon as farther experience and sounder reasoning have given us juster notions of human affairs; we retract our first sentiment, and adjust anew the boundaries of moral good and evil. (Hume 1998: 2.17) In each of the examples Hume began with acts motivated by benevolence, which, in fact, did not advance human happiness and were gradually adjusted accordingly. In the first of these Hume argued that giving alms to common beggars, though ‘naturally’ praised, was seen more as a weakness than as a virtue, once we ‘observe the encouragement thence arising to idleness and debauchery’ (Hume 1998: 2.18). The second example recorded the change in attitude towards tyrannicide, from approval of the practice as it rid humanity of its oppressors to rejection of it, as ‘history and experience’ had convinced us that the practice ‘encreases the jealousy and cruelty of princes’ (Hume 1998: 2.19). In the third example Hume noted that liberality in princes, which was often taken as a mark of beneficence, might not be so when ‘the homely bread of the honest and industrious is often thereby converted into delicious cakes for the idle and the prodigal’ among their courtiers (Hume 1998: 2.20). Finally, Hume stated that the pursuit of luxury, which had been regarded as a source of corruption and slavery, might better be seen as increasing industry, various arts, and human civility (Hume 1998: 2.21). In all of these examples Hume referred to experience and rationality which led to changes of view in morality and politics. In the two perspectives exhibited in the four examples we see ample evidence of benevo­ lence, but in the second perspective Hume attempted to ensure that benevolence in fact served the ‘interests of mankind’. How is this achieved? Experience and reasoning from experience have taught us that what is apparendy an act deserving approbation, because it is motivated by benevolence or because we think that it is an act motivated by benevolence, does not deserve such approbation, because the consequences of such an act do not serve the ‘interests of mankind’. In the first example Hume believed that acts of apparent benevolence encouraged idleness and debauchery, even though they might reduce the sense of pain felt by the hungry and suffering indigent on receiving alms. Hume suggested that we must look beyond the pleasures and pains of the alms-giver and receiver to the public interest. From this perspective we are able to see that alms-giving pure and simple might well increase idleness 40

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and debauchery and lead to an increase in pain and suffering in society as a whole, as the number of people who obtain the necessities of life through begging rather than working increases. This development might then lead to an increase in crime and immorality where the alms provided are limited and habits of idleness increase and become entrenched. Even if we grant that the change of perspective from the individuals involved to the public interest leads to a different assessment of the value of some benevolent acts, how do we know that this is the case and how can we establish our position? Those who give alms might argue that they receive great pleasure and satisfaction in doing so, as well as advancing for themselves the prospects of eternal happiness. The indigent might call attention to the pleasure they give to alms-givers in allowing them to be virtuous, and, in addition, the relief from pain they feel in receiving alms. Being poor and needy, they might add, also has certain advantages in an afterlife. From the point of view of both rich and poor, and, indeed, from the perspective of all mankind, there are considerable benefits to be derived in this life and in an afterlife from the practice of giving alms.6 Hume’s argument receives powerful support from the fact that it is empiri­ cally based. It was not his personal view that giving alms to beggars is a bad practice, but one which was gradually adopted by reflective writers and politi­ cians in civilized societies. Furthermore, Hume’s approach denied any automatic validity to the view held by those who believed that God’s word itself (as well as benevolence, generosity, kindness, charity, etc.) supported the practice of indis­ criminate alms-giving. Having challenged such a position and placed the two views on a level playing field, Hume was then able to suggest why those opposed to giving alms took this point of view. Rationality entered the argument here for a third time (the first being the elevation of experience and the second, the establishment of the level playing field), and pointed to utility as a way of under­ standing and adjusting experience. In the first place giving importance to utility (as the guardian of human happiness in moral matters) enabled Hume to point to the public interest rather than simply to self-interested satisfactions. This was possible, because although utility was ultimately connected to individual percep­ tions of pleasure and pain, it was mediated by ideas of sympathy and humanity that sustained the idea of utility as being intensely social. The reason society had come to criticize the practice of giving alms was that, despite the pleasures afforded to both givers and receivers, the practice was harmful to society, that is to say, to every individual in society. Changes to the practice might well have meant that greater happiness was provided not only for members of society generally (in the reduction of poverty, crime, and other immoral practices) but also for those actually involved in the practice despite their potential opposition to change. Beggars might become industrious, hard-working members of society and alms-givers might invest their money in productive enterprises which would provide opportunities for employment for former beggars. For Hume, therefore, the invocation of utility enabled him to advance the perspective of the public interest from which his empiricism could more effi41

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ciently operate. It also enabled him to develop a new sense of objectivity in discussing and resolving moral differences. The old sense of objectivity may have been provided by the Bible or by conceptions of goodness in nature, but Hume would discount these as not being fully able to assist humanity in resolving social problems. Utility contains a rationality that is clearly evident in the way we can adjust our attitudes and institutions on the basis of experience, and enhance the happiness of those who live in society with us. Above all, Hume’s approach was not reductive: it made no attempt to provide a utilitarian ideology The ‘party of humankind’, as he called it, existed to advance the happiness of mankind rather than any particular sect within it. It attempted to incorporate the wide variety of moral views within it, and if the ‘party of humankind’ had an opposition, it was only those forces that opposed morality entirely. When Hume discussed the various moral sects (Epicurean, Stoic, Platonist, and Sceptic), it was to show that all could be embodied in what one commentator has called ‘the complexity of the moral universe of common life’ (see Hume 1985: 138-80; Danford 1990: 161). Although considerations of public utility may provide an important role in our approval of actions performed from benevolent motives, for the most part benevolent actions receive our approval and are valued in themselves. Justice is different in a number of respects. Unlike benevolence, justice must deal with and possibly accommodate strong feelings of vengeance and envy which can threaten the very foundations of society. Justice must also inflict pain either directly or indirecdy by depriving people of their liberty and goods which they might other­ wise consider to be theirs by right. Furthermore, justice is associated with such powerful sentiments that there is a widespread feeling that it is something natural and fixed and means the same thing everywhere (Anon 1753: 13, 16). Justice and injustice play such a role in morality that it might be thought that they form the basis for virtue and vice and right and wrong so that the whole of morality seems based on this virtue in society. From this perspective one can imagine the outcry Hume’s conception of justice aroused. The idea that there is no natural basis for justice, based on a simple instinct in the breast of each person, which distinguishes right from wrong, but that justice is based on artifice and utility, not only undermines justice but also seems to threaten what justice is meant to support: the foundations of society. The anonymous contemporary critic of Hume not only held most of the views expressed above, but thought that Hume’s deprivation of natural status to justice was sufficient in itself to threaten society: for to me it appears not only ill founded, but even of dangerous tendency; and it puts justice, which of all virtues is the most necessary and fundamental to society, on a more loose and precarious bottom than the rest; and somehow degrades it into a lower class, and distin­ guishes it in a dishonourable manner. (Anon 1753: 14). 42

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For this author utility did not provide any foundations at all. As we developed different ideas of what was in the public interest, ‘the rules of right and wrong would be perpetually shifting5(Anon 1753: 16). While he could accept that utility might form an ‘additional motive5, it could not play this foundational role, ‘which, I think, can be clearly traced back to a primary, original feeling in human nature5 (Anon 1753: 43). James Balfour, another contemporary critic of Hume, writing in 1753, took a similar view: Thus the idea of just and right is evidently antecedent to the idea of common utility. [T]tiis last is a consequence, and not the source of the first. Such is the original frame of our constitution, that we have a natural sense of right and wrong, a feeling and perception of just and unjust. The idea of good or useful, must then relate to our original constitu­ tion. (Balfour 1989: 56) For Balfour, then, Hume not only grounded justice on shifting sands, but he also put the cart before the horse in claiming that utility was the foundation of justice, when arguably justice might be regarded as the foundation of utility. Balfour was critical of Hume5s account of justice in other respects. He thought that Hume had based justice ultimately not on utility at all but on self-interest so that each individual agreed to the rules of justice simply to prevent disorder and civil strife (see Balfour 1989: 50—1). For Balfour, this foundation had little to do with morality or justice, and he believed that Hume himself was so eager to avoid basing justice on self-interest that he developed the idea of sympathy with the public interest mainly in an attempt to avoid it. But such sympathy was, according to Balfour, a confused idea, linked to benevolence but ultimately distinguishable from it, because Hume himself insisted that benevolence was distinct from justice (see Balfour 1989: 54). If the idea of sympathy was distinct from benevolence (as we have seen it is), then Balfour believed that as a general principle of humanity, it was unable to form the basis of justice. Thus, for Balfour, the crucial link between sympathy and utility was so vague that it could not do the work Hume had allocated to it. Finally, Balfour believed that utility did not allow for clear distinctions between virtue and vice. The actions of an evil genius might be highly useful to society, but they were still the actions of a person lacking morality. Hume clearly rejected the commonplace view that there was a natural instinct regarding justice like ‘hunger, thirst ... resentment, love of life, attachment to offspring5 or a simple passion arising from an instinct ‘which nature has implanted for like salutary purposes5(Hume 1998: 3.40). He asked rhetorically if anyone had discovered a simple, original instinct regarding the rules of property and justice and suggested that if such an instinct existed, there would have to be 10,000 of them to deal with the complexities surrounding such rules concerning 43

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only the possession of property by such various means as occupation, industry, prescription, inheritance, and contract (Hume 1998: 3.41-6). Hume also knew that the virtue of justice had no universally accepted meaning but was often used in different ways in varying contexts. The Platonic and Christian conceptions of the just soul, the just man, and the just state, emphasizing order and harmony, and reflecting a universal justice in heaven, represented one approach to justice, albeit one that Hume did not adopt. Nor did he admit various theories of distributive justice, such as distribution on the basis of merit or equality, which are well-known today and would have been well-known to Hume. Distribution on the basis of merit might be rational, but, for Hume, such a proposal reflected a reason that was not acquainted with human nature (Hume 1998: 3.23). Self-conceit would lead to a wide variety of conceptions of merit and no rule of conduct could ever be derived from it. Distribution on the basis of equality was similar, but also raised additional prob­ lems. It was similar in so far as rational claims might be made for equal distribution. Hume even invoked a principle of marginal utility on the side of rationality. Every departure from equality deprived the poor of much greater satisfaction than it added to the rich (Hume 1998: 3.25). But given inequalities in individual ‘art, care, and industry’, such an equality of distribution would, in Hume’s view, immediately disappear, and any attempt to prevent such ‘art, care, and industry’ for the sake of equality would reduce the whole of society to indi­ gence (Hume 1998: 3.26). The political power necessary to achieve such equality would have to be so great that the government would soon become a tyranny. Hume’s own approach to justice, conceived as the stability of possessions and property, was also open to a wide variety of interpretations. In the first place it was not immediately attractive, and at one point Hume referred to it as ‘the cautious, jealous virtue of justice’ (Hume 1998: 3.3). Specific acts of justice did not evoke a direct sense of approbation in the way that acts of benevolence did, and hence there was no obvious feeling connected to the approval given to justice. In the second place, it was not easy to distinguish the rules of justice concerning property from vulgar superstition: I may lawfully nourish myself from this tree; but the fruit of another of the same species, ten paces off, it is criminal for me to touch. Had I worne this apparel an hour ago, I had merited the severest punishment; but a man, by pronouncing a few magical syllables, has now rendered it fit for my use and service. (Hume 1998: 3.37) All that makes the apparent absurdities of securing property differ from the superstition of a Syrian preferring to starve rather than eat pigeon, or an Egyptian refusing to come near bacon, is public utility (Hume 1998: 3.36). On their own the various precepts of justice are as strange as any religious supersti­ tion. 44

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The idea that there was a virtue of justice relating to both the individual and society, which could be easily defined and readily implemented without contro­ versy, was, for Hume, clearly absurd. Even within a widely accepted conception of justice, such as that connected with security of property, there could be perni­ cious consequences. For example, a bad person might inherit money from a parent and use it for evil purposes. At times the system of justice might even appear absurd, as when Cyrus allowed a tall boy to take a long coat from a short boy and give to him his short coat instead, thereby violating the system of justice that secured to each the stability of possessions (Hume 1998: App. 3.4). Hume linked justice to public utility by setting forth what must have been a highly novel argument, that public utility (as he conceived it) ‘is the sole origin of justice, and that reflections on the beneficial consequences of this virtue are the sole foundation of its merit5(Hume 1998: 3.1). The cornerstone of his position is his argument which links his own conception of justice to utility by showing that in other circumstances, no such link is necessary. For example, where nature provides all the conveniences and luxuries the human race could need, there is no reason to be concerned with the division and security of property; every person simply takes what is required. Similarly, where there is extreme scarcity, through war or famine, for example, people must obtain whatever sustenance they can find. How they obtain it and how they distribute it is of no great concern in such desperate circumstances. Hume argued that where there is great plenty or great scarcity, justice becomes irrelevant. Where justice is relevant, it is only due to its utility. Conditions are such that stability of possessions and secu­ rity of property are useful to mankind. In these circumstances justice is highly regarded not in itself, but for its conse­ quences. It enables us to have settled, happy, and prosperous lives, and to plan for the future. In these respects nothing can be more attractive than justice despite the fact that at the level of the individual, justice might well cause great hardship and unhappiness by forcing some to abstain from using the property of others and live in poverty and misery. Indeed, at the level of individual selfinterest, one might hesitate to adopt such a theory of justice. Nevertheless, the virtue of justice was established by reference to its utility, and by showing that utility brings pleasure and happiness. Furthermore, Hume’s novel approach to justice allowed him to affirm only one conception of justice, that concerned with the division of property and its secure possession. This is the ugly duckling that grows into the beautiful swan and secures the interests of mankind. Utility and m orality

In the material on benevolence and justice, utility, as we have seen, plays a crucial foundational role. In both cases Hume called attention to complex systems of social interaction to which we give approval on the basis of their utility to human security and happiness. The systems might consist of laws, customs, manners, conventions, etc., and those participating in them would feel 45

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the benefits through their utility. Nevertheless, for a number of Hume’s contem­ poraries and, to a lesser extent, for moralists today, it was felt that there was something odd about the transformation of a traditional moral language into a novel language of utility. The cultivation of virtue and vice might begin with the study of society, and, in particular, with its institutions, customs, and practices, and the language used to make moral distinctions within society. Morality in these contexts emerges as a necessary part of social life. Without justice society might be plunged into civil strife and war; and without benevolence, it would be deeply impoverished. The cultivation of morality for individuals does not disappear, but it is more a matter of education, parental affection and chastisement, and the cultivation of feelings, particularly those linked to our sense of humanity. For traditional churchmen Hume’s approach was obviously deeply disturbing, but there were points of agreement, where the two perspectives could come together. Utility and humanity deserved approval in any moral vocabulary, even though for the tradi­ tional churchmen they were not thought to stand at the foundations of morality. Nor, for many, would they allow for the development of a superior moral excel­ lence despite the fact that the actions of a person possessing this superior excellence might be regarded as contributing considerable utility. Furthermore, no clear and unchanging distinction between virtue and vice would be estab­ lished through the use of utility. But Hume was not troubled by these criticisms. In one passage he depicted the superior excellence of the Socratic philosopher in terms which gave full credit to that excellence, and, in addition, in terms of the grandeur of his elevated position and tranquillity as it struck others who beheld him and his achievements: Of the same class of virtues with courage is that undisturbed philo­ sophical TRANQUILLITY, superior to pain, sorrow, anxiety, and each assault of adverse fortune. Conscious of his own virtue, say the philoso­ phers, the sage elevates himself above every accident of life; and securely placed in the temple of wisdom, looks down on inferior mortals, engaged in pursuit of honours, riches, reputations, and every frivolous enjoyment. These pretensions, no doubt, when stretched to the utmost, are, by far too magnificent for human nature. They carry, however, a grandeur with them, which seizes the spectator, and strikes him with admiration. And the nearer we can approach in practice, to this sublime tranquillity and indifference (for we must distinguish it from a stupid insensibility) the more secure enjoyment shall we attain within ourselves, and the more greatness of mind shall we discover to the world. The philosophical tranquillity may, indeed, be considered only as a branch of magnanimity. Who admires not Socrates; his perpetual serenity and contentment, amidst the greatest poverty and domestic vexations; his resolute contempt of riches, and his magnanimous care of preserving liberty, 46

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while he refused all assistance from his friends and disciples, and avoided even the dependence of an obligation? (Hume 1998: 7.16) Hume fully demonstrated the superior excellence of the philosopher, without compromising his own system of morality. Nevertheless, it is of more than passing interest that the philosophical tranquillity he so elevated resembles closely that enjoyed by the Epicurean sage. Enquiry versus Treatise

When one turns from the Enquiry to the earlier Treatise, one finds the same termi­ nology in the account of justice, but it is clear that Hume used this terminology differently. The most obvious difference is that he made no attempt to establish utility as the foundation of justice, and concentrated on the origins of and motives for justice rather than on foundations. He found these origins or motives firstly in self-interest and second in sympathy with the public interest as the source of approbation of the virtue. We are led by self-interest to establish the virtue of justice as security of property, and we sustain that virtue through our sympathy with humanity or with the public interest. This formulation omits to consider why we should choose one conception of justice over another. If our self-interest leads us to establish security of property as the principle of justice, our sentiment of sympathy with mankind, if not our self-interest, might lead us to support equal distribution or distribution according to merit so that property would be in the hands of those people able to make the greatest contribution to the happiness of mankind. The motives for establishing justice do not necessarily lead to justice as the stability of possessions. Hume seemed aware of this problem, but he disguised it by distinguishing between single acts of justice and the whole scheme of justice. He used the example of a man of merit who would otherwise use a fortune to increase public welfare, but who had to return the fortune to a person who was a miser. The public suffered in this instance of justice, but benefited overall, Hume argued, from having a system of justice. But Hume omitted to acknowledge that in the so-called single instance there were two different and often opposed principles of justice: security of property and distribution on the principle of merit. Hume wanted to say that the first was the only fully plausible conception of justice, given the self-interested motivation of much human action. But sympathy undermined his argument, as it suggested that human sentiment would approve of justice, even where justice was not conceived as security of property. In the Enquiry Hume turned the argument around and showed that under certain circumstances justice would inevitably arise to give stability of possessions and security to property. He omitted the material on the origin or motives for justice, because it was unnecessary. Whatever our motives, we will turn to secu­ rity of property and call it justice. We will justify this move by reference to public 47

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utility. That is to say, the system of justice will enable all sorts of good and useful things to develop. It does not matter if particular acts of justice cause pain or if the whole system is a painful burden to mankind. What matters is that the system of justice is useful to mankind, and, in addition, that utility brings plea­ sure and hence happiness. Hum e and Bentham

It is important that we dwell on the similarities and differences between Hume and Bentham (already touched on at various points), because the widely held but false views of Hume’s conception of utility, which have been discussed in this chapter, seem to depend on and were arrived at by equally false views of Bentham’s utilitarianism. Those who have argued that Hume was not a utili­ tarian or that his utilitarianism had little influence on later classical utilitarians have often reached this position through a caricature of Bentham’s theory It will seem odd to some that one can misconstrue and misunderstand the ideas of one thinker because one misunderstands the ideas of another, but the practice is not entirely uncommon in the history of ideas where one is often attempting to understand a thinker as part of a larger tradition.7 We shall encounter a similar problem in the chapters on J.S. Mill, where Mill’s hedonism is shown to be widely misunderstood, mainly because that of Bentham is also misunderstood. We shall begin here, however, by noting the similarities between Hume and Bentham, as much of the confusion regarding Hume’s conception of utility depends on the denial of numerous points of agreement. These points of agree­ ment stem from two sources. First, both Hume and Bentham drew on and worked within the Epicurean tradition discussed in the previous chapter. Hence there is a similarity in some of their ideas which is based not on direct discipleship but on their sharing a common intellectual tradition.8 In this respect one can note, for example, a number of similarities in their use of pleasure and pain. For both Hume and Bentham there was a clear distinction between pleasure as a good and pain as an evil (see DeWitt 1954: 217). Unlike Plato and Aristotle, for example, neither wrote of good and bad pleasures or good and bad pains\ and for both, to say that utility generated pleasure was to say that utility was good. Similarly, neither suggested that there might be a neutral state between pleasure and pain (see Cicero I.xi, 1999: 42-3), but both agreed that pleasure was a normal part of life, with pain being abnormal in the same sense that disease was considered abnormal. Thus, for neither Hume nor Bentham did utility present itself as a neutral activity from which we might or might not obtain pleasure; we respond to utility with pleasure, and the only alternative would be to respond to it with pain. Furthermore, neither of the two writers assumed (as did Plato and Aristotle) that there was ‘an ascending series of pleasure’ which depended on the organ affected so that the pleasures of a full stomach would be inferior to the enjoy­ ment of intellectual contemplation, because the stomach was considered inferior 48

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to the soul (DeWitt 1954: 236). This is not to deny that one might obtain greater pleasure from contemplation than from eating (from the satisfactions of Socrates as opposed to those of a pig), but it is to say that there are not different levels of pleasure related to different parts of the body Both Hume and Bentham subscribed instead to the Epicurean doctrine of the unity of pleasure (DeWitt 1954:235). These basic assumptions about pleasure and pain have important implica­ tions for both Hume and Bentham. In Hume’s empiricism and its regard for ordinary human life, its pleasures and pains, and virtues and vices, he never paused to consider different kinds of pleasure and pain. If utility pleased, the pleasure it provided was like any other pleasure. Bentham would fully agree. The various categories depicted in IPML (1996: 42-50) led to no conclusions regarding some pleasures being superior to any others. Indeed, not only did Hume’s empiricism and attention to the virtues and vices praised and deplored in ordinary life depend on the doctrine of the unity of pleasure, but also ideas of sympathy and humanity seemed to require it for their coherence and force. The party of humankind might be regarded as the party of pleasure; the party of vice and disorder might well be depicted also as the party of pain (see Hume 1998: 9.9). At this point I am not claiming that Hume and Bentham used plea­ sure in the same way in every respect, but that they shared several important assumptions about pleasure and pain, derived from the Epicurean tradition, which made other aspects of their thought coherent. Second, Bentham was a careful student of Hume, and he consciously took numerous ideas from Hume’s writings. In this respect one might begin with A Fragment on Government, published twenty-five years after the second Enquiry, and Bentham’s first significant work. In a well-known passage referring to Hume, Bentham noted that he ‘felt as if scales had fallen from my eyes [and] I then, for the first time, learnt to call the cause of the people the cause of virtue’. He then added that CI learnt to see that utility was the test and measure of all virtue ... and that the obligation to minister to general happiness, was an obligation paramount to and inclusive of every other’ (Bentham 1988: 51n-2n). When Bentham wrote that he ‘learnt to call the cause of the people the cause of virtue’, he was referring to Hume’s belief that to understand morality one must study it empirically as part of ordinary life. One must also understand Bentham’s position by recalling the remarks in IPML, as quoted above, that the principle of utility reflected the ordinary practices of mankind and that most people tended to live by this morality. There was thus a recognition in Bentham, following in the footsteps of Hume, that utility was to be the test of virtue. In making this point Bentham was not denying Hume’s point that some virtues were useful and others more directly agreeable, but he was calling attention to the way Hume made utility the foundation of virtue as a social practice. In the early Fragment (1988: 51 and n) Bentham also followed Hume in rejecting the doctrine of the social contract. We have already noted how Mounce, for example, builds a major distinction between naturalism (Hume) and 49

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rationalism (Bentham) around this doctrine, but omits to notice that Bentham explicitly followed Hume in rejecting it. Bentham also followed Hume in turning to habit, custom, and, wherever relevant, established laws to conceive the basis of political obligation (Bentham used the phrase ‘habit of obedience’), and to resis­ tance, where he found its rationale in the established conventions whereby governments divided and allocated power (see Bentham 1996: lvii ff). Many Hume scholars might acknowledge this dimension to Bentham’s thought, but nonetheless argue that there is in Bentham an emphasis on ratio­ nality which takes the form of the measurement and calculation of pleasure and its maximization, emphasizes the importance of the individual making these calculations, and uses the external force of law to effect changes in society in order to create a society generating even greater happiness - all of which was foreign to Hume’s approach. However much Bentham began as a disciple of Hume, it might be argued, he did not finish as one, and the contrast between Hume’s naturalism and Bentham’s rationalism might still be valid. These sentiments are based on a widely accepted reading of Bentham’s IPML to which we shall now turn. Two points, both of which have been mentioned earlier, require further attention. The first is Bentham’s invocation of nature in the first sentence of the text: ‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.’’ Seldom noticed here is Bentham’s use of an extensive political metaphor in this opening paragraph. ‘Governance’, ‘sovereign’, and ‘masters’ appear in this sentence, and Bentham carried on in the rest of the paragraph to use words such as ‘govern’, ‘empire’, ‘subjection’, ‘subject’, and ‘law’ (Bentham 1996: 11). In one sense the use of the metaphor simply supports Bentham’s emphasis on the role and power of pleasure and pain, and, additionally, utility in human affairs. As in political subjection we are bound by pleasure and pain, but unlike political subjection, we cannot throw off this subjection. The metaphor makes our subjection to pleasure and pain seem utterly absolute and even different from political subjection. Nature, it seems, puts us under a different sort of subjection. Pleasure and pain govern us ‘in all we do, in all we say, in all we think’ (Bentham 1996: 11): emphasizing its control over the totality of human life. Reason itself is as much subject to pleasure and pain as the appetites. In this sense the increase of happiness does not depend on or is not subject to rational calculation, but to pleasure and pain. No matter how much we calculate rationally, reason alone cannot produce happiness nor can we change our lives and the institutions under which we live simply by rational calculation. The utility principle differs from all other principles, not in being more rational, but in its recognition and acceptance of the absolute power in nature of pleasure and pain. How then did Bentham think that happiness was determined? When he referred to the principle of utility in this fundamental role, he added a footnote in which he explained what he meant by a principle, and, in particular, the prin­ ciple of utility. A principle was ‘a term of very vague and very extensive signification’ which was ‘applied to any thing which is conceived to serve as a 50

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foundation or beginning to any series of operations5. In developing this point, he continued: ‘the principle here in question may be taken for an act of the mind; a sentiment; a sentiment of approbation; a sentiment which, when applied to an action, approves of its utility’ (Bentham 1996: 12n). Not only did Bentham follow Hume in basing utility in sentiment, but he also used the novel term, ‘approbation’, with which Hume’s anonymous critic took issue. For Bentham as for Hume, the utility principle evoked sentiments of approbation based on feel­ ings of pleasure. These sentiments might be simple or highly complex and those concerned with society are based on a complex set of responses but always ulti­ mately on pleasure and pain. Both Hume and Bentham gave ample scope to rationality. In the examples concerning benevolence Hume showed how over time reason corrected views of tyrannicide, luxury, beneficent princes, and giving alms to beggars, all of which gave pleasure when seen in one light but gave even greater pleasure when painful aspects were eased following greater insight and understanding. For Bentham the human condition was the same. A given practice might give pleasure, but its reform might give even greater pleasure. The ultimate standard was the happi­ ness of society, seen in terms of the happiness of the individuals that composed it. The idea that Bentham was more of a rationalist than Hume and hence differed from him is often linked to the supposed emphasis Bentham placed on the individual making rational calculations, a perspective Hume supposedly did not emphasize in his focus on public utility. Mounce develops this perspective as follows: Bentham, for example, insisted that society is simply a collection of individuals and is therefore to be understood by understanding the indi­ viduals which comprise it. The method is comparable with that of the physical scientist. A chemist, for example, breaks down a substance into its component parts, analyses the nature of the parts and then, through bringing them together again, understands the nature of the substance. In a similar way, individuals are taken in abstraction from society, their nature analysed and society explained as what results when the individ­ uals who have this nature come together. (Mounce 1999: 90) Mounce goes on to relate this method to Hobbes and other social contract theorists, arguing that individuals are understood as they existed prior to their entrance into society. By contrast, he depicts Hume’s position as follows: Now Hume, by contrast, argues that the benefits of society can be calculated only by those who already have some experience of it. Consequendy it cannot have arisen as a result of such a calculation. (Mounce 1999: 90) 51

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This stark contrast between Hume and Bentham is often based on evidence in IPML in which Bentham seems to define utility in terms of individual happi­ ness: The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. When it has a meaning, it is this. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what? - the sum of the interests of the several members who compose it. It is in vain to talk of the interest of the community, without under­ standing what is the interest of the individual. A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures: or what comes to the same thing, to diminish the sum total of his pains. (Bentham 1996: 12) If my argument regarding Hume and Bentham is to succeed, I must show that what Bentham stated in this material is not equivalent to the doctrine of the social contract, which, as we have seen, he clearly rejected in the earlier Fragment. First, the passage in question appeared in the midst of an account of what is meant by the principle of utility. In the passage just prior to the quotation, Bentham said that the term could apply to the happiness of the community or the happiness of the individual. Just after the quotation, Bentham wrote that he was using the principle of utility so that ‘the tendency it has to augment the happiness of the community is greater than any it has to diminish it’ (Bentham 1996: 12-13). A few paragraphs further Bentham depicts the ‘partisan5 of the principle not as one who calculates his pleasures and pains from self-interest, but one whose ‘approbation or disapprobation ... is determined by, and propor­ tioned to the tendency which he conceives it to have to augment or to diminish the happiness of the community5(Bentham 1996: 13). On the basis of these statements, Bentham scholars have tended to argue that for both Hume and Bentham utility means public utility, and the utility for the individual refers to that part of public utility in which he or she shares (see Long 1990: 35—6). Furthermore, there are no references in either Hume or Bentham to a state of nature or a pre-political condition in which the individual possesses certain characteristics that can be abstracted from society itself, or general char­ acteristics such as one finds in Locke of a state of nature in which there is freedom and equality (see Burns 1993). For Bentham, as we have seen, we are not free and equal, but subject to nature; such subjection is of a special kind, that is to say, subjection to pleasure and pain. By nature, all that we can say is that humans are sentient creatures. Our ethics and politics depend entirely on the prior existence of society and polity. Bentham put it memorably when he stated 52

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that the principle of utility recognized the subjection to pleasure and pain and ‘assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law5(Bentham 1996: 11). Reason thus enters the system as the slave or servant of feeling or passion. Consider, then, those passages (which have been quoted) where Bentham wrote that the community was a fictitious body and the interest of the commu­ nity could not be seen as anything other than the sum of the interests of the individuals who composed it. Surely here is the source of Mounce’s point that the rationalist proceeds like a scientist in breaking down a substance into its component parts, analysing the parts, and by bringing them together under­ standing the substance. This procedure may be true for scientific understanding (though I doubt it), but it is not true for Bentham. He did not say that if one understood, in the context of the community, the elements of the community (in terms of the pleasures and pains felt by individuals), one thereby knew the community. What he insisted on was that the community could not be under­ stood apart from the individuals who composed it. If a politician said that war in a given situation was in the public interest, because it brought glory and honour to the nation, Bentham would want to establish what was meant by the public interest in this particular context. He would insist that one could not establish the public interest without reference to the individuals who composed society, and that meant all the individuals. This did not mean that by considering individual interest one could understand whether or not war was in the public interest. But if war did not promise to bring security and happiness to all members of society by defending them against the pain of invasion and subjection, then it was not obviously in the public interest. When the politician justified war in terms of the glory and honour of the nation, he did not refer to the interests of the individ­ uals who composed the community. When Bentham considered war in terms of the security and happiness of the community he did refer to the interests of the particular individuals who constituted it. In the former case the community was, in Bentham’s terms, a fictitious body unrelated to individual interests. In the latter case the community was also a fictitious body (all general nouns were considered fictions by Bentham), but in this case the fiction was a useful one, because it referred empirically to the interests, feelings, and aspirations of the individuals in society. One might say that Bentham meant by the community consisting of the sum of the interests of the individuals the same as Hume did when he referred to the party of humanity, based on utility, as that advancing good, and the other party representing evil. This was where utility and humanity took their stand and used reason and law to establish the fabric of felicity. This account of the analysis of the public interest in terms of the individual might not persuade those who insist on the distinction between Hume’s and Bentham’s utilitarianisms to abandon their positions. They might call attention to the emphasis on rational calculation, the measurement of pleasure and pain, and the maximization of happiness they find in Bentham but not in Hume. Even if reason is the slave of passion for both thinkers and even if society must be 53

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presupposed for individual happiness to make sense, there seems to be a much greater emphasis on rationality in Bentham’s IPML. I shall deal with Bentham’s account of pleasure and pain later, in chapter 10 on J.S. Mill’s hedonism, and with the emphasis on maximization in chapter 13 on Bentham and Mill on utility and rights. It will be shown there that these aspects of Bentham’s doctrine do not reveal any clear distinction between Hume and Bentham with respect to their understanding of the principle of utility. Nevertheless, it would be naive for any student of Hume and Bentham not to notice differences between them, even if these differences are ones of emphasis or style rather than substance. Compare, for example, Hume’s emphasis on justice in both the Treatise and Enquiry with the fact that Bentham in IPML consigned the whole theme of justice to a footnote, where he identified it with utility when applied to certain particular cases, and partly with benevolence (Bentham 1996: 120n). Although he placed the same emphasis on security of property as did Hume, he made such security the most important secondary principle concerned with the civil law, and eventually depicted it in terms of his disappointment-prevention prin­ ciple (see Kelly 1990). He thus stripped security of property of its association with justice for which three reasons might be given. First, he acknowledged that justice had at least one other role besides securing stability of possessions, namely the enforcement of the penal law. Such enforcement of the penal law might well require the confiscation of property as punishment. Second, he wanted no rivals to the principle of utility as the foundation of morals and legis­ lation, and might well have concluded that the notion of justice had so many ideas associated with it that to link it with security of property alone, as Hume did, was a pointless exercise. To replace it with utility and to make security of property the most important secondary principle under utility would still repre­ sent Hume’s position using a slightly different terminology. Third, Bentham followed Locke and Montesquieu in linking security of property with liberty rather than with justice. This was liberty secured by law and Bentham would hesitate to lose that association (see Rosen 1992: 25-76). It is worth noting that J.S. Mill repeated Bentham’s emphasis on security in the last chapter of Utilitarianism, but like Hume, he associated it with justice (see Mill 1969: 240-59; 1998: 87-107). Perhaps having already advanced a new idea of liberty in On Liberty, he hesitated to confuse it with another, and returned to the link Hume had established between security of property and justice. We can see here that on the one hand Bentham followed Hume in making security of property depend on utility and the basis of justice. On the other hand, he could give good reasons for changing the terminology so that justice was seen as an imprecise and misleading term which could be replaced entirely by the principle of utility and its subordinate principles concerned with the civil and penal law. If Hume wanted to change the meaning of accepted terms so that they no longer needed to be understood as part of traditional morality, but would be linked to utility, Bentham went one step further to consider the logic of 54

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the newly defined concepts. Once utility and liberty were on their respective thrones, justice need not have a throne of its own. If this one difference between Hume and Bentham does not establish just what distinguishes them, consider another example, to which Hume referred the virtue of chastity. The anonymous critic of Hume, as we have seen, took issue with the way Hume based chastity on public utility, and suggested that Hume belittled the ‘instinct of natural modesty, or a sense of honour or pride, which acts as the guardian of chastity, independent of utility’ (Anon 1753: 34—5). Bentham followed Hume in connecting chastity to utility, but he was less enthusi­ astic about calling chastity a virtue at all. ‘Constipation’, he wrote at one point, ‘is a virtue of the same quality as chastity’ (Bentham 1983b: 362). Bentham also clearly distinguished chastity from modesty: A woman may talk bawdy all her life long without having sexual inter­ course. She is immodest, but not unchaste. Another may have sexual intercourse with hundreds, and yet preserve her modesty. A clap doctor is not immodest though occupied all his life about the sexual urgencies. (Bentham 1983b: 362) In these remarks Bentham has exhibited a sharp, critical wit, which Hume, I believe, would have enjoyed. Bentham clearly started from Hume, but used his analytic skill to move the argument on. If Hume half-demolished the traditional praise of modesty and chastity, Bentham in these brief remarks has completed the task. Nevertheless, one difference between Hume and Bentham is emerging. If Hume put the virtues on a different foundation and in the process altered their meanings somewhat, he left them all in place (indeed, he added a good number) to be admired and appreciated even by those who rejected his new foundations (see Moore 2003). Indeed, when Paley attempted in his Principles of Moral and Political Philosophy to bring together Hume’s emphasis on utility and Christianity, many (though by no means all) theologians thought that he was reasonably successful. But Bentham wanted to start again from the principle of utility and reconsider the various traditional virtues. Some, such as justice, would disappear entirely; others would be redefined; still others would be invented and given new names, because they more accurately captured the human disposition we admired. For the redefinition of a virtue, a good example would be his remarks on the traditional virtue of courage. In his discussion Hume insisted on the utility of courage, though not all practices traditionally associated with courage (as when the Scythians scalped their enemies, dressed the skin, and used it as a towel (see Hume 1998: 7.14)) would be considered virtuous. But courage was important for Hume both in itself and because the fact that we admired courage in heroes of distant times and modelled our lives on them meant that we were capable of a widespread and deep sympathy Bentham admired courage as much as Hume, but he noted that its meaning had changed in modern times. He also thought 55

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that self-denial was not necessarily part of the virtue. Just as Hume contrasted Fenelon with Homer (Hume 1998: 7.15), Bentham noted that physical courage was no longer as important as it once was: cthe old days were days of force; these are the days of fraud. Formerly, it was the powers of the body, now those of the mind ... Formerly it was physical force; now it is mental fraud’ (Bentham 1983b: 360). For Bentham, therefore, courage must be redefined to incorporate honesty and integrity in advocacy and not simply conceived in physical terms. Hume, however, proceeded to link philosophical tranquillity to courage, as something to be admired, and, in particular, the example of Socrates who combined ‘his perpetual serenity and contentment’ with his contempt for wealth and preserva­ tion of his liberty (Hume 1998: 7.17). Bentham was scathing of this analysis and suggested that this tranquillity led to an insensitivity to external and particularly distant suffering. Furthermore, Socrates’s contempt for wealth was dismissed as ‘vanity and pride’: Like standing a long while on one leg, it is denying to himself the doing the good which could only be done by riches. So, his denying himself assistance from others was only to excite their self esteem for other purposes. He does a calculation: he refuses £100 to get £200. (Bentham 1983b: 361) In his ethical writings Bentham reformulated the traditional virtues and Hume’s vast array of virtue by conceiving them to constitute three in number. Prudence was the virtue appropriate to self-regarding actions; probity to those actions designed not to harm others; and beneficence to help others in a positive and effective manner. All of the virtues could be incorporated in these three and reformulated more coherently than was achieved either in traditional philosophy or by Hume. Bentham argued, for example, that temperance, continence, forti­ tude, magnanimity, and veracity, in so far as their effects only concerned oneself, fell under the heading of prudence; otherwise, of benevolence (see Bentham 1983b: 187). It is important that Bentham’s reformulation of the virtues is not seen as an attempt to somehow deprive the human condition of the rich variety of human feeling as manifest in society. It is rather an attempt to change the vocabulary used in such human interaction in order to bring clarity to it and to enhance human understanding. If Bentham is to be accused of a rationalistic reduction of human feeling and virtue, so must Hume in his insistence that so much of tradi­ tional morality might be better understood in terms of public utility. But neither accusation is true. Bentham went much further than Hume in his attempt to restate the ‘logic of the will’ so that it would cease to rest at all on the obscure categories of Aristotelian logic. In IPML one finds such logical analysis in key chapters dealing with action, intention, consciousness, motive, and disposition, all of which form a prelude to the analysis of punishment (see Bentham 1996: 74-157). 56

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Nevertheless., Bentham’s moral psychology is obviously indebted to Hume, and the starting point for both is the recognition of the importance of this psychology to ethics and politics. Furthermore, in the analysis of punishment in IPML Bentham never rejected several principles he shared with Hume. First, as in Hume, punishment is both forward and backward looking (see Russell 1995: 137-8, 140ff). The justification of punishment is forward looking and the anal­ ysis of the distribution of punishment is backward looking. Second, Bentham’s magisterial analysis of offences in IPML (Bentham 1996: 187-280) presumes throughout the prior existence of a society to which he is recommending this new way of looking at crime. Although these new categories might have utility through their clarity and accessibility, whether or not certain actions are consid­ ered offences is left to society to determine (see Bentham 1996: lviii-lix). In so doing Bentham was well-aware (perhaps more than Hume) that societies used means, opposed to happiness, to sustain an order or establishment that worked in ways that were hostile to utility Bentham’s empiricism had to work side by side with a doctrine of false consciousness which prevented the happiness of the community from establishing and manifesting itself The inability of the people, as individuals, to enjoy elementary security through law and morality, and a modicum of happiness, due to powerful political forces in society, eventually led Bentham to adopt an outspoken radicalism in his later writings. Such a move made his utilitarianism appear distinct from that of Hume, in being more active and reformist, but he never abandoned his starting point in the empirical aspira­ tion of individuals in society to happiness. Moore has depicted Hume’s approach to a science of politics as follows: Hume’s conception of the experimental method of reasoning thus stands intimately related to the problem of providing the general rules and artificial restraints that make life in society possible. And the experi­ mental nature of the rules and conventions of society was to become Hume’s point of departure for a science of politics in which forms of government and policies were themselves regarded as experiments, as uncertain trials of judgment by which politicians have attempted to contrive a world consistent with the uniform interests and passions, the needs and wants of human beings. (Moore 1979: 40-1) It is not far-fetched to suggest that Bentham’s numerous plans, schemes, codes, laws, and proposals were ‘experiments’ - ‘uncertain trials of judgment’ in which Bentham attempted ‘to construe a world consistent with the uniform interests and passions, the needs and wants of human beings’. It was this grounding of his various proposals in an understanding of society and its well­ being that linked Bentham with Hume, and it was a position from which Bentham never strayed. 57

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BIBLIOGRAPHY This bibliography contains only works cited in the text and in the editions actually used. Numerous other works were consulted over many years in the preparation of this article Press. Anon (1753) Some Late Opinions Concerning the Foundation of Morality, Examined. In a Letter to a Friend, London: R. Dodsley and M. Cooper. Balfour, J. (1989) A Delineation o f the Nature and Obligation of Morality, with Reflections upon Mr. Hume’s Book, intitled, An Inquiry concerning the Principles of Morals, Bristol: Thoemmes Press. Bentham, J. (1988) A Fragment on Government, ed. J.H. Bums and H.L.A. Hart, with an introduction by R. Harrison, Cambridge: Cambridge University Press. - (1996) An Introduction to the Principles o f Morals and Legislation, ed. J.H. Bums and H.L.A. Hart, with a new introduction by F. Rosen, CW, Oxford: Clarendon Press. Bricke, J. (1996) Mind and Morality: An Examination o f Hume's Moral Psychology, Oxford: Clarendon Press. Bums, J.H. (1993) On Heroes, Hero-Worship, and the Heroic in History, ed. M. Goldberg, Berkeley and Los Angeles: University of California Press. Cicero (1991) On Stoic Good and Evil, De Finibus 3 and Paradoxa Stoicorum, ed. M.R. Wright,Warminster: Aris and Phillips. - (1999) De Finibus Bonorum et Malorum, ed. H. Rackham, Cambridge, MA: Harvard University Press. Danford, J.W. (1990) David Hume and the Problem o f Reason: Recovering the Human Sciences, New Haven and London: Yale University Press. DeWitt, N .W . (1954) Epicurus and his Philosophy, Minneapolis: University of Minnesota Press. Gauthier, D.P. (1998) 'David Hume, Contractarian’ in D. Boucher and P.J. Kelly (eds) Social Justice from Hume to Walzer, London: Routledge. Glossop, RJ. (1967) The Nature of Hume's Ethics’, Philosophy and Phenomenological Research, 27: 527-36. Haakonssen, K. (1981) The Science o f a Legislator: The Natural Jurisprudence o f David Hume and Adam Smith, Cambridge: Cambridge University Press. Harrison, J. (1981) Hume's Theory o f Justice, Oxford: Clarendon Press. Holthoon, F. van (2000) 6'From Sentiment to Utility: Hume’s Rewriting of Book III of the Treatise’, unpublished conference paper. Hume, D. (1932) The Letters o f David Hume, 2 vols.,~ed. J.Y.T. Greig, Oxford: Clarendon Press. - (1978) A Treatise of Human Nature, ed. L.A. Selby-Bigge, rev. P.H. Niddich, 2nd ed., Oxford: Clarendon Press. - (1985) Essays, Moral, Political and Literary, ed. E.F. Miller, Indianapolis: Liberty Clas­ sics. - (1998) An Enquiry concerning the Principles of Morals, ed. T. Beauchamp, Oxford: Clarendon Press.

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Kelly, PJ. (1990) Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Oxford: Clarendon Press. Long, D. (1990) “Utility” and the “Utility Principle”: Hume, Smith, Bentham, Mill’, Utilitas, 2: 12-39. Mackie, J.L. (1980,) Hume”s Moral Theory, London: Routledge and Kegan Paul. Mill, J.S. (1969) Essays on Ethics, Religion and Society, ed. J.M. Robson, CWM, volume 10 Moore, J. (1979) ‘The Social Background of Hume’s Science of Human Nature’, McGill Hume studies, ed. D.F. Norton, N. Capaldi, and W.Robinson, San Diego: Austin Hill Press. Mounce, H.O. (1999) Hume ”s Naturalism, London and New York: Routledge. Norton, D.F. (1982,) David Hume: Common-sense Moralist, Sceptical Metaphysician, Princeton: Princeton University Press. - (1993a) The Cambridge Companion to Hume, Cambridge: Cambridge University Press. Raphael, D.D. (1972-3) ‘Hume and Adam Smith on Justice and Utility’, Proceedings o f the Aristotelian Society NS, 73: 87-103. Rosen, F. (1992) Bentham, Byron and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought, Oxford: Clarendon Press. Russell, P. (1995) Freedom and Moral Sentiment: Hume's Way o f Naturalizing Responsibility, New York: Oxford University Press. Sayre-McCord, G. (2001) ‘Hume and the Bauhaus Theory of Ethics’ in R. Cohon (ed.) Hume, Moral and Political Philosophy, Dartmouth: Ashgate. Sidgwick, H. (1906) Outlines o f the History of Ethics for English Readers, 5th ed., London: Macmillan. Snare, F. (1991) Morals, Motivation and Convention: Hume’s Influential Doctrines, Cambridge: Cambridge University Press. Stewart, J. (1963) The Moral and Political Philosophy o f David Hume, New York and London: Columbia University Press. Whelan, F.G. (1985) Order and Artifice in Hume's Political Philosophy, Princeton: Princeton University Press.

,

NOTES 3 Reading Hume backwards: utility as the foundation of morals 1 See, for example, the various articles in Norton 1993a. A recent exception is Darwell 1994: 58-82, esp. 76, which concludes that Hume ‘open [ed] up a space for philosophical utilitarianism even if he did not himself occupy it’. Darwell5s argument consists mainly of a contrast between Hume and Francis Hutcheson out of which the ‘space’ mentioned above emerges. Unfortunately, the account of Bentham’s utilitarianism is very limited, and displays little acquaintance with recent Bentham scholarship. For another contrast between Hume and Hutcheson, printed in the same collection, which indirectly sheds more light on Bentham’s indebtedness to Hume through a contrast between Stoicism and Epicureanism, see Moore 1994: 23-57. For a recent philosophical study of Hume’s utilitarianism, see Crisp 1998. 2 References to the Enquiry will be to Hume 1998 and to section and paragraph 57b

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numbers; references to the Treatise to Hume 1978 and to page numbers. 3 Haakonssen 1981: 5-6, 8, 41. See also Capaldi 1992: 294-5, 304-5, and especially 365-6, where a very general conception of utilitarianism is advanced without specific references in the notes or bibliography, which is then used to distinguish Hume’s idea of utility. 4 See, for example, the depiction of utilitarianism by Capaldi 1992: 365-6; see also Gauthier 1998: 21-2, 26ff. A more sympathetic interpretation appears in Whelan 1985: 207, 21 Iff. However, Whelan’s analysis is somewhat confused, because he fails to take the Enquiry seriously as a successor to the Treatise. 5 See Anon 1753: 33: ‘You think there is something new, and at the same time, simple and neat, in this manner of stating the foundation of virtue. Not altogether new, I must observe; for Mr. Hutchenson [sic] led the way by resolving all the several virtues into benevolence, as our author has done into utility; which in his sense of it, is much the same.5 6 See, for example, the argument in favour of private charity as opposed to public support in Tocqueville 1997. 7 For example, the mistaken view of Aristotle as an empiricist is as much based on a false contrast with Plato (as an idealist), as it is on any material in Aristotle5s own writings. 8 For Hume, at least one contemporary linked his thought with Epicureanism. According to Balfour (1989: 123), ‘our author's scheme of morality is, in effect, no other than the antient scheme which excluded religion, which Epicurus first reduced to some form and clothed with a tolerably decent dress’. See also Balfour 1989: 163.

57c

[3] The Clew to the Labyrinth Ross Harrison Bentham’s main concern in the 1770s, from which the criticism of Blackstone in the Fragment and Comment was a relative digres­ sion, was to write a work of critical jurisprudence, explaining and justifying the correct principles of legislation, together with the production of a fully rational and justified criminal code. As well as the raw material, he sketched several projected prefaces for the work throughout the decade. In one written near the end he compares what he saw when he started on his study of the law with what he had been led to expect. He had been taught to believe that the law was ‘as near to perfection as any thing can be that is human’; instead he ‘saw crimes of the most pernicious nature pass unheeded by the law’, delay, confusion, expense, ‘light shut out from every question by fantastic and ill consider’d rules of evidence’, ‘the various rights and duties of the various classes of mankind jumbled together into one immense and unsorted heap*, men ruined for not knowing what they are neither enabled nor permitted to learn: and the whole fabric of jurisprudence a labyrinth without a clew’ (UC 27.172). The only way that he saw to ‘cleanse the Augean stable’ was ‘to pour in a body of severe and steady criticism and to spread it over the whole extent of the subject in one comprehensive unbroken tide’. Some of this criti­ cism, that of fictions in the operation of the law and in its justi­ fication, has been examined in the last chapter; and Bentham had provided, in the Preface to the Fragment, an earlier justification of criticism, declaring that the motto of a good citizen was ‘To obey punctually; to censure freely’ (399). However, anyone who succeeded in finally plucking the mask of mystery from the face of jurisprudence, in finding the thread that led to the centre of its labyrinth, needed to do more than criticise these obvious

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legal fictions. Something was needed which would clarify the whole area, which would show both what law really was, and also how it really ought to be. It is the concern of this chapter to des­ cribe and evaluate the metaphysics which Bentham himself devel­ oped for this task; the metaphysics which served as his own ‘dew* to thread the labyrinth in which he found himself when starting his own study of the law. Part of Bentham’s projected capital work was printed in 1780, and published with a new preface as An Introduction to the Principles of Morals and Legislation in 1789. The metaphysics Bentham uses during this period can be reconstructed from this work and the Fragment, and from contemporary manuscripts, particularly those now published as the Comment and Of Laws in General. This work provides examples of its use, and very brief outline accounts; there is also a fuller outline in the unpublished draft of an account Bentham sent to d'Alembert in 1778. Some thirty years later Bentham returned to this area and wrote in the 1810s his fullest explicit accounts, in a series of manuscripts edited by Southwood Smith and incorporated in volume VIII of the Bowring edition, Ontology, Logic, Language, although a little came out at the time in Chrestomathia. There is also later material in the manuscripts edited in volume III of the Bowring edition and entitled Pannomial Fragments and Nomography. This all presents a confusing picture. There are many presentations of the same, or similar, points, not all obviously consistent with one another. Nor can this be explained by postulating a process of development, for the later material is as difficult to render con­ sistent with itself as is the earlier material. None of the work is finished in quite the way that one would like; either it is a fragmentary intrusion in something which is basically about some­ thing else, or else it is manuscript draft unrevised by its author. In all, Bentham’s metaphysical work provides a labyrinth of its own. It is highly important, both in itself and also in understand­ ing of his thought as a whole. Yet the face it reveals is baffling and confusing. So in this chapter an attempt will be made to thread this labyrinth as well; that is, to provide a ‘clew’ to what was meant to provide a ‘clew’ to the mysteries of jurisprudence. The central point of this metaphysical work is to describe and provide the materials for Bentham’s project of criticism by clari­ fication. Bentham wants to show how things really are, and how they are falsely or misleadingly described by others. So what he needs is an account of what it is to clarify something; how it is that understanding is achieved about something; how it is dis­ covered what something really is. Although such a concern might 48

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make him feel that he was the first voyager into a ‘trackless waste’ in the specific area of the law, such a concern was a natural part of a more general tradition of thought, a tradition to which Bentham explicitly thought of himself as belonging. He did not think of himself as without predecessors, and the specific person he most frequently settles on is Locke. For example, he writes in the early 1770s: ‘a digest of the Laws is a work that could not have been executed with advantage before Locke and Helvetius had written: the first establishing a test of perspicuity for ideas; the latter establishing a standard of rectitude for actions’ or, as he sums it up a bit later, ‘from Locke [the law] must receive the ruling principles of its form —from Helvetius of its matter’ (X 70; 71). Helvetius is an obvious exemplar of the proper content or matter: he reveals the relation of law to human happiness or wel­ fare, and promotes the utility principle as a test of rectitude. It is Locke, however, whom Bentham takes as providing the principles by which it is to be made clear; by which it can be comprehen­ sibly, and so properly, formed. Locke provides tests for perspicuity. Bentham says several times that he derived the central idea of his theory of fictions, the chief plank in his metaphysical enterprise, from d’Alembert’s Melanges (e.g. *Nomograpby, III 286). In it he would have found that d’Alembert also singles out Locke for special attention, calling him the creator of metaphysics and des­ cribing him as finding in ‘abstractions and abuse of signs the principal cause of our errors’ (Melanges, i 141). Study of signs, of words, will prevent error: Locke has shown us how to clarify our ideas. Before Locke, Descartes also had an explicit interest in the clarification of ideas. Rule III of his Regulae reads that ‘our enqui­ ries should be directed, not to what others have thought, nor to what we ourselves conjecture, but to what we can clearly and perspicuously behold and with certainty deduce; for knowledge is not won in any other way’ (H & R I, 5). Much of this is similar to Bentham (and the whole later tradition): the protestant refusal to appeal to an external authority based on the belief that there is a natural light, or internal standard, that allows us each individ­ ually to be placed directly in touch with the truth; the way that this natural standard is thought of in a perceptual way with use of perceptual metaphors, so that Descartes talks of ‘clarity’, the light of reason’, intuition, an ‘unclouded’ mind, and so on; and, of course, clarity as the desired goal of enquiry. It is no doubt originally because of Descartes that Bentham talks of ‘clear, distinct, determinate’ ideas (COMM 5), or of ‘clear and determin­ ate ideas’ (Logic, VIII 221). However, in Descartes a clear and 49

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distinct idea was often a proposition rather than a concept; this explains why he thinks he can establish ‘as a general rule that all things which we conceive very clearly and very distinctly are true’ (H & R I, 158, altered). It also explains the project of winning knowledge as given in the first quotation; for if what we clearly and perspicuously behold are those truths of which we have intuitive knowledge, then these can form a foundation from which other truths may be deduced. Clarity here leads directly to truth. In Locke, however, although he did take over from Descartes this idea of foundations, and the related distinction between intuitive and demonstrative truth, the concern is much more with concepts than with propositions. Clarity shows us what it is that we are really thinking about when we are thinking; it provides us with understanding; it shows us the meaning of our ideas. Without pre-empting any position on the relation between concept and proposition, meaning and truth, sense and reference, this is at least prima facie a different concern from that of Des­ cartes; for it is at least prima facie possible to understand a con­ cept without knowing whether propositions formed by means of it are true or false, that is, to have Locke’s clear understanding of a concept or idea without having Descartes’intuitive knowledge. Here clarity does not lead directly to truth. And, as far as this distinction means anything, Bentham is right to single out Locke rather than Descartes, for his starting position is much more like Locke’s. The crucial central idea which Locke propagated was the dis­ tinction between simple and complex ideas. Simple ideas arise in us as the passive recipients of impressions either of sensation or reflection; in particular sensory perception. They can therefore be explained in causal terms, in terms of their origins in perception. These simple ideas then form the basic building blocks which can be assembled by the active powers of the mind in order to form all our other ideas, the complex ones. Sometimes the mind forms them after the pattern of what really exists, sometimes not. In all cases, however, they can be explained in terms of the simple ideas of which they are composed. Thus Locke says that we shall find, if we warily observe the Originals of our Notions, that even the most abstruse Ideas, however remote soever they may seem from Sense, or from any operations of our own Minds, are yet only such, as the Understanding frames to it self, by repeating and joining together Ideas, that it had either from Objects of Sense, or from its own operations about them. (Essay, 2.12.8) 50

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Hence arises the possibility of clarification, or explication, of the nature of our concepts or notions by tracing them back to, or analys­ ing them in terms of ideas derived from perception or the simple operations of the mind (which Locke calls simple ideas of reflec­ tion); the project of clarification is now the project of analysis. So, for example, Locke says, while discussing a particular case: ‘I think I need not go any further in the Analysis of that complex Idea, we call a Lye: what I have said is enough to show, that it is made up of simple Ideas' (Essay, 2.22.9). The exact details of Locke’s account (or varying accounts) do not matter; what does matter is the general idea which he bequeathed to the eighteenth century and which became the automatic, unthinking, assumption of the people Bentham read in both France and England: the idea that ideas are clarified by being decomposed into their elementary parts, which in turn can be explained in terms of their origin, principally in sense perception. So, to take as an example an English work which Bentham read, Hume’s Treatise, we find Hume not only making the distinction between simple and complex ideas on the second page but saying such things as “Tis impossible to reason justly, without understanding perfectly the idea concerning which we reason: and ‘tis impossible perfectly to understand any idea, without tracing it up to its origin, and examining that primary impression, from which it arises’ (1.3.2). This is the context from which Bentham starts and which he, to some extent, presupposes in his own writing. He continues with the idea of explanation by relation to sense perception, the desire to make the abstract concrete, and the belief in analysis. It means, for example, that he can talk quite naturally of something being ‘the only way to analyse the expression and clear up the ideas that be­ long to it’ (OLG 283n), or note in the Preface to the Introduction that ‘in addition to the analysis it contains of the extensive ideas signified by the terms pleasure, pain, motive, and disposition, it ought to have given a similar analysis’ of the ideas annexed to other specified terms (IPML 3). It means, for example, that he can make the following claim: If it be true that our ideas are derived all of them from our senses and that the only way of rendering any of our ideas clear and determinate is to trace it up to the sensible objects in which it originates, the only method that can be taken for explaining them to the purpose is the method I have just been taking here. (OLG 294) The conclusion of this remark, and the context, shows that it is 51

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not really hypothetical in intention: it is a positive endorsement of the Lockean programme. Slightly before he wrote this manuscript, in the draft account of his work which he wrote for d’Alembert, Bentham explained that his method of attacking the science of jurisprudence was to take the fundamental, abstract, words of the science and relate them by long chains of definitions with simple ideas or known assemblies of simple ideas, commenting that the method of working had come from Locke (UC 169.52). Before this again, he projected writing ‘a vocabulary of terms of universal jurisprudence with their definitions: the definitions disposed in uninterrupted chain, [Pconsisting] of words importing simple ideas’ (UC 169.1). Holding as he did that ‘a sober and accurate apprehension of the import of these fundamental words is the true key to Jurisprudence’ (UC 69.62), Bentham clearly felt that this key could be provided by relating these fundamental words to simple ideas. The remarks just quoted display in Bentham an interest in definition which is not present in Locke (or present in the same way), in spite of Bentham’s frequent invocations of Locke in this context. He starts the Comment with an account of definition, explaining how definition by genus and differentia can make an idea determinate for someone, providing that he is already ‘ac­ quainted’ with (examples of) the genus and differentia (3-5). This is the first shot in the long campaign against Blackstone; a cam­ paign in which, as we have seen, Bentham sometimes gets more excited and metaphorical than in this cool start. Here, for example, he is again, against Blackstone: ‘To purge the science of the poison introduced into it by him and those who write as he does, I know but of one remedy; and that is by Definition, perpetual and regular definition, the grand prescription of those great physi­ cians of the mind, Helvetius and before him Locke’ (COMM 346); ‘Nothing’, he continues a bit later, ‘has been, nothing will be, nothing even can be done on the subject of law that deserves the name of Science, till that universal precept of Locke, enforced, exemplified and particularly applied to the moral branch of science by Helvetius, be steadily pursued, “Define your words’” (347). Bentham not only repeated these precepts, he also prac-, tised them and composed the elements of such a dictionary of fundamental terms; as he says, he had ‘dug deep into the mine of Definition . . . without which no materials can be obtained, fit to form the foundation of a science’ (UC 27.2). These remarks are all from early, or the earliest, work of Bentham. At the time at which he started on his project of critical jurisprudence, he obviously thought that all that he had to do was to take an instru52

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ment already forged by Locke and apply it to this new area, being preceded in the general idea of its application to the moral sci­ ences by Helvetius. As he says, just after the last quoted remark, ‘the merit of invention belongs to others’ (UC 27.3). This, how­ ever, was not how it was to turn out. Bentham found that the Lockean instrument was insufficient for his purposes, and that he had, after all, to innovate. He therefore forged a wholly new instrument to supplement the one which he had inherited. This new instrument Bentham called the method of paraphrasis. It is best seen as a supplement to the old Lockean project of definition; indeed as an application of the central Lockean princi­ ples in a new, wider, manner. The relation between paraphrasis and definition can be seen from the contexts in which Bentham introduces his exposition of the idea. The first is in a long foot­ note to the Fragment on Government (495n). This footnote con­ tains several references to Locke and just before the introduction of paraphrasis, Bentham says that ‘to define or rather (to speak more generally) to expound a word, is to resolve, or to make a progress towards resolving, the idea belonging to it into simple ones’ (495n). This sounds appropriately Lockean, but the move from definition to exposition reveals that Bentham now regards both definition and paraphrasis as subdivisions of the more general activity of exposition. This structure is repeated forty years later in the fuller account he gives in the Logic. Here his account of paraphrasis forms part of a larger block of material entitled 'Clear­ ness in discourse, how to produce it; and hence of exposition’ (VIII 242, repunctuated). Before he deals with paraphrasis he again treats of definition ; and he still claims in this late work that ‘a great light would be thrown’ on the moral sciences (which the hardening arteries of his own processes of exposition have now led him into calling ‘pneumatological branches of science’) by exactness in definition (VIII 246n). There are changes of empha­ sis; but the continuity of structure reveals how definition and paraphrasis belong together in Bentham’s mind. This later exposition of exposition contains no mention of ‘simple ideas’. In fact, the use of this term is relatively unimpor­ tant even in the early work. What is important, early and late, is the basic idea that the import of a term can be explained or clarified by tracing its relation to sensible objects; and this idea is also as important for paraphrasis as it is for definition. In fact the Lockean sounding hypothetical quotation from Of Laws in General given above, in which Bentham talked of tracing an idea ‘up to the sensible objects in which it originates’, is from an account of paraphrasis. On the other hand, Bentham thinks of 53

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definition on an Aristotelian model as a process of giving genus and differentia, whether he is discussing it in the early Comment or the late Logic; and on the face of it this is not very like Locke's analysis of complex ideas into simple ones. What seems to have happened is that Bentham has understood as analysis the process of decomposition of an idea into its parts, has then thought of definition as an example or model of such a process, and pro­ ceeded to understand definition in a way with which he was fami­ liar from Aristotelian logic. Yet even on this view of definition, clarification is still given by relating terms to perceptible objects. At the beginning of the Comment Bentham had noted that defini­ tion would only make an idea determinate for someone already acquainted with examples of the genus, and adds that for us to be acquainted with something ‘it must in the first place exist’ (COMM 5). If we then assume that the existent is that which can be placed in some sort of relation to perception, then any defini­ tion which will serve to clarify will place the object defined in some sort of relation to a perceptible object. It is this relation which is central. Bentham can talk in the earlier work of ‘simple ideas’, but what he is picking out by this phrase is ideas closely related to perceptible objects which can then be used to explain other ideas; the term does not carry for him any further theoreti­ cal weight. One reason that 'simple ideas’ are less important for Bentham than for Locke is that Bentham was relatively unworried about any of the traditional problems of perception, which caused such trouble for Berkeley, Hume, Locke himself, and such related philosophers this century as Russell, Moore, or Ayer. He was quite happy to use the term ‘metaphysics’, but metaphysics was, for Bentham, ‘to explain or to inquire what it is a man means’ (RJE iii 386) or ‘to know and to be able to make others know what it is we mean’ (UC 69.155). Such traditional metaphysical problems as the relation between our sensory perceptions and their sup­ posed physical causes was, by contrast, exactly the kind of ques­ tion which he thought could be summarily dismissed as being of no practical importance. Thus, in one of the early drafts of his projected major work, he starts with a chapter on ‘what things exist’; a basic metaphysical topic which one might think was a natural starting point. Bentham, however, starts off at much greater speed than Descartes or Locke. He immediately supposes that he himself, his pen, and indeed the whole material world exist since ‘no bad consequences can possibly arise from supposing it to be true and the worst consequence can not but arise from supposing it to be false’ (UC 69.52). A little tincture of utility 54

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dissolves these fundamental problems; and this means that Bentham has no problem in thinking of perception in terms of our aware­ ness of the physical world. Hence an analysis which clarifies by relation to the perceptible has done its work, in the way he treats it, once relation to material objects has been established. Hence it is unimportant for him to think of the ideas of these material objects as being some kind of collection or combination of simple ideas, as Locke or Berkeley do. Hence simple ideas themselves, understood in Locke’s way as an individual colour or taste, are less important for Bentham. This is not to say that he was unaware of Locke’s use of the term. He knows that a corporeal substance is different from a simple idea; hence his reference in the letter to d’Alembert to both simple ideas and known assemblages of simple ideas. He does not ignore mental states; indeed it is crucial to his whole philosophy that ‘the idea belonging to the word pain is a simple one’ (FG 495n). It is just that the centre of his interest, the place where he felt that the crucial problems of analysis lay, was more towards the abstract end than his predecessors. Whereas Locke might worry about the analysis of a substance in terms of ideas, Bentham was quite happy once he had managed to reach sub­ stances. His worry, as he puts it in this same footnote to the Fragment, the one in which paraphrasis is introduced, is with what Locke called mixed modes. Locke divided his complex ideas into several kinds, substances, modes, and relations; and divided modes into simple modes and mixed modes (although he calls them mixed, he might as well have called them complex, since ‘they are compounded of simple Ideas of several kinds’ (Essay, 2.12.5)). Locke gives as an example of a mixed mode obligation, exactly the kind of term which Bentham was particularly con­ cerned to analyse in his critical jurisprudence (Essay, 2.22.1). His project is just as in Locke, the production of an analysis which contains words which are ‘simple, or are more immediately resolv­ able into simple ones. . . . Such as those expressive of substances and simple modes, in respect of such abstract terms as are expres­ sive of what LOCKE has called mixed modes' (FG 495n). Ben­ tham’s centre of attention here is clearly with the reduction of the mixed modes. Once he has reached substances or simple modes, even though these are still complex ideas, Bentham will be satis­ fied. Again he is aware of the distinction, here marked by his reference both to simple ideas and things immediately resolvable into simple ideas; but again this distinction is relatively unimpor­ tant for him. Locke distinguishes mixed modes from substances as being ‘not 55

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looked upon to be the characteristical Marks of any real Beings that have a steady existence, but scattered and independent Ideas, put together by the Mind* (Essay, 2.12.1), and the feature which leads Bentham to distinguish between mixed modes (or such things as obligation) on the one side and such things as substances and simple ideas on the other is that terms referring to the latter refer to real entities whereas terms referring to the former do not. He divides entities into those that are real and those that are fictitious. Fictitious entities, the most striking exhibits in Ben­ tham's ontological zoo, will be discussed later. As regards real entities, he thinks they are ‘either perceptible or inferential: per­ ceptible, either impressions or ideas: inferential, either material, i.e. corporeal or immaterial, i.e. spiritual’ (Chrest., VIII 126n). We can notice here not only the Humean language but that, like Hume or Locke before him, what we now think of as mental states are regarded as individual objects, or entities. There is a distinction between these perceptible entities and ‘inferential’ ones; but what is much more important is that they are both real entities. So the project of analysis in a Lockean spirit now be­ comes the project of analysing all that language whose terms do not refer to real entities into language whose terms do refer to real entities. We now have enough material to attempt an explanation of Bentham’s new instrument of paraphrasis, starting with an expla­ nation of why Bentham so often introduced it in the context of definition and, more specifically, as needed when definition was not possible. For if definition only clarifies if it relates to the really existent, to something with which someone is acquainted, then it is not possible to produce this kind of clarification by definition when we have terms which do not refer to the really existent. Definition by genus and differentia only works if some­ one understands the genus. Of course, such understanding might be provided by another definition; but eventually another method must be used because we shall come to terms having no superior genus. As long as we are acquainted with examples, we can have understanding of this genus, and this will be the method. If, however, we are not dealing with real entities, then we cannot be acquainted with examples; hence there is no way of achieving or conveying understanding of the superior genus. Hence another method is needed than that of definition, the method of para­ phrasis. Sometimes, as in the draft account for d’Alembert, Bentham seems to suggest that the possibility of classifying or arranging, and hence of defining, fictional entities is not possible. He des56

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cribes there Linneus’ arrangement and says that there never appears a general term which does not refer to real individuals; and that it would be a revolting absurdity to have words referring to fictional beings in such an arrangement (UC 169.58). However, the normal accounts follow the above composite one. It is not that the project of classifying fictional entities is impossible, it is just that it is not going to be finally satisfactory since some generic terms so used will have no superior genus. Thus, in Chrestomathia Bentham says ‘of these fictitious entities, many will be found, of which, they being, each of them, a genus generalissimum, the names are consequently incapable of receiving what is commonly understood by a definition, viz. a definition per genus et differentiam’ (VIII 129); or in the Fragment footnote he remarks that ‘the common method of defining — the method per genus et dif'ferentiam, as logicians call it, will, in many cases, not at all answer the purpose. Among abstract terms we soon come to such as have no superior genus" (495n). Both these remarks allow that definition of fictitious entities will sometimes be possible. So, when Bentham starts his fullest exposition of paraphrasis with the remark ‘Paraphrasis is that mode of exposition which is the only instructive mode, where the thing expressed being the name of a fictitious entity, has not any superior in the scale of logical subalternation’ (Logic, VIII 246), this should be read, I think, as a conjunction, saying that the thing expressed both is the name of a fictitious entity and has no superior (rather than the second is true because the first is). This conjunction is slightly clearer in the particular example of obligation, which he works out more fully a little later. Here he says that ‘it being the name not of a real, but only a fictitious entity, and that fictitious entity not hav­ ing any superior genus, it is considered as not susceptible of a definition in the ordinary shape, per genus et differentiam, but only of an exposition in the way of paraphrasis" (Logic, VIII 247). It is not that it is incapable of definition just because it is ficti­ tious but, rather, that it is both fictitious and also incapable of definition. A remark Bentham makes in a note to the Introduction should also, I think, be read in the same conjunctive spirit. He remarks that ‘the great difficulty lies in the nature of the words; which are not, like pain and pleasure, names of homogeneous real entities, but names of various fictitious entities, for which no common genus is to be found’ (53n); here again I think that the difficulty arises from the combination of fiction and lack of common genus, not that the lack of common genus arises just because of the fiction. So it is not that definition is impossible with fictitious entities, 57

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it is just that it can never be finally satisfactory. This emerges clearly enough once we think of clarification being for Bentham, just like Locke, achieved by relation to the real and the percep­ tible. The problem which paraphrasis is therefore introduced to solve is the problem of providing such a clarification when we are dealing with terms which do not refer to items which are real, that is, either directly perceptible or knowable by inference based on perception. Somehow a similar understanding has to be provided for these terms as can be provided for terms referring to the real by means of definitions which eventually refer to classes with the individuals of which we are acquainted. The way in which Bentham solves this problem is by moving from the level of a single term to the level of a combination of terms. Instead of look­ ing at the individual words associated with individual ideas, he looks at whole phrases, and in particular sentences. The device of paraphrasis consists in explaining a sentence by means of another sentence, and is particularly to be employed when it is impos­ sible to explain a word by means of other words. So the word which is found to be problematical is made up into a sentence which contains it, and then the sentence as a whole is translated into, or replaced by, another sentence which is not problematical. Although, that is, the term or its associated idea cannot be analysed individually, by dissolution into its components, it can feature in a whole sentence, or thought, which can be analysed by being replaced by another sentence, or thought, which is clearer. As Bentham puts it in the Fragment footnote, using a phrase considered above, ‘a word may be said to be expounded by paraphrasis, when not that word alone is translated into other words, but some whole sentence of which it forms a part is trans­ lated into another sentence; the words of which latter are expres­ sive of such ideas as are simple, or are more immediately resolv­ able into simple ones than those of the former’ (495n). More ponderously, he says in the Logic that ‘by the word paraphrasis may be designated that sort of exposition which may be afforded by transmuting into a proposition, having for its subject some real entity, a proposition which has not for its subject any other than a fictitious entity’ (VIII 246). This was the device that Bentham felt that he needed for his work in critical jurisprudence, the key to what, as he told d ’Alem­ bert, would otherwise be a labyrinth from which no one would ever emerge. This is because all the terms he wished to explain, ‘power, right, prohibition, duty, obligation, burthen, immunity, exemption, privilege, property, security, liberty’, he regarded as being ‘so many fictitious entities’ (OLG 251). Hence, if not 58

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immediately, then eventually they needed explanation by para­ phrasis. In these cases, in fact, such explanation was required immediately: there could be classification of rights or of duties, but the general idea of a right or of a duty was a genus with no superior; and once this other kind of explanation was provided, it would then also explain such partial classifications. So, for example, both rights and duties are explained in terms of what someone is, in law, liable to be punished for not doing; and punishment is explained in terms of the pain to which someone is liable for non-performance. Hence, since pain is a simple idea, a really existing entity, an analysis is possible which explains the central, fundamental, terms of jurisprudence, rights and duties, in terms of simple ideas or real entities. The analysis takes place, however, at the level of sentences: it is not that duties are com­ posed of pains, but that I am under a duty to do something if the failure to do that thing makes it probable that I shall suffer pain from a particular source. Or, as Bentham puts it in his worked example in the Logic, that of obligation, ‘an obligation (viz. the obligation of conducting himself in a certain manner,) is incum­ bent on a man (i.e. is spoken of as incumbent on a man), in so far as, in the event of his failing to conduct himself in that manner, pain, or loss of pleasure, is considered as about to be experienced by him’ (VIII 247). Bentham then explains how this analysis is produced: starting with the word to be expounded, an obligation, it is first made up ‘into a fictitious proposition’, an obligation is incumbent on a man. This proposition can then in turn be explained by one about real entities. In a similar way all the fundamental, abstract, terms of the law can be explained. Yet (as he puts it in Of Laws in General) ‘it is to this abstract way of speaking, these fictitious entities alone that the law owes all its obscurity’; so ‘avoid them or explain them by the relation they bear to the real ones and the law is clear’ (252). The ‘clew’ has been found to the labyrinth. The long build-up to the account of paraphrasis in this chapter, and the Lockean context which is provided for it, were intended to explain the nature of the problem as Bentham saw it, and so show why paraphrasis is needed. Yet, viewed from a Lockean perspective, this might well still seem to be problematic. For the complete Lockean account does not seem to leave any gaps which need to be filled by supplementary devices such as paraphrasis. The particular example, obligation, which we have just seen being given his new treatment by Bentham, was, it will be remembered, one which Locke himself specifically mentions as an example of a mixed mode. Yet, as such, it is a complex idea, and so should be 59

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capable of being explained by resolution into simple ideas, straight­ forwardly and without the use of any new additional fancy devices. After all, the whole point of the division of ideas into simple and complex is that it allows for ideas which (as Locke said may hap­ pen with mixed modes) are not the marks of any real beings in the world, and yet which can be analysed by decomposition into elements which are real, or which are marks of real beings in the world. So, given the assumption common to both Bentham and Locke that analysis has ultimately to be into real elements with which we are acquainted, it still remains problematic why para­ phrasis is needed once we are dealing with fictional entities; since it seems that these fictional entities could be decomposed into real constituents with which we are acquainted. To take an example of a fictional entity used by another writer whom Bentham read reasonably carefully, the example of a golden mountain as con­ sidered by Hume (Enquiries, 19), the idea of a golden mountain can be held to be a complex idea created by the imagination out of simple elements which are the direct copies of perceptual experiences. Fiction does not require paraphrasis for its expla­ nation in the Lockean tradition; and, if it works for golden moun­ tains, it seems that it might also work for obligations. In addition to his different view of the nature of definition and of the importance of simple ideas, discussed above, there are three additional good reasons why Bentham could not be satisfied with the standard analysis of fictional entities, at least when the entities were such things as rights or obligations. There is firstly the obvious enough point that there is no obvious way in which to decompose a right into parts in the way that a golden mountain can be decomposed into parts. If we transmute this question into the question of what properties a right has, by which, for example, it can be distinguished from a duty, then this returns the question to one of classification, and so to a Benthamite view of definition, in which we eventually reach a superior genus which needs to be explained in another way. This has already been discussed. How­ ever, it is important to realise that an additional problem is posed by the fact that Bentham thinks that a right is a quite different kind of fictitious entity than a golden mountain or an imaginary person (which he calls ‘fabulous’ entities — Chrestomathia, VIII 126n). The explanation and justification of this distinction must wait until the next chapter. If, however, it can be assumed for the moment, it means that even when Bentham has declared rights to be fictitious, he does not mean that their reality is ‘denied, in any sense in which in ordinary language the reality of it is assumed’; these fictions have ‘a sort of verbal reality’, 60

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which distinguishes them from imaginary persons (Chrest., VIII 126n) or golden mountains. So even if a golden mountain can be analysed by the composition of the imagination out of simple constituents, it is not obvious that this kind of analysis would be able to capture the kind of reality which is possessed by a legal right. Bentham wants to show what is the case, for example, when someone has the right to enforce a contract. Even though he does not think that there is really anything there in such a situation, in the sense that no one is able to perceive the right by simply look­ ing, it would also be wrong to think that it was a wholly imaginary construct, such as a fictional character in a story. So taking the right as an imaginary composition out of real elements is not good enough to explain the situation; rather, the situation as a whole, as described in one proposition which explicitly refers to the right, has to be explained by the use of another proposition which des­ cribes the situation as a whole but does not refer to the right (such as one saying that someone can initiate a process which is liable to lead to pain for someone else). The proposition which gives the analysis is a true proposition; it describes the reality of the situa­ tion. Unless there is movement to the propositional level from the level of single terms, there is no way to bring out this reality. Yet the official, Lockean, account has to conduct its analysis at the level of single terms. Hence it has no way of distinguishing be­ tween obligations and golden mountains. Hence paraphrasis is needed as a supplement to the Lockean account. Bentham was aware of the mind’s power of building out of simple ideas, but, as he noted in an early manuscript, obviously with Hume in mind, there is a ‘difference between such factitious ideas as that of a golden mountain, a chimera; and such as that of a disposition, a power, a quality, etc’ (UC 69.52). The latter were exactly the kind of fictitious entities which Bentham thought had a sort of verbal reality. Quite apart from this reason why Bentham would not have been able to use the official Lockean analysis of such entities as obliga­ tions, there is quite another reason, and one which does not depend upon Bentham’s metaphysical views about different kinds of entities. This is that Bentham thought that the process of analysis was different from the process of describing the origin of an idea. Analysis is meant to give understanding; it is meant to clarify, and explain what is really happening. This is not neces­ sarily achieved by an account of the historical origin of the idea to be explained. At the level of Locke’s simple ideas, particularly after Hume’s treatment, the two processes could be taken to be coincident. The nature of the simple idea was explained or clarified 61

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by relating it to the perception from which it arose: either some­ one had experienced redness or the taste of a pineapple, in which case any further explanation was redundant, or they had not, in which case explanation was impossible. So explanation really got going with the complex ideas. However, here it still consisted in tracing the historical origin of a particular idea; showing how it was produced by the imagination from its sensory constituents. Bentham thinks that such an account of origins is insufficient to explain. The basis in his work for this claim about him is that in his longest treatment of paraphrasis, in the Logic, he gives an account of a process which he calls archetypation. This is giving indication of the ‘emblematic image’, the ‘image of some real action or state of things’ which is present to the mind when deal­ ing with fictitious entities (VIII 246). It gives ‘the origin of the psychological, in some physical idea’ (VIII 246). Such an account of ideas in terms of images, and images explained in terms of their origins is characteristic of Locke or Hume. However, the point about Bentham is not that he also recognises it, but, rather, that he thinks that it is a separate process from the one with which he is principally concerned. This may not be quite explicit in his discursive expositions, but it becomes clear from his examples, in that the real entities with which fictitious entities are related by the process of archetypation are different from the real entities with which they are associated by the process of paraphrasis. This is sufficient to show that quite different things are involved in the two processes, and that what is achieved by the relation to the real in the two cases is quite different. Yet it is archetypation which is like Locke or Hume. Hence something quite different is achieved in paraphrasis, which could not be achieved by use of the Lockean apparatus. It gives an analysis of the meaning of certain terms which is quite independent of the historical origin of the asso­ ciated ideas. And, again it is the case that this new account has necessarily involved going beyond the level of the single term to its use in complete propositions. To the term could be related an image, given an historical explanation in terms of its origin; how­ ever, displaying what is going on when the term is used involves giving an account of the several propositions in which it is used. Its use is in the context of a proposition, and it might therefore be quite different in different propositions even though the term was always related to the same image. The example Bentham uses to display the process of archety­ pation is again that of obligation. He says that ‘the emblematical, or archetypal image, is that of a man lying down with a heavy body pressing upon him’ (Logic, VIII 247). Notice that the real 62

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entities used here (a man, a heavy body) are quite different from the real entities used in the paraphrastic explanation of obligation (pains, pleasures). Most of the abstract terms used in law, or other sciences, no doubt can be traced back to original physical descrip­ tions. An original, concrete, directly perceptual kind of descrip­ tion is first extended metaphorically to the non-concrete or nonperceptual, and then its physical origin is forgotten. Bentham, indeed, says that it is a good thing if this relation to the physical is not noticed otherwise the term can only appear explicitly meta­ phorical (Logic, VIII 246-7). The important point is that this physical image (such as a man with a weight on him) does not, whether or not it is readily available, provide an appropriate clari­ fication of the idea of obligation. Much more could be said here which is familiar from present-day criticism of Locke: that quite different images, or no images at all, might be associated by dif­ ferent people with the use of the word, yet the word be used quite correctly and successfully to convey information, give commands, and so on; that this correct use therefore cannot be explained by such association with an image; and yet it is the use that is the primary thing to be explained in explanation of the meaning of terms. It is sufficient here, while discussing Bentham, to point out that he was aware that the image associated with a word was not the thing to be used in explaining or clarifying its meaning. He was aware that the relation to a real, perceptual, basis which can be given by production of a physical image for an abstract term is not the kind of relation to a real, perceptual, basis which is needed for clarification of that term; and in this he was surely right. Bentham’s brief account is open between whether it is the common origin in the language of the term or its individual origin with one particular speaker of the language that is central for him. However, again his example may bring out better what he wants than his discursive treatment. For the physical basis of the idea of obligation in the language is not that of someone being weighed down but, rather, of someone being tied up. So, although he doesn’t bring out the point, his example is an appropriate one with which to develop the point that one man’s image of obliga­ tion is not a good enough basis for explanation of the use of the term in common language about public situations, as in the language of the law. If we consider again the case of a contract, someone engaged in the Benthamite project of clarification and explanation of what is really happening in law must be able to explain what it really is for someone to be under a contractual obligation to someone else. For this it is no good that he has an image in his mind of the 63

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person being under a heavy load, a heavy load placed on him by the second person involved in the contract. It does not matter that the first person might say that his obligations weigh heavily upon him; it would not even matter that, in his unhappiness, his shoulders hunched and his knees sagged. Even so, understand­ ing of the situation is not given by thinking of it as a situation in which a man is weighed down by a heavy load, only one which is invisible; the knees can really be seen to buckle underneath, only the load on top maintains an invisible, ghostly, fictional, presence. Even though this could be a physical origin of the image, and even though this is not just wholly accidental in that certain things can be explained about the situation by thinking of it as structurally similar to one in which there is a real load, this will not give a pro­ per understanding of the situation. For this we need at least an account of what it is that distinguishes this situation from others in which someone acts, or could act, as if he were weighed down; such as someone depressed, or threatened, or with too much to do. Bentham thinks that he can provide such clarification, in terms of the sanctions to which the man is liable for non-performance of the contract; the situation is to that extent similar to one of threat; and the real physical situation in which one man threatens another man provides a better model with which to understand it than a real physical situation in which one man places weights on another man’s back. Again, as before, there is something really the case in the situation which cannot be captured by the purely imaginary supposition that there are weights (‘fabulous entities’, chimeras) on the man’s back; otherwise he could just say to him­ self that he had nothing to fear but fear itself and renege on the contract. In a legal contract there really is something to fear*, the possible operations of the legal authorities as initiated by the other party to the contract. This, again, is a situation which can only be explained at the level of propositions, complete utterances which can be used to describe facts or states of affairs. Analysis of individual terms, analysis by use of images, is insufficient for the job in hand. Bentham’s new device of paraphrasis displays, therefore, the primacy of the sentence or proposition in the analysis of meaning, An analysis such as Locke’s which takes the term, or individual word, as primary is found to be inadequate. This is, in itself, a highly important insight; and hence Quine is correct in identifying Bentham as making ‘the crucial step forward’ in the explanation of terms, in the conceptual side of epistemology; a step which leads on to the projects of Russell and Carnap in the present century (Quine 1969 p. 72). If this is thought to be reading too 64

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much into the accounts of paraphrasis itself, a device which can be taken to be a mere supplementation of Locke’s programme, the explicit recognition of the proposition as primary can be supported from elsewhere in Bentham’s work where he is not specifically saying anything about paraphrasis at all. Criticising Blackstone in the Comment, Bentham remarks of “‘you shall be hanged if . . that ‘this has no meaning: it is nothing: it is no will expressed: there is nothing to observe’ (77), as compared with the ‘compleat expression of . . [a] . . will’ which ‘may stand compleat of itself as a logical proposition’. Many years later he remarks in his Evidence papers that ‘in less compass than that of a proposi­ tion, neither truth nor falsehood, wisdom nor folly, sense nor nonsense, can be conveyed’ (RJE iv 288). These might just be taken as conventional expressions of the doctrine that the proposi­ tion is the smallest unit sufficient to express a complete thought; certainly there is nothing innovatory in the idea that a proposition is needed if we are to have something capable of being true or false. However, it is interesting to note that in these remarks, Bentham not only talks about truth but also about meaning: mere fragments of propositions are nonsense, and this makes it plausible to suppose that he does not think of sense as primarily originating with individual terms. The crucial evidence for his view, however, is to be found in his explicit treatment of propositions and terms in his Essay on Language. This is exactly where we should expect the main exposition of his views; and they are uncompromisingly in favour of the primacy of propositions. He declares that ‘the primary and only original use’ of language is the ‘communication of thought’ (VIII 320): then that ‘every man who speaks, speaks in propositions, the rudest savage, not less than the most polished orator’; hence ‘terms taken by themselves are the work of abstrac­ tion, the produce of refined analysis’ (321). In other words, if we start with the central importance of communication, this means that we start with complete thoughts or propositions; and the meanings of words are to be analysed in terms of their contributions to such thoughts. Hence ‘no word is of itself the complete sign of any thought’; or ‘it was in the form of entire propositions that when first uttered, discourse was uttered. Of these integers, words were but so many fragments, as afterwards in written discourse letters were of words’ (322). That the relation of word to proposi­ tion is similar to that of letter to word is fairly convincing support for the claim that Bentham believed in the primacy of proposi­ tions in the explanation of what it is that someone was saying while discoursing. Although (written) words can be analysed into letters, no one would think of starting an analysis of the meaning 65

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of words by analysing the meaning of letters, and then inferring the meaning of the composite entity: Bentham suggests that the relation between propositions and words is the same. He also explicitly criticises Aristotle and Condillac, who follows Locke, for starting with terms (322). So the evidence that Bentham precedes Frege in thinking of the sentence as the primary unit in explanation of sense is substantial. Precedence is interesting; but much more important is correct­ ness. Anyone can be wrong in a new way. What this chapter attempts to bring out is not just that Bentham had some new ideas but that they were important in that they were quite probably correct. Both because of the nature of the fictions involved, and also because of the imperfections of an analysis of ideas in terms of their origins, Bentham was right in starting his analysis with complete thoughts or propositions. Once the analysis works at this level it is then possible to give an explanation of the use of individual terms without associating them with independent ideas, since they can now be given meaning in the context of whole sentences. Bentham was not, in fact, the first in any case to point out that perfectly significant words could not be associated with separate Lockean ideas; he would have been familiar with this claim from another book which he read and referred to, Hartley’s Theory of the Human Mind (as it was entitled in Priestley’s abridgement, which was the one Bentham used). Yet Hartley only said that there were words without ideas in the case of theoretical terms, which could be defined in terms of words which were associated with ideas (110), and ‘particles’ such as the, of to, for, but (113). Important as this point is, in partial modification of Locke, it is much less significant either ontologically or semantic­ ally than Bentham’s claim that perfectly normal substantives, such as right, obligation, property and so on were quite different from such substantives as house, dog, mountain, and so on, and could only get their meaning in context. Bentham looks like a natural forerunner of Russell, the Russell who talks of ‘incomplete sym­ bols’, that is, ‘things that have absolutely no meaning whatsoever in isolation but merely acquire a meaning in context’, things which Russell says that he calls ‘logical fictions’ (Russell 1956 (1918) p. 253). In both cases we have the idea that substantives used in apparently significant sentences do not refer to anything, and that their significance can only be given in the context of a whole sentence, a whole sentence which furthermore has to be translated into another sentence of an approved type in order to bring out its significance. In both erases this approved type is one in which all the referring terms refer to items with which we are perceptually 66

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acquainted (or could be). Both talk of fictions in the case of referring terms which do not meet such conditions. Even some of the examples are the same, such as classes, which are fictions for Bentham (Chrest., VIII 12 3n) and logical fictions for Russell (Russell 1919 pp. 181-2). Both diagnose and cure problems which they think have arisen because of the superficial grammatical simi­ larities between what are really quite different kinds of case; both attack the idea that because there is an apparently significant substantive, there is necessarily something for it to refer to. Both hold therefore, in Bentham’s words, that we should recognise the ‘constitution of human language as the source from whence the illusion flows’, the illusion that to each distinct word there cor­ responds a distinct real entity (RJE i 115); the idea that ‘whenever there is a word, there is a thing’ (XI 73). The parallel is, however, not complete; and, in so far as there are differences, Bentham can reasonably be thought of not as the crude forerunner of a later, more sophisticated doctrine, but, rather, as being in some ways superior. The examples Bentham and Russell give of fictions vary; a particular table is a fiction for Russell but not for Bentham, redness is a fiction for Bentham but not for Russell. The former case shows that Russell is much more worried about what Bentham called real inferential entities than Bentham was, and this way lies all those problems of knowledge that leave us in the end with nothing to know. The latter case shows that Russell (at least at the period we are discussing) was much more tolerant with respect to universals than Bentham was. For Russell, in ‘the cat is black’, ‘black’ refers to blackness much more straightforwardly than ‘the cat’ does to the cat. For Russell, that is, the meaning of predicates is given by their denotation just as with referring terms; both items can appear in a complete analy­ sis in much the same way as names of items with which we are acquainted (‘there are at least two sorts of objects of which we are aware, namely, particulars and universals’ (Russell 1963 (1910) p. 155)). Bentham, by contrast, held that predicates were func­ tionally different, that with qualities ‘the expression is incomplete; that the idea presented by it is but, as it were, the fragment of an idea’ (Language, VIII 326). That is, we cannot just give meaning to a quality expression by simple reference to an individual item, a universal, to which it refers; but that (as in Frege) predicate expressions are essentially incomplete in the way that subject expressions were not. This other difference from Russell is, again, a sign of superiority rather than deficiency. It has the consequence of meaning that Bentham did not think of the final, satisfactory, analysis as being a mere string of names organised in a particular 67

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pattern in the way that some twentieth-century admirers of the analytic method have; and this in turn means that he is much less interested in analysis promoting ‘insight into the structure of the fact’ (Wisdom 1953 p. 7) than they have been. Notice that in the most famous of Russell’s analyses, that of the present King of France, the whole point is that the grammatical structure of a sentence containing ‘the present King of France’ does not reveal the real, or logical structure; and so it is structure which the analy­ sis reveals. By contrast, Bentham’s own worked example, that of obligation, replaces the sentence to be analysed with another sentence which although it is different in structure (molecular rather than atomic, hypothetical rather than categorical) might just as well be of the same subject-predicate structure as the original for all the importance that this is to the analysis. So al­ though both Russell and Bentham agree that in the proper analysis all substantives should refer to real entities, Bentham is not parti­ cularly concerned with his analysis revealing the form of a fact. The fact for him is composed of real constituents with certain properties, not a concatenation of individuals with a particular structure. The important question about analysis which can be asked about both Bentham and also the various twentieth-century practi­ tioners is the question of how it is possible at all. So far it has been shown that the method of paraphrasis was indeed needed by Bentham to perform a kind of analysis which would be impossible if one were restricted solely to the purely Lockean apparatus. It has not yet been shown that this kind of analysis is possible; for it has not yet been shown how Bentham or anyone else can select and justify the sentence that replaces and analyses the sentence that is found to be problematic. This problem could be put as follows. If paraphrasis (or any similar kind of analysis) is to be successful, then it must simultaneously solve two problems, the problem of why the analysis provided is an improvement on the original, and the problem of why it is an analysis of that original and not another one. Joint solution of these two problems is difficult in that the closer the analysis provided is to the original starting point, the less improvement it seems, whereas the further away it is, the less obvious it is that it is an analysis of that start­ ing point. The question of why the analysis is an improvement on the original has an answer in Bentham, in that it is a sentence which names nothing but real entities, and hence can be used in clarification. Nothing, however, has so far been said to show that he has an answer to the other question, the question of why the analyses he provides are indeed analyses of the original proble68

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matical sentences. Something has to be found which indubitably or clearly relates these sentences to be analysed to their analyses. Bentham is like a bridge player with a strong hand in dummy. If only he can play off his analyses in terms of real entities, then he can make all the tricks he desires. He starts, however, in his own hand with sentences in terms of fictitious entities. Somehow he must find an entry to dummy, a way of crossing the board to the place where he holds all the cards. He has to find some method of lining up his sentences about fictitious entities in a one-sided rela­ tion with sentences naming real entities. Nor is this his problem alone. Taking Wisdom again as an example of later analysis, Wis­ dom says that philosophical statements have the form ‘the fact located by S has the elements and arrangement revealed by S” (1953 (1933) p. 3). Again there is the problem of relating a parti­ cular S with a particular S’; of showing that the S indeed locates the S’ that the analysis produces. This problem will now be solved by consideration of the various possible ways in which this can be done. These possibilities could be exemplified by discussion of the various projects of analysis in the first part of the present century; but to save space there will be no more than an occasional refer­ ence, even though all the suggestions considered have their own separate, considerable, histories. The natural solution to start with is that the link between the two sentences is that they possess the same truth value. Since truth or falsity is the most obvious additional element which is available once one moves from the level of terms to the level of propositions, it might seem that Bentham achieves his para­ phrastic analyses by giving truth conditions; that is, by stating in his analysing sentence what has to be the case if the original sentence is to be true. Sentences sharing truth-conditions are then related in the desired way. Yet even though this is an obvious solution, it can’t be a straightforward solution given the way that Bentham sees the matter. For in Bentham’s eyes sentences about fictitious entities are not true: ‘a fictitious entity being, as this its name imports, being, by the very supposition, a mere nothing, cannot of itself have any properties: no proposition by which any property is ascribed to it can, therefore, be in itself, and of itself, a true one, nor, therefore, an instructive one’ (Logic, VIII 246). Yet the propositions which feature in the analyses are sometimes true; hence it would seem that Bentham holds that the analysing sentence could have a different truth value from the sentence it analyses, and hence that truth value cannot be the method of relating them together. Nor can this long, quite carefully thought out, sentence be ignored; it comes from the central treatment of 69

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paraphrasis in the Logic. Bentham, however, continues: ‘whatso­ ever of truth is capable of belonging to it cannot belong to it in any other character than that if the representative . . . of some proposition having for its subject some real entity\ So he seems to allow that it might have some sort of derivative truth value; and this is in line with how he was understood above when ficti­ tious entities were distinguished from fabulous entities and allowed a kind of verbal reality. Once the analysis has been established, it can be allowed that it does reveal something true about the situa­ tion described in the original sentence: it shows, for example, what is true when it is the case that someone is under an obliga­ tion. So Bentham does not have to be forced into the position of saying that the two sentences have different truth value. What does seem to be clearly the case, however, is that the truth value cannot be used as a means of telling which particular sentence is analysed by any particular analysing sentence. For it can only be told what the truth value, or truth conditions, of the original sen­ tence is after the analysis has been successfully completed. It then takes, or is found to have, the truth conditions of its ‘representa­ tive’, the analysing sentence. So, in the bridge metaphor, there is no entry to dummy this way ; some other means than truth must be discovered of telling which sentence is the proper analysis of which sentence. If truth is not the method, then the next natural thing to try is sense, or meaning. The sentences line up in a one-one way because they have the same meaning; we gain entry to dummy by finding the analysing sentence which means the same as the sen­ tence for which we desire an analysis. Yet the use of meaning seems to leave us exactly with the original problem. Since it is a notion closely related to that of understanding (the meaning of a term is what we understand when we understand it), it is dif­ ficult to see how something which was unclear and needing analysis could be seen to have the same meaning as something which is clear and analysed. If the original is already understood, then it would not seem to require analysis; while if it is not understood, we are back with the same problem of how it can be known that the provided analysis is an analysis of it rather than something else. Of course, there are ways of treating mean­ ing as being quite independent from understanding which would therefore prevent part of this problem arising. If the meaning is just taken to be the use of the words in a particular language, or if it is just taken to be some entity (a Lockean abstract idea, a Platonic Idea) which the expressions are taken to refer to, then there is room for the supposition that one expression means the 70

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same as another one, even though the user, or we ourselves, remain unaware of the fact. (In the second option this is because meaning has now become a purely referential notion, hence one can be sur­ prised and learn here just as elsewhere that two expressions refer to the same thing; the morning star and the evening star, for example.) Hence analysis could clarify by informing someone of this fact. However, quite apart from the fact that none of these accounts of meaning is like that of Bentham’s, even on these accounts the main problem still remains. For this is a problem about knowledge of the meaning, not just about the meaning as such. It is the problem of why, if we know the meaning, we should bother about the analysis, while if we do not, how we could pos­ sibly produce it. This is, if analysis is taken as providing something with the same meaning as the sentence with which we start. Bentham certainly talks of paraphrasis as preserving meaning, as giving us the ‘import’ of the original expression. As he says in a footnote to the Chrestomathia, paraphrasis consists in making up a phrase and ‘applying to it another phrase, which, being of the same import’ is about real entities (VIII 126n). Bentham also talks several times of ‘translation’ in this connection, saying, for exam­ ple, that ‘to understand abstract terms, is to know how to trans­ late figurative language into language without figure’ (*General View, III 181; see also OLG 283n), and ‘translation’ was the word used in his original exposition in the Fragment on Government footnote (49In). Of course, ‘translation’ does not have to be understood as specifically in terms of providing something with the same sense, but only in terms of changing one phrase for another (just as the bishop gets translated to a new see). However, Bentham talks often enough directly of meaning or import to show that he did regard his analyses as giving the meaning of the originals, and so all the problems which arise from considering analysis as giving the same meaning would seem to apply to him. He even goes so far in one place to say that the second, analysing sentence provided in paraphrasis ‘by being seen to express the same import, it shall explain and make clear the import of the first’ sentence, that is the one being analysed (Radical Reform Bill, III 594n). Here we have an example where it does not just have the same import, which can be explained in several ways, but that this can be ‘seen’; that is that someone can separately understand the import of both and in doing so will realise that it is the same. Here Bentham really is in the problem of why in such a case analysis is needed at all. The only way that this problem can be avoided is to treat this last remark, which does after all occur in the footnote to a political 71

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pamphlet, as not being a perfect expression of Bentham’s views. On no other occasion does Bentham talk of the import as being ‘seen’ to be the same, and the claim which he certainly does make on several occasions, namely that the import is the same, should be understood in a different manner. This is that, just as was claimed for truth above, what happens is that the analysis gives meaning or import to the original. The sentence to be analysed has the same meaning as its analysing sentence just because it is taken to have whatever meaning the latter has; just as before it was taken to give it whatever truth it had, so here it can be claimed to give it whatever meaning it has. This avoids the problem of the meaning of the sentence being analysed already being perfectly understood and the analysis being therefore redundant. It also fits in with several things which Bentham says. He talks in Nomography of paraphrasis as being ‘the only form of exposition by which the import attached to them [fictitious entities] is capable of being fixed’ (*III 286); here the central idea is not that of starting with an already understood import, but, rather, of ‘fix­ ing’ it. So Bentham says that, by the analysis, the import is ‘laid open’ (OLG 252) or that it is ‘illustrated’ (IMPL 207n); it ‘ren­ ders’ the fictitious entities ‘intelligible’ (OLG 278). These all convey the strong sense that the analysis does not start with something already understood but, rather, makes it understand­ able. Bentham presents this even more forcefully at times by giving an option with respect to the acceptance of his analyses*, either they are accepted and so the area analysed becomes intel­ ligible, or else, if they are rejected, it remains mere nonsense. For example: ‘Of either the word obligation or the word right, if regarded as flowing from any other source, the sound is mere sound, without import or notion’ (*Nomography, III 293); or, as it is put in Of Laws in General of the same words ‘take away the idea of punishment, and you deprive them of all meaning’ (136n). If we ‘take away pleasures and pains', then duty, obliga­ tion, and so on ‘are so many empty sounds’ (SPRINGS, I 211). These all convey a strong sense that the analysis gives the mean­ ing or, if that is to put it too strongly, at least that the meaning cannot be found independently of the analysis. The options are either nonsense or taking it to mean what the analysis says; there is no separate way of understanding it. Hence the problem of why the analysis is not redundant is not one which arises for Bentham. There is still, however, the problem of how it is possible. If this account of Bentham’s use of paraphrasis is correct, then it matters little whether we explore the problems of analysis in terms of meaning or in terms of truth. In neither case can an 72

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already known truth value or meaning of the sentence being analy­ sed give us an answer to the question of which sentence it is that provides the correct analysis; yet in both cases, once the analysis has been provided, this can be taken as giving, or at least as reveal­ ing, what it is that is true about the original or what it is that it means. This, in turn, shows that the two notions of truth and meaning are closer for Bentham than they are for some other philosophers. This is suggested by his constant use of the term ‘import’ for meaning, the import of something being for him what is the case if it is true, or if it enters into true propositions. The analysis of obligation shows us, he says, how it is ‘constituted’ (*jtomography, III 293). ‘Would a man’, he asks, ‘know what it is that the law really does ...? ’, a request for the content, the reality or truth of the matter (OLG 251). The answer to the request, the analysis of rights, obligations and so on showing how they are ‘constituted’ gives us knowledge such that ‘knowing thus much, we shall have ideas to our words: not knowing it we shall have none’ (OLG 251). So the analysis both gives the original sentences whatever truth they have and also, by so doing, gives them sense, ideas to words, import. Whether we start with truth or meaning the key idea is that of substituting one sentence for another in order to give it such truth or meaning; the fit between the two is looser than would be required if we thought of them as already possessing some precise meaning or truth which had to be cap­ tured in the analysis. This still does not provide an answer to the problem of how analysis is possible; but it does mean that we can think of the answer in functional terms, as providing something serviceable which can be used in the place of the original, rather than something which has to be exactly the same as it in some respect. Bentham, of course, thought that fictitious language had many uses, such as the uses by lawyers of legal fictions examined in the last chapter which were designed to confuse the people and increase the wealth and power of the legal monopoly. Not just any substitution of sentence for sentence fulfilling the same use is relevant to the project of analysis. The important use of such terms as ‘rights’ and ‘obligations’, however, is that they purport to be descriptive, and this account of how things are is something which Bentham, who wants to describe what happens in law, has to take over in his analysis. His substitute sentences must also be used descriptively, used to say how the situation is which is des­ cribed in the originals and be an adequate substitute. Given general acceptance of the Lockean account of reality in terms of relation to sense perception, it can be seen what the answer to the general 73

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problem of analysis is for Bentham; that is, his answer to the general problem of which sentences can be used as adequate substitutes for the sentences with which he starts. The answer is that it is those sentences which provide verification, and veri­ fication in perceptual terms of the original sentences. The original sentences are in need of analysis, on this general Lockean basis, because they do not refer to real, perceptible, entities. No one can see rights. However, in situations in which people talk about rights, there are things which are perceptible, such as commands, or hypothetical statements made by people about the possibility of pain. These, therefore, can serve as the verification of the original sentences; that is, the way in which one could tell whether a specific sentence about rights or obligations holds in the specific situation. It can, therefore, be used as an acceptable substitute for the original; it fulfils the purposes for which the original was required by making distinctions between the same situations. When there is a right, the analysis will say that someone is liable for punishment for doing something; when there is not a right, it will say that this is not the case. It is, therefore, a substitute for the original. It gives to the original whatever truth or meaning the original possesses. By providing the verification, it shows how to establish that the original is true, or in what respect the original is true. By providing the verification, it shows what it means for the original to be true; it shows what someone has to understand in order to use terms like ‘right’ or ‘obligation’ with significance or import; that is how they can be used in true sentences. So the Lockean, perceptual, context not only shows why the analysis is superior to the original, since it is in terms of real entities: it also shows just which sentences are analyses of which sentences. Veri­ fication is the looked-for entry into dummy; it shows us how to analyse the sentences which are found to be problematic. ‘To give some sort of clue to this labyrinth is all that I can hope to have accomplished here’ remarks Bentham after suggesting a few of these analyses (OLG 278). This clue is the substitution, at the level of sentences, of sentences which are clear in that they describe real entities, directly perceivable or directly inferable from perception, for sentences which are not clear in that they do not do this. This is the reason for the analysis; it is a way out of the labyrinth. Its possibility depends upon thinking of the unclear sentences as neither possessing a sense or a truth value which can be understood independently but, rather, as thinking of the analy­ sis as providing an acceptable substitute which then gives the originals whatever truth or meaning they possess. It has just been suggested that the solution to the problem of which sentence to 74

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substitute for which sentence is in the same terms as the original problem of why substitution was needed at all; in both cases relation to verification or perception is the answer. Apparent lack of it provides the problem to be solved, and provision of it pro­ vides the answer. Or part of the answer. If provision of a substitute clarifying the original is taken to be sufficient to justify Bentham’s use of what he explicitly holds to be fictitious entities in his account of the law, it remains to be shown that a similar substitute could not be provided which would justify the lawyer’s use of fictions in the law and the constitutional theorist’s use of fictions in theorising about the law. There still remains the problem for Bentham of distinguishing between the good use of fictions and the bad use of fictions; and the new analytical tool which he has forged just seems to make the problem worse. It has now been shown how language about fictitious entities can be made legiti­ mate. However, if contract can be saved, then why not original contract; if rights can be saved, why not natural rights. It is this question which is the topic of the next chapter. Notes (a) I have kept the Benthamite (or contemporary) spelling of ‘clew’ because I think that it conveys more clearly the idea of a thread, as in the original story of the labyrinth. Bentham often talks about clues, but normally in conjunction with labyrinths. (b) In the references to Nomography in this chapter, I have added an asterisk to the reference because I am not sure how positive an editor Richard Smith was; however the material reads very like Bentham manuscript, and is probably fairly reliable. (c) Another strong remark in favour of the proposition being primary is Bentham’s claim in Chrestomathia that ‘in language . . . the integer to be looked for is an entire proposition* (VIII 188). (d) For the way in which Helvetius provided the matter, if Locke pro­ vided the form, see Chapter V. (e) I have found Bentham’s own attribution to d’Alembert of the idea of a fictitious being (which he certainly makes) problematic. Bentham says in Chrestomathia that, in looking through the Melanges again, he cannot find the expression (VIII 127n); and looking through the Melanges for myself, no more can I. So it might be attractive to sup­ pose that the aged Bentham’s memory has misled him, and that he had attributed to d’Alembert, an expression (no doubt suggested by d’Alembert’s general thought) which he himself had used in his own letter to d’Alembert (where the expression, ‘etre fictif’ does clearly appear (UC 169.54). However, there is at least one place in the earlier work where he also attributes it to d’Alembert (UC 27.148), so I supit is in there somewhere.

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Jeremy Bentham THE CLEW TO THE LABYRINTH (f) The point made in the main text about exemplification or archety­ pation was meant to show that Bentham supposed that there could be a relation between an image and a word which would neither be that uncovered in analysis (or exposition) nor be one which occurred in the etymology of the word. It should be noted, however, that Bentham knew the image involved in the etymology of ‘obligation’, and mentioned it in another discussion of exemplification (Chrestomathia, VIII 126n). (g) The contrast with Russell in the main text was not meant to imply that Bentham did not also think that paraphrasis could be used, in a way rather similar to Russell, to uncover the form of a proposition. He knew that the form of discourse could be misleading (for example, in distinguishing a positive from a negative act (IPML 76), and held that paraphrasis might clarify syntax (Logic, VIII 242), or be used to eliminate a particular syntactical form, such as adverbs (Universal Grammar VIII 356). The point being made was not that Bentham could not do what Russell did, but how much more he could do, and this is I think what is revealed by comparing their most central exam­ ples of analysis. (h) The attempts to use analysis in the earlier parts of this century are surveyed and criticised in Urmson (1956). As a sample of some of the various ideas mentioned might be mentioned Moore (1942 663) on taking concepts as the objects of analysis (and the paradox of analy­ sis), Quine (1960 258-9) on the sufficiency of a functional substitu­ tion. The best overall account of Russell of a project in this spirit is his ‘philosophy of logical atomism’ (1918) in Russell (1956); and the most fully sustained attempt at analysis was Wisdom’s Logical Con­ structions (appearing between 1931 and 1933, they were printed together as Wisdom 1969). Wisdom also wrote an account of Ben­ tham’s analytic project at much the same time in which Bentham is compared with more modern analysis (Wisdom 1931). The idea of using verification to give an account of meaning, another influential doctrine of the 1930s, informs much of the spirit of Dummett (1976); by contrast the idea that substituting sentences of the same truth value can give much of what those who want an analysis of meaning really want can be found in Davidson (1967).

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Part II Liberty and Justice

[4]

Fundamental words Douglas G. Long

The first methodological principle of Bentham’s censorial reforming system was: Define your words. Define your words says Locke: Define your words says Helvetius. Define your words says Voltaire: Define your words says every man who knows the value of them, who knows the use of them, who understands the things they are wanted to express: Define them for the rules of Physics: define them for the sake of Ethics; but above all define them for the sake of law. Philosophers, I have obeyed you. I have defined my words: and with more especial care, where with venturous / presumptuous / grasp I have taken in hand the sceptre of legislation. (27.45)1 To the force of example was added the force of utility. Bentham summed up the utility of clear and conclusive definitions in another early manuscript fragment: The words defined are all so many given quantities and possessing them, the Jurist finds himself rich in means for the solution of any problem in his science’ (69.161).2 Definitions must be the tools of the law reformer, as, indeed, they ought to be those of the legislator himself. In the early 1770s Bentham set out to sharpen his own analytical tools by radically reconstructing the meanings of those fundamental words on whose definitions the value and validity of his scientific endeavours was to hinge. Under the influence of the infuriating natural rights arguments advanced by the American revolutionaries in 1776,3 and especially disturbed by the contractual theory of the origins of government propounded by the Americans’ oracle, John Locke,4 Bentham embarked on a critique of common usages of the term ‘liberty,’ which was to provide the terminological basis for his rejection of ‘natural liberty’ as well. His first step was to reject the ‘common notion

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66 Bentham on Liberty concerning rights’: ‘that they subsist, at least many of them some how or other of themselves: and that then human laws come in and enforce them. That they do not in themselves originate from human Laws; consequently that it is not from the notion of human Laws that the notion of these rights is to be derived’ (69.213).5 The common notion of rights, and the sort of discourse so frequently derived from it as a premise, seemed to Bentham to epitomize the substitution of empty rhetoric for thought: ‘Talk of right: —say a man has a right to such a thing in such a case, and we have no matter of fact to encumber ourselves with —When you have said he has a right —insist upon it: ...all proof is needless. The business is thus settled in a trice by the help of a convenient word or two, and without the pains of thinking’ (69.6-7).6 The next step was to denounce the theory that natural right forms the foundation of civil right: ‘True, say they, it is by punishment that the civil right is constituted: but antecedent to the establishment of Government, antecedent to the introduction of punishment, there was a certain natural right on which this civil right was grounded. Yes on utility, if that will serve the turn, there was; or otherwise the establishment of the civil right is not to be justified’ (ibid.). Bentham’s contention is in fact that only utility will serve the turn. To ground one species of right upon another species of right is tautological. If the primary or validating species is an abstract, metaphysical species, validation by reference to it is worse than tautological: it is delusive. Unless natural right is understood to be a redundant and confusing code word for utility, it has no meaning at all. To an adherent of the common notion of right, however, it is the word ‘right’ as a sort of fetish that matters, not the meaning conveyed by it nor the facts of the specific case: ‘No —at all events we must have the word right. Talk of utility, and of pains and pleasures, this is grounding your doctrine on matters of fact: and to enquire into and duly to collect the matters of fact takes more trouble than they are willing, and perhaps more sagacity than they are able, to bestow’ (ibid.). The connection between the discussion of the term ‘right’ and the idea of liberty is made quite clear when Bentham asserts that ‘of Rights some are synonymous to Powers others to Liberties —limitations to Public Constitutional Powers and created by the absence of coercion’ (69.213). Bentham proposed to ground his doctrine on matters of fact, instead of on mere words,by making words and matters of fact always interchangeable, that is, by constructing a vocabulary reducible to simple ideas. His attack was thus directed towards the enemies of such progress: complex ideas, and especially ‘abstractions’ and ‘fictions.’ In terms of the analysis in Locke’s Essay Concerning Human Understanding, liberty falls into the category of general ideas or abstractions, whose genesis is described in the chapter on ‘Complex ideas.’7 There Locke explains that ‘all

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67 Fundamental words complex ideas’ are made by an ‘act of the mind ... combining several simple ideas into one compound one,’ that ‘ideas o f relation’ are formed by a mental act juxtaposing two ideas, simple or complex, ‘without uniting them into one,’ and that ‘general ideas’ are formed by a process called ‘abstraction,’ by which ideas are separated ‘from all other ideas that accompany them in their real existence.’8 In a later chapter Locke goes on to distinguish between ‘real ideas,’ which is to say ‘such as have a conformity with the real being and existence of things, or with their archetypes,’ and ‘fantastical or chimerical’ ideas, ‘such as have no foundation in nature, nor have any conformity with that reality of being to which they are tacitly referred, as to their archetypes.’ Strictly speaking, Locke finds that complex ideas fall into the latter category, for ‘being combinations of simple ideas put together, and united under one general name, it is plain that the mind of man uses some kind of liberty in forming [them].’ He is even more emphatic about ‘Mixed modes and relations’ (liberty belonging in some instances to the mixed mode category): ‘there is nothing more required to this kind of ideas to make them real, but that they be so framed, that there be a possibility of existing conformable to them.’9 Locke’s theory is that the mind, the passive receptor of simple ideas, exercises ‘an active power’ in combining simple ideas to make complex ones. Thus all complex ideas are ultimately ‘resolvable into simple ideas, of which they are compounded and originally made up.’ To enumerate all the mixed modes ‘which have been settled, with names to them’ seemed to Locke to be a task outside the scope of his Essay: ‘That would be to make a dictionary of the greatest part of the words made use of in divinity, ethics, law, and politics, and several other sciences. All that is requisite to my present design, is to show what sort of ideas those are which I call mixed modes; how the mind comes by them; and that they are compositions made up of simple ideas got from sensation and reflection; which I suppose I have done.’10 Bentham shared Locke’s view that ‘the mind is wholly passive in the reception of all its simple ideas.’ He also held, with Locke, that simple ideas are ‘the materials and foundations of the rest.’11 But on the question of mixed modes such as liberty, and ‘how the mind comes by them,’ Bentham took a position fundamentally different from Locke’s. Of the three ‘acts of the mind, wherein it exerts its power over its simple ideas’ mentioned in the Essay, that is, combination, juxtaposition, and abstraction,12 only juxtaposition could, in the view of Bentham, the philological nominalist, be said to occur without recourse to fiction. The mind might compare, but it could not truly compound nor abstract. Bentham did not attempt to deny the existence of compound or complex ideas, but he did insist that, once formed, they were only truly meaningful when the user and the hearer were aware of their fictitious nature. He argued that ‘correspondent to each species of Material real Entities is a

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68 Bentham on Liberty fictitious one’ and that ‘Fictitious Entities are feigned in imitation of real ones.’ He gave examples: ‘Instances of Fictitious substances are Qualities, Powers, dispositions, anything which not being a substance is said to Act or which a man is said to hear’ (106.2). As another, perhaps less sinister, way of describing incorporeal entities or the ideas which stand for them, Bentham used the term ‘abstract.’ In a manuscript page headed simply ‘Entities,’ he divided entities in general into ‘real entities,’ ‘abstract entities’ of the first, second, and third orders, and ‘Anomalous abstract entities,’ including ‘the passions, the appetites, conditions, circumstances etc.’ —and thus, we may add, including ‘liberty’ (106.2-3). According to his draft outline of the preparatory principles of his system, he planned to devote at least three analytical subsections of his argument to the task of showing that abstract ideas have, in themselves, no reality. The headings involved were to be ‘No Ideas purely abstract / No abstract ideas / Imaginary existences no proof of abstract ideas.’ Bentham’s intention was not to deny that abstract terms were formed in discourse by generalization and combination of simple terms, and hence composed of simple ideas. It was all too clear to him that this happened constantly. As an admirer of the philological perspectives of James Harris and John Home Tooke, however, he attacked these ingrained linguistic habits as the fountainheads of fiction and the ultimate sources of the kind of word fetishism exemplified by the Americans’ political rhetoric. For purposes of discourse, of communication, fictions were constantly necessary. This did not alter the fact that they embodied illusions and were frequently the source of errors of immense practical significance. With these views in mind, Bentham turned to the task, which Locke had refused, of enumerating all the mixed modes ‘which have been settled, with names to them.’ This was indeed, as Locke had said, ‘to make a diction­ ary ... [of] the greatest part of the words made use of in divinity, ethics, law and politics, and several other sciences.’13 At one point, in 1779, temporarily hampered by eye troubles, Bentham discovered an ‘excellent job’ for a ‘man without eyes’ This was ‘to get a boy and set him to read Johnson’s Dicty, for me to class the words by bidding him mark one with M. for Metaphysics, another E. for Ethics (etc.) ... I shall also number them Mp M2 etc.’ By this means, Bentham believed, one could arrive at ‘a compleat vocabulary for each science.’14 Nor was his enthusiasm restricted to the study of vocabulary. In the fields of grammar, syntax, and etymology, taken together, he hoped to find the linguistic foundations for the transformation of legal, ethical, and political argument. The Science of Man would have its roots in philology. He showed great interest in such works as James Harris’s Hermes, or a Philosophical Enquiry Concerning

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69 Fundamental words Universal Grammar and John Home Tooke’sDiversions ofPurley.ls On the sub­ ject of Harris’s Hermes he told his brother Samuel of his enthusiasm for the enterprise and his awareness of the shortcomings of Harris’s way of pursuing it: ‘The whole business of [Harris’s Hermes] is to explain the relations, the differences and resemblances of the several “parts” (as they are called), of speech ... Being simple in the expression, he takes for granted that they are so in the idea. But several of them are not so.’ As a guide to ‘the mechanical disposition of the words’ in discourse, Bentham drew up ‘a rough tree’ which he looked forward to showing to his brother when next they met.16 Nine months after the letter in which Hermes and Bentham’s ‘tree’ were discussed, Bentham thanked Samuel for his ‘grammatical communications’ and congratulated him on his adoption of Bentham’s ‘systematical strain.’ ‘I hope,’ Bentham counselled, ‘you will not want courage to persevere.’17 Bentham himself did not lack the necessary courage. The systematic definition of key terms in important spheres of discourse became a major preoccupation in the years preceding the completion and, in some cases, the publication of his main works. Moreover, when those works appeared they reflected faithfully his devotion to the development of a vocabulary for each and every science, adapted to its perspective and purpose, minimizing ambiguity and maximizing the scientific characteristics of precision, universality, and invariability. In Bentham’s view, the provision of such a vocabulary was the prime function of ‘Metaphysics, the most sublime and useful of all human sciences, according as it is applied, or the most futile’ (69.155). We shall now examine Bentham’s ‘Metaphysics’ from the perspective afforded by his analysis of the idea of liberty. Throughout the 1770s and the early 1780s Bentham strove to bring forth a magnum opus, a capital work of censorial jurisprudence, yet in the course of all those years of unremitting effort only the Fragment on Government in 1776 and the Defense o f Usury in 1787 were published, and the Fragment circulated as an anonymous work. The works now known to us as the Introduction to the Principles of Morals and Legislation and Of Laws in General, the essays on The influence of place and time in matters of legislation’ and on ‘Indirect legislation,’ and indeed the Comment on the Commentaries, had all been brought to completion in some sense by 1782, yet none of them entirely satisfied Bentham. He wanted to present a system to the world —not a succession of isolated pieces, but the whole intricate intellectual mosaic taking shape in his mind. Determined that his specific works and his comprehensive system should be properly understood and appreciated, he was unwilling to publish individual works unless both he and the public could achieve a clear understanding of their relationship to his system as a whole. Potential readers would have to wait patiently as the long and arduous process of honing ideas and framing a more

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70 Bentham on Liberty and more comprehensive system proceeded. His waiting over, the reader would have to be prepared to abandon any or all of his comforting and conventional beliefs to be initiated into a new realm of knowledge. In a spirit reminiscent of Locke’s ‘Epistle to the reader’ at the outset of hisis’ssaj',18 Bentham stressed, in a letter to his father, the inevitable difficulties of his work and his determination to go forward with it in search of such rewards as might be attained by one engaged in this sort of endeavour. To a query regarding the ‘abstruseness’ of his reasoning he replied: ‘excuse the liberty I take in supposing that with regard to some parts that abstruseness may possibly appear greater to you in common with others of your former profession [i.e. lawyer], than to men at large as, besides having a new language to acquire, you have the old one to unlearn.’ Bentham tried to convince his father that he was immersed in a sincere, indeed compulsive, search for ‘deep truths’ such as might win him the attention and respect both of the public at large and of the masters of his chosen science. Nor did he fail to emphasize the importance of his services to human understanding: ‘any tolerable share of success in such an undertaking as mine, you are sensible, must needs work a considerable revolution.’19 In late 1776, referring to the ‘Theory of punishment,’ on which he had probably been working when he wrote to his father in 1772, he showed the same Lockean spirit in a draft letter (unsent) to Voltaire: ‘Perhaps what I have done may be found but cobweb-work. Such as it is however it is spun out of my own brain. As such I send it you. It is neither borrow’d nor pilfer’d. I have spent upon it in the whole already about 7 years. I mean to bestow upon it the rest of my days.’20 Bentham’s ‘cobweb-work,’ the process by which ideas were ‘spun out of his own brain,’ deserves close attention. In a letter of July 1784, Bentham’s spirits apparently sagged under the weight of a sense that he had completed the task of inventing his ideas without as yet having made much progress in putting them in order: ‘I have no relish for anything that is commonly called pleasure... all conversation in short which does not bear a reference to my own or my brother’s pursuits, is become insipid to me. My own ideas are become no less so: for the task of invention has for some time been accomplished, and all that remains is to put in order ideas ready formed.’ Moreover, he added, ‘to put them in order according to my notions of order, I must have them all before me at once ... in black and white.’21 From the organized manuscripts extant it should have been quite possible by the late 1770s for Bentham to order his key ideas on a number of important subjects then before his eyes ‘in black and white.’22 These manuscripts, some of them dating from the early 1770s, are largely devoted to concise, aphoristic expositions of the meanings of fundamental terms. ‘Liberty’ is prominent among them; so are ‘security,’ ‘law,’ and ‘property’ —all concepts whose relationships

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71 Fundamental words to liberty were of great interest to Bentham. Successive passages do not blend into a narrative flow, and sometimes the sequence of ideas dealt with on a page is not logical. On the whole, the manuscripts have the appearance of the first draft of a glossary of political terms. They comprise, not drafts of works, but ‘Keys,’ collections of concepts and specific analytic insights such as would provide a ready reservoir of arguments (and of the building blocks of argument) for the purposes embodied in larger works both systematic and polemic. It should not surprise us to find that as Bentham turned his mind more and more intensively toward the task of presenting his system in print, he increasingly concentrated, as a first step towards political argument, on the work of clarifying the meaning of the fundamental terms and propositions, that is, the basic ideas, on which his system was to be built. One might well wonder why, if their importance was so great, Bentham’s preparatory manuscripts were never published. Apparently, as these manuscripts grew in complexity and volume, while the field of terminological analysis continued to stretch endlessly on before him, Bentham became convinced that such lengthy deliberations over terminology should not in fact be made public. On a manuscript page headed PPI he inserted the following note: ‘It is of importance that decisions concerning the construction of words be not preserved: of such [as] these there is no end. ’Tis they that more than anything else contribute to the voluminousness of a system of jurisprudence’ (69.36). Further light is thrown on the nature of these manuscript sheets by another comment, this time alongside the marginal note ‘Prefat. Chain of Definition a Ladder to Science’: ‘An orderly, unbroken, well compacted chain of definitions is the only sure ladder whereby a man can climb / make his way / up to / place himself on /the heights of science’ (69.158). Considerations such as these weighed heavily in Bentham’s mind as he added more and more sheets to the Key and Inserenda manuscripts. The relationship of these seminal fragments of analysis to the arguments finally presented in the Fragment on Government, the Comment on the Commentaries, the Introduction to the Principles of Morals and Legislation, Of Laws in General, and so on, would, if it proved possible to determine, require a volume of its own for a full exposition. What is important here is that the idea of liberty receives frequent consideration in these manuscripts and that the ways in which Bentham defined his words there exerted a fundamental influence on his later attempts to expound the essential principles and propositions of a new legal and legislative science. Passages from the preparatory manuscripts can be used to throw light on widely scattered applications of the idea of liberty to various problem situations as they arose in Bentham’s writings. For example, two pages under the heading ‘Pugna Sanctionum’ (i.e. the battle of the sanctions) are devoted to a

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72 Bentham on Liberty consideration of the relative weights and characteristics of the political and moral ‘sanctions,’ Benthamic concepts later analysed in the Introduction to the Principles of Morals and Legislation .23 The threat posed to personal and political liberty by the political sanction is recognized when Bentham observes that, should the political overpower the moral, ‘the nation would groan under the most cruel tyranny/ This comment should be borne in mind by those, such as Gertrude Himmelfarb, who feel that the Bentham who designed the circular ‘inspection-house’ for the control and supervision of prisoners, patients, or employees, known as the ‘Panopticon’ could not have valued liberty.24 Neither the practices employed in the Panopticon nor the theory of punishment it embodied threatened the extinction of liberty by sheer force of political power. Elsewhere in his discussion of the ‘pugna Sanctionum’ Bentham maintains that the political sanction is ‘one of the grand supports of society’ and that if it were overpowered by the moral sanction that support would be ‘enfeebled and trampled down’ (69.158). Nevertheless, when one becomes aware of the roles of punishment, reward, ‘indirect legislation,’ and education in Bentham’s system, one realizes that the basic threat to liberty posed by it arises, not from the possibility of rampant political oppression, but from the possibility of all-pervasive and inescapable conditioning of individual behaviour by the manipulation of the moral sanction itself. To find the seed from which oppression grows within Bentham’s thought it is necessary to look to such passages as the following, in which he deals with ‘Offences against morality’: The State takes upon it to controul those acts of a man the consequences of which are in the first instance interesting only to himself, and that for two reasons. 1st that his happiness is the happiness of the community: 2ndly that his strength is the strength of the community. If there be any difference it is the latter consideration that gives the state the best and most incontestible title it has thus to interfere. It may be a matter of doubt / question / whether there is reason to expect that the state will do / in general be apt to manage / better for a man than he will manage / do / for himself: but it is a matter that does not admitt of being questioned that the state will be apt to manage better for others than he will be apt to do / manage / for those others. (69.29) In relation to the effect on liberty of the political and moral sanctions, this is clearly a rougher and less qualified statement of the ideas later dealt with in chapter 17 of thz Introduction, section 1, ‘Limits between private ethics and the art of legislation.’ In our later discussion of that section, we shall bear in mind this justification of state interference with ‘those acts of a man the consequences

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73 Fundamental words of which are in the first instance interesting only to himself5 in the form of control imposed primarily through the instrument of the moral sanction. The justification of the use of the straightforward political sanction is that it is ‘one of the grand supports of society.’ The justification for ‘controul’ is much more expansive: the above manuscript passage seems to justify a total effort to ‘manage’ individual acts of initially private consequence in the service of a public ‘strength’ and a public ‘happiness’ with which, in this case, individual strength and happiness are ‘artificially identified’ in a truly authoritarian way. We shall not be surprised to find that Bentham later modified this position. If part of Bentham’s attention was focused on defining the nature and limits of sanctions and of state control generally, another large portion of his thought was devoted to the definition of that liberty which social control seemed so ominously to jeopardize. Liberty, however, is most frequently defined in Bentham’s early manuscripts by its opposition to the coercive force of law (i.e. of the political sanction), not to control. In the manuscripts headed ‘Crit. Jur. Crim.,’ we find a clear expression of the necessarily coercive, and thus in a sense necessarily ‘evil,’ force of all law and all government: ‘Woe be it to him who doeth evil that good may come. It is necessary that evil come, but woe be to him by whom it cometh.’ It is manifest that this text literally interpreted plucks up political society by the roots. To do evil that good may come is the universal role, and constant employ of Legislation / Government /. A Law when efficacious is either obeyed or executed. Where it is obeyed it displays itself in restraint: where not obey’d but executed, in punishment. (69.18) In a sheet headed ‘Key,’ Bentham reinforces this picture of the nature of the force of law: ‘an act of law is but an expression of will: and if a man wills anything in relation to any act it can but be one of two things; that it shall be done, or that it shall not be done. There is no medium: nor any other possible variety’ (69.44). Although on the next manuscript page Bentham unveiled the two important additional categories of ‘Permission’ and ‘Counter-mandment,’ he proceeded directly to define ‘coercion’ and thence ‘liberty’ solely with reference to command and prohibition: In either of the two cases of command or prohibition, the person whose act it is that is in question, may be said (on account of such act) to be coerced: to be under coercion. In the case of command he may be said to be constrained: to be under constraint

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74 Bentham on Liberty In the case of prohibition he may be said to be restrained: to be under restraint. Coercion then is distinguishable into constraint and restraint. [And, under the marginal heading ‘Free-Liberty’:] When a person is neither constrained nor restrained with respect to an act, neither constrained to do it nor restrained from doing it, he is said with respect to that act to be free, to be at liberty\ (69.44) On the following manuscript sheet, in a passage quoted in part by Halevy in The Growth of Philosophic Radicalism,25 Bentham repeats his assertion that the direct product of legal coercion is security, not simply liberty, and adds that permissive or countemianding laws only appear to create liberty. This they do by acting to remove pre-existing coercive laws. The crucial significance for him of the distinction between the ‘genuine, original and proper sense of the word liberty,’ which is the ‘negative5 sense of the term, and the idea of liberty as produced by law, which is to say as integrated into the concept of security, is once again emphasized as he discusses the relationship between the law and liberty: Liberty then is neither more nor less than the absence of coercion. This is the genuine, original and proper sense of the word liberty. The idea of it is an idea purely negative. It is not anything that is produced by law. It exists without law and not by means of law. It is not producible at all by law, but in the case where its opposite coercion has been produced [by law] before. That which under the name of Liberty is so much magnified, as the invaluable, the unrivalled work of Law, is not liberty, but security. (69.44)26 On the next manuscript sheet he adds an emphatic postscript to this argument: Tt is of pernicious, most singularly exemplarily pernicious consequence to confound under one and the same name things in themselves so different from one another, and which have such frequent and such important occasion to be distinguished / and contrasted’ (69.45). Seven sheets below in the UCL manuscripts, we find Bentham reopening his discussion of the relationship between liberty and security as objects or products of law. His basic hypothesis is still that coercive law can never produce liberty directly —only indirectly, by implicitly or explicitly countermanding or replacing by a permission some previously existing coercive law or laws. When the law thus enlarges the areas in which liberty can be enjoyed, it does so, in effect, by means of its very inaction; by any other means legal coercion can produce only security. Bentham tells us that ‘Political Liberty and Political

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75 Fundamental words Security are things of a totally different nature. They are created by different operations: if operations these may still be called whereof the one consists in doing nothing. Liberty subsists by the restraints not being imposed upon ourselves. Security is produced by restraints being imposed on others.’27 Later, however, in a passage also quoted (in part) by Halevy, Bentham in effect defines security as ‘that Liberty that is produced by Law’: The Law to produce Liberty in any body must act on somebody. To act on somebody it must coerce. To coerce it must either restrain or constrain. From him whom it either constrains or restrains, it takes away liberty ... Law therefore cannot produce liberty but it must produce coercion at the same time: and it is by means of that very coercion and of nothing else that liberty is produced by it. Where there is no coercion, there is no security: there is none of that Liberty that is produced by Law. (69.56) When we meet Bentham’s doctrine that liberty is merely a branch of security we shall remember this passage, which captures better than any of Bentham’s published pronouncements the exact implications of that doctrine. Considering the consistency with which analysts have concluded from his published pronouncements that Bentham was simply hostile to the idea of liberty, such clarification is of no small value. It is made quite evident in the preparatory manuscripts that Bentham saw a contrast amounting to antithesis between the man who imposes and accepts no restraints whatever upon his own actions, thus claiming absolute liberty at whatever social cost, and the man who lays claim to that security which is provided for him by restraints imposed upon other men as the essence of his social liberties. Bentham had no intention of endorsing an unrestricted authoritarianism identifying all liberty paradoxically with all coercion. He did, however, feel that restraints issuing from government could well have the effect of protecting some men from the restraints which might otherwise be imposed upon them by others: cIs it by all coercion, then, that liberty is produced? By no means ... Is it then by all restraint? ... By no means. But of those acts alone [by] which were he to do them, he would restrain the liberty of another man: and thus it is plain it is not in that man whose acts it restrains that it produces liberty, but in the other. It is not in that man on whom it operates, but in that man whom it lets alone’ (69.56).28 Bentham here demonstrates his completely unambiguous opposition to unrestricted authori­ tarianism. The legislator, he says, can only claim to use the law to enhance or produce liberty when it is clear that the effect of the law is to restrain attempts by one man (or group) to invade the sphere of liberty of another. All other legal restraints (and presumably all constraints) can only be justified by the utilitarian

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76 Bentham on Liberty consequences flowing from them —they cannot be justified on libertarian principles alone. The abiding, inherent evil of the law is that even in cases where it acts to secure liberties it ‘produces liberty exactly in proportion as it produces coercion5 (69.56), because under a system of law liberty is always related to security and is always secured by the employment of coercion. A general, unrestricted liberty is, for Bentham, by definition a state of anarchy: ‘The Liberty of all persons with respect to all acts, subsists without Law, and cannot subsist with Law, (ibid.). Liberty may be good or evil, laudable or licentious. It may subsist in opposition to law, to security, and to happiness or by virtue of law in intimate partnership with security in the service of happiness. Thus, ‘according to the side he has occasion to take, it is the idea of liberty or that of coercion that a man dwells on with the most complacency / gives the greatest extent to. If it be to defend a measure of the ruling powers, then liberty in general is in great danger to pay for it. If it be to attack, then as the assailants are generally more violent than the defenders, coercion, that is government, is almost elbow’d off the stage’ (ibid.). Throughout all of this, however, ‘the idea of liberty is not for anything that has been said the less a negative one. That Law which is the cause of Liberty is something positive. But the liberty itself which that Law produces is but a negative. It is but the absence of coercion’ (ibid.). On a manuscript sheet from the ‘Crit. Jur. Crim.’ group (69.209), Bentham establishes a clear and highly significant distinction between two contrasting usages of the word ‘liberty.’ Beside the marginal heading ‘Liberty political in perfection’ he writes: ‘A man might be said to possess political power in perfection if the Laws and Institutions of the society he lived in were such as subjected him to no other coercion than the good of the society required him to be subjected to.’ Next follows the marginal heading ‘Liberty personal,’ with no corresponding text - a fact which may indicate that at this stage in his thinking Bentham was not prepared to hazard a definition of so broad a concept, preferring to restrict his observations to the political sphere. The next marginal heading, however, is ‘Liberty political entire,’ and Bentham’s remarks under this head are clearly related to those given under ‘Liberty political in perfection’: ‘A man might be said to possess political liberty entire if he were not subjected to any coercion whatever by the laws and institutions of any society whatever.’ ‘Liberty political in perfection’ is an Aristotelian ‘mean’ —it lies between the two extremes of oppression on the one hand and ‘liberty political entire’ on the other. This illustrates another important characteristic of Bentham’s thoughts on liberty: what he was most vehemently opposed to at every turn was what we would call, using a term of Bentham’s own coining, the ‘maximizing’ argument: ‘the more liberty the better.’ Bentham’s argument in the passages just cited, and

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77 Fundamental words again where he asserts that the quantum of liberty in a society is ‘not in proportion to the bulk of law’ (69.148), is that as liberty is not the direct product of law in any case, and as the enlargement of the liberty of one party by law generally involves infringements of the liberties of other parties, to say ‘the more liberty the better’ is not simply wrong, but also so confused and unrealistic a proposition as to be almost meaningless. One might as well say ‘the more law the better.’ Just as the value and effectiveness of law is not in proportion to its pure bulk, so the value of liberty is not related to the aggregate quantity of it in a society as a whole. In some manuscript passages we find evidence of the alternative with which Bentham replaced the ‘maximization’ argument that he encountered in so much of the libertarian rhetoric of his day. Having reached the conclusion that liberty was neither the direct work of law nor proportional in its quantum to the bulk of law, Bentham turned to reconstructing his own view of its exact relationship to law. One important postulate, established in a passage headed ‘Key,’ is that to be accurate we must remember that what the law takes into direct consideration in all its operations is action and its consequences. The law does not act to maximize liberty, but to extend it, annihilate it, or restore it with regard to a certain act or class of acts in accordance with the law’s calculation of the social consequences. In the following passage, for example, the advisability of an increase or decrease in the degree of liberty permitted depends entirely on the apparent consequences of the act itself: If what is understood concerning [a man] be that he never has been coerced at all with respect to the act in question: that he neither has been constrained to do it, nor restrained from doing it, he is said to have been left free, to have been left at liberty: If what is understood concerning him be that he has been coerced in either way, and that afterwards the coercion has been taken off, he is said to have been made free again, or to have been restored to liberty. (69.44)29 In Bentham’s mind the law could do more for the man who was and always had been at liberty to perform a given act than simply to leave him to it. The law could act positively (indeed coercively) to ‘secure’ him that liberty: thus the confusion, a truly crucial one in Bentham’s estimation, between ‘security’ and ‘liberty,’ arose from the popular but fallacious opinion that liberty was the gift of law, when in fact the law could only restore liberties once previously held and now lost, or secure liberties presently held but not enjoyed because insecure: The way in which Liberty came to be confounded with Security seems to be this. —You are the person, suppose, who in this sense owe your liberty to the

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78 Bentham on Liberty Law. That is, you are the person who are secured by it. I am the person against whom this liberty of yours is preserved by it. That is, I am the person against whom you are secured. I am restrained by the Law (with respect to the acts whatever they are that are in question) from either constraining or restraining you. (69.55). He goes on in the same passage to distinguish between liberty as the indirect result of law, or, in other words, as the result of the absence of legal coercion, and security as the result of legal coercion aimed at preserving a given liberty or set of liberties: Now in this case [the case above discussed] true it is that the liberty which you possess you are indebted for to the Law. That, in other words, this Liberty of yours is the work of Law. But then who are you in whom this Liberty is produced by it? The person on whom it acts? No, but the person on whom it forbears to act, and on whom it prevents me from acting. Liberty then is not the direct work of Law, but only the indirect. The effect of the Law is not in any way to produce liberty in him on whom it acts. For the only possible direct way in which it can act is either to produce coercion that is either constraint or restraint: or else to remove it after having laid it on. (69.55) The Law, then, serves not to produce liberty but to endorse and secure certain specific liberties by the production or redistribution of sanctions, that is, of coercion. It would be within the spectrum of theoretical possibilities that liberty, at one extreme, might exist without security, which is to say without law. Bentham was to give his attention to this case once more in Of Laws in General.; but, in a passage from the ‘Key5 manuscripts, he indicated that the value of liberty is much reduced by the absence of that security which law supplies: ‘Liberty without security is that which is possessed by Hottentots and Patagonians. Liberty by security is that, the possession of which is the pride of Englishmen. The former are they who possess in perfection what has been called self-government: that is no government at all. Each man in particular governs himself: that is has nobody else to govern him: has nobody else to coerce him, for government is coercion5(69.55). At the opposite end of the spectrum of theoretical possibilities, liberty may cease to exist in a case where government neglects it totally for the sake of a maximum of stability and order. Bentham argues, under the heading ‘Security may exist without liberty,5 that the individual needs protection against the law-making power as much as against other individuals:

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79 Fundamental words It is not enough for me that I am at liberty as against you. It is not enough that I am secured from being constrained or restrained by you. My happiness may be as effectually destroy’d by my being constrained or restrained by the Law, as by you or any one ... To be restrained or to be constrained is Pain. It is pointless Pain, if the act I am restrained from doing be not an act the doing which would produce more pain than the not doing it would, that is to say, pain either to myself, or to some other person whom the Law is equally concerned to take care of. (69.55) On another sheet, headed ‘PPI,’ Bentham focused attention on the character­ istics of various law-making bodies, and attempted to distinguish between a ‘popular government’ and a ‘free government’ (69.158). ‘The Government is popular,’ he said, in proportion as the number of persons in the Government is great with respect to the number of persons in the State, and the powers that are lodged in great bodies of the Government [are] great in proportion to the powers lodged in small bodies.’ The ‘popularity’ of a government in Bentham’s sense of that word is thus measured by a calculation of the degree of popular participation in it, together with the degree of power actually wielded by bodies in which a broad spectrum of political participants are represented. The passage relating to ‘Government free’ is, sadly, partly illegible. Yet even what can be gleaned from the fragmentary remains is interesting: ‘In a Government to some degree popular In proportion as the subjects know before hand the extent of the several powers executed over them [in margin: ‘as the extent of the several powers of persons in the Government is fixed, so th a t...’]... condition of the people is free, or rather secure: and thence improperly by a Metonymy, the Government is said to be free.’ A government may be tyrannical or ‘popular,’ but it cannot truly be said to be ‘free.’ It is the essential function of government to organize, to coerce, to secure. Government cannot truly, directly make its subjects free, but it may make them secure, and thus maximize their access to those freedoms which serve the cause of happiness in compatibility with security. Freedom in the subject is not a power. Specifically, it is not the power to participate in government or to coerce others. Such freedom is essentially antisocial; it is against law, against society, and against security. Freedom in the subject is security of expectation: it is awareness that ‘the extent of the several powers of persons in the Government’ is fixed, and that the rules of social conduct he is bound to observe are ‘known before hand.’ Only in such circumstances is the citizen-subject free: free of anxiety, of insecurity, of the gnawing pain of uncertainty. Those pleasures allotted to him by law and social convention are guaranteed. Not for

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80 Bentham on Liberty him the pain of isolation, of ostracism, of non-conformity. The burden of moral self-determination is gently lifted from his shoulders by the same hands (those of reason and of law) whose task it is to ‘rear the fabric of felicity5in utilitarian society. Only if one is not a utilitarian can one make the charge that Bentham5s utilitarianism ultimately deprives the individual of his power of moral self-determination. Utilitarianism defines both the nature of the self and the canons of morals. If these definitions are accepted, utilitarianism becomes the very embodiment of moral self-determination, of the ‘logic of the will.5If it is in fact true that ‘every effort we can make to throw off our subjection5 to the dictates of utility ‘will serve but to demonstrate and confirm it,530 then there is no unjustifiable sacrifice of liberty in such subjection. The motto of the ‘good citizen under a government of Laws,5is first of all cTo obey punctually.531 Bentham in fact saw liberty and security as complementary products (directly or indirectly) of legal activity. It is clear, too, that he wished to forewarn and defend the citizen against the extinction or sanctification of either of them. The crucial task of clarifying the relationship between liberty and security he was to wrestle with throughout the 1770s and 1780s. He was confident, however, that liberty, if closely related to security, was less intimately involved with certain kinds of political state and with the ‘multiplicity of laws5within a state than was commonly thought. He wrote: Nothing can be more false than the notion that liberty is in general favoured by the multiplicity of the Laws: when spoken of thus [?] in the lump. Political liberty, that is more properly speaking, political security is indeed in some degree in proportion to the multiplicity of the Laws. Of Laws of the constitutional class indeed to a certain length it is true / on these depends the power of the governors and the security of the governed. On the one hand they confer ... public fiduciary powers: on the other hand they prescribe limits to those powers / narrowing the description of the modes of acting authorized. Now the regulations that serve to prescribe these limits must occupy a certain space: as far as the space necessary for that purpose extends, so far is the bulk and multiplicity of Law favourable to Liberty ... But under every other title the more Laws the less Liberty ... Let us consider the Laws of Property ... A great number utterly unnecessary burthensome to the proprietor in a much greater proportion than they are profitable to any one else, / detestable offspring of the Feudal Anarchy / actually infest the Laws of almost every nation in Europe. Of these the number is capable of being yet further augmented in infinitum. (69.148)32

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81 Fundamental words Bentham’s argument in this passage is specifically related to, and perfectly consistent with, his definition of ‘liberty political in perfection.’ There is a point, he is saying, at which the law provides a maximum of protection for the individual against his governors. The laws which contribute most prominently to this protection are constitutional laws, but any variety of law having to do with the securing of social ‘conditions in life,’ such as the ownership of property, has by definition the function of legalizing, and thus securing, the liberties and powers implicit in such ideas as ‘title’33 or ‘possession.’34 In this analysis we see the harbinger of the classification of liberty into ‘personal,’ ‘political,’ and ‘constitutional’ species which Bentham employed in the 1780s in manuscripts headed ‘civil code.’ We can also see why this trisection was important to Bentham: in the case of constitutional law, the proportion of the bulk of the law likely to be favourable to the relevant kinds of liberties (‘constitutional’ liberties) is high. In the political, but not expressly ‘constitutional,’ branch the proportion will be lower, for the primary function of such laws is as much a matter of the coercion of citizens as of the protection of citizens against coercion by their governors. Within the personal sphere, it is questionable whether any legal intervention whatsoever can be justified in logic. The law, as Bentham had already argued earlier in the preparatory manuscripts, was essentially and unalterably coercive. When personal, as distinct from political, liberties are at issue the only possible effect of the invocation of legal sanctions is to restrict or annihilate liberty. The consideration of the personal sphere of liberties exposes us to the area of private ethics and self-regarding acts —an area Bentham was as anxious to protect from legal or legislative invasion as was J.S. Mill. Bentham was putting into the terms of his own discussion the characteristic sense of superiority felt by many of his British contemporaries vis-a-vis France with regard to personal liberty when he wrote: ‘In France where they have so much less liberty than we have, they have much more Law. It is the characteristic of law to produce restraint. Liberty is the absence of restraint. How should Law then produce Liberty? (69.148). In the 1770s, therefore, Bentham confronted a number of the analytical difficulties surrounding the idea of liberty and produced what may, despite the prefatory and fragmentary nature of these manuscripts, be called a theoretical analysis of the role of the idea of liberty in political thought and of the term ‘liberty’ in political discourse. The exact sequence in which his ideas occurred to him is virtually impossible to reconstruct because the numerous sheets of manuscript are largely undated, and because the nature of such projects as ‘Key,’ ‘PPI,’ and ‘Crit. Jur. Crim.’ did not require that one be finished before another be started. Indeed, it is not difficult to imagine Bentham altering the heading of his manuscript sheets from ‘Key’ to ‘Crit. Jur. Crim.’ to ‘PPI’ as his conception of

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82 Bentham on Liberty the work to which these ideas were to contribute changed from that of an opus on punishment to a criticism of the Blackstonian hymn to existing English law, then to a code of penal law, and finally to the full-scale multivolume project described in his Preface to the Introduction to the Principles, written in 1789.35 The pattern formed by the larger works produced by Bentham, together with internal evidence, indicates that these manuscripts were written mainly during the 1770s. They document Bentham’s persistent attempts to analyse certain fundamental terms of jurisprudence as the opening phase in his campaign to construct a complete and universal system of laws and legal discourse. The process of definition and clarification of concepts, however, was thought of, not as ‘preliminary,’ but as ‘preparatory.’ This first phase was to be the foundation of all later phases. One can hardly overemphasize the extent to which the arguments of Bentham’s later publications are founded upon insights brought to light in the preparatory manuscripts of the 1770s. For the purposes of the present discussion we have chosen for examination a number of manuscript passages addressed to a single issue viewed from varying perspectives. That issue was the nature of liberty (or rather liberties) as an object of, or an element in the operation of, law. Bentham was confronted with the relationship between law and liberty as expressed in the confusing and unrealistic political rhetoric of his contemporaries. He broke the simplistic bond between law and liberty consistently postulated by them by asserting the essentially coercive nature of law and defining liberty as the absence of coercion. It might have suited his taste for iconoclasm and paradox to leave the argument in that shape had he been a less serious, less constructive, less perceptive, or less systematic thinker. Instead, he undertook a theoretical reconstruction of the relationship between liberty and law. He did not necessarily disagree with Price’s and Priestley’s claim that liberty meant ‘self-government.’ He was willing to equate the two, however, only if his views were accepted as to the exact character of the ‘self and as to how it is ‘governed’ by its own nature. His negative notion of liberty was logically implied by his negative notion of the self as receptor of pleasures and pains. His preoccupation with security was a function of his preoccupation with individual adjustment to a hostile and uncertain environment. His whole analysis of the function of law, of government, of sanctions vis-a-vis liberty, was predicated upon the belief that it is the presence or absence of security, which may be defined as the assurance of duration with regard to either the experiencing of pleasures or the avoiding of pains, that determines when liberty is enjoyed. With some appreciation of the unattractiveness of his thoughts on law and liberty Bentham nevertheless put forward a definition which equated the state with the coercive force of law: ‘A State is a number of persons in succession

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83 Fundamental words agreed or accustomed to / obey the commands concerning any matter whatso­ ever or to conduct themselves in all things according as a person or persons of a certain [account] have commanded / submit to punishment for any matter whatsoever at the hands of a certain person or certain persons’ (69.89).36 This was in substance the same definition of a state in terms of the ‘habit of obedience’ which was to achieve some fame by its embodiment in the Fragment on Government. But as a footnote to the definition as presented in his manuscripts Bentham added an expression of his fear that he would be thought to be an ‘advocate of slavery’ on account of his definition. He denied any such advocacy: Note (a) This definition will not easily go down at first with men whose affections are warm on the side of liberty. To such it will be apt to give at least a momentary shock. To these all I can say is to request them to suspend their censure till they have proceeded a little further. They will be apt to tell me that this is a definition of a slavish state, and of no other. But my notion is that what is called Liberty in a state does not depend upon any circumstance that will take it out of this definition. For the present, let them be assured that slavery will find no advocate in me. But this is a definition framed to include every state well-governed or ill-governed, and whether by Laws or without them. It is my care throughout to keep distinct by every attention possible those two ideas so apt to be confounded, the idea of what is, from the idea of what ought to be. (69.89) Bentham hoped to make his readers understand that the state, like the law (indeed because its essence was law), was essentially a force for the control of behaviour and thus essentially a destroyer and reducer of liberty regarded as a quantum. He also sought, however, to show that we must be philosophical nominalists, not realists, about liberty: that we must look, not to its quantum or its aggregate, but to the significance of the existence or denial of liberty in connection with specified acts or sets of acts in a given context of social relationships. In this view what is assumed is that the value of law and of the security it gives to pleasures and against pain is greater than the value of an unlimited and anarchy-inducing liberty for the pursuit of pleasures.

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NOTES CHAPTER FOUR: FUNDAMENTAL WORDS

1

2 3 4 5 6 7 8 9 10 11 12 13 14 15

16 17 18 19 20 21 22 23

83a

. The sheet is headed ‘C. Preface,5 and the passage was probably envisaged as part of a preface to the ‘Code of Criminal Law,’ as Bentham called it in 1778, to which, under the influence of the Berne Oeconomical Society’s announcement of a competition for a ’Plan of Legislation on Criminal Matters/ Bentham turned his attention in 1778. As such it is clearly related both to Bentham's ‘first major project as a writer,’ the ‘’Elements of Critical Jurisprudence,’ and to the later Introduction to the Principles of Morals and Legislation. For a detailed account of the chronology involved here, see Introduction to the Principles of Morals and Legislation, ed. Bums and Hart, London, Athlone Press, 1972, Editors' Introduction, p. ii. Heading: PPI [Preparatory Principles Inserenda], p. 290, 699.’ Marginal heading: ‘Prefat. Definition. Utility of.’ For an account of the relationship between PPI and ‘Crit. Jur. Crim.’ mss dealing also with the status of manuscript pages headed ‘Key,’of which extensive use is made in this chapter, see Preface. He was convinced that the ‘American dispute turns on words’: see UCL mss, Box 69, p. 177(2), headed PPI 354. For a specific reference to Locke’s mischievous doctrine that by a violation of the original compact the constitution is dissolved,’ see UCL mss, Box 69, p. 146, headed PPI 230, 563. Headed ‘Digest. Classification.’ The page is crossed through in ink, perhaps by Bentham, but, particularly in view of the compatibility of the sentiments here expressed with those in other passages, thfs need notindicate that Bentham did not endorse the ideas contained in this passage. Headed ‘Crit. Jurisp. Crim.’ Marginal heading, ‘Right Civil founded on Natural— the notion exploded.’ John Locke, Essay Concerning Human Understanding, ed. M. Cranston, Book 2, ‘Of Ideas,’ chap. 12, ‘Of complex ideas’ Ibid, p. 101 Ibid, Book 2, chap. 30, ‘Of real and fantastical ideas,’ pp. 209-11 Ibid, chap. 22, ‘Of mixed modes,’ pp. 170-3 Ibid, chap. 12, ‘Of complex ideas,’ p. 101 Ibid, Locke, Essay, p. 173. CW Correspondence, II, 336, J.B. to Samuel Bentham, 9 Nov. 1779, pp. 319-20 The Diversions of Purley was published in 1786. We are told that Bentham 'had considerable respect for this work’ (Correspondence, II p. 48, n. 7), but a letter (280) to Samuel Bentham of 27 Oct. 1778 shows that Bentham had great respect for Home Tooke even then, crediting him with ‘an important discovery in Universal Grammar,’ a ’Natural History and Chemical Analysis [![ of conjunctions. It tears Harris's Hermes all to rags.’ Hermes was published in 1751. See Correspondence, I, 127, J.B. to Samuel Bentham, 9 Dec. 1774, p. 221. In part of Hermes, Bentham said, the book’s matter was ‘drenched in a multitude of words.’ Part of the book was ’Nonsense upon stilts.’ Yet he admitted that he had wander’d in it a good while.’ Correspondence, 140, to Samuel Bentham, 12 Sept. 1775, p. 251 Locke, Essay, ‘The Epistle to the Reader,’ pp. 23-4 Correspondence I, 95, pp. 154-6, J.B. to Jeremiah Bentham, 14 Oct. 1772, pp. 154-5 Ibid, 192, J.B. to Francois Marie Arouet de Voltaire, Nov. 1776 (?), pp. 367-8 Ibid, Iii, 508, p. 293, J.B. to Jas Anderson, 12 July 1784 These manuscripts are described in the Preface. (69.16-17). See Introduction, ed. Bums and Hart, chap. 3, ‘Of the four sanctions or sources of pain and pleasure,’ pp. 34-7.

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83b 24

25 26 27 28 29 30 31 32 33

34

35 36

Himmelfarb’s comments are cited in my introduction to the present work. ‘Panopticon’ was Bentham’s conception of an inspection-house for the housing or detention of criminals, paupers, the sick, and the jobless. Its circular design permitted constant scrutiny and supervision of any or all inmates by administrators located at its centre. For details, see Panopticon; or, the Inspection House, 2 vols, London, T. Payne, 1791; see also below, chap. 11 See E. Halevy, La Formation du Radicalisme Philosophique, Tome 3, p. 360, n. 86. The correct heading is ‘Key’: see UCL mss, Box 69, p. 59. The marginal heading beside the last sentence is ‘Liberty used improperly for Security. ’ Halevy, Radicalisme Philosophique, Tome 3, p. 360, n. 68. See also UCL mss, Box 69, p. 59, headed ‘Key.’ The reader may find interesting the comparison between Bentham’s views on this point and Rousseau’s feelings on the same subject. See Social Contract, Book I, chap. 6. Rousseau clearly felt, as did Bentham, that the law must protect the individual from his fellow citizens, securing his liberty by limiting theirs. It was by such exertions of legal sovereignty, indeed, that Rousseau imagined men might be forced to be free under the terms of a 'social contract.’ This is one of several statements under the marginal heading ‘Liberty Defined.’ This particular passage also carried the marginal heading ‘Left free — left at liberty.’ Introduction, ed. Bums and Hart, chap. 1, para. 1, p. 11 Fragment on Government, ed. Harrison, Preface, para. 16, p. 10 UCL mss Box 69, p. 148, sheet headed ‘Preparatory Principles. Inserenda’,Marginal heading ‘The more Law, the more Liberty not true,’ ‘574’ See UCL mss, 69, p. 31: ‘That is a man’s own [and not another’s] which he has a title to possess / in other words which he has by Law an interest in. When he and he only has such title he is the person and the only person who stands exempted from the general Law which forbids property to be meddled with.’ This passage should be compared with Bentham’s examination of the ‘fictitious’ ‘incorporal objects of property’ in appendix B to Of Laws in General. UCL mss, 69, p. 153: ‘Possession’. ‘Possession is liberty to use. Physical possession is physical liberty to use. Legal possession is Legal liberty to use accompanied with legal power, determinable however upon condition of legal disproval of legal right.’ Cf. Of Laws in General, Bentham’s remarks on ‘possession’ and ‘occupation’' in appendix B, para. 58, p. 273, where the nature of the distinction between ‘physical’ and ‘legal’ liberty is emphasized. See Introduction, ed. Bums and Hart, Preface, p. 6. The fact that this sheet has, at some time, been crossed over in ink need not suggest that Bentham retracted the opinions expressed therein. The mark may merely indicate that the material had served its purpose and been inserted into the argument of a full-fledged work. Cf. in this instance the argument concerning the ‘Idea of political society’ in the Fragment on Government, ed. Harrison, chap. 1, para. 10, p. 38.

[5]

Utilitarian Justice and the Tasks of Law Gerald J. Postema Justice (that is utility in so far as it consists in observation of Justice) depends upon expectation and expectation follows the finger of the law . . .

Bentham, UC lxx(a).21.

A central theme running through all of Bentham’s jurisprudential writing is the conflict between the demand for stability and cer­ tainty of law and the need for flexibility in adjudication. Keenly aware of the utility, indeed necessity, of relatively fixed general rules for social conduct, Bentham nevertheless regarded the prin­ ciple of utility as the sole and sovereign rational decision principle. Thus, he insisted that judges must be free to respond to the con­ stantly varying demands of utility in particular cases. The complex history of the development of Bentham’s theories of law and adjudication is the history of a series of increasingly sophisticated attempts to solve this central problem of utilitarian political and legal theory. This history begins to unfold in, and is largely shaped by, Bentham’s early reflections on justice, utility, and Common Law adjudication. In these early writings, Bentham defines the basic terms of the conflict, surveys with remarkable insight the issues at stake, and proposes a unique utilitarian solution for his native Common Law system. His almost immediate dissatisfaction with this solution set him on a course of increasingly deeper reflections on the nature of law and adjudication which eventuated in a com­ plex and sophisticated jurisprudential theory only a small part of which is presented in his classic treatise, O f Laws in General. However, in abandoning his initial solution, he did not abandon the principles underlying his early argument, rather he came to the firm conviction that no Common Law system, even a substantially revised and reformed one, could adequately satisfy these principles.

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148 Bentham’s Critique o f Common Law Thus, these early reflections underlie the development of his mature jurisprudential theory. My discussion of these early writings will proceed in two stages. First, Chapter 5 sets out in a quite general form the problems and issues around which Bentham’s jurisprudence developed. It begins with a look at his early reflections on justice, rules, and utility, and then traces Bentham’s shaping of these early ideas into structuring elements of his developing theory of law. This discussion will fix the basic direction of Bentham’s thought and uncover an important guiding assumption regarding the central aim or task of law. Second, Chapter 6 focuses these themes more precisely on the Common Law and Bentham’s attempt to make coherent sense of this institution in terms of the principles and categories discussed in Chapter 5. 5.1 JUSTICE, UTILITY, AND EXPECTATIONS The principle of natural rights admits of no compromise. Instead of rights talk of expectation. Bentham, UC xxix. 6.

J. S. Mill once remarked that, when it came to jurisprudence, Bentham found the battering-ram more useful than the builder’s trowel.1 This surely does not do justice to the careful and sophisticated analyses of jurisprudential concepts in O f Laws in General, for example; but it is an accurate description of Bentham’s usual treatment of central moral notions. A contemporary critic cap­ tured with reasonable accuracy Bentham’s reductionist method when he said, Mr Bentham maintains, that in all cases we ought to disregard the presump­ tions arising from moral approbation, and, by a resolute and scrupulous analyis, to get at the naked utility upon which it is founded; and then, by the application of his new moral arithmetic, to determine its quantity, its composition, and its value, and, according to the result of this investigation to regulate our moral approbation for the future.2 No moral concept suffers more at Bentham’s hand than the con­ cept of justice. There is no sustained, mature analysis of this notion 1 J. S. Mill, ‘Austin on Jurisprudence’, 159. 2 Francis Jeffrey, writing in the Edinburgh Review IV (1804), quoted in J. Steintrager, Bentham, 13.

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Utilitarian Justice and the Tasks o f Law 149 to match that of Mill’s discussion in Utilitarianism . 3 Seldom willing to take the notion seriously, he was most inclined to respond to talk of justice in an entirely polemical fashion, dismissing it summarily as, at best, innocently vague and potentially obscurantist, but more often a mask for social antipathy and malevolence.4 If justice be admitted in the character of an independent subject of love, where shall we stop—what limit can there be to the number of these objects? To justice must we not add in like manner Equity—right reason— legitimacy and so on. The catalogue of these supposed innate and universal objects of love, may it not be various in the various languages some or all of them—may it not, in a word, vary with the language? (UC cvi. 401). Bentham’s early utilitarian conception o f justice It is all the more remarkable, then, that we should find amongst his earliest discussions of law a sketch for an essay on justice. Opening this sketch, he remarks that systematic reflection on law and legislation must begin with determination of the ‘im port’ of, and relations between, the two fundamental notions of political theory: justice and utility. ‘Perhaps there is not a topic in the whole field of political disquisition more universally nor frequently applicable than this nor on which it more behooves men to have their ideas settled’ (UC lxx(a). 17). Our ideas, however, are often ‘fluctuating’, and even when settled, they often betray inadequate understanding. Especially troubling, according to Bentham, is the common view that justice and utility are in direct and constant con­ flict. What is even more troubling is the fact that, despite the at­ tractions of utility, the popular favourite in this conflict is justice. Why is justice more highly regarded than utility? he asks. Because, in popular opinion, the demands of justice are clear, determinate, easy to discover and to observe, and to determine whether others are observing; thus, they promise greater security. Justice sets a fixed and inflexible standard, while the demands of utility, it is believed, are unpredictable and constantly changing with the changing circumstances. ‘Justice feigns a rule ready fixed 3 J. S. Mill, Utilitarianism, ch. V. A thorough discussion and persuasive inter­ pretation of Mill’s theory of justice can be found in several recent papers by D. Lyons, especially, ‘Human Rights and the General Welfare’, ‘Mill’s Theory of Justice’, and ‘Benevolence and Justice in Mill’. A germ of Mill’s analysis of justice can be seen in some relatively late remarks of Bentham on justice. See below, pp. 156-8. 4 See, for example, IPML X. 40 n. b*; CC 123; and UC xiv. 103-7.

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150 Bentham’s Critique o f Common Law and established. Utility recognizes the rule as yet to seek.. . . Utility is spoken of as something that will yield—Justice as an inflexible line—something that will break rather than bend. Utility as applic­ able to many measures at a time and these opposite—Justice . . . as applicable to but one’ (UC lxx(a). 17, 18). In this characterization of the alleged conflict between justice and utility Bentham clearly echoes Hume. Justice does not define a standard against which laws can be measured, rather it presupposes the existence of established rules and laws (or, as we shall see shortly, of legitimate expectations). Bentham naturally associates justice with law, and the administration of it. The conflict between justice and utility is the conflict between adherence to established rules and the violation (or setting aside) of a rule in order to secure a clear advantage in a particular case. But, of course, the conflict set up in this way admits of a utilitarian solution. Rather than reject the general characterization of either justice or utility, Bentham argues that what makes justice an attractive political ideal is the utility of secure and determinate public rules themselves. This argument is haltingly expressed in this early essay: It was sufficiently understood that it was justice, that is the keeping [of] the chain of analogies . . . unbroken, that kept the stock of happiness for the time being together: any decision or act therefore by which it should be manifest that [the] chain was intentionally/knowingly broken (viz.: broken in the instance in question with such circumstances as indicated a disposi­ tion to break in an indefinite number . . . [of] future instances) would have the effect of making it appear as if the whole stock was in danger. . . . A much greater, because indefinite!,] defulcation of happiness [is thereby] threatened than the utility of any particular measure assignable could make an addition. Justice . . . being superior in utility to utility itself (UC lxx(a). 18). A reasonably clear argument is discernible through the tortured style of this passage. It is only when utility is mistakenly restricted to immediate expediency that a deep conflict between justice and utility can be seen to arise, says Bentham. Justice demands adherence to established rules in the face of arguments from immediate utility to the contrary: but a careful accounting of the relevant utilities yields the same conclusion, he insists. For, intentionally setting aside an established rule (in circumstances indicating a disposition on the part of the official to do so in the future) is likely to cause greater insecurity and so loss of happiness, than can ever be gained by alteration of the

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Utilitarian Justice and the Tasks o f Law 151 unsatisfactory rule. Narrowly restricting utility to immediate advan­ tage yields the paradox that justice emerges superior in utility to utili­ ty itself. There is no deep conflict, he concludes, between justice and utility, broadly and properly construed. (However, Bentham seemed aware even here that the conflict is not entirely eliminated, for he restricts the argument to cases in which there is in the official action some indication of a general disposition to ignore the laws. It is not clear how important at this point this restriction is for Bentham.) There is no conflict between these two fundamental notions because, in the relevant contexts, the two principles yield the same prescriptions. But what accounts for this harmony? Bentham’s answer differs significantly from familiar attempts to reconcile justice and utility in Mill and Sidgwick and from Hume’s account discussed earlier. Justice, he insists, in so far as it is an intelligible standard, simply focuses on a particular species of utilities, and because this species of utilities is, in the contexts in question, likely to be of overriding importance, the dictates of justice are also very likely to be the dictates of the principle of utility itself. Following his favoured ‘bifurcation method’, Bentham distin­ guishes ‘original utility’ from ‘utility derived from expectations’ (I shall call this ‘expectation utility’).5 The distinction is intended to define two exclusive and jointly exhaustive classes of utility. Expec­ tation utilities depend causally on beliefs regarding likely future behaviour of public officials or private persons. The class of original utilities includes all utilities which do not depend on such beliefs. However, the utilities Bentham has in mind are those linked to the fulfilment or disappointment of expectations regarding only certain future events. Bentham’s notion has little in common with the modern decision-theoretic notion of expected utility. His notion is concerned not with the proper utilitarian assessment of alternative future states of affairs in light of their relative probabilities. It focuses, rather, on certain sources of utilities. Expectation utilities derive from two main sources: (i) habits, customs, or promises (and more generally, the patterns of behaviour of other persons), and (ii) law deriving from statute or from the custom of officials, beliefs cor­ responding to which he calls ‘opinionfs] of praejudication’.6 Thus, expectation utilities are those which have their origins in beliefs regarding the likely behaviour of persons, private or official, in 5 UC lxx(a). 20; UC xcvi. 74; UC lxxii. 1; Comment 231. 6 UC lxx(a). 19; UC xcvi. 74; Comment 231.

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152 Bentham’s Critique of Common Law virtue of established practices, habits, customs, or the general rules (and in some cases the absence of them) which govern their behaviour. Excluded from the class at this point are expectations regarding utility-producing natural events.7 Now Bentham links justice directly with expectation utilities. ‘Utility [is] twofold: 1. original, 2. derived from expectation. The term justice . . . [is a] substitute for (or dependent on) the term utility in the latter sense.’8 Thus, justice, in so far as it is an intelligible political notion demands following established rules, practices and patterns of behaviour which rest for their ultimate authority not on their intrinsic merit or utility, but on the expectations they engender and protect. For example, in a related manuscript Bentham con­ siders the so-called law of nations (which, he says, ought properly to be called ‘the Morality of Nations’) the practices of which depend greatly for their utility upon interlocking expectations.

There is a custom among European nations that a vessel approaching to a fort belonging to another nation shall salute it with a certain number of guns. Now certain and plain it is, that in the producing of a certain quantity of noise and smoke there can be no original utility: and yet utility there is. Why? because it [the salute] is expected.

And he notes that this explains the great importance of, and reason for dispute over, the history of relations among nations.

Selden and Grotius had their dispute concerning the dominion of certain laws. They compiled Histories upon Histories to show the exercise of i t . . . Why? but that they both perceived that if one party had been used a certain number of times to make use of it along with others, he would reckon upon and expect the being suffered to do so still. . . [and] that these several facts if admitted would serve at once as grounds of such an expectation (con­ sidered as probable) and as indices of it (considered as actual) (UC lxxii. 1).

The example here is international custom, but the most common example, and the model for Bentham, as for Hume before him, was the law of property.

7 At this stage in Bentham’s thinking there is some ambiguity regarding a third source of expectations. At UC lxx(a). 19 he includes ‘opinion of original utility* along with the other two. But in a closely related manuscript he dismisses this idea as a mistake. Expectation determined by ‘expediency’, he insists, falls properly into the category of original utility (UC xcvi. 74), but he does not say why this is so. The view in UC lxx(a). 19 prevails, however, as we shall see below in 5.2, at least when the ex­ pectation takes the form of ‘alarm’. A decade or so later ‘sentiment of utility’ is clearly included among the sources of ‘natural expectations’ in his Civil Code, Bowring, i, 323, and plays an important role there. 8 UC xcvi. 74; see also UC lxx(a). 19, 20, 21.

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Utilitarian Justice and the Tasks o f Law 153 The conduct of Justice in deciding the right to an article of property in dispute between two parties is governed by two considerations. . . . 1. To consider the parties themselves, it ought to bestow the article in question upon the one of them whose expectation of having it is the strongest. 2. To consider the public, it ought to bestow . . . it upon that one of the parties on whom the public . . . expects most strongly to see it bestowed (UC Ixix. 238). Thus, Bentham, like Hume, closely associates justice with con­ ventional arrangements of general rules and practices which struc­ ture, underwrite, and seek to protect expectations essential to social interaction. Justice is both a product and protector of expectations. However, Bentham’s account differs from Hume’s in two import­ ant respects. First, despite the close association between justice, rules, and utility, it is clear that on Bentham’s utilitarian account of justice, justice is not to be identified with conformity with established rules. Justice, for Bentham, is first of all a matter of respecting expectation utilities, and only derivatively is it a matter of follow­ ing rules. How far is it true, as Blackstone claims, that justice is dependent upon law? Bentham asks. ‘Thus far: Where Justice (that is utility in so far as it consists in the observation of Justice) depends upon Expectation and Expectation follows the finger of the law . . .’9 Justice consists in following the law where following maximizes respect for expectation utilities. Although conformity may maximize expectation utility in most cases, it may not do so in all cases. Once we recognize the connection between expectations and justice, we can perceive ‘why certain exceptions [to established rules] may be made in some cases, without injuring or detracting from a rule of Natural Justice’. And in some cases considerations of original utility may provide, in part, the warrant for the excep­ tion, ‘because a manifest tho’ less general utility in those particular cases may carry expectation with it’ (UC lxx(a). 19). That is, where original utility seems to counsel setting aside or altering an estab­ lished rule, expectations may not be seriously disappointed, indeed they may call for the decision, if the utility of the novel decision is sufficiently ‘manifest’ (i.e. publicly recognized). It is not the amount of utility that is important here, but rather the assurance of common public knowledge of the utility. (This, of course, is most likely to occur, for example, in cases in which great disutility would 9 UC lxx(a). 21 citing Blackstone, 1 Comm. 55.

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154 Bentham’s Critique o f Common Law be caused by following the rule.) Established rules have a justified claim on official attention, independent of their original utility merits, only because they provide a focus for public expectations. Second, the expectations on which Bentham focuses, and justice which seeks to protect them, are given a distinctively utilitarian interpretation. The demands of justice are to be taken seriously because and only because they concern a species of utility, and this species is distinguished from original utility, not in terms of its nature, but in terms of its source. Nothing in Bentham’s conception of utility, (unlike Hume’s, see above, 3.3) prevents combining expectation utilities and original utilities in a single calculation. They are directly commensurable. Their claim to special attention in the contexts in which justice is an important concern lies in the fact that, on Bentham’s view, they are of overriding utilitarian weight and importance. Thus, Bentham is not arguing for a principled restriction of of­ ficial attention to consideration of expectation utilities, to the exclusion of all other potentially relevant utilities. His utilitarian theory of justice does not mark a departure from the directutilitarian view that the principle of utility is always the sovereign decision principle. Tied to expectations is a species of utilities which, in Bentham’s view, are especially weighty in contexts of of­ ficial decision-making, and this is why they tend to override rele­ vant original utilities. But there is no reason to believe that they will do so in every case. Neither does respect for expectations dictate uncompromising adherence to rules. As we have seen, Bentham follows Hume in reckoning the language of justice and rights as the language of inflexibility. ‘Justice feigns a rule ready fixed and established’, an inflexible rule that allows no prudent bending (UC lxx(a). 17, 18). Despite the usefulness of such language, Bentham in­ sists ultimately on the more ‘yielding’ language of utility and expecta­ tions. ‘The principle of natural rights admits of no compromise,’ he complains in a critique of the French Declaration; ‘instead of rights talk of expectations’ (UD xxix. 6). Bentham has harsh words for the intellectual indolence of lawyers and judges caused by the doctrines of justice and pre­ cedent. When lawyers persist in giving to their maxims an authority original, without exception, and without appeal, the most salutary of them turn, upon many occasions, poisonous. There is not one of them which should

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Utilitarian Justice and the Tasks o f Law 155 be established without a standing proviso tacked to it in favor of utility. There is not one of them of which some higher reason cannot be given, so far as it is reasonable, which higher reason ultimately is utility . . . [The lawyer’s attitude] comes of getting certain maxims by rote and applying them undeviatingly as if they were sui juris without enquiring whether they may not be suspended by a utility superior to their utility (UC li(a). 31, 32). There is implicit here a decisive repudiation of the Humean doc­ trine that the human mind is governed throughout the largest part of its operation by custom and habit (Enquiry 744). Hume, we may recall, not only observed, but put at the centre of his jurisprudence (and his philosophy in general) the fact that human beings ‘are mightily addicted to general rules, and that we often carry our maxims beyond those reasons, which first induc’d us to establish them’ (Treatise 551). Bentham, for his part, accepts that the human mind is frequently afflicted with this malady,10 and adds that this is especially true of minds trained in the Common Law. But he takes this to be a major intellectual failure, the product of personal indolence and sinister social forces. Thus, Bentham’s ‘rationalism’ is apparent already at this early stage in his career. It takes the prac­ tical effect here of demanding that where there are good utilitarian reasons for a rule or maxim, the judge must penetrate through to them and treat them as his ultimate reasons for decision and action, and thus regard them as open to qualification by appeal to greater utility in particular cases. There is no inclination in Bentham, then, to counsel officials to ignore or overlook any relevant utilitarian considerations in their deliberations. Justice and utility are not in deep conflict, in Bentham’s view, because justice properly under­ stood is reducible to utility. Utility: ‘the ruler and decider o f all things’ Out of bits and pieces, largely from later writings, it is possible to sketch out a second line of analysis of justice which is not identical to Bentham’s early account. He never makes an effort to choose between the two, perhaps because he believed they were equivalent or at least compatible, perhaps because he thought it didn’t really matter once it can be shown that justice is reducible to utility, and perhaps for both reasons. The alternative account is interesting, however, not for the role it plays in his jurisprudential theory (it 10 See, e.g. IRE, Bowring vi, 14 n *.

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156 Bentham’s Critique o f Common Law plays no such role), but because it seems to anticipate J. S. Mill’s analysis advanced over forty years later in Utilitarianism. In the Deontology Bentham sets out to show that all virtues are reducible to (or ‘modifications o f’) either prudence or benevol­ ence. Justice, he maintains, is nothing more than benevolence under particular circumstances (UC xiv. 227). Often, even in his later writings, the circumstances he has in mind are those in which the utilities are predominantly tied to ‘fixed expectancy’ (Bowring iii, 388 n.*; Bowring v, 277). However, occasionally he ties justice more directly to rules. For example, a late (1818) entry in his commonplace book includes the following germ of an analysis of justice: ‘Justice is beneficence: in the cases in which the non­ performance of it is considered as punished, or punishable by the force of one or other of the several sanctions: principally the political, including the legal, and the moral or popular’ (Bowring x, 511). On this account, acts of justice are those special cases of beneficence which are in fact enforced by sanction from some authoritative source, typically through establishing and enforcing rules. Similarly, in papers penned some ten years earlier, Bentham observes that to say an act is required by a dictate of justice is not simply to say that one ought to perform the act, but also that noncompliance will be punished (UC lxxxii. 142). The clearest state­ ment of this line of analysis can be found in materials from the last few years of Bentham’s life. ‘By Love of Justice’, he writes in 1829, ‘is meant regard for human happiness considered as promoted by observance of fixed rules, especially rules laid down by authority of government. . . ’ (UC cvi. 397). This analysis is spelled out in slightly more detail in his Article on Utilitarianism. Here he distinguishes his conceptual analysis—his account of what assumptions are made by those who use the term ‘justice’—from his substantive utilitarian conception of justice. In and by the employment given to the word justice two assumptions are implicitly contained: . . . [1] that by competent authority the general rule of action has been laid down: . . . [and 2] that whatsoever be meant by rectitude and propriety this rule is itself. . . a right and proper one (UC xiv. 382).

He then adds his utilitarian account of what would make such a rule ‘right and proper’: If then so it be that the rule thus exhibited in the character of a maxim or dictate of justice is the same which on this same occasion would be found

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Utilitarian Justice and the Tasks o f Law 157 to be a dictate or say precept emanating from the greatest happiness prin­ ciple, then . . . the dictate or say precept. . . may be said to be a dictate of justice.11 Several features of the development of this account deserve com­ ment. First, Bentham insists throughout that the link between justice and utility is forged by the concept of fixed general rules or laws. Justice is essentially a juridical concept. But his understand­ ing of the nature of this link shifts. In so far as justice is identified with respect for fixed expectations, the link to rules is close but en­ tirely contingent, as we noted above. As he develops his alternative account he tightens the connection between justice and rules by identifying, as Hume did, justice with established rules (which nevertheless must meet the condition of serving general happiness). The link between justice and expectations is still maintained, however, because established rules tend to focus and confirm, and so to fix, expectation. This stage in Bentham’s analysis is ambiguous, however. The ambiguity is not one to which Hume’s account was subject. Because of Hume’s conception of utility, it is difficult to pry estab­ lished, working general rules apart from their utility. As we noticed in Chapter 3, Hume’s notion of utility does not provide a basis for judging rules themselves in the abstract. If the rules work at all, they serve the public good, and only in the most extreme cases can there be reasons of utility to warrant setting aside established rules in favour of some alternative rules. Bentham’s conception of utility, however, does allow assessment of alternative feasible sets of rules in terms of their respective contribution to the overall well-being of the community. And this makes his account of justice here am­ biguous. For it is not clear what the relationship is between the two conditions in his analysis of justice (established rules, and rules which meet the test of utility). It is not clear on which of these two conditions he wished to place emphasis when they conflict. The ambiguity is cleared up in his last proposal. Like J. S. Mill, Bentham defines justice in terms of a certain kind of ideal rule—viz. the best, right, or proper rule which could be authori­ tatively adopted and enforced. This is part of his analysis of the concept of justice. When I say, then, that the activities of some government officials violate a dictate of justice, on this account, I

11 Ibid. Bentham seems to offer a similar analysis of non-legal rights, see Hart ‘Natural Rights: Bentham and John Stuart Mill’ in Hart, Essays on Bentham, 88-9.

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158 Bentham’s Critique o f Common Law do not imply that officials violated an already established rule, but rather that there is a rule or principle which can be rationally defended, which rule could and ought to be authoritatively estab­ lished in law or the political constitution. His utilitarian version of justice fits easily into this analysis, for only argument from overall utility can provide the rational grounding for a dictate of justice thus understood. (The parallel to Mill’s strategy here is striking, though, of course, Bentham gives only the barest sketch of the account which Mill worked out in much greater detail.) This sketch of an analysis of justice is interesting for both historical and for general philosophical reasons. Philosophically it is interesting because it seems to anticipate recent attempts to develop indirect- or rule-utilitarian accounts of central moral notions. However, the analysis played no important role in Bentham’s moral, political, or legal theory. In fact, immediately after proposing his analysis Bentham himself dismissed it as in­ adequate or at least as providing no reason to take the notion of justice seriously for theoretical purposes. ‘Vague, obscure and little satisfactory as the incomplete explanation of the word justice must as yet be confessed to be this is all that can yet be done towards rendering the import attached to it clear and determinate’ (UC xiv. 382). Although it may be possible to continue in the direction Bentham here suggests to develop a credible indirect-utilitarian moral or political theory, Bentham himself was never inclined to do so. Quite to the contrary, he insisted throughout his life that the sole fundamental, and always applicable decision principle is the principle of utility. The problem with taking the analysis of justice seriously, Bentham holds, is that it may give people the idea that there is really something in the notion of justice, understood as in some sense independent of utility, as if it were a moral notion with an independent claim on our attention and deliberation. Bentham fought hard throughout his writings against such a tendency. The principle of utility is ‘the only principle the observance of which affords any promise of being conducive to the maximum of the quantity of happiness in the community . . .’ and any propo­ sition ‘exhibiting to view any other word or phrase in the character of an appellation of any other ultimate end in view is little . . . better than a self contradictory one’ (UC xiv. 388). Thus, despite the interest of his alternative analysis of justice, for his legal and political theory Bentham relied heavily on his early,

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Utilitarian Justice and the Tasks o f Law 159 strictly reductionist analysis, but with a noteworthy shift of termin­ ology. In the place of ‘justice’ he put his ‘disappointment preven­ tion principle’. This principle, to which he gives broad scope in his jurisprudence, nevertheless is always and on each occasion to be followed only because to follow it is to follow the principle of utili­ ty. The principle of utility, Bentham insists, is the ‘principium generalissimum’, species of which can be distinguished for ease of understanding and application to different areas of the law (UC xcvi. 75). Thus, in a characteristic passage Bentham maintains that whenever a matter of distribution of property or other benefit is in question, the property or benefit should be given to that party who will experience the greatest disappointment upon not receiving it. To emphasize the pervasive presence of the background principle of utility he adds one exception: when, by any different disposition, happiness in greater quantity, probability taken into account, will be produced (PannomialFragments, Bowring iii, 212; also BL Add Mss 33,550 fo. 14.) (To this he adds the procedural constraint that the burden of providing that any case calls for the exception lies on the party who stands to benefit from the exception if granted.) For Bentham the principle of utility is both ‘iravToxQarais’ (the ruler of all things) and ‘irai>Ta-iroxQLTr)s’ (the decider of all things) (UC xcvi. 73). It is not only the ultimate evaluative principle, it is the sole sovereign decision principle. 5.2 HUMAN NATURE AND THE FOUNDATIONS OF JURISPRUDENCE . . . it is by means of [expectation] that the successive moments which compose the duration of life . . . become parts of a continuous whole. Bentham, Civil Code.

I have argued that, despite some late suggestions to the contrary, it would be a mistake to understand the special place assigned to respect for expectations along indirect-utilitarian lines. But, then, the importance for Bentham’s legal theory and the great weight he assigns expectation utilities are puzzling. Why give expectation utilities such prominence? Our attempt to answer this question will uncover two assumptions which implicitly drive much of Bentham’s jurisprudential thought.

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The priority o f expectations First, note that Bentham’s discussion of utilitarian deliberation is implicitly restricted to legal and quasi-legal contexts. The great weight Bentham assigns to expectation-utilities can be explained in part by the assumption he makes regarding the primary task and social role of law. In Bentham’s theory, law plays the social role that Hume assigns to property. Its task is to lay the foundations of society, to constitute a people. Like Hume, Bentham believes this involves focusing the expectations of members of the group, mak­ ing possible the social interaction necessary for survival, improve­ ment, and happiness. It is not surprising, then, that expectations should figure prominently in utilitarian deliberation of officials. Moreover, law and legal officials are in a nearly unique position dramatically to affect, shape, secure, or undermine expectations on a community-wide scale. The extent to which individuals can influ­ ence expectations, either positively or negatively, will vary greatly with the circumstances and the positions of the agents in question. But the impact of law and decisions of its officials on expectations is more nearly constant. The assumptions on which the above explanation of Bentham’s view of expectation utilities rests depart from the standard under­ standing of Bentham’s positivist jurisprudence12 and stand in need of justification. I will undertake that task in the following section of this chapter, and additional evidence will be brought to light in subsequent chapters. But in this section, I want to discuss a second assumption on which Bentham’s assignment of overriding import­ ance to expectation utilities rests. The philosophical basis of this assignment is laid in the early theoretical part of Bentham’s work on the civil code (to which he turned in the 1780s). The capacities and sentiments involved in expectations are, he maintains, fundamental to human life (Bowring i, 308). Security of expectations is a necessary condition of achiev­ ing anything beyond momentary happiness; indeed, it is necessary if recognizably human life is to be possible. In a remarkable passage in his Principles o f the Civil Code he writes, In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider, that man is not like the brutes, limited to the present time, either in enjoyment or suffering, but 12 See, e.g., L. J. Hume, Bentham and Bureaucracy, esp. ch. 2 and 238-41.

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Utilitarian Justice and the Tasks o f Law 161 that he is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against an actual loss, but also to guarantee to him, as much as possible, his possessions against future losses. The idea of his security must be prolonged to him throughout the whole vista that his im­ agination can measure (ibid.). The product of ‘this disposition to look forward, which has so marked an influence upon the condition of m an’ is expectation. The powers of imagination and foresight, and the sensibility of anticipation, enable human beings to live not only in the discrete present moment, but also in the continuous flow of the present into the future through plans, fears, and expectations. This marks a distinctive difference in the condition of human beings as com­ pared to that of all other sentient beings. Human well-being con­ sists not only in the good of the moment and the actual security of future good, but also in the security of the individuals’ expectations regarding the future. This, in Bentham’s view, is not just one more source of pleasure and pain alongside all the others. This disposi­ tion has a deeper significance for human beings which makes security of expectation a matter of primary utilitarian importance. It is by means [of expectation] that we are enabled to form a general plan of conduct; it is by means of this, that the successive moments which compose the duration of life are not like insulated and independent points, but become parts of a continuous whole. Expectation is a chain which unites our present and our future existence, and passes beyond ourselves to the generations which follow us. The sensibility of the individual is prolonged through all the links of this chain (ibid.). This is, of course, the barest sketch of an argument, but something like the following seems to be suggested. Because of the disposition of expectation, human beings are capable of both planning, struc­ turing, shaping the future and, even more deeply, projecting themselves into that future. Without a secure, reasonably predic­ table future, such activities would be difficult, perhaps impossible, and surely pointless. But these activities are of enormous value to us, first of all in the sheer delight of exercising these capacities and bringing to completion our own plans and projects. But their value and importance to us runs deeper, for only through such activities can we as individuals shape our own identity, and ensure our per­ sonal continuity over time. Thus, without security of expectations, we experience both the frustration of curtailment of our liberty to plan for the future and to carry out these plans, and the deeper pain

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162 Bentham’s Critique o f Common Law of personal discontinuity, of alienation from our past and future. And, Bentham suggests, a sense of personal continuity and coherence is essential to any individual’s conception of happiness beyond that restricted to the pleasures and sufferings of the immediate moment. Thus, it appears that security of expectations is a kind of ‘primary good’ for Bentham (like the social bases of self-respect for Rawls). It is a necessary condition of any person’s well-being regardless of what the components of that well-being might be. Given this understanding of the importance, as a matter of psychological fact, of security of expectations for individual human well-being, it is not surprising that Bentham should believe that expectation-utilities bear great practical weight in utilitarian deliberation. Security, reason, and human nature Perhaps we may interrupt the development of the main theme of this chapter briefly to make some observations of a quite general sort about Bentham’s view of human nature. The observations of this subsection are important if we are rightly to understand the underlying aims of Bentham’s legal and political theory and so they fit the broad objectives of this ground-laying chapter. If we keep in mind the above explanation of Bentham’s reckon­ ing of the utilitarian significance of security and expectations, it is possible to gain some insight into his view of human nature. It can help us restore balance to a widely held but misleading inter­ pretation of this view. Douglas Long has recently advanced this interpretation in a compelling form13 and I shall use his discussion to focus our reflections here. It is tempting to contrast Bentham’s view of human nature with the picture we get from J. S. Mill, especially in On Liberty. For Mill, the human individual is a dynamic, spontaneous, self-creative being with a future of unbounded potential. In sharp contrast, Bentham’s conception, says Long, is that of a passive receptor of pleasures and pains responding to its environment in a mechanical pattern of attraction and aversion. For Mill, liberty is essential for human development because it breaks the social tyranny which enslaves and threatens to choke off the soul. Individual liberty opens up, for a self-creative being, a boundless and uncharted future. Whereas for Bentham, liberty is essentially a matter of 13 D. Long, Bentham on Liberty, see esp. 18, 23-5, 82, 115-8, 147-9, 207-20.

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Utilitarian Justice and the Tasks o f Law 163 security, of protection from a hostile environment. The great value of liberty, and of law which makes it possible, lies in fixing the future, making it determinate secure, predictable. It enables in­ dividuals to carry out their nature-dictated and limited goals with reasonable efficiency. Bentham’s negative conception of liberty, says Long, is simply a reflection of his negative and essentially passive (even, in the literal sense, reactionary) conception of the self. The most utopian vision that Bentham permits himself is one in which the law is fixed, clear to all, and efficiently adjudicated and effectively enforced, where the boundaries of action, rights and privileges—both private and public—are known and known to be respected (UC cxlii. 200; Bowring i, 193-4). This is, surely, in Marx’s contemptuous phrase, the utopia of a ‘modern English shopkeeper’.14 No doubt there is much truth in this sketch of Bentham’s view of human nature. Surely, there is nothing romantic in Bentham’s view, no celebration of the dynamic and self-creative potential of human beings which preoccupied later nineteenth-century theorists from Mill to Marx. On Bentham’s account, human nature is cautious, prudent, even timorous. But the above sketch of that account has the truth of a caricature; it represents part of the view as the whole. This is so in at least two respects. First, the emphasis on security in Bentham’s jurisprudential writings is unmistakable and enormously important, but this should not be taken to exclude or deny the loftier, more self­ directed and even spontaneous aspects of human nature. Rather, Bentham focuses his attention upon those factors which, in his view, are absolute preconditions for human life of any descrip­ tion. Security is a, or perhaps the, ‘primary good’, according to Bentham. It should be no surprise, then, that security should be the main focus of his jurisprudence, especially given his convictions concerning the primary task of law. The utopia Bentham sketches is a limited utopia precisely because it is a vision of the perfection o f law. ‘The perfection o f the law will be at its acme’, Bentham pre­ dicts, ‘and the condition of mankind as far as depends upon the law will be at its optimum’ when the conditions he spells out are met (UC cxlii. 200, emphasis added). This view is limited not by the boundaries of human nature so much as by what reasonably can be 14 K. Marx, Capital I. 609-10.

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164 Bentham’s Critique o f Common Law expected from the law. The task of law (for Bentham, the most im­ portant social task to be performed) is to lay the foundations of social coherence and stability, which are essential for personal coherence. Personal coherence is not the whole of human hap­ piness, but it is its sine qua non. It is unfair, then, I think, to derive from this set of concerns a full theory of human nature. Bentham does not deny that there are further dimensions of the human self not comprehended in the limited view he has adopted, he simply— and for obvious theoretical reasons—ignores them. And as we shall see later, Bentham’s emphasis on the stability and determinacy of law is designed precisely to make possible the flexibility in adjudi­ cation which the Humean account of justice and law thought im­ possible. Second, the above sketch represents Bentham as a true son of the Enlightenment in so far as he was determined to rest his legal and political theory on a true and empirically based ‘science of m an’. But it mistakes both the model and the thrust of this science. Long and others make a good deal of Newton as the model for Bentham’s science of man, the suggestion being that the account of human nature Bentham sought was mechanistic and crudely materialist. He was interested only, wrote Hazlitt, in ‘reducing law to a system, and the mind of man to a machine’.15 Bentham was much impressed, surely, with Newton’s achievement, and often fancied himself as the Newton of the moral sciences.16 But it was Newton’s determination to base all his conclusions on observation and experiment (UC c. 135; UC xiv. 365) and his success in giving a systematic structure to the science of physics that Bentham most admired. Bentham believed that there are general truths about human nature and behaviour in society which could also be observed (though not proven by experiment—UC c. 135) and systematically structured into a science. But it is less clear that Bentham took Newton’s theory of mechanics as a model for explanation of human behaviour, and even less that it shaped his conception of the basic elements of human nature. Indeed, in so far as Bentham’s general philosophical method had a model, it was that of Linneaus and the early systematic work in the biological sciences, in which organization, and classification (what Bentham called ‘methodi15 W. Hazlitt, The Spirit of the Age, 2. 16 See Long, Bentham on Liberty, 16. See UC clvii. 32.

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Utilitarian Justice and the Tasks o f Law 165 zation’) was the key to rational understanding (UC xxvii. 140-1, 144, 154, 164-5).'7 More importantly, concentration on Newtonian mechanics overlooks the extent to which Bentham was committed to the Enlightenment objective of freeing individual reason and judgment from what Kant called its ‘self-incurred tutelage’—m an’s inability to make use of his understanding without direction from another.18 Peter Gay correctly observes that Bentham was the ‘archphilosophe, who took eighteenth-century radical ideas into the nineteenth’.19 Already in his earliest writings, Bentham quite deliberately placed his work squarely within this tradition. The Preface to his Fragment on Government sounds a clarion call to Enlightenment rationalism applied to jurisprudence and ‘the moral sciences’ generally. His target in the Fragment and his Comment on the Commentaries was Blackstone and the confused mixture of natural law and Common Law ideology found in Blackstone’s Commentaries. This work, he believed, brought to light the cause of a ‘national torpidity’ which inculcated submission to authority, not so much in conduct—a form of submission he thought essential to social life—‘but in judgment, which is a source of ignorance and stupidity’ (Comment 346). His aim, in these works, and throughout his life, was to emancipate ‘the judicial faculties’ of the public from the shackles in which the established legal and political tradition had bound it.20 Out of sinister motives, these forces fostered super­ stition—ungrounded opinion based on fear or delusion—and pre­ judice—the refusal to evaluate one’s judgments and opinions in light of some external standard, and to call one’s loyalties to moral accounting.21 Although Bentham liked to see himself as the Newton of the moral sciences, he also prided himself in being the Luther of 17 FG, Preface, p. 418; Bowring viii, 124-6, 269-70; Steintrager, Bentham, 22 and the UC manuscripts referred to there in n. 7. 18 I. Kant, ‘What is Englightenment?’ 3. Kant goes on: *Sapere audel Have courage to use your reason!—That is the motto of the enlightenment’ (ibid.). Bentham selected the following passage from Persius’ Satires for the motto of his Comment on the Commentaries: ‘. . . Veteres avias tibi depulmone revello’ (‘I pluck the old wives’ tales out of your head [lit. ‘lung’]’). 19 P. Gay, The Englightenment: An Interpretation, vol. 1, p. xiii; quoted in Long, Bentham on Liberty, 20. 20 Comment 349. In his Autobiography, J. S. Mill acknowledged that Bentham ‘had always identified deference to authority with mental slavery and repression of individual thought’. See Early Draft of J. S. Mill's Autobiography, 188, and generally, B. Friedman, ‘An Introduction to Mill’s Theory of Authority’. 21 See J. Austin, Province, 299.

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166 Bentham’s Critique o f Common Law jurisprudence (RJE, Bowring vii, 270 n.). He declared the birth­ right of every Englishman to be, not the right of property, but ‘the right of private judgment’; on this ‘everything that an Englishman holds dear’ is based (FG, Preface, p. 406). In support of his account of Bentham’s conception of human nature Long takes a passage from an important set of manuscripts written around the time of the composition of the Fragment. In it Bentham maintains that one is self-governed when one’s motive for action is not pain resulting from the will of another person, but pleasure or pain from the power of inanimate or irrational bodies, or of the parts of one’s own body (UC lxix. 55). Commenting on this passage Long says, ‘Liberty is here already conceived of, not as an expression of a dynamic self, but as subjection to the hedonistic dictates of the sensory organism in a world of potentially dangerous “inanimate or irrational bodies”. “Self-government” means not self-expression or self-development, but self-defence.’22 But another interpretation of this passage is possible, one which stresses the enlightenment-rationalist rather than the mechanistic elements of the passage. If we keep in mind the Hobbesian doc­ trine, of which Bentham was well aware, that submission to the will of another involves deference both in conduct and in judgment (see above, 2.2.) then ‘self-government’ here must be understood in terms of rational self-direction, that is, action on one’s own judg­ ment of the reasons there are for acting in one way rather than another. To be sure, there is no hint here or anywhere in Bentham’s writings of the expressive, self-creative aspects of the human self. Bentham is, in this respect a rationalist, not a romantic. The world is rationally ordered, and human beings in virtue of their individual rational faculties are capable of participating in it. Liberty, security, and enlightenment are important precisely because they make it possible for each person to take his or her responsible place in that ordered universe. But Long is correct to point out that this is a static human universe. The rational self Bentham pictures is capable of rational direction of action but only upon a set of ends and aims, desires and aversions, bestowed by nature upon it. ‘Sense, which is the basis of every idea,’ says Bentham, is also the basis of every enjoy­ ment, ‘and unless man’s whole nature be new modelled, so long as 22 Long, Bentham on Liberty, 18.

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Utilitarian Justice and the Tasks o f Law 167 man remains man the stock of sense . . . never can encrease’ (UC cxlii. 200). Absent from this, Bentham’s most utopian, picture is any sense of the plasticity of human nature or the openness of the human future. He has ‘not made sufficient allowance for the varieties of human nature, and the caprices and irregularities of the human will’, Hazlitt complains. He has ‘bound volatile Hermes’ and ‘struck the whole mass of fancy, prejudice, passion, sense, whim, with his petrific, leaden mace . . ,’.23 Absent also is any suggestion of the self’s involvement in the shaping, or the assessment, of nature’s package of aims and desires. Absent, finally, is any awareness of the human desire or capacity to join with others in defining and carrying out a conception of the common good or shared values. For Bentham, conflicting concep­ tions of individual or common good are merely different arrange­ ments of uniform human interests—and more often different views of the most efficient means of satisfying these interests. Political struggle, purged of superstition and the corruption of ‘the principle of sympathy and antipathy’, is transformed into debate over technical means of resolving competing interests. There is no need for more fundamental political debate because the basic terms of resolution exist already in the uniformity of human interests. Bentham never recognized the possibility of deeply conflicting con­ ceptions of good or justice or the direction of social life, which reflect potentially incompatible ways of viewing and valuing social life. Nor did he have any sense of the value of a people’s forging for themselves a common conception of justice or common good. Bentham’s idea of the self is that of a rationally self-directed individual, prudently adjusting his actions and plans to the realities of his environment, but always thinking and judging for himself. If this ideal is to be put within reach of each individual in society, Bentham thought, two conditions must be met: (i) personal security and social coherence, the necessary conditions of personal coherence (which alone makes rational self-direction possible), must be put on a firm foundation; and (ii) forces, both social and intellectual, which enslave the mind and judgment must be destroyed. Bentham’s commitment to securing these two condi­ tions shaped the broad goals of both his jurisprudence and political theory. 23 Hazlitt, Spirit of the Age, 5.

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5.3 SECURITY AND THE FUNDAMENTAL TASK OF LAW The law does not tell a man what he should do to accomplish specific ends set by the lawgiver; it furnishes him with base lines against which to organize his life with his fellows. L. Fuller, ‘Human Interaction and the Law.’

Once Bentham succeeded in showing, to his satisfaction, that justice properly understood does not conflict with utility, and that all intelligible talk of justice can be reduced to talk of utility under a special description, he almost entirely dropped the term ‘justice’ from his theoretical vocabulary. Except for very occasional (although not in themselves uninteresting) comments in his later writings, the term does not appear again, and the notion plays no significant theoretical role in his jurisprudence. This is not the case, however, for the concepts he developed for use in his early analysis of justice. These carry an increasingly heavy load in his developing theory. The most important of these is the notion of expectations, although it is quickly merged with the slightly broader concept of security, which is made to do all the theoretical work of justice, and much more. From the late 1770s and early 1780s onwards, security is the primary focus of his utili­ tarian theory of law, and the first deputy of his sovereign principle of utility. In this section I trace the career of this concept and through it uncover Bentham’s assumptions regarding the funda­ mental social tasks of law. In this section I shall try to show, contrary to the common reading, that Bentham did not hold that the primary function of law is social discipline and ‘social control’. The centrality of the notion of sovereignty and especially of command in his jurispru­ dence cannot be denied, nor can the prominence of the model of the criminal law in his analysis of the formal, logical structure of law. But I will argue that these are best understood against a quite different conceptual and normative background than is commonly assumed. Bentham’s conception of law, I shall begin to argue here, is far less manipulative and ‘managerial’ than is standardly assumed. In fact, it comes reasonably close to the ‘interactive’ and ‘facilitat­ ing’ conception championed by Lon Fuller.24

24 L. Fuller, ‘Human Interaction and the Law’, and The Morality of Law, passim. By ‘managerial direction’ Fuller has in mind the kind of bureaucratic rationality which manipulates behaviour through general rules and directives im-

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169

Security: objective and subjective elements The complexity of Bentham’s concept of security can be seen by starting with its simplest element, modelled by familiar features of the criminal law, and then adding to it one by one the other com­ ponents to fill out the concept. We begin again with the distinction between original utility and expectation utility. In his earliest writings Bentham illustrates the distinction by drawing examples from the criminal law and law of property. If a law is justified, he asserts in the Comment, it must be seen to serve utility, ‘either original, or derived from expectation’. So, for example, a law prohibiting assault is grounded on original utility. ‘For whether a man expects to be safe from beating or does not, beating is at all events a pain to him.’ The disutility with which the law concerns itself in no way depends on the beliefs or expecta­ tions of the victim or others. In contrast, the disutility caused by theft can only be explained by reference to the expectations of the owner, the expectation to retain possession indefinitely.25 Now, Bentham assumes here and consistently throughout his career that expectations are the only utilitarianly relevant consider­ ations in the context of property and private law generally. ‘Expec­ tation is the basis of every proprietary right’, he insists. This alone ‘affords whatever reason there can be for giving [alt.: adjudging] a thing to one man rather than another’ (UC xxix. 6). But Bentham also recognizes the important role of expectations in law protecting the physical integrity of the person. Physical assault, for instance, tends to cause not only the original disutility of physical suffering on the part of the victim, but also fear and apprehension on the part of the public generally. These expectations are not the product of any single act, but rather a function of the system of rules (or lack, or inadequacy of, such a system).26 Thus, there is a strong posed from the top of some hierarchically structured enterprise, rules usually design­ ed to serve ends of those who issue the rules, or at least ends not shared by the sub­ ordinates whose behaviour is manipulated by them. 25 Comment 231; also UC lxx(a). 19, 20. Precisely this difference in utilitarian foundations, Bentham claims, explains why certain laws must be the same in all societies, while others vary greatly from society to society. The former laws, resting in a substantial way on original utility, depend on largely invariant features of human nature, whereas the latter depend on expectations and these, in turn, on potentially widely variable beliefs, experience, prejudices, attitudes, and practices. 26 This is made clear in R. Nozick’s sophisticated discussion of similar issues in Anarchyy State and Utopia, ch. 4. See also Postema, ‘Nozick on Liberty’.

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170 Bentham’s Critique o f Common Law case for treating the utilities associated with them as a species of expectation utilities alongside those we discussed earlier. In IPML Bentham creates a special category to capture this species of utilities. In Chapter XII he distinguishes between the primary and the secondary mischief of a criminal offence. The primary mischief is the original disutility caused by the offence, suffered by an assignable individual or set of them. The secondary mischief, however, ‘extends itself either over the whole community or over some other multitude of unassignable individuals’ (IPML XII. 3). That is, the harm done by assault, for example, is both a private harm and a public harm.27 According to Bentham, this public harm is composed of two elements: alarm and danger (IPML XII. 5-13). Danger is the actual likelihood of similar of­ fences occurring as a result of not taking available steps to punish the offence in question. Alarm consists in the pain and apprehen­ sion of suffering, the expectation of harm, experienced by the public at large. Both the primary mischief (original disutility) and the danger may be regarded as objective harms, in the sense that they are not dependent upon the beliefs or expectations of those who suffer them. But the secondary mischief—alarm—involves also an important subjective component which is expectationdependent. It is also worth keeping in mind here that the labels ‘primary’ and ‘secondary’ are not intended to suggest priority of utilitarian significance, but rather a logical priority. They are firstorder and second-order disutilities in the sense that the secondorder mischief of danger (or alarm) requires for its explication the notion of the first-order mischief. (Indeed, we shall see shortly that Bentham tends to give utilitarian priority to matters of secondorder harm, especially alarm.) We are now in a position to introduce the notion of security. To do so, consider first Bentham’s view of the relation between liberty and law.28 Following Hobbes, Bentham defines liberty as ‘neither more nor less than the absence of coercion’. The idea of liberty is ‘purely negative’. ‘When a person is neither constrained nor restrained with respect to an a c t. . . he is said with respect to that act to be free, to be at liberty’ (UC lxix. 44, author’s emphasis). It would be absurd to say that law produces or creates liberty, says Bentham, for all law can do is constrain or restrain actions of people 27 Hume also recognized both of these, see Enquiry I I 310-11. 28 For a detailed and very useful discussion see Long, Bentham on Liberty.

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Utilitarian Justice and the Tasks o f Law 171 and that infringes liberty. Liberty is an entirely natural condition. The only thing law can do is to secure some range of liberty for some collection of individuals by constraining other actions which may interfere with the liberty. [Liberty] is not anything produced by law. It exists without law and not by means of law. It is not producible at all by law, but in the case where its opposite coercion has been produced [by law] before. That which under the name of Liberty is so much magnified, as invaluable, the unrivalled work of Law, is not liberty, but security (UC lxix. 44). Bentham’s point here is that the rhetoric of liberty rests on a funda­ mental confusion: it preaches the incomparable value of liberty and praises law as its source as well as its guardian. But it is not liberty that we seek; it is security, for it is only security that can be the pro­ duct of law. The contrast between liberty and security reveals an important property of Bentham’s notion of security. Whereas liberty is an entirely objective notion, it is the state of actually being free from restriction and constraint, security involves an essentially subjective element. Liberty, even liberty of considerable extent, is possible without security, Bentham observes, but this is the liberty ‘possessed by Hottentots and Patagonians’, and it is much less valuable than the liberty secured by law—‘the possession which is the pride of Englishmen’. (UC lxix. 55). That is, unsecured liberty is of little value. What we need (for coherence in our own lives) is a reasonable basis for predicting our own individual futures, and this comes not from the mere possession, but from the sure knowledge, of that liberty. Security itself is a source of liberty, then, for without assurance of no interference in one’s activities, one may be inclined not to engage in them. (Insecurity has what American lawyers would call a ‘chilling effect’ on action.) Thus, contrary to Bentham’s original claim, law can be seen to produce liberty. Yes, he replies, but only indirectly and through the direct production of security. And this only reinforces the main point. The task of law is not to create liberty, but to maximize security. Thus, the notion of security embraces both first- and second-order concerns identified in IPML.29 Moreover, the previous paragraph 29 In his later writings, this thesis is expressed in the following terms. Security is the immediate subordinate end to the all-comprehensive end ofVgovernment: the greatest happiness of the greatest number. This end or goal generates two principles: the ‘positive-pain-prevention principle’ (applying to all matters of ‘objective’ harm

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172 Bentham’s Critique o f Common Law suggests that Bentham regards the subjective, expectation-dependent component of security to be of greater importance, in the con­ text of law, then the other, objective components. This sugges­ tion is reinforced by comments Bentham makes in IPML. For example, he believes that very few, if any, ‘self-regarding offences’ (i.e. actions the alleged disutility of which is suffered entirely by the agent) are justified on utilitarian grounds. His reason is that, even if such actions produce primary mischief (which he regards as un­ certain), they produce no secondary mischief, no alarm, and so no public harm (IPML XVI. 64, pp. 277-8). And, in consequence, they are not proper concerns of the law. The law, it seems, must restrict its focus to those concerns with a substantial public com­ ponent. Security: ‘the principal object o f the laws’ Thus far we have seen security, especially in its subjective aspects, at work both in property law and in criminal law protecting the integrity of the person. However, this concept plays an even more fundamental role in Bentham’s jurisprudence. For Bentham, security is the principal object of law in general and in every branch.30 The full implications of this assumption will be traced out in the remainder of this chapter and over the next several chapters. First, consider again the proposition that law can only produce security and not liberty, and that it does so through limiting other liberties (e.g. constraining and coercing others not to interfere with certain actions of mine). This poses a problem for a race that seeks as a sine qua non of all happiness the good of security. For law itself presents a serious danger and represents a serious source of insecurity. ‘It is not enough for me’, Bentham admits, ‘that I am at liberty as against you. It is not enough that I am secured from being constrained or restrained by you. My happiness may be as effec­ tively destroyed by my being constrained or restrained by the Law . . .’ (UC Ixix. 55). It looks as if security in one quarter can be pur­ chased only at the price of insecurity in another. But the fact that law is itself, in several different ways, a source of insecurity creates no genuine paradox in Bentham’s view. For what we can reason-

that may be the concern of the law), and the ‘disappointment-prevention principle’ (which takes over for *justice’ on Bentham’s early analysis). See Pannomial Fragments, Bowring iii, 211-12. 30 CC 11; Civil Code, Bowring i, 307, and generally 322-6; Pannomial Fragments, Bowring iii, 211-13; and Bowring ii, 269-70.

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Utilitarian Justice and the Tasks o f Law 173 ably hope for is not perfect security, but maximal security, and that may require that we sacrifice security at some points in order to gain a greater and compensating security at some other point. Thus, the insecurity-causing features of law produce not a refutation of this view of the relation between law and security (for, outside of law security is virtually impossible), but a new set of problems for his account of law. The most obvious source of such law-generated insecurity lies in the potential abuse of the power of coercion lodged in the govern­ ment, but there are other equally troubling sources. Security is a function not simply of the effectiveness of enforcement, but also of the clarity of the definition of permitted and prohibited actions. Insecurity may arise, then, (i) from the fact that it is not clear to what extent others may or may not interfere with one’s own liberty; (ii) from the fact that it is unclear to what extent one may interfere with the liberty of others without calling down the coercive force of the law upon one; (iii) from uncertainty about the scope and limits of the powers of officials to restrict one’s own liberty either in the particular case, or in general by means of some rule or law, and (iv) from the fact that it is unclear who is to count as an official authorized coercively to interfere with one and what is to count as an authentic general rule authorizing such interference. Thus, the problem of law-related or law-generated insecurity is not simply the ancient problem, Quis custodiet ipsos custodesl It is also the problem of determining who those guardians are, under what conditions they are authorized to exercise their power, and how that power is to be exercised. For the purpose of minimizing the several insecurities noticed above the device of coercion, now directed against officials rather than private persons, is surely in­ sufficient. W hat is needed is clear definition of the limits of liberty, and of the scope, limits, and authenticating conditions of official power. Thus, in addition to a device for enforcing constraints there must be a device for defining a framework of rights, powers, duties, responsibilities, and other relationships. Security is the focal concern of all these activities both ‘penal’ and ‘distributive’. The latter includes both civil law Cdroit distributif prive’—UC xcix. 34) and constitutional law (‘droit distributif politique’—UC xxxii. 130). Second, we have seen that, as Bentham’s thought developed, ‘security’ replaced ‘justice’ in his theoretical vocabulary, while the

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174 Bentham’s Critique o f Common Law concept of respect for established expectations retained its centrality. In his early discussion Bentham seemed to follow the standard view of Hume, Smith, and others in the mid-eighteenth century, identi­ fying justice with arrangements for the definition, stability, and protection of property. Adam Smith, for example, maintained that ‘The first and chief design of every system of government is to maintain justice; to prevent the members of society from en­ croaching on one another’s property, or seizing what is not their own. The design here is to give each one the secure and peaceable possession of his own property.’31 However, there are in Bentham’s identification of justice with respect for expectation utilities the seeds of a broader application. By the early 1780s, when he turns to matters of the civil code, he still writes that expectation is the basis of every ‘proprietary’ right, but property is broadened to encom­ pass all the proper objects of concern of the civil law.32 Under the law of property, ‘in its most extensive sense’, he maintains later, ‘may be included all objects of general desire’ (UC xiv. 366; see also 382). He criticizes Locke for limiting his view to property in its narrowest designation—viz. ‘matter of wealth’. Locke overlooks, ‘so many other valuable subject matters of possession, namely power, repu­ tation, condition in life . . . and exemption from pain in all the several shapes in which either body or mind is the seat of it . . . possessions giving security to which is among the functions and cares of justice’ (UC xiv. 392). Bentham anticipates the modern tendency to regard all rights secured to an individual by law as ‘a species of normative property belonging to the right holder .. .’33 Among the general classes of objects of security that Bentham recognizes are wealth, reputation, personal integrity (of mind and body), power, rank, and condition in life.34 In Bentham’s view, all forms of social interaction available to human beings except political relationships and institutions fall under the concept of property. The following picture of the social function of law emerges from this discussion. The principal object of law is to provide security 31 A Smith, Lectures on Jurisprudence, 6. 32 See Civil Code, Bov/ring i, 307-8. ‘Security depends on the care taken to save from disturbance the current of Expectations’ (UC xxxii. 2). A few years later Bentham wrote, ‘Keep the current of expectations inviolate: in these words are con­ tained the great landmark of the civil code . . (UC xxix. 6). 33 H. L. A. Hart, ‘Legal Rights’, in Essays on Bentham, 185. Bentham’s criticism of Locke is unfair, see Second Treatise, para. 123. 34 See, e.g., Pannomial Fragments, Bowring iii, 213, 225; CC 11; UC xiv. 392.

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Utilitarian Justice and the Tasks o f Law 175 for every citizen in the relations each bears to other citizens and to governmental authorities. On the public or constitutional level, this requires securing citizens against unwarranted encroachment from government. On the private level, it calls for securing expectations throughout the whole range of possible social relations. In both cases the task, as Bentham sees it, is twofold. First, rights, duties, and powers, must be defined and ‘distributed’, and practices and conventions established. The law must spin out the great web of social relationships, the basic framework of social interaction. This framework defines the base lines against which citizens may organize their lives. The law determines the social reality within which individual lives are lived out, and ends and purposes are pursued, on analogy with the determination of the physical environment by laws of physical nature. (The crucial disanalogy be­ tween them, of course, is that the former are artificial.) Second, this framework must be ‘given execution and effect’; that is, it must be applied and enforced. This second task comprises two sub-tasks: (i) that of fine-tuning and adjusting the general framework through adjudication, and (ii) maintaining it through enforcement. Bentham assigns this task of enforcement for both private and public (consti­ tutional) law to the penal law. The other tasks are assigned to ‘distri­ butive law’ (civil or constitutional). Furthermore, this assignment of tasks also suggests a kind of func­ tional priority: the primary social task of law is that of defining social and political relationships. Penal law, supplying motivation through threat of punishment, is seen as auxiliary. Thus, the fundamental task of law is not to bend citizens to the sovereign’s will through the coercive mechanisms at its disposal,35 but to define, settle and secure a social reality which makes possible the pursuit of individual aims, purposes, and plans of life. The law’s task is not only, or even primarily, regulative (though there are, of course, regulative tasks to perform), rather it is fundamentally constitutive. The sovereign lawgiver ‘is not the master of the dispositions of the human heart: he is only their interpreter and their servant. The goodness of his laws depends upon their conformity to the general expectation’ (Civil Code, Bowring i, 322). Civil v. penal: logical and functional distinctions But at this point we must take up directly an important chal­ lenge to this interpretation of assumptions underlying Bentham’s 35 L. J. Hume, Bentham and Bureaucracy, 241.,

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176 Bentham’s Critique o f Common Law jurisprudence. My interpretation, it might be objected, flies in the face of obvious and central doctrines of Bentham’s jurisprudence, in particular: (i) the logically basic role of the concepts of command and sovereignty in his definition of law36 and (ii) the centrality of the con­ cept of offence for any systematic, rationally structured code of laws.37That is, the criminal law is not plausibly regarded as merely an auxiliary in Bentham’s jurisprudence; it is rather, the model on which all law is conceived, the kind of law to which all other forms of law must be reduced. The theoretical priority given to the concept of command entails (i) that laws must be seen as essentially directive, or mandatory, such that all legal relations can be reduced to species of duties or the negation of duties; (ii) that laws must be seen as the im­ position of will by a superior upon an inferior which implies both that laws impose requirements upon action which effectively preempt individual judgment and that the laws themselves direct action to the ends and purposes of the lawgiver, not the subject; and (iii) that the notion of sanction is logically essential, the notion of an unsanctioned law is a kind of absurdity. It would be absurd, of course, to deny that the notion of command is central to Bentham’s definition of law. But there is good reason to question whether Bentham understands the notion in the (essentially Hobbesian) way assumed by this objection. I will consider this issue later (9.3). Nor do I wish to deny, more generally, that Bentham takes the notion of a mandatory norm as conceptually basic to his account of the notion of a law, and of a complete and integral system of laws. Nor shall I deny that Bentham assigns a certain priority to the penal law. Perhaps the strongest statement to this effect can be seen in his 36 The locus classicus of this view, of course, is OLG I and II. But the view is reiterated often throughout his writings. For example, UC Ixix. 70-5; IPML, Con­ cluding Note; FG I. 12 n. o; PannomialFragments, Bowring iii, 217, 223. 37 ‘Does not the idea of an offence govern everything in matters of law? ’ (General View, Bowring iii, 163). See also Pannomial Fragments, Bowring iii, 2i3; IPML XVI and Concluding Note, paras. 15-23; and Hume, Bentham and Bureaucracy, 242-3. At Bowring iii, 161 Bentham seems to express the same view; ‘If a legislator have given a complete description of all the acts which he is desirous should be regarded as offences, he will have formed a complete collection of the laws: he has referred everything to the penal code.’ But note that he continues: ‘If he have established all the obligations of the citizens, all the rights created by those obli­ gations, and the circumstances which shall cause those rights to begin and end, he will again have formed an entire code: but here he will have referred everything to the civil code.’

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Utilitarian Justice and the Tasks o f Law 111 General View o f a Complete Code o f Laws'. Penal laws . . . are those alone which follow in a regular train, and form a complete whole. What are called civil laws, are only detached fragments belonging in common also to the penal laws. . . . [Only from the matter of penal law is it] possible to construct the principal portion of the edifice of the laws. It is proper, therefore, to take the penal law, which alone embraces all, as the foundation of all the other divisions of the law.38 But the objection which draws attention to these doctrines is insuf­ ficiently sensitive to the subtleties of Bentham’s legal theory and to the way in which he weaves conceptual and normative elements together into a coherent whole. There is, in fact, a most compelling interpretation of the doctrines and claims to which this objection adverts which is entirely consistent with the view I have sketched above. The key to this interpretation lies in understanding the peculiar way Bentham draws the distinction between civil and penal law and his motivation for drawing the distinction in this way. Our story begins with the severe theoretical crisis in early 1780 which brought to a halt Bentham’s attempt to complete his Introduction to the Principles, 39 Abruptly he put off publication of the text (most of which was already printed) ‘when, in the investigation of some flaws [he] had discovered, he found himself unexpectedly entangled in an unsuspected corner of the metaphysical maze . . .’ from which he could not easily extricate himself (IPML, Preface, p. 1). The dif­ ficulties forced him to face questions which took him to what he saw as the logical and philosophical core of jurisprudence: Wherein consisted the identity and completeness of a law? What the distinction, and where the separation, between a penal and a civil law? What the distinction, and where the separation, between the penal and other branches of the law (IPML, Preface, p. 8, author’s emphasis). If Bentham’s objective in the writing of IPML was simply that of laying the conceptual and normative bases for the criminal law, this explanation of his refusal to publish his first seventeen chapters is puzzling and inadequate. Why should such questions of general jurisprudence, especially the abstract and ‘metaphysical’ question 38 Bowring iii, 163. See OLG XIX. 2: ‘But the civil branch of each law . . . is but the complement of the penal. . Also OLG App. E, p. 306. 39 For a detailed account of this crisis see the Editor’s Introduction to OLG, pp. xxxi-xxxv.

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178 Bentham’s Critique o f Common Law of the proper principles of individuation of laws, threaten to under­ mine the substantial work already done to put criminal justice on a firm utilitarian basis? And why should the distinction between penal and civil law be crucial for the success of that project? Bentham’s explanation makes better sense if his objective went beyond merely developing a defensible theory of criminal justice. Indeed, this was the case, for he wished his work to ‘serve for an in­ troduction to the principles of legislation in general as well as to the penal branch in particular’ (OLG, App. E, pp. 305-6, emphasis added). The crisis which forced Bentham to explore the logical rela­ tions between civil and penal laws, and the principles by which laws are individuated and systematically related, was brought on by his increasing awareness that ‘criminal’ or ‘penal’ elements can be found in each traditional branch of law, including the civil and con­ stitutional; and that the simple model of the penal law with which he had been working did not easily accommodate the distribu­ tional and definitional tasks of civil law which he came to see were of considerable importance.40 At the end of his investigation in his Introduction to the Prin­ ciples he turned his attention to the question of the ‘limits of the penal branch of jurisprudence’ (IPML XVII). First, he considered the problems of marking the boundaries between law and private ethics. Then he turned to the task of distinguishing various branches of law. This went smoothly until he tried to distinguish penal from civil jurisprudence (IPML XVII. 29). How are the con­ cerns of the latter branch related to the penal branch? he asked. How is the penal ‘code’ related to the civil ‘code’? Can the concerns of property law, contract law, family law, and the law of master and servant—which in effect he had addressed earlier under the aspect of ‘justice’ and respect for expectations—be adequately accommo­ dated within a model of law which takes the concept of offences as the central organizing concept (see IPML XVI)? He had already, before beginning work on the Introduction to the Principles, recognized to some extent the quite different tasks of both ‘private’ and constitutional law (UC lxix. 148). But it was not until later that he realized the full theoretical implications of recognizing these as important tasks of law. This forced a crisis because Bentham feared, for a time at least, that the entire theoretical structure he had erected would have to be dismantled and reconstructed on 40 See Long, Bentham on Liberty, ch. 9.

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Utilitarian Justice and the Tasks o f Law 179 some other basis. Douglas Long observes that ‘One of the most important themes in O f Laws in General is the development of Ben­ tham ’s awareness that this additional function of law, which defines the civil law as distinct from the penal, also renders that distinction fundamental to the structure of a complete code of laws . . .’.41 (This is correct, with only one minor qualification: from IPML XVII. 29 one can infer that probably Bentham was already aware of the importance of this functional difference before he launched full force into the etudes which now make up O f Laws in General.)42 One possible approach to the problem Bentham uncovered here would have been to recognize a second distinct logical type of law or norm alongside that of the mandatory norm modelled upon com­ mands. This, of course, is the familiar tack advocated by Hart in his criticism of Austin and Bentham.43 But Bentham did not elect this approach. He was anxious to develop a simple, unified, and conceptually lean account of the logical structure of laws, and so refused to multiply logical types of law when leaner alternatives appeared open to him. His philosophical strategy, brilliant even if ultimately unsuccess­ ful, was twofold. First, he modified his basic model of a legal norm in two respects. 1. He allowed not only for commands, and so mandatory norms, but also for permissions. This called for the construction of a ‘logic of the will’ (deontic logic) which carefully and brilliantly mapped out the logical relations among most of the important deontic notions needed in his jurisprudence. The result of these researches was a modified account of law—an ‘imperatival’ rather than a simple ‘command’ theory44—which made room for a second type of law without adding to his original conceptual base anything more than the logical operator, negation. A permission was defined as the negation of a command. With this notion, Bentham was able to construct, to his satisfaction, an analysis of legal powers as specially targeted, exception-creating permissions within the scope 41 Ibid. 157. 42 The editors of OLG maintain that IPML XVII. 29 could not have been written later than Nov. 1780 (OLG, p. xxxii). The manuscripts for OLG (UC lxxxiii(a) and (b)) were written between 1780 and 1782. 43 H. L. A. Hart, Concept of Law, ch. Ill and 238-40 and Hart, ‘Legal Powers’, in, Essays on Bentham. 44 See generally, D. Lyons, In the Interest of the Governed, Pt. II.

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180 Bentham’s Critique o f Common Law of a general mandatory rule.45 Bentham argued vigorously that with this conceptual equipment a large part of what is ‘distributed’ by both civil and constitutional law can be analysed as parts of laws. No new kind of law need be recognized. 2. But this technique alone did not find a place for all those laws which comprise civil law as ordinarily understood. In particular, it did not yet account for laws which set out to delineate the condi­ tions under which persons qualify for, acquire, lose, or transfer the duties, rights, powers, and privileges of law. That is, Bentham needed to explain not only what it is to have legal ownership, for example, but also how one acquires title, and how the laws defining such matters fit into his conceptual scheme. These ‘expository’ laws were accommodated within the above model as merely that part of one (or more) general mandatory laws which defines (and qualifies) the offence (that is, the act which the mandatory norm prohibits). Thus, the law of contracts regarding the rendering of private ser­ vices can be understood in the following way. There is a general rule prohibiting any individual from obliging another to render him any service. To this general rule there is the exception: that one may do so, if the person obliged to render service consents or contracts to do so. This opens the door, says Bentham, to an enormous body of ‘circumstantiative’ material concerning inter alia ‘W hat con­ tracts the law adopts and holds for good: what construction it puts upon them: what it looks upon as performance of them: which stipulations it looks upon as implied in such as are expressed: what others it imposes on him in consideration of a change of interest brought about by subsequent events’, and so on (OLG, App. G [Corrigenda] ). Thus, Bentham’s researches into the logic of the will and into the notion of a complete and integral law led him to the conclusion that the distinction between penal and civil law is not best represented as a distinction between two irreducibly distinct kinds of law, but as a distinction between two different parts of the same laws.46 Every complete law has a penal element—a mandatory or imperative 45 See, for example, OLG XVI. 10-13 generally Hart, ‘Legal Powers’. 46 It is a little surprising that Bentham, after allegedly wrestling long and hard with this problem, hit on a solution which is strikingly similar to Blackstone’s. Blackstone divides his Commentaries, and so the subject matter of the common law, into rights (private and public) and wrongs (also private and public), insisting, however, that every complete legal rule includes both the definition of a right and the specification of a wrong ( = offence plus sanction or remedy). See 3 Comm. 2 and 119.

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Utilitarian Justice and the Tasks o f Law 181 part, plus a ‘comminative’ or sanction-threatening part—and a civil element—which embraces all its ‘expository’, ‘qualificative’, and permission-creating matter (OLG XVI). This reduced all law to the model of a much expanded and quali­ fied command. But the second essential part of Bentham’s strategy was to distinguish sharply between the logical structure of laws and their social functions. Thus, for Bentham, the labels ‘civil’ and ‘penal’ do not designate different kinds of laws, but they do em­ brace different essential tasks performed by the law. The civil part of the law performs the definitional, distributional, and ultimately constitutive tasks; the penal part performs the regulative task. ‘A civil law is that which establishes a right; a penal law is that which, in consequence of the establishment of a right by the civil law, directs the punishment in a certain manner of him who violates it.’47 Between the two parts of the law (the two ‘codes’) there is ‘a most intimate connection’; they interpenetrate each other at all points. Penal law would be incomplete, indeed incomprehensible, without the civil aspect; the civil code, as a matter of fact, would be virtually impotent without the penal.48 Despite this intimacy, Bentham frequently speaks of one or the other as if it enjoys some kind of priority. As we have already noted, Bentham sometimes assigns priority to the penal law. J. Raz, ex­ pressing a common criticism of Bentham and positivist legal theory generally, charges that Bentham, ‘by concentrating on the criminal law, tended to emphasize the primary [social] function of pro­ hibiting undesirable behaviour and to overlook the other functions’ which law may serve.49 Raz cites the following passage from Ben­ tham ’s General View to support his charge: . . . the penal code ought to precede the civil code, and the constitutional code, &c. In the first, the legislator exhibits himself to every individual; he permits, he commands, he prohibits; he traces for every one the rules of his conduct; he uses the language of a father and a master. In the other codes, he has less to do with commandments than with regulations and explanations, 47 General View, Bowring iii, 160. See also CC 8, 11-12, 23. 48 Long, Bentham on Liberty, 151, following UC xcvi. 102-3. But he could also have cited CC 12: ‘Of the matter of the penal code, the designation made is not com­ plete until a designation has been made of all the sorts of acts which, by it, are dealt with in the character of offences. Of the matter of the civil code, the efficiency would be throughout as nothing, were not the several acts by which the distributions made by it are violated, dealt with on the footing of offences.’ 49 J. Raz, ‘On the Functions of Law’, 303.

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182 Bentham’s Critique o f Common Law which do not so clearly address themselves to everybody, and which are not equally interesting to those concerned . . . (Bowring iii, 161). But this passage gives no support to Raz’s thesis. Bentham assigns priority to the penal code here, but it is of priority in the arrange­ ment of codes for public promulagation only that he is speaking in this passage. It comes in partial answer to the question, ‘In what order should the different parts which compose a complete code of legislation be arranged?’ (Bowring iii, 161). Bentham is not at all concerned with any functional priority here. There are other passages, one especially in General View which I quoted earlier (at note 38) which seems to give stronger support to Raz’s thesis. But all the passages cited in note 38 can be seen to express the view that penal law has a kind of logical priority. ‘The matter of the civil code is in its form little else but a sort of exposi­ tion of the terms employed in the commands delivered by the penal code’ (CC 12, emphasis added). ‘The [civil law] does not include the [penal], but the second implicitly includes the first. Say to the judges, “ You shall punish thieves”, and a prohibition of stealing is clearly intimated. In this point of view, the penal code would be sufficient for all purposes’ (Bowring iii, 160).50 But ‘the point of view’ Bentham has in mind here is the logical one; the implicit analogy is to an analytic truth the consequent of which is contained implicitly in the antecedent. ‘Criminal Jurisprudence concerning possessions supposes a distribution already made of them by Civil Jurisprudence’ (UC xcvi. 102-3). But nothing follows from this regarding the relative priority of social functions. Indeed, when he explicitly considers the social functions of the law, Bentham claims priority for the civil code. With regard to the generic end of security, ‘the principal and leading operation’ which the law must take up is that of defining the class of offences, and to that end developing all the ‘expository matter’ necessary for the civil code (CC 11-12). It is by this means only that ‘the law . . . afford[s] the means of knowing what is each man’s property’ (CC 12). Bentham even suggests that, were it not for the temptations to which men are in general subject, this definition of relations might be sufficient (ibid.). But because of the inescapable need for enforce­ ment of the framework of legal relations, obligations, rights, and

50 Actually on the next page Bentham suggests that a complete statement of the law could be made from the vantage point of the civil law. See the passage quoted above, n. 37.

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Bentham’s Critique o f Common Law 183 powers defined by distributional law, penal laws must always be appended. The penal law is a kind of physician to the body politic (CC 23). It cannot produce health in the body, but it can protect it, and through preventive medicine ward off some of the most serious maladies to which it may be subject. The task of penal law is to ‘give execution and effect’ to the civil or constitutional law.51 With relation to the civil code . . . the matter of the penal code is but a means. By the arrangements contained in the civil code, so many directive rules are furnished; what the penal code does, is but to furnish sanctions, by which provision is made for the observance of those directive rules (CC 12). Far from overlooking the facilitating and arranging—indeed, the constituting—functions which law may serve, Bentham gives them pride of place. Thus, we may conclude that, for Bentham, law is not simply an instrument through which power is wielded and behaviour regulated, it is, more fundamentally, a principle of order by which social reality is constituted. 5.4 EXPECTATIONS AND THE GENESIS OF LAW Law is the most splendid triumph of humanity over itself.

Bentham, Civil Code.

We may conclude from the above discussion that, despite Bentham’s preoccupation with reform of the criminal law in his early, for­ mative years, his jurisprudence (even at that time) had a broader focus. Security, to be sure, was for Bentham the primary aim of law, but ‘security’ encompassed both the protection of individuals from harm, and, in the first instance, the definition and construc­ tion of those social roles and relations which make social life pos­ sible. This latter function, we have seen, shapes and directs the protective, regulative and enforcement activities of the law. Over the course of the next several chapters, and especially in Chapter 8 ,1 will show that this assumption about the primary tasks of law underlies not only his view of what constitutes good law (from a utilitarian point of view), but also his theory of the nature

51 CC 23. This language is standardly used by Bentham to express functional subordination. See especially his discussion of the functional relationship between procedural and substantive law, UC xcvi. 74-5 and PJPt Bowring ii, 6, discussed below in 10.1.

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184 Bentham’s Critique o f Common Law o f law itself. In this concluding section I shall begin the argument for this conclusion by considering Bentham’s brief account of what Hume would call ‘the origins’ of law. (This account parallels in interesting ways Hume’s account of the origins of justice, but also in equally interesting ways parts company with it.) This discussion, I believe, will deepen our understanding of Bentham’s assumptions about the relationships that obtain among security, expectations, and the nature of law. Subsequent chapters will discuss in detail arguments of Bentham which rest implicitly or explicitly on these assumptions. In the early chapters of his Civil Code we have fragments of a ‘logical’ or ‘conjectural history’ of law.52 In this account the rise of the institution of property plays a central role. One is immediately reminded of Hume’s discussion. And indeed, Bentham’s discussion is almost unintelligible, and surely hopelessly incomplete, without background setting and argument supplied by Hume’s much more fully developed account. Bentham in his discussion makes explicit what we found implicit in Hume’s theory of justice. For Bentham, property is essentially a legal notion; property and law are insepar­ able. ‘Property and law are born and die together. Before the laws, there was no property: take away the laws, all property ceases’ (Civil Code, Bowring i, 309). The notion of property is a fiction, says Bentham.53 There can be no such thing as ‘natural property’. Property is an artificial, conventional relation between a person, a thing, and other persons. Going beyond this Humean claim Bentham insists that ‘property is entirely the creature of law’ (Bowring i, 308). Thus, the origins of property just are the origins of law. With ‘the slightest agreement among . . . savages reciprocally to respect each other’s booty’ history records ‘the introduction of a principle, to which you can only give the name of law’ (Bowring i, 308-9). But, we must not import more of Hume’s theory into Bentham’s account than is warranted. For Hume the origins of law can be traced to the origins of the institution of property. Although prop­ erty is the foundation for all other social relations (to determine the conventions regarding property is to determine, ultimately, all the 52 Bentham also makes use of this device for analysing language, exhibiting thereby its underlying aims and the relations among its parts. See UC cii. 269-81 and Essay on Language, Bowring viii, esp. 322-3. 53 Bowring i, 308. Compare Hume, Treatise 515, 527.

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Utilitarian Justice and the Tasks o f Law 185 basic social relations), nevertheless, it is clear that Hume starts out with the problem of the distribution and security of (in Bentham’s jargon) ‘matters of wealth’. However, Bentham insists at the outset on a wider notion of property which embraces all basic social rela­ tions.54 Thus, he addresses directly the question of the origins of the ‘social constitution’, whereas Hume addresses it indirectly. Hume’s account of the ‘social constitution’ depends on empirical assumptions about the centrality of control of ‘matters of wealth’ which Bentham does not need to make. This allows Bentham’s account to be more general than Hume’s. Nevertheless, the traditional notion of property does exert its influence on Bentham’s account. For his analysis of the variety of social relations and conditions about which private law concerns itself is modelled directly upon that notion. The legal relations defined by the civil part of law are essentially proprietary in character. Thus, the notion of a domestic state or condition (‘con­ dition in life’: for example, master, parent, or wife) is that of ‘an ideal base about which are ranged rights and duties, and sometimes incapacities’ which are linked to (put in the possession of) an in­ dividual by a certain ‘investitive event with respect to the possession of that state’.55 Because of the analytical importance of the tradi­ tional notion of property for Bentham’s account, and because material-economic conditions figure prominently in his discussion of the hypothetical ‘pre-legal’ state, Bentham develops his account primarily with a focus on material property. Like Hume, Bentham begins his discussion with a description of the social and psychological conditions, and the basic human needs associated with them, to which law responds. For this Bentham makes use of the familiar heuristic device of a hypothetical ‘savage’ or ‘pre-legal’ condition. Without security (‘the distinctive mark of civilization’), the human condition is one of extreme scarcity and a constant, unrelenting and inevitably losing struggle against nature for mere survival (Bowring i, 307). This has direct psychological consequences, in Bentham’s view. It ‘destroys . . . the gentlest sentiments of nature’, putting human beings in direct and deadly 54 See above, p. 174. At Bowring i, 308 Bentham makes clear that the potential range of the principle of security to which law must be directed is not restricted to security of material possession, but rather ‘must be prolonged to one throughout the whole vista that one’s imagination can measure’. 55 General View, Bowring iii, 192; see also UC xxxiii, 60.

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186 Bentham’s Critique o f Common Law conflict.56 ‘Like the most ferocious beasts, men pursue men, that they may feed on one another’ (ibid.). The material basis of sym­ pathy, goodwill, and co-operation does not exist, and each person is thrown into a cruel struggle with both nature and other human beings. At the same time natural limitations of human reason and sentiment exacerbate these conditions. The natural aversion to labour and an irrational preference for the present (‘lack of fore­ sight’)57 are characteristic of human beings in this uncivilized con­ dition. As a result, there is little incentive to invest painful labour in the present in order to reap greater benefits in the future, both because of one’s own natural inertia and because there is no assurance that others will not take advantage of one’s own fore­ sight and self-sacrifice. Thus, severe natural conditions and basic human needs make join­ ing for survival essential, but those conditions, and the natural limit­ ations of sentiment and reason make such co-operative combination difficult. Security of possession will go a long way towards solving this problem, Bentham maintains, for it will make co-operation pos­ sible, and, with forces united, the niggardly hand of nature can be forced to open. Also it will eliminate those material conditions which cause destructive competition and undermine the ‘social’ sentiments. Furthermore, property overcomes the aversion to labour, by assuring one’s enjoyment of its fruits, and thereby making attractive the prospect of eventually profitable labour (Bowring i, 307-8). But, Bentham observes, recognition of the utility of stable and secure possession is not enough. Natural feeling alone cannot pro­ duce such security. The armies of the idle and impatient will always threaten to take advantage of those inclined, out of natural feel­ ings, to labour for their own good or to respect the fruits of the labours of others. The only hope is to secure possession and stability artificially at the hand of law. ‘Law alone has been able to create a fixed and durable possession which deserves the name of Property. The law alone could accustom men to submit to the yoke of fore­ sight . . . it alone could encourage them in labour’ (Bowring i, 307). Thus, law, the product of human will and invention, ‘is the most splendid triumph of humanity over itself’ (Bowring i, 309). 56 On Bentham’s view of the effect of material conditions on human sentiments see below, 11.3. 57 Bowring i, 307, 309.

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Utilitarian Justice and the Tasks o f Law 187 To see how, in Bentham’s view, the law accomplishes this we need to introduce the notion of expectations, which, Bentham com­ plains, jurists have almost entirely ignored but which is essential to jurisprudence.58 The idea of property just is the idea of established expectations, says Bentham (Bowring i, 308). This expectation con­ sists in the ‘persuasion of power to derive certain advantages’ from some object. But this expectation is entirely the work of the law: ‘It is the law alone which allows me to forget my natural weakness: it is from the law alone that I can enclose a field and give myself to its cultivation, in the distant hope of the harvest’ (ibid.). Of course, the law does not make me any stronger, but what it does is assure me that my efforts now can be expected to pay off fo r me in the future. The expectation does not regard my own efforts or nature, but the actions of other people around me. But do not expectations with regard to one’s physical posses­ sions already exist independent of the law; could they not exist in the ‘savage’, natural state? Yes they may, and typically will, exist in such a state, Bentham replies, but they will be exceedingly weak: ‘A feeble and momentary expectation only results from time to time, from purely physical circumstances.’ But law gives birth to new and substantial bonds of expectation. The law amplifies feeble natural expectations (Bowring i, 309; UC xxix. 8). Bentham’s argument here is exceedingly sketchy. There is nothing like the carefully developed analytical structure one finds in Hume’s Treatise. We might ask, for example, why do expec­ tations play such an important role here? Why doesn’t the lawgiver seek to distribute property so as to maximize utility? How exactly does law fit in? How, in particular, does it amplify expectations? There is, however, more than a faint suggestion of the Humean framework in the above discussion. If we were to superimpose Bentham’s sketchy argument here on the rich background of Hume’s account, much that is otherwise entirely mysterious is made reasonably clear. Because Bentham’s conception of law is modelled on explicitly legislated rules, rather than custom, law in­ evitably enters the picture as a deus ex machina. Nevertheless, its

58 ‘The views of jurists must have been extremely confused, since they have paid no particular attention to a sentiment so fundamental in human life: the word expectation is scarcely to be found in their vocabulary; and argument can scarcely be found in their works, founded upon this principle. They have followed it, without doubt, in many instances, but it has been from instinct, and not from reason’ {Bowring i, 308).

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188 Bentham’s Critique o f Common Law role and nature are made clearer by viewing it against the Humean background. Bentham gives a rudimentary description of a co-ordination problem (or at least an assurance problem) which arises from con­ ditions similar to those set out by Hume. In particular, parties in the ‘savage’ state come to recognize the need ‘reciprocally to respect each others’ booty’. And, ‘the slightest agreement’ yields an arrangement which is at least law-like, albeit unstable. What is more, it is clear from his description of the situation of the parties, and discussion later, that the most important thing, from the point of view of each party, is that there be some agreement, some arrangement or other, for respect of possession. It is less impor­ tant, especially at this stage, what that arrangement looses like. Thus, the first and most important argument for the rules of actual possession and prescription is that they are simple, ‘natural’, and most likely to focus attention (Bowring i, 327). Bentham observes that ‘There is nothing more diversified than the condition of pro­ perty in America, England, Hungary, and Russia: in the first coun­ try the cultivator is proprietor; in the second he is a farmer; in the third he is attached to the soil; in the fourth he is a slave’ (Bowring i, 311). Nevertheless, ‘the supreme principle of security’, which governs ‘original distribution’ as well as determination of title within an established system of property (Bowring v, 266), ‘directs the preservation of all these distributions, how different soever their natures, and though they do not produce the same amount of happiness’ (Bowring i, 311). The only apparent way to reconcile this with Bentham’s utilitarianism is to assume that Bentham has in mind a situation in all essential respects like the co-ordination prob­ lem Hume sets out in his discussion. Bentham suggests two possible ways in which the law secures possession and expectations. First, it creates expectations in the absence of any already existing conventions or agreements (Bowring i, 323), by creating a set of clear, accessible, public rules on which all can focus. Second, where expectations already exist—whether ‘natural’ or the product of some earlier agreement, custom, or usage (Bowring i, 323)—the law underwrites them by making them more public, and clarifying, codifying, and enforcing them. In this way the law amplifies expectations, transforming ‘that which was only a thread in a state of nature’ into ‘a cable, so to speak, in a state of society’ (Bowringi, 309). The task of law, especially the ‘civil’ partof

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Utilitarian Justice and the Tasks o f Law 189 law, then, is to ‘make liquid’ the rights and powers and possessions of individuals, which outside of law would be entirely inchoate (OLG XVIII. 14)—to make real, tangible, accessible, and so useful, what is otherwise unreal, indeterminate, useless. We may say, then that for Bentham, as for Hume, the primary task of law is that of co-ordinating social interaction at the most basic level of social life, thereby making social life possible. This expli­ cates, in part, the Benthamite doctrine that security is the principal object of the law. It also explains why Bentham assigned functional priority to the ‘civil’ dimension of law. Despite the parallels between Hume and Bentham on the ‘origins’ of law, there are two important respects in which Bentham’s account differs from Hume’s. First, although both regard law as the artificial product of human invention, Hume insisted upon the essentially customary foundations of law. For Hume the conventions of law develop informally as the result of the actions and interaction of many individuals over time. Legislation, on Hume’s view, is a late comer on the legal scene. Bentham in contrast was never59inclined to conceive of law in any way except as the expression of will of a sovereign lawgiver. He seems to acknowledge the existence of custom and usage in the Civil Code (Bowring i, 323) and he discusses custom extensively in the Comment (see below, Chapter 7), but custom never counts as law unless it is ‘legalized’, i.e. recognized and ‘adopted’ by the lawgiver. Consequently, it is in a more restricted sense that Bentham’s discussion here is an account of the ‘origins’ of law. There is nothing in Bentham’s account corresponding to the historical dimension of Hume’s account. Bentham’s is entirely ‘analytical’ or ‘hypothetical’ (Bentham would say ‘conjectural’ or ‘logical’). The device of the primitive state is entirely heuristic, designed to display clearly the range of human individual and social needs to which the artifice of law is designed to respond. Second, Bentham, unlike Hume, held that once a stable frame­ work of social relations is established and expectations fixed upon it (and upon the processes by which it is defined), it is possible to alter, reform, and revise it better to meet the demands of maximal general welfare (Bowring i, 323-6). The only condition is that expectations must never be seriously shaken (Bowring i, 309, 322). The expect­ ations, and the scheme of rules and practices which focus them, are

59 The only place in Bentham’s entire corpus that I can recall a contrary suggestion is the passage from Bowring i, 308-9, quoted above, p. 184.

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190 Bentham’s Critique o f Common Law not as fragile in Bentham’s view as they are in Hume’s. And the law itself is capable of shaping them (and not just articulating and codify­ ing the rules and practices already in existence). Consequently, Bentham was willing to argue, for example, that it is possible to revise and reform the system of property, while giving due respect to estab­ lished expectations, so as to achieve a more nearly equal distribution of wealth (Bowring i, 312-16). Equality must never be sought at the expense of security, he insists (Bowring i, 303), but it may—indeed, for good utilitarian reasons it must— be sought to the extent possible within a stable and secure framework of law. The implications of this account of the ‘origins’ or foundations of law must still be drawn out. With this general discussion of some of the central notions of Bentham’s jurisprudence now completed we can take up this task. I will begin the story with an account of Bentham’s lifelong struggle with the theory and practice of his native Common Law system.

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fundamental difference between the interpretation offered in this work, and that of its most important rival concerns the role of justice within Bentham’s moral theory. In his book Bentham and the Common Law Tradition, G. J. Postema writes: The

No moral concept suffers more at Bentham’s hand than the concept of justice. There is no sustained, mature analysis of this notion to match that of Mill’s discussion in Utilitarianism. Seldom willing to take the notion seriously, he was most inclined to respond to talk of justice in an entirely polemical fashion, dismissing it summarily as, at best, innocently vague and potentially obscurantist, but more often a mask for social antipathy and malevolence.1

In this passage Postema draws a contrast in the treatment of the concept of justice between Bentham and J. S. Mill, based on recent revisionist interpretations of Mill’s theory of justice.2 While Lyons has argued that for Mill justice and moral obligation are analytically connected to the liability of sanctions, and consequently only indirectly connected to considerations of utility, Postema argues that in Bentham’s case the concept of justice simply refers to a particular species of utility. He also maintains that, for Bentham, the popular contrast between justice and utility in so far as it has any justification refers to the utility of adhering to fixed general rules. These rules give rise to expectation utilities, and where these rules are sufficiently important the requirement of obedience can conceivably outweigh any particular direct appeal to the principle of utility. However, Postema makes clear that despite their potential importance, expectation utilities are, nevertheless, only one species of utilities and do not involve any principled limitation on the direct application of the principle of utility.3 Clearly Postema’s overall interpretation of the role of justice within Bentham’s utilitarian science of legislation differs from that presented in this book, where it is argued that Bentham developed and employed a theory of distributive justice in his Civil Law writings. Despite posing this contrast between Mill and Bentham on justice, it is interesting that Postema also identifies a number of passages where Bentham clearly ties justice to justified rules in the same way as Mill’s rule- or sanction-based theory.4 In his Commonplace book Bentham wrote: ‘Justice is beneficence: in the cases 1 2 3 4

Postema, Bentham and the Common Law Tradition (Oxford,. 1986), 148-9. See D. Lyons, ‘Mill’s Theory of Morality’, Nous, 10 (1976), 101-20. Postema, Bentham and the Common Law Tradition, p. 154. Ibid., pp. 156-8.

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72 Security, Expectation3 and Liberty in which the non-performance of it is considered as punished or punishable by the force of one or other of the several sanctions: principally the political, including the legal, and the moral or popular.’5 Here Bentham explicitly connects justice with those aspects of benevolence which can be required as duties and for which sanctions can be imposed for non-compliance. In further passages from an ‘Article on Utilitarianism’,6 Bentham comes even closer to the Millian version, analysing justice in the following way:

In and by the employment given to the word ‘justice’, two assumptions are implicitly contained: assumption 1 . that by competent authority the general rule of action has been laid down: assumption 2 . that whatsoever be meant by rectitude and propriety, this rule is itself, reference had to the situation in which it is thus placed, a right and proper one.

and later Bentham continues:

If then so it be that the rule thus exhibited in the character of a maxim or dictate of justice is the same which on this same occasion would be found to be a dictate, or say precept, emanating from the greatest happiness principle, then thus far are the notions of the author of the rule in a state of conformity and due subordination with reference to the greatest happiness principle: and the dictate, or say precept, thus deduced on the greatest happiness principle may be said to be a dictate of justice in consideration of the determinateness of the form of words by which it stands expressed.

However, having located these passages, Postema argues that they do not' affect his overall act-utilitarian interpretation of Bentham’s position, because such an analysis played no role in his legal or political theory, and therefore it was not an argument that Bentham thought very important. In one sense Postema is quite right in his claim, for there is no sustained treatment of justice similar to that of chapter 5 of Mill’s Utilitarianism, nevertheless, he is wrong in his assertion that no such analysis was employed by Bentham in his writings. It can be argued that Bentham did address the problem of distributive justice in terms of such an analysis in his Civil or Distributive Law writings, where he was concerned with what configuration of rights a utilitarian legislator would want to distribute in the interests of maximizing social welfare. In so far as there has been any scholarly attention given to Bentham’s Civil Law writings, this has tended to concentrate on the analysis of Civil * Law found in O f Laws in General.7 However, what is of more interest from the perspective of defending the claim that Bentham had a theory of distributive justice are those principles of Civil Law which would underlie Bowring, x. 511. Deontology (CW), p. 308. For the significance of these passages in BentHam’s theory see F. Rosen, ‘Utilitarianism and Justice: A Note on Bentham and Godwin5, Enlightenment and Dissent, 4 (1985), 47-52. 7 OLG (CW), pp. 209-19 and 247-50. 5 6

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Security, Expectation, and Liberty 73 the distribution of rights and titles which are presupposed in the specification of a utilitarian account of harms or offences. The character of these principles is discussed in a series of manuscripts written at a number of times throughout Bentham’s career.8 None of the manuscripts or the works constructed from them9 contains a sustained treatment of the principles of distributive justice within Bentham’s work, but they do provide enough material to indicate the character of those principles. At the beginning of the ‘Principles of the Civil Code’, Bentham wrote:

In his distribution of rights and obligations, the legislator, we have already said, should have for his object the happiness of the body politic. In inquiring more particularly in what this happiness consists, we find four subordinate objects— Subsistence. Abundance. Equality. Security. . . . The more perfect the enjoyment of all these particulars, the greater the sum of social happiness, and especially of that happiness which depends upon the laws.10

These four objects of legislative action remain Bentham’s principle concern throughout his Civil Law writings.11 In this way the Civil Law manuscripts provide an account of the basic sources of utility which concern the legislator in constructing a utilitarian principle of right. The next four chapters, which concentrate on the substance of Bentham’s theory of distributive justice, will explore the conditions for the principle of right which underlies a utilitarian system of obligations. The discussion in these chapters is based on material from Bentham’s Civil Law writings. The aim of this portion of the argument is to reconstruct the form of Bentham’s theory of distributive justice from the fragmentary character of these diverse »writings and to reconcile this with the interpretation of Bentham’s utilitarian theory given in the previous chapter. The rest of this chapter will concentrate on the importance of security within the theory of distributive justice, and will argue that security is the most important source of utility because it is a necessary condition of personal continuity and of interest formation. The next chapter will be concerned with the other main source of utility, namely subsistence. Subsistence refers to the primary material condition of individual well-being. The next chapter will also discuss the role of abundance and equality as objects of legislative action and show how these are modifications of security and subsistence. The later Civil Law writings consider the nature of the principles that

8 UC c, 96-186, UC lxi, 9-10, 19-21, 26-66, 83-97, and BL. Add. MS 33550, fos. 48—144. 9 See ‘Pannomial Fragments’, Bowring, iii. 21—30, BL Add. MS 33550, fos. 48—144. 10 Bowring, i. 302. 11 See UC xxx, 26-32 and 41-59, UC xxxi, 260—85, UC xxxvii, 18-23,50-68 and BL Add. MS 33550, fos. 48-144.

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74 Security, Expectation, and Liberty determine the distribution of rights and obligations which in turn provide the formal conditions of security and subsistence. Therefore, the next two chapters will be concerned with the ‘security-providing principle’ and the ‘disappointment-preventing principle’. The first principle identifies the realm in which security is to be maintained and the distribution of rights and obligation which constitute that end. The second principle is concerned with reconciling the principle of right based on the ‘security-providing principle’ with the pattern of expectations which already obtains within any given social order and the utilities that are derived from it. Together they determine both the formal structure and the substantive character of Bentham’s theory of distributive justice. This second part of the argument provides the substance of Bentham’s answer to the form of anti-utilitarian argument advanced by modern critics such as Rawls. The argument of the next four chapters assumes that Bentham did not have a direct act-utilitarian theory of moral obligation and provides the substantive justification for the interpretation of Bentham’s utilitarianism advanced in the last section of the previous chapter. However, the discussion in this section also provides the grounds or defending Bentham as a liberal. It will be argued that given Bentham’s characterization of human nature as purposive, thejconfiguration of rights and titles prescribed by the principle of right will be one that maximizes social well-being by extending to each agent as wide a sphere of personal inviolability as possible. This will provide the secured framework within which the agent can form and pursue his interest without interference from others. Because the utilitarian system of obligation provides the framework within which interests are formed the legislator can maximize social well-being by providing the conditions of interest formation and realization? The concluding chapter will concentrate on how far Bentham incorporated a liberal principle of right within his theory of justice, and the role of equality as a component of that distributive principle. The first task involved in reconstructing Bentham’s theory of distributive justice from the fragmentary Civil Law manuscripts is to explain why security is the most important of the objects of legislative policy and the primary source of utility. I

Critical discussion of Bentham’s utilitarianism has traditionally emphasized his inability to derive a distributive principle from the principle of utility.12 12 See P. Burne, ‘Bentham and the Utilitarian Principle’, Mind, 58 (1949), 367-8, A. Goldworth, ‘The Meaning of Bentham’s Greatest Happiness Principle’, Journal of the History of Philosophy, 7 (1969), 315-21, and L. Werner, ‘A Note about Bentham on Equality and about the Greatest Happiness Principle’, Journal of the History of Philosophy, 11 (1973), 237-51.

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Security9 Expectation, and Liberty 75 Most commentators have concentrated on whether the principle of utility is a distributive or an aggregative principle. In their respective discussions of utility both Goldworth13 and Werner14 argue that Bentham’s adoption of different versions of the principle does not affect the argument that he had an aggregative theory. Werner argues that although Bentham appears to have adopted two different formulations of the principle in his career, his subsequent abandonment of the dual-standard interpretation, ‘the greatest happiness of the greatest number’, 15 only confirms that the principle of utility was an aggregative principle.16 However, given that the principle of utility is the criterion of moral judgement, the discussion of whether it contains a distributive principle is irrelevant. Apart from the historical interest of Bentham’s final formulation of the principle, the question of whether he had a dual-standard or a single-standard principle is not . significant for a discussion of the principle of utility as an action-guiding principle. The principle as the criterion of moral judgement determines the respective value of various objects or actions in terms of the quantity of pleasure or utility they give rise to. The problem with attempting to derive a principle of right from a direct appeal to this conception of the criterion of value is that is impossible. The greatest quantity of the standard of value is the greatest good whether that is concentrated in one object or distributed among many. Thus Goldworth and Werner come to the same conclusion as Rawls; that the principle of utility is unable to give weight to distributive principles because these must always be overridden if the quantity of the good is so maximized. The Rawlsian argument is that utilitarianism begins with a concept of the good and the injunction to maximize it. This, he argues, is antithetical to any conception of right which is sensitive to individual entitlements and the differences between persons. Defending Bentham against Rawls involves showing that maximizing the good necessarily has distributive implications, but it does not entail that the principle of utility is a straightforward distributive principle, for Goldworth and Werner have argued conclusively that this is not the case. Rather it involves arguing that the practical pursuit of the maximum of social well-being entails a principle of right. Such an argument can be based on the view that while pleasure or utility is the standard of value it does not exist in abstraction, but is a function of certain objective states of affairs. In the previous chapter it was argued that the conditions of social interaction provide the most significant source of pleasures. Therefore, the maximum of social well-being is a function of the Goldworth, The Meaning of Bentham’s Greatest Happiness Principle’, p. 321. Werner, ‘A Note about Bentham on Equality and about the Greatest Happiness Principle’, pp. 238^42. 15 Fragment (CW), p. 393. 16 The Dual-standard interpretation of Bentham’s principle of utility is discussed in R. Shackleton, ‘The Greatest Happiness of the Greatest Number: The History of Bentham’s Phrase’, Studies in Voltaire and the Eighteenth Century, 90 (1972), 1461—81. 13 14

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76 Security, Expectation, and Liberty conditions of social interaction which serve as a condition of this class of pleasures. To support this claim it must be possible to establish a distinction between those utilities derived from nature and which are independent of any social arrangements, and those utilities which are a function of the conditions of social interaction. It is also necessary to show that this category of utilities is necessarily of greater weight than that derived from nature, if it is to be the justification of a principle of right. Once it can be shown that the conditions of social interaction are necessarily the source of the most significant category of utilities, then discussion of how to maximize social well-being becomes a question of which form of social organization provides the maximum social well-being. In this section it is argued that Bentham defends the claim that the most significant category of utilities is derived from the conditions of social interaction. It is also argued that this category of utilities provides the justification for security as the chief benefit of his theory of distributive justice. Bentham introduces an important distinction between types of utility or the sources of pleasure and pain in one of his earliest works. Although this distinction is hardly developed throughout the rest of his work, it underlies, and helps to explain many of the positions he adoped in his later works, particularly those on Civil Law. In A Comment on the Commentaries, written between 1774 and 1776, Bentham distinguishes between original and expectation utilities, or utilities grounded in nature and those grounded on expectation. He wrote:

Interested in every act of public power there are at least two parties. The one party at whose expence it is passed, or as he may be termed in other words the party suffering, the party bound by it: the other party favoured by it. The foundation, the end, the motive, the reason (all these terms on some occasion or other we see employed) is when justified, some utility real or supposed. This utility may be either original, or derived from expectation.17

He did not fully explain the nature of this distinction in any of his works, but two important components of it can be identified. Firstly, the notion of expectation utilities depends on the projection of the individual self into the future. Expectation utilities are also connected with the concept of disappointment, which is integral to Bentham’s theory of distributive justice, and was premissed upon the role of expectation utilities within that theory. Expectation utilities are derived from the prospect of being able to achieve a future benefit such as the satisfaction of a complex interest. Pains of expectation or disappointments arise from failure to receive an expected benefit in the future. Bentham developed this future regarding dimension of expectation utilities in a later passage from the Comment:

an act the nature of which is to produce a pain of disappointment, punishing for instance the usurpation of a thing which another has been led to expect the use of, 17

Comment (CW), pp. 230-1.

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the ground is, utility resulting from expectation. For disappointment to take place, and consequently for the pain which it is of the nature of disappointment to produce, it must have been preceded by expectation.18

The future-regarding aspect of expectation utilities provides a connection with the good of security, and the legal rights which are derived from it. In. the ‘Principles of the Civil Code’, 19 Bentham used the future-regarding aspect of security to distinguish it from the three other objects of legislative policy, and to explain the priority given to security:

Among these objects of the law, security is the only one which necessarily embraces the future: subsistence, abundance, equality, may be regarded for a moment only; but security implies extension in point of time, with respect to all the benefits to which it is applied. Security is therefore the principle object.

This is a misleading claim, for it is clear from Bentham’s early and late Civil Law writings that both abundance and equality are future-regarding objects of policy. However, the substantive point, that security is necessarily futureregarding is re-emphasized in a late manuscript where Bentham wrote: ‘security turns its eye exclusively to the future.’20 Security is future-regarding because it is concerned with establishing and maintaining stable patterns of behaviour on which expectation utilities are premissed. This interdependence of the good of security and expectation utilities was established early in Bentham’s career, when he maintained in an undated manuscript composed in the 1780s that: ‘security depends on the care taken to save from disturbance the current of expectation.’21 This position was restated in later writings dating from the 1820s.22 Drawing on this integral relationship between security and expectation it is possible to distinguish between original and expectation utilities. Unlike utilities derived from expectation, original utilities are not essentially future-regarding. This is because they are sources of pleasure or pain which are independent of any beliefs, desires, or interests of an agent. Bentham uses the concept of original utilities to acknowledge that given the physical constitution of human beings, certain actions and objects will function as sources of pleasure or pain irrespective of any cognitive attitude a person may adopt towards them. Bentham illustrates this argument with an example:

Ibid., p. 231. 19 Bowring, i. 302. UC lxi, 47. 21 UC xxxii, 1. UC c, 167. Rosen discusses Bentham’s use of security in his paper ‘Bentham and Mill on Liberty and Justice’, in G. Feaver and F. Rosen (eds.), Lives, Liberties and the Public Good (London, 1987). The significance of expectation is derived from the use of security. However, while security functions as an important concept within the works of Hobbes, Locke, De Lolme, and Montesquieu, only Bentham provides a detailed explanation of its importance in terms of expectation. The notion of expectation has since become an important one in the field of economic theory although it is used in a different sense to refer to expected utility. Bentham uses the term to refer to beliefs that are based on a system of public rules, and expectation utilities to refer to those utilities that are derived from such rule systems. 18 20 22

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Of an act of power punishing a crime that is of such a nature to produce pain of sufferance in the object of it, beating for example, the ground is utility original. For whether a man expects to be safe from beating or does not, beating is at all events a pain to him .23

In this passage Bentham introduced a distinction between those sources of pleasure which are derived from our physical constitution as human beings, and those sources of pleasure which are a function of our interests, beliefs, and desires. Because original and natural utilities are sources of pleasure or pain irrespective of interests, beliefs, and desires, they are not dependent on the provision of security or the conditions of social interaction. Therefore, they are of little concern to Bentham in the development of his theory of distributive justice, although they form an essential part of the subjectmatter of the Penal Law. The important sources of pleasure and pain within Bentham’s theory of justice and political morality are those which are a function of complex interests in modern societies, and these are necessarily dependent on the formal conditions of social interaction. The second characteristic difference between original and expectation utilities concerns the way in which beliefs feature in the formation of the latter. In the case of original utilities the sensation of pleasure is the immediate causal outcome of a particular action. Thus in Bentham’s example of being beaten,24 the sensation of pain that results from the beating necessarily follows irrespective of the agent’s beliefs or conscious interest. Indeed it is possible for someone to experience the sensation of pain derived from the beating without them understanding what is happening to them. With utilities derived from expectation the epistemic grounds for the beliefs upon which they depend play a constitutive role in the specification of those utilities. The higher the degree of certainty, or the greater probability that the object of the action will be obtained, the greater the expectation, and consequently the greater the utility derived from it. The utility of expectation is related to the minimization of chance and contingency within the realm in which an agent determines his conception of well-being. The higher the degree of certainty that no intervening circumstances will upset the realization of a particular project the higher the expectation utility which is causally related to the realization of that interest. Furthermore, given that the objects of action include not only particular desires and preferences, but within an individual’s own plan of life, a preference or desire for a particular way of life, then the utility derived from the secured expectation will in some cases be immeasurably valuable. What underlies Bentham’s argument is the view that most of the significant sources of interest, particularly those which give rise to the complex patterns of social interaction which characterize modern societies, are 23

Comment (CW), p. 231.

24 Ibid.

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Security, Expectation, and Liberty 79 developed within the context of elaborate patterns of belief about how other individuals will act. The beliefs which are most important in the formation of complex interests are derived from formal regularities in behaviour. Beliefs about how others will act are indispensable in the formation of particular conceptions of well-being which depend on how an action will affect others’ behaviour. To a certain degree all interests require a degree of social co-operation in the form of non-interference. Without the ability to premiss action and interest formation on such beliefs, rational action would be impossible. In order to minimize contingency which is essential in order for expectations to arise, there must be some public framework which provides the justification for those beliefs which underlie individual decision-making in the context of social interaction. These decisions can only be made on a rational basis within the context of a pattern of secured expectations. Stable patterns of expectation can only arise within the context of an authoritative system of rules. The most important difference between an original utility and a utility derived from expectation is that the former is a natural pleasure or pain which could theoretically obtain within a state of nature, whereas expectation utilities are a function of authoritative systems of rules. This implies that utilities derived from expectation are a function of the conditions of social interaction. A utility derived from expectation can only be enjoyed because of the institutions of law and morality which embody the essential conditions of social interaction. These and other basic institutions of political society impose a minimal degree of regularity on human behaviour, and remove an important source of contingency. The importance Bentham attached to the institution of law and political society, as the source of all utilities derived from expectation, is expressed in the following passage from a manuscript written during the 1780s:

The case is that in a society in any degree civilized, all the rights a man can have, all the expectation he can entertain of enjoying anything that is said to be his is derived solely from the law. Even the expectation which a thief may entertain of enjoying the thing which he had stolen forms no exception.25

Bentham made the radical claim that not only was the law the basis of all legitimate expectations and rights, but also that it was the source of all illegitimate expectations as well, such as those of the thief. His argument is in two parts. Firstly, in some natural state where there are no laws, there is no theft, and there cannot be any violation of property. Secondly, and more importantly, the motive for theft is in part parasitic upon the security that law gives to private property. The thief chooses to steal an object only because he expects to derive some utility from the object, whether direct enjoyment or through money derived from the sale of the object. However, 25 UC xxxii, 157.

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80 Security, Expectation, and Liberty his choice is only credible against the background of a general prohibition on violation of property rights embodied in the legal system, so that until such a time as his crime is discovered his possession enjoys the same protection as that of the original owner. Thus until such a time the only threats to his expectation of enjoying the property arise from the small number of other thieves. The law sees to it that the majority of other people will respect this apparent property right as if it were genuine. The thief is a ‘free-rider’ upon the law-abidingness of the majority of other people. Once thieves become the majority, then their own expectation of deriving benefit from theft dissolves as the pattern of expectations on which property rights are based collapses. On the more general question of the importance of law and political institutions as the source of all utilities based on expectation, Bentham’s argument was similar to that of Hume in the Treatise.26 For Hume, one of the primary justifications of the institutions of justice and property within political society was the security they afford individuals in view of the scarcity afforded by nature and the partiality of human nature. Later, in a discussion of the sources of allegiance to government, Hume re-emphasized the utility of political society and government: I seek, therefore, some such interest more immediately connected with government, and which may be at once the original motive to its institution, and the source of our obedience to it. This interest I find to consist in the security and protection, which we enjoy in political society, and which we never attain, when perfectly free and independent.27

Hume’s argument is similar to Bentham’s in recognizing the dependency of theft on the expectations derived from a system of laws and consequently property rights: tho’ I assert, that in the state of nature, or that imaginary state, which preceded

society, there be neither justice nor injustice, yet I assert not, that it was allowable, in such a state, to violate the property of others. I only maintain that there was no such thing as property.28.

For Hume and Bentham, the utility of political society, and the institution of law was to be found in the minimization of the influence of contingency. Their recognition of the possible partiality and selfishness of human nature suggests that contingency could not be totally eliminated from social life. However, both saw the minimization of contingency by the institution of law as one of the chief grounds of political obligation, and this also explains their hostility to arbitrary government. Tyranny and arbitrary government reintroduce the effects of contingency into social and political life, and so 26 27 28

Hume, Treatise, hi. 2. ii. 485. Ibid., h i . 2. ix. 550-1. Ibid., iii. 2. iii. 501.

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Security, Expectation, and Liberty 81 collapse civil society into a state no better than the pre-social state where contingency reigned. Expectations are derived from habits, customs, promises, and from any regularity of behaviour that is a consequence of social interaction. As has been argued, the chief source of these expectations is the law which provides the highest degree of certainty. However, not all of these patterns of behaviour need to be based directly on the law. Some conventions can enjoy the protection of the law without themselves being directly embodied within it. Promise-keeping can have the full sanction of the law in a wide variety of cases, such as in all binding contracts. However, the obligation to uphold many interpersonal promises makes no reference to the law, it simply relies on an informal social convention that has no physical coercive sanctions. Yet it would be wrong to think that because these informal social conventions can subsist without making reference to the wide system of law, that some of the conventions which provide for regularity and the minimization of contingency between separate individual’s actions, could exist independently of political society. Bentham’s most important concern in the Civil Law writings was with expectations that were derived from law. However, this does not imply that he was unaware of the significance of conventions that do not make direct reference to law. Instead it implies that the law is the most important source of these expectations,29 and that conventions that do not refer directly to law are, nevertheless, parasitic upon it. Law provides the basic framework of social interaction by delimiting spheres of personal inviolability within which individuals can form and pursue their own conceptions of well-being. However, although law draws the boundaries of social interaction by distributing rights and duties, and imposing sanctions, it cannot account for the dispositions necessary to acknowledge the importance of these rules within individual practical reasoning. These dispositions are derived from other practices which also constitute the conditions of social interaction. After the law, the most important of these practices is morality, which includes institutions like promise-keeping. In the case of promises, the transfer of rights, whether to person or property, that takes place in promising presupposes certain antecedent rights which ultimately, for Bentham as for Hume, had their origin in the law. In a pre-social condition where there were no antecedent rights or a system of laws it is not clear how such conventions could arise. Hume and Bentham unequivocally abandoned the natural law framework of their predecessors Grotius, Pufendorf, Hobbes, and Locke, so that in so far as they are concerned with a pre-social state, or state of nature, it is one very different from that envisaged by Locke. In Locke’s theory, government is created in order to secure already existing social institutions such as 29 UC xxxii, 157.

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82 Security, Expectation, and Liberty private property. For Bentham as for Hume, political society and government do not originate in a self-conscious rational choice undertaken by all those who accept its authority in the original position in order to protect some pre-existing rights and entitlements to private property. Political society and government evolved together. The question for Hume and Bentham, is to show how far we are obligated to them and why. Similarly, the institutions Locke grounds in the state of nature, are for Bentham and Hume the outcome of the development of conventions within civil society in response to certain features of the human condition. Bentham had little time for theorizing about the state of nature, and, again, in this as in much else, his position mirrored that of Hume. In a body of manuscripts30 that were incorporated into the ‘Principles of the Civil Code’,31 Bentham answered the rhetorical question that in deciding which articles the law should take for the objects of its protection, must the law at some point have relied on natural expectations? That is, expectations which were derived from sources anterior to the law .32 His answer was negative. If the answer had been affirmative then the distinction between original and expectation utilities would have collapsed. Nevertheless, Bentham acknow­ ledged that there is some intuitive appeal to the view that expectations could arise in a pre-social state, and were thus not a function of normative bodies of rules: ‘Certainly occasions there must have originally been, and will have been still in which one man must have found a greater facility in securing to himself the enjoyment of certain things than any other man.’33 This intuitive appeal does not substantiate the claim, and Bentham went on to deny that expectations could originate in a pre-social state without the benefit of law and the conventions and practices that surround it. His argument was that, although a savage might store some of the fruits that he gathers or the animals that he has killed, this does not constitute the origin of secured expectations to the enjoyment of property. If the savage enjoys only a very limited degree of intercourse with his fellow men, then the greater is the chance of being able to enjoy his produce at a future date. However, not all men in a primitive state can have enjoyed the circumstances of Robinson Crusoe. On the other hand, if his intercourse with his fellow men is greater than that of Robinson Crusoe, then his expectations will only last until such a time as he is overcome with sleep. If it is still argued that the natural expectations that originate in a pre-social state are actually stronger than anything considered so far, then Bentham argued this fails to prove that there are strong natural patterns of expectation, and on the contrary only provides evidence for a primitive system of political society and law:

In the rudest and earliest state therefore of society whatever property a man possesses, whatever articles of property he expects to have the enjoyment of his 30 32

UC xxxii, 157. UC xxxii, 157.

31

Bowring, i. 308. 33 Ibid.

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possession, his expectation if derived from any thing more permanent than the casual forbearance of those in whose presence he has occasion to find himself must be derived from something (a principle) which can be called by no other name than

law.34 Natural expectations only appear a plausible source of real expectations and the rights and entitlements derived from them because they involve applying features of political society to a pre-social state. However, once the expectations are disentangled from the legal systems and conventional practices on which they depend, they actually disappear. Bentham’s argument was premissed on the notion that expectations are the consequence of the conditions of social interaction. These conditions give rise to mutual regularities in behaviour because they are a source of authoritative reasons for action. To assume that such behavioural regularities could arise in a pre­ social state is to assume that nature provides such reasons, and this is precisely what was denied by Bentham’s psychological theory and his criticism of natural-rights theories.35 The presupposition of harmonious interaction in the absence of a source of authority is one of the major premisses of anarchist theory. Bentham clearly rejected the possibility of such harmonious interaction in the absence of authoritative reasons by arguing that the appearance of such behavioural regularities would be a purely contingent matter, and something on which the individual agent could not rely. Thus while the savage may well find that others do not interfere in his enjoyment of his store of food, he cannot count on this non­ interference as the basis of more complex interests. The fact that others do not interfere with the savage’s enjoyment of his goods is a matter which could change at any moment. Therefore, the savage cannot have natural expectations because expectations are premissed on non-contingent regu­ larities in social interaction. Once the savage has authoritative reasons as the basis for his expectation, then he ceases to be a savage, and resides in a form of social organization which acknowledges the existence of primitive laws. Bentham’s attitude to theories of the state of nature was dismissive, precisely because nothing could be gained from them unless they import features of civil society. Another argument which Bentham did not develop, but which was certainly implicit in his position, was the view that expectations and the practices and regularities on which they are based, play such an important constitutive role in the projects, plans, and goals of individuals, that an individual in the state of nature, without the benefits of political society, would be virtually unrecognizable. This position is rather crudely brought to the surface in the case of the thief. Without the laws, conventions, and practices which characterize political life, certain options, desires, and projects would not be possible, just as it would be impossible to be a thief in 34

Ibid.

35

See Chap. 3, above.

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84 Security, Expectation, and Liberty a society without a system of law that embodies property rights. It can, however, be inferred from Bentham’s position, that the character of the interests pursued by individuals in modern societies is a product of the form of social organization. This is not to assert the strong Marxist claim that the social structure plays a causal role in determining a particular individual’s interests. However, it is clear that the majority of interests and activities which become the objects of individual action could not arise outside of the conditions of social interaction embodied in the law and the practice of morality. For Bentham economic activity is an important example of this, in that it is premissed on stable patterns of social interaction which give rise to expectations, and requires the existence of private property and enforceable contracts, all of which could not exist in the state of nature.36 Again it is possible that Bentham’s hostility to state of nature theories is based on the rejection of a Christian natural-law framework, which would provide authoritative reasons for action and a series of sanctions to support these reasons in the absence of formally constituted political society and sovereign legislator.37 Expectations and* the utilities derived from them are of supreme importance within the legislative project, for it is these which underlie the whole notion of security and its role in the realization conditions of individual well-being. Security is at the same time the product of the conventions and practices that constitute legal systems, as well as those which are parasitic upon them. It is the high value attached to these expectations which in turn translates into the high acceptance utility of the pattern of rights and titles derived from Bentham’s theory of distributive justice. He conveyed the importance he attached to expectations in the Civil Law, when he wrote:

Expectation: this is the grand word that ought to be perpetually sounding in the ears of whoever undertakes to compose or modify a code of Civil Law. Expectation is the basis of every proprietory right: it is this affords whatever reason there can be for giving a thing to one man rather than another. Keep the current of expectation inviolate, in these words are contained the quintessence of everything which utility can dictate on this extensive ground.38

It may still be unclear why expectation utilities are the most significant class within a utilitarian system. In one important sense it appears that they are not the most significant class of utilities. After all, under the category of original utilities must be placed all pleasures and pains applying directly to a person’s body. Assaults on the person, murder, and other such acts of

36 For Bentham’s theory of justice as the framework for his economic theory, see P. J. Kelly, ‘Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham’s Economic Thought’, Utilitas, 1 (1989), 62—81. 37 I have discussed this in relation to Bentham’s rejection of Lockean natural rights theory, at Chap. 3 n. 60, above. 38 UC xxix, 6 .

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Security, Expectation, and Liberty 85 violence come under the category of physical pains. Surely, therefore, it is the prevention of physical pain that must be the most important concern of the legislator in a utilitarian system. Even those critics who are most conservative on questions of the rights of property are unlikely to rank them higher than the prevention of physical pain and suffering. If security of expectation is a necessary condition of the realization of an individual’s ultimate project or goal, then surely security of person must be a prior condition of security of expectation. It is certainly the case that security of person, or freedom from violence and physical injury is a necessary condition for the possibility of purposive actions. The category of pain most obviously suggests physical suffering, violence, or injury. Equally it can be argued that of the harms that are the object of criminal law, only a small portion actually concern violation of the person. So while it is the case that freedom from physical violation is a necessary component of a person’s real interest, it is only a small portion of that real or permanent interest. Accordingly, security of person only attracts a small portion of the legislator’s concern. The reason why security of person occupies only a small portion of an individual’s real interest while so much importance is attached to expectation utilities, is a function of the constitutive role they play in the formation of an individual’s projects and goals. The expectations that are produced by law, convention, and habit, account for more of the legislator’s attention because it is within the boundaries provided by these practices that individuals develop and pursue their own conceptions of well-being. There is also a good case for arguing that violation of the person is often causally connected to prior conflicts between individuals over their particular interests. Just as the institution of law creates certain categories of offences, and thus makes certain acts wrong,39 so law at the same time as creating entitlements could be described as creating the conditions in which disputes over titles occur, and in which some make recourse to violence. The more important a particular project is to an individual, the more its frustration by another individual provides the conditions in which some turn to violence. Given the purposive character of human action, in Bentham’s view gratuitous violence will form only a small part of the legislator’s concern. This is because the legislator is concerned with the conditions of social interaction, and no distribution of rights can prevent or accommodate all irrational actions. One of the most important conclusions of the discussion of Bentham’s psychological theory was that there is no good evidence to suggest that his conception of human nature is simply concerned with desire satisfaction at the crudest level. There is no suggestion that Bentham simply thought all desires and preferences operated on the same level, and that all men were 39

J. Rawls, ‘Two Concepts of Rules’, Philosophical Review, 64 (1955), 3—32.

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86 Security, Expectation, and Liberty simply ‘wantons,’40 the victims of whatever present desires they happen to have. Similarly, Bentham’s employment of the notion of ‘idiosyncratical’ values, or ‘values in affection’, suggests that he did not accept a crude version of value commensurability. The use of this notion also provides some scope for arguing against Rawls that the simple commensurability thesis found in prudential reasoning in Bentham’s hedonistic psychology does not entail a simple commensurability of values in moral and political decision-making.41 Expectations are important within the context of Bentham’s moral and psychological theory because of the dimension they add to the choices individuals are able to make among goals and projects. It has been suggested that expectation plays a constitutive role in the formation of desires, interests, and the goals and projects which depend on them. There are two arguments underlying this claim. Firstly, patterns of expectation render possible certain forms of choice, which in turn facilitate the formation of certain classes of desire or preferences.. Earlier in this chapter it was suggested that part of Bentham’s hostility to state of nature theories might be explained by the fact that without security of expectation certain types of activity and goal would be impossible. This argument only works if expectation makes possible most of those choices which characterize civilized life in a modern society. His argument is that expectation is necessary if individuals are to choose and pursue their own ends. The reason that such weight is placed on expectation is that it provides the dimension within which an individual can make strategic choices about goals and projects which in turn determine individuals’ conceptions of well-being. Expectation is that dimension within Bentham’s moral psychology by means of which he can incorporate hierarchies of ends within individual decision-making. It is able to play this crucial role because it involves beliefs about the future which are themselves dependent on the predictability of the behaviour of other individuals, particularly public functionaries,42 as a result of social institutions, practices, and habits. These beliefs enable the 40 For the notion of a ‘Wanton’ see H. G. Frankfurt, ‘Freedom of the Will and the Concept of a Person’, Journal of Philosophy, 68 (1971), 5-20, and the discussion of C. Taylor, ‘What is Human Agency?’, Philosophical Papers (2 vols., Cambridge, 1985), ii. 15-44. 41 See the discussion in J. Griffin, Well-Being (Oxford, 1987), pp. 75—83. 42 Public functionaries are the most important concern of the individual agent because their actions have the greatest effects on overall patterns of expectation. The fact that public functionaries are able to exercise the greatest influence on security of expectation in part explains why Bentham devoted so much time to constructing a form of constitutional arrangement which provides stability of expectation while allowing the legislator to act in pursuit of the maximum social well-being. The best discussion of the form of Bentham’s constitutional theory and its place within his utilitarian philosophy is F. Rosen, Jeremy Bentham and Representative Democracy (Oxford, 1983). See also R. Flarrison, Bentham (London, 1983), 195-224, L. J. Hume, Bentham and Bureaucracy (Cambridge, 1981), and M. H. James, ‘Bentham’s Democratic Theory at the Time of the French Revolution’, Bentham Newsletter, 10 (1986), 5-16.

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Security, Expectation, and Liberty 87 individual to form projects and goals in the future, with a degree of certainty that whether or not they are realized, the pursuit of these goals will be co­ ordinated with the actions of others so that there is a greater likelihood of their being realized. The individual is, therefore, able to build up a conception of how he wishes his life to progress, that is, he can adopt a hierarchy of values or desires which provide a coherence within his life. He is able to subordinate transient present desires for future ends, while at the same time the supreme end or desire of his life will play a causal role in the origination of intermediate desires, interest, and subordinate projects. All this is not to suppose that these future goals cannot or will not change quite radically over time. It is quite clear that this possibility is not precluded by Bentham’s psychology; indeed, it is likely that as subordinate projects and desires originate in the pursuit of a primary goal, they will actually modify or even displace that primary goal. Human life is often a continuous progress through various conceptions of how the individual sees himself in the future, each conception being modified in the light of new circumstances, with only the most indeterminate connections between these various projects and goals. The individual’s choice of goals and projects, or of second-order desires about future desires, involves the projection of a conception of the self into the future. The ability to make this projection is a necessary condition of personal continuity and coherence. Expectation, therefore, provides a framework within which an individual builds up a sense of personality within the context of social action, for it connects us with other people, particularly those closely connected to us, and to future generations. Knowledge and belief about the regularities of behaviour are essential for shaping one’s own projects, and in this way expectation becomes the primary condition of preference formation. In this sense secured expectation is not dissimilar to one of the ‘primary-goods’ Rawls identifies in his theory of distributive justice.43 These ‘primary-goods’ are supposed to be the necessary conditions of preference formation and realization, whatever one’s conception of the good. Bentham suggests that the framework provided by patterns of expectation is the essential background for a recognizably human or civilized life. He made these weighty claims in a passage from the ‘Principles of the Civil Code’, where he wrote:

This disposition to look forward, which has so marked an influence upon the condition of man, may be called expectation—expectation of the future. It is by means of this we are enabled to form a general plan of conduct; it is by means of this, that the successive moments which compose the duration of life are not like insulated and independent points, but become parts of a continuous whole. Expectation is a chain which unites our present and our future existence, and passes 43

J. Rawls, A Theory of Justice (Oxford, 1972), pp. 90-5.

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beyond ourselves to the generations which follow us. The sensibility of the individual is prolonged through all the links of this chain.44

It is not clear whether Bentham saw an individual’s conception of the self as an outcome of identifying with certain roles and interests that he assumes and pursues. If he did make such an identification between an individual’s sense of self and his goals and projects, it would add further support to Bentham’s commitment to a strong conception of private property rights and the view that some subjective valuations, particularly ‘values in affection’,45 can be given no objective measure. Bentham made some attempt to contrast human nature with animal natures in terms of the significance of expectation, which again emphasizes the importance of expectation in the formation of human personality. He wrote:

In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider, that man is not like the brutes, limited to the present time, either in enjoyment or suffering, but that he is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against an actual loss, but also to guarantee to him as much as possible, his possessions against future losses. The idea of his security must be prolonged to him throughout the whole vista that his imagination can measure.46

While it has been customary and largely correct to see the scope of Bentham’s conception of well-being as including the pleasure and pains of all sentient creatures, it should be clear that this does not create the problems suggested by Parekh.47 Bentham is not committed to placing human pleasures on the same level as those of sheep. Although it is true that the suffering of animals is just as worthy of concern as that of a man in any utilitarian calculation, this does not entail that Bentham ought to make a place for animals to protect their expectations from the depredations of sinister interests by giving them a vote in a representative democracy. His reason for excluding animals from the democratic process is that while animals are pleasure-seeking on a simple level, they do not have a conception of themselves which can be projected through time in order to give coherence to their respective projects. Therefore, animals do not experience utilities derived from expectation, and neither do they suffer disappointment. The second reason why expectations play a constitutive role in the formation of desires and interests is that they provide the framework for prudential rationality, and consequently individual choice. Prudential Bowring, i. 308. For reference to ‘values in affection’ see Bowring, i. 310 and 322, BL Add. MS 33550, fo. 121. 46 Bowring, i. 308. 47 Parekh, ‘Bentham’s Justification of the Principle of Utility’, in id. (ed.), Jeremy Bentham: Ten Critical Essays (London, 1974), p. 96. 44 45

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Security, Expectation, and Liberty 89 rationality requires the ability of an individual agent to project himself into the future through his desires and projects. This involves the ability to take a longer-term perspective, and to make decisions between present and future satisfactions. The connection between stable patterns of expectation and the conditions of prudential rationality is not simply that prudence requires the ability to project a coherent and persisting conception of the self into the future. Expectation does provide the conditions for a persisting conception of the self, and it is also a structural precondition for the formation of interests and desires. However, prudential rationality is primarily concerned with ordering interests and desires into a coherent conception of well-being. This is why prudence is characterized as the ability to discount among various interests and desires. For this ordering of interests to qualify as rational and not arbitrary it must be subject to an external criterion. This external criterion is provided by the existence of fixed patterns of expectation, and it is in this sense that expectation provides the framework for rational choice. On the basis of knowledge and belief about stable patterns of behaviour the individual is able to distinguish between his various desires and interests in order to form a coherent structure of interest that will maximize his well­ being. If the individual were to attempt to rely on a private-ordering criterion there would be no way to distinguish his choices from arbitrary choices. Either his discrimination is based on knowledge and beliefs about behavioural regularities in the social realm or they are arbitrary and irrational. Bentham implies that the only reasonable grounds one has for ordering and discriminating between various conceptions of individual well­ being are the beliefs and expectations about the behaviour of others. It is only by ordering his interest in the context of expectations about others actions, that the individual agent can hope to maximize his own well-being. For Bentham the measure of individual rationality was the measure of an individual’s effectiveness in maximizing his own well-being or satisfying as many of his interests as possible. Therefore, prudential reason is premissed on the existence of.stable patterns of expectation. This ability to discount between present and future interests is partly the reason why Rawls argues that the model of individual prudential rationality is an inappropriate model for social and political decision-making.48 Expectation and the projection of the self into the future through one’s projects and desires is not only a necessary precondition of prudential thinking, it is also what makes prudential rationality important. In the pre­ social state there is almost no good reason to sacrifice what one has today for what one might' need tomorrow, because there is no good ground for expecting that one will be able to enjoy what one has accumulated. The rational option would always be to satisfy as far as possible present desire, 48

Rawls, A Theory of justice, pp. 22-4.

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90 Security, Expectation, and Liberty with very little consideration about the status of that desire. Man in the pre­ social state is more likely to be a ‘wanton’49 than a prudential agent. However, in political society, where there are patterns of behaviour from which expectation can be derived, the question of how far to sacrifice a present interest for a future interest becomes very important, particularly in determining which future projects one ought to adopt, or how far one ought to modify a future project in the light of its cost or intermediate consequences. This further supports the claim that a man in a state of nature would in important respects be unrecognizable because he would not be able to construct the complex patterns of interest which characterize human nature in modern societies. Bentham did not make the moral claim that a recognizably human life must involve the making of important strategic choices over the question of ultimate ends. He relied totally on an empirical conception of the person, so that it was always possible that some men would choose to act as ‘wantons’. By having no conception of themselves persisting over time, some men will have no more important desires than those for food, warmth, or sexual gratification which are dictated by their physical constitutions, and which arise independently of any ordered conception of interest. However, it would be implausible to suggest that, given the possibility of such individuals, secured expectations is not the most important source of utility. It is more likely that the whole weight of experience supports the view that most individuals make some sort of ordering decisions in their lives, or at least have a conception of themselves which orders their desires and choices. Bentham made no attempt to prove this empirically, but the lack of evidence he presented for this claim does not render it implausible. It is clear that Bentham assumed that the majority of individual agents made the sort of choices among interests that depend on expectations because of the weight he attaches to this notion within his moral psychology. It remains a matter of degree how far an individual is solely responsible for the interests and desires that he might adopt and pursue within his life. Bentham was certainly aware of the role of religion, education, and social position in the formation of particular ends and projects within an individual’s life. He was also critical of the consequences of these institutions on the formation of individual character. Therefore, while Bentham may have approved of an ideal of self creation which freed the individual from the influences of the church and other sources of sinister interest he did not presuppose this in identifying the conditions of interest formation and realization.50 See n. 40, above. Bentham regarded the Church, Parliament, and the Legal Profession as the main sources of sinister interests. These institutions had a direct influence on the forms of particular interest that individuals could develop and pursue because they are the sources of the religious, political, and legal sanctions. These sanctions provided the conditions within which customary 49 50

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Security, Expectation, and Liberty 91 The existence of secured patterns of expectation must underlie any conception of autonomous agency because it forms the context of prudential rationality within which that conception must function. Never­ theless, security of expectation has an equally important role in the adoption of choices and projects within a non-autonomous life. It is the non-autonomous life that Bentham was primarily concerned with because the majority of men, while able to make rational choices between a variety of ends and goals, did not approach the more stringent requirements of an ideal of personal autonomy. The conception of human nature that Bentham must incorporate within his utilitarian theory is similar to that described by S. I. Benn as ‘autarchic’.51 Here the individual is seen as self-governing, in the sense of not being subject to the will of another in the determination of his interests and desires. However, this concept of personality falls short of an ideal of autonomy in that while the individual is able to make rational choices among the options available to him, he might still be subject to direction by uncritically accepting the choices and options that society presents to him. The autonomous agent not only makes strategic choices between complex interests and projects, but is also able to establish a critical distance between himself and the choices that society makes possible. By distancing himself from the society which is largely responsible for the forms of life most individuals adopt, the autonomous agent is able to adopt a critical attitude to those choice options, so that in making a particular choice he is legislating for himself and is not the victim of social influence. An ideal of autonomy is especially important in J. S. Mill’s political morality, particularly in his essay On Liberty,52 for it is this which provides moral education took place. Therefore, the Church, Parliament, and the Law would aim to discourage the formation of dispositions and interests which would contradict the authority of these institutions. In view of the effect these institutions have on the formation of interests, some recent commentators have interpreted Bentham’s later constitutional theory as an attempt to ‘individualize’ all social forces. See M. P. Mack, Jeremy Bentham: An Odyssey of Ideas. 17481792 (London, 1962), p. 10. L. J. Hume argues that Bentham ‘attacked the sources of influence in Parliament, in the Courts, in the Church, in social and economic relations, in spoken and written communications. In so doing he was attempting to extirpate all the instruments by which will might act on will, or in more positive terms to provide for the emancipation of all individual wills, and for their free exercise throughout the political system. By this time he had seen that a radical reform of the parliamentary and electoral system was not sufficient to achieve such an emancipation; political reform in the narrow sense would have to be supplemented by reforms extending to every aspect of society which might create ‘a state of habitual dependence’ by one will on another. At that point, as Mack saw, his individualism became prescriptive; he was aiming at the thoroughgoing individualization of society, the destruction of its distinctively social forces and characteristics’, Bentham Newsletter, 1 (1978), 15, see also L. J. Hume, Bentham and Bureaucracy (Cambridge, 1981). 51 S. I. Benn, ‘Freedom, Autonomy and the Concept of a Person’, Aristotelian Society Proceedings, 76 (1976), 109-30. 52 J. S. Mill, On Liberty, in Essays on Politics and Society, ed. John M. Robson, 2 vols. (The Collected Work of John Stuart Mill, xviii and xix), xviii. 213-310. See the discussion in

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92 Security, Expectation, and Liberty the basis of his strong commitment to liberty within his utilitarian theory. It is the role and emphasis given to the ideal of personal autonomy more than anything else which is responsible for the customary distinction between the theories of Bentham and J. S. Mill.53 Mill based his ideal of autonomy on a conception of human flourishing which according to a recent commentator has Aristotelian overtones.54 On this view an active autonomous life, in which the individual agent creates his own social world by questioning every item of traditional and received wisdom, is the ideal towards which mankind is advancing. Mill acknowledged that this ideal was only beginning to be realized in modern liberal democratic states, and that in some less culturally advanced society the formal or political requirements of this ideal ought not obtain. Bentham does not presuppose a progressive conception of human personality in the same way as J. S. Mill, but neither does he presuppose a static conception of personality that is unaffected by cultural change. Therefore, while rationality is a necessary condition of an ideal of autonomy, it is the form that rationality takes which determines the nature of that ideal. Bentham implied a degree of rationality as a condition of human agency, but this form of rationality does not depend on an expressly developed conception of progressive human nature. Bentham acknowledged the influence of certain social determinants which he described as sinister interests in the formation of projects and desires, and the ability to descriminate between them in order to develop a conception of individual well-being. This is very close to Mill’s conception of individual agency. Yet it differs from a strong conception of autonomy because the individual is not required to reconstruct the conditions of interest formation and realization in terms which he can accept as rationally acceptable reasons. Mill implies that the fully rational and autonomous agent will be able to justify to himself the reason for all social institutions and practices which he takes as binding. For Bentham it is simply necessary that such reasons are publicly available to each agent. Therefore, an agent who does not adopt a critical stance to all of the social conditions which J. Gray, Mill On Liberty: A Defence (London, 1983), 73—86, and F. R. Berger, Happiness, Justice and Freedom: The Moral and Political Philosophy of John Stuart Mill (Berkeley, Calif., 1984), 232—53. The implication of these arguments is that Mill did not attempt to force his commitment to liberty into a utilitarian framework, as B. Semmel has argued (John Stuart Mill and the Pursuit of Virtue (New Haven, Cann., 1984), 154-85). Rather, Gray and Berger argue that Mill thought that his conception of liberty was an implication of his utilitarian theory of justice. Whether Mill had good reason for thinking that his commitment to liberty followed from his utilitarian theory has been the source of much recent debate within Mill scholarship. 53 Gray, Berger, and Semmel all argue that there is a significant gulf separating the theories of Mill and Bentham. It has become customary to argue that Mill is an interesting thinker only to the extent that he can be distinguished from his Benthamite heritage. However, some recent Mill scholars have argued that there is a greater degree of continuity between Bentham and J. S. Mill. See S. Hollander, The Economics of Stuart Mill (2 vols., Oxford, 1985), ii. 602-76, and J. C. Rees, John Stuart Mill’s On Liberty (Oxford, 1985), 9—77. 54 Gray, Mill on Liberty, pp. 80-1.

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Security, Expectation, and Liberty 93 affect his choice of interests, is, according to Bentham, still rational in so far as he is responsible for that choice. Bentham and Mill differ in their characterizations of the nature of human agency which is to be reflected in the principle of right underlying their respective theories of distributive justice. Nevertheless, it is clear that there is a significant degree of similarity in the substance of their theories of justice.55 Security of expectation is the most important of the basic sources of utility because it provides the conditions for the development of a concept of personal identity and the coherence of that conception of the self through time, and thus facilitates the complex patterns of expectation which characterize modern societies. In this way it is a necessary condition of the formation and realization of the most important category of interests which are premissed upon the conditions of social interaction. However, a number of problems remain. The provision of security implies the distribution of a pattern of rights and titles which form the conditions within which expectations develop. Therefore, the main task facing Bentham is to provide a distributive principle which determines the pattern of rights which the legislator is to institute. In the next section it will be argued that security provides the conditions for the exercise of freedom, and that Bentham’s intention of replacing liberty with security does not entail the abandonment of liberty, but a reconstruction of the concept within the context of a utilitarian theory. However, if security and liberty are to be effectively connected within Bentham’s theory of justice, then it is necessary to provide a utilitarian principle of right which determines a realm of security in which an agent is able to exercise the widest possible freedom that is compatible with the same security for others. How Bentham solves this distributive question determines whether he can be regarded as a liberal. A recent commentator on Bentham’s Poor Law writings has argued that his reliance on security as a means of removing contingency from the social realm has the effect of eradicating the public space within which individuals can exercise their liberty.56 Contingency can only be overcome by constructing a system of security that provides individual agents with no effective choice. Bahmueller suggests that contingency and liberty are necessarily related, and one can only be reduced by diminishing the other. However, Bahmueller neither attempts to determine the character of the distribution of rights that Bentham intended, nor the areas of the social realm which are ordered by this distribution. Bahmueller’s position fails to acknowledge that expectations are dependent upon the minimization of contingency, and that 55 The similarity between their theories can be explained in terms of the reconciliation between Mill and Benthamite ideas during the late 1850s and early 1860s. Hollander, The Economics of Stuart Mill, ii. 602-76. This does not, however imply a complete similarity in their theories. Mill has a much stronger commitment to an ideal of liberty based on a progressive conception of human personality. Nevertheless, the conditions necessary for the exercise of that liberty are described in Benthamite terms such as security. 56 C. F. Bahmueller, The National Charity Company (Berkeley, Calif., 1981), 1—11.

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94 Security, Expectation, and Liberty these are a necessary condition of interest formation and realization. The minimization of contingency must, therefore, be a necessary component of the realization conditions of liberty. The remaining problem is to determine that area of the social realm in which contingency must be minimized. This will involve identifying the form of basic expectations upon which interest formation and personal continuity depend. Once the character of these spheres of personal inviolability has been identified, it is possible to determine an arrangement of rights and titles which provides both the conditions of interest formation and personal continuity, but which leaves a sufficient degree of public space to enable individual agents to pursue their conceptions of interest. The answer to this first problem will be provided in Chapter 6 , which develops the ‘security-providing principle’ as a formal distributive principle which determines the character of the Bentham’s principle of right. The second problem concerns the fact that expectations arise from any form of social organization, including those forms which do not conform to the utilitarian principle of right. However, given that expectations are the most significant source of utility, the utilitarian legislator cannot simply override the existing distribution of rights in favour of the utilitarian theory of right. This would not only create a massive disutility arising from the violation of existing expectations, but it would also undermine those dispositions which are essential in order for expectations to develop and function. Chapter 7 will show how Bentham reconciles the claims of the existing pattern of expectations with his utilitarian principle of right by appealing to the ‘disappointment-preventing principle’, and show how his awareness of this problem, and his attempt to resolve it in his theory of distributive justice, remains an advance over J. S. Mill’s theory of justice. However, before discussing the other major source of utility which underlies his theory of distributive justice, I will consider some of the arguments that have been advanced against the view that Bentham valued freedom within his moral theory, and suggest that Bentham’s position is best interpreted as embodying the rejection of a presumptive defence of liberty in favour of a utilitarian justification of the value of liberty. The aim of this section is to show that despite Bentham’s abandonment of the language of liberty it is still possible for him to maintain the same substantively liberal commitment to the value of freedom within a utilitarian theory.

II

One of the main revisionist aims of this work is to defend Bentham’s theory of distributive justice as a version of liberalism which remains neutral between individual conceptions of the good. This neutralist57 interpretation

>7 A neutral theory of liberalism is one which defines the right independently of substantive conceptions of the good. This means that it attempts to provide the ordering conditions of

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Security, Expectation, and Liberty 95 of Bentham’s theory of distributive justice is expressed in the following passage from the ‘Principles of the Civil Code’:

The Legislator is not the master of the dispositions of the human heart: he is only their interpreter and their servant. The goodness of his laws depends upon their conformity to the general expectation. It is highly necessary, therefore, for him rightly to understand the direction of this expectation, for the purpose of acting in concert with it.58

Despite this clear statement of a neutralist liberal position in Bentham’s theory, there has still been substantial criticism of his theory on the grounds that he neglects the value of liberty. This criticism takes a number of different forms, but all centre on two arguments. The first is that he begins his early writings with a negative concept of liberty, as freedom from constraint, but then abandons this negative conception in favour of security. The second point of criticism is that Bentham places great emphasis on control and constraint by adopting this concept of security, and that this strongly contrasts with the traditional liberal emphasis on liberation, spontaneity, and self-creation. It is thought that Bentham’s concentration on legal concepts like security reflect his concern with control at the expense of an ideal of freedom. Bentham is consistently criticized by many recent commentators for subordinating liberty to security, and for emphasizing the illiberal notions of control and constraint. This criticism has its recent origin in D. G. Long’s important study Bentham on Liberty, (1977), in which he emphasizes the role of control and constraint within Bentham’s discussion of liberty, which he sees at the heart of his legal theory. Long concentrates his study on a series of early manuscripts and published works, which, he argues, show the development of the groundwork of Bentham’s later legislative project. These early manuscripts, written in the 1770s and 1780s, are concerned with the definition of basic political concepts. Long argues that Bentham’s intention was the development of a new political vocabulary social interaction without making reference to the aims that individuals have in acting. The most famous neutral theories of justice are the deontological theories of justice defended by Ackerman, Dworkin, and Rawls. See B. Ackerman, Social Justice in the Liberal State (New Haven, Conn., 1980), R. Dworkin, Taking Rights Seriously (London, 1977), and Rawls, A Theory of Justice. These neutral theories have recently come under attack from J. Raz, in ‘Liberalism, Autonomy, and the Politics of Neutral Concern’, in P. A. French, T. E. Uehling, Jr., and H. K. Wettstein (eds.), Midwest Studies in Philosophy, 7, Social and Political Philosophy (Minnesota, 1982) and The Morality of Freedom (Oxford, 1986), 110-62; see also the discussion in S. Mendus, Toleration and the Limits of Liberty (London, 1989), 110—45. Utilitarianism is not usually considered a neutralist theory because it is argued that the good is pleasure or welfare and that this determines the form of the principle of right. However, I have argued that while pleasure or welfare is the criterion of value within a utilitarian theory, it still provides a principle of right which is neutral between individuals’ conceptions of happiness, pleasure, or welfare. 58 Bowring, i. 322.

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96 Security, Expectation, and Liberty which was to be free from mystification and confusion of the language of law and politics as Bentham found it. His dissatisfaction with the contemporary vocabulary of politics, particularly in the case of liberty, was expressed in a manuscript written between 1770 and 1780: Liberty therefore not being more fit than other words in some of the instances in which it has been used, and not so fit in others, the less the use that is made of it the better. I would no more use the word liberty in my conversation when I could get another that would answer the' purpose, than I would brandy in my diet, if my physician did not order me: both cloud the understanding and inflame the passions.59

The solution to these inadequacies of language was a form of linguistic analysis, in which fictitious terms that only served to confuse political_and moral debate, and perpetuate weak arguments for indefensible institutions, were replaced by new terms. These new terms would expose the interestserving character of the arguments which underpinned the old concepts of political and moral discourse. One of the fictitious terms that needed to be replaced was liberty. While Bentham had provided an analysis of liberty in terms of the absence of coercion,60 he proceeded in the same body of manuscripts to abandon altogether the concept of liberty, subordinating it to that of security. Thus he wrote: ‘In whichever of the three last senses liberty be understood it is either a branch of security, it is either comprised under the head of security, or it is of no value .’ 61 It is this replacement of liberty with security which, for Long, confirms Bentham’s abandonment of the terms of liberal argument because security is inextricably connected to the concept of law which on Bentham’s view was necessarily coercive.62 The whole of Long’s argument is based on this view of Bentham’s legislative project, as an attempt to mould the individual personality by means of law. He argues that Bentham’s conception of motivation is a stimulus response theory,63 which in certain respects is a predecessor of B. F. Skinner’s behaviouralism, and that the legislator uses this in order to create stable patterns of behaviour by imposing sanctions to discourage antisocial actions. According to Bentham freedom and law are antithetical terms, and Long argues that Bentham favoured law as opposed to liberty. Another author who suggests that Bentham adopts an illiberal position is UC c, 170. 60 Ibid., 167. 61 Ibid., 156. See the discussion of Long in M. D. A. Freeman, ‘Jeremy Bentham: Contemporary Interpretations’, in R. Faucci (ed.), Gli italiani e Bentham dalla ‘felicita pubblica’ all’economia del benessere, i (Milan, 1982), 33—6. Freeman contrasts Long’s interpretation of Bentham’s emphasis on coercion and security with the classical liberal notion of law as a means of facilitating social interaction in order for individuals to lead a more full life. Following Postema, I have argued that the emphasis on coercion is not incompatible with the notion of law as the conditions of social interaction within which individuals can pursue their interests (Bentham and the Common Law Tradition, pp. 147—90). 63 Long, Bentham on Liberty, p. 25. 59 62

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Security, Expectation, and Liberty 97 J. R. Dinwiddy.64 He also argues that Bentham subordinates liberty to security, and believes that the pursuit of utility and respect for liberty are incompatible. Dinwiddy takes literally Bentham’s motto for the inmates of his Panopticon school: ‘Call them soldiers, call them monks, call them machines, so they are but happy ones, I should not care’65 and uses this as the basis of his argument that: Bentham made it clear that he did not value liberty for its own sake . . . To him liberty was an emotive term, the use of which in politics distracted attention from the fact that it was essentially by restricitons on freedom that happiness was made possible.66

Dinwiddy, like Long, concentrates on liberty as the absence of coercion, and security as the product of law. Law is seen as an instrument of social control, emphasis is placed on the unlimited sovereign and the characteri­ zation of law as commands. Thus he provides a familiar picture of Bentham’s utilitarian legislator as a manipulator of individual characters in order to form a harmonious social order. Dinwiddy particularly emphasizes the incompatibility of liberty and happiness. Bentham’s monistic-value theory establishes the priority of happiness over all other sources of value including liberty and individuality. Dinwiddy does not attempt to argue that these concepts can be interconnected within a utilitarian theory of distributive justice, despite the fact that much recent Mill scholarship has been concerned with establishing the compatibility of these two concepts within Mill’s theory of justice.67 The third recent work which sets out to deny Bentham’s liberal credentials is C. F. Bahmueller’s The National Charity Company (1981). Bahmueller concentrates on Bentham’s Poor Law proposals as a paradigm for his utilitarian political morality. From his study of the Poor Law proposals he develops the following scathing indictment of Bentham’s political and moral theory: Bentham’s poor law reform was replete with a repressiveness so pervasive, so souldestroying, and with so little regard for either the civil liberties or the emotional sensitivities of those whose health (moral as well as physical) and happiness it sets out to promote and protect, that its administrative progressiveness pales in the comparison. Left in Bentham’s hands, the poor would in respects essential to those who refuse to travel ‘beyond freedom and dignity’, be worse off than in fact they were.68 64 J. R. Dinwiddy, ‘The -Classical Economists and the Utilitarians’, in E. K. Bramsted and K. J. Melhuish (eds.), Western Liberalism: A History in Documents from Locke to Croce (London, 1978), 12—25. 65 Bowring, iv. 64. 66 Dinwiddy, ‘The Classical Economists and the Utilitarians’, p. 21. 67 See Lyons, ‘Benevolence and Justice in Mill’, pp. 42-70. 68 Bahmueller, The National Charity Company, p. 2.

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98Security3 Expectation, and Liberty In this passage, Bahmueller puts the greatest emphasis of all Bentham’s recent critics, on the use of the law as a means of controlling and reconstructing human personality. Consequently, Bahmueller argues that Bentham had no commitment to liberty, but a totalitarian desire for control, order, and certainty. All of the criticisms advanced by the three authors concentrate on the role of law within Bentham’s utilitarian theory. They rely on an interpretation of Bentham’s utilitarianism which leaves no room for the value of freedom or liberty within his thought. They also argue that because he attached no value to liberty he had no difficulty in banishing it from his system. Underlying these criticisms is the view that a negative theory of liberty as the absence of constraint is a paradigmatic liberal argument. The abandonment of a negative conception of liberty in favour of a concept based on a coercive theory of law is, according to this argument, sufficient to show that Bentham had no substantial commitment to the value of liberty. However the claim that the pursuit of utility and a commitment to liberty are incompatible is a relatively recent one69 that has arisen out of attempts to provide a formal defence of a liberal political theory. One of the main sources for these recent arguments against Bentham’s utilitarian theory of liberty is to be found in Isiah Berlin’s famous paper ‘Two Concepts of Liberty’ .70 Berlin derives his distinction between the two concepts of liberty from a review of the arguments for freedom presented throughout the history of political philosophy. The distinction draws on a Hobbesian conception as the model of negative liberty and a Rousseauan model for positive liberty. Unlike some recent commentators71 Berlin does not attempt a formal analysis of the concept of freedom. However, underlying Berlin’s distinction there are two basic forms of argument. Firstly, he is committed to a pluralist conception of value which distinguishes questions of liberty from those of justice or security, and he rejects any monistic conception of value which connects liberty with other values. Secondly, Berlin suggests that positive conceptions of liberty tend towards totalitarianism because they distinguish! between a ‘noumenal’ self and an empirical self. This ‘noumendl’ self embodies an individual’s real interests, and knowledge of this ‘noumenal’ self enables the legislator to force an individual to be free, by forcing him to act on his real as opposed to empirical preferences. This latter strand of argument is only relevant to the discussion of Bentham, to the extent that it is used to support the view that only the negative theory of 69 Mill appears to have seen no fundamental incompatibility between utility and liberty, whatever formal difficulties, he may have had in combining the two within his utilitarian theory of justice. 70 I. Berlin, ‘Two Concepts of Liberty’, in Four Essays on Liberty (Oxford, 1969), 118-72. 71 See J. P. Day, ‘Individual Liberty’, in A. Phillips-Griffiths (ed.), O f Liberty, Royal Institute of Philosophy Lecture Series, 15, 1983), 17—29, G. C. MacCallum, ‘Negative and Positive Freedom’, Philosophical Review, 76 (1967, 312—34, and F. Oppenheim, Political Concepts (Oxford, 1981).

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Security, Expectation, and Liberty 99 liberty embodies a conception of liberal value. Although Berlin’s argument has attracted much controversy72 it has had a significant influence among political theorists concerned with the concept of liberty. It has also had an influence on the history of political thought in so far as it has provided a standard by which to judge the liberal credentials of many modern political theorists. In the case of Bentham the influence of the debate begun by Berlin is to be found in the difficulty many commentators have with reconciling a monistic conception of value with a liberal commitment to liberty. What is perhaps worse in Bentham’s case, as Long has argued,73 is that Bentham began with an analysis of liberty as a negative concept, and then abandoned it in favour of security. This suggests the complete abandonment of any commitment to liberty as such, a point Long goes on to argue. Long74 misapprehends the character of Bentham’s theory because he concentrates his discussion of Bentham’s theory of liberty on the attempt to reform the language of political thought as a necessary preliminary to developing the legislative project. While Bentham undoubtedly was concerned with the reform of the language of politics, this was subordinate to his utilitarian concern with the reform of political institutions. It is not that Bentham wanted to abandon the use of certain concepts because non-utilitarian theories could be derived from them. Rather it is that Bentham’s definitional concerns actually disguise his real concern, which was the criticism of rival theories of political morality which were in competition with utilitarianism. G. J. Postema has recently argued that Bentham’s definitional projects are not preliminaries to the utilitarian project, but are a subordinate means of pursuing that project.75 Postema argues, in particular, that some of the analyses given to fundamental legal concepts in O f Laws in General, are dictated by Bentham’s utilitarian concerns.76 It is clear that Bentham need not have provided the purely negative concept of liberty. Such analysis is not directly prescribed by utility. Bentham could have given an account of liberty in terms of security of expectation as liberty under the law and contrasted this with licence, which implies the total absence of all constraint, in a way similar to Locke and more recently Ronald Dworkin.77 Underlying Bentham’s negative analysis of liberty, there is a utilitarian enterprise that is more substantial than that of clearing away the 72 For the controversy that has arisen around Berlin’s argument see T. Baldwin, ‘MacCallum and the Two Concepts of Freedom’, Ratio, 26 (1984), 124-42, C. Taylor, ‘What’s Wrong with Negative Liberty’, in A. Ryan (ed.), The Idea of Freedom (Oxford, 1979), 175—93, and W. L. Weinstein, ‘The Concept of Liberty in Nineteenth Century English Political Thought’, Political Studies, 13 (1965), 145—62. 73 Long, Bentham on Liberty, pp. 73—5. 74 Ibid., pp. 65-83. 75 Postema, ‘The Expositor, the Censor, and the Common Law’, Canadian Journal of Philosophy, 9 (1979), 643-70. 76 Ibid., p. 645. 77 J. Locke, Second Treatise, Chap. 2, sect. 6 (Two Treaties of Government), R. Dworkin, ‘What Rights Do We Have’, Taking Rights Seriously (London, 1977), 267.

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100 Security, Expectation, and Liberty ambiguities of language as a preliminary to the legislative project. Bentham alluded to the character of this enterprise in a manuscript from the same group of early manuscripts that Long uses in his account of Bentham’s theory of liberty. He wrote: ‘In whichever of the three last senses liberty be understood it is either a branch of security, it is either comprised under the head of security, or it has no value.’78 Bentham’s point is that unless the concept of liberty can be brought under the principle of utility it cannot function as a moral value and loses much of its intuitive appeal. Bentham’s treatment of liberty in these early definitional writings79 is aimed at providing a non-utilitarian analysis of the concept and drawing the implications, in order to undermine anti-utilitarian arguments based on the priority of liberty. His argument in the case of liberty is similar to his treatment of the concept of equality.80 Bentham’s position in these early manuscripts is best interpreted as an attack on arguments which rely on a presumption in favour of liberty as an unargued first premiss. Because it is considered the chief liberal value, the burden of proof lies on those who want to deny its value to justify their case.81 The presumptive argument in favour of liberty is based on the fact that it is liberty-limiting strategies and practices which require justification. And given that the requirement of justification is always directed at interferences with liberty it must follow that there is a prima facie or presumptive case in favour of liberty. Bentham’s rejection of such a position is two-fold: firstly, while he recognizes that all limitations on liberty are an evil, some interference with liberty is essential in order to maintain and protect liberty, and secondly, the presumptive argument leaves open the question of what criteria should be used in order to distinguish those areas of liberty which must be protected and those which may be sacrificed in order to protect liberty. The presumptive argument diverts attention from the real issues arising from the problem of liberty by obscuring the need to distinguish categories of value within the realm of liberty. While Bentham is committed to the value of freedom in his acceptance of security of expectation as the primary object of his utilitarian principle of right, he rejects the use of such presumptive arguments. Indeed, it is possible to view much of his hostility to declarations of rights and the many appeals to liberty or freedom among radical pamphleteers in light of his rejection of presumptive arguments for liberty. Bentham shared a commitment to the substance of some appeals to liberty, but he rejected the use of uncritical appeals to liberty as a means of advancing political argument. The point of his negative concept of liberty is

UC c, 156. 79 Ibid., 96-186 and lxix. 1-42 and 57-68. Ibid., lxxxviii, 52-81, clx. 155—76 and 197—204. This connects with Bentham’s critique of the criterionlessness of rival moral theories discussed in Chap. 3, above. 81 For a discussion of presumptive arguments for liberty see J. Feinberg, Social Philosophy (Englewood Cliffs, NJ, 1973), 20—2, also Hart, ‘Are There any Natural Rights’, Philosophical Review, 64 (1955), 175-91. 78 80

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Security>Expectation, and Liberty 101 to show that outside of a normative framework the concept of liberty collapses into a purely descriptive term referring to the absence of constraint. An absolute commitment to liberty above all other values would be ‘directly repugnant to the existence of every kind of government’,82 and would remove much of the normative force attached to the concept. Such an absolute appeal to liberty would also be an anarchical principle because of the absence of a public criterion for its application and a priority rule which facilitates arbitration between conflicts of liberty. Without a public criterion for the extension of liberty, an absolute principle of liberty collapses into an anarchical principle, because it undermines the conditions of social interaction. This is what is implied by Bentham’s claim that an unrestricted liberty principle would be antithetical to any government.83 According to Bentham, the appeal of liberty lies in its relation with other normative concepts within his moral theory. This, I believe is the main point of Bentham’s rejection of liberty in favour of security. Therefore, while it is right for Dinwiddy to argue that Bentham ‘did not value liberty for its own sake’,84 few political theorists have argued that liberty is good in itself, and have not introduced some instrumentalist considerations which necessarily refer the concept to a normative framework. Most classical liberals who attach supreme value to liberty nevertheless attempt some justification of the normative force of that concept. For example, J. S. Mill85 and F. A. Hayek86 base their commitment to liberty on its being a necessary condition of progress and the advancement of civilization. A purely descriptive account of liberty, of the sort Bentham provides in the early manuscripts, and then rejects, enables no substantive distinctions to be drawn between types of coercion or restraint. A public health ordinance requiring the clear labelling of poisons is as much an infringement of a person’s liberty as the denial of freedom of religious expression or the censorship of ideas the legislator regards as contrary to social harmony. Recent criticisms of a presumption in favour of liberty, advanced by Joseph Raz87 and Charles Taylor,88 reflect a similar position to that which I attribute to Bentham. Both Raz and Taylor argue that attempts to provide a completely negative account of liberty are unable to make important qualitative distinctions of the sort that are customarily made in the case of liberty. Raz says of the presumption in favour of liberty: It does not assign any greater weight to our concern for religious freedom or for freedom of expression or for the freedom to have a family than to the freedom to kill UC lxxxviii, 69. For Bentham’s critique of anarchical principles see Chap. 3, above. Dinwiddy, ‘The Classical Economists and the Utilitarians’, p. 21. Mill, On Liberty, in Essays on Politics and Society (The Collected Works of John Stuart Mill, xviii and xix). 86 Hayek, The Constitution of Liberty (London, 1960), and Law, Legislation and Liberty, i, Rules and Order (London, 1973). 87 Raz, The Morality of Freedom, p. 11. 88 Taylor, ‘What’s Wrong with Negative Liberty’, p. 183. 82 83 84 85

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people we dislike, or be cruel to animals, or spend a fortnight on the summit of Ben Nevis.89

In the absence of some criteria by which one can identify those spheres of liberty that matter, the presumptive argument does little interesting philosophical work.90 When his rejection of the descriptive account of liberty is coupled with the two following arguments a good case is made for the incorporation of the value of liberty within the framework of utility as happens with the substitution of security for the concept of liberty. The first argument against the possibility of liberty acting as a self-sufficient value is that it is too indeterminate. Liberty cannot be a natural right if it is meant to imply the absence of constraint, because it would conflict with many other values which have an equal intuitive appeal. Many restrictions on freedom of action, which have the effect of protecting person and property would, nevertheless, be inconsistent with a natural right to liberty. Such a natural right, as Dworkin has recently argued91 would be absurd because it would conflict with other practices that liberals also consider valuable. One of the strengths of utilitarianism is its ability to provide criteria for arbitrating between rival value claims. Therefore, it is precisely in such difficult circumstances that utilitarianism appears an attractive alternative to absolute moral principles. The second argument against liberty acting as a self-sufficient value takes as its target an attempt to get around the conclusion of the previous argument. If there can be no general right to liberty, it is argued there can be moral rights to specified liberties. Thus, it would be possible to argue that the most free society is one in which there is respect for the greatest number of these liberties. Bentham’s criticism of the possibility of specifying such a list of liberties is that it is impossible to make such an identification of liberties outside of a normative framework which determines the qualitative distinctions among them .92 It is impossible to identify such a class of liberties because to do so would depend on the prior existence of a system of value which gives substance to a distinction between liberty and licence. The freedom to choose and pursue one’s own life plan is more important than the freedom to drive on the right-hand side of the road in the United Kingdom. However, according to Bentham, it is only possible to justify these claims against the background of a normative system which gives substance to the most important spheres of personal freedom, and which arbitrates in cases of conflict between rival values. The ability to Raz, The Morality of Freedom, p. 11. For an illustration of how Hart has moved away from the argument of ‘Are There any Natural Rights’, see his ‘Between Utility and Rights’, in A. Ryan (ed.), The Idea of Freedom (Oxford, 1979), 77—98; see also the discussion in T. Waldron, The Right to Private Property (Oxford, 1988), 100-1. 91 Dworkin, Taking Rights Seriously, p. 267. 92 A similar line of argument is advanced by O. O’Neill, ‘The Most Extensive Liberty’, Proceedings of the Aristotelian Society, 80 (1980), 45-59. 89 90

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Security, Expectation, and Liberty 103 detemine a body of the most important liberties presupposes a criterion by which such an evaluation can be made. It was consistently Bentham’s position that utility provided the only defensible criterion by means of which such value distinctions could be made.93 Given that Bentham rejected the possibility of providing a criterion for determining claims about liberty other than that provided by utility, it is not surprising that he subordinated liberty to the principle of utility. Neverthe­ less, the subordination of liberty within a utilitarian framework by rendering an account of freedom in terms of security, does not preclude a defence of Bentham’s utilitarian political morality as substantively liberal. He rejects the presumptive argument for liberty, and it is this which is responsible for the view that he cannot have been a liberal. The spheres of security and liberty are extensionally equivalent to Bentham’s theory because the former embodies the formal conditions within which an individual can pursue his interest and which are neutral among the various particular conceptions of individual well-being. The substance of any commitment to liberty is a pattern of rights which provides the framework of personal inviolability within which freedom obtains. This suggests that the provision of security is a necessary condition of liberty and that the two concepts are connected. Although I have argued that Bentham’s commitment to security of expectation is partly co-extensive with a commitment to liberty, the degree of that commitment is to be measured not by securing expectations, but by how widely the realms of personal inviolability protected by security are defined. This distributive question will be discussed in a later chapter. 93

See Chap. 3, above.

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[7] Liberty and Constitutional Theory Frederick Rosen

‘The Definition of Liberty’, wrote Jeremy Bentham in 17 7 6 , ‘is one o f the corner stones o f my system: and one that I know not how to do without . ’ 1 When he wrote these words, he was assisting his friend John Lind in the latter’s critique o f Richard Price’s influential pamphlet Observations on the Nature of Civil Liberty ( 17 7 6 ).2 His role was mainly one o f supplying Lind with numerous character­ istic ideas which Lind employed with considerable rhetorical effect in articles and pamphlets directed against Price’s conception o f liberty and support for American independence .3 Bentham’s most important contribution was his clarification of the concept o f liberty, and it was at this time that he developed important ideas about liberty which were to have a lasting influence on his constitutional theory.

i. Locke and Price on Liberty The conception o f liberty which Bentham opposed in Price’s theory might best be described as Lockean. Locke conceived individual liberty as ‘a power iji any agent to do or forbear any particular action’, and he linked liberty, defined in terms o f power, with both reason and law .4 Locke’s conception was both negative and positive. On the one hand liberty was conceived as the absence of constraint and was in this sense negative; but in being conceived Correspondence, i, ed. T. L. S. Sprigge (London, 1968) (CW), 3 1 1 . The full title of Price’s pamphlet is Observations on the Nature of Civil Liberty, The Principles of Government, and the Justice and Policy of the War with America (London, I 7 7 ii ( 1967 ). 6 A Comment on the Commentaries and A Fragment on Government, I. 10 (CW), p. 428 . 1891 , p. 59 .

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own analysis. The most important discussion occurs in chapter IV where he considers Blackstone’s contention that in every state there must exist a supreme authority which possesses an absolute authority to make laws .7 After ridicul­ ing Blackstone’s rhetoric and logic, he turns to a passage which he singles out especially for comm ent: ‘However they began, or by what right soever they subsist, there is and m ust be in all of them a suprem e, irresistible, absolutes uncon­ trolled authority, in which the jura su m m i im perii, or the rights o f sovereignty, reside / 8 Bentham declares that here Blackstone reveals his central concern but that he does it in an obscure manner .9 This concern is with the adjustment of claims between liberty and government. In Bentham ’s view Blackstone’s statem ent regarding sovereignty does little to resolve the matter and, more im portantly, would lead to inevitable conflict. On the one hand, Blackstone’s declara­ tion of sovereignty serves only to gain submission from those who seek resistance to the law. On the other hand, his earlier remarks about laws o f nature and revelation encourage resistance. Between Blackstone’s two positions Bentham believes that no solution is possible: at one pole, absolute sovereignty; at the other, a right o f resistance. At this point we might expect Bentham to advance his own conception of sovereignty, but instead he first argues that the em ploym ent o f the principle o f utility can resolve the problem created by Blackstone’s concept o f sovereignty. The principle of utility requires a calculation of the ‘prob­ able m ischiefs’ o f resistance as opposed to the ‘probable m ischiefs’ o f submission to any particular law . 10 This cal­ culation can be discussed by opposing parties, evidence from the past and relevant facts can be set forth, and, in theory as well as practice, a dispute such as this about a law is more likely to be settled. Just as with the earlier treatment o f political society, Bentham does more than replace Blackstone’s formula­ tion with a clearer one. He replaces what has becom e in 7 Ibid., IV. 1- 2 , p. 474 . 8 Ibid., IV. 13 , p. 480 , quoting from W. Blackstone, Commentaries on the Laws of England ( 1765 - 9 ), 1.48 - 9 . 9 Ibid., IV. 14 - 15 , p. 480 . 10 Ibid., IV.21 , p. 484 .

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Blackstone’s hands at best an a priori doctrine or at the worst mere rhetorical assertion with a matter-of-fact account of the same phenomena. Political society is not founded on an original contract or similar principles, but rather we can easily say that a political society exists so long as the habit of obedience persists. Similarly, the conflict between liberty and government power need not be an unresolvable conflict of principle, but is a resolvable one o f utilitarian calculation. This transformation o f the problem o f sovereignty is perhaps more important than Bentham’s suggestions regarding the character of sovereignty. Although Bentham does not reject the association of sovereignty with a supreme coercive authority or with a supreme legislative authority, he seems anxious to avoid rigid categories and especially to avoid plac­ ing himself in a position similar to that of Blackstone where sovereign power on the one hand confronts individual rights on the other. Bentham ’s few remarks on the character o f sovereignty reveal it to be a more flexible notion designed to serve more m odest ends. H. L. A. Hart has noted that Bentham’s early view of sovereignty (unlike that of Austin) incorporates the notions of the legal lim itation and division of sovereign power and the possibility o f a plurality of sovereigns with each possessing full sovereign power . 11 Bentham incorporates these ideas because he recognizes that there are or were states where these characteristics of sovereignty have existed and his conception o f sovereignty is sufficiently flexible to cover these actual cases. II For the most part sovereignty means for Bentham the author­ ity to make laws . 12 However, once Bentham in the Code places sovereignty in the people, he can no longer see sovereignty in this light. Instead he declares that the legislature is ‘om ni­ com petent’: The Supreme Legislature is omnicompetent. Coextensive with the territory of the state is its local field of service; coextensive with the field of human action is its logical field of service.— To its power, 11 12

Hart, ‘Bentham on Sovereignty’, in Parekh, op. cit., p. 147. Of Laws in General, ed. H. L. A. Hart, London, 1970 (CW), p. 1.

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there are no limits. In place of limits, it has checks. These checks are applied, by the securities provided for good conduct on the part of the several members, individually operated upon.13 The term ‘om nicom petent’ may well have been invented by Bentham, and the first use recorded in the O xford English D ictionary is Bentham ’s. And if, by chance, he did not invent the term, he must surely have been the first person to use it in place of sovereignty . 14 In calling the legislature omni­ com petent, Bentham avoids any direct reference to absolute power. The om nicom petent legislature is not om nipotent The main feature of sovereign power which he ascribes to the legislature is that it is unlimited. It is not lim ited terri­ torially within the state and may legislate regarding any activity in it. More im portantly, possessing unlim ited power, no act o f legislation should be considered null and void. The legislature is not bound by the constitution or by any enact­ ments of previous legislatures. Nevertheless, the unlimited power of future legislatures places certain limits on the present one in that no existing legislature can necessarily legislate for the future . 15 Furthermore, Bentham proposes that acts of previous legislatures are confirmed unless the present legislature acts to change them . 16 But, if a legislature makes a contract with a person or another government, and afterwards does not see fit to observe it, it cannot be com­ pelled to do so by any court . 17 The only remedy lies with the sovereign constitutive authority which can remove the legis­ lators from office. Bentham justifies his provision for unlimited legislative authority by arguing that an om nicom petent legislature is most directly responsive to the electorate. With om nicom petence there need be no delay b y the legislature or any excuse which would prevent action being taken in accordance w ith the will o f the electorate. Nevertheless, it might be argued that in 13 Ch. VI, § 1, Art. 1 (CW), pp. 41 - 2 . 14 Dicey, for example, has to distinguish between two kinds of sovereignty, political and legal, in making a similar distinction between sovereign electors and a sovereign parliament as two sources of supreme power in the state. A. V. Dicey, Introduction to the Study of the Law of the Constitution, London, 5th ed. 1897 , pp. 69 ff., 358 . 15 Ch. VI, § 1, Art. 2 (CW), p. 42 . 16 Ibid., Art. 3 . 17 Ch. VI, § 2, Arts. 1-11 (CW), pp. 45 - 7 .

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giving om nicom petence to the legislature but retaining sovereignty in the people, Bentham is falling into, the same difficulty that he earlier found in Blackstone. The om nicom ­ petent legislature may see its role as one o f directing the people rather than being directed by them. And the people might conceive of their power in terms of rights which they possess. Bentham does not deny that the legislature might substitute omnipotence for om nicom petence, but it is the latter and not the former which he grants to it. And the obstacle to om ni­ potence being assumed by the legislature lies not with rights but with what Bentham has called ‘securities for appropriate aptitude’. Securities, as we shall see in chapter IV, are devised by Bentham to replace rights which directly limit legislative power. Securities are indirect means o f preventing the legis­ lature from abusing its power. The Public Opinion Tribunal, acting through widespread publicity and criticism, as we have seen, is an important source o f securities against the legis­ lature. The proposed short term o f office for legislators is another, as is the power o f the electorate to remove individual legislators from office . 18 Bentham does not claim that in every state there is an om nicom petent legislative power. He would not agree with S. I. Benn’s location of ‘om nicom petence, in the amend­ ing organ of the American constitution (Congress plus three-fourths of the States ) . 19 For Bentham, the legislature ought to be om nicom petent, but most legislatures were not. He was well aware that his doctrine conflicted with the con­ stitutional separation o f powers, bill of rights, and federal system of the United States, but he believed that an om ni­ com petent legislature was superior and could be justified on utilitarian grounds. However, it would be pointless to look for an om nicom petent legislature in every state as if om ni­ competence was a necessary characteristic of legislatures. Legislatures might possess the authority to make laws while sharing this authority w ith other bodies. The legislature would not be om nicom petent but it would still be a legis­ lature.

18 A full list of securities applying to the legislature may be found at ch. VI, § 31 , Arts. 42-5 (CW), pp. 130- 5 . 19 S. I. Benn, ‘The Uses of “Sovereignty” * Political Studies, iii ( 1955 ), re­ printed in Stankiewicz, op. dt., pp. 76 - 7. Note that Benn adopts Bentham’s term.

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III It was perhaps inevitable that once Bentham favoured repre­ sentative democracy, he would have difficulty combining the association of sovereignty both with the power to legislate and with a supreme directing power in the state. But because he did not formulate this notion of a supreme power in as rigid a manner as Blackstone did, he found little difficulty in depicting the people as sovereign and the legislature as om nicom petent. J. H. Bum s has argued that some important aspects of Bentham’s transfer of sovereignty to the people in the C onstitutional Code were anticipated as early as the Intro d uction to the Principles o f Morals and Legislation. Here, writes Bums, Bentham (a) asserts the ‘fiduciary character’ of supreme power; (b) recognizes that under nonautocratic rule sovereign power should be divided into executive and legislative power; and (c) recognizes ‘a power anterior to that of the sovereign’ which could ‘invest deter­ minate persons with the supreme power itself ’ .20 These notions reappear when Bentham makes the important shift in the Code to place sovereignty in the people. Never­ theless, perhaps the change in doctrine is more important than the continuity. Bum s sees the change between the early Intro d uction and the later Code as threefold: (a) sovereignty becom es no longer a power to legislate; (b) it is no longer a power to execute and administer the laws; and (c) the concept of lim itation by convention or law disappears from the argu­ m ent, ‘for what limits could be relevant to a Benthamic people pursuing by majority rule and representative institu­ tions the greatest happiness o f the greatest number ? ’ 21 The first two changes are obvious. The sovereign people possess neither legislative nor executive power. However, that Bentham thought that the sovereign people possessed un­ lim ited power is far from clear. Bum s tends to dismiss the functional limitations on the sovereign people (e.g. that their power is limited to electing and dismissing various 20 J. H. Bums, ‘Bentham on Sovereignty: An Exploration*, Bentham and Legal Theory, ed. M. James, Belfast, [ 1974 ], pp. 138- 9 , reprinted from the Northern Ireland Legal Quarterly xxiv ( 1973 ). See An Introduction to the Principles of Morals and Legislation, XVI. 54 n. (CW), p. 263 . 21 Bums, ‘Bentham on Sovereignty*, in James, op. cit., p. 149 .

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authorities) as not involving a direct procedural lim itation .22 Presumably, the sovereign people, using the limited powers to appoint and dismiss, can act via the majority and in pursuit of the greatest happiness without any limitation. Burns’s analysis ignores the fact that these ‘functional’ limitations on the soveriegn people are created by virtue of the other authorities in the state: legislature, judiciary, and administra­ tion. Although the sovereign people in a limited sense direct these other authorities in appointing and/or dismissing them, they in turn limit the activities o f the people. Put simply, the sovereign people obey as well as direct the government. Furthermore, the sovereign constitutive authority in its electoral capacity consists of citizens only, people, who, by virtue of the constitution (and Election Code) ai*d being mature, male and literate, have the right to vote. The very notion of a constitutive authority based on qualifications for citizenship and acting according to a constitution implies limitations. It is true that the other authorities in the state are designed to be more responsive to the sovereign people than was the case in the United States. But this is not to conceive of an unlimited sovereign power in the people in Bentham’s plan. Finally, Bentham ’s proposals for popular sovereignty in the Code are prescriptive, and it does not follow from his prescriptions that the supreme power in society cannot in fact be limited by express convention. Bentham would hold that governments thus limited are still sovereign govern­ m ents .23 Indeed, Bentham himself provides for the adapta­ tion of the Code to a federal structure which might limit in important ways the exercise o f popular sovereignty . 24 IV One of Bentham’s most interesting contributions to a theory of sovereignty is his argument in justification o f popular sovereignty. This material was written as ‘Rationale’ for the 22 Ibid. 23 See A Comment on the Commentaries and A Fragment on Government, IV. 34-5 (CW), p. 489 . 24 Ch. VI, § 3, Art 5 (CW), p. 47 .

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brief assertion o f popular sovereignty quoted above but was eventually dropped from the published Code. His editor, Richard Doane, used some of the manuscripts in his ‘Book I’ in the Bowring version, but his selection and arrangement of the manuscripts resulted in a confused and inadequate dis­ cussion .25 In the manuscripts Bentham sets out to argue that the people have a greater aptitude for sovereign power than any other person or group, and especially a monarch. This argument, nearly obscured in the Doane version, is presented in a series o f manuscripts written in August 1824.26 Bentham approaches the justification of popular sovereignty through his conception of moral aptitude, but his notion must not be confused with traditional ideas o f morality and virtue. By moral aptitude he means specifically the desire to secure ‘to the greatest number, the maximum of hap­ piness 5. 27 In this sense, he believes that the people are morally apt (or are not deficient) for the exercise of sovereignty. In the 1824 manuscript he proposes to ‘prove’ this assertion, and he first sets out the people’s case and then the monarch’s. What Bentham means by ‘p ro o f in this context is not clear, but he adopts the language of ‘desires’ and ‘interests’ and attem pts to develop an argument using these notions. It is worth emphasizing that Bentham does not use the argument here, which is often im puted to utilitarians, that each man is the best judge o f his own interests and therefore is best placed to decide who should be his rulers and when one set o f rulers should be dismissed and replaced, with another. The argument supporting the aptitude o f the people is different. The people’s case consists of two main arguments. Firstly, each person desires his own happiness and endeavours to secure this at the expense of that of everyone else. But as each man tries to achieve this end, he runs into the opposi­ tion of everyone, and his own endeavours are without success. However, in so far as the pursuit of his own hap­ piness coincides with that of others, or does not thwart theirs, the endeavour o f each assists that of all: 25 See Bowring, ix. 96 - 8 . 26 UC xxxvii, 387-412 (22-4 August 1824 ), xxxviii, 216-19 (25 August 1824 ). 27 UC xxxviii, 216 .

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In the language of interest, each has a particular interest; all have a common interest: what is b y all believed to be the common interest of all, is endeav [our] ed to be promoted by all. [E]ach particular interest is opposed by those and those only, by whom it is regarded as adverse to their own.28

It is tempting to invoke in this context Rousseau’s distinction between the ‘general w ill’ and the ‘will of all* but Bentham ’s distinction is not like that o f Rousseau .29 Bentham accepts that on all occasions the individual would wish to advance his own interests a t the expense o f those of others, and this premiss becom es important in his later critique o f the moral aptitude of the monarch. Thus, each individual must have some reason or incentive to advance only those interests which coincide with the com m on interest. The first incentive is that by and large the individual, following his own interest at the expense o f others, will encounter the opposition o f others and will not be successful. The second is that in con­ forming to the com m on interest he will gain more not only by his immediate success, but he will also gain by participat­ ing in the aggregate happiness o f society. Furthermore, Bentham’s argument is advanced from within his definition of sovereignty. The people are not making legislative deci­ sions, reaching some higher consensus, or expressing a general will. Their task is simply to choose their governors and remove them if they are not satisfied with them . The role is a limited one and must be understood in terms o f the relation­ ship between agents or representatives and the people. This takes us to his second main argument that in the pursuit o f the ends of subsistence, abundance, security, and equality no individual can find a representative who depends on the votes of a number of electors but will satisfy the desires of that individual at the expense of every other individual he represents. Indeed, the representative will find that his success will depend on advancing those com m on interests of a majority of his constituents where the interests of each individual do not thwart those of others. The main objection to these arguments is that they depend excessively on the interests of the solitary individual as UC xxxviii, 217. See J. J. Rousseau, The Social Contract, trans. M. Cranston, (Penguin ed.), 1968, Bk II, ch. 3, pp. 72-3. 28 29

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opposed to those of the group or party. But it must be remembered that Bentham is not giving an account of the origins of society or the basis of political obligation as we find in Hobbes, Locke, Hume, or Rousseau. He is presenting a more limited argument in justification of granting to an educated, settled electorate the power to choose and remove its governors. In thinking and in acting, this electorate may well emphasize group and party loyalties, but in their use o f the secret ballot and representative system , and in some of their perceptions o f their interests in security and subsis­ tence, for example, they may also express themselves as individuals. In expressing themselves as individuals, they are called upon to make som e fairly simple calculations about securing interests in relation to a choice of governors. Bentham can rightly insist that individuals, as individuals, possess the capacity to make these calculations from an individual perspective. Bentham only claims that the sovereign people better serve the greatest happiness o f the greatest number than would a monarch as sovereign. His argument against the monarch is that he has the power and is in the position to sacrifice the happiness of everyone to his own or to those who in turn would augment his happiness. He develops a number o f arguments, but once having admitted that each man serves his own interest at the expense of all others, it remains only to show that the monarch, above all, is in the position to do this to the greatest extent. And if moral aptitude consists o f endeavouring to secure the greatest happiness of the greatest number, then a monarch must fail in this respect. The people, with incentives to advance the com m on interest through a representative system , would be more likely to succeed. Bentham develops his argument a stage further by showing that the representatives in a democracy will be more likely to becom e morally apt because they need to secure the votes o f a majority of electors. The agents of a monarch, however, will be successful only as they sacrifice the greatest happiness to serve the monarch . 30 Thus, the moral aptitude o f the people stimulates the moral aptitude of the representatives and vice versa. 30 UC xxxvii, 406 - 7.

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The significance o f Bentham’s argument might be made more explicit by comparing it with the well-known argument of Rousseau .31 For Bentham, the individual can perceive unaided the gains which he can make by advancing interests which he shares in comm on with the ‘greatest number’. Although he accepts that law and punishment may be required to join duty with interest, that is to say, to require individuals to follow what is in the comm on interest, it is not at the level of the exercise o f sovereign power that legal sanctions are required. Thus he avoids the idea of a sovereign power which itself compels the individual to pursue the comm on interest. Sovereignty is divorced from the notion o f a supreme coercive force in society, and in this sense, Bentham avoids all of the ambiguity and confusion associated with Rousseau’s notion of being ‘forced to be free’. He also avoids the very notion of a supreme coercive force and replaces it with a more plausible empirical conception of power distributed among various institutions (judiciary, legislature, police, etc.). Another important comparison might be made with James Mill. He, o f course, recognizes the importance of the repre­ sentative system as a great security for good government in the hands o f the people. But, at least in the Essay on Govern­ m e n t, he fails to grasp Bentham’s insight, that the representa­ tive system itself may be used to justify placing sovereign power in the hands o f the people. Besides making rulers accountable to the ruled, it can make the ruled an able chooser of rulers. Bentham is thus able to use the representative system to justify an extensive popular sovereignty, a step which both James Mill and John Stuart Mill hesitate to take. Having established that the people have the moral aptitude to exercise sovereign power, Bentham then turns to argue that they possess the intellectual aptitude. He admits that the people do not possess the intellectual aptitude for governing, but only for choosing their rulers. He argues that by con­ sultation among themselves as to who are com petent judges of intellectual aptitude, those who feel unable to make a choice of governors will for the most part defer for advice to those who are able to do so . 32 He cites the success of the 31 See Rousseau, Bk. I, ch. 7 , pp. 62 - 4 . 32 UC xxxvii, 408 .

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United States as evidence that this way of choosing governors will produce no worse governors than any other, especially in comparison with monarchy. In turning to the intellectual aptitude of monarchs, Bentham first argues that intellectual aptitude must be related to moral aptitude . 33 Knowledge and judgm ent are beneficial according to the purposes to which they are applied, beneficial if applied to the advancement of the greatest happiness of the greatest number, pernicious if applied to the happiness of the in­ dividual at the expense o f the greatest number. The monarch, who seeks only his own happiness at the expense of the greatest number, will fail with respect to the exercise of appropriate moral aptitude. Bentham’s main argument is that the cultivation o f intellectual aptitude requires great exertion and self-denial and that the monarch has little or no incentive to exertion. And where accident has com ­ bined supreme power and intellectual ability, as in the cases o f Napoleon and Frederick the Great, their achieve­ ments have been dissipated by the separation o f their intel­ lectual ability from moral aptitude, for example, in their embarkation on wars of ambition. But for the most part monarchs have not been noted for intellectual achievement, and, even more, have been noted for widespread in­ com petence and insanity. Bentham never tires of setting forth a survey of the state of European monarchy in his day. The final step in Bentham’s argument in the 1824 manu­ script is to establish that the people’s representatives possess sufficient intellectual aptitude . 34 Bentham in part repeats what he says about the moral aptitude o f representatives, that those of the people would be more likely to use their intellects in the service of the greatest number than those of the monarch. In addition, by his ignorance and indolence, the monarch lacks the incentive and intelligence to choose able advisors and agents which further diminishes the likelihood o f their possessing intellectual ability. 33 UC xxxvii, 409 . 34 UC xxxvii, 411 . Note that Bentham does not complete the argument by dealing with active aptitude, but his argument would not differ in form from that advanced regarding intellectual aptitude.

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One interesting part o f this argument, which Bentham does not develop, is that the people will naturally defer to those among themselves who are able to advise on the best choice o f governors. He seems to have faith in the ordinary man that he will seek the best advice before casting his vote, or at least that he will be disposed to do so unless corrupted by sinister interests. This is a limited deference, confined to the choice of governors, but Bentham seems to suggest that a similar deference to intellectual aptitude will take place generally in society in the importance he gives to the press and public opinion in the day to day operations o f govern­ ment. We should note o f course that he does not advocate deference to governors, but rather the contrary; he advocates the maximum distrust of governors by the governed. His acknowledgement o f a pattern of deference within the elec­ torate is combined with a confirmation o f his view that supreme power should be placed in the people. Unlike J. S. Mill, he can recognize the importance o f deference w ithout questioning the aptitude of the people to exercise sovereign power . 35 We have seen how Bentham has taken the problem of sovereignty from the context of the related problems o f order, obligation, and law in society and has transformed it into the foundation for the establishment o f the best form of government, a constitutional democracy. The important question regarding sovereignty is where it ought to be located in a society, if that society is to be well governed. Popular sovereignty by no means ensures that the society will be well governed, but Bentham argues that without popular sovereignty it will never achieve this goal. Nevertheless, there must also be some protection for the individual against the abuse of power by government. Popular sovereignty may be based on the individual’s perception o f his interests, but other concepts and practices are necessary if these individual interests are to be secure. 35

This theme is discussed at length in chapter X below.

Part IV Polity and Economy

[11] Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham’s Economic Thought* P. J. KELLY University of Chicago

Between 1787,1 and the end of his life in 1832,2 Bentham turned his attention to the development and application of economic ideas and principles within the general structure of his legislative project. For seventeen years this interest was manifested through a number of books and pamphlets, most of which remained in manuscript form, that develop a distinctive approach to economic questions. Although Ben­ tham was influenced by Adam Smith’s A n Inquiry into the Nature and Causes of the Wealth of Nations, he neither adopted a Smithian vocabulary for addressing questions of economic principle and policy, nor did he accept many of the distinctive features of Smith’s economic theory. One consequence of this was that Bentham played almost no part in the development of the emerging science of political economy in the early nineteenth century .3 The standard histories of economics all emphasize how little he contributed to the mainstream of late eigh* A version of this paper was first presented at the History of Economics Society Conference at the University of Toronto, 18-21 June 1988.1 am grateful to Jim Crimmins, Bob Fenn, Marco Guidi, John Dinwiddy and Don Jackson for their comments on that paper. 1 Bentham began work on Defence of Usury, his first sustained work on an economic subject, while still in Russia, between January and April 1787. However, he first refers to Political Economy in a work dating from 1782: ‘A General View of a Complete Code of Laws', The Works of Jeremy Bentham, ed. John Bowring, 1 1 vols., Edinburgh, 1843, iii. 155-210, was first published as part of P. fi. L. Dumont’s Traites de legislation civile et penale, 3 vols., Paris, 1802. 2 While in Jeremy Bentham’s Economic Writings, ed. W. Stark, 3 vols., London, 1952-54, Stark argues that Bentham’s main concern with political economy ended in 1804, it is clear from such works as Observations on the Restrictive and Prohibitory Commercial System, London, 1821, and ‘Colonization Society Proposal’, c. 1831, Bentham MSS UC viii. 149-91, University College London, that economic questions were at the forefront of his thought until the very end of his life. Stark does not include the latter of these works in his edition of Bentham’s economic writings, but there is a good case for including it in a new edition on the grounds that the problem of colonization arose from the problem of underemployed capital and unemployed labour. 3 A good account of the growth of economics as a science is given in a number of the essays in J. Burrow, S. Collini, and D. Winch, That Noble Science of Politics, Cambridge, 1983.

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Utilitarianism and Distributive Justice 63 teenth and early nineteenth-century debate by concentrating atten­ tion on his utilitarianism and the psychology of hedonism on which it is premised.4 Others have argued that the calculating nature of his theory of practical reason reduced the whole legislative project to a crude attempt to apply economics to all aspects of social and political life .5 Put at its simplest this argument amounts to the erroneous claim that Bentham’s science of legislation is reducible to the science of political economy. A different but equally dangerous error would be to argue that because Bentham’s conception of the science of legislation comprehends all the basic forms of social relationships, there can be no science of political economy as there is no autonomous sphere of activity governed by the principles of economics. This approach is no doubt attractive from an historical point of view given that the major premise of this argument is true, and that many of Bentham’s ‘eco­ nomic’ arguments are couched in terms of his theory of legislation .6 Yet it fails to account for the undoubted importance of political economy within Bentham’s writings, not just on finance, economic policy, colonies and preventive police, but also in other aspects of his utilitarian public policy such as prison reform, pauper management, and even constitutional reform.7 All of these works reflect a conception of political economy in its broadest terms. However, this conception of political economy differs in many respects from that of Bentham’s contemporaries, and for this reason Bentham’s distinctive approach to problems of economics and political economy has largely been mis­ understood. This paper will not attempt to address in detail the form of Ben4 See E. Roll, A History of Economic Thought, London, 1938, p. 20 1 ; J. A. Schumpeter, History of Economic Analysis, New York, 1954, pp. 128-34 and 407-10; and O. H. Taylor, History of Economic Thought, New York, 1960, pp. 118-45. See also W. Letwin, ‘Review of Jeremy Bentham’s Economic Writings, vol. i. ed. W. Stark’, Journal of Political Economy, lxii (1954), 358-59. Letwin wrote: Unfortunately the value of this selection is marred as that of a complete edition would not be, by the editor’s critical theory. The defect arises from Stark’s interpretation of Bentham’s place in the development of economic theory. That Bentham inherited the foundation of his economic thought from Smith, Stark closely recognises. But he has apparently concluded that Bentham’s own contributions to economic thought lie in detailed corrections, elaborations and variations of Smith’s doctrine. He has conse­ quently attributed importance to writings that only summarize Smith’s theory and has slighted Bentham’s theory of utility, which is his interesting and original contribution to economics even if it played little part in his purely economic writings, [p. 358] 5 See Marx, The German Ideology; see also J. Cropsey, ‘On the Relation of Political Science and Economics’, American Political Science Review, liv (1960), 3-64; and C. B. Macpherson, The Life and Times of Liberal Democracy, Oxford, 1977, pp. 29-34. 0 In particular see Defence of Usury, Stark, i. 123-207; Supply Without Burthen; or Escheat Vice Taxation, Stark, i. 282-367; and ‘Defence of a Maximum’, Stark, iii. 249-302. 7 The significance of economic ideas within Bentham’s Constitutional Theory will be further emphasised with the publication of First Principles Preparatory to Constitutional Code, ed. P. Schofield, Oxford, 1989 (The Collected Works of Jeremy Bentham).

Jeremy Bentham

64 P. J. Kelly tham’s theory of political economy, as that task will form the subject of subsequent works. Nevertheless, in the course of presenting my argu­ ment, I will assume a particular characterization of his theory. Only in the final section will I be able to develop in more detail the true character of Bentham’s theory of political economy. At present all I intend to do is to suggest as my starting point that Bentham intended to reconstruct the economic liberalism that he derived from his reading of Adam Smith, in terms of his utilitarian science of legislation. In this I largely follow Lionel Robbins, who argued that Bentham was one of the originators of the basic policies of Classical political economy, and should be considered along with Smith, Ricardo, Malthus, and McCulloch as one of the most important Classical theorists .8 These basic policies involve the limitation of government activity in the market­ place and economy, the rejection of mercantilism, and the location of primary economic power and initiative with individual agents. In categorizing Bentham’s economic thought as a version of economic liberalism, I acknowledge that this concept is necessarily indetermi­ nate and that any precise definition must remain contentious. How­ ever, it is not intended to refer to laissez-faire, or any absolute principle prohibiting any government competence in the market-place or econ­ omy.9 Instead it is meant to capture the actual positions of Smith, and other Classical theorists. That is, that economic power and initiative are located with individual agents, such that the outcome of economic interaction is the consequence of uncoerced relationships established between individuals pursuing their own conceptions of well-being. Thus while government can exercise power within the economy, its purpose should be that of facilitating the pursuit of private goals, and not attempting to determine the substantive outcome of economic activity .10 Although this account does not entail the 8 L. C. Robbins, The Theory of Economic Policy in English Classical Political Economy, London, 1952, p. 2. 9 For the argument that Bentham was an apostle of laissez-faire, see A. V. Dicey, Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, 2nd edn., London, 1905, p. 44; L. Stephen, The English Utilitarians, 3 vols., London, 1900, i. 310; and W. H. Hutt, Economists and the Public: a Study of Competition and Opinion, London, 1936, p. 137. For the opposite view, that Bentham was an originator of collectivist intervention in the economy and the market-place see, J. B. Brebner, ‘Laissez-faire and State Intervention in Nineteenth Century Britain’, Journal of Economic History (supplementary volume) viii (1948), 59-76; M. P. Mack, ‘The Fabians and Utilitarianism’, Journal of the History of Ideas, xvi (1965), 76-88; and J. Gray, Liberalism, Milton Keynes, 1986, p. 30. 10 This characterization of economic liberalism is rather more limited than that advanced in W. D. Grampp, Economic Liberalism, 2 vols., New York, 1965, ii. 73-155. Grampp argues that: Liberal economic policy is deduced from the political principle that free people may do what they will do and are able to do.... What I mean by it is this: (1) A measure of policy to be liberal must be a response to an economic problem which the people

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Utilitarianism and Distributive Justice 65 sort of rigid constraint on governmental sovereignty that is often implied by laissez-faire, some principled limitation of government competence in the market-place and economy must be implicit in the specification of the rationale of economic liberalism. This creates the problem which I will address in the remainder of the paper, namely the possibility of accommodating any formal limitations on the direct application of the principle of utility within Bentham’s thought. The standard interpretation of his utilitarian theory, at least since Stephen and Halevy ,11 has emphasized a distinction between the principles of psychological hedonism and ethical hedonism. The first principle asserts that individual agents will act so as to maximize their own utility. The second principle asserts that individuals ought to act so as to maximize the greatest happiness of the greatest number. The problem facing Bentham’s utilitarian legislator, is that of reconciling the conflicting aims of interest and duty. The solution to this problem has usually been interpreted as implying that the dictates of utility always take precedence over individual interests. The principle of ethical hedonism determines the direction of government and legisla­ tive policy, and individual interests are brought into conformity with this end by means of the imposition of coercive sanctions. While the principle of psychological hedonism is consistent with a conception of economic liberty, the principle of ethical hedonism places a higher value on the legislator’s determination of collective well-being than on an individual’s determination of his own interests. This has led one recent commentator to argue that: Viewed in itself, the principle of utility appears to be an absolute in Bentham’s thought. It both evaluates and compels government activity. More­ over, it implies that the legislative summing up of utilities is superior to the sum of privately sought utilities. Consequently, anything, even personal or economic freedom might be sacrificed if it produced a net increase in com­ munity utility.12 It has also become customary to see Bentham’s writings as the crucial point of change between those of his predecessors such as Smith and Hume, who accommodated economic freedom within their believe should be attended to. (2 ) The measure must be workable, that is, must show some likelihood of being able to solve the problem to which it is directed. (3) The methods it uses must be approved by the people. By ‘the people’, I mean those persons who are represented in the government, whose opinion the government must take for its guide, and who in the end control government, [p. 95] 11 L. Stephen, 1900, i; and E. Halevy, The Growth of Philosophic Radicalism, London, 1934, p. 14. A recent restatement of this interpretation is developed at length in D. Lyons, In the Interest of the Governed, Oxford, 1973, pp. 19-106. 12 F. Petrella, ‘Benthamism and the demise of Classical Economic Ordnungspolitik ’, History of Political Economy, ix (1977), 215-36.

Jeremy Bentham

P. J. Kelly thought, and a later generation of nineteenth-century writers who encouraged government activism in the economic realm .13 The problem posed by the priority attached to the principle of ethical hedonism is that it is not compatible with any principled limitation on the direct pursuit of utility. All rights and titles on which an account of economic liberty must be based have to be reducible to utilitarian considerations, and therefore they can be overridden in the event of an incremental gain in overall utility .14 In order to defend Bentham as an advocate of economic liberalism it is necessary to derive a principled limitation on the direct pursuit of the maximum of social well-being, which is not reducible to a mere rule of thumb. Consequently, by concentrating on this aspect of his utilitarian theory this paper only serves as a preliminary to a defence of Bentham as an advocate of economic liberalism. The main argument of this paper will involve the rejection of the ‘received’ interpretation of Bentham’s theory of utility in the light of the Civil Law writings in order to construct a utilitarian theory of distributive justice which reconciles an individual’s pursuit of his own ends with the pursuit of the maximum social well-being. This will involve a rejection of the principle of utility as a direct source of obligations, and use the concepts of security and ‘expectation’ to construct a system of individual entitlements. I will argue that the legislator’s task is not the summing of utilities across all the indivi­ duals in his care, but the indirect pursuit of maximum utility, by creating a system of personal entitlements or securities around the basic conditions of personal continuity and coherence; namely person, possessions, condition in life and reputation. This system of securities delimits an individual’s sphere of personal inviolability, and the combination of these spheres provides the co-ordinating conditions of social interaction within which an individual’s pursuit of his own conception of well-being when taken with that of all others gives rise to the maximum social well-being. The importance of these spheres as the conditions of interest formation, provides a utilitarian reason for the limitation of the direct pursuit of utility. The last part of the paper will briefly suggest ways in which this reinterpretation of Bentham’s 66

See F. Petrella, pp. 215-36; J. Gray, p. 30; and M. P. Mack, pp. 76-88. The problem addressed in this paper is not the same as that addressed in J. R. Dinwiddy, ‘Bentham on Private Ethics and the Principle of Utility’, Revue Internationale de Philosophie, xxxvi (1982), 278-300. Dinwiddy was concerned to show how it was possible to reconcile an universal commitment to utilitarianism with an egoistic psychology, and this problem grew out of D. Lyons’s ‘revisionist’ account of Bentham’s ethics in In the Interest of the Governed. This paper is concerned with the strategies a Benthamite legislator should adopt in order to achieve the maximum social well-being. The need to clarify this difference arose from a conversation with Dr. Dinwiddy. I am grateful to him for his comments. 13 14

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Utilitarianism and Distributive Justice 67 utilitarian theory gives rise to his understanding of the function of political economy and his commitment to the basic policies of eco­ nomic liberalism. I The principle of utility has traditionally been interpreted as a principle of moral obligation and a source of authoritative reasons for action. Not only are individual agents and the utilitarian legislator supposed to determine right from wrong by appealing to this principle, they are also supposed to determine what to do. This understanding of the role of the principle of utility has not only become the basic premise of the ‘received ’15 interpretation, but also a feature of some ‘revisionist’ accounts of Bentham’s utilitarian theory .16 However, this interpre­ tation of the principle of utility as a direct source of obligation is precisely what undermines any defence of Bentham as an advocate of economic liberalism. If individuals are under an obligation to act so as to maximize the greatest happiness of the greatest number then they will sometimes be required to act in ways contrary to their own interest. This implies that the collective determination of the maxi­ mum of social well-being is given priority over an individual’s judge­ ment of his own interest, and this undermines the location of primary economic power with individual agents. Similarly, if the legislator is required to act on all occasions in a way which will maximize social well-being then he will also be required to override the rights and entitlements of some for the good of all. This not only reasserts the primacy of the legislator’s judgement, but it also imports a significant degree of uncertainty into individual decision-making. These criti­ cisms are forcefully made by Frank Petrella, who argues that Ben­ tham’s use of the principle of utility undermines any commitment to 15 The ‘received interpretation’ is derived from the standard work on Bentham, E. Halevy’s, The Growth of Philosophic Radicalism. A modified version is found in L. J. Hume, ‘Revisionism in Bentham. Studies’, The Bentham Newsletter, i (1978), 3-20, and Bentham and Bureaucracy, Cambridge, 1981. Other works which reflect aspects of the ‘received interpretation’ include: H. A. Bedau, ‘Justice and Classical Utilitarianism’, Nomos, vol. vi, ed. C; J. Friedrich and J. W. Chapman, New York, 1963, pp. 284-305; B. Parekh, ‘Bentham’s Justification the Principle of Utility’, Jeremy Bentham: Ten Critical Essays, London, 1984, pp. 96-119; ‘Bentham’s Theory of Equality’, Political Studies, xviii (1970), 478-95; and J. B. Stearns, ‘Bentham on Public and Private Ethics’, Canadian Journal of Philosophy, v (1975), 583-94. Parekh’s,papers reflect the direct act-utilitarian understanding of Bentham’s moral theory. However, on the question of psychological theory his position differs from that from of Halevy, in that he acknowledges a role for non-egoistic motives. He also presents an historical theory of the development of nonegoistic motives in the pursuit of social well-being. See B. Parekh, ‘Introduction’, Jeremy Bentham: Ten Critical Essays, pp. vii-xxvii. 16 For a recent ‘revisionist’ account of Bentham’s utilitarian theory, see G. J. Postema, Bentham and the Common Law Tradition, Oxford, 1986.

Jeremy Bentham

P. J. Kelly economic liberty as the condition within which the maximum of social well-being can arise out of uncoerced social interaction .17 While little has been written which explores in detail the structure of Bentham’s utilitarian theory / 8 there are serious difficulties asso­ ciated with such a direct utilitarian interpretation. One consequence of this view is that Bentham simply rejected the claim that rights can function as authoritative reasons when they conflict with the conclu­ sion of a direct utility calculation .19 This argument entails that an individual is under an obligation to assess the consequences of respect­ ing a legal property right, and, if he can increase his own well-being without harming that of another by ignoring the right, he is free, indeed obliged, to do so. If an individual is under an obligation to maximize social well-being, then he must be under an obligation to ignore the right in such circumstances. However, such an obligation does not capture Bentham’s intention. His discussion of security of property suggests that he was not prepared to sacrifice property rights to individual utility calculations .20 Bentham argued that property was one of the most important sources of individual well-being and that it must be secured against any interference. Also in A Fragment on Government, he wrote that the motto of the good citizen was 4To obey punctually; to censure freely \ 21 This suggests that while the individual citizen is free to judge the system of laws according to the principle of utility, he is nevertheless required to conform his actions to the dictates of law. Finally, in the later writings on Civil Law, Bentham used the ‘disappointment-preventing principle’ as the sole means of justifying interference with property rights. While it is correct to argue that the justification of the practice of rights within a utilitarian system must be reducible to utilitarian considerations, Bentham did not accept that individual utility calculations provided the grounds for moral obligation. He did not have a direct act-utilitarian theory because he did not intend that the principle of utility should serve as the sole authoritative reason for action .22 68

F. Petrella, 220. Even recent commentators such as Harrison, Hart, Postema, and Rosen give only modifications of the ‘received’ view of Bentham’s theory of utility in their otherwise admirable books. See R. Harrison, Bentham, London, 1983; H. L. A. Hart, Essays on Bentham, Oxford, 1982; G. J. Postema, Bentham and the Common Law Tradition; and F. Rosen, Jeremy Bentham and Representative Democracy, Oxford, 1983. 19 Postema takes precisely this radical line of interpretation in response to D. Lyons’s claim that Bentham cannot account for the normative force of legal rights. See D. Lyons, ‘Utility and Rights’, Nomos, vol.. xxiv, ed. J. Roland Pennock and J. W. Chapman, New York, 1982, pp. 107-38, and G. J. Postema, 322-4. 20 Bowring, i. 307-12. 21 Comment on the Commentaries and A Fragment on Government (CW), ed. J. H. Burns and H. L. A. Hart, London, 1977, p. 399. 22 Bentham’s acknowledgement that legal rights and duties can function as authorita­ tive reasons for action has led H.L.A. Hart to suggest in an important paper, that Bentham had an indirect utilitarian theory of obligation. See H. L. A. Hart, ‘Natural Rights: Bentham and John Stuart Mill’, Essays on Bentham, pp. 79-104. 17 18

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Utilitarianism and Distributive Justice 69 There are further problems for the interpretation of the principle of utility as a direct source of moral obligation. A direct utilitarian theory must be self-defeating if it implies that individual agents are obliged to act according to the principle of utility. Bentham did not expressly develop this argument, but it can be reconstructed from the importance attached to expectations as a condition of social well-being and his interpretation of the practice of morality as an Enterprise aimed at the communal good. The individual pursuit of utility must be self-defeating because the individual agent is unable to provide the conditions which co-ordinate his actions with others. He is unable to establish regular patterns of behaviour which give rise to expectations and expectation utilities. Therefore, his actions will not form part of a co-ordinated pattern of action from which the communal good arises. This argument does not rest on the claim that the individual agent cannot determine the general balance of pleasure and pain, for in many cases this will be quite clear. It is based on the more complex claim that morality is a collective enterprise and is therefore concerned with the conditions of social interaction. According to Bentham, social well­ being cannot arise out of uncoordinated individual action; otherwise his argument against the ‘principle of sympathy and antipathy’ would not stand .23 Social interaction and therefore social well-being depend upon the existence of rules and norms which give rise to expectations and expectation utilities. If an individual agent is obliged to do that which maximizes social well-being then he will always have to calculate whether to act in accordance with these social rules, and this would undermine the development of expectations. If an individual will only 23 An Introduction to the Principles of Morals and Legislation (CW), ed. J. H. Burns and H. L. A. Hart, London, 1970, pp. 21- 33. In this chapter Bentham argues that the moral theories of Shaftesbury, Hutcheson, Hume, Beattie, Price, Clark and Wollaston are all reducible to the principle of ‘sympathy and antipathy’. The problem with this principle and these theories is that they all rely on an internally perceived standard for their correct application, and this is what makes them ‘anarchical’. The ‘anarchical’ conse­ quences of this principle differs depending upon whether the proponent of the theory accepts his own judgements as binding upon all others or if he allows the same right to all others to judge according to their own perceptions of right and wrong. In the former case the problem is the lack of a criterion of consistency. Without such a criterion, moral judgements become effectively meaningless and this undermines the practice of mora­ lity. In the second case if everyone is free to judge ‘right’ and ‘wrong’ as they see fit, then again there is no consistency and the possibility of morality collapses. Bentham saw morality as an enterprise directed to achieving the well-being of the community. However, if each person is free to make the terms of moral discourse conform to his own particular usage and judgements then there is no way of arbitrating between the ends of different individuals, and this is inconsistent with Bentham’s view that morality is primarily concerned with the rules of effective social interaction. A system of moral judgement that lacks any public criterion of consistency cannot embody this shared conception of the enterprise of social activity. Thus the principle of ‘sympathy and antipathy’ is ‘anarchical’ precisely because it is contrary to the enterprise of effective social interaction and resolves the world into conflicting individuals who are incompre­ hensible to each other and therefore antagonistic.

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70 P. J. Kelly respect a right when a utility calculation justifies his doing so, that right will not serve as a condition of expectations, because it remains an open question whether it functions as an authoritative reason for action. Unless legal norms and rights function as authoritative reasons they cannot function as a source of expectation. Expectations result from regularities of behaviour, which rights and legal norms can provide but which individual utility calculations cannot .24 The effec­ tiveness of this argument depends on the claim that the most important source of utilities are those which are derived from or are dependent upon the conditions of social interaction. I will explain later why Bentham attached such a significant weight to expectation utilities. A similar argument can be constructed to show why the legislator is not obliged to act in each instance on the basis of a direct utility calculation. Although Bentham wrote: It is plain, that of individuals the legislator can know nothing: concerning those points of conduct which depend upon the particular circumstances of each individual, it is plain, therefore, that he can determine nothing to advantage. It is only with respect to those broad lines of conduct which all persons, or very large and permanent descriptions of persons, may be in a way to engage, that he can have any pretence for interfering; and even here the propriety of his interference will, in most instances, lie very open to dispute.25 The argument of this passage is not intended to imply that the legislator cannot directly pursue the maximum of social well-being because he is unable to determine the content of subjective experience. Both John Rawls and H. L. A. Hart argue that Bentham cannot be interpreted as asserting the radical inaccessibility of subjective ex­ perience for this would undermine the possibility of any form of interpersonal comparisons.26 While it is clear that Bentham recognized many difficulties in making such comparisons of interests ,27 it would be 24 See G. J. Postema, 321-24. Postema’s argument that Bentham abandons the traditio­ nal understanding of rights as authoritative reasons for action appears to contradict this argument. However, Postema must acknowledge that expectations depend on regulari­ ties of behaviour and that these are principally derived from institutions such as rights and legal norms. Therefore, in order for a stable pattern of expectations to develop there must be some basic set of authoritative reasons which are so crucial to stable social interaction that they are immune to revision in the light of any particular direct utility calculation. Bentham does not provide an account of how'these institutions develop, but it is clear that he favours an historical account of their development as opposed to a form of social contract. See UC c. 107. 25 IPML (CW), P. 290. 26 See J. Rawls, A Theory of Justice, Oxford, 1972, p. 91; and H. L. A. Hart, ‘Lecture on a Master Mind: Bentham’, Proceedings of the British Academy, xlviii (1962), 304. 27 Bentham acknowledged the difficulties of making direct interpersonal comparisons of pleasure when he wrote: To every man, by competent attention and observation the quality of his own sensibility may be made known: it may be made known by the most impressive and infallible of all direct evidence, the evidence of a man’s own senses.

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Utilitarianism and Distributive Justice 71 implausible to argue that he thought no such comparisons could be made. If the legislator were under the direct obligation of an act-utilitarian theory, he would face the same problems as the individual agent. While he would have a reason to conform his actions to rules in order to establish a regular pattern of behaviour, he would also have a reason to override those rights and laws he had created when the maximum of social well-being could be achieved. The creation of a stable pattern of expectations requires a level of consistency in the legislator’s actions that would preclude his acting on the results of a direct utility calculation, if this interfered with them. An obligation to do that in each circumstance which maximized social well-being would always leave open the possibility of the legislator having to override fixed patterns of expectations, and this would undermine the regularity of the legislator’s behaviour on which the stability of expectation depends. Consequently, while all authoritative reasons for action must be reducible to act-utilitarian ones, this does not imply that the individual agent or the legislator is under a direct obligation to pursue the maximum social well-being in all circumstances. Underlying this criticism of the ‘received’ interpretation of Ben­ tham’s thought is a radically different conception of the role and function of utilitarianism as a guide to political practice. The emphasis on security of expectation and rule-governed social interaction locates the principle of utility within the context of Bentham’s science of legislation. Thus the legislator does not determine how to act by summing utilities across all members of society. Instead the principle of utility works through the institution of law as the means of co­ ordinating social interaction and creating the framework within which each individual can pursue his own conception of well-being. On this ‘revised’ version of Bentham’s theory the principle of utility underlies the science of legislation by providing its rationale. Yet the legal system provides the vehicle by means of which utility is trans­ formed into a principle of practice. The institution of law becomes the key to understanding the conditions of social interaction, which themselves constitute civil society, and are the vehicle for effective and ordered social change. Thus, it is clear that Bentham employed indirect utilitarian strategies as the means of achieving maximum To no man, can the quality of sensibility in the breast of any other man be made known by anything like equally probative and unfallacious evidence. Deontology Together With A Table of the Springs of Action and Article on Utilitarianism (CW), ed. Amnon Goldworth, Oxford, 1983, p. 131. In other manuscript works Bentham argued that the utilitarian legislative science is analogous to that of medicine with its emphasis on observation and experiment, rather than arithmetic. See ‘Pannomial Fragments’, Bentham Papers, British Library Additional MSS 33,550, fo. 114.

Jeremy Bentham

72 P. J . Kelly social well-being. The main ground for this radical interpretation of Bentham’s utilitarianism is provided by the Civil Law writings, and the significance attached to the concept of security of expectation within them. This concept of security of expectation provides the ground for a utilitarian principle of right: the ‘security-providing principle’, which is developed in the Civil Law writings.28 However, before developing this utilitarian principle of right and explaining how it functions as the basis of Bentham’s economic liberalism, it is necessary to explain why he attached so much weight to security of expectation. II In the Civil Law writings 29 Bentham identifies four objects of legisla­ tion; security, subsistence, abundance and equality ,30 yet it is security that plays the most significant role within his thought. He wrote: Among the objects of law, security is the only one which necessarily embraces the future: subsistence, abundance, and equality, may be regarded for a moment only; but security implies extension in point of time, with respect to all the benefits to which it is applied. Security is therefore the principle object.31 There are many other passages throughout Bentham’s works which emphasise the importance he attached to security, but this one is particularly important because it suggests a connection between security and expectations. The concept of expectation is offered as the explanation for the priority of security among the ends of legislation, and as the means by which Bentham can include long term and complex life-plans within an individual’s present set of motivations. This is that utilities derived from expectation 32 provide a link between present motivations and the realization of interests in the future. Consequently, it is expectation that provides the future-regarding dimension of security, and only security contributes directly to the formation and maintenance of expectations. Without such a concept, Bentham’s psychology would confine man to the pursuit of present interests. However, he does not simply identify the utility of expec­ tation as one among a variety of utilities which make up an indivi­ dual’s well-being. Instead the concept of expectation is accorded a

UC lxi. 47: and BL Add. MSS 33,550, fo. 55. See for example UC xxx. 26-32, 41-59; UC xxxi. 260-85; UC xxxvii. 18-22, 50-68; UC lxi. 9-10, 19-21, 22-66, 83-97; BL Add. MSS 33,550, fo. 48-144. 30 Bowring, i. 302. 31 Ibid. 32 The concept of an expectation utility is first introduced in Comment j Fragment (CW), pp. 230-31. 28 29

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Utilitarianism and Distributive Justice 73 unique position in his utilitarian theory ,33 because it provides the conditions of personal continuity and coherence, and is therefore the primary condition of interest formation. It would not be too strong to say that it is the importance of expectation in fashioning a sense of self which distinguishes man from other sentient creatures.34 Unfortu­ nately Bentham does not significantly develop the idea that it is expectation which provides the thread which unifies personality, but the idea is certainly implicit in the following passage, where he wrote: This disposition to look forward, which has so marked an influence upon the condition of man, may be called expectation—expectation of the future. It is by means of this we are enabled to form a general plan of conduct; it is by means of this, that the successive moments which compose the duration of life are not like insulated points, but become parts of a continuous whole. Expectation is a chain which unites our present and our future existence, and passes beyond ourselves to the generations which follow us. The sensibility of the individual is prolonged through all the links of this chain.35 The significance attached to the concept of expectation within Bentham’s utilitarian thought is doubly important. Not only does security of expectation provide the conditions of personal continuity and coherence, and thus the basis of interest formation, but it is also a function of regularities of behaviour. Thus expectation is dependent upon norms and rule-governed social interaction. Not all expectations are a function of law, but the law serves as the primary source of regularities of behaviour because it provides the basic conditions of The emphasis Bentham placed on expectation is reflected in the following passage: Expectation this is the grand word that ought to be sounding in the ears of whoever undertakes to compose or modify a code of Civil Law. Expectation is the basis of proprietory right: it is this affords whatever reason there can be for giving a thing to one man rather than another. Keep the current of expectation inviolable, in these words are contained the quintessence of everything which utility can dictate on this extensive ground. (UC xxix. 6 .) 34 Bentham distinguishes man from the other animals in terms of the concept of expectation in the following passage: In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider that man is not like the brutes, limited to the present time, either in enjoyment or suffering, but that he is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against actual loss, but also to guarantee to him, as much as possible, his possessions against future losses. The idea of security must be prolonged to him throughout the whole vista that his imagination can measure. Bowring, i. 308. 35 Bowring, i. 308. See also Postema, pp. 160-62, for an interesting discussion of the role of expectation as a condition of personal continuity and coherence. While Postema ultimately draws different conclusions from his review of Bentham’s legal theory, I have nevertheless, found his interpretation stimulating and useful. 33

Jeremy Bentham

74 P. J. Kelly social interaction. The law’s primary task is therefore a distributive one .36 The Civil Law is concerned with defining those basic conditions of social interaction. Thus the Civil Code translates the four objects of legislation into a pattern of rights and titles which form the framework within which individuals can form and pursue their own conceptions of well-being. Because expectations have such a high utility as the basic conditions of personal continuity and coherence and are a function of law, the legislator has to adapt his practical reasoning to the mainten­ ance of a stable and secure pattern of expectation .37 This means that it is through the framework of law that the maximum of social well-being will be obtained. It is for this reason that Bentham attached such weight to the science of legislation as the key to social understanding and political change. This supports the earlier conclusion that Ben­ tham attempted to apply his utilitarian theory through the vehicle of law, and not across all social institutions as a direct utilitarian theory would imply. Although the stability of expectation is an essential condition of maximizing social well-being, Bentham did not intend that all the legislator was required to do was maintain a fixed pattern of expec­ tations against all change. Such a conservative conclusion would be difficult to reconcile with the radical spirit of his thought. The whole thrust of Bentham’s utilitarian thought and that of most of his followers was in the direction of reform.38 All that the emphasis on expectation in the Civil Law implies is that the form in which the principle of utility is applied must be such that fundamental expec­ tations remain secure. This entails that it is possible to distinguish between respective classes of expectation utilities. To maintain abso­ lute security of expectation would involve the total eradication of contingency from the social realm, and this would preclude any freedom of choice and action. To achieve this the form of social interaction would have to be completely rule-governed so that every­ o n e’s actions could be totally predictable. Some recent Bentham 36 Bentham refers to Civil Law as Distributive Law and Civil Justice as Distributive Justice at UC lxi. 51. 37 While there is not room to develop this point, it is possible to interpret Bentham’s commitment to the pursuit of subsistence and equality as contributions to the mainten­ ance of security. This can be seen most clearly in Bentham’s practical proposals to provide the positive provision of subsistence in his Poor Law writings. See P. J. Kelly, ‘Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law’, unpub­ lished Ph.D. thesis, University of London, 1988, pp. 180-241. 38 The principle of utility provides the foundation of the science of legislation. Once the perversions of sinister interest have been removed, Bentham thought that it would be possible for the law to secure its utilitarian task as the means of ordered political and social change.

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Utilitarianism and Distributive Justice 75 scholars argue that this is indeed the form of a Benthamite Utopia .39 While there is not time to discuss these arguments in this paper, there are, I believe, good reasons for rejecting them as distortions. Ben­ tham’s object was not to secure all expectations, for these have to be flexible in order to facilitate the formation and pursuit of new concep­ tions of individual well-being. Instead he identified the legislator’s fundamental task as the distribution and protection of the basic conditions of personal continuity and coherence, and these provide the framework within which expectations develop. The utilitarian Civil Code, therefore embodies a principle of right which distributes a pattern of rights and personal entitlements which give rise to a series of spheres of personal inviolability, and this principle of right is the ‘security-providing principle’. The distribution of these spheres of personal inviolability creates the framework of the social world within which individual agents can form and pursue their own conceptions of well-being sure in the knowledge that they will not suffer interference from others. The stability of these basic conditions of interest for­ mation is the legislator’s main objective because they provide the framework within which the maximum of social well-being is achieved. These basic conditions of interest formation give rise to fixed as opposed to floating expectations, and this former class is distinguished on the grounds that it is a necessary condition of the formation of any conception of well-being whatever. By violating these fixed expec­ tations the legislator not only causes disappointment, but his action necessarily reduces social well-being by undermining the conditions within which an individual can form and pursue his own ends. These basic conditions of personal continuity and coherence are person or body, possession, condition in life and reputation. As well as providing the framework within which individual agents form and pursue their own conceptions of well-being, the framework of security which de­ limits these spheres of personal inviolability also sets the boundaries to judicial interference with the individual agent. Only those actions which interfere with the person, possessions, condition in life or reputation of an agent can constitute an offence. Thus the judge or legislator has a warrant to interfere with an agent only when his actions are violating the sphere of personal inviolability of another. The securities or entitlements which constitute these spheres of per­ sonal inviolability are the basis of Bentham’s conception of private 39 See C. F. Bahmueller, The National Charity Company: Jeremy Bentham’s Silent Revolution, Berkeley, 1981; G. Himmelfarb, ‘Bentham’s Utopia: The National Charity Company’, The Journal of British Studies, x (1970), 80-125, and ‘The Haunted House of Jeremy Bentham’, Victorian Minds, New York, 1968, pp. 32-81; and B. Parekh, ‘Ben­

tham’s Theory of Equality’, 478-95.

Jeremy Bentham

76 P. J. Kelly offences.40Interpreted in this way, the principle of utility gives rise to a harm principle which is the direct action-guiding principle confront­ ing the legislator. This principle is the ‘security-providing principle’. The distribution of personal entitlements or securities is justified on the grounds that it maximizes social well-being by identifying a realm within which individuals can form and pursue their own goals. This distribution of securities is not totally neutral between conceptions of well-being. However, it only precludes those conceptions which are procedurally inconsistent with the personal inviolability of others. Beyond excluding this later category of ends, an individual is taken as the best judge of his own interest, and the legislator ought not interfere.41 Similarly, although Bentham identifies a class of selfregarding offences as a possible component of a utilitarian code of law, he concludes that it is unclear whether any action which might be considered in this category ought to be considered an offence .42 This is because self-regarding offences are least likely to create alarm and affect the stability of expectation .43 However, while Bentham suggests that the utilitarian task of law is the distribution and maintenance of these spheres of personal inviola­ bility, it was equally clear that the development of the English legal system did not reflect this utilitarian rationale. The operation of sinister interests created legal forms and practices which tended to restrict these spheres of personal inviolability and preclude certain interests which created no objective harm. Therefore any attempt to reveal the utilitarian rationale of the legal system would also justify significant reforms in its forms and practice. This created a further problem of reconciling the extension of these spheres of personal inviolability with an existing pattern of expectations. The wholesale abolition of many superfluous legal and constitutional forms would undoubtedly have long term beneficial consequences, but in the short term they would create significant disappointment, and the direct abolition of these practices would violate the existing pattern of expectations. To avoid the threat of danger to existing expectations, Bentham employed the ‘disappointment-preventing principle’. This principle was designed to reconcile reform with the maintenance of security of expectation. Taken together, the two principles; ‘security-

40 IPML (CW), p. 188, and pp. 191-94.

Ibid., p. 290. See IPML (CW), pp. 195-96. ... What acts are productive of a mischief of this stamp? and, among such as are, which it may, and which it may not, be worth while to treat upon the footing of offences? these are points, the latter of which at least is, too unsettled, and open to controversy, to be laid down with that degree of confidence which is implied in the exhibition of properties which are made use of as the groundwork of an arrangement. 43 This no doubt helps to explain Bentham’s liberal attitudes to sexual offences. See L. Crompton, Byron and Greek Love: Homophobia in Nineteenth Century England, Berkeley, 1985, pp. 38-62, and 251-83. 41 42

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308

Utilitarianism and Distributive Justice 77 providing’ and ‘disappointment-preventing’, provide the model for the application of the principle of utility. The former determines a distribu­ tion of rights and titles which provides the conditions for the maximum social well-being arising out of the pursuit of individual interests, the latter provides the means by which this distribution of rights and titles can be extended without violating existing expectations. The argument so far has been that Bentham rejected a direct utilitarian theory on the grounds that direct utility calculations would undermine expectations and that expectations embody the basic con­ ditions of personal continuity and coherence. Thus the importance Bentham attached to expectation provided a utilitarian reason for a limitation of the direct application of the principle. Instead the maxi­ mum social well-being is achieved by means of a principle of right which creates the conditions within which one individual’s pursuit of his own interest is reconciled with that of all others. The specification of these spheres of personal inviolability provides the means for refuting Petrella’s charge that Bentham’s utilitarianism is inconsis­ tent with economic liberty .44 While in his later works Bentham avoids the use of the language of liberty as much as the language of rights,45 it is clear that these spheres of personal inviolability embody individual liberty, and that the extension of personal liberty is one important way of increasing social well-being. This is because the greater the exten­ sion of personal liberty the greater the scope for the pursuit and satisfaction of individual conceptions of well-being. The reason that Bentham attaches such importance to individual initiative is that the legislator does not have the same perspective as the individual, and therefore cannot assign the same utilities to actions as prospective agents do. Different individual agents can assign different utilities to the same objects. The argument here is not however, that the legislator cannot in principle know the weighting attached to these objects, but simply that given that each individual is in the best position to determine that course of action most beneficial to himself, it makes more sense for the legislator to facilitate the ordered pursuit of existing conceptions of well-being, rather than imposing some substantive conception of his own, as long as these existing conceptions are procedurally consistent one with another. Thus, by distributing a pattern of personal entitlements or securities around the basic conditions of personal continuity and coherence the legislator creates the framework within which maximum interest F. Petrella, 222. See UC c. 170: Liberty therefore not being more fit than other words in some of the instances in which it has been used, and not so fit in others, the less the use is made of it the better. I would no more use the word liberty in my conversation when I could get another that would answer the purpose, than I would Brandy in my diet if my physician did not order me: both cloud the understanding and inflame the passions. 44 45

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78 P. J. Kelly satisfaction is achieved. Interpreted in this way, Bentham’s science of legislation achieves his utilitarian purposes by distributing this pat­ tern of securities through the principles underlying the Civil Law .46 The law does not merely function as a means of achieving the maximum utility by imposing some order upon chaos. Rather, in imposing this order the law is actually creating the conditions of ordered social interaction within which maximum social well-being arises .47 Thus, the law is not merely a contingent means of achieving maximum social well-being but is the primary means by which Ben­ tham translates his utilitarian theory into a philosophy of practice. Ill The interpretation offered so far has contributed two major compo­ nents of a theory of economic liberalism. Firstly, the argument has provided the means for a principled limitation of the direct application of utilitarian reasoning. This enables Bentham to accommodate a realm of economic liberty within the spheres of personal inviolability, and the emphasis on expectation enables individuals to discount the future against the present in the process of constructing and pursuing long term goals and life-plans. Secondly, economic power and initia­ tive is located with individual agents, because they are in the best position to determine the subjective weighting of particular concep­ tions of well-being and to originate new technological developments and commercial projects. All that remains is to show briefly how these elements are manifested through Bentham’s economic writings, and why I think it is appropriate to describe Bentham as an economic liberal. Economic liberty is based on the importance of security of property within Bentham’s theory of distributive justice. The four basic con­ ditions of personal continuity and coherence, namely, person, posses­ sions, condition in life and reputation are all modifications of property. Thus, Bentham reduces all personal rights to property rights .48 How­ ever, within this extensive definition of property, physical possession nevertheless plays an important role. Wealth, and the other modifica46 Admittedly the specification of the class of private offences does not exhaust Bentham’s division of offences, but they nevertheless have priority on the grounds that semi-public and public offences are extensions of the framework of private offences to unassignable individuals and unassignable groups such as whole communities. Thus while the specification of semi-public and public offences might appear to warrant greater legislative activity than the sphere of private offences, the basic conditions underlying the specification of private offences also place limits on legislative activity in the realm of semi-public and public offences. 47 An important discussion of the ‘constitutive’ function of law in Bentham’s utili­ tarian science of legislation is to be found in Postema, pp. 168-90. 48 Deontology (CW), p. 314.

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Utilitarianism and Distributive Justice 79 tions of physical possession are the material conditions of interest formation and satisfaction. They are also the basic focus of expec­ tation. The deployment of property through contract, barter and exchange enables an individual to determine his own future well­ being. Therefore, in securing the basic conditions of personal con­ tinuity and coherence, the utilitarian legislator is required to remove certain restraints on the non-harmful deployment of property, and this has implications for freedom of commerce, trade and industry. The removal of all restraints on the non-harmful deployment of property, where harmful is defined as that which violates the person, property, condition in life or reputation of another, entails the dismantling of mercantilism. Such works as Defence of Usury (1787), Emancipate Your Colonies! (1793),49 ‘Manual of Political Economy’ (1793), ‘Institute of Political Economy’ (1801-1804), and Observations on the Restrictive and Prohibitory Commercial System (1821),50 all emphasize ways in which government activism in the economy and market-place ought to be diminished. All of these works embody the spirit of economic libera­ lism, by emphasizing the individual as the basic source of economic initiative and power, and by identifying the limits on direct action by government in the economy. These works do not deny that the government has any authority in the economic realm but they all reject the view that government can directly pursue maximum social well-being by means of encouraging trades through bounties, restrict­ ing the export of certain commodities and by limiting imports. However, there is a second class of economic works which includes Supply Without Burthen; or Escheat Vice Taxation (1795), ‘Abstract or Compressed View of a Tract Intituled Circulating Annuities’ (1801), ‘The True Alarm’ (1801)51 and ‘Defence of a Maximum’ (1801). All of 49 Stark did not include Emancipate Your Colonies/, London, 1830, in his selection of Bentham’s economic writings on the grounds that it was not strictly an economic argument. However, while there are components of the argument that deal with political emancipation, the main body of this work is confined to showing that trade is limited by capital deployed and consequently that colonies cannot prove an economic advantage. 60 There is some question as to whether this work can be legitimately attributed to Bentham on the grounds that it was prepared for publication by John Bowring. However, there are reasons for including it among Bentham’s works on the grounds that Bowring did not claim authorship. Further there are manuscript descriptions of the contents of this work which includes notes by Bentham that do not suggest any dissatisfaction with Bowring’s rendering of the text. 51 The text of ‘The True Alarm’ exists only in Dumont’s French version, Dumont MSS 50- 51, Bibliotheque Publique et Universitaire de Geneve. The translation found in Stark, iii. 63- 216, is based on this and arranged in accordance with notes that Ricardo made on seeing Dumont’s translation. See The Works of David Ricardo, ed. P. Sraffa and M. Dobb, 11 vols., Cambridge, 1951- 73, iii. 259- 341. Although both ‘The True Alarm’ and ‘Of the Balance of Trade’ were apparently based on a single Bentham manuscript, this no longer exists. Furthermore, given that Dumont was responsible for the division, in that he divided his French manuscript into two bundles, each dealing with a different subject, it seems appropriate to follow this policy and the use of Stark’s titles until a new edition is prepared as part of the Collected Works of Jeremy Bentham.

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80 P. J. Kelly these works embody some form of practical scheme and therefore suggest government involvement in the economy and market-place. Nevertheless, none of these schemes are direct attempts at producing maximum social well-being. Instead they are best seen as attempts to maintain a stable pattern of expectations. This is most clearly the case with Supply Without Burthen and the manuscript works which com­ prise Bentham’s Annuity Note plan .52 These works are based on an attempt to eradicate the need for direct taxation as a means of government supply, on the grounds that the increasing need to resort to taxation was undermining those expectations based on the disposal of property, and this ultimately reduced economic activity and social well-being. The Annuity Note plan involved a complex of different aims all directed at securing a stable social order. That Bentham should have chosen an interest-bearing species of currency as the best means of achieving these aims may appear bizarre, but it is arguable that this was the most important of his economic writings, at least in the sense that it brings together all the political aims of his economic thought. The writings which comprise the Annuity Note plan amply illustrate the extent to which Bentham’s economic writings differ from the emerging science of political economy, which was dominated by Ricardo and Malthus. This interest bearing species or currency was intended to encourage the poor to save thus giving them a vested interest in a stable social order. The capital raised in this way was to provide the means for supplying the sinking funds, and the capital that was released from government finance could then be used productively, in order to mobilize unemployed labour. This elaborate scheme was developed in the context of increasing unemployment and poverty, and the spread of French revolutionary ideas. All of these things contri­ buted a major threat to the enjoyment of property, and the expec­ tations that are based on them. Therefore, the projects Bentham developed to overcome these dangers were not intended to increase directly overall well-being. Instead they were attempts to maintain the framework conditions within which maximum social well-being was achieved .53 More is certainly required to maintain the coherence of this argu-

52 There are two texts covering Bentham’s Annuity Note Plan for a new species of interest bearing currency, the ‘Abstract or Compressed View’ and the long version from which this is derived. The body of manuscripts which contains these two proposed works plus a number of related essays constitutes the largest single component of Bentham’s economic writings, and there is good reason to believe it was also the most important, in terms of the range of issues this simple proposal was designed to address. Neither of these works were published and it is as yet unclear whether there is a single authoritative text, therefore references to the Annuity Note Plan are intended to encompass the whole body of manuscripts devoted to this issue rather than refer to a single text. 53 Similar arguments underlie Bentham’s Poor Law Writings, and his attempts to guarantee the basic provision of the means of subsistence.

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Utilitarianism and Distributive Justice 81 ment.54 However, the theoretical coherence of this interpretation of Bentham as an economic liberal is at least possible given the rejection of a direct utilitarian theory and the adoption of indirect strategies as the means of securing maximum social well-being. This paper can only serve as a preliminary work in the larger project of elucidating the role of economics in Bentham’s writings on utilitarian public policy.

54 A particular problem is created by ‘Defence of a Maximum’, Stark, iii. 247-302. T. W. Hutchison has argued that in this work Bentham returns to a version of mercantilism. See T. W. Hutchison, ‘Bentham as an Economist’, Journal of Economics, lxvi (1956), 288-306. However, there is some scope for arguing that this work does not create as many difficulties as has been suggested, for in order to maintain the expectations of corn dealers Bentham only argued that the maximum price should be set at a level higher than the highest present asking price. The argument for this is that in the absence of automatically equilibrating markets, the highest asking price might simply be the result of the avariciousness of corn dealers. The maximum was therefore a public statement that in times of dearth, exploitation of the market was unacceptable if it undermined public confidence in the ability of the market mechanism to satisfy demand. In the last resort it was better for the government to step in to prevent the destruction of the social order and maintain overall security of property than for unscrupulous traders to satisfy their greed. This is only an outline of how the argument o f‘Defence of a Maximum’ might be reconciled with an interpretation of Bentham as an economic liberal.

[ 12]

Economy and polity in Bentham’s science of legislation David Lieberman I Recent study of British political thought in the decades between the American War of Independence and the Great Reform Act has produced a crowded picture dense with political traditions and doctrinal configura­ tions. If earlier historical scholarship tended to focus on a limited number of famous contests (Burke against the Rights of Man; Whigs vs. Radicals over constitutional reform)* we are now as likely to scrutinise High Church ecclesiology and Christian political economy; philosophic history and natural jurisprudence; Paleyite theological utilitarianism and evan­ gelical social thought; shifting configurations of Dissent and Protest, and of Dissent and Patriotism; and finely shaded and carefully delineated varieties of Whiggism and Toryism. In a manner perhaps surprising* this scholarship has left relatively untouched the figure of Jeremy Bentham* whose writings on law and pol­ itics had for earlier generations seemed an obvious and critical landmark for this period of British intellectual history. Often this (relative) neglect of Bentham is the intended aim of revisionist interpretation: the product of the well-rehearsed rejection of Leslie Stephen’s image of utilitarianism as the natural heir of English Thought in the Eighteenth Century or of A. V. Dicey’s depiction of Benthamism as the definitive blueprint for Victorian legislative reform. But some of this neglect mr%y be considered the less intended by-product of the state of current Bentham scholarship. The great labour of the past generation - as centred on the publication of the new edition of Bentham’s Collected Works - has been to produce a more accurate version of Bentham’s thought itself* freed from the corruptions of Bentham’s nineteenth-century editors* popularisers* and critics. Most of the important recent treatments of Bentham thus have involved a kind of interpretative rescue operation* in which (for example) Bentham’s I am indebted to Lindsay Farmer and Philip Schofield for their comments and guidance on an earlier version of this essay.

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jurisprudence is rescued from the legal positivism of John Austin; his democratic theory is distinguished from the defences of representative government advanced by James and John Stuart Mill; his moral theory is salvaged from the several ‘fallacies’ in terms of which it standardly stood condemned .1 For the intellectual historian, the result, somewhat para­ doxically., is an ever-widening gap between the ‘historical Bentham 5 (meaning the figure known in the nineteenth century through the vehicles of Dumont’s Traites de legislation civile etpenale and John Stuart Mill’s revi­ sions) and the ‘authenticity Bentham’ (meaning the figure now recovered from the manuscripts and new edition).2 These days it often seems easier to place James Mill - the student of Dugald Stewart; the philosophical historian of British India; the polemicist of Philosophical Radicalism than it does to locate the self-styled ‘hermit of Queen Square Place ’ .3 This essay is designed to identify some of the places where it would be fruitful to link the newly ‘rescued’ Bentham and the extensively revised intellectual history of eighteenth- and early nineteenth-century Britain. To do so,1 pursue some quite basic questions concerning the kinds of ideas about social conduct Bentham presumed in his legislative theory and programme; the question (to speak more grandly than my own treat­ ment warrants) of the sociology informing Bentham’s jurisprudence. This involves (in the first and second parts) taking up some wellestablished themes: the nature and extent of Bentham’s debts to political economy, particularly as elaborated by Adam Smith in the Wealth of Nations^ and the alleged ‘economic’ presuppositions of Bentham’s treat­ ment of human nature. And it involves (in the third part) introducing a more neglected dimension of Bentham’s radical political programme: the role of public opinion and print culture in the operation of the democratic society elaborated in the Constitutional Code. 1 See the important reconsiderations of Bentham’s jurisprudence by H. L. A. Hart, Essays on Bentham (Oxford,, 1982) and Gerald J. Postema, Bentham and the Common Law Tradition (Oxford, 1986); of his democratic theory by L. J. Hume, Bentham and Bureaucracy (Cambridge, 1981) and Frederick Rosen3Jeremy Bentham and Representative Democracy (Oxford, 1983); and of his moral theory by David Lyons, In the Interests of the Governed (Oxford, 1973) and Ross Harrison, Bentham (London, 1983). 2 The complexities are illuminated by J. R. Dinwiddy in ‘Bentham in the Early Nineteenth Century5, in his Radicalism and Reform in Britain 1780-1850 (London, 1992), pp. 291-313. See also the suggestive comments by John Robson, ‘Which Was Mill’s Bentham?’, Bentham Newsletter, 7 (1983), pp. 15-26; R. D. Collinson Black, ‘Bentham and the Political Economists of the Nineteenth Century5, Bentham Newsletter, 12 (1988), pp. 24-36; and William Twining, ‘Reading Bentham’, Proceedings of the British Academy, 75 (1989), pp. 97-I 4I3 For the historical placement of James Mill, see Stefan Collini, Donald Winch, and John Burrow,. That Noble Science of Politics (Cambridge, 1983), ch. 3. Bentham’s self­ description appears often in his correspondence; see, for example, Correspondence of Jeremy Bentham, vol. VII, ed. J. R. Dinwiddy (Oxford, 1988), p. 466.

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Economy and polity in Bentham’s science of legislation 109 According to a standard characterisation, the science of political economy supplied Bentham with his theory of society, and exercised a unique and pervasive impact on his moral and legal theory. Such an inter­ pretation appears in any number of the accounts of modern political phi­ losophy’s surrender to economics* where Bentham’s writings frequently serve both as an important contributor to and a major index of this cele­ brated historical declension ;4 and it echoes in those twentieth-century indictments of the cultural and social damage rendered by the Industrial Revolution which Donald Winch considers in his essay in this volume. And much the same characterisation figured no less prominently in some of the earliest and most influential of the efforts to take the measure of utilitarianism. Marx thus reported that 'political economy’ was ‘the real science’ of Bentham’s ‘theory of utility’; Maine yoked together Bentham’s legislative programme and Ricardian economics as the twin and mutually reinforcing sciences behind the recent thirst for innovative legislation; Dicey lectured that the ‘disciples’ of ‘Adam Smith’ and ‘the Benthamites formed one school’ and that their ‘dogma of laissez faire’ was ‘practically the most vital part of Bentham’s legislative doctrine’; and Halevy con­ cluded his magisterial survey of Philosophic Radicalism with the judge­ ment that the moral theory of the utilitarians was ‘their economic psychology put into the imperative’ . 5 These days it has become easy work to challenge such confident Victorian pronouncements.6 Such judgements standardly ran together a number of distinguishable claims: points about shared deductive and individualist methodologies; about shared policy recommendations and favoured law reform projects; and about the social classes who embraced these doctrines and policy initiatives. Moreover, we no longer can suppose (with Dicey or Maine) that the disciples of Adam Smith and the Benthamites in any sense exhausted or dominated the public debate over legislative reform, even in those settings where their influence was once so unambiguously discerned. And we would equally question the ease and casualness with which these accounts collapsed the distance between Smith’s Inquiry and Ricardo’s Principles. But while these important revi­ sions and corrections would serve to undermine once routine claims about the affinities between classical political economy and Benthamic 4 For a characteristic rendering of this theme, see C. B. Macpherson, The Life and Times of Liberal Democracy (Oxford, 1977)3 ch. 2. 5 See Karl Marx, German IdeologyPart One [1845], in Karl Marx: Selected Writings, ed. David McLellan (Oxford, 1977), p. 185; Henry Sumner Maine, Popular Government [1885] (Indianapolis, 1976), p. 155; A. V. Dicey, Law and Public Opinion in England (1905; 2nd edn, London, 1914), pp. 126 and n. 147; Elie Halevy, Growth of Philosophic Radicalism [1901-4], trans. Mary Morris (London, 1972), p. 478. 6 See Collini, That Noble Science ofPolitics, pp. 281-2.

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no David Lieberman utilitarianism, they leave in place more general questions concerning the relationship between the two bodies of thought. And here it seems impor­ tant to keep hold of the most basic insight that political economy, in some significant manner, mattered to Bentham’s legislative science. Certainly, the science of political economy - the "general theory’ con­ sidering "everything which concerns the wealth of nations’ - was "a branch of the science of legislation 3 Bentham was eager to embrace.7 It was a body of speculation which formed part of the expertise required for the proper administration of the modern state;8 and it was an area of knowledge in which Bentham sought to establish his own credentials. His best-known contribution to political economy, the 17 8 7 Defence of Usury> was one of the few publications that earned for its author any public attention in the period before his reputation was secured through the medium of Dumont’s 18 0 2 redaction, Traites de legislation civile etpenale. And Bentham plainly delighted in the (mistaken) report that his Defence had converted no less a figure than Adam Smith .9 Smith’s assessment of the work was critical: not only was Smith’s endorsement of legal restraints on the rate of interest a major target of Bentham’s essay; even more important. Smith, for Bentham, was the unrivalled authority in this branch of knowledge. He was "the father of political economy’; his Wealth of Nations had "not left much to do’ for treating the "causes and mode of [wealth’s] production ’ . 10 Or, as Bentham put it in a manuscript of the 17 9 0 s: "The parentage of Pluto’s Wealth is no secret. He is the child of Earth by Labour . . . He has Earth for his Mother . . . Labour for his Father, and Adam Smith for his head Genealogist.’ 11 In recent years, Donald Winch has taught us to see in Smith’s own "science of a statesman or legislator’, and in the political economy to which it contributed, a much more highly integrated and wide-ranging body of social speculation than previously had been recognised. And this 7 Jeremy Bentham, General View of a Complete Code of Laws, in Works ofJeremy Bentham, Published under the Supervision of... John Bowring, 11 vols. (Edinburgh, 1838-43), III, p. 203. (Works of Jeremy Bentham hereafter cited as Bowring.) See also the definitions Bentham supplied in his Manual of Political Economy [1793-5], in Jeremy Bentham3s Economic Writings, ed. W. Stark, 3 vols. (London, 1952-4), I, pp. 223-4. 8 See Jeremy Bentham, Constitutional Code, vol. I [1830], ed. F. Rosen and J. H. Burns (Oxford, 1983), pp. 3 I4-I 5* 9 See Bentham’s comments at the time of the 1790 publication of the second edition of his Defence of Usury, in Correspondence ofJeremy Bentham, vol. IV, ed. Alexander Taylor Milne (London, 1981), pp. 132-4, 208-9; and also the discussion of the work’s reception by Stark in Bentham3s Economic Writings, I, pp. 26-33. 10 See Bentham, The Rationale of Reward (London, 1825), p. 70n, and Institute of Political Economy [1801-4], in Bentham}s Economic Writings, III, pp. 321-2. 11 Jeremy Bentham Manuscripts, University College London: UC.cliiia.107, cited in Douglas Long, ‘Bentham on Property5, in Anthony Parel and Thomas Flanagan, eds., Theories of Properly:Aristotle to the Present (Waterloo, Ont., 1979), p. 241.

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Economy and polity in Bentham’s science of legislation 111 reconstruction of Smithian science, in turn, has enabled us to see the variety of ways in which this science was easily distorted and truncated, both in the heat of polemical battle (as in the case of Paine and Burke) and in the later efforts to appropriate his legacy in altered social settings (as in the case of Dugald Stewart and his students) .12 Winch’s discussion provides a model for considering Bentham’s own handling of Smith’s teaching, where again one encounters a remarkably selective, partial and distorting appropriation of the Smithian system. An obvious place to begin is with two (predictably) uncompleted attempts by Bentham to produce brief synthetic statements of ‘the art of government in matters of political economy’ or ‘the art of directing the national industry to the purposes to which it may be directed with the greatest advantage’ .13 These are Bentham’s M anual of Political Economy, composed in the period 17 9 3 - 95 , and the Institute of Political Economy, composed in the period 18 0 1 - 4 .14 Both works proceed initially in terms of a contrast between the ‘science’ and the ‘art’ of political economy - a dis­ tinction which enabled Bentham to offer lavish praise for ‘Dr Adam Smith’ (‘a writer of great and distinguished merit’), while at the same time justifying his own succeeding efforts in this field. Smith’s ‘object was the science: my object is the art’; ‘this work’, Bentham further explained, ‘is to Dr Smith’s, what a book on the art of medicine is to a book of anatomy or physiology’ .15 Bentham’s distinction between political economy as art and as science, as Winch has explained, figured critically in the struggles over Smith’s legacy in the first decades of the nineteenth century, and it is tempting to read Bentham in light of these broader currents.16 As with Dr Smith’s other professed admirers, Bentham found the Wealth of Nations to be methodologically flawed for its failure to keep purely enough to its assigned role in the science of political economy; and as with others, Bentham found important gaps in the Smithian science (as in the neglect of population in the Wealth of Nations) . 17 At the same time, it seems no less important to note the more idiosyncratic elements of Bentham’s reaction. 12 See Donald Winch, Riches and Poverty (Cambridge, 1996), chs. 5-8; and That Noble Science ofPolitics, ch. 1. 13 Institute of Political Economy, in Bentham’s Economic Writings, III, p. 307; and Manual of Political Economy, in ibid., I, p. 223. 14 The two works, as published in vols. I and III of Bentham’s Economic Writings, need to be distinguished from the material appearing under the tide, ‘Manual of Political Economy5 in vol. Ill of Bowring, which is an unreliable compilation of the two separate works; see Bentham’s Economic Writings, I, pp. 49-50. 15 Manual, in Bentham’s Economic Writings, I, pp. 223-4; and see Institute, III, pp. 308, 318-22. 16 See That Noble Science, pp. 49-54,67-89. 17 See Manual, in Bentham’s Economic Writings, I, pp. 224-5, and Institute, in ibid., Ill, p. 36m.

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David Lieberman The distinction between science and art was standardly deployed in Bentham’s legislative theory, where, as in the more particular case of polit­ ical economy, he insisted that ‘the only use of the science is the serving as a foundation to the art5. 18 The priority of practice over theory followed nat­ urally from Bentham’s utilitarian convictions, but not in a manner that prevented him from pursuing at remarkable length and depth more purely theoretical topics, as in the case of the intricacies of his theory of language and fictions, or the conceptual apparatus of jurisprudence he referred to as ‘law metaphysics’ .19 What, perhaps, was peculiar about Bentham’s engagement with political economy - at least initially - was the casualness with which he regarded its theoretical achievements, and the readiness with which he let the Wealth of Nations supply its authoritative pronounce­ ment.20 In addition, the relationship between science and art in this context requires some elaboration, for it is easy to mistake what was involved in Bentham’s effort to derive ‘practical use’ from the Smithian science. In some cases, what this involved was specifying entire areas of legal policy where the insights of the science could be directly applied. Thus, in that area of legislative science styled The Rationale of Reward, legislative art fre­ quently adopted wholesale the insights of political economy. Under the heading of ‘reward’ Bentham considered the relatively exceptional situa­ tions in which the legislator influenced conduct not through the threat of punishment but through the inducement of benefit, most commonly where government secured services by rewarding labour. The guiding principle for how government was to price such labour was that ‘in all cases in which no particular reason can be given to the contrary, the liberty of competition ought to be admitted upon the largest scale’; and this was a principle definitively established by Smith, whose application ‘of it to the laws relating to trade has nearly exhausted the subject’ .21 But the relatively straightforward move from economic theory to legis­ lative practice in the case of Reward was exceptional. Most often the art of political economy demanded that the legislator accommodate the insights of the science within a legislative programme whose structure and objectives only in part concerned ‘the wealth of nations’. As Bentham reported in a work devoted to setting out the basic architecture and rela112

18 Manual, in ibid. , I, p. 224. 19 See the treatment in my Province of Legislation Determined: Legal Theory in EighteenthCentury Britain (Cambridge, 1989), ch. 13. 20 See, for example. Manual, in Bentham’s Economic Writings, I, p. 223m ‘Be the doctrine [of Smith] true or false, this concise sketch will serve at any rate to give a view of the state of the question upon all the topics of political economy that can come under the considera­ tion of the legislature ... If the doctrine be erroneous, exhibited as it is here, it will not be difficult to correct the error.9 21 Rationale ofReward, pp. 110,118.

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Economy and polity in Bentham’s science of legislation 113 tionships among the component parts of a ‘Complete Code of Laws’, although it was easy to identify ‘a science distinct from every other which is called political economy5*he could not see ‘that there can exist a code of laws concerning political economy, distinct and separate from all the other codes5. Rather* a collection of economical laws could "only be a mass of imperfect shreds* drawn without distinction from the whole body oflaws 5.22 The general approach is clarified by reference to Bentham5s treatment of the 'Principles of the Civil Code5* a discussion which elaborated a system of legal rights and obligations (including* of course* a system of property rights) and the legislative principles guiding their distribution .23 Here Bentham differentiated the fundamental object of the legal system the promotion of happiness - into four subsidiary ends: subsistence* abundance* security and equality; he explained how all the functions of civil law could be identified in these subsidiary ends* and how they were to be respectively ordered and coordinated as legislative objectives. A large burden of the discussion was directed at establishing the primacy of security (and the prevention of frustrated expectations) in the principles of civil law. Unlike the other "subsidiary ends’ of legislation* security func­ tioned not just as a component part* but more as a general pre-requisite and enabling condition for the effective pursuit and cultivation of happi­ ness .24 The capacity ‘to look forward’ in an "expectation of the future’ dis­ tinguished men from brutes; ‘expectation’ was the ‘chain which unites our present and our future existence* and passes beyond ourselves to the generations which follow us’; ‘the principle of security extends to the maintenance of all these expectations’ .25 In societal terms* it was again ‘security’ that provided the preconditions of successful coexistence. The preservation of security (and the prevention of frustrated expectations) was both the ‘principal object of law’ and ‘entirely the work of law’ 22 General View of a Complete Code ofLaws, in Bowring, III, p. 203. 23 Bentham treated civil law and the civil code at several stages of his career. The account developed here draws most heavily on his Theory ofLegislation, which is the English trans­ lation of Etienne Dumont’s redaction, Traites de legislation civile etpenale ... Par M.Jeremie Bentham,jurisconsulte anglois, 3 vols. (Paris, 1802). For a full examination of this branch of Bentham’s jurisprudence, see P. J. Kelly, Utilitarianism and Distributive Justice (Oxford, 1990). 24 The importance of security in Bentham’s moral and legal theory is stressed in two recent (and divergent) accounts of his utilitarianism and jurisprudence; see Postema, Bentham and the Common Law Tradition, chs. 5 and 12; and Kelly, Utilitarianism and Distributive Justice. 25 Theory of Legislation, ed. C. K. Ogden (London, 1931), p. 111. See also Bentham’s further discussion of the difference between security and the three other subsidiary ends, in Correspondence, VII, pp. 47-9; and in Pannomion Fragments, in Bowring, III, p. 225, where he emphasises how security, unlike the other ends, is not limited to ‘matters of wealth’.

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David Lieberman without the law creating an arena of security* there could be ‘no abun­ dance* and not even a certainty of subsistence; and the only equality. . . is an equality of misery 5.26 In addition to establishing the primacy of security* the discussion of these differentiated ‘subsidiary ends’ enabled Bentham to account for the flexibility that necessarily attended the legislator’s application of the general principles of the civil code. What was required by law to promote the goal of subsistence* for example* would rightly vary in conditions of scarcity as compared with conditions of moderate plenty or opulence .27 Where Bentham advanced generic propositions concerning the relation­ ships between these goals - such as the claim that prosperity naturally tended to greater social equality* or that communal ownership of land naturally retarded social improvements - he drew readily from the science of political economy. But the science of wealth did not itself provide the ordering logic for the civil code. Instead* when Bentham turned to analyse the legislative principles guiding the distribution of portions of wealth* he turned to a set of psychological properties termed the ‘axioms’ of ‘mental pathology’ which specified ‘the knowledge of the sensations* affections* passions* and of their effects upon happiness’ .28 It was this scheme of mental axioms which grounded the case for equality as a legis­ lative goal* and which guided the legislator’s hand ‘in the creation and dis­ tribution of proprietary and other civil rights’ .29 The resulting body of legislative principles gave ample scope* where appropriate* to the insights of political economy* but within a legislative structure that ordered rights and obligations on a different basis. Thus* for example* when Bentham went on to consider the leading examples of attacks on security which were committed by government (and which his legislative principles served to condemn)* he included policies* such as the ‘forced reduction of the rate of interest’* which were standardly covered ‘as a question of political economy’ on account of the damage such measures caused ‘to wealth’. But in the setting of the principles of the civil code* such injurious regulations were regarded ‘with a more immediate view to security’* and condemned as measures which under­ mined the expectations of lenders without compensating benefit to bor­ rowers. And given the perspectives of the civil code* such misguided 114

26 Theory of Legislation, p. 109. 27 See ibid., pp. 128-33; and see also Institute, in Beniham’s Economic Writings, III, p. 32211, and Defence of a Maximum [1801], in ibid., Ill, pp. 247-302, especially p. 255. 28 Theory of Legislation, p. 102. By the time of the 1789 publication of An Introduction to the Principles ofMorals and Legislation, Bentham had come to regard the elaboration of these axioms as a major pillar of his legislative theory; see An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart (London, 1970), p. 3n. 29 Morals and Legislation, p. 3; and see Theory of Legislation, pp. 103-9.

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Economy and polity in Bentham’s science of legislation 115 regulations earned inclusion in a discussion equally devoted to measures of little direct relevance to political economy, such as the dissolution of convents and monastic orders.30 These same general principles of legislative science, moreover, guided Bentham’s analysis when he turned more directly to the task of presenting ‘the art’ of political economy for the legislator. Both in the M anual and in the Institute of Political Economy, he presented modified versions of the subsidiary ends of legislation (subsistence, security, abundance, equality) to introduce and explicate the cends or uses of wealth ’ .31 Even more important, by identifying the scope of political economy so emphatically with ‘the art of directing the national industry to the purposes to which it may be directed with greatest advantage’,32 Bentham tended to associate its instruction chiefly with the legislative goal of abundance; that is, with but one of the lesser three of the four subsidiary ends of law. The conse­ quence was a remarkably narrow art, comprising a remarkably meagre set of governing principles. As Donald Winch observed of the related setting in which Bentham appropriated Smith in making his case against colo­ nies, ‘The discussion is more dogmatic, and many of the subtle distinc­ tions which were so much a feature of Smith’s analysis have disappeared.’33 In the M anual of Political Economy, Bentham presented, ‘as the ground­ work of the whole’, a principle taken from the Wealth of Nations: ‘the limi­ tation of industry by the limitation of capital’ .34 And the application of this principle generated a set of arguments in repudiation of the prevailing network of commercial bounties, drawbacks and prohibitions. ‘Its chief conclusion’, Leslie Stephen summarised, ‘is that almost all legislation is improper.’35 At first glance, Bentham’s art of political economy appears to reveal, as Dicey put it, that ‘laissez faire . . . was practically the most vital part of Bentham’s legislative doctrine ’ .36 But this is to miss the struc­ turing elements of Bentham’s legislative theory. The art of political economy was so limited because its parent science (for Bentham) was so focused on wealth. The limitations on what the legislator positively could djo to promote abundance were quite distinct from the very substantial tasks the legislator faced in promoting security and subsistence. As Bentham explained in the Manual of Political Economy (and later explored further in his 18 0 1 Defence of a M aximum), legislation restricting the price 30 Theory of Legislation, pp. 141-3. 31 See Manual, in Bentham’s Economic Writings, I, p. 226 and n.; and Institute, in ibid., Ill, pp. 308-12. 32 Manual,m ibid.,I, 223. 33 D. Winch, Classical Political Economy and Colonies (Cambridge, Mass., 1965), p. 29. 34 Manual, in Bentham3sEconomic Writings, I, p. 225. 35 Leslie Stephen, The English Utilitarians, 3 vols. (London, 1900), I, p. 309. 36 Dicey, Law and Public Opinion, p. 147.

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II6 David Lieberman and exportation of corn looked quite different from the perspective of "security of subsistence’ from the way it did with regard to the goal of pro­ moting wealth .37 Political economy did not teach Bentham to contem­ plate areas of social life which operated stably in the absence of law. Rather, it provided guidance on a social goal which did not rank upper­ most in the Benthamic legislative science. The legislator’s ‘great purpose is to preserve the total mass of expectations as far as is possible from all that may interfere with their course’., Bentham observed in a voluminous 18 0 1 essay on paper money. ‘In comparison with this, encrease of weajth is but a frivolous object.’38 Of course, in making his case for the legislative priority and social ben­ efits of security, Bentham recognised and indeed emphasised the manner in which a properly designed and effectively-enforced legal regime of security of person and possession generally tended to promote the accu­ mulation of wealth. ‘Security is the seed of opulence’, pronounced the Institute of Political Economy; and the pronouncement can be readily taken as a Benthamic formulation of a Smithian theme. Where Smith in the Wealth of Nations maintained that the ‘laws and customs so favourable to the [security of tenancy of the] yeomanry have perhaps contributed more to the present grandeur of England than all their boasted regulations of commerce taken together ’,39 Bentham in the Institute of Political Economy rejoined: What the legislator and the Minister of the Interior have it in their power to do towards encrease either of wealth or population is as nothing in comparison with what is done of course, and without thinking of it, by the judge, and his assistant, the Minister of Police.40 None the less* as we have seen, the case for legal security was not estab­ lished on the basis of its contribution to wealth; and given the structure of Bentham’s own legislative science, however eloquently Smith in the Wealth of Nations made the case for the stability of possession and the virtue of justice, these arguments were not directly within the scope of an art of political economy. (In Bentham’s terms, these were parts of Smith’s ‘science of a statesman or legislator’ not directly about political 37 Manual, in Bentham’s Economic Writings I, pp. 265-7; and Defence of a Maximum, in ibid., ni, pp. 284-90. 38 The True Alarm [1801], in ibid., HI, p. 198. 39 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), ed. R. H. Campbell, A. S. Skinner, and W. B. Todd, 2 vols. (Oxford, 1976), I, p. 392. 40 Institute, in Bentham’s Economic Writings, m , p. 323. See also General View of a Complete Code of Laws, in Bowring, 131, p. 203: ‘The most powerful means of augmenting national wealth are those which maintain the security of properties, and which gendy favour their equalization. Such are the objects of the civil and penal law. Those arrangements which tend to increase the national wealth by other means than security and equality (if there be any such,) may be considered as belonging to the class of economical laws.’

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Economy and polity in Bentham’s science of legislation 117 economy.) Ironically, the organising categories of Bentham’s legislative science did as much to cabin as to celebrate the Smithian science. This legislative architecture best explains the notably modest withdrawal of funds from the Wealth of Nations Bentham chose to make in first practis­ ing the art of political economy (‘the limitation of industry by the limita­ tion of capital’). And it perhaps also accounts for the apparent ease with which Bentham disregarded those parts of Smith’s theory of law and government which repudiated just that kind of comprehensive, utilitarian reconstruction of public institutions which Bentham’s own legislative theory so often promised .41 One major consequence of this Benthamic approach to political economy was that, in treating topics within its scope, his legislative theor­ ising tended to swallow up the economics. (As even Stark was forced to acknowledge in introducing the final instalment of his three-volume edition of Bentham3s Economic Writings, it was hard to be confident of the seriousness of Bentham’s commitment to the field.42) The situation can be illustrated in many of Bentham’s ‘economic writings’, but the example which deserves special attention here is the Defence of Usury - in part on account of its direct concern with Smith, and in part on account of the prestige it was subsequently accorded in the canon of classical political economy. Bentham’s 17 8 7 polemic against usury laws positioned the authority of ‘Dr Smith’ in a critical manner. The Wealth of Nations con­ tained a defence of the laws against usury, and Bentham’s counter-case was expressly pursued with the ‘weapons’ Smith had ‘furnished’ and taught his critic ‘to wield ’ .43 Bentham’s insistence ‘that there are no ways in which these laws can do any good’ turned on the demonstration that the same general reasons Smith established against legal restraints on ‘exchanges in general’ equally and fully applied to exchanges of ‘present money for future ’ .44 But although Smith’s doctrines were at the centre of Bentham’s case, 41 Smith’s own legislative doctrines are treated, most recently, by Winch in Riches and Poverty, chs. 4,6-7; see also Knud Haakonssen, Science of a Legislator (Cambridge, 1981). * Bentham’s relationship to the jurisprudence of the Scottish Enlightenment is illuminated by J. H. Burns in ‘Scottish Philosophy and the Science of Legislation’, Royal Society of Edinburgh Occasional Papers, 3 (1985), pp. 11-29. 42 See Bentham 3s Economic Writings, III, p. 47. My emphasis on these limits to Bentham’s ‘economic writings’ is not to deny the increasing intricacy and ambition of these writings themselves, especially in the area of banking and monetary policy. The fullest review of these materials remains Stark’s own introductions to his edition of Bentham’s Economic Writings. For a contrasting treatment of the relationship between Bentham’s political economy and his jurisprudence, see P. J. Kelly, ‘Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham’s Economic Thought’, Utilitas, 1 (1989), pp. 62-81. 43 Defence of Usury, in Bentham’s Economic Writings, I, p. 167. 44 Ibid., pp. 142,132.

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David Lieberman what is no less striking is how much of Defence of Usury did not engage political economy at all. The analysis began with reference to Bentham’s theory of language, with the argument that "the sound of the word usury5 was responsible for immediately biasing any careful scrutiny of the nature of bargains for money. The tract continued with a standard stock of claims Bentham deployed in his law reform proposals generally. The per­ petuation of this misguided legislation, he explained, was symptomatic of the tendency ‘in matters of law’ for the inertial forces of "authority’ and "prejudice’ to sustain irrational institutions. The prominence given to Adam Smith on the title page of Defence of Usury in no way prevented Bentham from devoting one entire section of the work to William Blackstone and his Commentaries on the Laws of England', later passages took aim at another favourite target, Aristotle.45 Two years following its first publication, Bentham described his Defence of Usury as a critical application of his principles of legislative classification, in this instance serving to expose a penal law which lacked the required justification in public utility.46 The characterisation suited the work at least as well as the more familiar category of "economic writing’. And it supplies apt testi­ mony to the more pervasive manner in which Bentham’s legislative theory loudly embraced but firmly contained the science Dr Smith had fathered. 118

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Admittedly, those commentators who discerned the unmistakable triumph of economics in Bentham’s thought rarely believed that the charge turned on the kind of careful reconstruction of the organising cat­ egories of Bentham’s legislative science attempted above. All this, perhaps, is rather beside the point. Bentham’s absorption of political economy occurred in a less avowed and more insidious manner, in terms of his most basic assumptions about individual behaviour and social action. The key construction, it is standardly argued, concerns Bentham’s conception of human nature. "With the dryest naivete’, Marx maintained, "he assumes that the modern petty bourgeois, especially the English petty bourgeois, is the normal man. Whatever is useful to this peculiar kind of normal man, and to his world, is useful in and of itself .’47 My aim in this section of the essay is to take up the question of Bentham’s treatment of human nature, and the more particular claim that this account presumed and valorised the prudent, appetitive behav45 Ibid., pp. 130,157,153-6,158-9. 46 See Morals and Legislation, pp. 4-5. 47 Karl Marx, Capital, 3 vols. [1867], trans. Ben Fowkes (Harmondsworth, 1976), I, p. 759n.

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Economy and polity in Bentham’s science of legislation 119 iour of the market place: Halevy’s ‘economic psychology put into the imperative’ .48 Again* my hope is both to exploit and to propose lines of connection between some of the recent reinterpretations of Bentham’s writings and the broader revisions in the intellectual history of Bentham’s era. This latter scholarship has been particularly powerful in its scrutiny of the careers of those notorious conceptual constructs* ‘rational eco­ nomic man’ and ‘laissez-faire individualism’. Here we have been taught to recognise the range of sources for late eighteenth- and early nineteenthcentury individualism which were not the products of Dicey’s famous firm of ‘Smith and Bentham ’ .49 In the case of Smith* we have been shown the manner in which Smith’s account of human prudence and the pursuit of wealth supported (rather than compromised) a moral theory which expressly rejected rival systems of ethics based on selfish and utilitarian accounts of human behaviour.50 And in charting the debates and doc­ trines which linked and divided Philosophic Whigs and Philosophic Radicals in the first decades of the nineteenth century* we have learned not to focus exclusive attention on the ‘principle of self-interest’ which Macaulay so brilliantly elevated to pre-eminence in his famed assault on James Mill’s political science .51 Bentham* no less than James Mill* has been taken as the very model of the attempt ‘to deduce the science’ - in this case* of legislation - ‘from the principles of human nature’; 52 and interpretative attention continues to be directed both at the content of this account and at its place within Bentham’s theory of ethics. Much of this scholarship has been designed to rescue Bentham from the long-entrenched charges of basic philosophic error in linking hedonism and utilitarianism* and to modify earlier char­ acterisations of his psychological hedonism. The broad thrust of this reinterpretation has been to distance Bentham’s use and understanding of human nature from the approach adopted by James Mill in the Essay on Government; and to move Bentham closer to more typical* Humean con­ ventions concerning the types of assumptions about human behaviour it was prudent to make for the purposes of designing institutions of law and government.53 48 See the discussion above, note 5. 49 See especially the contribution of Boyd Hilton in The Age ofAtonement (Oxford, 1988). 50 See Winch, Riches and Poverty, pp. 103-9. 51 See Winch, That Noble Science ofPolitics, pp. 110-26. 52 See Thomas Babington Macaulay, review of James Mill’s Essay on Government [1829], in Jack Lively and John Rees, eds., Utilitarian Logic and Politics (Oxford, 1978), p. 124. 53 Much of this work has been developed in response to accounts of Bentham’s alleged ‘nat­ uralist fallacy5 and to Halevy’s interpretation in Growth of Philosophic Radicalism of Bentham’s strategy for the harmonisation of individual and collective interests. In what follows, I am especially indebted to the discussion in Harrison, Bentham, chs. 5-6.

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David Lieberman For the legislator, of course, the great priority concerned the influencing of human conduct rather than the refined conceptualisation of human nature. Still, legislative science could never proceed without some under­ standing of the human material upon which law worked; and the success of legislative art plainly depended, in good measure, on the accuracy of this understanding .54 In designing laws and institutions, the legislator utilised punishment and reward so as ‘to make it each man’s interest to observe on every occasion that conduct which it is his duty to observe’; and in so building upon the foundation of ‘personal interest’, the legisla­ tor relied on that ‘principle of action . . . most to be depended upon, whose influence is most powerful, most constant, most uniform, most lasting, and most general among mankind’ .55 The claim that the sovereign mastery of pleasure and pain rendered all human conduct intrinsically self-interested appeared repeatedly through­ out Bentham’s writings (though ‘self-interest’ actually was a term he avoided). The insight that ‘on every occasion, by interest in some shape or other is the conduct of every man determined ’56 promptly ruled out a variety of conventional Christian and classically inspired moral pieties counselling self-denial, self-sacrifice, or self-resignation. (‘Summum Bonum: Consummate Nonsense’ began the relevant section of Bentham’s Deontology.51) And it equally ruled out institutional designs which relied on ‘disinterestedness’ as a qualification for positions of authority and public office.58 But, as in the case of most eighteenth-century moralists, Bentham expressly distinguished the hedonistic psychology and the dynamics o f‘self-preference’ from a doctrine of selfishness or narrow selflove. All individuals readily associated their own pursuits of pleasure with the happiness of at least some others. Although ‘the only interests which a man at all times and upon all occasions is sure to find adequate motives for consulting are his own’, nevertheless ‘there are no occasions in which a man has not some motives for consulting the happiness of other men ’ .59 As his ethical theorising developed, Bentham came to place greater weight on the efficacy of benevolence (that is, acts undertaken to promote 120

54 See Bentham’s defence of the methodology adopted in developing his account of‘mental pathology’ in Theory ofLegislation, p. 103. 55 Pauper Management Improved [1797] 3in Bowring, VIII, pp. 380-1. 56 Deontology [1834], in Jeremy Bentham, Deontology ... A Table of the Springs ofAction and Article on Utilitarianism, ed. Amnon Goldworth (Oxford, 1983), p. 128. 57 Ibid., p. 134. 58 See, among many examples. Pauper Management Improved, in Bowring, VIII, p. 381. 59 Morals and Legislation, p. 284. See also the later formulation of 1822: ‘though self-regard, the desire in man to feel himself happy, is in every situation the predominant desire and propensity in human nature, neither is social regard, sympathetic regard, the desire to see others happy, less extensively inherent in it5; Jeremy Bentham, First Principles Preparatory to Constitutional Code, ed. Philip Schofield (Oxford, 1989), p. 14.

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Economy and polity in Bentham’s science of legislation 12 1 "the happiness of others5) in social life. And even at the level of institu­ tional design* the legislator sought to mobilise the force of sympathy and what Bentham termed the "moral sanction 5in the effort to ensure that the cruling-few 5 exercised their power in the interests of the entire commu­ nity .60 Ironically* in charting the operations of "self-preference5* Bentham came to voice virtually all the points of methodological difficulty better associated with the critique of Benthamic utilitarianism. Since the "sub­ jection of conduct to interest5 applied equally in "the case of the most extensively beneficent* generous* and heroic action that ever was per­ formed 5 as it did "in the case of the most mischievous or selfish5*61 serious ambiguities arose over quite what it meant to explain human behavior in terms of personal interest. The familiar statement* he warned* that an individual "is never governed by any thing but his own interest5was "indu­ bitably true5*but only in that "large and extensive sense of the word inter­ est (as comprehending all sorts of motives)’. At the same time* the claim was "indubitably false in any of the confined senses in which . . . the word interest is wont to be made use of 5.62 Equally critical difficulties emerged over the difference between real and perceived interests. Individuals successfully navigated their pursuit of pleasure and avoidance of pain "wheresoever they have a clear view of their own interest5.63 But this evidently allowed for various settings in which the requisite "clear view 5 was noticeably obscured. In his writings on poor relief and indigence* Bentham seemed prepared to acknowledge entire sub-groups of the community who could not be relied upon effec­ tively to pursue their own real interests. Less exceptionally* he recognised that even those who generally succeeded in pursuing their interests would occasionally lapse: "never probably has any man existed who has not acted against his own interest5.64 And finally* in his radical political theory* he emphasised the manner in which well-entrenched networks of "interestbegotten prejudice5systematically served to confuse the "subject-many5as to the extent to which their real interests were regularly sacrificed to the interests of a corrupt "ruling-few5.65 60 Bentham’s institutional strategy for the mobilisation of the moral sanction remains in dispute among recent commentators; see the contrasting approaches of Postema, Bentham and the Common Law Tradition, pp. 383-402, and Philip Schofield, ‘Bentham on the Identification of Interests’, Utilitas, 8 (1996), pp. 223-34. 61 Deontology, p. 128. 62 Jeremy Bentham, Of Laws in General [1782], ed. H. L. A. Hart (London, 1970), p. 7on; and see the further discussion in Harrison, Bentham, pp. 142-7. 63 Morals and Legislation, p. 40. 64 Deontology, p. 129; and see the further discussion in Harrison, Bentham, pp. 162-5. 65 See the valuable survey of this dimension of Bentham’s political programme in Hume, Bentham and Bureaucracy, pp. 186-95.

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David Lieberman Given such complexities, it becomes evident that the legislator, in pre­ suming a stable and predictable universe of individual self-preference, proceeded pragmatically and strategically. The individual was never taken to be an infallible judge or perfect pursuer of his own interests. But the legislator had sufficient insight into the processes of self-preference for the purposes of law. To what extent, then, were such knowledge and presumptions dependent on more specific Benthamic views, implicit or explicit, concerning the nature of economically orientated conduct? In considering this question, it is worth recalling that Bentham’s legis­ lative programme required not only a sufficient stability in social conduct (such that law could harness duty to personal interest), it further required no little sophistication on the part of social agents in planning and adjust­ ing their conduct in the light of anticipated pleasures and pains as these had been positively manipulated through the introduction of legal sanc­ tions. Probably the best-known example of this occurs in Bentham’s dis­ cussion of the proper level of severity to be adopted in the penalties of the penal code. Like many penal reformers in the second half of the eight­ eenth century, Bentham believed the application of his legislative princi­ ples would serve to bring a decisive reduction in penal severity by introducing the requisite proportionality between levels of crime and levels of punishment. Beccaria, in this context, had written of the need to establish ca scale of crimes’ which comprehended ‘all actions contrary to the public good’, placing these ‘criminal’ acts on a gradation between the most pernicious (‘those which immediately tend to the dissolution of society’) and the least pernicious (‘of the smallest possible injustice done to a private member of that society’), and then assembling ‘a correspond­ ing scale of punishments, descending from the greatest to the least’ .66 Bentham’s treatment of the same aspiration drew instead on the termi­ nology of the market place. Cases in which sanctions proved ineffective or counter-productively excessive (termed ‘cases unmeet for punishment’) were ‘cases where punishment is unprofitable’. On the other hand, in cases ‘meet for punishment’, sanctions needed to be of a severity (or ‘value’) ‘sufficient to outweigh that of the profit of the offence’. And in a concluding summary of a chapter-long survey of the eleven principal ‘properties to be given to a lot of punishment’ (which included ‘frugality’ as number 6), Bentham identified those properties ‘calculated to augment the profit which is to be made by punishment’ and those calcu­ lated ‘to diminish the expense’ . 67 This treatment of proportionality in punishment was typical of the 122

66 Cesare Beccaria, An Essay on Crime and Punishments (1767; 3rd edn, London, 1770), pp. 22-3. 67 Morals and Legislation, pp. 163-4,166,186.

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Economy and polity in Bentham’s science of legislation 123 manner in which Bentham invoked metaphors of trade and accumulation in order to convey his understanding of individual psychology and social action. The discussion of mental pathology in the principles of the civil code (treated above)* including the account of the diminishing marginal utility of surplus pleasure* modelled man’s sensibilities to happiness entirely in terms o f ‘portions of wealth5.68 In the Deontology*he explained the practice of beneficence by likening 'every act of virtuous beneficence 5 to a contribution cto a sort of fund - a sort of Saving Bank5*whereby the individual established a ‘General Good Will Fund . . . from which draughts in his favour may come to be paid 5.69 In defending the laboured terminology and distinctions which comprised his account of the ‘value of a lot of pleasure* how to be measured 5in A n Introduction to the Principles of Morals and Legislation*Bentham reassured his reader that his treatment was neither ‘novel and unwarranted5* nor different from the ‘settled Practice of mankind5. Such calculating valuations of pleasures and pains occurred routinely* as in the valuing of ‘an article of property [or] an estate in land 5.70 And in a later attempt to clarify the intricate calculations required to perceive the difference between the value of present pleasure and the value of an equal amount of certain but future pleasure, he pro­ posed ‘to form an estimate of this diminution* [to] take the general source* and thence representative* of pleasure* viz. money' Yet even this extensive invocation of property and profit to give content to a generalised account of human behaviour did not lack its ambiguities. As Ross Harrison notes* in some early manuscripts of the 17 7 0 s Bentham explored the possibility of using money as the universal measure for the calculation and inter-personal comparison of states of happiness. But in his published works he identified problems inherent in such an approach* expressly denied that all pleasures and pains could be measured in mone­ tary terms* and repudiated the ‘vulgar error5that only money has value .72 A passage from A n Introduction to the Principles of Morals and Legislation is equally revealing. There Bentham directly took up the challenge that his strategy of guiding social conduct through a regime of proportionate penal deterrence was fundamentally misguided (‘so much labour lost5) because criminal acts were the work of passion and ‘passion does not cal­ culate5. In part* Bentham met the charge by rejecting its claims: ‘the prop­ osition that passion does not calculate* this like most of these very general 68 See Theory ofLegislation, pp. 102-9. 69 Deontology, pp. 184-6. 70 Morals and Legislation, p. 40. 71 Codification Proposal, Addressed ... To All Nations Professing Liberal Opinions [1822], in Jeremy Bentham, cLegislator of the World3: Writings on Codification, Law and Education, ed. Philip Schofield and Jonathan Harris (Oxford, 1998), p. 251. (I am indebted to Philip Schofield for alerting me to this passage.) 72 See the valuable analysis of these contrasting positions in Harrison, Bentham, pp. 155-62.

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David Lieberman and oracular propositions, is not true5. But, he also went on to observe that o f‘all the passions 5the one ‘most given to calculation 5was that corre­ sponding ‘to the motive of pecuniary interest5 (that is, the pursuit of wealth). And since the mischiefs produced by this particular motive figured as the leading object of the penal law, criminal deterrence enjoyed ‘the best chance of being efficacious, where efficacy is of the most impor­ tance 5.73 Once more, it might seem, Bentham turned to economically orientated conduct in order to redeem the behaviourist assumptions of his legislative project. But in this case, the logic of economic motivation and pecuniary interest did not supply the clarifying core of generalised social conduct. Rather, economic conduct was distinguishable from gen­ eralised social conduct by being the ‘most given to calculation5 (though its exceptionality proved a happy advantage to the penal law). In this setting at least, Bentham’s reliance on the experienced calculator of economic benefits and burdens appeared as much the pragmatic construction of legislative science as did his more general utilisation of the logic of per­ sonal interest. 124

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Bentham5s social actor, in crucial respects then, functioned in a manner that evinced the calculating discipline of profit-seeking and marketexchange. In this sense, it is hard to imagine Bentham’s legislative science functioning in a community which lacked the practice of truck, barter, and exchange. Where the familiar reduction of Benthamic man to ‘eco­ nomic man 5 proves incomplete and misleading is in the failure to notice the extent to which Bentham5s account of human nature was itself the self-conscious construction of legislative art rather than the (putative) neutral statement of descriptive findings. But the emphasis on Bentham’s ‘economic psychology 5is misleading also in another sense: in its tendency to overshadow other, no less critical assumptions about social conduct Bentham made in his legislative programme. In this final section I seek to explore one such set of assumptions: those concerning the operation of public opinion in Bentham5s programme for representative government in the Constitutional Code. One of the important (and long-overdue) accomplishments of the new edition of Collected Works has been to break the grip long exercised by A Fragment on Government and the first six chapters of A n Introduction to the Principles of Morals and Legislation in the treatment of Bentham5s thought. In the case of Bentham’s political and constitutional theory, the edition 73 Morals and Legislation, pp. 173-4.

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Economy and polity in Bentham’s science of legislation 125 has made available a series of important writings from the final decade of Bentham’s career* when much of his legislative science was focused on the elaboration of a radical programme of constitutional democracy .74 The study of Bentham’s legislative science as applied to constitutional law has increasingly come to focus on these materials. The political debates and polemics over parliamentary reform in the 18 2 0 s and 18 3 0 s tended to highlight the most immediately controversial elements of the Philosophical Radical programme: the calls for manhood suffrage and for the ballot. (In due course* the arguments advanced in support of these same reforms furnished the site for the observation of yet another "economic’ triumph over political philosophy: the "economic theory of democracy’.75) In Bentham’s own case* his views on the suffrage were notoriously extreme* even by Philosophical Radical standards. As Brougham explained to his fellow legislators in the House of Commons* "Mr Bentham’ would give the vote to any "person of either sex [who] was able to put a pellet into a box* no matter whether he were insane and had one of the keepers of a mad-house to guide him ’ .76 Still* recent scholar­ ship has properly emphasised how much of Bentham’s plan of democratic government depended on a range of institutional devices that extended well beyond the electoral process.77 The "ruling-few’ needed to function under legal restraints as well as electoral accountability* while the "subject-many’ needed to wield the power of public opinion as much as the democratic franchise. Bentham summarised his utilitarian programme of good government under the formula* "Official Aptitude Maximized* Expense Minimized’. "Official Aptitude’ covered several capacities* including appropriate "moral aptitude’ which referred to the determination of an individual exercising political power to seek the promotion of "his own happiness by giving encrease to the happiness of the greatest number ’ .78 As with the other elements of desired "official aptitude’* the Constitutional Code 74 These writings, as published in the new Collected Works edition, include: Colonies, Commerce£and Constitutional Law: Rid Yourselves of Ultramaria and Other Writings on Spain and Spanish .America [1820-22], ed. Philip Schofield (Oxford, 1995); First Principles Preparatory to Constitutional Code [1822]; Securities Against Misrule and Other Constitutional Writings for Tripoli and Greece [1822-3], ed. Philip Schofield (Oxford, 1990) j Constitutional Code, I; Official Aptitude Maximized, Expense Minimized [1830], ed. Philip Schofield (Oxford, 1993). 75 See Alan Ryan, ‘Two Concepts of Politics and Democracy: James and John Stuart Mill5, in Martin Fleisher, ed., Machiavelli and the Nature of Political Thought (New York, 1972), and Terence Ball, Transforming Political Discourse (Oxford, 1988), ch. 6. 76 Speech to the House of Commons, June 1818; quoted in Bentham, Codification Proposal, in Legislator of the World, p. 303. 77 See especially the treatments of the Constitutional Code in Rosen, Bentham and Representative Government, and Hume, Bentham and Bureaucracy, chs. 6-8. 78 First Principles,-p. 14.

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David Lieberman furnished a network of structures and procedures (or ‘securities against misrule’) for sustaining this commitment to utilitarian goals. In the case of ‘moral aptitude’, Bentham identified and extolled an institution he termed the ‘Public Opinion Tribunal’, giving it expansive responsibil­ ities in his programme against the ‘disease’ of misrule .79 The Public Opinion Tribunal, in the highly technical expression of Bentham’s mature constitutional writing, constituted ‘a fictitious tribunal’ or ‘imaginary tribunal or judiciary’, which applied ‘the punishments and rewards’ of ‘the popular or moral sanction .’80 As in the case of more con­ ventional judicial bodies, the Public Opinion Tribunal received accusations and allegations of misconduct (here the acts of misrule committed by those exercising government power); heard counter-testimony in defence; weighed and evaluated assembled evidence; formed and publicised its determined conclusions; and finally gave ‘effect and execution’ to its judge­ ment.81 The punishments it imposed (its. exercise of the popular or moral sanction) chiefly comprised the lowered popularity and weakened prestige on the part of those officials it found wanting in desired moral aptitude.82 As an institution of constitutional democracy, Bentham’s Public Opinion Tribunal was even more democratic than the electorate. It would frequently function in the form o f‘sub-committees’, containing members of the community who turned their attention to particular issues or par­ ticular government actions; and such sub-committees might on occasion become dominated by an ‘aristocratical section’ opposed to the ‘democratical’ interests of the full Public Opinion Tribunal.83 Nonetheless, there were no rules of qualification or requirements for joining; membership in the Public Opinion Tribunal was determined entirely by the individual choosing to participate in its operations. As a result, the Tribunal included in its ranks several of the sub-groups standardly disqualified from political life - foreigners and children, no less than unpropertied males and women. To the extent that the extra-legal processes of the Public Opinion Tribunal were modelled on more formal political bodies, its decisions constituted a uniquely popular vehicle of power. ‘Public opinion may be considered as a system of law, emanating from the body of the people’, declared the Constitutional Code.SA And Bentham repeatedly stressed the efficacy of its sanctions: 126

79 Bentham deployed the terminology of ‘remedy* and ‘disease5routinely in this context, see, for example, his ‘preliminary explanations’ to Securities Against Misrule, p. 25. 80 First Principles, p. 283; and see Constitutional Code, 1, pp. 35-9. 81 See Securities Against Misrule, pp. 60-4. 82 See Constitutional Code, 1, p. I34n: ‘Under the sort of law established and enforced by the power of the moral sanction - the penalty ... is forfeiture of a correspondent degree of popularity.’ 83 See First Principles, pp. 70-6. 84 Constitutional Code, 1, p. 36. (The passage continues, with the clarification: ‘If there be no

Jeremy Bentham

Economy and polity in Bentham’s science of legislation 1 27 [The English King} may kill any person he pleases, violate any woman he pleases; take to himself or destroy any thing he pleases. Every person who resists him while in any such way occupied, is, by law, killable, and every person who so much as tells of it, is punishable. Yet, without the form of an act of parliament^ he does nothing of all this. Why? Because by the power of the Public Opinion Tribunal, though he could not be either punished or effectively resisted, he might be, and would be, more or less annoyed.85

Although the Public Opinion Tribunal constituted a ‘fictitious tribunal’, Bentham clarified its institutional forms and functions by discussing two of its existing and leading ‘sub-committees’: the common law jury and the newspaper press.86The jury evinced several of the institution’s features: its similarities to a judiciary and its capacity to impede the abuse of politi­ cal power. Newspapers, in contrast, bespoke the public, flexible and self­ determining character of the Tribunal’s membership and range of reference. Bentham’s confidence in the power of newspapers to combat political misrule was remarkably displayed in a work he composed in 1822 addressed to the Islamic state of Tripoli. The essay presumed the contin­ uation of arbitrary rule in Tripoli, and therefore turned to ‘publicity’ and ‘Public Opinion 5as the principal available ‘check . . . to the power of the government’.87In this setting, Bentham celebrated the newspaper as ‘the only effectual instrument’ for mobilising and guiding such public opinion, further maintaining that in the preferable form of ‘Representative Democracy’ only the ‘Prime Minister’ exercised a more important function than ‘this one sort of written instrument’.88 Given this analysis, Bentham in the essay went on to develop a set of guidelines for best initiating and maintaining a newspaper press under Tripolitan conditions. That Bentham should have been so attentive to these vehicles of public opinion may be thought unsurprising. As early as the 1776 Fragment on Government, he identified ‘liberty of the press* and ‘liberty of public associatiort as among the defining attributes of a 'free government’.89Well before his final conversion to democratic politics, Bentham in a variety of set­ tings advocated the mechanisms of publicity and public inspection as individually assignable form of words in and by which it stands expressed, it is but upon a par in this particular with that rule of action which ... is in England designated by the appellation of Common Law') 85 Ibid., p. 25. 86 On the latter institutional form, see the helpful survey by Philip Schofield, ‘Bentham on Public Opinion and the Press3, in Dimity Kingsford-Smith and Dawn Oliver, eds., Economical with the Truth: The Law and Media in Democratic Society (Oxford, 1990), pp. 95- 108. 87 Securities Against Misrule, p. 125. 88 Ibid., pp. 44- 5; see also Constitutional Code, I, p. 54: cby the healing hand of Public Opinion, the rigour of Despotism may be softened5. 89 See A Fragment on Government [1776], in A Comment on the Commentaries and A Fragment on Government, eds. J. H. Burns and H. L. A. Hart (London, 1977)3 P- 4^5-

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vital resources against the abuse of power.90And, of course, freedom of the press and freedom of opinion, like manhood suffrage and the ballot, were basic parts of the wider Philosophic Radical programme. ‘[W]ithout the liberty of the press’, James Mill argued in his paper devoted to the subject, ‘it is doubtful whether a power in the people of choosing their own rulers ... would be an advantage.’91 But these important lines of continuity should not obscure the more idiosyncratic and radical dimensions of Bentham’s constitutional project. Unlike other contemporary radical political reformers, Bentham never presumed that representative government in itself eliminated the vices of political corruption and the abuse of power. Rather, representative government presented the opportunity for introducing those devices which might effectively hinder the processes of misrule.92 Among these, the organisation and circulation of public opinion was fundamental. Here the Public Opinion Tribunal did not function simply in support of the electoral system, furnishing the citizenry with the information it needed to make an informed judgement at the ballot box. Rather, public opinion was an on-going force in a democratic society, serving to encourage the utilitarian commitments of the ‘ruling-few’ and to discipline political power outside the formal institutions of law and the state. Moreover, it was not enough for the constitution of the democratic state simply to allow or even encourage the public scrutiny and discussion of its rule. The structures and procedures of politics needed to be articulated in a way that forced the governors to disclose their decisions and the interests they promoted before the public. Thus, the Constitutional Code's elaborate bureaucratic structure which promoted efficiency and expertise at the same time served the goals of administrative transparency and rigorous accountability. ‘The military functionary is paid for being shot at’, Bentham explained; ‘the civil functionary is paid for being spoken and written at . . . Better he be defamed, though it be ever so unjustly, than that, by a breach of official duty, any sinister profit sought should be reaped .’93 While the Public Opinion Tribunal has been properly highlighted in Bentham’s concern to identify techniques to ensure proper administrative aptitude and accountability through publicity, record-keeping and inspection first developed in con­ nection with his proposed institutional projects of the 1790s, such as the panopticon prison and the pauper panopticons. On these materials, see the important discussions in Hume, Bentham and Bureaucracy, especially pp. 139- 64, and Janet Semple, Bentham’s Prison: A Study of the Panopticon Penitentiary (Oxford, 1993), especially pp. 134- 47, 268- 70, 319- 21. 91 James Mill, ‘Freedom of the Press5 [1823], in James Mill: Political Writings, ed. Terence Ball (Cambridge, 1992), p. 117. 92 See FirstPrinciples, pp. 25- 6. 93 Constitutional Code, I, p. 40. 90

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some of the most recent scholarship on Bentham’s political theory, much less has been done to place it in context or to consider Bentham’s approach in terms of the kind of "trajectory of opinion 5charted by John Burrow in his 1985 Carlyle Lectures .94Certainly there were clear echoes of the tropes of the more popular Painite versions of English radicalism in Bentham’s juxtaposing public opinion to the showy but contentless pre­ tensions of monarchic and aristocratic virtue. Likewise, the emphasis on public opinion’s power and authority recalled the increasingly common­ place, at times conservative and even complacent later eighteenthcentury rendering of Hume’s famous dictum that cit is ... on opinion only that government is founded ’.95What was more characteristically and dis­ tinctively Benthamic was the conceptualisation of public opinion in expressly juridical terms (public opinion as an "imaginary tribunal or judiciary’), and the effort to identify an institutional form (albeit a ‘fictitious’ one) for harnessing its power systematically. The Public Opinion Tribunal could only achieve the goals the Constitutional Code assigned it because of the eagerness of the democratic community not only to pay attention to the information about the conduct of politics that was presented to it, but to utilise this information actively and routinely for the critical evaluation of the conduct of political life. What, for Bentham, needed to be organised were the institutional forms for the coordination and dissemination of public opinion. But the citizen’s capacity and disposition to exploit and maintain these institu­ tions could be presumed. In these respects, the strategy for public opinion in the Constitutional Code seemed to take for granted quite specific and particular features of contemporary anglophone politics, whose novelty and varied impacts have been frequently emphasised in recent work on Hanoverian public life.96 Most obvious for the purposes of Bentham’s constitutional designs was the dramatic and much-noted proliferation through the eighteenth century of newspapers and periodicals, along with sundry items of politi­ cal ephemera, including prints, cartoons, pamphlets, tokens, and J. W. Burrow., Whigs and Liberals (Oxford, 1988), p. 66. See also the important explora­ tions of the increasing appeal to public opinion in eighteenth-century political specula­ tion in J. A. W. Gunn, Beyond Liberty and Property (Kingston and Montreal, 1983), ch. 7 , and Keith Michael Baker, Inventing the French Revolution (Cambridge, 1990), ch. 8. 95 Hume, cOf the First Principles of Government’ [1742 ], in Hume: Political Essays, ed. Knud Haakonssen (Cambridge, 1994), p. 16; and see Burrow, Whigs and Liberals, pp. 53- 6, 60- 5 . 96 Much of this discussion has been inspired by the frame developed in Habermas’ Structural Transformation of the Public Sphere; the scale of this scholarship is now consider­ able. In what follows here, I am especially indebted to two recent, synthetic considera­ tions of the cultural impacts of print media: J. Paul Hunter, Before Novels (New York, 1990), and John Brewer, The Pleasures of the Imagination (New York, 1997 ), chs. 3- 4 .

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medals.97 The rise of the newspaper press was itself but one element in the more general elaboration of the institutions associated with an increasingly vibrant and dense print culture, with its networks of London and provincial printers and booksellers, coffee houses and reviews, and commercial ‘subscription libraries’. But the press and printed newssheets proved particularly significant in their relation to the political prac­ tices of the kingdom. In the first half of the century, particularly in the great journalistic campaigns attending the ‘rage of party’ during the reign of Queen Anne and the ‘patriot’ attacks on Walpolean ‘oligarchy’, the periodic press was itself directed and sustained largely as an extension of parliamentary politics and ministerial rivalries. But by mid-century, such instruments of political information helped to create and support the political culture of those excluded from direct parliamentary participa­ tion, including - as in the case of the Wilkite agitation of the 1760s - the publication and increasingly extensive distribution of more radical cri­ tiques of established government structures. Later still, extraparliamentary bodies - such as the Committee for the Abolition of the Slave Trade and its 1788 and 1792 petition campaigns - proved adept in forcing issues upon parliamentary politics through the effective mobilisa­ tion of public opinion and the varied media of print and publication .98 While much of this process was dependent on changes in commerce and economy, not least upon the enlarging consumer markets of ‘mid­ dling’ and provincial society, print and news were no less implicated in changes of law and political value. The lapse of the Licensing Act in 1695 brought a final end to the system of pre-publication censorship and guild monopoly through which publishing in England had previously been reg­ ulated. In its place, there gradually emerged a new, more porous legal regime centred on the law of copyright and libel.99 ‘The liberty of the press5joined the settled canon of rights ‘essential to the nature of a free state’, even among those commentators no less alarmed by ‘the licen­ tiousness’ of the press and the dissemination of radical political doc­ trines .100 In 177I 3 Parliament abandoned the prohibition of the direct On newspapers and politics, see the recent survey by Bob Harris, Politics and the Rise of the Press (London, 1996). On the importance of the press and print-trade to the pro­ cesses of extra-parliamentary and provincial politics, see John Brewer, Party Ideology and Popular Politics at the Accession of George III (Cambridge, 1976), ch. 8, and Kathleen Wilson, The Sense of the People (Cambridge, 1995). 98 See, for example, J. R. Oldfield, Popular Politics and British Anti-Slavery (Manchester, 1995)99 On these legal developments, see Philip Hamburger, ‘Development of the Law of Seditious Libel and the Control of the Press’, Stanford Law Review, 37 (1985), pp. 661- 765, and Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass., 1993). 100 See William Blackstone, Commentaries on the Laws of England, 4 vols. (1765- 9), 97

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reporting of its own proceedings* and parliamentary debates and votes quickly became the political staple of London and provincial newspages. British politicians now came of age in the knowledge that their delibera­ tions and speeches would be as much read by an informed and interested public as heard by a select parliamentary audience. None of this* of course* approximated the patterns of dissemination secured by the masscirculation press of the modern era. None the less* the circulation of polit­ ical information had plainly become a most striking feature of eighteenth-century public culture. In his classic statement of the Principles of Moral and Political Philosophy of 1785* William Paley main­ tained that for him - as ‘with most men who are arrived at the middle age and occupy the middle classes of life’ - it was difficult to conceive any ‘amusement and diversion’ which brought ‘greater pleasure’ than that received ‘from expecting* hearing* and relating public news; reading par­ liamentary debates and proceedings; canvassing the political arguments* projects* predictions* and intelligence* which are conveyed* by various channels* to every corner of the kingdom ’.101 For Bentham’s constitutional designs* as important as the increased publicity attending political practice were the varied kinds of information generated by the routine operations of parliamentary government. The British state in the eighteenth century emerged as the major collector and* by the late 1760s* printer of information about government prac­ tices* economy* and society.102 The development was most dramatically evident in the detailed statistics concerning the state’s expenditures and tax revenues which accompanied the annual fiscal legislation introduced to the House of Commons; and which itself featured centrally in the polit­ ical effort by Parliament to control the executive and accurately monitor the ever-burgeoning national debt. The revenue system of excise and customs* and the political machinations over tax policy* led to the amass­ ing of accounts concerning trades and commerce; public information on facsimile reprint of the first edition (Chicago, 1979), IV, pp. 1513153. By ‘liberty of the press’ Blackstone referred to absence of censorship prior to publication. The relative novelty of ‘freedom of press’ in discussions of English rights is emphasised by Lois G. Schwoerer in ‘Liberty of the Press and Public Opinion: 1660- 95’, in J. R. Jones, ed.. Liberty Secured? Britain Before and After 1688 (Stanford, 1992), pp. 199- 231; the later Hanoverian debate over the contribution of the press to English liberty is examined by Eckhart Hellmuth, ‘The Palladium of All Other English liberties’, in Eckhart Hellmuth, ed., The Transformation of Political Culture (Oxford, 1990), pp. 467- 501. 101 William Paley, Principles of Moral and Political Philosophy (1785; 9th American edn, Boston, 1818), p. 298. 102 The government practices and structures which encouraged the demands for political intelligence are considered in John Brewer, Sinews ofPower (New York, 1989), pp. 130- 4, 221- 49, and Paul Langford^Public Life and the Propertied Englishman (Oxford, 1991), chs. 3-4*

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current social conditions followed in the wake of more fitful parliamen­ tary legislative efforts in such areas as poor law reform and policing in the metropolis. The largely local and particularistic character of Parliament’s legislative activity* in turn* encouraged the development of channels of communication through which "lobbies’ and interest groups supplied the legislature with advantageous information and kept abreast of potentially damaging legislative proposals. In his own radical political polemics* Bentham showed himself a skilled consumer of this mass of conveniently compiled and easily acquired polit­ ical "intelligence5. In 1830* he accompanied the publication of the first volume of the Constitutional Code with a collection of essays composed over the previous twenty years and assembled under the title* Official Aptitude Maximized; Expense Minimized. Two of the longest items in the volume were a pair of "Defences of Economy’*composed in critique of the Whig programme of economical reform associated with Edmund Burke’s parliamentary initiative of 1780 and in critique of the Tory administrative reform programme elaborated by George Rose in a pamphlet of 1810. The two critiques sought to expose the manifold defects and corruptions on offer in these establishment schemes of retrenchment. In so doing* Bentham drew extensively on information concerning late eighteenthand early nineteenth-century government expenditures (especially the system of "pensions* sinecures* reversions’) which was made available in such printed sources as the House of Commons Sessional Papers and the thirteen reports of the Commons’ Committee on Public Expenditure (1807- 12). These essays were later followed by another voluminous and complimentary polemic* Indications Respecting Lord Eldon, which denounced legislation of the 1820s covering judicial salaries and court fees at the central courts of Westminster Hall; and which* again* relied on information assembled in the reports of parliamentary sub-committees and published in the Commons Sessional Papers. The collection’s penulti­ mate item* the uncharacteristically brief essay "On Public Accounting’* responded critically to a recent report of a special commission on the practice of keeping public accounts* initiated by the Commons Committee on Public Income and Expenditure and published in the 1828 Commons Sessional Papers.103 Bentham’s more developed and positive strategy for the organisation and publication of political knowledge was contained in the elaborate 103

For such instances of Bentham’s utilisation of parliamentary publications concerning government expenditures and record-keeping, see Official Aptitude Maximized, Expense Minimized, pp. 58- 65, 112- 15, 212- 19, 293- 301. The relationship between the Constitutional Code and Official Aptitude Maximized, Expense Minimized is summarised in the editorial introduction of the latter work; see pp. xv-xvii.

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articles of the Constitutional Code setting out the state’s Statistic function’, ‘registration’, and 'publication’ systems. These provisions were designed to ensure the proper and efficient flow of information across the several distinct departments of government, and between government function­ aries and the constituents of the Public Opinion Tribunal. As we have seen, the ultimate efficacy of such measures depended on the readiness of the democratic populace to absorb and utilise the information with which the provisions of the Constitutional Code required it to be supplied. Such a politically orientated, inquisitive, and critical populace might well be understood as the cumulative product of the specific practices of politics in eighteenth- and early nineteenth-century Britain. And, on occasion, Bentham acknowledged the more parochial dimensions of this specific political sensibility. T or an English Minister to neglect the Newspapers’, he noted in a manuscript comment of the 1770s, ‘is for a Roman Consul to neglect the Forum ’.104But, most often, these dispositions and capac­ ities appeared as more generic and naturally occurring features of all political association. Human nature, as citizen, came to society already politically alert, eager for information, and determinedly vocal. In this context, Bentham’s writings addressed to Tripoli once more prove particularly revealing. In these essays, Bentham devoted unsurpris­ ing attention to the special circumstances and challenges created by Tripoli’s arbitrary government and Islamic institutions. But in his treat­ ment of the mobilisation of public opinion in Tripoli, there was little indi­ cation of any special task to cultivate the kind of political orientations and interests needed to sustain the Public Opinion Tribunal. Rather, most of his specific suggestions for the successful inauguration of newspapers in Tripoli involved quite practical devices - such as the regularity of publica­ tion and the variety of news content - designed to attract and maintain the largest possible readership .105 What Tripolitan society chiefly required was the technology of public opinion, the printing press and the newspaper. Once these were introduced, the audience to consume the information newly provided would readily appear and exert its critical power. Whatever else Bentham may have presupposed about human nature and social action in his legislative science, in his mature constitutional programme he presumed social actors fully disposed to constitute them­ selves members of the Public Opinion Tribunal. In his 1817 Plan of Parliamentary Reform, which became notorious for its endorsement of ‘virtual universality of suffrage’, one of the few groups Bentham excluded 104

Jeremy Bentham Manuscripts, University College London: cxlix.7; cited in Semple, Bentham 3s Prison, p. 57.105 See Securities Against Misrule, pp. 46- 50.

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from the franchise was ‘non-readers3. But he emphasised that this was a purposefully ‘temporary 5 exclusion; indeed^ that the exclusion would create new incentives to literacy.106 The Constitutional Code made clear why literacy and printed information were so vital to Bentham’s under­ standing of the dynamics of democratic government and the attributes of political man. It is an aspect of his thought that deserves far greater prom­ inence in the treatment of his social assumptions. Hitherto we have been so devoted to finding behind Bentham’s legislative theory a nation of shopkeepers^ that we have neglected his commitments to a nation of newspaper readers. 106

Plan ofParliamentary Reform3in the Form ofa Catechism [1817], in Bowring, III, p. 464.

Jeremy Bentham

[13]

Takuo Dome 4.1 Introduction

Jeremy Bentham, like Smith, combined his interests in moral science, jurisprudence, and politics with an interest in political economy. In An Intro­ duction to the Principles of Morals and Legislation (1789), Bentham indicated that in the future he would write the complete system of legislation, which would include principles of legislation in (1) civil law, (2) penal law, (3) pro­ cedure, (4) reward, (5) constitutional law, (6) political tactics, and (7) inter­ national law, and that principles of legislation in matters of finance and political economy would constitute the eighth and ninth parts respectively.1 Although this plan was never carried out, Bentham’s views on the principles of legislation related to political economy were set out in Manual of Political Economy (1793-5) and Institute o f Political Economy (1801-4). Like other branches of legislation, the general end of political economy was the maximization of happiness in the community. This general end was divided into four subordinate ends: subsistence; security; abundance; and equality. In the ‘Introduction’ to Institute o f Political Economy, Bentham described: The object of the present work is to enquire what is the most suitable course for the sovereign of a country to pursue on each occasion ... the maximum of happiness with reference to the several members of the community taken together. ... This object may be termed the general end or end paramount, with reference to certain other objects which, separately taken, are of less extent and of subordinate import­ ance: I mean 1. subsistence, 2. security, 3. [abundance which com­ prises] enjoyment or opulence, [and] populousness, [4.] equality. (Bentham 1952-4 [1801-4], vol. 3: 307) Although political economy was a study of national wealth, it had to submit itself to these subordinate ends. To Bentham, wealth was the means, and happiness the end. Of the four subordinate ends, Bentham attached the most importance to security. Without security, wealth would not be produced, and con-

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Jeremy Bentham 67 sequently, subsistence and abundance would not be maintained. In con­ trast, if security was guaranteed, wealth would naturally increase, and subsistence and abundance would be realized. Thus, security was the necessary and sufficient condition for subsistence and abundance. The principle of legislation with respect to security was called ‘the securityproviding principle’. Because this principle applied not only to one’s life and property, but also to one’s expectations with respect to them, it could also be called ‘the disappointment-preventing principle’ (Stark 1952-4, vol. 1: 92).2 Equality was also an important element of happiness. Bentham acknowledged that ‘[t]he more nearly the actual proportion approaches to equality, the greater will be the total mass of happiness’ (Bentham 1962 [1802], vol. 1: 305). Legislation with respect to political economy should be enacted on the basis of ‘the equality-maximizing principle’, or more prop­ erly ‘the inequality-minimizing principle’ (Stark 1952-4, vol. 1: 93). However, Bentham argued: When security and equality are in opposition, there should be no hesita­ tion: equality should give way. The first is the foundation of life - of sub­ sistence - of abundance - of happiness; every thing depends on it. Equality only produces a certain portion of happiness: besides, though it may be created, it will always be imperfect; if it could exist for a day, the revolutions of the next day would disturb it. The establishment of equal­ ity is chimera: the only thing which can be done is to diminish inequality. (Bentham 1962 [1802], vol. 1: 311) Thus, security was more important than equality, because, whereas secur­ ity was always the foundation of happiness, equality would improve it only partly and temporarily. Security was not only the most important element of happiness, but also the most suitable object for governmental intervention: In listing over the four several subordinate ends of political action, we shall [find] a great difference in respect of the demand they respec­ tively present for the interference of the legislator. Security is more especially and essentially his work: in regard to subsistence, opulence, and equality, his interference is comparatively unnecessary. (Bentham 1952-4 [1801-4], vol. 3: 311; emphasis in original) Bentham’s fundamental view of the principles of legislation with respect to political economy can be summarized as follows. First, the legis­ lator should intervene in the economy mainly on the basis of the securityproviding principle. Second, the legislator could also pursue the equality-maximizing principle only if it was consistent with the securityproviding principle.3

Jeremy Bentham

Jeremy Bentham In the period 1794-1801, Bentham wrote several plans of public finance - one for governmental interventions: Proposal for a Mode o f Taxation (1794); A Plan for Augmentation o f the Revenue (1794-5); Supply without Burden, or Escheat vice Taxation (1795) ;4 Proposal for the Circulation o f a [New] Species o f Paper Money (1795-6); Abstract or Compressed View o f a Tract Intituled Circulating Annuities (1800). Bentham wrote these plans in order to propose to the Chancellor of Exchequer a means to finance the war against France and reduce the outstanding public debt. After 1800, Bentham shifted his main concern from public finance to monetary regula­ tion - another form of governmental intervention. Paper Mischief [Exposed] (1800-1) and The True Alarm (1801) examined this theme. In this chapter, I will demonstrate that Bentham’s plans of public finance, as well as monetary regulation, were consistent with his funda­ mental views on the principles of legislation which concerned political economy - the security-providing principle and the equality-maximizing principle.5 The following section will examine Bentham’s general view on taxation and his two plans to raise revenue by taxation: an extension of the escheat law, and a tax on the profits of bankers and stock dealers. I will reconstruct his order of preference with respect to the different forms of taxation, including the two just mentioned. In the third section, Bentham’s Annuity Notes scheme - one of his plans to raise revenue by ‘moneytraffic’ - will be discussed, and the reason why Bentham finally abandoned the Annuity Notes scheme and shifted his concern to monetary regulation will be explained. 68

4.2 Revenue by taxation6 4.2.1 The principles of taxation

Bentham laid down the following condition for assessing all government expenditure: ‘To judge of the expediency and eligibility of any branch of [public] expenditure, compare the benefit of it with the burthen of a correspondent portion of the produce of the most burthensome tax’ (Bentham 1952-4 [1801-4], vol. 3: 364). The pleasure to be realized by government expenditure had to be superior to the pain produced by the worst taxes that would have to be imposed in order to finance it. Usually, only government expenditure on security would satisfy such a condition. Thus, Bentham argued that 4[t]axes are sacrifices made of wealth and opu­ lence at the expence of enjoyment, to security in respect of defence, and security in respect of subsistence’ (Bentham 1952-4 [1801-4], vol. 3: 363). Even if government expenditure was limited to the purpose of security, taxes would reduce the means of enjoyment of those on whom they were imposed. The degree of reduction would depend on the modes of taxation. Bentham thought that the sacrifice of enjoyment to taxation had to be minimized: ‘Finance operates in toto in diminution of wealth ... the object

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Jeremy Bentham 69 or end in view is - to render the diminution as small as possible, and as pure as possible from collateral vexation, and inconvenience in every shape’ (Bentham 1952-4 [1801-4], vol. 3: 363). Bentham refused to use taxation for other purposes than raising revenue. To Bentham, the natural and only original object of taxation was ‘revenue’ (Bentham 1952-4 [1793-5], vol. 1: 257). Because taxes were paid at least partly from consumption, if the government added tax revenue to productive capital, national wealth would increase faster. However, according to Bentham, tax stimulation - to reduce consumption and increase production and/or savings - should not be the object of taxation. It was an injustice to force a man - when he wished to enjoy himself - to labour or save for his own benefit or for the sake of increasing another man’s enjoyment. The choice between savings and consumption belonged to sponte acta - the case where the end had to be promoted by individuals without special interference by the government. From the government’s point of view, such forced frugality was contained in non-agenda. Thus, government expenditure should be limited to purposes of secur­ ity, and the most important issue to which the legislator had to pay atten­ tion was minimizing the pains and evils associated with taxation. Moreover, the main purpose of taxation had to be to raise revenue. Bentham’s criteria of taxation was clearly summarized in General View o f a Complete Code o f Laws (1820): First object o f finance - to find the money without constraint - without making any person experience the pain of loss and of privation. Second object - to take care that this pain of constraint and privation be reduced to the lowest term. Third object - to avoid giving rise to evils accessory to the obligation of paying the tax. (Bentham 1962 [1820], vol. 3: 204: emphasis in original)7 It will be demonstrated below that Bentham applied these criteria throughout his proposals on tax reform.

4.2.2 An extension of the escheat law

Bentham proposed to Charles Long - William Pitt’s Co-Secretary to the Treasury - two new financial measures which would provide the govern­ ment with revenue without imposing a burden on the people: first, an extension of the existing law of escheat; and second, a tax imposed on bankers’ and stock dealers’ profits. The first measure was precisely set out in his Supply without Burden, or Escheat vice Taxation. Bentham attempted to extend the existing law of escheat which applied only to landed property with no heir. Bentham’s plan was: ( 1 ) that the government would confiscate all property in the case of intestate succession where there were no marriage-prohibited relations;

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70 Jeremy Bentham (2 ) that the government would share a half of the intestate property in the case of collateral inheritance; (3) that wills of parents would be effective only with respect to half the amount of their property; (4) that the prop­ erty which had to be restored to the public would be converted into money through a public auction. Because people would not usually expect to inherit property except from their parents, and because people are usually eager to leave property only to their children, this new law could supply public revenue without causing great disappointment to the people. Thus, the new law of escheat could be justified by the security-providing prin­ ciple. Annual revenue obtained from this new law was estimated at about two million pounds - one-tenth of government revenue at that time (Bentham 1952-4 [1795], vol. 1: 297-8). Bentham was not bothered by the expected objection that his law of escheat would violate the natural right of inheritance: I know of no natural rights except what are created by general utility: and even in that sense it were much better the word were never heard of. All such language is at any rate false: all such language is either pernicious, or at the best an improper and fallacious way of indicating what is true. (Bentham 1952-4 [1795], vol. 1: 333) To Bentham, a right was derived from a law - not nature - and a law had to be subservient to human feelings. Thus, Bentham could concentrate his attention on whether the new law of escheat would improve human feelings. Although his proposal could be said to be an extension of the existing inheritance taxes, Bentham avoided using the term ‘tax’. If a small part of a bequest was taken by the state under the name of a tax, the heir would feel pain because he would think that the whole of bequest originally belonged to himself. By contrast, if the law told him that the whole of bequest belonged to the public, and that he was permitted a half share of it, he would not feel the pain of losing his property. Thus, considering the influence of names upon people’s feelings of expectation, the new measure of escheat had to be enforced in the form of a regulation, not a tax: this was indicated in the subtitle of the pamphlet, namely Escheat vice Tax­ ation. Because the common law could not legitimately determine the pale to which such a regulation applied, the new law of escheat had to be a statute law (Bentham 1952-4 [1795], vol. 1: 324). Revenue obtained through the new law of escheat could be used (1) to reduce public debt, (2) to abolish several taxes, (3) to pay interest on public debt, and (4) to pay current services. Considering uncertainty with respect to the amount of revenue, Bentham thought the first two uses more desirable than the last two uses. Because the new law would confis­ cate productive capital, as well as land and bonds, it could prevent national

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Jeremy Bentham 71 capital from growing. The law could prevent the growth of capital also by weakening parents’ incentive to save. However, if the revenue raised by this law was spent to reduce public debt, capital accumulation would not be impeded, because the public creditors would invest the repaid money on productive capital. By contrast, if the revenue was spent on the payment of the interest on public debt or on current services, capital accu­ mulation would be retarded, because the public creditors and the govern­ ment would spend such money at least partly on consumption. Therefore, from the viewpoint of capital accumulation, it was most desirable that the revenue raised by the new law of escheat was used to pay off public debt. However, Bentham did not stick to this use: Applied in lieu of taxes, applied to the payment of the interest of the debt, it certainly would act, as to the greatest part of it, in diminution of the national capital: but ought this part of its operation to be placed to the account of disadvantage? - By no means, but rather the con­ trary. (Bentham 1952-4 [1795], vol. 1: 359) Bentham thought that a slowing of capital accumulation would prevent the rate of interest from declining rapidly, and that such a tendency would produce a beneficial psychological effect on the feelings of the people. Hence, revenue raised by the new law of escheat did not always have to be used to pay off public debt. It could be used - more desirably - to abolish burdensome taxes. Taxes on law proceedings, taxes on medicines, window tax, soap tax, and salt tax exemplified oppressive taxes to be abolished. These taxes were unjust, because they impeded justice, health, sanitation, and subsistence in people’s lives, and because they distressed the poor more than the rich. If these taxes were taken away by revenue obtained from the law of escheat, people’s utility would increase. The new law of escheat would produce other effects: it would cut off a great source of litigation concerning inheritance; promote marriage; and raise asset prices (Bentham 1952-4 [1795], vol. 1: 289 and 344-6). Bentham thought that these effects would also improve people’s feelings. Thus, the new law of escheat could raise revenue without reducing utility, and could be used to increase it. Because of the law, property would be diffused more widely, and the poor would be relieved from bur­ densome taxes. Consequently, the new law would have a redistributive effect, which would improve the condition of the poor. This result would promote equality - without impeding security - and hence accord with the equality-maximizing principle. However, it must be noted that neither the diffusion of property nor improvements in conditions for the poor were the direct purpose of Bentham’s escheat law. They were not shown even as indirect and remote effects to be expected from the proposed measures. Bentham emphasized that the new law of escheat would never mean a

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72 Jeremy Bentham revolution in property: it would rather prevent a revolution.8 Moreover, probably in order to make the government accept his proposal, Bentham indicated that the peerage would be exempted from the new law (Bentham 1952-4 [1795], vol. 1: 204).9 Although the new law of escheat would be consistent with the equality-maximizing principle, the main purpose of Bentham’s proposal in the 1795 pamphlet was - as the title showed - supply without burden, which was subject to the securityproviding principle.10

4.2.3 A tax on profits with the exclusive privilege

The other financial measure which Bentham proposed was a tax on profits associated with monopoly or exclusive privilege. This proposal was explained in a pamphlet entitled Proposal for a Mode o f Taxation and a broadsheet called Tax with Monopoly. According to Bentham, ‘it is the masters of the country that pay every thing, willing or unwilling’ (Bentham 1952-4 [1794b], vol. 1: 381). Taxes fell most heavily on the landed class, whereas no tax was imposed on the interest of money lent, government and personal annuities, dividends paid by joint stock companies, profits from trade, and professional incomes. ‘[Individuals of the numerous descriptions above mentioned can not, con­ sistently with the rule of equality, be permitted to go altogether scot-free’ (Bentham 1952-4 [1794b], vol. 1: 385). Bentham divided incomes into two groups. The first group included property incomes: rent from land; interest on money lent; government and personal annuities; and dividends paid by joint stock companies. The second group included industrial incomes: profits from trade; and professional incomes. Property income was assured income, but industrial income was casual income. Incomes had to be classified also from the viewpoint of whether they would continue after the life of the earner (perpetual income) or not (temporary income). Perpet­ ual income could be inherited by children, but a man of temporary income ‘must undergo a retrenchment adequate to the present maintenance and future establishment of those objects of necessary care’ (Bentham 1952-4 [1794b], vol. 1: 386). However, because it was impracticable to accomplish equality in taxation by considering the differences between incomes, Bentham proposed to reduce the tax rate on industrial incomes to half that of property incomes. Including this exemption rule, Bentham laid down the following general rules for income tax: (1 ) the subsistence income had to be exempted altogether; (2 ) the tax rate would gradually increase with respect to income from the subsistence level to the full sufficient level; (3) the tax rate would be fixed with respect to income above the full sufficient level; (4) compensation could be afforded unless it contradicted the public inter­ est; (5) incomes eligible for compensation were to be taxed first, and ineli­ gible incomes second (Bentham 1952-4 [1794b], vol. 1: 388). Following this

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Jeremy Bentham 73 general rule, Bentham looked for incomes which had not yet paid any direct tax, and on which the income tax could be imposed with compensa­ tion. Consequently, Bentham found profits of bankers and of stock dealers suitable for the tax. As compensation, bankers and stock dealers would be given an exclusive privilege - a limitation of their number through a licence system. Bentham acknowledged the mischief of monopoly: it would decrease the supply; raise the price; impair the quality of the commodity; and increase the distance between demanders and suppliers. However, a limi­ tation of the number of bankers and stock dealers could escape such mis­ chief. Because the quantity of their dealings depended only on the aggregate supply of money - metallic money and convertible bank notes it would not be decreased by a limitation of their number. The price and quality of their service would not be seriously influenced, because these depended on the rate of interest, and because the rate of interest would be regulated mainly by the aggregate supply of money. Finally, because most monetary dealings were done in the City, and because the number of banking houses would not be reduced, customers would not be incon­ venienced by the limitation of the number of individual bankers and stock dealers (Bentham 1952-4 [no date], vol. 1: 373). A tax on bankers’ and stock dealers’ profits had another advantage compared with a tax on profits in other branches of business. The assess­ ment of their profits would be easier and less vexatious. If bankers and stock dealers accepted the new tax on profits with monopoly rights, they would suffer a loss at first. However, since the quantity of dealing would continuously increase because of high economic growth in England, the benefit derived from the exclusive privilege would make up and exceed the loss at a certain point of time in the future. Thus, the tax on bankers’ and stock dealers’ profits with compensation in the form of a limitation of their number would harm no one. It must be stressed that, in Proposal for a Mode o f Taxation - written prior to the suspension of the specie convertibility of Bank of England notes in 1797 - the tax on bankers was not proposed as a means to restrict the issue of bank notes.11 Bentham proposed this tax only as a financial measure to ensure supply without burden. In contrast, in Paper Mischief and The True Alarm - both of which were written after the suspension of conversion - Bentham put forward the tax on bankers in order to restrict the quantity of bank notes.

4.2.4 Bentham’s preference order of taxes

Bentham had a plan to complete a list of taxes with a view to their order of preference, including an extension of the escheat law and taxes on the profits of bankers and stock dealers. In General View o f a Complete Code o f Laws, Bentham stated:

Jeremy Bentham

74 Jeremy Bentham a treatise upon finance ought to begin with two tables: - [1.] A table of all the inconveniences which can possibly result from every kind of tax; 2. A table of all the taxes, arranged in the most convenient order for facilitating the comparison and showing the particular qualities of each one. (Bentham 1962 [1820], vol. 3: 204) Traces of this work are seen in Analytical View or Summary Sketch o f Financial Resources, Employed and Employable (Bentham 1952-4 [1794a], vol. 1: 277-8) and in manuscripts collected in the Dumont papers, box LXXII (Stark 1952-4, vol. 3: 540-5). On the basis of this evidence and Bentham’s fragmentary statements on various taxes, we can reconstruct the preference order. The best method of finance was the law of escheat. In fact, in Supply without Burden, Bentham stated that ‘[t]he object of the present Essay is, to point out that mode of supply which, for one of so great a magnitude, will, I flatter myself, appear to be absolutely the besf (Bentham 1952-4 [1795], vol. 1: 283; emphasis in original). In general, indirect taxes were less painful than direct taxes, because ‘[t]o an indirect tax, each man pays no more than he pleases; and the vex­ ation attendant on the collection of it is confined to the makers and vendors of the commodity taxed’, whereas ‘[t]o a direct tax, each man pays what the imposer of the tax pleases, and the vexation embraces every man who pays [it]’ (Bentham 1952-4 [1801-4], vol. 3: 366-7; emphasis in ori­ ginal). People could avoid consumption taxes - if they wished - by refrain­ ing from consumption of the commodity taxed. However, this held true only with respect to taxes on luxuries. People - in particular, the poor could not escape taxes on necessities. To Bentham, taxes on necessities were oppressive taxes to be abolished (Bentham 1952^1 [1793-5], vol. 1: 245 and 1962 [1793], vol. 2: 580). Bentham divided direct taxes on income into two categories: taxes on income with compensation; and those without compensation. Bentham preferred taxes on income with compensation to consumption taxes: Between [the] three classes of contributions, [viz.] taxes on branches of industry susceptible of an adequate indemnity on the one hand, and taxes on consumption and taxes on branches of industry not suscept­ ible of an adequate indemnity [on the other], the order of preference seems now established, and that as tolerably solid as well as conspicu­ ous: the first demands the preference over both the other two. (Bentham 1952-4 [1794b], vol. 1:401) Thus, the second best form of taxation was taxes on income with com­ pensation: for example, a tax on bankers’ and stock dealers’ profits offset by an exclusive privilege; and the third best was taxes on luxuries. Taxes

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Jeremy Bentham IS on incomes ineligible for compensation came fourth in Bentham’s order of preference. Bentham regarded the land tax as a special income tax levied on land tenure. Bentham wrote: ‘I do not look upon the Land Tax in any shape or in any proportion as a just and eligible tax’ (Stark 1952-4, vol. 3: 529). The inequality that landed property alone was taxed could be corrected by imposing the same kind of tax on non-landed properties and non-property incomes; an income tax with or without compensation was Bentham’s answer. Hence, to Bentham, an income tax meant an extension of the land tax (Stark 1952-4, vol. 3: 543). If this was true, the landed class should be exempted from the income tax as long as they paid the land tax, or the land tax should be abolished if the landed class paid an income tax. The worst tax, which Bentham repeatedly condemned, was a tax imposed on law proceedings. In the essay entitled A Protest Against LawTaxes, Bentham concluded: that a law tax is the worst of all taxes, actual or possible: - that for the most part it is a denial of justice, that at the best, it is a tax upon dis­ tress: - that it lays the burthen, not where there is most, but where there is least, benefit: - that it co-operates with every injury, and with every crime: - that the persons on whom it bears hardest, are those on whom a burthen of any kind lies heaviest, and that they compose the great majority of the people. (Bentham 1962 [1793], vol. 2: 582) For similar reasons, taxes on medicines, on insurance against calamities, on contracts (in particular, on borrowing money), and on the means of political information (for example, newspapers) would follow the law tax as bad taxes to be abolished (Bentham 1952-4 [1801-4], vol. 3: 369 and 1962 [1830], vol. 9: 451). These taxes, as well as taxes on necessities, would not only infringe the social interest but also impose on the poor more heavily than on the rich. The poll tax was not desirable as long as it could be imposed where the ability to pay was wanting (Stark 1952-4, vol. 3: 524). Bentham also thought that the existing system of poor rates had significant problems, although he believed that pauper management was necessary.12 Finally, Bentham regarded both duties on imports and drawbacks on exports as non-agenda: the government should not encourage home industries through these measures.13 The reconstructed list of the order of preference - although it is still incomplete - demonstrates that Bentham had a consistent tax reform pro­ gramme. In particular, the three most preferable options - the law of escheat, an income tax with compensation, and taxes on luxuries - consti­ tute Bentham’s view of a fair and efficient system of taxation. These meas­ ures would be consistent with the security-providing principle. Bentham

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76 Jeremy Bentham also aimed to correct existing inequalities imposed by the tax burden - in particular, the burden of the land tax. However, Bentham did not pursue equality in taxation, because he thought it impossible to realize complete equality among different individuals. In Anarchical Fallacies, Bentham argued: In the valuation of men’s faculties, is it meant that their possessions only, or that their respective wants and exigencies, as well as their ways and means, should be taken into account? In the latter case, what endless labour! in the former case, what injustice! (Bentham 1962 [1795-6a], vol. 2: 518) Because of this, Bentham confined himself to proposing financial meas­ ures which would supply revenue without burden. It must also be noted that although Bentham always wanted to minimize the burden of taxes on the poor, his proposals and programmes did not directly aim at the redis­ tribution of income nor the diffusion of property.14 Equality was not given priority over security. The tax reform programme which aimed at equality in the burden of taxation was taken up by J. S. Mill (see Sections 8.3 and 8.4, pages 176-93).

4.3 Revenue by ‘money-traffic’ 4.3.1 The preliminary ideas

An extension of the escheat law and a tax on profits offset by compensa­ tion were proposals of taxation, although they aimed to minimize the burden on the people. The government could raise revenue, with less burden, by intervening in ‘money-traffic’, namely ‘the exchange of money in one shape, for money in another’ (Bentham 1952-4 [1794-5], vol. 2: 120). In the period 1794-6, Bentham put forward two measures to raise revenue from ‘money-traffic’: buying and selling of the life annuities by government and issuing and circulating Exchequer Notes as new paper money. Government dealings in life annuities were discussed in A Plan for Augmentation o f the Revenue. Bentham argued that ‘[f]or life annuities payable for the life of the purchaser there would be no want of demand: the great want is that of supply’ (Bentham 1952-4 [1794-5], vol. 2: 131). The government would be able to sell the life annuities on more advanta­ geous terms than any private supplier, because the security of government was perfect. The government could buy life annuities at a price lower than their real value, because no perfect market in life annuities was estab­ lished. Thus, the government could profit from buying and selling life annuities. The profits would be used to reduce the outstanding public debt. Bentham’s proposal for life annuities could be regarded as a measure to

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Jeremy Bentham 77 lighten the burden of the public debt by transferring it into life annuities. Although Bentham acknowledged that ‘[government in general is unfit for the exercise of a lucrative occupation in comparison of individuals’ (Bentham 1952-4 [1794-5], vol. 2: 146), dealings in life annuities were an exception. The government could be the most trustworthy and long-lived dealer of life annuities. The Exchequer Notes scheme was put forward in Proposal for the Cir­ culation o f a [New] Species of Paper Money } 5 Bentham argued that the government suffered an invisible loss because it did not have a circulating paper: Bank notes, though bearing no interest, circulate at par. Even private notes, the notes of country bankers, do the same. Government paper not without interest, and that, even when carrying interest at upwards of 4V2 per Cent, scarce bearing a premium. (Bentham 1952-4 [1795-6b], vol. 2:155) The circulating medium in the United Kingdom at the end of the eigh­ teenth century consisted of gold coin, Bank of England notes and country bank notes: bills of exchange and bank deposits were also used in wholesale transactions. In England, the Bank of England was the only chartered bank. As a joint stock bank, it issued notes on the basis of bullion. English country banks - namely non-London private banks - also issued bank notes: they held their reserves mainly in deposits with London private banks (non­ issuing banks), whose main reserves in turn consisted of Bank of England notes. Ireland and Scotland had their own banking systems. In Scotland, non-chartered joint stock banks, as well as private banks, were permitted to issue notes: their reserves consisted of notes and deposits of the Scottish chartered banks, who themselves held deposits at the Bank of England. No central banking system had yet been established for the United Kingdom, although any difficulties finally fell on the Bank of England (Fetter 1965: 33-7). Bentham believed that, in contrast to the Revolutionary period, the British government now held sufficient power and credit to issue and circu­ late its own paper money in the place of bank notes. Bentham proposed a form of governmental money called ‘Exchequer Notes’. Exchequer Notes would initially be offered at interest of 2 per cent in order to attract people and replace existing bank notes. Interest would be paid annually in cash, and the principal could also be paid back by cash on demand. In order to prevent a run, the government would reserve the option of paying back ‘an Exchequer Annuity Bond’, which would grant a perpetual redeemable annuity. In order to ensure the acceptance of this option, the rate of interest on this bond would be higher than that on public debt (Bentham 1952-4 [1795-6b], vol. 2:181). When Exchequer Notes were completely accepted as a means of circu­ lation, the rate of interest would be reduced gradually. The value of the

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78 Jeremy Bentham Exchequer Notes to be issued would be the same as that of the existing bank notes. Bentham estimated it at about 40 million pounds: the profit to government by the monopoly of the paper currency will be the difference between the interest they pay upon these 40 millions, and the amount of the annuities they would have had to grant for the same capital, had it been obtained upon the ordinary terms. If it ends, as there seems reason to expect it should, in the circulation of such Notes even without interest, the profit will then be the borrowing [of] 40 millions without interest, or, to speak more correctly, the obtaining gratis 40 million of the money they employed. (Bentham 1952-4 [1795—6b], vol. 2:196; emphasis in original) Thus, Bentham believed that the government could make a profit equal to the value of the Exchequer Notes to be issued. Although the issue banks would suffer a loss by this scheme, Bentham did not offer compen­ sation for the loss. If Exchequer Notes did not completely replace the bank notes, and if national wealth was uninfluenced by this scheme, the price level would rise, because the total amount of paper money would increase. However, in this plan, Bentham did not explain the macroeco­ nomic effects of the scheme in detail. Despite such incompleteness, the scheme of Exchequer Notes - as well as the plan of buying and selling of the life annuities - was the preliminary to a full-scale scheme for money trafficking, namely the Annuity Notes scheme.

4.3.2 The scheme of Annuity Notes

In 1797, when rumours of a French invasion provoked a run on the banking system, the British government suspended specie convertibility of Bank of England notes. Although this suspension was supposed to be tem­ porary, it continued until 1821. Now Bank of England notes circulated only on the basis of its historical credit. In this monetary circumstance, Bentham reconsidered the ideas of life annuities and Exchequer Notes. In Abstract or Compressed View o f a Tract Intituled Circulating Annuities, Bentham synthesized these ideas, and put forward the scheme of Annuity Notes as a means of extinguishing the redeemable public debt. Bentham proposed this scheme to Nicholas Vansittart, then Secretary to the Treasury. Bentham’s scheme can be explained as follows (Bentham 19S2-A [1800], vol. 2: 208-24). The government would issue paper money called ‘Annuity Notes’, which would grant the possessor a perpetual redeemable annuity, although the principal was not payable on demand. The annual rate of interest of Annuity Notes would start at 3 per cent - lower than the market rate of interest on the public debt at 3 per cent interest. The inter­ est could be paid on demand biannually, for example at the post office.

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Jeremy Bentham 79 The value of the Standard Annuity Note was £12 16s., and notes of smaller and larger denominations would be issued as the need arose: Bentham considered nineteen kinds of notes in total. The value of an Annuity Note increased daily at compound interest consistent with the annual rate of 3 per cent. On the face or back of each Note, a table of the daily value for a year and tables of the yearly and half-yearly values for 34 years would be printed. The date when the interest was last paid at the office would be recorded on the Note: thus, people could calculate the present value of the Note by using the tables and the record of the last payment. Because Annuity Notes were used as a circulating medium, the holders could receive the interest not only by going to the office every half year, but also by selling them to others in exchange for commodities, metallic money, or bank notes. Annuity Notes at 3 per cent interest would be sold to money holders who would demand them not only as an asset which would produce inter­ est, but also as an alternative means of circulation: Bentham believed that there was no want of demand for the Notes .16 The sales of Annuity Notes would be used to buy in the public debt. Because the average market price of the public debt at 3 per cent was below par, the government could make a surplus by selling an Annuity Note and buying an amount of the public debt of equal face value. Because the market prices of public debts at 4 per cent and 5 per cent interest were also below the face value of public debt at 3 per cent interest, the government could make a profit from buying all kinds of public debts. This surplus would be transferred to the sinking fund, and used to buy more public debt. The purchase of public debt by the government would increase its market price: consequently, the market rate of interest on public debt would fall. When the price of public debt reached its face value, the government could stop buying and start to pay it off - to oblige the stockholders to sell their public debts to the government at par. Consequently, the government could extinguish all redeemable debts, without a loss, by continuing to issue and sell Annuity Notes at 3 per cent interest. When all redeemable public debts were paid off, the government would issue Annuity Notes at a lower rate of interest, for example, 2.5 per cent: this would be carried out by raising the face value of every Note. This lower rate of interest would be accepted, because the market rates of interest - including those of unredeemable public debt and Exchequer Bills - would have been lowered by the extinction of redeemable public debt: unlimited demand for Annuity Notes would also make the lower rate of interest acceptable. Annuity Notes at 3 per cent interest would be circu­ lated with a premium for a while. However, the government would pay off the old Notes by the sale of the new Notes. The holders of Annuity Notes at 3 per cent interest would have to sell them at face value which would have increased at the rate of compound interest since the last interest payment. Because of this conversion, the interest on Annuity Notes which

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80 Jeremy Bentham the government had to pay would be reduced. The surplus produced by the reduction of the interest rate would be used to collect the old Notes. When all Annuity Notes at 3 per cent interest were paid off, Annuity Notes at a lower rate of interest - for example, 2 per cent - would be issued, and Notes at 2.5 per cent interest would be replaced with them. By repeat­ ing the same process, the government could reduce the interest on Annuity Notes as far as possible. Annuity Notes at the lowest rate - for example 1 per cent - would be demanded mainly as a secure means of circulation, rather than an interest-bearing asset. There would not be many holders of the Annuity Notes who would visit the office to receive their interest. The annual amount which the government would pay in the interest on the Annuity Notes would be negligible. The government did not have to pay off Annuity Notes at 1 per cent interest by taxes: such a redemption would impose a burden on the people and take a means of circulation from them. Thus, the financial problem with respect to the payment of public debt would be resolved. Bentham thought that the Annuity Notes scheme would shorten the redemption period of the existing public debt from 37 years to 30 years (Stark 1952-4, vol. 3: 463). Whenever new public debt was issued - for example, because of a war - the same measure could be applied to pay it off. The Annuity Notes scheme was an extension of the idea of Exchequer Notes. In fact, the Annuity Notes scheme provided for the redemption of public debt by issuing new paper money. However, in contrast to the Exchequer Notes, the principal of Annuity Notes would not be redeemable on demand: thus they could avoid a run. Moreover, Bentham did not intend to replace all bank notes with Annuity Notes: the total amount of the Annuity Notes would be determined by the amount of out­ standing public debt - not the value of existing bank notes. The scheme could also be regarded as an extension of the life-annuities plan: the government would make a profit by buying and selling Annuity Notes, because the people’s demand for secure annuities would be sufficiently large. However, in contrast to the life-annuities plan, the scheme aimed at reducing the amount of annuities which the government had to pay: in this sense the scheme was a plan to pay off debts through refunding them at a lower rate of interest. The Annuity Notes scheme illustrated Bentham’s idea of debt management: debts could be managed by issuing paper money and by refunding them at a lower rate of interest. Bentham recognized that his Annuity Notes scheme was adapted from the Assignats used in France 1789-97 (Bentham 1952-4 [1800], vol. 2: 206 and 225). Assignats were paper money bearing 5 per cent interest, with the nationalized church lands as security. However, they failed to circulate because people distrusted the worth of the security. Bentham wrote: This currency came, in no short space of time, to an end. True: but from what cause? - not from the embarrassment attending to the com-

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Jeremy Bentham 81 putations (this is pretty well established by the examples given already) but from the worthlessness - the absolute worthlessness of the security. (Stark 1952-4, vol. 2: 389; emphasis in original) Bentham believed that, because Annuity Notes would not rely on any security, and the amount issued was limited by the existing public debt, they would escape the failure of the Assignats.

4.3.3 Advantages and disadvantages of the scheme

In the conclusion of his Annuity Notes scheme, Bentham listed four major advantages of the scheme: ( 1 ) financial profit; (2 ) promotion of frugality; (3) constitutional stability; (4) growth of national wealth (Bentham 1952-4 [1800], vol. 2: 298). The only disadvantage was that the scheme could be accompanied by a general rise in prices, or inflation. Bentham argued the Annuity Notes scheme would not only produce financial profits but also promote frugality in the people (Bentham 1952-4 [1800], vol. 2: 293-5). In contrast to public debt and Exchequer Bills, Annuity Notes included small-denomination Notes, which all classes of society - in particular the poor - could buy and hold for the purpose of receiving interest. Although the rate of interest on Annuity Notes would be gradually reduced - and consequently, the incentive to frugality would be weakened - the condition of the poor would be improved in the mean­ time, and the habit of frugality would take root among them. Thus, the Annuity Notes scheme would be consistent with the equality-maximizing principle. By taking the mass of the people into the circle of the moneyed interest, Annuity Notes would contribute to constitutional security. Bentham argued: Among the effects resulting from the national debt, in the early stages of its existence, was the security it afforded to the old established con­ stitution, by engaging the purses and affections of the moneyed interest in the service and support of the new-established government. That was the great moneyed interest. ... The advantage resulting from the transmutation of that debt into the proposed form would be the securing to the constitution and government now grown into one, the support of what may be called the little moneyed interest by the same powerful tie. (Bentham 1952-4 [1800], vol. 2: 296; emphasis in original) According to Bentham, since the Revolution of 1688, Britain had avoided tyranny and maintained the constitutional order because every sovereign had relied on the money raised by the public debt: this money

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82 Jeremy Bentham had been supplied by ‘the great moneyed interest’, namely the rich public creditors. The present constitutional problem in Britain was not monarchi­ cal tyranny, but popular anarchy. Consequently, if the popular pecuniary interest was consistent with the continuation of the present government, constitutional stability would be maintained. The Annuity Notes scheme would accomplish such an object by making the masses ‘the little moneyed interest’. Because Annuity Notes would extinguish the public debt, the little moneyed interest would take over the role of a financial supporter of the government from the great moneyed interest. Thus, as Bentham con­ cluded, 6[s]tock, in its large doses, served for the disorder of that time: paper, in its small doses, is the specific for the present’ (Bentham 1952-4 [1800], vol. 2: 296; emphasis in original).17 Bentham believed that the Annuity Notes scheme would increase national wealth, as was the case with the redemption of public debt by the sinking fund.18 The sinking fund was financed by taxes, and taxes were paid by a reduction of consumption. Because the redeemed money would be invested by the public creditors in productive capital, the redemption of public debt by the sinking fund would transfer taxpayers’ consumption to public creditors’ savings. Similarly, Annuity Notes would be bought by the money holders: they would buy the Notes by reducing their consumption. Public debt would be bought or paid off by the sales amount of the Annuity Notes. The money repaid to the public creditors would be invested in productive capital. Consequently, the redemption of public debt by Annuity Notes would increase the national capital by transferring the money holders’ consumption into the public creditors’ savings. When the public debt was issued, the public creditors’ savings would be trans­ ferred into the government’s unproductive expenditure. Hence, the net increase in national capital would be the difference between the amount the government had received from the public creditors and the amount the government would repay them: usually the amount repaid would be larger than the amount received, because the public debt was undertaken by public creditors below par when it was issued. Thus, redemption of public debt by Annuity Notes, as well as by the sinking fund, would increase the net national capital, and consequently the net national wealth (Bentham 1952-4 [1800], vol. 2: 266). However, in contrast to the case of the sinking fund, the redemption of public debt by Annuity Notes could raise the price of commodities. Given the constant quantity of commodities, prices would not rise if all Annuity Notes were hoarded by the holders. By contrast, if Annuity Notes were used as a means of circulation, prices would rise, at least until the increase in national wealth caught up with the increase in the circulating medium. The Annuity Notes scheme would have the same effect as an increase in paper money, unless all Notes were hoarded - whereas the scheme would have the same effect as a redemption of public debt by the sinking fund, if all Annuity Notes were hoarded.

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Jeremy Bentham 83 Bentham thought that inflation was undesirable. It was an indirect tax on incomes, the nominal amount of which was fixed; the rent of land on a long-lease, interest on money lent, all kinds of annuities, salaries, and so on. In fact, inflation would transfer the real purchasing power from fixed incomes to incomes which increased in proportion to the increase in prices. Whereas the gain from compensation would be scarcely perceived, the loss by a rise in prices would be acutely felt. Bentham argued that ‘the enjoyment produced by gain is never equal to the suffering produced by loss: if it were, the main reason for affording protection to property would cease’ (Bentham 1952-4 [1800], vol. 2: 286). Inflation impeded the secur­ ity-providing principle - the most important principle for the end of achieving greatest happiness. The increase in national wealth because of the addition to productive capital could catch up with the entry of Annuity Notes into circulation. In this case, inflation would stop in the long run. However, this would not always be the case. Inflation would lower the real purchasing power of money repaid to the public creditors. Consequently, their contribution to productive capital would diminish. If Annuity Notes were spent on con­ sumption, the proportion between consumption and investment might not change. If this was true, no real addition would be made to productive capital, and consequently the national wealth would not increase. Thus, inflation would hinder the wealth-creating effect of the Annuity Notes scheme. Moreover, even if national wealth increased, the increase would cease when all redeemable public debt was paid off. Meanwhile, Annuity Notes would remain in circulation and increase their value infinitely at com­ pound interest: although the interest rate of the remaining Annuity Notes would be lower than those initially issued, a larger proportion of Annuity Notes would circulate. Consequently, the increase in national wealth by the redemption of public debt could not stop the inflationary pressure.19 Bentham emphasized that Annuity Notes had two alternative functions: interest-bearing assets and means of circulation, arguing that ‘it seems impossible to say in what proportions, at any given time, the quantity of Annuity Note paper, remaining at that time, will find itself distributed between the two classes’ (Bentham 1952-4 [1800], vol. 2: 283). According to Bentham, Annuity Notes would be hoarded as an asset when there was an excess supply of money - namely, in periods of inflation - and they would be drawn into circulation when there was a lack of money - in periods of deflation. In other words, ‘[an Annuity Note] would be stock one moment and cash the next, whichever were most wanted’ (Bentham 1952-4 [1800], vol. 2: 274; emphasis in original). However, Bentham did not demonstrate the mechanism of this self-adjustment. Bentham did not explain why an individual holder of Annuity Notes would hoard (draw) their Notes in periods of inflation (deflation). In fact, the holders of Annuity Notes may act in the opposite way. That Annuity Notes had two

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84 Jeremy Bentham alternative functions was not enough to support the claim that the scheme was free from inflationary dangers. Bentham suggested that inflation could be restricted by stopping the issue of small-denomination Notes: this would increase the proportion of Annuity Notes hoarded (Bentham 1952-4 [1800], vol. 2: 284). However, this measure would also diminish the proportion of Annuity Notes hoarded by the poor, because they could not afford to hold largedenomination Notes. The social and constitutional advantage of Annuity Notes - namely, the creation of a little moneyed interest - would be hindered by limiting Annuity Notes to large-denomination Notes. In order to increase the proportion of Annuity Notes hoarded, a higher rate of interest would be more desirable: a higher rate of interest would also promote popular frugality. However, from the viewpoint of financial profit, the rate of interest on Annuity Notes had to be reduced to as low a level as possible. Thus, inflation - the only disadvantage of the Annuity Notes scheme could not be prevented by the first advantage of Annuity Notes, namely by the growth in national wealth produced by the redemption of public debt: in contrast, inflation would hinder such a growth of national wealth. Infla­ tion could not be restricted without infringing on the other three advan­ tages: financial profit; promotion of frugality; and constitutional stability. Were there any measures to prevent inflation without removing the four advantages of Annuity Notes? If bank notes were crowded out of circulation in proportion to Annuity Notes flowing into circulation, inflation could be avoided. Bentham believed that this would naturally occur. If bank notes were not naturally excluded, the government could artificially reduce them by refusing to receive at its own offices anything other than Annuity Notes. More effect­ ively, the government could impose a tax on the issue of bank notes. Bentham proposed that the tax would be imposed first on the country banks, and - if sufficient bank notes were not removed - on the Bank of England second (Bentham 1952-4 [1800], vol. 2: 284-5). Although bankers would suffer a loss, their loss would be much smaller than the loss which the people - particularly people of fixed income - would have suffered from inflation. Thus, a tax on bankers was Bentham’s final answer to the problem of inflation. However, a tax on bankers contradicted Bentham’s own claim that, in contrast to the redemption of public debt by the sinking fund, the Annuity Notes scheme did not have to rely on taxation. In fact, the scheme required a special tax on bankers in order to prevent inflation.

4.3.4 The abandonment of the scheme

Bentham sent his scheme of Annuity Notes to Vansittart. However, Vansittart did not regard Bentham’s scheme as practical. In particular, it

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Jeremy Bentham 85 would be difficult to calculate the worth of small-denomination Notes because of their daily changing value. Bentham also received an opinion on his scheme from Frederic Morton Eden, one of his friends, who Vansittart commissioned to examine Bentham’s scheme. Eden’s opinion was also unfavourable. Eden did not believe that there would be sufficient demand for Annuity Notes, whose interest was lower than public debt and Ex­ chequer Bills. Bentham argued that there would be sufficient demand because Annuity Notes would be a means of circulation as well as an interest-bearing asset. However, Eden thought that Annuity Notes were unsuitable for a circulating medium. Annuity Notes wanted the most important feature of a circulating medium - quick and simple computa­ tions. Because an Annuity Note changed its value daily, people would have difficulty in calculating it even with a table printed on the back of the Note. Moreover, this difficulty would increase by the fact that the same denomination Notes would have different values depending on when interest on the Note was last paid. Thus, the fact that Annuity Notes had two functions made it difficult for them to be in wide demand. Although Bentham wrote a letter to Eden in order to defend his Annuity Notes scheme, he never argued for the scheme in his later writ­ ings. However, the reason Bentham gave up the scheme was its macroeco­ nomic disadvantage, namely inflation, rather than its administrative impracticability. In Paper Mischief [Exposed], Bentham explained the reason for his abandonment of the scheme: I was actually occupying myself with contrivances for adding to the existing mass of the circulating medium. When, as the enquiry advanced, I came to examine into the supposed connection [between paper money and wealth], and taking measure of evil [of inflation], great was my surprize to find the connection purely imaginary, and the evil swelling to a most enormous magnitude, swelling to such a magni­ tude as to eclipse those which, among evils of the same kind, have hitherto been felt as inflicting the severest pressure. (Bentham 1952-4 [1800-1], vol. 2: 429) It was William Anderson’s pamphlet, The Iniquity o f Banking: or, bank notes proved to be injurious to the public, and the real cause o f the present exorbitant price o f provisions (1797), that enlightened Bentham a§ to the defect in his scheme.20 If Annuity Notes would be guilty of inflation, so were bank notes. In fact, the value of money was half what it had been 40 years before because of the almost unlimited issue of bank notes. Worse, bank notes - if issued beyond the value of the banker’s assets - would produce a credit crisis: bankers would be bankrupted, and commercial security would be completely destroyed. For these reasons, Bentham claimed that bank notes - in particular those of country banks - should be restricted, supporting Anderson’s plan for the introduction of new

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Jeremy Bentham governmental currency. However, Bentham did not accept Anderson’s proposal for the prohibition of all bank notes by law. Bentham thought that such a prohibition would produce a general bankruptcy of bankers (Bentham 1952-4 [1800-1], vol. 2: 430-3). Bentham discussed his plan for the restriction of bank notes in more detail in The True Alarm. Most of this pamphlet was written in the four months after Bentham finally gave up the Annuity Notes Scheme at the end of August 1801 (Stark 1952-4, vol. 3: 10). In The True Alarm, Bentham still believed that an increase in paper money would increase national wealth by increasing the proportion of savings in the country, as well as by absorbing unemployed labour (Bentham 1952-4 [1801a], vol. 3: 67 and 109). However, Bentham acknowledged that ‘this addition to real wealth, made as it is at the expence of fixed rents and with a continual danger of bankruptcy, is an advantage too dearly bought5 (Bentham 1952-4 [1801a], vol. 3:149). The True Alarm criticized Walter Boyd’s A Letter to the Right Hon­ ourable William Pitt, on the Influence o f the Stoppage o f Issues in Specie at the Bank o f England, on the Prices o f Provisions, and other Commodities (1801). Boyd ascribed the recent inflation to the suspension of conversion and the over-issue of Bank of England notes - rather than to the over­ issue of country bank notes. Boyd claimed that a resumption of conversion in Bank of England notes would solve the problem (Stark 1952-4, vol. 3: 7-13). Bentham rejected this opinion. Inflation could be controlled without relying on bullion. Moreover, a resumption of conversion would produce a run on the banks, and consequently bankruptcy for the bankers. Thus, Bentham dismissed Boyd’s claim for the resumption of conversion, as well as Anderson’s plan for the prohibition of all bank notes by law. Bentham’s own scheme was composed of two Acts for registration of banking houses and taxation of paper issues (Bentham 1952-4 [1801a], vol. 3: 175-6). Through these measures, bank notes would be restricted without producing bankruptcy for the bankers. This scheme could be seen as a revival of the plan for a tax on bankers’ profits but with compensation. A banker’s profits from the issue of notes would be taxed, and the loss due to the tax would be compensated by a limitation of their number through a licence system. However, in contrast to the 1794 pamphlet, the proposal in The True Alarm aimed at restricting the quantity of bank notes - not raising revenue.21 Because Bentham gave up the idea of paying off public debt by Annuity Notes, the only means of redemption left to him was the sinking fund - namely, taxation. Bentham did not abandon his claim that a redemption of public debt by taxation increased national wealth. In Insti­ tute o f Political Economy, Bentham argued: 86

The amount of taxes imposed in discharge of debt of itself neither adds to, nor takes from, the mass of national wealth.... But when, and

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Jeremy Bentham 87 in so far as, the money produced by these taxes is actually employed in discharge of debt, it adds to capital, and thereby to growing wealth. (Bentham 1952-4 [1801-4], vol. 3: 321) The redemption of public debt by taxation would produce the same effect as forced frugality - taxation for the purpose of increasing capital which was regarded as non-agenda for the government. However, Bentham accepted this type of forced frugality (Bentham 1952-4 [1801-4], vol. 3: 343-4). Bentham also acknowledged that the reduction of public debt would lower the rate of interest.22 In Institute o f Political Economy, Bentham still maintained that an increase in paper money would increase national wealth. This could happen because the increase in paper money would be most probably lent to people who would add it to productive capital. However, in contrast to the redemption of public debt by taxes, this type of forced frugality ‘forced savings’ in modern terminology - was unacceptable, because it would produce inflation and bankruptcy (Bentham 1952-4 [1801^], vol. 3: 344-5). Thus, Bentham accepted a conclusion that public debt had to be paid off by taxation - not by issuing paper money. Although it would take longer to redeem all public debts only by taxation, this disadvantage was negligible compared with the disadvantages of inflation and a credit crisis. By 1804, Bentham’s main concern in political economy shifted from public finance to monetary regulation.

4.4 Conclusion

Bentham believed that government expenditure should be managed in order to limit its purpose to security. Bentham also argued that the pain and evils associated with taxation should be minimized, and that the main purpose of taxation had to be to raise revenue. On the basis of these principles, Bentham attempted to establish a fair and efficient system of taxation, which would be composed of: ( 1 ) an •escheat law; (2) an income tax with compensation; and (3) taxes on luxur­ ies. In fact, Bentham proposed an extension of the existing law of escheat, and a tax on bankers’ and stock dealers’ profits with an exclusive privilege. In these proposals, Bentham always intended that his proposals could promote equality - or at least prevent gross inequality. However, Bentham’s main concern was to raise revenue for the Revolutionary and Napoleonic Wars without impeding the security-providing principle. Bentham’s ideas on debt management are revealed by his Annuity Notes scheme, which resulted from two preliminary measures to raise revenue through ‘money-trafficking’. In fact, the scheme proposed a redemption of public debt by issuing paper money and by refunding the debt at a lower rate of interest. Bentham believed that Annuity Notes - a kind of interest-bearing asset - would promote frugality of the poor,

Jeremy Bentham

Jeremy Bentham constitutional stability, and national wealth. Thus, the scheme seemed to satisfy the equality-maximizing and security-providing principles. However, this scheme had a fatal disadvantage, namely inflation. Inflation would prevent national wealth from growing, as well as reduce the real purchasing power of fixed income. People of fixed income would no longer consider the security of their property protected by the government. Thus, the Annuity Notes scheme violated the security-providing principle. For this reason, Bentham abandoned the scheme. If Annuity Notes would be guilty of inflationary tendencies, so were bank notes. An excess of bank notes had another disadvantage - the danger of bankruptcy to bankers. Bankruptcy of the bankers would produce a credit crisis, which would destroy the security of commerce and property in the country. In order to prevent such a disaster, Bentham pro­ posed a tax on the issue of bank notes, as well as registration of banking houses. In fact, this proposal was a tax on bankers’ profit with the compen­ sation of an exclusive privilege. However, the main purpose of the tax was to restrict the quantity of bank notes, not to raise revenue. A tax for such a purpose might have contradicted Bentham’s claim that the main purpose of taxation had to be revenue. However, to restrict the quantity of bank notes by the tax on bankers was consistent with the security-providing principle, and consequently included in the agenda of the government. Bentham’s schemes of public finance, as well as those of monetary regu­ lation, were consistent with his fundamental view of the principles of legis­ lation with respect to political economy: the security-providing principle should always be given first priority, and then the equality-maximizing principle could be pursued. Bentham’s ‘principles of legislation in matters of finance’ would have followed ‘the principles of legislation in matters of political economy’, if he had completed his system of legislation. 88

Notes

1 Bentham also indicated that the tenth (final) part would treat of method and terminology in every branch. With respect to the plan Bentham stated: ‘[These] are the titles of the works by the publication of which his [the author’s] present designs would be completed. They are exhibited in the order which seemed to him best fitted for apprehension, and in which they would stand disposed, were the whole assemblage ready come out at once; but the order, in which they will eventually appear, may probably enough be influ­ enced in some degree by collateral and temporary considerations’ (Bentham 1970 [1789]: 5-6). For Bentham’s views on political economy as a branch of legislative science, as well as his distinction between ‘science’ and ‘art’ of polit­ ical economy, see Lieberman (2000:107-8). 2 Kelly (1989: 71-4, 1990a: 252, and 1990b: 93) emphasizes that Bentham regarded expectations as a major source of utility. 3 Historians of economic thought differ over Bentham’s relation to ‘classical’ economists. For example, whereas Stark states that ‘Bentham did not simply accept Smith’s economic doctrines, but developed them to their logical conclu­ sion’ (Stark 1941: 58) and that ‘there is undoubtedly a strong streak of the Ben-

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Jeremy Bentham 89 thamite spirit in Ricardo’s thought, and in all classical economists’ (Stark 1946: 583), Hutchison (1956: 306) argues that ‘if Bentham is still to be described as a “classical” economist, along with Smith and Ricardo, then this muchcontroverted adjective is virtually emptied of any doctrinal significance’. Black (1988: 27) indicates that ‘[i]t is these two Benthams [i.e. Bentham the philo­ sopher and Bentham the social reformer], much more than the third, Bentham the economist, whose influence pervaded both classical and neoclassical eco­ nomics’. This book will show that, with respect to public finance, Bentham was an original thinker - with ideas distinct from those of Smith and Ricardo - and that his tax reform proposals influenced J. S. Mill. 4 The term ‘escheat’ in feudal law referred to the custom that land reverted to the king if the owner died intestate and without heirs. 5 Bentham’s works on public finance are discussed in Stark’s ‘Introduction’ to Jeremy Bentham’s Economic Writings (Stark 1952-4, vol. 1: 58-78 and vol. 2: 7-113); they were briefly referred to also by Viner (1949: 370), Steintrager (1977: 75), Harrison (1983: 258), Bonnar (1995: 39-41), and Sigot (2001: 79-90). However, these works do not examine Bentham’s public finance pro­ posals in terms of the security-providing and equality-maximizing principles. Regarding the security-providing principle (or the disappointment-preventing principle) as the most important basis of Bentham’s political economy and civil law, Kelly (1989: 80) argues that Bentham’s works on public finance ‘are best seen as attempts to maintain a stable pattern of expectations. ... These works are based on an attempt to eradicate the need for direct taxation as a means of government supply, on the grounds that the increasing need to resort to tax­ ation was undermining those expectations based on the disposal of property, and this ultimately reduced economic activity and social well-being’. This chapter reinforces Kelly’s view by examining Bentham’s overall plan of public finance and monetary regulation. 6 This section draws on Dome (1999). 7 A similar statement is seen in Bentham’s manuscript collected in the Dumont papers, box LI (Stark 1952-4, vol. 3: 537). 8 Bentham stated: ‘Had this resource happened to have presented itself under a favourable aspect to the Neckers or the Calonnes, and had they succeeded in recommending it to the acquiescence of the nation, the French Revolution, and the flood of miseries with which the earth has been deluged by it, would have been prevented’ (Bentham 1952-4 [1795], vol. 1: 326). 9 However, Bentham argued that the law of primogeniture was behind the times and unnecessary for the support of the aristocracy (Bentham 1952-4 [1795], vol. 1: 330). For Bentham’s conversion to political radicalism see, for example, Dinwiddy (1975). 10 Bentham later attached more importance to equality with respect to the purpose of the escheat law. For example, Bentham argued in 1821: ‘In the case of each individual, a particular point of time there is at which, without defalca­ tion made from security in his instance, or in the instance of any other indi­ vidual, his property may be subjected to a distribution or other disposition whereby, according to the amount of it, equality will be promoted, advance towards absolute equality, made. This time is the time of a man’s death’ (Schofield and Harris 1998: 202). 11 Although Bentham argued that ‘[t]he general idea is, that within the limits of the Metropolis (those limits of course to be properly defined) no new banking house should be opened in future’ (Bentham 1952-4 [1794b], vol. 1: 408), he did not mean to reduce the total amount of bank notes. 12 For example, Bentham stated: ‘the compensation has been accompanied by the disadvantages and inequalities which it is so difficult to avoid in any system of

Jeremy Bentham

90 Jeremy Bentham compensation. The workmen employed by the rich farmer have received a considerable part of their pay at the expence of the small farmer who does not employ labour, and at the expence of all other classes without distinction, from the richest men of property to the smallest artisans, in view of the fact that all are forced to contribute to the poor rate, unless they be themselves among the poor’ (Bentham 1952-4 [1801a], vol. 3: 195). For Bentham’s plan of pauper management, see Bentham (1962 [1798], vol. 8: 369-439). 13 However, Bentham suggested that a tax on exports could be a good financial method if they replaced burdensome domestic taxes: ‘a tax upon exports to foreign countries is borne by the inhabitants of foreign countries. Whatever imposition of this kind foreigners can be made to bear, is so much gain to us. If, indeed, when a fresh tax is imposed upon an article of export, the quantity of it produced is considerably diminished by the tax, a temporary distress is thereby produced, the suffering of which may be less or greater than the suffering saved by the saving in the amount of taxes borne by ourselves. But if the quan­ tity produced be merely prevented from encreasing, no such suffering is pro­ duced, and the benefit by the saving in home-paid taxes is pure’ (Bentham 1952-4 [1801-4], vol. 3: 367-8; emphasis in original). 14 I agree with Steintrager’s opinion that ‘Bentham did not view the tax system as a means of redistributing the wealth of society’ (Steintrager 1977: 74). 15 In A Plan for Augmentation of the Revenue, Bentham referred to this scheme as a measure to raise revenue from borrowing - one of money-trafficking. Bentham stated that ‘the object [of Exchequer Notes] of course is to pay as little interest as one can’ (Bentham 1952-4 [1794-5], vol. 2:121). 16 Bentham (1952-4 [1800], vol. 2: 228) argued that Annuity Notes would be demanded on the basis of what we call ‘transactions motive’ and ‘precaution­ ary motive’. 17 With respect to the social and political aspects of the Annuity Notes scheme, Kelly (1989: 80) argues: ‘The Annuity Notes plan involved a complex of differ­ ent aims all directed at securing a stable social order. That Bentham should have chosen an interest-bearing species of currency as the best means of achieving these aims may appear bizarre, but it is arguable that this was the most important of his economic writings, at least in the sense that it brings together all the political aims of his economic thought’. 18 In the early drafts of the Annuity Notes scheme, Bentham argued that an increase in money would increase national wealth without raising money wages and prices if there was unemployed labour, and that an increase in money would raise money wages and prices without increasing national wealth if labour was fully employed. For example, see Stark (1952-4, vol. 2: 304, 311, and 328). However, this view was weakened as the draft was rewritten several times, and was elimi­ nated in the final manuscript, in which it was argued that an increase in money would increase national wealth by transferring consumption to savings, rather than by absorbing unemployed labour. Thus, Bentham could demonstrate that Annuity Notes would increase national wealth, given full employment of labour. 19 Bentham did not recognize that this aspect of Annuity Notes - the automatic increase in the value - would promote inflation. 20 Bentham wrote: ‘I had thus recognised my error and spread out before me the mass of argument that had led me to conviction, when, on seeing in an adver­ tisement a pamphlet bearing for its title “The Iniquity of Banking”, I was curious to observe the train of reflection that had been brought forward by another on the same side’ (Bentham 1952-4 [1800-1], vol. 2: 429). 21 Bentham considered to impose a tax of 1.7 per cent in the pound, estimating that this would be a tax of 33 per cent on the profit made from the issue of bank notes (Bentham 1952-4 [1801a], vol. 3:178).

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Jeremy Bentham 91 22 In Defence of a Maximum (1801), Bentham argued that the fall of the interest rate would improve the terms of war loans. Thus, in contrast to Defence of Usury (1787), Bentham acknowledged the merit of a lower interest rate. Bentham stated: ‘At the times of writing the Defence of Usury, the effects of the restraining laws upon the terms of war loans had, I am free to confess, never presented themselves to my mind’ (Bentham 1952-4 [1801b], vol. 3: 289). However, Bentham did not change his opinion against the anti-usury laws: ‘The anti-usury regulations, being anterior to the birth of public credit, had not, at their origin at least, any such collateral effect in contemplation. ... The only sources ... were the passions and prejudices, the malignant passions and shallow prejudices, unmasked by the Defence of Usury’ (Bentham 1952^4 [1801b], vol. 3: 290).

Part V Society

[14] Foucault and Bentham: A Defence of Panopticism JA N ET SEMPLE

University College London

If Jeremy Bentham were alive today, he would undoubtedly already have drafted constitutions and codes for the new countries of Eastern Europe pressing his services on their governments as he did in somewhat similar circumstances on Greece, Portugal and Spain in the 1820s. In the difficult and uncharted transition from communism to capitalism the tough pragmatism of Bentham’s thought could well prove a useful antidote to a blind faith in the market or on a reliance on residual absolutist structures of power. Governments create the para­ meters of the market place; Bentham’s principles of the junction of interest and duty could be an invaluable theoretical guidance in the organization not only of government administration but of factories and public services. His insistence on the inevitable sinister sacrifice that all rulers, however seemingly well-intentioned, will make of the public interest could provide a timely warning against too great a trust in the virtues of democracy. But many modern intellectuals see Bentham through the eyes of Michel Foucault, as the creator of that symbol of modern totalitarian­ ism, the panopticon. One of the aims of this paper is to try to lift the shadow that has fallen across Bentham’s reputation. It is a formidable task. Foucault’s work has been described as a ‘major source of inspiration to the late twentieth century making available a different way of thinking, a different way of looking, a different way of feeling about European history ’.1 Any assessment of the impact of his ideas would, according to another writer, ‘require a fairly extensive history of contemporary intellectual culture ’.2 He is part of the way modern men think. He continues to inspire devoted followers from Paris to California and beyond. Bentham would seem to have little chance in any confrontation with Foucault. Foucault is fascinating, eloquent, trendy, brilliant, relevant, modern; Bentham humdrum, unfashionable and he has been dead for 160 years. We might feel a certain gratitude to Foucault for bringing Bentham’s panopticon to the attention of the modern world. But this gratitude must be strictly limited. Foucault did not pay Bentham the compliment of serious study, the panopticon is 1 Geoffrey Pearson, ‘Misunderstanding Foucault’, History of the Human Sciences, iii (1990), 370. 2- David Garland, Punishment and Modern Society: A Study in Social Theory, Oxford, 1990, p. 151.

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106 Janet Semple reduced to a symbol, it becomes little more than a diagram. Yet it is also elevated as the prototype of the ideal machine for subjugation in the modern world while Bentham’s theories on constitutions and power are ignored or misinterpreted. But ironically enough had Fou­ cault studied Bentham more deeply, he would have found some points of similarity and indeed sympathy. And rather surprisingly one may come to the conclusion that Bentham was the more profound and tougher thinker and that his analyses have more relevance than Foucault’s to modern problems. This paper will firstly describe Foucault’s theories, in particular his interpretation of penal history in Discipline and Punish. It will then discuss his limitations as a historian and his interpretation of the Enlightenment and eighteenth-century penal reform. This will lead to an evaluation of the panopticon and a comparison between the ideas of Bentham and Foucault on surveillance, deviancy, secrecy and re­ sponsibility. Finally, their concepts of power will be compared. Foucault was a thinker very much of his time, part of the intellectual fall-out of the 1960s. His politics have been rather unkindly described as ‘infantile leftism’, an outrunning of the most radical argument in any controversy .3 His works have provided ammunition and inspira­ tion for prison reform, anti-psychiatry and radical deviancy move­ ments. He paints a chilling picture of the development of western societies. His studies of madness, medicine, education, punishment and sexuality plot the creation of a subject society, a society in which an all-pervading network of power structures determine human be­ haviour and thought. It is the very antithesis of Whig history; western man has not progressed from subjection, absolutism and ignorance to freedom, the rule of law and knowledge, but only from one form of subjection to another. Human rationality has not liberated but created a trap. The driving forces of this new subjection are the human sciences, penology, educational theory, medicine, psychiatry and sociology. Foucault subscribes to the Nietzschean aphorism that ‘Knowledge works as a tool of power. Hence it is plain that it increases with every increase of power.’4This knowledge creates its own truths, its own rationality, and its own discourses. ‘Truth’, said Foucault, ‘is a thing of this world: it is produced only by virtue of multiple forms of constraint. And it induces regular effects of power. Each society has its regime of truth . . . that is, the types of discourse which it accepts and makes function as true .’5 The object of the human sciences is to 3 Michael Walzer, ‘The Politics of Michel Foucault’, Foucault: A Critical Reader, ed. David Couzens Hoy, Oxford, 1986, p. 51. 4 F. Nietzsche, The Will to Power, translated by W. Kaufmann and R. J. Hollingdale, London, 1968, p. 266. 5 Michel Foucault, Power)Knowledge, New York, 1980, p. 131.

Jeremy Bentham

Foucault and Bentham: A Defence of Panopticism 107 normalize, to iron out deviancy and to create docile bodies for the benefit of capitalism; the ‘humanitarian’ reforms in the treatment of madness in the late eighteenth and early nineteenth century, far from being a liberation of the mad, were destined to make them medical objects of study. Doctors repressed the discourses of unreason and public health measures created patients as another object of know­ ledge. New theories of education made it imperative for the authorities to enquire into the circumstances of the family. According to Foucault, the new technologies of power, observation, investigation, research, examination, and recording, work ‘at the level of on-going subjuga­ tion, at the level of those continuous and uninterrupted processes which subject our bodies, govern our gestures, dictate our behaviours etc ’.6Foucault saw the development of western societies as a displace­ ment of patriarchy by an instrument of pervasive regulation—this he called ‘bio-power’, the power over life. In an echo of Marxism, he asserted that this power over life is ‘without question an indispensable element in the development of capitalism... the controlled insertion of bodies into the machinery of production ’.7 One of the most disturbing of Foucault’s theories is that individuals are themselves collaborators in their own enslavement—we are the instrument of our own subjec­ tion. Discipline and Punish, one of Foucault’s most characteristic and influential works, is a genealogical study of the history of punishment, concerned with the emergence of the discipline of penology and the associated predominance of the prison as an instrument for punish­ ment. Foucault concentrated on what he perceived as a discontinuity, the sudden change that occurred in the latter half of the eighteenth century when the public spectacle of physical suffering (exemplified in the execution in 1757 of the regicide Damiens) was replaced by a rational controlled punishment directed at the mind—a displacement of punishment from body to soul. According to Foucault, ritual torture was a physical manifestation of the power of the monarch reproducing the crime on the visible body of the criminal. It was a physical confrontation between the sovereign and the condemned in which the ‘atrocity of the expiation organized the ritual destruction of infamy by omnipotence ’.8 He contrasts this spectacle of suffering with the new technology of subjection which the penal reformers of the eighteenth century created within the prison. Most importantly, he refused to make any moral distinction between the two methods of punishment; it 6 Ibid., p. 97. 7 Michel Foucault, The History of Sexuality, translated by R. Hurley, 2 vols., London, 1978, i. 140- 1. 8- Michel Foucault, Discipline and Punish: The Birth of the Prison, translated by Alan Sheridan, Harmondsworth, 1977, p. 57.

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108 Janet Semple was one form of power replacing another. The primary objective of reform was

to make of the punishment and repression of illegalities a regular function, coextensive with society; not to punish less, but to punish better; to punish with an attenuated severity perhaps, but in order to punish with more universality and necessity; to insert the power to punish more deeply into the social body.9

Foucault elevates Bentham’s panopticon as the instrument of this transformation; it becomes an emblem of modern power. The panopti­ con is ‘the architectural figure’ of the disciplinary mechanisms of regulation, surveillance, supervision, and ostracism which surround the abnormal individual. From the inspection tower of the panopticon, the convicts are observed and created into objects of examination and experimentation. But the power, invisible to them, is robbed of its identity. It is no longer a spectacle of royal potency, but an unseen furtive presence. As Foucault wrote: ‘The body of the king ... is at the opposite extreme of this new physics of power represented by panopticism ’.10The panopticon is a laboratory of power in which the subject, ‘becomes the principle of his own subjection’; it is ‘a privileged place for experiments on men’—a cage ‘cruell et savante ’.11 The structure itself was both a receptacle and disseminator of knowledge. According to Foucault, panoptic institutions spread rapidly throughout the social body creating docile bodies which were con­ stantly discovering new objects of knowledge. The exercise of power itself was improved. It could be exercised continuously at the very foundations of society. It was lighter, more rapid, more effective, ‘a design of subtle coercion for a society to come’.12 This disciplinary society or ‘the carceral’ was made possible by this new mechanism in which we are all prisoners ‘in the panoptic machine, invested by its effects of power, which we bring to ourselves since we are part of its mechanism ’.13 This new physics of power was used to impose ‘the universal reign of the normative . . . each individual. . . subjects to it his body, his gestures, his behaviour, his aptitudes, his achievements’.14 The pyramid of disciplinary carceral institutions, schools, reformator­ ies, factories, prisons and workers’ estates, perform a vital function in upholding capitalism and the interests of the bourgeoisie. According to 9 Ibid., p. 82. 10 Ibid., p. 208. 11 Ibid., pp. 203 and 204. Michel Foucault, Surveiller et Punir: Naissance de la Prison, [Paris,] 1975, p. 207. Alan Sheridan translates this as ‘cruel and ingenious’ (p. 205), but the original French better conveys Foucault’s meaning—the word ‘savante’ also means scientist intellectual or scholar. 12 Ibid., p. 209. 13 Ibid., p. 217. 14 Ibid., p. 304.

Jeremy Bentham

Foucault and Bentham: A Defence of Panopticism 109 Marxist orthodoxy, which here Foucault accepted, torture was the product of a society in which human labour had little value. On the other hand, the disciplinary techniques were an essential tool to train workers for the new factories, but above all the discipline of crimino­ logy created the concept of delinquency which enabled the authorities to separate the criminal from the mass of the people and so marginalize him and contain the forces of resistance. Prison fabricated delinquency by destroying the large bands of dangerous criminals which had terrorised the countryside and by creating small groups easily super­ vised and cut off from popular support. According to Foucault, this success explains the paradox of the continued existence of the prison despite its failure to achieve its stated aims. Foucault’s intensely imagined vision of western society mesmerizes, indeed horrifies, but does it convince? It is a picture imbued with distrust, hatred, and fear. It is easy to agree with Jerrold Seigel that Foucault personally found his world ‘an uninhabitable trap ’.15 Fou­ cault had a revelation of a new meaning of human existence which must be either accepted or rejected—we are in the realms of the unverifiable. Within the prison of this revelation all knowledge or discussion is an artefact of power and subjection. No investigation within the limits of the human mind is possible for that too is subject. Argument is impossible—the more vehemently an individual protests that he is not subject, the greater is the proof of his subjection. Foucaultian ideology is ultimately stultifying and chilling and could be dangerous. According to Foucault’s premises, a wide range of people wield this furtive power—doctors, teachers, social workers—and according to his rhetoric, are fit objects of hatred, contempt, and fear. It could be the ideology of the random terrorist for whom almost anyone could be a legitimate target. Foucault’s vision of man is yet more chilling, for if the structure of social conditioning and the very instincts for survival are stripped away with the disciplines and the institutions of civilization, little indeed is left of the essentials of humanity. It is far from clear whether Discipline and Punish is a history of punishment, a sociological treatise, or a political polemic. Perhaps it is all three. Recently the dismay and outrage that greeted Foucault’s work in English academic circles has been compared with that which would be created by the entry of Cerberus at Crufts .16 And when considered as a work of historical scholarship, Discipline and Punish 15 Jerrold Seigel, ‘Avoiding the Subject: A Foucaultian Itinerary’, Journal of the History of Ideas, xlvii (1990), 292. 16 Colin Gordon, ‘History, Madness and other Errors: a Response’, History of the Human Sciences, iii (1990), 381.

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Janet Semple does indeed leave much to be desired. There is no index. The bibliogra­ phy in the translation has been compiled from the footnotes in the original which may explain its oddly selective nature. The suspicion that Foucault did not pay Bentham the compliment of serious study is confirmed by the citation of only volume iv of the Bowring edition, which means that the ‘Rationale of Punishment’ and indeed the Constitutional Code are excluded. But the most eccentric omission of all is of John Howard. He is fleetingly mentioned in the text as one who described the old gaols, but Howard’s works The State of the Prisons and An Account of the Lazarettos, which contain a vast mass of factual information on the conditions within penal establishments throughout eighteenth-century Europe are not mentioned. But Howard was more than a compiler of facts: his principles and practical schemes for prison reform exerted an overwhelming influence for many generations. His ideas on management, work, discipline, and reformation were the foundation of nineteenth-century penology. If we were looking for the precursor of the penitentiary in England we would look to Howard rather than to Bentham. Indeed, the predominance of Howard’s influence over Bentham’s ensured the failure of the panopticon project. But we can understand why Foucault ignored Howard and concen­ trated on Bentham. Howard, humdrum, sensible, religious, and genui­ nely altruistic was far less suitable for Foucault’s polemical purposes. Bentham’s panopticon provided him with a blue print for an absolutist structure which was the logical extreme of the buildings which were designed to fabricate virtue. One must indeed question how far Foucault’s theses are applicable to England. He insists, and his use of Bentham’s panopticon emphas­ ises his insistence, that his theories applied to all of western Europe. But the relevance of some of his themes is very doubtful. Foucault’s rhetoric on the confrontation between the king’s body and the con­ demned in the rituals of slaughter depends on a mystique of kingship alien to England and inappropriate, almost ludicrous, if the monarch was a woman. Torture was not used in England from the early seventeenth century either in the judicial process or in the course of execution. On the whole criminals were disposed of quickly and cleanly—until hanging seemed to one critic little more than ‘an awry neck and a wet pair of breeches ’.17 Foucault also seems on very shaky ground in his discussion of the penalty of transportation—or rather in his lack of it. His simplistic dichotomy between death or prison may have been appropriate to France, but in England, the alternative to penitentiary imprisonment was transportation, and generally speaking 110

17- Bernard Mandeville, An Enquiry into the Causes of the Frequent Executions at Tyburn, London, 1725, p. 37.

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Foucault and Bentham: A Defence of Panopticism 111 transportation was the favoured alternative. Foucault states incor­ rectly that deportation was abandoned in England at the beginning of the nineteenth century. In fact, the English authorities had been forced to suspend transportation to America in 1776, but it started again to Botany Bay only eleven years later. The infliction of this penalty continued until 1868 when it was finally abandoned, again through no choice of the government but because the Australian colonies refused to admit any more English criminals. Transportation held a central place in penal policy; Pentonville, the nineteenthcentury penitentiary that most nearly fits the Foucaultian paradigm of a total institution for subjection, was at first used to house convicts who were destined to be shipped to Australia after 18 months of treatment to cleanse them of their sin. These are perhaps pedantic points. Foucault was writing a wideranging, impressionistic history in which he uses the past as a quarry for facts to construct his theory. In his own words, Discipline and Punish ‘is intended as a correlative history of the modern soul and of a new power to judge’. He is writing a history of prisons because he wants to write ‘the history of the present ’.18 It is therefore hardly surprising that it is often difficult to tell what actually happened. It is not even clear from Foucault’s account that Bentham’s panopticon was never built and his project seemed at the time a dismal failure. Foucault slides imperceptibly from fact to interpretation. He pays little attention, apart from a few horrific descriptions, to what actually happened in prisons. Discipline could very seldom be totally enforced; even in the silent solitary cells of the nineteenth-century penitentiar­ ies. Prisoners devised their own secret methods of communication, tapping their messages through pipes in a code known throughout the criminal fraternity. From a different point of view one could write a history of the prisons as a triumph of the human spirit of resistance, daring, and ingenuity. The authorities were also less than whole­ hearted in their imposition of the new disciplines. David Garland argues that the normalizing techniques, which Foucault implies were a central part of the eighteenth-century reform, were not widely used until the twentieth century and then with very limited success. He also questions Foucault’s thesis that the continued existence of prisons, despite their perceived failure, was due to their usefulness in repress­ ing popular discontents. He suggests three other convincing reasons for their retention: they satisfy the popular desire for retribution; they incapacitate the criminal; and they are too costly to give up .19 Like a magpie, Foucault selects his glittering evidence to construct his baleful picture of the present and in so doing, raises important 18 Discipline and Punish, pp. 23 and 31. 19 Garland, p. 166.

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Janet Semple issues concerning the nature of the Enlightenment. He concentrates on its disciplinary aspects. Rationality became the instrument of the new subjection and a new technology of control. ‘The “Enlighten­ ment’”, he wrote, ‘which discovered the liberties, also invented the disciplines .’20As for penal reform, the new economy and technology of the power to punish ‘are no doubt the essential raisons d'etre of penal reform in the eighteenth century ’.21 Eel-like, Foucault slides away from argument—a suggestion that the reformers of the Enlightenment believed they were actuated by humanitarian motives is irrelevant, for their thought was merely a mask to disguise a possibly unconscious will to power. Worse, if one argues that their theories of punishment are ethically superior to those of the ancien regime, then one brands oneself as a dupe of their discourses. I am nevertheless going to assert again with the rational Enlightenment, and with Bentham, that a penal theory that minimizes suffering and retribution and seeks to help the criminal to live safely within the society into which he was born is morally better than one which inflicts hideous suffering. The regicide Damiens was paraded before a crowd to be ritually, slowly, and ingeniously tortured to death. For some of his contemporaries it was a barbarous act which undermined the very institution it was designed to uphold. It was no coincidence that less than forty years later it was the king and queen of France who were slaughtered in the streets of Paris. But for Foucault this ‘infinite segmentation of the body of the regicide’ was the ideal point of the imposition of one power structure and could be compared with the ruthless curiosity of the examination in modern penality; the motives of those who inflict punishment are irrelevant. But the greater sensitivity of the eighteenth-century reformers to suffering and their desire to help and reform criminals are not just figments of the imagination. Professor T. L. Haskell has demonstrated that this new sensitivity was underpinned by economic factors. Foucault emphasised the selfish interest of the emergent bourgeoisie, but for Haskell the market led to an extension of the conventional limits of moral responsibility. Accumulations of capital encouraged altruism; better education and better communications led to greater knowledge and brought the plight of the unfortunate to a wider public. Above all, the market created a belief that effective action to relieve suffering was possible, destroying the fatalistic resignation that had before seemed the only possible reaction to human calamity .22 On the personal level it is difficult to accept Foucault’s account of the motives of the reformers. Did Beccaria really 112

20 Discipline and Punish, p. 222. 21 Ibid., p. 89. 22- Thomas L. Haskell, ‘Capitalism and the Humanitarian Sensibility, Part I and Part II’, The American Historical Review, xc (1985), 331-61 and 547- 88.

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Foucault and Bentham: A Defence of Panopticism 113 embark on his hazardous denunciation of torture in the Holy Roman Empire to impose new forms of subjection on men? Did Howard set out on his winter journey or Elizabeth Fry lead her group of Quaker ladies into the wards of Newgate to tighten social discipline? They certainly believed that they were actuated by love of humanity, outrage at wanton cruelty or a passion to save souls. According to the Foucaultian thesis, they were deceived or rather were part of a process that masked their real intentions. But if one does not accept this thesis, their motives must be taken as valid evidence from which can be built a more complex and credible picture of the genesis of penal reform than that imposed by the simplicities of Foucault’s ideology. Bentham and his panopticon are more problematic. One of the difficulties of attempting any sort of defence is that Foucault is right; Bentham can be condemned out of his own mouth. The panopticon was an instrument of power to subjugate men, of mind over mind, of endless invisible surveillance. It was a ‘crucible of men’ in which Bentham did indeed envisage experiments in education, training and medicine. There is also no doubt that Bentham was temperamentally, if not intellectually, authoritarian, dogmatically convinced of his own recti­ tude and supremely confident in his ability to control and organize others for their own good. Bentham called his panopticon ‘a mill for grinding rogues honest ’.23 This repellent image must colour many people’s reaction to the scheme. It seems to deprive the criminal of humanity, degrading him to the level of a machine, a machine more­ over that was to be subjected to a process of ruthless manipulation. Bentham’s theories on the nature of man, the criminal mind and the causes of crime are crucial in understanding the panopticon and its place in the ideology of the penitentiary. They also touch on one of the most intractable problems of the panopticon. On the one hand, Ben­ tham postulates rational utilitarian man who knowing his own inter­ est, is capable of following it. On this he bases his theory of democracy. On the other hand, the inmate of the panopticon is deprived of choice, and indeed in the pauper panopticons, brought up in ignorance of the outside world, deliberately deprived of the knowledge that would enable him to make a rational choice in accord with his own interest. Bentham’s cry was ‘Fiat experimentum’, but how could the pauper experiment in the cloistered world of panopticons? Bentham’s psycho­ logy and his analysis of the causes of crime go some way to explaining this ambivalence in his thought. For Bentham, the criminal was a member of the community whose interests should be considered. At one point he even argued that the

23 The Correspondence of Jeremy Bentham, vol. iv, ed. A. Taylor Milne, London, 1981 (The Collected Works of Jeremy Bentham), p. 342.

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114 Janet Semple criminal should not be excluded from the franchise.24 Yet the criminal was also a defective being. Bentham, like other thinkers of the Enlightenment, subscribed to the theory that the pysche was as material as the body: disease could therefore have moral causes. In the same way, moral delinquency, crime and the poverty closely allied to crime, could also be the product of physical causes, idleness, drink, and debauchery. A regime of self-denial, abstinence and discipline could cure the defective mechanism of the human frame and the human mind. Criminals were like children, their development arrested and distorted, standing in need of control—and inspection. At the core of Bentham’s concept of the criminal is a moral perception that differs radically from Foucault’s. Bentham did not see the individual as flotsam and jetsam tossed on the tides of history. Criminals, like other men, were poten­ tially rational beings responsible for their own actions. His central belief was that the mechanism of human morality could be refashioned, the criminal mind literally re-formed. The corrupting influences in the lives of the poor that tempted them into crime were drink and idleness, the cure sobriety and work. Foucault is therefore correct in seeing Bentham as a precursor of the human behavioural sciences. But Bentham hated cruelty, as did Foucault, whether inflicted on human beings or animals. But unfortu­ nately for his reputation among the ordinarily sentimental, he kept his humanitarianism under rigid control while giving free rein to his love of order. When he first began writing on punishment he was a young ardent crusader against cruelty. According to his own account he began ‘in the strain of declamation’ denouncing all punishments particularly those which were the most afflictive. But, ‘When I came to investigate the matter soberly and regularly upon the principles of utility I threw my declamations into the fire.’25 Nevertheless he con­ tinued to write with abhorrence of the squalor and cruelty of the prisons that unjustly inflicted a terrible death for minor offences: ‘Styled less than capital, they are in fact capital, and much more; the result of them being not simple and speedy death, as in the instances where death is appointed under that name, but death accompanied and preceded by lingering torture.’26 He had himself been touched person­ ally by the horror of Damiens’s death. He was only nine in 1757, but years later he scrawled on the margin of a book, ‘His shrieks were such as made an impression on the mind of a bystander from whence I had it not to be obliterated by half a years duration.’27

24 The Works of Jeremy Bentham, ed. John Bowring, 11 vols., Edinburgh, 1838- 43, iii. ^ UC xxvii. 105. 26- Bowring, iv. 123. 27 H. Home, Historical Law Tracts, London, 1761, p. 2. Copy among Bentham’s papers at University College London.

559.

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Foucault and Bentham: A Defence of Panopticism 115 Foucault can give Bentham no credit for his compassion because in his ideology it was but part of the disciplinary discourse of the Enlightenment. But Foucault accuses him personally of cruelty and his treatment of the panopticon is limited and partial. He damns it in his rhetoric, employing pejorative terms: it is an instrument o f‘furtive’ power, a ‘cruel’ cage, ‘sadistic’ ‘a bizarre little utopia, a perverse dream’; its visibility is a ‘trap’.28 The panopticon was a prison so it is hardly likely that it would be other than an authoritarian structure designed to control and subjugate. But Bentham’s primary purpose was to create a humane prison. His project was based on the utilitarian principle that the pain suffered by its inmates should be as small as possible. His three principles of management were lenity, severity and economy: severity because it was necessary for the offender to suffer to serve the ends of reformation and deterrence; economy for the prison should be run as cheaply as possible; but the overriding principle was lenity that the prisoners should be deprived only of liberty not of health or life. In asserting without qualification that the panopticon is a paradigm of Benthamite society, an ideal instrument of power, Foucault fails to take into consideration Bentham’s mature constitutional theory or to examine adequately his concept of the public opinion tribunal. In Foucault’s rhetoric, the inspection tower of the panopticon takes on the attributes of Orwell’s Big Brother or Tolkien’s dark lord in his dark tower. Power is visible but shrouded, unverifiable and disindividualized. Those subject to power have no knowledge of it, no control over it, but are themselves the subject of knowledge and control. This is certainly true of the prison, but is the very antithesis of Bentham’s theory of constitutions. And even in the prison the transparency of management achieved by open public access to the inspection tower was designed to safeguard the welfare of the inmates as well as act as a control on the actions of the governor. Foucault recognizes this, indeed he quotes the passage from the original panopticon letters in which Bentham insisted that his prison must be accessible as all public establishments should be to the ‘great open committee of the tribunal of the world’.29 Foucault admits that this means that the mechanism would be democratically controlled and the exercise of power super­ vised by society as a whole. But he hardly examines this aspect with serious care. He asserts that the panoptic schema ‘was destined to 28 Discipline and Punish, pp. 200, 203, 205 and 225. Bowring, iv. 46. Foucault translates this as, ‘grand comite du tribunal du monde’. Alan Sheridan has retranslated this as the nonsensical, ‘the great tribunal committee of the world’—Discipline and Punish, p. 207.

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116 Janet Semple spread throughout the social body’. Yet neither prisons, hospitals, schools nor indeed governments have ever allowed themselves to be subject to random public scrutiny. This aspect of Bentham’s panopti­ con was rejected at the time and the management of prisons became increasingly secretive. This is a point that Foucault himself makes when he contrasts public execution with the new penalties ‘buried in architectural masses and guarded by the secrecy of administrations’.30 Foucault later attempted to square this circle by this comment on Bentham: He poses the problem of visibility, but thinks of a visibility organised entirely around a domineering, overseeing gaze. He effects the project of a universal visibility which exists to serve a rigorous meticulous power.31 This is partly true; Bentham did envisage rigorous and meticulous power but it is only half the story. It is interesting to speculate on what Bentham’s reaction to Foucault might have been—apart from splenetic rage. By one of the more ironic paradoxes they might well have found themselves in substantial agreement on several points. For Bentham also hated and feared secret disindividualized power. The panoptic qualities of the Constitutional Code were designed to allow the subject many to observe the ruling few. The architecture of his government offices would have ensured that the functionaries could be supervised, their hours of attendance checked, their appointments monitored, and their actions scrutinized. The public opinion tribunal was the will of the people informed by publicity and free discussion. It was the overarching force in Bentham’s constitution—the agent for supervis­ ing, controlling, checking and guiding the exercise of power. Publicity, he believed, was the only safeguard against tyranny. Secrecy in the exercise of power was anathema to him: it ‘affords a presumption, and indeed . . . amounts to a confession, of guilt . . . a confession—that the promotion of some sinister interest and not the universal interest is the object of what is done’.32 And more dramati­ cally—almost Foucaultian—when government becomes unintelligible: ‘enter Darkness: such as that which forms the characteristic of abso­ lute government’.33 Foucault believed that the dark infrastructure of discipline made democracy possible—but Bentham believed that demo­ cracy was essentially fragile and could be upheld only by the light of freedom of information and discussion. Foucault denounced ‘secrecy, disinformation and mystification imposed on people’. And in a final lecture at the University of Vermont he spoke of ‘the necessity of 30 Discipline and Punish, p. 257. 31 PowerjKnowledge, p. 152. 32- Securities against Misrule and other Constitutional Writings for Tripoli and Greece, ed. Philip Schofield, Oxford, 1990 (CW), p. 136. 33 Bowring, v. 384.

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Foucault and Bentham: A Defence of Panopticism 117 excavating our own culture in order to open a free space for innovation and creativity’.34 Bentham in a way very similar to Foucault wanted to free men from the trammels of misrepresentation and the perversion of language. There are several aspects of his perception of the delusive power of words. Some are in themselves dangerous: ‘that magic word’ right for instance ‘sets up the banner of insurrection, anarchy, and lawless violence. . . . By this inebriating compound, we have seen all the elements of the understanding confounded, every fibre of the heart inflamed, the lips prepared for every folly, and the hand for every crim e/35 Words could also be a device, part of a theatrical display to delude subjects into believing in the virtues of their rulers and in blinding them to the evil corruption at the heart of government.36 And finally, words could be weapons wielded in the fight against reform striking fear into the minds of the people. The language in which the dictates of authority was clothed was itself an instrument of delusion. ‘Law’ said Bentham ‘shows itself in a mask.’ H. L. A. Hart argues that Bentham’s perception of language as ‘an instrument of mystification and oppression to deceive men as to the true character of their social life and institutions’ distinguishes him from other writers of the Enlightenment. ‘Bentham had as vivid an appreciation as Karl M arx.. . of the ways in which mysteries and illusions, often profitable to interested parties, have clustered round social institutions.’37 This is a perception shared by Foucault and one can speculate only with regret on how a greater knowledge of Bentham’s writings might have altered his judgement and expanded his vision. Foucault also failed to recognize that Bentham shared with him a distrust of anonymous capricious power. He extrapolates from the particular device of the panopticon inspection tower to generalize that ‘Bentham laid down the principle that power should be visible and unverifiable. . . . The Panopticon is a machine for dissociating the see/ being seen dyad . . . in the central tower, one sees everything without ever being seen. It is an important mechanism, for it automatizes and disindividualizes power.’38 But it is a fundamental of the Constitutional Code that power must be visible, open, and accountable and that each functionary must be held personally responsible (and punishable) not only for his actions but for the conduct of the business of his office. The whole structure of single-seatedness and supervisory regulation was

34 Technologies of the Self: A Seminar with Michel Foucault, ed. L. H. Martin, H. Gutman and P. H. Hutton, Amherst, Mass., 1988, p. 163. 35- ‘Nonsense upon Stilts\ ed. Jeremy Waldron, London, 1987, pp. 68- 9. 36 First Principles Preparatory to Constitutional Code, ed. Philip Schofield, Oxford, 1989 (CW), p. 266. 37 H. L. A. Hart, Essays on Bentham, Oxford, 1982, p. 2 . 38 Discipline and Punish, pp. 201-2.

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118 Janet Semple designed to this end. On this point Foucault’s failure to read Bentham beyond the panopticon is seriously misleading. According to Foucault, Bentham’s panopticon provided a blueprint for a series of carceral mechanisms which ‘all tend, like the prison, to exercise a power of normalization.’ Bentham certainly did believe that he could reform criminals by a regime of hard constant work. One of the major weaknesses of the panopticon is his gross underestimation of the difficulties of this process. But he did insist that even convicts were entitled to have their interests considered and should enjoy a certain measure of security. And he would personally have stopped well short of any attempt to normalize deviancy among the general population which is the theme of Foucault’s carceral archipelago. He was himself eccentric, often at odds with the society into which he was born, and he was notable for his tolerance of harmless abnormality. Ironically, he would have protected the privacy and welfare of sexual deviants. He wrote with a sensitive sympathy of their plight: some secrets should not be disclosed, among them: Eccentricity of any sensual appetites, the sexual for example, by which no pain in any assignable shape is produced any where . . . but by the disclosure of it, evil to a deplorable amount may be produced: by the antipathy ... a whole life may be filled with misery.39 Although there are points where Foucault and Bentham share some common ground, there remains a chasm between them on the funda­ mentals of power and knowledge. Foucault’s philosophy presents a particular difficulty in that he refused to take a moral standpoint. According to him truth and justice are but the products of the discourses of power and knowledge. His rhetoric implies that power within the carceral city is wicked yet the existence of evil surely presupposes good. Towards the end of his life, Foucault was groping towards a vague idea of a good—the aesthetic of existence. One of his disciples suggests that he was struggling towards a form of liberation: As far as Foucault’s work is concerned, we will have to be satisfied with hearing a voice which suffered with some of the victims not only of obvious captivities but also of modern liberties and their programs. As a result, it was a thought which struggled impatiently for new practices of freedom. Ultimately, it was a cry of the spirit.40 But the Foucaultian ideology does not explain why such liberty might be desirable. It contains no criteria to measure the quality of life. If a mental patient freed from subjection to psychiatrists within an asylum ends up in prison or in a cardboard box under a bridge, such 39 First Principles, (CW), p. 290. 40- James W. Bernauer, 'Michel Foucault’s Ecstatic Thinking’, The Final Foucault, ed. James Bernauer and David Rasmussen, Cambridge, Mass., 1988, p. 75.

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Foucault and Bentham: A Defence of Panopticism 119 freedom must be of doubtful worth. Medical power can be used to liberate; a patient sectioned under the Mental Health Act and forcibly drugged might thereby be enabled to return to live in the community. Foucault does not seem to admit that resistance to the tendency of the human sciences to subjugate can effectively come from within the rational liberal community. The eugenics movement, that ultimate expression of an oppressive human science, advocated in its extreme forms, regulation, incarceration and even the elimination of the unfit. But its intellectual base was undermined by rational argument and scientific advance. In this case knowledge resisted the extension of power and was an agent of liberation. Knowledge and power are not necessarily in proportion, and great knowledge does not necessarily lead to the acquisition of great power. And there are sources of power other than knowledge, ideology, religion and the barrel of a gun. Foucault writes of the technologies of subjection as though they have a life of their own, as though it does not matter for what they are used. But surveillance or inspection within a prison can be (as Bentham insisted) a humane method to maintain discipline and safe­ guard the welfare of inmates. The mechanisms of power are ethically neutral. On this point, Walzer argues that the differences between a mental hospital in Paris and the Gulag in the Soviet Union are the product of the differences between a liberal state and a totalitarian one. He criticizes Foucault for providing, ‘no principled distinction . . . between the Gulag and the carceral archipelagos’.41 Bentham’s concept of power and his theory of government do provide such a principled distinction. He envisaged a network of interest and influence that would inevitably be an instrument of exploitation and oppression unless kept firmly in check. For him, it was a fundamental of human nature that a man will sacrifice the common interest to his own particular interest. But if society can be organized so that duty and interest are joined, power can be exercised for the common good. Bentham believed that a representative democracy under the surveil­ lance of the public opinion tribunal could achieve this. Power, though tending to evil, could be directed towards good. The difference between Bentham and Foucault is that Foucault denied the existence of a common good. Bentham’s definition of the proper end of government is notoriously ‘the greatest happiness of the greatest number’. But towards the end of his life he became unhappy with the phrase for he had come to realize that it could mean that it was allowable to sacrifice the interests of the minority to those of the majority, and that was not his understanding. He preferred to substitute to it ‘the greatest happi­ ness principle’. He wrote in 1828: 41 Walzer, p. 62.

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Janet Semple Lately however ... a closer degree of attention having been called down upon the subject, a conviction was obtained that by this mode of expression if applied in practice, effects widely different from those intended—in a word mischief to an almost indefinite amount might be produced. In a community of 2001,1001 might be ‘in the enjoyment of the greatest degree of comfort, the greatest possible degree of torment might be the lot’ of the 1000. But his intention was that ‘the greatest happiness of all together would be produced’.42 The comfort and well-being of deviants, lunatics, or criminals would not have been sacrificed in a Benthamite state. Bentham was also clear on what human happiness depended: subsis­ tence, without which no life is possible; security in which was sub­ sumed freedom from oppression without which there can be no decent life; and as subordinate ends, equality and abundance. These aims remain sensible and intelligible and would provide prisoners and patients and deviants with the security against the oppressions that Foucault most feared. Bentham’s analyses of tyranny and of the opposition of interest between the ruling few and the subject many continue to be valid and are more relevant to the problems of post communist Europe, the cardboard city, and prison conditions than Foucault’s theories of class oppression and social engineering. Ben­ tham provides a more subtle instrument of analysis of networks of power. His principles of management also have a more immediate relevance. They are a framework for discussion of the problems of finance and organization of prisons and governments. It must be admitted, however, that the panopticon does not provide a solution. It is an ambivalent and at times abhorrent institution. Foucault’s criticisms, where they are valid and they often are, and his brilliant insights into the nature of the humane oppressions of modern institutions have performed an invaluable service, if only because they have subjected these power structures to intense scrutiny and debate— an achievement that Jeremy Bentham would surely have applauded.

42- UC cxii. 153- 4 .

[15] Rethinking Institutions in Late Georgian England* ROY PORTER

The Wellcome Institute for the History of Medicine

It is a great privilege to have been invited to speak on this occasion. I shall not talk about Janet Semple’s life, since I did not know Janet Semple well. I first came across her work when the Oxford University Press sent me a copy of her Ph.D. thesis, asking for my opinion as to its publishability. I groaned—yet another study of the panopticon! I opened it, started reading—and read it straight through. It was so clear, insightful, powerful in its interpretation and beautifully written. I am delighted to see that it has appeared as Bentham ’s Prison} I was, at a later stage, equally pleased to be involved in persuading Janet to publish some of her research on Bentham’s medical and health inter­ ests.2 I shall not try to evaluate her work today. I think I might best honour her by trying to reflect upon some of the wider issues that surround Bentham’s concerns with prisons and hospitals—issues raised by her work. James Tilley Matthews was a Welsh tea-broker who traded from Leadenhall Street.3His ardent support for the French Revolution led to his becoming involved, in the early 1790s, in complex political and diplomatic negotiations in Paris, thrown into captivity by the Jacobins but released after three years—on the grounds that he was a ‘danger­ ous lunatic’. On his return to London, he revealed to the government, notably Lord Liverpool, such atrocious French plots targeted against Britain, but in particular against himself, that his revelations led to his detention, on the orders of the Lord Chancellor, in Bethlem Hospital, or Bedlam, the notorious lunatic asylum at Moorfields. There Matthews was abused and tortured over the next decade by *The Janet Semple Memorial Lecture delivered at University College London on 26 November 1993. This lecture is printed as delivered. Since it was intended as a general discussion of issues rather than a thorough, scholarly survey, I have annotated the paper very lightly, doing little more than identifying works and authors mentioned therein. 1 Janet Semple, Bentham’s Prison: A Study of the Panopticon Penitentiary, Oxford, 1993. 2 Janet Semple, ‘Bentham’s Utlitarianism and the Provision of Medical Care’, Doctors, Politics and Society: Historical Essays, ed. Dorothy Porter and Roy Porter, Amsterdam, 1993, pp. 30- 45. 3 For the following discussion of Matthews and Haslam see Roy Porter, ‘Introduction’ to John Haslam: Illustrations of Madness, London, 1988, 1st edn. 1810; and ‘Reason and Madness in the French Revolution’, Studies in Eighteenth Century Culture, ed. Leslie Ellen Brown and Patricia B. Craddock, East Lansing, Michigan, 1990, pp. 55- 80.

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Roy Porter the apothecary, John Haslam, the junior member of a three-man medical team that included the physician, Thomas Monro, an eminent water-colourist but essentially an absentee psychiatrist, and the sur­ geon, Bryan Crowther, an alcoholic sometimes so deranged as to require to be restrained in a straitjacket. In Bethlem, Matthews was systematically set under the surveillance of spies planted in the hospital disguised as lunatics; and he was tortured by means of an airloom, a dastardly mechanical contraption operated by various gangs dispersed thoughout the metropolis. The magnetico-electrical rays emitted from this machine—of which he obligingly left us a selfexplanatory technical drawing—inflicted terrible physical tortures, producing ‘a list of calamities hitherto unheard of, and for which no remedy has been yet discovered’. These included ‘F luid Locking’, which rendered Matthews speechless; ‘Cutting Soul from Sense9, which caused his feelings to be severed from his thoughts; ‘Stone-making9 which created bladder stones; 'Thigh-talking', which produced the auditory distortion of having one’s ear in one’s thigh; 'Kiteing9, or the capacity to hi-jack the brain and implant thoughts in it beyond the sufferer’s control; 4Sudden death-squeezing’ or 'Lobster-cracking9, which involved deployment of a magnetic field to stop the circulation and impede the vital motions; ‘Stomach-skinning’, which removed the skin from the belly; 'Apoplexy-working with the nutmeg grater’, which violently forced fluids into the head, often with lethal effects; ‘Lengthening the brain9, or in other words, forcible thought distortion, which could ‘cause good sense to appear as insanity, and convert truth into a libel’; 'Thought-making9, which was the extraction by suction of one train of thought and its replacement with another; 'Laugh-making9,—is self-explanatory, I think; 'Poking9, which was a form of physical punishment enforced when the victim resists the other forms of torture; 'Bladder-filling9, or implanting the nerves with gas; 'Bombbursting9and 'Tying-down9, which involved distending the whole body with gas; 'Gaz-plucking9, or the extraction of the magnetic fluid from the victim’s anus—not to mention other tortures such as ‘foot-curving, lethargy-making, spark-exploding, knee-nailing, burning-out, eye-screw­ ing, sight-stopping, roof-stringing, vital-tearing, fibre-ripping9. They also tormented his mind, mobilizing various techniques of mind control. One of these was the 'brain-saying9, a magnetically-induced medium of surveillance at a distance, a telepathic mode of communica­ tion which Matthews first experienced when imprisoned in France; similar to this was the 'voice-saying9, though this involved thought control by articulate sound. In his sleep Matthews was assailed by ‘dream-workings9, in which visual images were forced onto his languid consciousness through the medium of ‘puppets’ held by the gang, whose images are impressed upon his imagination. The conspirators

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Rethinking Institutions in Late Georgian England 67 were occasionally visible to their victim, though they could withdraw themselves from his sight by grasping hold of a special metal bar. While in Bedlam, Matthews was thus subjected to total surveillance, to comprehensive psychic and physical control. His mind was read; thoughts were removed from his head and replaced by others. By means of various mechanisms, he was rendered permanently visible to his tormentors who could also, through the manipulation of metallic bars, make themselves visible to him, or invisible, at will. Matthews, in his own words, had been reduced by all this apparatus of power—Michel Foucault might have called it a dispositif—to an ‘automaton’. Indeed, the case of Matthews may appear as if conveniently planted by fate perfectly to exemplify Foucault’s prime concerns. We know all this about the hapless Welsh tea-merchant because Matthews freely volunteered the information—an instance of the micro-technology o f‘confession’, a Foucauldian might say, the inquisi­ tion of truth—in order to convince the world that he was the object of persecution; and because John Haslam, the Bethlem apothecary, pub­ lished it, to convince the world that Matthews was an instance of persecution mania, or paranoia. We also know that when, some five years later, a parliamentary committee investigating madhouses, exposed abuses at Bethlem, and the Bethlem governors not unnatur­ ally sought a scapegoat for its iniquities, they, as is the way of the world, made the junior man carry the can and sacked Haslam, citing as grounds for their action documents presented to them by James Tilley Matthews, demonstrating his mistreatment and molestation over the years. Matthews’s dreams had thus come true (though by this time he was dead). For, combating his persecution by Bethlem Hospital and indeed by the entire British state, he had earlier penned a document, beginning James, Absolute, Sole, and Supreme Sacred Omni Imperious Arch Grand Arch Omni Imperious Arch Grand Proprietor Omni Imperious Arch-Grand-ArchEmperor-Supereme & in which he reiterated his ‘Absolute Possession o f ... my Arch Empire’, denounced all the monarchs of Europe, and Asia too, as usurpers, and drew up a tariff of rewards for ‘secret Assassins’ for their extermina­ tion, beginning at the bottom with ‘three hundred thousand pounds sterling’ for the head of the king of Norway and Denmark (himself, of course, insane), and rising to a million pounds for the Czar, a million for the emperor of China and the King of Spain, and so forth. Matthews gave directions as to method (‘I shall prefer the Hanging them by the Neck till dead and afterwards Publickly burning them’), while apolo­ gizing for the barbarity of it all—it was, he explained, ‘unfortunate for me . . . to have to put to death any one whomsoever’. His call for vengeance was above all targeted against:

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Roy Porter the Infamous Usurping Murderer George Guelph and His Family and Race: And all those calling themselves Parliament Lords and Commons of Great Britain, Ireland & . . . and all which upon of the Soi-disant Privy Council, Cabinet, or Embassies at the said Period or have been since then; And all those Soi-disant Magistrates either of Union Hall in the Borough of [. . . ?] or Bow Street Westminster at the end of the Year One Thousand Seven Hundred and Ninety Six, or Since then, with all those who were calling themselves either Lord Mayor, Alderman, Common Council, Governors, Doctor, Apothecary, Steward, Clerk, Surgeon & of Bethlehem Hospital. ‘the Sum of Rewards for so fairly Executing them [Matthews con­ cluded] is Four Million Pounds, Sterling’. Matthews achieved not quite the execution of the whole state apparatus, but at least the dismissal of the apothecary. There was, of course, no actual airloom machine—and in view of this, it might seem easy to dismiss the episode I have just recounted as a droll interlude in the history of psychopathology but as having little to do with the subject of my talk, rethinking institutions in late Georgian England. But to dismiss it would, I believe, be a mistake. Who can deny that Matthews the madman was engaged (in his own particular way) in rethinking carceral institutions—indeed, he did so, during his last years in Bethlem, in a most practical manner, since when a public competition was held for designing the new Bethlem building, the one eventually built in St George’s Fields that now constitutes the Imperial War Museum, Matthews submitted a forty-six page dossier of designs (now lost), which the governors so commended that they voted their lunatic patient an ex gratia award of £30. And albeit that there was no airloom, there might well have been: that is to say, the airloom machine Matthews fantasized did not differ all that dramatically from any number of machines that were being devised at the time, at least on the drawing-board, by apparently perfectly sane people, like the inventor supreme, Erasmus Darwin— indeed the airloom bore certain close resemblances to Mesmer’s baquets and other mesmerizing machines that Matthews probably came across during his Paris years. And we might also say that Matthews’s deranged allegations about plots and persecution bear more than a superficial resemblance to the detailings of dastardly revolutionary machinations by those who were taken not as madmen but as political oracles, including the Abbe Barruel, John Robison, professor of Natural Philosophy at Edinburgh University and author of the gallophobic Proofs of a Conspiracy against all the Religions and Governments of Europe, Edinburgh, 1797, and, above all, Edmund Burke, according to Gibbon, the most eloquent madman he knew. Let us follow up the notion that M atthews’s unsoundness of mind does not detract from the truth of his articulation of the spirit of the age. Let us suppose that, instead of ending up in Bethlem, courtesy of

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R ethinking Institutions in Late Georgian England 69 Lord Kenyon and the ratepayers of the parish of Camberwell, Mat­ thews’s family had antipicated trouble brewing and, at their own expense, had confined him in the long-established and rather illus­ trious Fishponds Asylum in Bristol, under the care of Joseph Mason Cox, MD, graduate of the University of Edinburgh and soon to be author of Practical Observations on Insanity: In Which Some Sugges­ tions are Offered Towards an Improved Mode of Treating Diseases of the M ind and Some Rules Proposed Which it is Hoped may Lead to a More Humane and Successful Method of Cure (1804). What ‘improved modes’ of treatment would this ‘practical’ man have tried out on the teamerchant, that would have constituted a ‘more Humane and Successful Method of Cure’?4 Cox made a name for himself as an advocate of the manipulation of the ‘total environment’ to create theatres of terror designed to shock sufferers out of their delusions. The Cox cure involved scenic devices ‘contrived to make strong impressions upon the senses’, by means of unexpected, unusual, striking or apparently supernatural agents. Thus he would awaken patients ‘by imitated thunder or soft music, accord­ ing to the peculiarity of the case’; or, more sinister, he would deploy ‘signs executed in phosphorus upon the wall of the bed chamber’—the writing on the wall—or ‘make strong impressions on the senses’ by ‘some tale, assertion, or reasoning’. Sometimes he would make dra­ matic use of a helper ‘in the character of an angel, prophet, or devil’ (‘but’, he adds, ‘the actor in this drama must possess much skill, and be very perfect in his part’). One patient was confronted by a thespian, employed by Cox, dressed up as the Holy Ghost—hardly a far cry from Matthews’s delusion of spies planted in Bethlem, masquerading as lunatics. Such pyrotechnic pantomimes, Cox admits, may seem ‘ludic­ rous’, but they were ‘not only admissible, but sometimes indispensably necessary’. Cox was rather fetched with the management of sound (echoes again of Matthews). Particularly valuable was the art of ‘producing un­ pleasant impressions through the medium of the other senses, as when screeches and yells were made in an apartment painted black and red, or glaring white’, at which ‘every man must be painfully affected’, and ‘the maniacal patient, however torpid, must be roused’; or if raging, the patient should be set ‘in an airy room, surrounded with flowers breathing odours, the walls and furniture coloured green, and the air agitated by undulations of the softest harmony’. All such methods were designed to assault the senses, interrupt the chain of delusions, and wrench the maniac out of his raving self.

4 For the following discussion of Cox, see Roy Porter, ‘The Shaping of Psychiatric Knowledge: The Role of the Asylum’, Medicine and the Enlightenment, ed. Roy Porter, Amsterdam, 1994.

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70 Roy Porter Not least, the asylum permitted use of therapeutic technologies. Cox’s favourite device was the swing chair. The patient was strapped into this contraption, and revolved at up to a hundred gyrations a minute. Cox noted the diverse effects at different velocities: slow speeds proved soothing; faster ones induced violent and disorienting giddiness, which created a salutary shock, a traumatization breaking the hold of a delusory system of vicious stubbornness. Intense ‘vertigo’ would ‘often contribute to correct the morbid state of the intellect’. For, Cox argued, the ‘valuable properties of this remedy are not confined to the body’, but ‘its powers extend to the mind’, especially by inducing fear: Conjoined with the passion of fear, the extent of its action has never been accurately ascertained; but I have no doubt it would afford relief in some very hopeless cases, if employed in the dark, where, from unusual noises, smells, or other powerful agents, acting forcibly on the senses, its efficacy might be amazingly increased. The lengthy case histories which Cox appended showed swing treat­ ment, accompanied by sensory deprivation and other disorienting tactics, sometimes being extended over many months, often with increased dosages. Such technologies, Cox contended, generally pro­ duced beneficial results. Patients hitherto highly refractory and obstinate, showed improvement. One of them, after a relapse, was threatened with a repeat of swinging: but rather than repeat the ride in the whirligig, as he termed it, he submitted entirely to my wishes, and, with some occasional returns of obstinacy and disinclination to persist in the remedies I prescribed, I had the pleasure to see him gradually improve till he advanced to perfect reason. By this time, of course, we may be a little confused as to the nature of ‘perfect reason’. One suspects that a visiting Martian anthropologist, faced with Matthews and his details of airloom machines, and Dr Cox (perhaps the original Captain Swing) with his swing chairs, might have been hard pressed to comprehend who was the patient and who the physician (indeed the Martian might well, in the case of Crowther at Bethlem, have actually seen the straitjacket being put onto the practitioner, as a kind of material judgment upon the enterprise of the madhouse). I hope my point will be clear. Institutions for the insane in late Enlightenment and early nineteenth-century England were sites of deep contestation regarding matters of design and discipline. Ques­ tions of power were constantly being posed: who possessed it? Whence arose legitimate psychiatric authority? Did it issue from Parliament or the King (a rather delicate question, given the state of George Ill’s mental health)? Did it derive from psychiatric expertise? Power was

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R ethinking Institutions in Late Georgian England 71 seen as therapeutic (that is, as Michel Foucault would insist, posit­ ive)—but was not this idea ambivalent, if it extended to terror? Power was embodied in technologies—both in specific Heath Robinson con­ traptions, like swing chairs, restraining chairs, douches and phosphor­ ous graffiti, and in ampler grids of hierarchical space, like the asylum itself, one of the many machines a guerir coming into use at this time. At this point, we are irresistibly reminded of other contemporary developments. We think of Jeremy Bentham and his expectations for institutions and love of gadgets.5 Like his brother Samuel, celebrated for his machines for naval dockyards and for the mass production of ships’ biscuits, Jeremy had unbounded faith in contraptions, like his plan for the ptenotrophium, the first battery farm for poultry, or of course the wider scheme of the panopticon: ‘morals reformed’ (so he put it): health preserved, industry invigorated, instruction diffused, public burthens lightened, economy seated as it were upon a rock, the gordian knot of the poor laws not cut but untied—all by a simple idea in architecture, (quoted in Semple, Bentham's Prison, p. 100) Would not Cox or another madhouse doctor of his ilk have been proud to pen such a sentiment about the salutary deployment of space? And might not Bentham for his part—so fascinated by treadwheels and speaking-tubes and lighting effects—have been rather fetched to have invented a contraption akin to the swing chair?—though surely the meticulously scientific utilitarian would have surpassed Dr Cox and quantitied definite velocities, centrifugal forces and ratios of pleasure/ pain per rotation. And if Bentham leaps to mind, so does Foucault. So many of the enigmas of Matthews, Haslam and Cox and Co., asylums and authority, relate to issues raised provocatively in such works as Madness and Civilization, Discipline and P unish, The Birth of the Clinic, in the discussions of law, monarchy and power in the first volume of the History of Sexuality, and in his lecture courses on what he called governmentality delivered in the 1970s and now trickling into print.6

5 These aspects of both of the Benthams’ interests are supremely well brought out in Semple, Bentham’s Prison. 6 See Michel Foucault, Madness and Civilization: A History of Insanity in the Age of Reason, trans. by Richard Howard, New York, 1965; The Birth of the Clinic: An Archeology of Medical Perception, trans. by A. M. Sheridan, London, 1973; Discipline and Punish: The Birth of the Prison, Harmondsworth, 1979; PowerjKnowledge: Selected Interviews and Other Writings 1972- 1977, ed. and trans. by Colin Gordon, Brighton, 1977. Valuable accounts of Foucault’s thinking about institutions are offered in Towards a Critique of Foucault, ed. M. Gane, London, 1986; The Foucault effect: Studies in Governmentality, With Two Lectures and an Interview with Michel Foucault, ed. G. Burchell, C. Gordon & P. Miller, London, 1991; Rewriting the History of Madness: Studies in Foucault’s ‘Histoire de la Folie’, ed. Arthur Still and Irving Velody, London and New York, 1992; Reassessing Foucault: Power, Medicine and the Body, ed: Colin Jones and Roy Porter, London, 1994.

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72 Roy Porter The gaze, surveillance, panopticism; seeing, being seen, the omnipo­ tence of invisibility, the appropriation of space and its rules and regulation to inscribe power and thereby generate technical know­ ledges: the science of asylum management (or what was later called psychiatry)—-and the sciences of the hospital (pathology) and the prison (penology, criminology); the inscribing and prescribing of the relations between psychiatrist and madman, doctor and patient, gaoler and convict, within the order of the asylum, hospital or prison—within (to use Goffman’s not quite Foucauldian but still very suggestive term) the total institution; the development of microtechnologies of power, be it the airloom or swing chair, or (more broadly) the cell, institutional labour, the rationing of freedom, diet and time, the medical report, the criminal record; and, particularly with respect to the treatment of the mad, the introduction of what Dr Cox called ‘more humane methods of treatment’ that replaced neglect with intensified discipline. Foucault, ever distrustful not just of Whiggery but of humanity, insisted, with some justification, that our suspicions should always be alarmed when we hear psychiatrists harping on about humanity. The so-called freeing of the mad engineered by Pinel in France and the Tukes in England was no emancipation but, on the contrary, a ‘gigantic moral confinement’. The Foucault controversy does not diminish. Much of the debate has been futile, a dialogue of the deaf between epigoni playing with neologisms and jargon as if they were children’s toys, and peevish Anglo-American empiricists, suspiciously eager to pounce on trivial factual errors, and convinced that Foucault must have been suffering from that endemic French disease: theory. I come neither to praise nor to bury Foucault. His work has undeniably challenged and changed historians’ readings of the work­ ings of eighteenth and nineteenth-century society—more, I suspect, than anyone with the possible exception of the late and incomparable E.P. Thompson—the pairing is rather bizarre. I also think that, like other mortals, Foucault was right about some things and wrong about others—I shall not attempt a balance-sheet, though I might crudely say that, in my view, what Foucault got wrong, Thompson got right, and vice versa.7 The great and enduring insight of Foucault for anyone concerned with hospitals, madhouses, prisons, schools and all the other objects in that institutional archipelago rests in his insistence that buildings, professions, disciplines, sciences and technologies of power were all mutually constitutive, and scripted within discursive formations. Buildings were not just bricks and m ortar—means to ends—but em-

7 For Thompson, see The Making of the English Working Class, London, 1963; The Poverty of Theory and Other Essays, London, 1978; Customs in Common, London, 1991.

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Rethinking Institutions in Late Georgian England 73 bodiments of strategies of direction and discipline and the conditions of possibility for the exercise of punishment, policing or therapy. These techniques of subjection created subjectivity. Erving Goffman, one might say, had implied similar notions with his concept of the ‘total institution,—the space that made a world.8But Goffman was interested only in very distinctive sorts of institutions, closed worlds like concen­ tration camps and nunneries, whereas Foucault embraced a far more flexible notion of what might constitute an institution. Goffman, moreover, was little concerned with the production or role of know­ ledge, whereas therein lay Foucault's prime interest—the generation of positive knowledge out of constituted social, physical, legal and bureaucratic spaces, grids and systems, the essential rootedness of knowledge in posited disciplinary practices. To put it bluntly, it was the great insight of Foucault to grasp that no modern conception of madness is possible without the madhouse (or of neurosis without the couch); no modern idea of disease is thinkable without the hospital, the stethoscope, the dissecting room; no idea of intelligence is possible without the school, or of corrigibility without the prison. Insanity, delinquency, subnormality, sexuality, homosexuality, perversion—all such objects were not there awaiting discovery by pioneers—all are products of particular configurations of rules and roles, arrangements of spaces and relations. Indeed, more broadly, our very concepts of the self, the psyche and identity are all the creatures of forms of interroga­ tion emergent in the Enlightenment and perfected later under the auspices of nineteenth and twentieth-century social science—a view since taken up and brilliantly elaborated by Nikolas Rose in The Psychological Complex. Psychology, Politics and Society in England, 1869-1939 (1985) and in Governing the Soul: The Shaping of the Private Self (1990).9 If we probe further, however, some aspects of Foucault’s thinking, certain emphases in it, appear far less satisfactory. It has been widely pointed out by critics that Foucault—or at least the Foucault who wrote Madness and Civilization, The Birth of the Clinic and Discipline and Punish—appears to view institutions and their regimes in rather monolithic terms. For whatever reason—his vehement anti-Marxism, a commitment to what is popularly called structuralism, a rejection of traditional notions of causation and piecemeal historical change, the notion of the death of the author, a hostility to humanistic concepts of agency, a prioritizing of language, texts and discourse—Foucault 8 Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates, New York, 1961. 9 Nikolas Rose, The Psychological Complex. Psychology, Politics and Society in Eng­ land, 1869-1939, London, 1985; Governing the Soul: The Shaping of the Private Self, London and New York, 1990.

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74 Roy Porter ignored contestation and conflict, the clash of ideologies, struggle and resistance. Discussing the history of sexuality, Foucault insists, ‘there is not on the one side, a discourse of power, and opposite it, another discourse that runs counter to it’.10 Such a reading runs the profound risk of mystification, reification. Let us wind back to the case of James Tilley Matthews. His is, if you like, a story in the classic Foucauldian mould, wherein, within that institutionalization movement Foucault dubbed the ‘great confinement/, a troublemaker is removed from civil society by the conjoint and mutually reinforcing action of politicians, the law, the state and the psychiatric profession: a classic piece of exclusion by way of psychiatric labelling, of calling the disturbing disturbed. But the Matthews case clearly has other nuances. Some physicians are prepared to testify against the Bethlem authorities that he should be released. Bethlem, Britain’s premier public asylum, is investigated by a House of Commons committee; it is censured; the Governors then censure the staff; the. staff attack the governors; finally the word of the patient gets the doctor dismissed. Here, as this thumbnail sketch suggests, we see institutions not just as instruments of disciplinary power but as objects of contention, struggle, contradic­ tion, resources being used differently by distinct and conflicting interest groups. Not least, we see the patient fighting back. Foucault writes of patients, prisoners and paupers as if they are puppet­ like, essentially the creatures of disciplinary regimes, endowed with identity by them. In a sense that is true: it is the physician who turns the sick person into a patient. But I see no reason, empirical or theoretical, why we must accept the totalizing implications of this view, that professional knowledge and official space create identities that exclude all others. Contestation, conflict, struggle, resistance, rethinking, the dialetic of voices—these seem the very stuff of social process. Studies of hospitals and workhouses are now revealing how clients and customers used them in their own way, to their own ends, independently of their official rationales. Here, in my view, E.P. Thompson is a far surer guide than Foucault, particularly as Thomp­ son so valuably insisted that conflict itself is not just a brute struggle between individuals or classes but is conducted through culture, through agreed or contested norms, rules, customs, conventions and ideologies. What the social historian must find lacking from Foucault is a sense of the society within which institutional and disciplinary regimes become implanted—he offers no account of class, gender, status, the powers that be. One understands Foucault’s desire to shun 10 See Michel Foucault, The History of Sexuality, vol. 1 , An Introduction trans. by Robert Hurley, New York, 1985, p. 99; for evaluation see Roy Porter, ‘Is Foucault Useful for Understanding Eighteenth- and Nineteenth-Century Sexuality?’, Contention, i (1991), 61-82.

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Rethinking Institutions in Late Georgian England 75 vulgar Marxism as well as vulgar Freudianism, but the result is that we are left in limbo with a rather Olympian, disembodied history as a result, peopled by pawns not participants. People do, as Marx insisted, make their own history, but they do not make it just as they please. Another facet of Foucault’s rather abstract stance is that Foucault is silent about the economics of institutions, their place within determin­ ate kinds of productive and exchange relations. Foucault never noticed, or maybe did not wish to notice or admit, the messy, muddled, turbulent, atomized individualism—possessive individualism11—of Western market societies, so concerned was he with the machinery of discipline and punishment. His works never seriously engage with the fact that the institutions whose formation and reformation he was archaeologizing existed within emergent commercial, capitalist socie­ ties and were often themselves directly capitalist in nature, that is were private property, directed towards profit. This blind spot is manifest in different ways throughout his work. Madness and Civiliza­ tion talks about the ‘great confinement’ of the mad, alongside vaga­ bonds, petty criminals, prostitutes and down-and-outs, brought about as part of absolutist public policy from the time of Louis XIV. It is doubtful whether the description can be applied even to France. It certainly does not apply to England where treatment of the mad became part of what was widely called the ‘trade in lunacy’, i.e., the capitalist economy of private asylums. Above all, in Discipline and Punish Foucault wrote, in a manner Althusser might have endorsed, of Bentham’s panopticon—that ‘cruel, ingenious cage’—as if it formed part of a massive national disciplinary apparatus; and in his wake Foucauldian historians of prisons and parallel institutions have con­ centrated on the penitentiary as if it were the epitome and template of the grand disciplinary enterprise of modernity. Michael Ignatieff has stated that the account of the prison associated with the writings of Foucault, with social control theorists, and with his own A Just Measure of Pain contained three basic assertions: ‘that the state enjoys a monopoly over punitive regulation of behaviour in society, that its moral authority and practical power are the binding sources of social order, and that all social relations can be described in the language of subordination’. These assertions Ignatieff later confessed to have been ‘misconceptions’.12 For one thing, as Janet Semple’s marvellously rich and refreshing Bentham's Prison rightly insisted, the panopticon was a far more 11 The phrase was coined by C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke, Oxford, 1962. 12 Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850, London, 1978; ‘Total Institutions and Working Classes: A Review Essay’, History Workshop, xv (1983), 167-73.

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76 Roy Porter complex institution—this many of you in the audience will know a hundred times better than I. Clearly its project was about monitoring, disciplining and punishing—it was the institution that would rectify the deficiencies of traditional gaols. But in Bentham’s view it had to be run on moneymaking lines as a profit-making, private, even privatized enterprise, with an entrepreneurial governor bearing a passable resemblance to a factory owner, a Boulton or a Watt. The efficiency of the enterprise would be the enrichment of the governor—Bentham hoped the post would go to himself, and day-dreamed of clearing a cool £37,000 a year. Bentham, as Semple showed, was deeply—one might almost say obsessively—preoccupied with the particular economics of the panopticon. In his plans he gave as much attention to questions of work and waste (including the use of music to stimulate labour), production, profit and financial viability as to elements that were to attract most attention from Foucault and his followers, for instance solitary confinement—Bentham, as Semple noted, was far from dog­ matically insistent on solitary confinement. To understand the rethinking and reformation of institutions in late Georgian England, we need to distance ourselves from the Foucauldians and the Althusserians, to look at the private sector no less than the public, to examine the discipline of the market and marginal utility no less than the discipline of the gaze, the diagnostic chart, the police record or mug shot. The historian’s Bentham must be one who, as well as being a rational reformer, was also an advocate of political eco­ nomy, attached to pecuniary power, the hidden hand, and the cost/ benefit oriented rational hedonistic individual. To that degree, an earlier Frenchman’s Bentham is still a more recognizable Bentham than Foucault’s: that is Elie Halevy.13 It may say something about Foucault, with his Catholic mother and surgeon father and Ecole Normale Superieure training, that, for all his fascination with discipline he never addressed the factory and factory discipline—the kind of topic that came naturally to E.P. Thompson.14 Foucault was immensely illuminating on many of the savoir/pouvoir grids transforming late Enlightenment Europe, including the notion of police; in his lectures he probed the political theory of liberalism; yet he had remarkably little to say about a theoretic system that assumed paramount importance in Britain: possessive individualism, and its practical outworkings in the free market. Was this a real blind spot? Was it part of his war with Left Bank Marxists? Whichever, what is crystal clear is that to understand the orientations and alterations of British institutions around 1800, we must distance ourselves from any

Elie Halevy, The Growth of Philosophic Radicalism, London, 1928. E. P. Thompson, ‘Time, Work-Discipline and Industrial Capitalism’, Past and Present, xxxviii (1967), 56-97. 13 14

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Rethinking Institutions in Late Georgian England 77 simple Foucauldian emphasis upon governmentality—the advance of governmental rationality, the state and its bureaucracy—and we must recognize that certain institutional changes were market led, driven by notions of economy, parsimony and even deregulation. This applies, in ways too obvious to need spelling out, to the poor law debates—about which I shall say nothing more now, since some of us have heard the poor law admirably discussed earlier this afternoon by Michael Quinn and David Eastwood. It applies very directly to what was called the ‘trade in lunacy’:15 institutionalization of lunatics was expanding fast in the reign of George III, but mainly through the growth of the private sector, madhouses run, like Cox’s Fishponds, as family businesses, andexisting in quite tense relations to wider public power. And it applies, as E.P. Thompson has insisted, to the central ideological debate about the ordering of society being waged at this time, the assault upon the old moral economy by the new political economy. The world of work, education, justice, village life, that had been regulated time out of mind by customary use, was now meant to submit to the sovereign laws of profit and loss. Foucault’s Discipline and Punish traces the transition from the will of the king to a new institutional logic of penitential discipline—we move from Damiens broken on a wheel in 1757—the embodiment of torture—to the panop­ ticon and to Mettray. I am not convinced these emblematic transitions are very appropriate in England, where perhaps the transition from ‘customs in common’ to Samuel Smiles better captures the rethinking of institutions. This leads to a further point. Foucault was concerned to excavate certain comprehensive discursive shifts—he spoke of the birth of the modern soul—and his adherents have followed suit. There was exclu­ sion, or institutionalization. There was surveillance and correction. There was the penological shift from the physical to the psychological. And so forth. Foucault was notoriously unforthcoming about agency, but it,might be fair to infer that in his view the transition from ancien regime royal will to modernity involved the widespread instantiation of centralized bureaucratic rationality. From Weber through to the Frankfurt School, a host of analysts would obviously concur with this model of modernization. But the striking point about Great Britain around 1800 is that one sees nothing like a general and uniform advance of rational institu­ tions (on, say, the model of cameralist Germany), but an extraordinary jumble of institutions and diverse tempi changes—as one might expect in a capitalist world, in which the market is king. Examination of English institutions at this time reveals local adjustments, uneven

15 William Llewellyn Parry-Jones, The Trade in Lunacy: A Study of Private Madhouses in England in the Eighteenth and Nineteenth Centuries, London, 1971.

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78 Roy Porter development, in some cases (as with Joseph Townsend’s calls for the abolition of the poor law) a new reliance upon the market as the instrument of discipline—retreats from the institutional state, Cobbett’s The Thing, no less than advances into it. By consequence, it is far from clear that institutional changes Foucault tended to write about as if they were global were really so. In the Birth of the Clinic, Foucault analysed the creation of new hospital medicine, a medicine of the clinical gaze, of pathological anatomy, of post-mortem investigation on the grand scale—a medicine leading to a radically new concept of disease. But such medicine came slowly to England—as late as the 1830s, English medical students were still going to Paris in droves to learn it, witness the fictional Dr Lydgate in Middlemarch. England experienced no such transformation of hos­ pitals, medical education and the medical profession as the Revolution brought to Paris. Without such a transformation of the state, no transformation of medicine took place at this time in England. As Ruth Richardson has stressed, bodies for dissection in England came, at least until the 1832 Anatomy Act, not through the sanction of the state but through the free market in corpses supplied by grave-robbing, organized by the owners of private anatomy schools.16 Fluid and shifting boundaries between the public and private explain major divergences in institutional change between France and Britain. In Paris, so-called ‘moral therapy’ for the insane—the replace­ ment of physical restraints by a more psychologically oriented medi­ cine—was introduced in a huge public asylum, the Bicetre, through the agency of a physician. In England, the parallel reform occurred in a small private provincial asylum, the York Retreat, founded by a Quaker tea-merchant, William Tuke. England’s great public asylum, Bethlem, was, by contrast, as we have seen, noteworthy for its failure to reform. Even the shake up of 1815 brought more a change of staff than of psychiatry. I am not contending that all institutions in late Georgian England were regulated by the logic of the market. I am emphasizing that with the peculiar chemistry of public and private domains, the dialectic of state and market, official and informal, a multiplicity of sites and spaces existed in which functions could develop. Education was still largely growing within the realm of religious charity. Evangelicalism was a spur to reform. University College, by contrast was a joint-stock learning factory—and godless to boot! What then of the prisons in the age of reform? Pace Foucault, Ignatieff and others, I am not convinced that the penitentiary was actually the flagship of institutional change. The panopticon was not

16 Ruth Richardson, Death, Dissection and the Destitute: A Political History of the Human Corpse, London, 1987.

Jeremy Bentham

Rethinking Institutions in Late Georgian England 79 built, Pentonville arose, but not till 1842, and—here I follow Margaret DeLacy’s persuasive account—reform was not the result of policy diktat from Whitehall but arose out of local initiatives in Preston or Gloucester and many other centres.17 Local initiatives produced local expedients—and change came slowly and piecemeal. This is not to deny a trend towards solitary confinement, cells, institutional imper­ meability, and so forth. But it is to insist upon the sporadic, erratic and tardy nature of prison change. I am not as convinced as Foucault that what Marx called the silent compulsions of economic relations truly needed the penitentiary. Not least, of course, in the absence of a Beamtenstaat on the Prussian model, or a Paris-based bureaucracy, all such institutions were sites of rivalry. The school, the prison, the madhouse house not just discipline but discord. In the prison, we see multiple sources of authority: the governor, but increasingly in the nineteenth century, the officers of the prison medical service. Most who have written on prison medicine— neo-Foucauldians and Marxists alike—have assumed that the medical men ended up in effect as the governor’s lackeys, doing his dirty work. But this judgment seems premature and simplistic. From the time of John Howard, questions of health, hygiene and humanity bumped against punishment and created tensions within prisons. As Martin Wiener has emphasized in his Reconstructing the Criminal: Culture, Law and Policy in England, 1830-1914, punitive and psychiatric read­ ings of criminality were often pulling in different directions.18 Or let me cite just one more case, currently the subject of superb research being conducted by Akihito Suzuki of the Wellcome Institute: the introduction of the technique of non-restraint into psychiatric practice, that is, the entire abandonment of all forms of physical and mechanical restriction—handcuffs, leg-locks, strait-jackets, cuffs and so forth. Associated with Robert Gardiner Hill at the Lincoln Asylum and then, most celebratedly, with John Conolly at the Middlesex County Asylum at Hanwell, non-restraint has been traditionally regarded, in Whig histories of psychiatry, as a step forward into a more curative psychiatry, a giant stride for humanity. With their usual reversal, Foucauldians have viewed it as the opposite, as a more intense mode of subjection, putting all the burden of control upon the patient and so in effect culpabilizing him for his disorder; while Andrew Scull, the Marxist historical sociologist, has read the progress of non-restraint as a tale of professional dominance.19 But it is now 17 Margaret DeLacy, Prison Reform in Lancashire, 1700-1850, Manchester, 1986. 18 Martin Wiener, Reconstructing the Criminal: Culture, Law and Policy in England, 1830-1914, Cambridge and New York, 1990. 19 For Scull, see Andrew Scull, The Most Solitary of Afflictions: Madness and Society in Britain, 1700-1900, New Haven, 1993.

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80 Roy Porter becoming clear, thanks to the work of Dr Suzuki, that the introduction of non-restraint to Hanwell involved complex struggles between many different elites: the former superintendent, William Ellis, who had implemented a highly personal, paternalistic, religious regime; clash­ ing bodies of magistrates and other worthies—some Whig, some Tory, some paternalist, some individualist, keen on economy, some on utilitarian efficiency, some eager to implement a rather Broughamite modernization of administration, some dedicated to resisting the dic­ tates of central government in the name of local autonomy; and so forth. In all this, the politics of local government played a greater role in psychiatric change than did the professionalizing ambitions of doctors. This takes us back, finally to Bentham’s Prison. For I believe the profound and abiding message of Janet Semple’s lucid and luminous book is that we must not think of the histories of prisons, asylums, hospitals, barracks, hulks and universities as individually self-con­ tained subjects, each in its own institutional tunnel leading to the present; nor is it very helpful to talk, almost transcendentally, about abstractions like disciplinarity, panopticism, governmentality and so forth. Bentham’s Prison shows that the panopticon nearly got built— though in the end did not get built—because it expressed numerous concerns in Britain around 1800—crime, tax, rates, the poor, reform, value-for-money, accountability, entrepreneurship; and it spanned them in the most concrete of ways; Bentham had to leg it, and knock on the doors of endless officials, ministers, grandees, he had to plot out sites—Battersea, Woolwich, Millbank—put models of the glass-andmetal, steam-heated structure on display, make connexions, butter up bigwigs. It is that dimension—real people politicking—that is absent from the Foucauldian vision but so powerfully present in the work of Janet Semple. This is no plea for the restitution of old administrative history, the old thick texture of trivia. But it is to argue that our best hope of understanding the fortunes of institutions lies in addressing the strategies of contesting elites within the ideas market. It is useful, with the Foucauldians, to stress the advent of the disciplines. But alongside this just measure of Foucault, it is more useful still to go back further, and understand the play of politics that created that disciplinary power itself.

[16]

Jeremy Bentham on the Relief of Indigence: An Exercise in Applied Philosophy MICHAEL QUINN

University College London

This paper will attempt to provide an overview of Bentham’s funda­ mental thinking with regard to the relief of indigence. The manuscripts on which it draws form the texts of unpublished works, namely a set of ‘Three Essays on the Poor Laws’, which were completed by Bentham, and ‘Pauper Systems Compared’, which remains in a comparatively unfinished state. In the ‘Essays’, Bentham considers first the question of whether the relief of indigence should be a public responsibility, and, having concluded that it should, moves on to consider what conditions should be attached to that relief. In ‘Systems Compared’, Bentham analyzes different systems of provision in terms of their compatibility with these conditions. While much of interest and relevance in Bentham’s thinking on the poor laws will be omitted, there will for instance be no extensive discussion of contract management, it will be argued that the conclu­ sions he draws, while theoretical, inform his own proposals for reform. In particular it will be argued that the liability to labour in return for relief, and the limitation of the extent of that relief to the minimum necessary to sustain health, are fundamental to Bentham’s thinking on relief. The relationship between Bentham’s conditions of relief and the detailed arrangements for its provision, in privately managed Houses of Industry, is worthy of investigation. How far Bentham believes that extraction of every ounce of usable labour, and retrenchment in expenditure to the point of obsession, are required by his principles of relief, and how far they are required as a consequence of his conviction that only private management is capable of administering a national system of relief, and that such management must be provided with a motive in the form of profit, is a central question, which would require a study in its own right. It will not be directly addressed in this paper.1

1 It is undoubtedly true that when Bentham engages with detail in the plan of his pauper panopticon he displays an almost fanatical enthusiasm for deriving value from every scrap of labour, and for the most obsessional cheese-paring. He is also quite explicit about the origins of the profit margin of the National Charity Company; they are to be derived from the systematic exploitation of child labour. Without discussing these issues at length, one observation might be made. The reinstatement of the link between labour and subsistence with regard to the indigent lies at the core of Bentham’s philosophical position with regard to poor relief. The conditions of relief are intended to facilitate the employment of labour which, for myriad reasons, is unemployed, or which

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82 Michael Quinn To borrow Bentham’s terminology, the approach will be largely expository rather than censorial. As Janet Semple demonstrated in all her work, the pre-condition of evaluation is understanding. Poor relief was and remains an emotive subject. This paper will aspire to her standards of dispassionate enquiry, it cannot hope to emulate either her historical sensitivity or her lightness and lucidity of style. When Bentham turned his attention to the subject of the poor laws at the end of 1795, he was joining a live and heated debate about a burning political issue. The background to the crisis of the poor laws in the mid 1790s is sufficiently well established not to require extensive restate­ ment here. In brief, an hundred years of accelerating enclosure of common land, and the dislocation consequent upon a gathering indus­ trial revolution, had been followd by war against revolutionary France, with its inflationary effects on both the price of corn and on the level of apprehension regarding the threat of domestic Jacobinism. The failure of recent harvests had resulted in widespread distress. In consequence, expenditure on poor relief had risen, was still rising, and, in the opinion of many rate-payers, ought to be diminished. In addressing the question of poor relief, Bentham found himself confronted with three distinct positions in relation to which he defined his own. To simplify rather, proposals were advanced for, in turn, the abolition of public relief, of which the major advocate addressed by Bentham was Townsend; the fixation of expenditure on poor relief at current levels, which was attracting growing support among rate­ payers, and which would, in 1797, be advocated by Eden; and the extension of outdoor relief, as envisaged by Pitt in his bill of 1796,

cannot generate sufficient income, though employed, to maintain itself. The creation of the circumstances in which that labour can be employed requires the collection, organisation and detention of that labour. It requires a national, sophisticated structure, a supplement to the open labour market, precisely because that labour market issues, so far as the indigent are concerned, in their exposure to starvation. Any such structure will be expensive, potentially ruinously so. It is certainly Bentham’s contention in 1797 that government administration of his scheme would indeed be inefficient and wasteful, yet the private management of indigence is not essential to Bentham’s poor law proposals. As L. J. Hume pointed out, in his Bentham and Bureaucracy, Cambridge, 1981, Bentham viewed contract management as appropriate for many concerns in comparison with the inefficiency of government administration, as it existed. However, Bentham did foresee the situation in which government should assume control over the administra­ tion of Industry Houses. For the present, having opted for contract management, it behoves Bentham to establish that such a concern can be run at a profit, and his efforts to establish just that constitute perhaps the major theme of the published Outline of a work entitled Pauper Management Improved (The Works of Jeremy Bentham, ed. John Bowr­ ing, 11 vols., Edinburgh, 1838-43, viii, 369-439). Economy as the object of justice may imply that the system of Industry Houses should break even, in the sense that the indigent should meet the cost of their own relief, as far as possible. Economy as the means to profit is implied by the assumption that only private management can erect and administer a structure complex enough to minister to the needs of indigence without injustice to the self-maintaining, since private management requires the incentive of profit.

Jeremy Bentham

Jeremy Bentham on the Relief of Indigence 83 which would have given rise to further large increases in relief expenditure.2 In 1786, the Revd Joseph Townsend had published his Dissertation on the Poor Laws. Prefiguring in many ways the principles of population of Malthus, Townsend reached the conclusion that the public provi­ sion of relief, by rewarding idleness and undermining incentives to labour, could only act to increase misery, not to diminish it. To prevent population from outstripping the resources available for its mainten­ ance, Townsend advocated the abolition of poor relief. Private charity, and private charity alone was the legitimate mode of relief:

To relieve the poor by voluntary donations is not only most wise, politic, and just; is not only most agreeable both to reason and revelation; but it is most effectual in preventing misery, and most excellent in itself, as cherishing, instead of rancour, malice, and contention, the opposite and most amiable affections of the human breast, pity, compassion, and benevolence in the rich, love, reverence, and gratitude in the poor.3

Bentham argued neither for the abolition of relief, nor for the limitation of the poor rates. It was basic to his writings on the poor laws that relief should be available to those who required it. No such entitlement however, could be derived from a natural right to the means of subsistence. Not only was the concept of a natural right anathema to Bentham, but its specific application to the distribution of the means of subsistence would be self-defeating, in so far as the motive force to the production of such means depended precisely on the spur of necessity. It is here that Bentham’s distinction between poverty and indigence assumes central importance, the former being the condition of the vast majority of mankind. ‘Poverty is the state of everyone who, in order to obtain subsistence, is forced to have recourse to labour.’ As such, poverty is the ‘natural, the primitive, the general and the unchange­ able lot of man’.4 The connection between labour and subsistence was essential, and inescapable. The entire stock df usable resources depended upon the investment of labour; all property, all wealth, the entire social surplus, was the creation of past labour. For Bentham this is not a natural law, simply an incontrovertible natural fact: ‘The parentage of Plutus wealth is no secret. He is the child of earth by labour.’5 And again, centrally: 2 See J. Townsend, A Dissertation on the Poor Laws, London, 1971; F. M. Eden, The State of the Poor: or an History of the Labouring Classes in England, London, 1797; for Bentham’s views on Pitt’s bill see Observations on the Poor Bill, introduced by the Right Honourable William Pitt, (Bowring, viii. 440-61). 3 J. Townsend, p. 68-9. 4 UC cliiia. 1. 5 UC cliiia. 107.

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84 Michael Quinn The natural and only natural source of the subsistence of every man who has it not in the shape of property in store, is obviously his own labour, at least in so far as it is adequate to the purpose.6

The defining feature of indigence was the inability to acquire subsistence from this its natural source, either through inability to labour, or despite the investment of labour. The notion of relieving poverty was for Bentham a self-evident absurdity, the relevant ques­ tion related to responsibility of government for the relief of indigence, for the provision of subsistence to those who without such provision would starve to death. Neither Townsend nor the advocates of the freezing of relief expend­ iture posed this question so bluntly, and, as Bentham observes, their implicit answers to it were shot through with ambivalence and prevar­ ication. The logical implication of the abolition of public relief was that some at least of the indigent would starve to death. At times, Townsend gave the impression that he would heartily approve of this eventuality, but at others he simply assumed that the resources of private charity would suffice to prevent it. The proposal for the fixation of the poor rates at current levels did not even address the question. It made no enquiry as to the extent of indigence, merely arbitrarily deciding to relieve whatever indigence may be relieved with a certain sum of money, and abandoning any balance of indigence to its certain fate. For Bentham, the rationale of both abolition and limitation had little to do with any analysis of existing need, it was instead straight­ forwardly concerned with the desire to save money for the ratepayers:

Some have maintained that there should be no provision at the expence of government by law for the poor, or at least that whatever the existing provision be any where, it should not be permitted to encrease. Ask the reason, it turns ultimately upon nothing but the magnitude of the present expence: for as to idleness on one part, it is no otherwise an evil than in as far as it necessitates expence on the other.7

Bentham’s own answer to the question was explicit:

In a civilised political community, it is neither consistent with common humanity, nor public security, that any individual should, for want of any of the necessaries of life be left to perish outright.8

Why did Bentham believe that all should be protected from indi­ gence? To put it crudely, why, in utilitarian terms, should it be a bad thing for a proportion of the population to starve to death? After all, this spectacle may provide a salutary reminder to the rest, of the need to apply their shoulders unremittingly to the wheel of industry. 6 7 8

UC cliiia. 5. UC cliia. 55. UC cliiia. 55.

Jeremy Bentham

Jeremy Bentham on the Relief of Indigence 85 It is in the Theory of Legislation that the justification for providing relief at public expense, in terms of the maximization of utility is found. T or the pain of death ... would always be a more serious evil than the pain of disappointment which falls upon the rich when a portion of his superfluity is taken from him.’9 This direct utilitarian justification is never explicit in the poor law writings, and this absence in itself raises questions. It is arguable that its absence is explicable in terms of Bentham’s argument against the abolitionists. In attempting to establish that indigence relief should be a public responsibility, that is, that it should fall within the ambit of legislation, Bentham argues that private charity is not capable of meeting the demand of indigence. Now private charity falls under the sphere of deontology, of private ethics. What Bentham is doing at this point is attempting, using the arguments of the deontologist rather than the legislator, to provide private individuals with motives for making the relief of indigence a public, that is a legislative, respons­ ibility. The direct utilitarian justification may be relevant to the legislator, but it is for deontological arguments to establish that the legislator has a legitimate interest in this field. Bentham adduces two reasons for relieving indigence, namely ‘com­ mon humanity’ and ‘public security’. To address ‘humanity’ first: humanity as a motive to relieving indigence arises from the sympath­ etic pain of witnessing the death by starvation of a fellow human being. Townsend would presumably not describe his arguments or his motiva­ tions as inhumane, indeed his claim that private charity will succeed in succouring the indigent depends upon the humanity of private donors. Humane concern for the indigent being assumed, the argument dir­ ected against Townsend is that having willed the end, the effective relief of indigence, he must will the means, that is public relief to indeterminate levels of expenditure. If all are to have protection against starvation, private charity must give way to public provision. The indigent cannot be abandoned to the discretion of benevolent individuals, since that discretion makes the chance of relief uncertain. The indigent cannot be relieved from a limited public fund, since the availability of relief must be certain, and there can be no guarantee that the limited fund will be adequate to the level of indigence. The discretionary element in private charity, and the implication that the opulent will decide who shall be relieved and who shall starve, can only be defended as humane in terms of the assumed capacity of the opulent to distinguish between the ‘deserving’ and the ‘undeserving’ indigent. This distinction Bentham rejects absolutely; he is adamant 9

The Theory of Legislation, ed. C. K. Ogden, London, 1931, p. 132.

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86 Michael Quinn that the claim to relief is created by indigence and by indigence alone. Any attempt to differentiate between the thrifty and the profligate, or between the prudent and the imprudent, issues not only in effective capital punishment for the imprudent and the profligate (the explana­ tion of whose vices otherwise than as the result of conscious choice vitiates any imputation to them of desert), but in the extension of this penalty to their uncontroversially innocent offspring: In many instances an irresistible propensity to drunkenness, an irresistible propensity to debauchery, an utter incapacity of taking thought for the morrow, may like idiocy and other specie of insanity, of which they may be regarded as modifications, be considered as constitutional infirmities: and even when this ground of extenuation does not exist, a penalty severer than felony without benefit of clergy, a lingering death instead of an instantaneous one, seems rather too severe a punishment for imprudence.10

To repeat: As a motive, humanity is activated by the interest of sympathy. However, since relieving the indigent costs money, the sympathetic interest collides with the pecuniary. Bentham discusses the case of private relief in the Deontology:

Egenus is in distress. This distress is observed by Liberalis. By the force of sympathy, the pain felt by Egenus becomes, by means of the manifestation made of it, productive of a correspondent pain in the bosom of Liberalis. To relieve himself from this pain . . . he applies relief to this distress. If for the purpose of applying to Egenus this relief . . . Liberalis puts himself to any expence, in this case as in other cases of expenditure, a competition has place between the interest served by the expenditure and the interest (in this case the pecuniary interest) disserved by it.11

In acting as an explanatory motive for the relief of indigence by private charity, or as the justification for taxation raised for the purpose, the efficacy of common humanity declines in proportion to the increase in the sacrifice of the pecuniary interest required. In short, the greater the demand for relief created by indigence, the less likely is it that it will be met by private charity. In addition, where relief to indigence is supplied by taxation, the higher the poor rate, the louder will be the clamour of protest from the rate-payers. Bentham was only too well aware of the basic weakness of common humanity in supplying a reliable motive for relief, and a solid justifica­ tion for the public provision for the relief of indigence. Ears ringing with the cries of financial pain emanating from those whose ‘ease and comfort’ is threatened by the escalating costs of public relief, he found a further justification of such relief which succeeded in tying the interests of the donors firmly and irrevocably to its public provision. UC cliia. 17. Deontology together with A Table of the Springs of Action and Article on Utilitarian­ ism, ed. A. Goldworth, Oxford, 1983 (The Collected Works of Jeremy Bentham), p. 194. 10 11

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Jeremy Bentham on the Relief of Indigence 87 That justification was ‘public security’. The public provision for the relief of indigence secures those in society with something to lose, against the attacks and depredations of those who, facing starvation, have nothing to lose. The man or woman who is abandoned to starvation has simply no motive to respect person or property, and the strongest motive, in terms of self-preservation, to commit whatever crime should be necessary to secure bread. Bentham is clear, both that this justification can be expected to work where ‘humanity’ fails, and that, in the absence of public provision, his sympathies lie rather with the desperate:

If compassion for the indigent themselves were not sufficient warrant for the continuing the provision made for their relief on the steady basis of public contribution, regard for the security of the affluent would of itself be sufficient to forbid the abolition of it. When a man has no other option than to rob or starve, the choice can hardly be regarded as an uncertain one . . . : and if between stranger and stranger it were come to a question of life against life, I am sure I see on which side probability lies, nor, were it worth the enquiry, is it by any means clear that duty lies on the opposite side.12

Against a background of war with revolutionary France, which has just declared the imprescriptible equality of all men, the security of property is threatened not only with sporadic violations on the part of this or that desperate person, but with a political revolution, riding on a seething tide of indigence, powerful enough to shatter utterly government, law, and the whole predictable social order on which all but the most fleeting utility depends. Bentham’s trump card in debate with the abolitionists lies in the threat potential of the indigent. At a time when estimates of the proportion of the population receiving relief in one form or another range as high as one in eight, such a threat was not to be underestim­ ated. Security must be invaded in the form of the poor rates to guarantee the availability of relief since by that guarantee the security of all, and most notably the ratepayers themselves, is enhanced. The weight of Bentham’s defence of poor relief rests upon a candid appeal to the security of property holders. Its strength consists in the reality of the threat of the indigent to property; its weakness in the fact that not all the indigent could realistically constitute such a threat. Bentham is well aware of this weakness, and responds by falling back upon ‘humanity’ to prevent the adoption of such logic: To those who were able to murder rob or steal, relief might be administered, while infants in consideration of their inability to commit such crimes might be left to starve. But if any such expedient be preferable I would beg leave to stand excused from being the proposer.13 12 13

UC cliia. 19. UC cliia. 20.

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88 Michael Quinn It is perhaps partly to buttress the claim of the impotent indigent that Bentham develops his argument concerning public security further. He points out that the indigent possess a legal title to relief of some two hundred years standing. To set aside such a title by the abolition of public relief would be to undermine all title to property. Added to the desperation consequent upon unrelieved physical want would be, in this eventuality, the moral force derived from the denial of well-established, historically entrenched expectations.

In this point of view, and as against, or rather to avoid falling into the track of anarchy, as towards the legislature, the title of the indigent to their subsist­ ence, seems to stand upon as strong ground at least as that of any man of property to his estate—as that of the most opulent to his opulence.14

Given Edmund Burke’s abolitionist views on poor relief, it is ironic to see Bentham arguing for its retention in terms of the long estab­ lished rights of Englishmen. Poynter argues that Bentham was an abolitionist for any system but his own.15 This is incorrect. Given the alternatives of the abolition of relief and the maintenance of the existing provision, extravagant, chaotic and inconsistent between parish and parish though it be, Bentham opts unhesitatingly for the latter: It is better that a larger multitude should be maintained in idleness, though in respect of a considerable part of that multitude the idleness may be attended with discomfort and danger, than that a smaller multitude should partly suffer death by famine, partly be driven to robbery and murder by the approach and apprehension of it.16

Bentham was by no means alone in viewing the public relief of indigence as a bulwark against revolution. Magistrates across the south and east of England were engaged on a variety of expedient measures designed to maintain the quietude of the labouring poor. Pitt himself, in his bill of 1796, incorporated many of these measures. Like so much poor law legislation, the bill sought to provide statutory sanction for existing local initiatives. Politically, despite the com­ plaints of the rate-payers, the abolition of the poor laws was not an option in these years, since the government’s appreciation of the imperatives of public security was at least the equal of Bentham’s. In the face of a real national emergency, political expediency demanded that the indigent must be maintained, at whatever expense; time UC cliia. 23. See the review of C. F. Bahmueller, The National Charity Company: Jeremy Ben­ tham’s Silent Revolution, London, 1981, by J. R. Poynter in The Bentham Newsletter, vi (1982), 35-40. Poynter’s Society and Pauperism, London, 1969, contains by far the best available analysis of Bentham’s thinking on poor relief. 16 UC cliib. 492. 14 15

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Jeremy Bentham on the Relief of Indigence 89 enough to debate the morality and economics of indigence once the war was over. For Bentham however, Pitt’s bill was shot through with extravag­ ance. The indigent should be relieved, but preferably not on conditions so lax that political society was preserved from revolution in the short term, only to be threatened with financial ruin and the generalization of indigence in the long run. To establish the title of the indigent to relief is to establish their title to a flow of resources. Any unconditional entitlement to material resources suspends the operation of the most basic physical sanction, namely hunger. Once that sanction is with­ drawn, the fundamental mechanism for the mobilization of labour and the production of resources, including the means of subsistence, ceases to operate. The unconditional right to relief will indeed, argues Bentham, destroy itself and society with it:

individuals destitute of property would be continually withdrawing themselves from the class of persons maintained by their own labour, to the class of persons maintained by the labour of others; and the sort of idleness which at present is more or less confined to persons of independent fortunes, would thus extend itself, sooner or later, to every individual of the number of those on whose labour, the perpetual reproduction of the perpetually consuming stock of subsistence depends; till at last there would be nobody left, to labour at all for anybody.17

Having established the claim of the indigent for relief, Bentham is now concerned to limit it. He is acutely conscious of making the attempt to reconcile opposing objects. In order to protect both property and public order, the claim of the indigent to relief must be admitted. Yet to undertake to meet that claim unconditionally, the public must promise to distribute resources, which resources only exist because they have been created by labour under the spur of necessity. Uncon­ ditional relief breaks the link between the investment of labour and the consumption of resources, but upon that link depends the very exist­ ence of any usable resource. To restore the link, Bentham imposes conditions on the receipt of relief, namely ‘working, up to the extent of his ability, and in any manner not inconsistent with the regard due to health and life’, and submitting to the determination of government as to the place where that work is to be performed and relief administered.18 The latter condition provides for the ending of ‘out allowances’ and the exclusive reliance on ‘indoor’ relief, that is, relief in, and only in, ‘Houses of Industry’. The enhancement of public security is the object of the provision of relief, the object of its limitation is frugality, which serves the interests 17 UC cliiia. 58. 18 UC cliiia. 60.

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90 Michael Quinn of justice. ‘The two objects, like certain muscles in the human body, are antagonistic to each other and draw opposite ways. Either, exclusively pursued must lead to error; of the dictates of both, duly regulated by each other, perfection would be the result.’19 The conditions of relief are derived in the first instance from the demands of justice. This may seem a distinctly anti-utilitarian source of argument, but an analysis of Bentham’s reasoning may serve both to illustrate the role of justice within Bentham’s utilitarian ethic, and to demonstrate why justice requires the imposition of conditions on relief. Before examining this question in detail, it is important, in attempt­ ing to understand Bentham’s poor law proposals, to emphasize that these proposals are emphatically not designed to operate in a context characterized by the principle of social insurance. Bentham does discuss in the poor law manuscripts the possibility that individuals with sufficiently high earnings be compelled to contribute, from those earnings, sums sufficient to maintain them in old age. If such a policy were established, those whose wages were not sufficient to allow the deduction of such contributions might be relieved in old age without conditions.20 Elsewhere, he does conclude that workers in manufac­ turers should contribute to a ‘stagnation fund’, from which they could draw benefits during periods of unemployment. Moreover, many of the raft of collateral uses envisaged by Bentham for his Industry Houses involve the supply of cheap and secure facilities to the independent poor for deposit of savings, and for loans. If the poor can be encouraged to avoid falling into indigence by aids to prudence, and by the provision of an alternative to the punitive rates of the pawnbroker when it comes to getting through a bad patch, then any and all such aids should be made available to them. The prevention of indigence is indeed to be preferred to its cure. However, his ruling assumption is that, in agriculture especially, most labourers cannot generate sufficient surplus to store away for a rainy day. If the indigent are to be relieved, such relief can only be funded by invading the property of others in the form of the poor rates. As has been shown, property, for Bentham, is the product of current or accumulated labour. It might be suggested that the relief of indigence be funded by taxing the opulent alone, by redistributing, as it were, the social surplus from the idle rich to the idle poor. Bentham’s view is that this option is ruled out by the relative dearth of such abundance. The economic basis of civilization is simply too fragile to allow the safe pursuit of such a policy; its effects would in all probability be to undermine industry. Bentham does not say that such a policy may not 19 20

UC cliia. 225. UC cliib. 534.

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Jeremy Bentham on the Relief of Indigence 91 be made to work, but he remains extremely sceptical regarding the possibility.21 Since accumulated labour cannot bear the burden, ‘as to a part, and that an inseparable one, it is borne by those who have no other fund, for consumption or for contribution, other than the unaccumulated produce of their own daily labour’.22 This conclusion poses real prob­ lems for Bentham. As noted above, the whole fabric of felicity is erected in large degree, on the incentive given to labour by the promise of the enjoyment of its fruits. Justice demands that with regard to ‘two members of the community, equally innocent and equally deserving, not connected by any domestic tie, one shall not be compelled to part with the fruits of his own labour, without absolute necessity, for the benefit of another’.23 Justice for Bentham is not opposed to utility, it is ‘an imaginary personage, feigned for the convenience of discourse, whose dictates are the dictates of utility’.24 There are two elements to the injustice of relieving the indigent at the expense of the labouring poor. In the first place, it is unjust, in the common sense of just, for people to receive relief without obligation while others, in order to feed themselves, are obliged to work. The injustice is compounded if the industrious are obliged not only to work hard enough to feed themselves, but harder still in order that a surplus should be available to enable the idle to be fed. There then would the process of injustice be carrying on at both ends: while on the one hand men are rewarded, if not for not working, at any rate without working, on the other hand, the working hands, if not punished in point of intention, are made to suffer as men suffer who are punished, for the benefit of those who are enabled to reap enjoyment otherwise than through work.25

In the second place, the rights of property are bolstered with the epithet ‘just’, they are given whatever additional strength can be supplied by the substitution of that adjective for the less hallowed ‘expedient’, because upon them, and the expectations to which they give rise, depends the whole existence of any social surplus, the whole liberation of anyone from the grinding effort to secure subsistence, the whole progress of society and all utilities which flow from it. The conflict Bentham seeks self-consciously to resolve is that between the basic utility of the security of property, and the utility, itself ultimately derived from its role in cementing the security of property, of invading that security in order to relieve the indigent. 21 UC cliib. 493. 22 Ibid. 23 UC cliib. 536.

24 An Introduction to the Principles of Morals and Legislation, eds. J. H. Burns and H. L. A. Hart, London, 1970 (Collected Works of Jeremy Bentham), p. 120n. 25 UC cliib. 493.

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92 Michael Quinn Bentham’s solution is to re-establish, as far as possible, the connec­ tion between subsistence and labour with regard to the indigent. Given the choice between subsistence in idleness and subsistence through labour, to expect the generality of mankind to opt for labour is to expect an effect without a cause. Justice is to be satisfied by limiting the content of relief to the level of bare subsistence, and by making that relief conditional on labour, except in cases of total inability to work. The obligation to work in return for relief not only removes one injustice, by making the position of the indigent analogous to that of the independent poor with regard to labour, but eliminates the other in so far as the indigent are required to meet the costs of their own relief. The invasion of the security of property can be reduced, and Bentham assumes, ultimately avoided, by rendering the indigent literally selfmaintaining. Thus is the circle squared: the financial burden of indigence finally devolves upon the indigent themselves. Justice will also be served by the elimination of bogus claims. Bentham does believe that the sort of provisions contained in Pitt’s bill do give incentives to what, in today’s terminology, would be called ‘welfare scroungers’, who would rather be comfortably maintained in their own homes by the labour of others than work. By insisting on labour as a condition of relief, by rendering that relief as limited and basic as remains consonant with good health, and by limiting that relief to those prepared to quit their homes and enter the Industry House, Bentham is indeed seeking to limit the application of his scheme to that section of society which is in real and dire need. In these arguments lie one source of Bentham’s specific plans for the reform of the poor laws. ‘Out allowance’, relief in the home, is rejected because it is incompatible with the requirement to work in return for relief. Entry to the Industry House is required to facilitate efficient employment, and to prevent the imposition of fraudulent claims. Relief must be limited to the basic necessities of life, because any additional elements of luxury would not only exceed the purpose of relieving indigence, that is, of preventing starvation, but would provide incent­ ives to independent labour to opt for dependent status in droves. In the final section of this paper, the connection between the conditions attached by Bentham to the relief of indigence and the moral reformation of those relieved will be addressed. It is certainly the case that Bentham sought to control the lives and to remould the habits of the inmates of the Industry Houses. However, contrary to the interpretation of Bahmueller, this was to be no ‘silent revolution’.26 Explicitly and repeatedly in his manuscripts, Bentham refers to the ‘alliance tripartite between Drunkenness, Indigence and Idleness:

26 C. Bahmueller, The National Charity Company: Jeremy Bentham’s Silent Revolution, London, 1981, pp. 156-69.

Jeremy Bentham

Jeremy Bentham on the Relief of Indigence 93 Indigence may enter and maintain its ground without either: but neither is apt to maintain its ground for any length of time without introducing the other, nor without introducing indigence’.27 This alliance it is the purpose of the Industry House regime to eradicate. As Janet Semple established, there was in addition no need or desire on Bentham’s part to keep this aspect of his plan silent, since the reciprocally causative relationship between idleness, drink, indigence and crime is a standard premise which permeates eighteenth-century debates on both crime and indigence. As Semple put it:

Bentham, like other thinkers of the Enlightenment, subscribed to the theory of David Hartley that the psyche was as material as the body; disease could therefore, have moral causes. In the same way, moral delinquency, crime, and the poverty closely allied to crime, could also be the product of physical causes, idleness, drink, and debauchery. A regime of self-denial, abstinence, and discipline could ‘cure’ the defective mechanism of the human frame and the human mind.28

The inmate of Bentham’s Industry House will be denied access to the poison of alcohol, and in addition he will be rescued from idleness and provided with habits of sober industriousness. Throughout his work, Bentham lays enormous emphasis on the power of habit. The moral programme of the Industry House is quite openly an exercise in re­ habituation. The requirement to labour is not only essential to serve the interest of justice, it is, for Bentham of equal benefit to those who are called upon to work for their relief. T he habit of industry is a source of plenty and happiness. The habit of idleness in one who has property is a cause of uneasiness, and in one has no property of indigence and wretchedness.’29 Bentham’s paupers will be inured to labour; they will be productive. On their exit from the house such habits will enhance their chances of maintaining themselves in inde­ pendence. Further, by acquiring habits of industry, they will automati­ cally be dispensing with habits of idleness, and with the companions of idleness, strong liquor and vice. It is indisputable that, for Bentham, certain elements among the indigent poor are simply not to be trusted to know their own interest. Among his objections to out-allowances is that they are likely to be misused:

Give him sixpence in money he swallows threepence of it in slow poison, and threepence of it in food: give him sixpence in food, he sells fourpence halfpenny of it to buy his threepenny worth of poison: whereby instead of the sixpence you fancy you have secured for him, he has but three halfpence left for food ... the Home-provision system may do tolerably well for the strictly virtuous, for the strictly sober: but what should we say of that Medicine, of which the best UC cliib. 488. J. Semple, Bentham’s Prison: A Study of the Panopticon Penitentiary, Oxford, 1993, p. 153. 29 UC cliia. 232. 27 28

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that could be said was, a man’s stomach might bear it, provided he were in health?30

As Bentham is developing his poor law proposals, the Society for Bettering the Condition of the Poor is distributing ‘frugality recipes’. The notion that the poor can avoid descent into indigence by working hard, cutting their cloth and eschewing the demon drink is again a commonplace of the debate, and is one source of inspiration to Methodism as much as to the Industry House. Bentham’s peculiarity lies in his rejection of moral exhortation and his explicit advocacy of re-education by the manipulation of external circumstances. To the influence of such circumstances in large part, as modified by the guidance of education, a person owes ‘his habitual recreations, his property, his means of livelihood, his connexions in the way of profit and of burthen, and his habits of expense’.31 By imposing sobriety and industry Bentham aspires to re-condition his paupers, to force them, as it were, to be rational and prudent. The most intemperate attacks on Bentham’s poor law proposals have centred on the extension of ‘behavioural conditioning’ to the non-adult section of the Industry House population.32If the indigent of corrupted and vicious habits could be reformed by a regime of unremitting labour and enforced frugality, the inculcation of habits of sobriety and industry into those whose habits are as yet unformed should present no difficulty. Certainly this is Bentham at his most patronizing, and certainly this view of the poor sits uneasily with the assumptions of rationality and self-definition of interests which underlie his later democratic theory. However, in evaluating this aspect of the poor law proposals several things should be borne in mind. In the first place, Bentham developed a whole host of original aids of one sort or another which had the specific intention of assisting the independent poor to maintain their independ­ ence. More than once, Bentham describes the potential population of his Industry Houses as the ‘leavings’ or ‘refuse’ of the nation. Indi­ gence, as he enumerates exhaustively, has many causes, but one of the most important is the double-headed habit of drink and idleness, which can issue not only in indigence but in crime. It is here that the poor law writings connect intimately with the panopticon penitentiary. What is to be done with the morally corrupt among the indigent, who have not acquired the productive habits necessary to feed themselves, and who present a standing threat to the security of their more productive fellows. Bentham’s position is explicit. They should not be left to UC cliib. 487. IPML, p. 66. See Bahmueller, and also G. Himmelfarb, ‘Bentham’s Utopia: The National Charity Company’, Journal of British Studies, x (1970), 99-107. 30 31 32

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Jeremy Bentham on the Relief of Indigence 95 starve, but nor should they simply be supplied with the means of subsistence, since they are not to be trusted to make proper use of such supply, and since even if they did such supply would merely encourage their idleness. In their own interest and in that of their fellows they are to be rehabilitated. For Bentham such people display a clinical patho­ logy, they are in a real sense ‘constitutionally infirm’. To abandon them to the sovereignty of their own reason is immoral. Admittedly it takes rather too much imagination to view the Industry House as a cross between a drying out clinic and a skills training centre, but the elements of both are present. With reference to the treatment of children in the Industry House, two further considerations are relevant. First, the background against which the poor law manuscripts were composed should be taken into account. Perhaps the most distasteful passage to be found in the poor law manuscripts deals with ‘pauper education’. Under the heading ‘Politics and Constitutional Law’, Bentham declares: ‘The grand object of the instruction to be delivered on this head to the class of pupils in question should be the practical one of disposing them to peace and quietness’.33Among the precepts to be inculcated in the pauper child is that ‘The Government such as it is, and whatever it be, is better than any other to the formation of which he can have any chance of contributing’. There follows much more on the necessity to be content with one’s lot and to shun above all, the temptations of political radicalism. All in all, a more thorough going example of political indoctrination in quietude would be hard to find. It must be understood however, that the Bentham of the poor law writings is Bentham at his most scared. Along with most men of ‘ease and comfort’, he is frankly terrified of waking up one morning with his throat cut. Perhaps he exaggerates the plasticity of his raw material, and the extent to which the Industry Houses will be manufactories of loyal, productive citizens to help allay his own fears. Certainly their role as such manufactories could only enhance their appeal to a government as nervous as Bentham himself. In the second place, it is not reasonable to present Bentham’s position in terms of a dichotomy between the formation of habits as a consequence of the manipulation of external circumstance, and the autonomous formation of such habits in the absence of mediation by such circumstances. As Professor Burns has very recently reminded us, this dichotomy is rejected by Bentham; it is for him a form of the anarchical fallacy from which specious natural rights are derived.34 The fact of the matter is that all human beings are born not free but abjectly subject and helpless, and that their mature habits depend 33 34

UC cliiia. 132, 132-3. J. H. Burns, ‘Nature and Natural Authority in Bentham’, Utilitas v (1993), 209-20.

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96 Michael Quinn upon the interaction of their genetic capacities with environmental influences. The alternative, for the indigenous stock of Bentham’s Industry House is not freedom from external influence, but control by whatever influences happen to be at hand during their development. With regard to the offspring of the ‘constitutionally infirm’ profligate or drunkard, it is entirely likely that they, in so far as they survive long enough to acquire any settled habits at all, will acquire the personally disastrous habits of their parents. That formative influence will be exercised is incontrovertible, the relevant question for Bentham re­ lates to influence by whom and with what consequences. In this regard his extensive reflections on pauper education are instructive.

In the ordinary state of things concerning the poor labouring classes, under the eye of the natural parent where there is one, the mental part of the infant frame is left wholly without culture. This is more particularly the case with the male sex. Till the commencement of the age of manly vigour a boy of this class does nothing. Idleness is his first lesson:35

Of course Bentham exaggerates the benevolence of his institutional guardians, and of course there are dangers in exercising such control, as witnessed by the political indoctrination referred to above, just as there are dangers in leaving children in the care of negligent and abusive parents. There is a debate to be had here, but it is not furthered by contrasting ‘control’ with ‘autonomy’. Roberts does indeed over­ state his case in arguing that Bentham is attempting to establish the conditions in which his apprentices may be ‘free to realise their potentials as moral beings’, but it is certainly true that his aim was to inculcate a prudential and frugal rationality, the greatest benefit of which to its recipients, would be the acquisition of habits which will keep them, in adulthood, and their children; out of the workhouse.36

35 36

UC cliiia. 95. W. Roberts, ‘Bentham’s Poor Law Proposals’, The Bentham Newsletter iii (1979), 42.

[17]

Utilitarianism and Feminism

Lea Campos Boralevi

Utilitarianism is not only compatible with feminism: historical feminism was, it is argued here, produced by classical utilitarianism. The relationship between them can be traced along three dimensions. First, utilitarianism was a positivist and empirical philosophy that ignored a question which had inflamed argument for centuries: do women have souls? In doing so it excluded one important intellectual justification for the subjection of women. Second, the principle of utility assumed a fundamental equality in the structure of human psychology. Women as well as men, according to this theory, have interests which should be taken into consideration. Finally, the psychological axioms of utilitarianism provided the intellectual and ideological background of feminism and offered a general view of human nature and social life compatible with the political goals of historical feminism. THE MORAL NEWTONIANS The key concepts and terms employed by utilitarianism are ‘pain’ and ‘pleasure’. These are fundamental units constituting the happiness of individuals and of communities of individuals whose interests must be calculated on the criterion of the greatest happiness of the greatest number. Quantities of individual and general happiness are added and subtracted by means of the felicific calculus, which constitutes the funda­ mental operation of moral arithmetic. These concepts and terms enjoyed wide circulation in eighteenth-century Europe, for a variety of reasons which cannot be considered in detail here. Briefly, utilitarianism exerted what has rightly been called

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‘epistemological appeal’.1In fact, it should be rememberedthat many enlightened thinkers attempted to remedy Descartes’ greatest ‘failure’ and to realize the old dream of transforming the study of ethics into a science. Through their practical applications, the natural sciences had given new power to the human capacity to transform the surrounding world so that it might satisfy human needs. In a time when mankind had just started to explore these new possibilities, without being yet touched by doubts concerning their destination and utilization, the highest goal was (and is still) the assimilation of moral sciences (what we would nowadays call social sciences) to the natural sciences’ model, with special reference to the Newtonian model which had profoundly impressed public opinion of that time. The attempt to do for the moral sciences what Newton had done for the natural sciences was expressed in different contexts by a great numberofphilosophers fromDavid Hartley and Hume, to Adam Smith and even Immanuel Kant It characterised a whole era. From this point of view, the ‘epistemological appeal’ of utilitarianism can be explained, first of all, by the possibility it offered of gathering all the phenomena of the moral world under a single principle—theprinciple ofutility—an enterprise which seemed to provide a direct analogy with Newtonian physics, which reduced all physical phenomena to the single principle of gravitation. Utility became thus the great, unifying ‘scientific’ principle under which all human behaviour could be studied. Second, Newtonian physics had shown that the existence of rational and universal laws governing nature could only be discovered by observation and experiment, and that religious and metaphysical speculation played no part in the description of empirical reality. Most philosophers of the Enlightenment believed that the study of man could become a new kind of natural science, based on empirical experiment and observ­ ation.2The principle of utility thus allowed its users to create a new science of man and of society, starting from sensible experience—that is, from sensations ofpain andpleasure, and from‘matters of fact’which were empirically verifiable, such as

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‘benefit and mischief—rather than grounding ethical and anthropological assertions on hypostasized, abstract principles.3 Third, the newly discovered possibility of measuring pain and pleasure opened the way to the introduction into ethics of quantification which, at that time no less than in our own, was held to be the principal guarantee of its scientific claims. The mathematically based system of ethics was called moral arithmetic, and it claimed to be able to compute the different amounts of pleasure and of happiness experienced by men in differing circumstances. From Francis Hutcheson4to Hartley, from Beccaria and Helvetius to Jeremy Bentham (who coined the term ‘felicific calculus’) these moral Newtonians5 shared the conviction that a mathematical calculus, associated with an ‘experimental method’, relying only on ‘facts’ testified by experience, could be applied to the study of ‘morals’: ‘what counts as human happiness was thought to be...a scientifically establishable domain of facts’.6 This need for quantification also gave birth to one of the most widespread formulations of the principle ofutility—the formula of the greatest happiness of the greatest number1. In comparison with other theories of that time, utilitarianism seemed able not only to guarantee a descriptive approach but also to support a normative principle—a guide to human actions. In other words, utilitarian theories did not only explain why men perform certain acts, it also showed, or at least purported to show, which acts should be performed and which not. By analogy with the natural sciences, which allowed men to enlarge their dominion over Nature in Baconian terms, the new moral sciences should have opened up a new era of social progress: ‘Correspondent to discovery and improvement in the natural world, is reformation in the moral’, Bentham affirms triumphantly in the Preface to his Fragment on Government.8 On these methodological premises, the principle of utility allowed ethics, law and politics to be founded on earthly happiness. It made possible therefore the liberation of law and politics from the ‘moral prejudices’ of natural law, and the liberation of ethics from the domain of religion, with its goal of non-earthly happiness. These arguments provide the link that always binds morals to legislation and administration (politics

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and economics) in all utilitarian doctrines. Utilitarians were not ‘philosophers meditating upon Being and non-Being, but men actively engaged in framing political platforms and carrying on popular agitations’.9Man as a social being is the centre of their attention, because happiness—this kind of happiness—cannot be achieved outside of a mutual dependence of men upon each other, in a constant interdependence of ethics and politics, which wilJLcause them never to dissociate moral meditation from political and social action. Utilitarianism places morals and legislation on the same footing, since both are founded on the principle of utility, and their existence denies any possible superiority to morals or to natural law. Furthermore, natural law is not only denied superiority over positive law, but it is also deprived of its validity from a moral point of view, since it ignores the fundamental units of‘scientific morality’; that is, the ‘physical’ concepts of pleasure and pain. On these grounds Bentham and Godwin, following Hume, could reject any kind of ‘original contract’. For Bentham, indeed, obedience to the sovereign is not founded on the formality of apromise, but on the substantial calculation of ‘benefit and mischief (that is ‘of pleasure and pain’) deriving from obedience and from resistance respect­ ively.10So, whereas each person is engaged in seeking his own happiness, and is the best judge of his own interests, the function of government is to achieve the most general goals, of which individuals alone are not capable, and above all to ensure the greatest happiness of the greatest number, even for those who are not able to pursue their own interests, or for those who do not know them. Law—positive law—is the great instrument of power. The greatest happiness of the greatest number can be achieved only through good—that is, ‘scientific’—legislation, based on a scientific knowledge of man and society, and directed towards the attainment ofthe greatest happiness. Already forHelvetius, the legislator is a pedagogue, a moralist, as morals and legislation are ‘une seule et meme science’.11 Thus, having rejected all psychological theories based on nativism, Helvetius, Bentham and most of the other utilitarians believed in a social conditioning that could be accomplished througheducation(for children) and legislation (for adults). The true legislator in fact

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must not only limit himself to codifying already existing habits, his main task is to show the way to be followed in accordance with the principle of utility. For this reason the reform of legislation was of the greatest importance in all the utilitarians’ eyes. And for this reason Bentham spent most of his life writing new codes and defining the principles on which all future codes should be reformed. For this reason, finally, the philosophical radicals fought their greatest battles for the reform of existing legislation. UTILITY AND EQUALITY The new image of man presented by classical utilitarians, and the reforms of society they proposed, concerned women directly. The principle of utility, used as a fundamental means of explaining human behaviour, had to be applied to the whole of mankind. According to Newtonian physics, the validity of a principle was directly connected with its generality. Just as the principle of gravitation was applicable, and was to be applied, to all physical bodies, so the principle of utility had to be applied to all human beings, including women, children and slaves. Women constitute ‘One Half the Human Race’12 and could not be excluded without seriously jeopardizing the validity of such a principle. Since women could experience ‘pain and pleasure’, there was no reason to doubt that they could also ‘maximize pleasure and minimize pain’. As a point of departure at least, therefore, utilitarianism is egalitarian in so far as it postulates a fundamental equality of psychological structure in all human beings.13 Women could not only experience pains and pleasures, they also had ‘interests’ which had to be taken into consideration. Whether women had souls or not, or whether they were less intelligent or less rational than men was not relevant, at least as far as the consideration of their interest was concerned. Jeremy Bentham, trying to extend his system of ‘universal benevolence’, went even further, and claimed that: The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the

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caprice of a tormentor. It may come one day to be recognized, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate.. .the question is not, Can they reason? nor, Can they talk! but, Can they suffer!1*

Suffering and happiness, or pain and pleasure, are the only ‘objective’ data on which moral sciences—including ‘morals’ and ‘legislation’—could be founded. If these fundamental, ‘objective’ units of data served even the cause of animals for Bentham, this was all the more evident with women, who incontestably belonged to mankind. If there were good reasons for protecting animals from wanton maltreatment, there were a hundredmore reasons for askingfor a change in the condition of women, which was, in J. S. Mill’s famous words, a state of subjection, due to the ‘tyranny’ of the male sex over the ‘softer sex’.15The adoption ofthe principle of the greatest happiness of the greatest number thus also entailed the calculation of the happiness of that halfof the population which is female. Such a calculation necessarily implied that a woman’s happiness was held to count as much as and not less than the happiness of any man in a given society.16 The way in which women’s happiness was thought to be obtained differed slightly from one utilitarian thinker to the other, but utilitarians were all fundamentally and positively concerned with the happiness of women. This concern was not only different from Ancient Greek and Roman thinkers, in whose societies autonomous legal personality was given to the pater familias, a man with his family, including children, women, slaves and servants. It was also different frommodem philosophers, such as Locke and Rousseau, who tried to give an autonomous personality to single individuals excludingwomen, or better, including women’s interests in those of the men to whomthey were closely related—fathers, brothers, or husbands. Inthis light, the famous formula ‘everyone to count for one, and no more than one’ can be read as the manifesto of utilitarian feminism: everyone—each man and each woman—has his/her own interests, which are not necessarily compatible with those of others, and therefore have to be taken into consideration as single units of the general happiness of any society. Utilitar-

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ianism brings women ‘to count for one’—not as fractions of one. For this reason Bentham—whom I consider to be the father of historical feminism—always spoke out clearly in favour of the autonomy that was to be guaranteed to women’s legal personality, and against all existing laws which denied it the statute book of the Pays de Vaud, in which ‘the testimony of two women orgirls shall be equal andneithermore norless than equal to that of a man’17 is certainly archaic, but it was in principle no worse than the existing English legislation, which excluded the evidence of a wife against her husband (and vice versa) before a tribunal court. The ‘implacable dissension’ and the disruption of ‘the peace of families’ were simple pretexts offered by legislators: ‘The reason that presents itself as more likely to have been the original one, is the grimgribber, nonsensical reason—that of the identity of two persons thus connected’.18 For this reason only could such a law be conceived, by analogy with that which excluded the testimony of a party to the cause, for or against himself. Besides its implications for legal procedure, the conception of woman’s autonomous legal personality had two main consequences: divorce and the vote. Divorce and women’s enfranchisement belong respectively in the private and public spheres, and are founded on the presupposition that women have their own interests, which can be incompatible with men’s. Divorce and the vote recognize and protect the interests of women outside and independent of their relationship with men. The social reforms which were proposed by the utilitarian thinkers therefore entailed fundamental changes in the cond­ itions of women. Legislation had to be reformed in the name of utility and of the greatest happiness of the greatest number, including women in that number: legislation therefore had to be reformed towards a more favourable consideration of women’s interests. To use Bentham’s words, the ‘reformation of the moral world’ had tb bring about an improvement in women’s conditions. From a more general point of view, the emancip­ ation of women from their slavery would have eliminated a cause of suffering and a hindrance to the enjoyment of

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happiness for halfthe human race, thus augmenting the general amount of happiness in society. John Stuart Mill also used this purely Benthamite argument, illustrating the added happiness deriving to society from the difference between ‘a life of subjection to the will of others, and a life of rational freedom’.19His main point was more ‘Millian’, however, though still in the path of utilitarianism: the emancipation of women would have contributed to the ‘improvement of society’ as a whole, by ‘doubling the mass of mental faculties available for the higher service ofhumanity’,20 by creating the stimulus of female competition and by creating at home ‘a school of sympathy in equality which would have developed in children the true virtue of human beings, fitness to live together as equals’.21 Furthermore, according to utilitarianism, earthly happiness could no longer be given up or postponed in the name of a future, non-earthly happiness. No matter what religion and traditional morals say, women should enjoy the same quantity of earthly happiness as men: On the ground of the greatest happiness principle.. .The happiness and interest of a person of the female sex, constitutes as large a portion of the universal happiness and interest, as does that of a person of the male sex. No reason can be assigned, why a person of the one sex, should as such, have less happiness than a person of the other sex. Nor, therefore, whatsoever be the external means of happiness why a female should have a less portion of those same means.. .If the possession of a share in the constitutive power22 be a means of securing such equal share of the external means of happiness, the reason in favour of it, is therefore at least as strong in the case of the female sex, as in the case of the male.23

In other words women’s enfranchisement does not only provide them with legal and moral autonomous personality but also bestows on them an ‘equal share of the external means of happiness’—political power. By promising or refusing their vote, women can force legislators to show more consideration for their interests. Women’s natural inferiority is only a pretext, ‘a reason alleged’ for justifying the ‘tyranny which has been exerted by the male sex over the female’. Were it not a pretext, but a true cause, women’s natural inferiority would have resulted in

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different legislation, favouring rather than discriminating against the weaker sex:

If there be any difference, it ought to be in favour of the weakest—in favour of the females, who have more wants, fewer means of acquisition, and are less able to make use of the means they have. But the strongest have had all the preference. Why? Because the strongest have made the laws.24

The principle of utility is not only the criterion on which future legislation ought to be built, but is also the criterion for all existing legislation. From Helvetius to Bentham, down to Godwin and J.S. Mill, utilitarians asserted the fundamental importance of social conditioning. Social inequality, Helvetius argued, is not due to natural causes, but to social ones: ‘c’est done uniquement dans la morale qu’on doit chercher la veritable cause de l’inegalite des esprits’.25As far as women are concerned, social conditioning has two direct consequences: first, women’s supposed inferiority is wholly or mostly due to the conditions in which existing legislation keeps women, and to the kind of education which is given to them:

In certain nations, women, whether married or not, have been placed in a state of perpetual wardship: this has been evidently founded on the notion of a decided inferiority in points of intellects on the part of the female sex, analogous to that which is the result of infancy or insanity on the part of the male. This is not the only instance in which tyranny has taken advantage of its own wrong, alleging as a reason for the domination it exercises, an imbecility, which, as far as it has been real, has been produced by the abuse of that very power which it is brought to justify.26

Some sixty years later on, John Stuart Mill asked, ‘But was there ever any domination which didnot appearnatural to those who possessed it?’27Nature has been used simply to legitimize custom: ‘So true is it that unnatural generally means only uncustomary, and that everything which is usual appears natural’.28Social andnatural causes, Mill’s argument continues, are not so easily separable: I deny that any one knows or can know, the nature of the two sexes, as long as they have only been seen in their present relation to one another. If men had ever been found in society without women..., or if there had ever been a society.. .in which the women were not under the control of men, something

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might have been positively known about the mental and moral differences which may be inherent in the nature of each.29

In any case, the undoubted natural differences between the sexes do not justify the oppression of the ‘weaker’. Second, given that ‘the inequality of the sexes results from social and modifiable, not physiological and immutable causes’,30this inequality can be diminished and even eliminated by means of appropriate legislation and education. The sharp distinction between ‘nature’ and ‘society’, and the claim for the autonomy of the latter from the former, which is a common feature of utilitarianism, entail a reconsideration of the relationship between the two sexes that points towards feminism. The differences between the sexes are not natural and everlasting, but social and therefore changeable by a reform of society. As far as truly natural differences are concerned, they must have no influence on social conditions; in any case, they ought to be compensated, and not magnified by society. ‘Nature’ was invoked not only by theories which preceded or were contemporary with the first formulations of utilitarianism in eighteen-century Europe, but also by the Romantic reactions to Enlightenment, and also by positivism, through the pre-eminence of biology. In this respect it is interesting to note that it was Auguste Comte who railed against John Stuart Mill about the ‘natural’ inferiority of women, which Comte argued was demonstrable both ‘anatom­ ically and physiologically’.31The removal of relationships between the two sexes from the realm of ‘nature’ and their introduction into the realm of ‘society’, which has and can be reformed and changed, gives an historical dimension to the whole question. Even Jeremy Bentham, who is generally believed to be the most ahistoric of all utilitarians, places the relationship between men and women in a historic context Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certaiA means of deciding it [the competition between the two sexes] but physical power which indeed is the very means by which family, as well as other competitions, must have been decided long before any such office as that of legislator had existence... As between man and wife... The only reason that

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applies to this case is, the necessity of putting an end to competition... This affords a reason for giving a power to one or other of the parties: but it affords none for giving the power to the one rather than to the other.32

In a civilized society, and even more so in a utilitarian society, the relationship between men and women can no longer be grounded on the criterion of physical superiority characteristic of preceding stages of civilization. Even James Mill, who was undoubtedly the least ‘feminist’ of all the utilitarians—as we shall see below—took ‘the condition of women’ to be ‘one of the most decisive criteria of the stage of society at which [a nation has] arrived’:

In proportion as society...advances into that state of civilization, in which...the qualities of the mind are ranked above the qualities of the body, the condition of the weaker sex is gradually improved, till they associate at last on equal terms with the men, and fill the place of voluntary and useful co­ partners.35

Exactly as women were not by nature subjected to men, so they were not necessarily by nature intellectually inferior. No doubt the emancipation of women passed not only through their enfranchisement but also through their education—equal education, since as Helvetius says: ‘Les femmes, parl’education qu’on leur donne, doivent acquerirplus de frivolite et de graces, que de force etjustesse dans les idees’.34By social conditioning, Benthamargued, even ‘moral biases’can be changed, or at least enhanced because ‘chastity, modesty and delicacy, for instance, are prized more than courage in a woman: courage, more than any of those qualities, in a man’.35 If, therefore, women are so often found on the wrong side, this is due to a lack of education, which perpetuates men’s tyranny over them; ‘the female sex is banished from the dominion of utility’ because ‘for the benefit of the ruling few, as the bodies of some men, so the minds of all women are castrated. Pretended ignorance and insincerity forced on them, by knowledge alone are they disgraced’, with very few exceptions.36 In a softer, more ‘progressive’ way, J.S. Mill illustrates this same conception, using the metaphor of the tree that has been reared with one halfin a vapour bath andthe other in the snow, ‘forced repression in some directions, unnatural

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stimulation in others’.37 University College, still ‘one of the greatest institutions for higher secular learning’, the first English University which was open to all students, without distinction of class, religion or sex, the first university open to women, was founded by Benthamites, philosophic radicals, such as Joseph Hume, Henry Brougham, Francis Place and James Mill himself. Because natural differences, in so far as they really exist, must be compensated, not magnified by society, education becomes not only a means of women’s emancipation but also a rectification of their oppression. If women’s emancipation is partof aprojectfor the general reformof society, compensatory discrimination is part of a pragmatism which takes into account existing situations and tries to cope with them in the short run, tries to alleviate the suffering produced by oppressioa Utilitarianismis egalitarian in so far as it postulates the original equality of psychological structure of those who belong to mankind and in so far as it thus demands equal consideration. But equal consideration does not automatically entail equality of treatment, on the contrary, it might demand compensatory discrimination. 38 Thus Bentham asked for particularly severe punishments for those who have done violence to women,39 special measures to be taken by judges in order to preserve ‘female dignity and modesty’ in tribunal courts, when such cases are debated,40on account of the observation of women’s inferior physical strength and greater psychological sensibility. Again, taking into account the inequality of conditions in existing society, and the double standard afforded by public opinion to sexual behaviour in the two sexes, Bentham, who had written pages of brilliant and stringent polemic in favour of divorce,41 was strongly against legal separation. Separation does ‘not imply the permission to either of the parties to remarry’—which, given actual inequality, would impose ‘restraint upon the weaker sex’, leaving free the stronger. From this point of view, equal consideration for different people, or for people in different conditions, leads to different treatment: to treat the ‘injured wife and her tyrant’ in the same way would only favour the stronger such an ‘apparent equality covers great real inequality’.42

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UTILITARIANISM AND THE LIMITS OF HISTORICAL FEMINISM For all these reasons the ideological background of feminism can be said to have been derived from the fundamental philosophical axioms of utilitarianism. The important point is not that most utilitarians were feminists, nor that men like John Stuart Mill or William Godwin married and loved women like Harriet Taylor or MaryWollstonecraft it was not a question of personal inclination and biography, but a much more deeply rooted conviction which moved these men towards a relationship with this kind of woman. Nor did these women convert their men to feminism: William Godwin had already published his Enquiry Concerning Political Justice ( 1793) before his relationship with MaryWollstonecraft began (she had published her Vindication of the Rights of Women in 1792). John Stuart Mill, who was certainly very much influenced by Bentham’s thought, had already written a strongly polemical article against the ‘male chauvinism’ of the Edinburgh Review as early as 1824, and had enjoyed the friendship of William Thompson, the author of the Appeal, since 1825, five years before he first met Harriet Taylor. It might be objected that, first, not all the utilitarians were in fact feminists, and, second, utilitarianism was not the only political theory which was compatible with or sympathetic towards feminism. As faras the first objection is concerned, the first example which comes to mind is James Mill’s position on women. The polemics which accompanied and followed the publication of his Essay on Government ( 1820 ) are instructive in this respect In this essay Mill advocated universal suffrage, but excluded women on the grounds that ‘all those individuals whose interests are indisputably included in those of other individuals may be struck off with inconvenience’ and that women were included in this category, since ‘the interests of almost all of whom [women] is involved either in that of their fathers or in that of their husbands’.43 The answer from the philosophical radical group, and particularly from the younger members of it, was sharply critical. As JohnStuart Mill recalls in hisAutobiography, these

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younger radicals—among whom he counted himself—reacted to Mill’s Essay pointing out that the interest of women is included in that of men exactly as much and no more, as the interest of subjects is included in that of kings; and that every reason which exists for giving the suffrage to anybody, demands that it should not be withheld from women. This was also the general opinion of the younger proselytes: and it is pleasant to be able to say that Mr Bentham, on this important point, was wholly on our side.44

In truth Bentham expressed his open and clear dissent from James Mill’s exclusionist position, whose object he believed was ‘to place all females under the absolute dominion of all males’.45 As I have shown elsewhere, Bentham consistently spoke in favour of women’s enfranchisement, at least in point of principle, although he tended to play down this issue in his later works, fearing that his opponents’ scorn for women was also extended to the claim for universal male suffrage.46 Such debate was particularly important, since it touched the central issue of the relationship between utilitarianism and feminism, and claimed that consistency between them was not only possible but necessary. The appeal to Benthammeant not only the recognition of Bentham’s authority with respect to James Mill—one of the most outstanding personages of that group—but also the illustration of the possible and necessary alliance of utilitarianism and feminism. This same position was also taken upby William Thompson, who was in touch with the philosophical radicals and Bentham and, later on, with J.S. Mill as well. But Thompson disagreed with the utilitarians on fundamental aspects of the woman question and was, as will be shown below, more under the influence of Robert Owen’s utopian socialist views:

Thus cavalierly are dealt with by this philosopher of humanity, the interests of one half of the human species! Not so Mr Bentham, whose disciple he is: the philosophy of that enlightened and benevolent man, embraces in its grasp every sentient human being, and acknowledges the claim of every rational adult, without distinction of sex or colour, to equal political rights. Is the authority of the disciple above that of the master?47

Thompson attacks Mill’s exclusionist position from an ‘internal’ point of view; that is, testing the consistency of such a position

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against the fundamental axioms of utilitarianism: the result is even more disruptive than that mentioned in J.S. Mill’s Autobiography. In his Appeal of One Half the Human Race,

Women, against the Pretension of the Other Half, Men, to Retain Them in Political, and Thence in Civil and Domestic Slavery, in Reply to a Paragraph of Mr Mill’s Celebrated “Article on Government", Thompson asks whether ‘in point of

fact and necessity’ any identity of interest exists between women and men.48In any case, Mill’s assumption is, first, that ‘the grand governing law of human nature’ says that all human beings are self-interested and, second, that each one is the best judge of his own interests. If—as Mill’s Essay suggests—one halfthe human race is allowed tojudge about the interests ofthe other half, men will judge in their own interest, and not that of women. To obtain a different result, Mill supposedly exempts all men from this grand governing law of human nature; but ‘This exception of one half from the influence of the general rule, is certainly a pretty large exception.. .In any other hands, so large an exception would.. .destroy the rule’.49 Four years later, Thomas Babington Macaulay—who was then the spokesman of the Whigs in British Parliament—used Thompson’s argument on the incompatibility between James Mill’s exclusionist position and utilitarianism, but employed it to demonstrate the opposite conclusion.50 Macaulay started from Mill’s exclusion of women from the franchise—which he found right and reasonable—and used its logical inconsistency with utilitarian postulates to demonstrate that the latter were wrong: Except in a few happy and highly civilized communities, they [women] are strictly in a state of personal slavery.. .Mr Mill is not legislating for England or the United States; but for mankind. Is the interest of a Turk the same with that of the girls who compose his harem?.. .The interest of a respectable Englishman may be said, without any impropriety, to be identical with that of his wife. But why is it so? Because human nature is not what Mr Mill conceives it to be;... because there is a pleasure in being loved and esteemed... That they do not pass such a law, though they have the power to pass it... proves that the desire to possess unlimited power of inflicting pain is not inseparable from Human nature... The identity of interest between the two sexes.. .arises from, the Englishman’s pleasure of being loved, and of communicating happiness.51

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This debate is interesting because it shows that contemporary thinkers—both within and adverse to the utilitarian circlealready faced the question of the theoretical compatibility of utilitarianism and feminism. They concluded that the two were compatible. Historical evidence supports the compatibility of util­ itarianism and feminism, which has been elaborated from a theoretical point of view in the first part of this essay, and lends further weight to the assertion that the historical feminist movement derived its ideological background from classical utilitarianism. This does not mean, however, that all utilitarians were in fact ardent feminists: in the case of James Mill, for example, this conclusion would certainly be unjustified. But, as I have shown elsewhere, even Jeremy Bentham’s feminism was not altogether free of shadows and inconsistencies.53 This does not mean either that only utilitarianism contained feminist elements; these were also present in the political thought of other contemporary social theorists—Owen, Fourier, and Saint-Simon. But historical feminism, the movement which fought for women’s rights, was not the child of those other theories, but of utilitarianism. My point here is that this affinity was not only the fruit of spatio-temporal contiguity, since historical feminism developed in nineteenth-century Great Britain, in the same milieux as that of the philosophical radicals, but had much deeper theoretical roots. An argument in support of this view can also be found in a demonstration e contrario, starting fromthe limits ofutilitarian feminism, or better, fromwhat utilitarian feminism was not Classical utilitarianism believed that the reform of society towards a more favourable consideration of women’s interests—changing women’s conditions, and thus bettering the whole society—was to be carried out through legislation and education. Utilitarians considered the woman question from a legal, historical, social and political, even moral point of view, without ever caring about its economic aspects. Only a few utilitarian thinkers paid attention to the economic dimension of that question, and none of them ever believed that women’s condition in society could be changed only by subverting the economic order of society.54 This was the great ideological

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distance which separated utilitarian feminism fromthe feminist elements present in other political theories of that time. Owen and Fourier, for example, shared with utilitarians the belief that evil—in this case the subjection of women—was not due to nature but to society, and that therefore women’s liberation could be realized by changing society. But their analyses identified the origin of women’s condition in the economic structure of society (not only in legislation, as for utilitarians); that is, in the patriarchal regime of private property. The social change they advocated would have subverted the economic order of society and replaced it by another kind of society based on different principles. Even William Thompson, who had criticized James Mill from an internal, utilitarian point of view, came under other influences, most importantly the work of Robert Owen and of Anne Wheeler, who was in touch with all the socialist feminists of the day. Thus, although he criticizes James Mill from ‘within’, Thompson goes much beyond the scope of classical util­ itarianism in preaching the abolition of property and the creation of communities based on co-operation, and in labelling political economy the ideology of dominating classes.55 Historical feminism, indeed, restricted itself to women’s right to vote and to equal education, without touching the economic structure ofVictorian society. It might be arguedthat this was done only for strategic reasons—so as not to appear too revolutionary. Nevertheless, the limits (or merits) of historical feminism were not ‘strategic’ but the direct ideological consequence of the limits (or merits) of classical utilitarianism. NOTES

1. C. Taylor, ‘The diversity of goods’ Utilitarianism and Beyond, ed A. Sen and B. Williams, (Cambridge, 1982), p. 129. 2. For example, the subtitle of D. Hume’s Treatise on Human Nature (1738) is ‘Being an attempt to introduce the experimental method of reasoning into moral subjects’. Cf. my article ‘Jeremy Bentham e l’utilitarismo come scienze sociale’, II pensiero politico, 12 (1979), 2. 361-71.

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3. ‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.. .On the one hand the chain of causes and effects, are fastened to their throne.. .The Principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law’. By these words, Bentham solemnly initiated his Introduction to the Principles of Morals and Legislation p. 11 heavily referring and almost copying C.A Helvetius, De VEsprit (1158), Disc. 3, CL 9, Oeuvres Completes (Paris 1795) 4. The invention of ‘moral arithmetic’ is generally attributed to F. Hutcheson, in his Enquiry into the Origin of Our Ideas of Beauty and Virtue, 1725; see esp. II Treat, Sect 3, para. 11. 5. This term was first used by Elie Halevy in his standard work on utilitarianism, I, p. 4. 6. Taylor, p. 130. 7. The way in which this formula passed from Hutcheson to Beccaria, down to Bentham has been masterfully reconstructed by R Shackleton, ‘The greatest happiness of the greatest number, the history of Bentham’s phrase’, in Studies on Voltaire and the Eighteenth Century, ed. T. Besterman, XC, 1972, pp. 1462-64; but see now J.R. Dinwiddy, ‘Bentham on private ethics and the principle of utility’. Revue Internationale de Philosophie (1982), pp. 271-309. 8. J. Bentham, Preface to A Fragment on Government (1776), in Complete Works, ed H.L.A. Hart and J.H. Bums, London, 1977, p. 393. 9. L. Stephen, The English Utilitarians (3 vols., New York, 1900) vol. 1, p. 2; cf. W.L. Davidson, The Utilitarians from Bentham to Mill (1915; Oxford, 1944), pp. 10,16-17. 10. Bentham, A Fragment on Government, pp. 444, 484; cf. W. Godwin, Enquiry Concerning Political Justice (1793), ed. by I. Kramnick (London, 1976), pp. 212, 216-17, 234. 11. Helvetius, Disc. 2, Ch. 24; vol. 3, p. 141. 12. It was not by chance that William Thompson entitled his work, Appeal of One Halfthe Human Race, Women, against the Pretension of the Other Half Men, to Retain Them in Political, and Thence in Civil and Domestic Slavery, in Reply to a Paragraph of Mr Mill's Celebrated “Article on Government”’ (London, 1825). 13. E. Griffin-Collart, Egalite et Justice dans VUtilitarisme; Bentham, J.S. Mill, Sidgwick(Brussels, 1974), pp. 31-2,115; cf. also H.L.A. Hart, Essays on Bentham (London, 1982), pp. 97-8. 14. Bentham, An Introduction to the Principles of Morals and Legislation, pp. 282-3. 15. J.S. Mill, On Liberty, Representative Government, and The Subjection of Women (London, 1912); cf. J. Bentham, Ms. in Univ. College, London (hereafter referred to as UC) CLXX, 144: ‘As to the custom which has prevailed so generally to the disadvantage of the softer sex, it has tyranny for its efficient cause, and prejudice for its sole justification.’;compare this Ms. of 1789 with another Ms. of 1817, in which Bentham speaks of the ‘tyranny of

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the stronger sex", UC CLI, 336-7. For the relationship between prejudice on the one side, and oppression and tyranny on the other, see Lea Campos Boralevi, Bentham and the Oppressed, Publications of the European University Institute, (Berlin and New York, 1984), pp. 10, 176-7. 16. D. Lyons, In the Interest of the Governed: A Study in Bentham9s Philosophy of Utility and Law (Oxford, 1973), pp. 27-31. 17. J. Bentham, Treatise on Judicial Evidence (Edinburgh, 1825), p. 210 . 18. Bentham, The Rationale of Judicial Evidence, in Works, ed J. Bowring (11 vols., Edinburgh and London, 1838-43), vol. 8, p. 485 (hereafter referred to as ‘Works'). 19. J. S. Mill, The Subjection of Women (Oxford University Press, 1975) p. 542; for an analysis, see S. Moller Okin, Women in Western Political Thought (Princeton, 1979), Ch. IV. 20. J.S. Mill The Subjection of Women p. 525. 21. Ibid., p. 479. 22. By ‘constitutive power’ Bentham means the power to elect; that is, the right to active vote. 23. Bentham, Constitutional Code, in Works, vol. 9, p. 108. 24. Bentham, Principles of the Civil Code, in Works, vol. 1 , p. 335; in the chapter devoted to ‘Women’ of the book Bentham and the Oppressed, pp. 5-36,1 have used the comparison between this paragraph and another (taken from Constitutional Code, p. 108) in order to show the continuity of thought and of Bentham’s attitude towards women over fifty or more years. Compare also the following: ‘Add to which, in point of motives, that legislators seem all to have been of the male sex, down to the days of Catherine’, in Introduction, p. 238, and cf. n. 17. 25. Heivetius, Disc. 3, Ch. 27; vol. 2, p. 220. 26. Bentham, Introduction, p. 245. The other instance to which Bentham refers is that of slaves and of Negroes; for the relationships between these different oppressed groups, see Boralevi, Bentham and the Oppressed, pp. 6, 9-10, 144, 180. 27. J.S. Mill, The Subjection of Women, p. 440. 28. Ibid., p. 441. The Conception of this ‘nature’ as far as women are concerned changes in different countries and times: in the Orient they are ‘by nature’ voluptuous, in England, ‘by nature’ cold; but compare the remarkable resemblance between Mill’s and Bentham’s arguments in J. Bentham, UC, LXXIX, ‘Offences’, pp. 479, 480: ‘The truth is that by the epithet unnatural.. .the only matters of which it affords any indication.. .is the existence of a sentiment of disapprobation, accompanied with passion’. 29. Ibid., p. 45L 30. Heivetius, Disc. 2, Ch. 20; vol. I, p. 359. 31. A. Comte, Lettres d*Auguste Comte a J.S. Mill (1841-46), Paris, 1877, p. 175, quoted in Okin, pp. 216-21. 32. Bentham, Introduction, pp. 237-8. 33. James Mill, The History of British India (London, 1817), vol 1, pp. 293-4. T. Ball, in his article on ‘Utilitarianism, feminism, and the franchise: James Mill and his critics’, History of Political Thought 1 (1980), 1: 94-5,

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108-9, shows the direct influence of James Mill’s History, at least on this point, on his son, John Stuart Mill, who repeated this same concept in The Subjection of Women, p. 38. 34. Helvetius, vol. 1, p. 359. 35. Bentham, Introduction, p. 64. 36. J. Bentham, A Table of the Springs of Action, (together with Deontology and The Article on Utilitarianism), in Complete Works, ed. A. Goldworth, (Oxford, 1983), ‘Marginals’, p. 54. 37. J.S. Mill, The Subjection of Women, p. 451. For the strong influence of Bentham on him, cf. with Bentham’s passage from the Introduction the following: ‘It is considered meritorious in a man to be independent.. .In a woman, helplessness.. .is the most admired of attributes. A man is despised, if he be not courageous. In a woman, it is esteemed amiable to be a coward5. Westminster Review 1 (April, 1824), 526. 38. From this point of view, Bentham was always strongly opposed to the Declaration des droits de Vhomme, which4stopped’ at formal equality; cf. his Anarchical Fallacies, in Works, vol. 2, pp. 499-502. 39. Bentham, Specimen of a Penal Code, in Works, vol. 1, p. 164-7. 40. Bentham, Principles of Judicial Procedure, Works, vol. 2, p. 114. 41. Bentham, Principles of the Civil Code, vol. 1, p. 353. For Mill’s position and its relation with Harriet Taylor’s ideas, see Okin, pp. 226-9. 42. Bentham Principles of the Civil Code, vol. 1, p. 353. 43. James Mill, Essay on Government (Edinburgh, 1820), ed. C.V. Shields (Indianapolis, 1977), pp. 73-4. 44. J.S. Mill, Autobiography (London, 1940), pp 87-8. 45. J. Bentham, UC, XXXIV, 302-3, published in Bentham's Political Thought, ed. Bhiku Parekh (London, 1973), App.B, pp. 311-12; it is worth noting that the date of this manuscript (April 1824) is the same as that of the cited article by J.S. Mill in the Westminster Review (see n. 39). 46. Boralevi, Bentham and the Oppressed, pp. 15-19. 47. Thompson, Appeal, pp. 9-10. 48. Ibid, p. 25. 49. Ibid, p. 7. 50. T.B. Macaulay, ‘Mill on government’, in Works (London, 1848), vol 7, p. 354 ff; see T. Ball’s article, pp. 112-14. 51. Macaulay, ‘Mill on government’, pp. 354-55. 52. This is, however, T., Ball’s argument in his cited article. For an exchange of views between Ball and the Author, see The Bentham Newsletter (1980), 4: 25-48. 53. Boralevi, Bentham on the Oppressed, pp. 5-36. 54. On the contrary, they were eager to show that women’s enfran­ chisement would not have attacked the principle of private property and that it would not have been dangerous for the order of society. 55. W. Thompson, pp. 10-12.

[ 18] "Not Paul but Jesus" Louis Crompton

In England, the defeat of Napoleon marked the end of a period of extreme reaction in politics and prepared the way for a new era of reform. One of the earliest of these re­ forms was of significance to homosexuals: the abolition of the pillory. On April 6, 1815, two months before the battle of Waterloo, Michael Angelo Taylor had introduced a bill into the Commons to this effect. Decrying the pillory as "the remnant of a barbarous age and the cruel punishment of Star Chamber authority," Taylor pointed out that it was unpredictable in its consequences: some men condemned to exposure might be applauded and acclaimed by the mob, men accused of less popular crimes might be killed.1 Taylor deliberately omitted any mention of its common use in homosexual cases on first introducing the measure. But the Earl of Lauderdale, who led the effort for abolition in the Lords three months later, grasped the nettle firmly. After telling of occasions that led to chastisements more lenient than the law intended, he continued: In other cases it was more severe; for instance, w hen the pun­ ishm ent of the pillory was inflicted for offences which had a tendency to exasperate the feelings of the populace, such as the attempting to commit an unnatural and horrible crime. Neither the law nor the judge intended that this crime, abom­ inable as it was, should be punished with death, and yet such was frequently the result. The death, too, which such crimi­ nals met with was more severe than the punishm ent of death w hen inflicted in the ordinary way. He himself had witnessed 1.

354-56.

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an instance of this in 17 8 0 . A person was pilloried in South­ wark for an unnatural crime, and the criminal was so treated by the mob that he actually died the moment he was taken from the m achine .2

The measure was held back by delaying tactics in the Lords. When Taylor reintroduced it in the lower house a year later (February 22,1816), he candidly admitted that it would end a punishment often used for homosexuals. His argument was the familiar one that such exhibitions tended rather "to increase the vice it was meant to suppress."3 Taylor's speech provoked the impassioned plea by Sir Robert Heron that ostracism now be even more strictly enforced among the upper classes, to which Taylor made the curious re­ sponse that "he was sure he could satisfy the hon. baronet in private, that there was but little hope of reform to be ex­ pected from persons addicted to this atrocious offence, un­ der any circumstances of punishment, however severe."4 The end of the war and the more promising climate for change had another effect. It prompted Jeremy Bentham, after thirty years, to turn once more to the topic of homo­ sexual law reform. On April 18, 1814, just six days after Napoleon's first abdication, and again on July 27, 1816, three months to the day following Byron's departure from England, Bentham resumed writing on the subject, on the first occasion for a period of three weeks, on the second, for six. At this time he was a tenant at Ford Abbey in Dev­ onshire, where for most of the year his devoted disciple James Mill joined him to work on his own History of India, taking with him his numerous brood, including the pre­ cocious John Stuart. All in all, during these two sessions of writing Bentham turned out almost two hundred folio pages of new notes, which he, or some secretary acting for him, collated by intermingling into one manuscript. 2. 3. 4.

July 5, 1815, ibid., vol. 31, col 1123. Ibid., vol. 32, col. 804. Ibid., col. 805.

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The prospects for reform in other areas of the criminal law were slowly brightening and would become markedly auspicious during the last years of the Regency. But the chance for a change in England's sodomy statute did not look good in 1814. Since 1785, when Bentham had written his ambitious essay, the situation of homosexuals in En­ gland had, if anything, worsened. The rate of hangings had actually increased, the pillory had been much in use, and public opinion seemed as obdurately hostile as ever. Worst of all, the taboo against any mention of homosex­ uality, except in the form of stereotyped expressions of horror following arrests or convictions, still held. Only when the subject "is dragged into notice by the hand of the law," as Bentham put it, could it be mentioned at all. Other­ wise, Bentham wrote: "Decency, according to the prevail­ ing notions generally attached to this word, will in general keep it excluded out of the field of conversation."5Bentham then gives an interesting survey of national opinion. Preju­ dice in England, he conjectures, surpasses anything on the Continent. "In Scotland the degree of general exasperation may be stated as standing at much the same pitch as in En­ gland. In Ireland as rising if possible still higher and so in the Anglo-American states."6If disapprobation reached its zenith in English-speaking lands, "Italy may be stated as the country in which the degree of exasperation produced, if any, stands at the opposite point of the scale. In Italy, or some parts at least of that country, for a demand of this nature a supply may, or at least not long ago might, be ob­ tained from the one sex with little less facility than from 5. "Code Penal/' July 1816, box 74a, folio 71. 6. July 28, 1816, box 74a, folio 73. I do not know of any evidence on which to compare Irish attitudes with English. Louis Simond had noted the Scottish judges7 disapproval of English pilloryings ( 1810 1811 2nd ed. [Edinburgh: Constable, 1817], 1:494). Despite Bentham's remark, no execution in America later than 1780 has as yet come to light; English homophobia seems at all times to have exceeded the American level, high though that has been.

and Residence in Great Britain During the Years

and

Journal of a Tour ,

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the other/'7 (Bentham had stopped in Italy in 1785 on the way to visit his brother in Russia and may have observed the relative openness of homosexual prostitution and solici­ tation there at that time.) In France, public feeling was in­ different, and the laws had long gone unenforced. As for Germany and Holland, Bentham, perhaps somewhat naively, ascribes their relative lack of prejudice to the fre­ quency with which they had had homosexual rulers. The tastes of Frederick the Great of Prussia and of "a Landgrave of Hesse and other sovereigns" he thinks account for the relatively tolerant attitude toward homosexuality in Ger­ many, while in Holland, "the example however studiously concealed of the King which that country gave to England [William III], added to the recent example of a not very long since departed Prince"—presumably Stadtholder William V, who had died in 1806—had, he thought, pro­ duced similar lenience.8 Bentham pointed out that English feeling against sexual nonconformity was far more intense than against noncon­ formity in religion. Though English law excluded nonAnglicans from public office, no one still believed heretics should be put to death or hoped to gain public applause by expressing such a view. With respect to same-sex relations, the matter was different: "Of those in whose eyes, to judge at any rate from their discourse, the utter destruction of a person of the sort in question would be considered as a public good, every idea entertained of mercy a public in­ jury, the number it is believed would upon enquiry be found not inconsiderable."9 Englishmen had traditionally deplored the intolerance that had lit the fires of the Inquisi­ tion but felt no such compunction when they sent men to the gallows for relations with their own sex: 7. 8. whom 9.

July 28, 1816, box 74a, folio 73. Ibid. I have not been able to identify the Landgrave of Hesse to Bentham refers here. August 1816, box 74a, folio 186.

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The Spanish auto da fe in which, under the name of heretics, for a suppofsed] differing on the subject of religion from the opinion generally professed, men used to be burnt alive, is to every Englishman an object of abhorrence, and though such not many centuries ago was the law in his own country, under laws for such a crime it could never enter into any human heart to exercise any such cruelty. Yet on a subject of infinitely less importance, for a difference not in opinion but merely in taste, with no other difference than that between burning and hanging, will the same man, with indefensible satisfaction be­ hold the same punishment inflicted on his fellow man and fel­ low countryman in every other respect void of offense. For heresy in religion, no; but for heresy in taste nothing can be more reasonable .10

Bentham then tells the anecdote of the exultant judge who so shocked him. In the face of this intensity of feeling, social reformers might well shrink from voicing opinions at odds with the majority. Bentham still felt the trepidation he had experi­ enced a generation earlier at the thought of speaking out. In July 1816, on taking up his pen again for his second spate of writing, he once more expressed his fears: In the present has been found one of those unhappy occa­ sions— in which, in his endeavours to render service to his fel­ low creatures, a man must expose himself to their reproach; and assuredly, of all the occasions which it is possible for re­ flection or imagination to embrace, not one can be found, in which, whether it be considered in respect of intensity or of extent, the displeasure to which it is necessary he should ex­ pose himself is equally great and appalling. . . . Never . . . did work appear . . . from which at the hand of public opinion a man found so much to fear, so little to hope .11

Under the circumstances it is perhaps not surprising that Bentham did not dare to make his views public. What is remarkable, however, is the mental energy he brought to the subject and the time he devoted to developing his 10. 11.

August 1816, box 74a, folio 187. Box 74a, folio 38.

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ideas—within the next five years he was to fill almost five hundred pages with opinions and arguments. More strik­ ing still is the way in which his thinking moved ahead from his essay of 1785. While his countrymen became, if any­ thing, more conservative, Bentham's position became more and more radical. Where he had been content to support reform in 1785 with the argument that male homosexuality was no real threat to society, by 1816 he was arguing that homosexuality had positively beneficial effects. He had in one bound overleaped the position of such cautious re­ formers as the late nineteenth century produced (men like John Addington Symonds, Havelock Ellis, and Edward Carpenter) and anticipated the "Gay is good" stand of liberationists in the 1970s. Using arguments that were strictly in accordance with the utilitarian "greatest happiness" principle, Bentham found himself more than a century and a half in advance of his age. He was also moved to embark, as we have seen, on a new and more extensive analysis of the roots of homo­ phobia. In hope or fear, he argued, men attempted to pro­ pitiate God, not only through the sacrifice of material goods, but by giving up pleasures and especially the most exquisite of pleasures—those of the sexual appetite. So as­ ceticism became an inescapable adjunct of religion. To un­ derstand the willingness with which men have made the homosexual a scapegoat, we have only to add antipathy to this cult of sacrifice connected with sexuality. This antipa­ thy begins as antipathy for the physical act (presumably, anal intercourse) and develops into moral antipathy for the agent. "Of this morality a congenial sort of logic is the fruit: this man does what I should not like to do; therefore he deserves hatred and punishment at my hands. The more vehemently I should dislike to do what he does, the greater the punishment he deserves."12 The cult of self-sacrifice joins with hatred to produce a new kind of propitiation: 12.

August 3, 1816, box 74a, folio 80.

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This is a species of sacrifice in the making of which an incom­ parably better bargain is made with the Almighty than by any other: in the ordinary case, the pleasure sacrificed is a man's ow n pleasure: in this case it is another man's pleasure. Giving meat of one's own to be roasted for a dinner to God and Priest would cost money: taking a man and roasting him costs nothing: and moreover it makes a spectacle. On these consid­ erations about the middle of the last century a French Abbe, the Abbe Des Fontaines, was roasted alive at Paris.13

Such asceticism necessarily implied either a vindictive deity to be appeased or a capricious one to be bribed. To Bentham the hedonist, a man (or God) who desired an­ other man's pain—or what was the same thing in the hedonistic calculus, deprived him arbitrarily of pleasure— is "in so far a malevolent being/'14 Aware that traditional religionists have always proclaimed the loving kindness of their deity, Bentham expects them to balk at this epithet: But in language there is not any imaginable inconsistency of which fear is not wont to be productive. Upon earth, the most cruel and unrelenting of tyrants have been, as it is altogether natural they should be, those on whom the verbal expressions of love have been with most profusion lavished. In whatsoever situation he be placed^ in the language employed to or in the hearing of the possessor of power regarded as absolute, the same cause will of course be productive of the same effect: the more intensely his malevolence is feared, the more loudly his benevolence will be proclaimed :15

But if religious persons think it is pleasing to God to abstain from certain pleasures, an inevitable difficulty pre­ sents itself. Sexual pleasure cannot be entirely foregone without endangering the existence of the race. Yet if mar13. Ibid. Bentham has apparently confused two episodes here. On May 25, 1726, Benjamin Deschauffours was burned alive in the Place de Greve for acts of sodomy; see D. A. Coward, "Attitudes to Homosexuality in Eighteenth-century France," Journal of European Studies 10 (1980) 1237. The Abbe Desfontaines had been threatened with the same fate in 1725 but was saved by the intercession of Voltaire. 14. April 22, 1814, box 74a, folio 107. 15. Ibid.

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ital sex is grudgingly permitted for the sake of progeny, no such tolerance extends to any nonprocreative act. "This impure and inexcusable pleasure remains a just object of the unbridled and insatiable vengeance of a being in whose composition an infinity of power has for its accom­ paniment a [supposed] infinity of benevolence/'16Presum­ ably Bentham has in mind the conclusions derived by the fathers of the church and jurists like Blackstone from the Sodom story. But why should religious fanatics not simply deplore such acts and abstain from them? Why should they persecute the agents in such lively fashion to the point of desiring their deaths? Only if the homosexual is conceived as the special enemy of God does such persecu­ tion become intelligible: For recommending one's self to any person's favor, no method more effectual can be found than the determination to take and consequent habit of taking for one's enemies all the per­ son's enemies. When the person whose enem ies are to be dealt with as our own is no more than a human being such as our­ selves, charity may interpose, and to the disposition by which w e are led thus to deal with them, apply a sort of bridle: but w hen the person is the Almighty himself, no such bridle is necessary or so much as proper or admissible. He being in­ finite, such ought to be our love, such consequently our hatred for his enem ies, such consequently the determination and effi­ ciency in the acts in and by which that hatred is avowed, mani­ fested, gratified and demonstrated .17

Bentham's account of the way in which piety worked up homophobia to a fever pitch may sound speculative and exaggerated. There is, however, historical evidence to sup­ port his view. In the Middle Ages, a tradition, ascribed to St. Jerome, held that all homosexuals had been struck dead at the moment of Christ's birth. Thirteenth-century English treatises on jurisprudence, such as Fleta, held that ho­ mosexuality was a kind of lese majesty, or high treason, 16. 17.

April 22, 1814, box 74a, folio 109. April 22, 1814, box 74a, folio 1x0.

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against God. Thomas Aquinas formalized this position in moral theology when he held that sins “against nature" were a direct affront to God himself as the creator of nature and hence worse than such acts as rape and adultery, which immediately affected only other human beings.18 In the course of human history, Bentham observes, con­ trariety of tastes and opinions has frequently led to ani­ mosity. If men inspired by ill-will have refrained from ven­ geance, it has not been for lack of appetite but because the law has restrained them. But sometimes religion itself has given a sanction to such animosities. Among the ancient Greeks, for instance, homosexual acts were not in general punishable. It was among the Jews and in the days of M oses that religion, as it should seem , for the first time attached itself to this ground and took it for the theater of its rigours. In the breast of M oses the sentiment of antipathy found an object and an excit­ ing cause in every sort of irregularity belonging to this class. Religion was at his command. Religion in [proscribing] every caprice to which the frolick brain had ever given birth found a ready instrument and that an irresistible one. In English the word impurity, in most other languages some other word or words that correspond to it, has been applied alike to objects offensive to sense and offensive to imagination. In the hand of tyranny, at the nod of caprice, physical impurities were con­ verted into moral ones. Under Moses, as under Bramah, the list of impurities thus created sometimes out of physical im­ purities, sometimes out of nothing, was a labyrinth without an en d .19

Bentham was struck, however, by the fact that the founder of Christianity, living as he did in a milieu in which the Jewish code clashed so dramatically with the dominant and all-encompassing Greco-Roman culture, should have shown no symptom of this tribal phobia: O h this whole field in which Moses legislates with such diver­ sified m inuteness and such impassioned asperity, Jesus is alto18. 19.

Summa Theologica, Pt. II—II, Qu. 154, Art. 12. April 20, 1814, box 74a, folio 103.

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gether silent,— Jesus from whose lips not a syllable favourable to ascetic self-denial is by any of his biographers presented as having ever issued, Jesus who among his disciples had one to whom he imparted his authority, and another on whose bosom his head reclined and for whom he avowed his love,— Jesus, who in the stripling clad in loose attire found a still faithful adherent after the rest of them had fled,— Jesus, in whom the wom an taken in adultery found a successful advo­ cate, Jesus has on the whole field of sexual irregularity pre­ served an uninterrupted silence .20

But the religion of Paul was another matter. Paul found it difficult to tolerate even that sexuality "necessary to the ex­ istence of the species"; toward the "irregular form" he was "an implacably condemning Judge."21Given these views, it is not surprising that Bentham should have contemplated writing a book to be called "Not Paul but Jesus," contrast­ ing the two men's views on asceticism and sex. But he does not pursue the idea any further in 1814. Though they were soon to change under the influence of evangelical reformism, English manners during the Re­ gency were probably the most libertine since the Restora­ tion. The aristocracy still held to the code of the ancien re­ gime, which set no premium on marital fidelity. The Regent himself and his brother dukes balked at domesticity and kept mistresses, who were many and expensive. Lord Nelson had lived with Lady Hamilton; the victor of Water­ loo and future Tory prime minister found a large number of fashionable boudoirs open to him. Many leading host­ esses had figured in divorce scandals, reared broods of miscellaneous paternity, or floated upward from shady ori­ gins. At the other end of the social scale prostitution was extremely widespread and blatant in London. Well might William Blake declare: The Harlots cry from Street to Street Shall weave Old Englands winding Sheet .22

20. April 20, 1814, box 74a, folio 104. 21. Ibid. 22. Complete Poetry and Prose of William Blake, ed. David V. Erdman, rev. ed. (Berkeley: University of California Press, 1982), p. 492.

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Brutally deprived and victimized themselves, they were not above shouting "sodomite" at an indifferent male or joining in a pillorying. It was perhaps not paradoxical that this age was also the most homophobic in English history. By seizing on the ho­ mosexual issue, the press could, at least in one respect, maintain the cherished national image of a land better than too-tolerant France or decadent Italy. Only one fear must have haunted editors: the concern that someone of their own party would figure in the next sensational scandal. Being the party of prestige and power, the Tories were also the most vulnerable, and, indeed, within little more than a decade they were to be exquisitely embarrassed by scan­ dals, real or imputed, involving a royal duke, a member of the House of Bishops, a lieutenant-governor of Jamaica who was also a Knight Commander of the Bath and a gen­ eral in the army, and a foreign minister who ranked as one of the architects of the post-Napoleonic world. In the meantime, the age in which cruel sports were for the first time coming to be regarded as disreputable on human­ itarian grounds still exposed homosexuals to public wrath. Bentham saw in this practice an example of what sociol­ ogists today call scapegoating—and a licence for public brutality. Something more than indignation, a kind of bit­ ter rage seems to have gripped him in commenting on this: A m ong them [i.e., the most ardent denouncers of homosex­ uality] will naturally be found in an indefinite degree of abun­ dance the most vitious and profligate of mankind: the more incapable of paying for the praise of virtue in the form of selfdenial the fair price, the more eager a man will naturally be to obtain it gratis in so far as it is to be had upon such terms. Pur­ chasing it at the fair price he would have to keep in a state of subjection every inordinate appetite, every self-regarding and every dissocial affection: obtaining it at no higher price than that of adding his contribution to the torrent of unprovoked invective, he will not have to im pose any restraint upon any self-regarding or any dissocial affection. On the contrary to his dissocial appetite he will without the least personal inconve­ nience afford a feast of gratification not to be derived from any other source. He will obtain for himself the same sort of enjoy-

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ment that an ill-taught boy gives himself by tail-piping a dog, or an ill-taught man by bull-baiting, or an English judge by condemning a man to the pillory for an offense which affords a hope of his having a jaw broken or an eye beat out by the sur­ rounding populace .23

The style of Bentham's Regency notes contrasts strik­ ingly with what he had written thirty or forty years earlier. Then he echoed the phraseology of popular rhetoric. Now he shows a keen awareness of how such terminology prejudiced moral judgments. Discussing the way descrip­ tive words like pure and impure had come to take on ethical meaning, Bentham warns: "It is by the power of names, of signs originally arbitrary and insignificant, that the course of imagination has in great measure been guided/724 In a disquisition on the use of the word unnatural in legal dis­ course, he admits that an epithet which promises to cast on the adversary to whom it is applied a torrent of public odium and to produce in all breasts that are not already on his side a disposition to join in whatever measures may be taken for causing him to suffer for everything by which his adverseness has been indicated, is a weapon so comm odious that it is only by such a regard for jus­ tice as has seldom indeed, if ever, been exemplified, that a man can be restrained from taking it up and using it .25

With a growing awareness of the adage "give a dog an ill name and hang him /' Bentham now meticulously avoids such locutions. He emphatically rejects the use of the ad­ jective unnatural in relation to homosexual relations as senseless:

The truth is that [when] the epithet unnatural [is] applied to any human act or thought by man, the only matter of which it affords any indication that can be depended upon is the exis-

23. April 24, 1814, box 74a, folio 117. 24. April 25, 1814, box 74a, folio 175. 25. April 1814, box 74a, folio 93. Bentham discusses the use of the word unnatural in relation to several crimes besides sexual ones, e.g., infanticide and rebellion.

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tence of a sentiment of disapprobation accompanied with pas­ sion in the breast of the person by whom it is employed: a de­ gree of dissocial passion by which without staying to inquire . . . whether the practice . . . be or be not noxious to society, he endeavours by the use thus made of this inflammatory word to kindle towards the object of this ill-will the same dis­ social passion in other breasts for the purpose of inducing them to join with him in producing pain .26

In these notes Bentham works conscientiously at the task medical men, psychologists, and law reformers in Germany and France were to set themselves during the later decades of the century—the development of a neu­ tral, scientific vocabulary to replace the old abusive terms. The term Uranianism came into use in Germany in 1862, contrary sexual feeling and homosexuality in 1869; in France and Italy, the expression sexual inversion appeared in scien­ tific writings in the 1880s, and Havelock Ellis popularized it in England. Bentham begins this reform in his Regency manuscripts. He distinguishes //irregular,/ from what he calls "regular" modes of sexual intercourse, making it clear that by these expressions he is not rendering judgment but merely differentiating sexual acts conformable to "public opinion" from those which were not.27Then he coins such expressions as "the improlific appetite," or the "innoxious" mode, to distinguish homosexual from heterosexual rela­ tions that might cause unwanted pregnancies.28In the liter­ ary proposals he made to Beckford in 1817, homosexuality 26. April 18, 1814, box 94a, folio 90. Two years later, on September 12, 1816, Bentham added another brief note on this subject: "By the use of words which have no precise meaning beyond an expression of the state of the affections of him by whom they are employed towards the object to which they are applied— words such as dissoluteness, profligacy, abomination and so forth— men work themselves up into a state of passion from which all cool and rational consideration is excluded" (box 94a, folio 121). 27. July 28, 1816, box 74a, folio 42. 28. April 27, 1814, box 74a, folio 156; July 28, 1816, box 74a, folio 62. See C. K. Ogden, "Bentham on Sex," in Theory of Legislation (London: Kegan Paul, Trench, Trubner, 1931), p. 477.

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becomes "the Attic mode" through its association with an­ cient Athenian culture.29 In April 1814, Bentham listed what he calls the "illprincipled and unostensible causes" for the persecution of homosexuals. These include, first, the desire for a reputa­ tion of virtue and, second, envy, hatred, and the oppor­ tunity to exercise "the passion of malevolence without danger of punishment in any shape."30But he also consid­ ers those arguments that were not ill-principled, that is, ra­ tional utilitarian arguments against homosexuality as an activity genuinely harmful to society. The alleged harms— to population, to military defense, to the status of women —he had of course considered at length in his essay of 1785. But since that essay had never been published, Bentham re­ turns to them once more, revising or augmenting his case in the light of changing attitudes and new information. As to population, public opinion had changed dras­ tically since the appearance of Thomas Malthus's famous Essay on the Principle of Population in 1798. Bentham still holds to his earlier theory that the tolerance of male homo­ sexuality does not, in fact, cause a drop in the birth rate. But now he can argue that, even if it did, Malthus has shown that the real threat is overpopulation, with its atten­ dant overcrowding, poverty, and famine: one bugbear at least had been laid to rest. As for male "enervation" lead­ ing to defeat in battle, Bentham repeats his arguments from the military triumphs of the classical world. He praises again the valor of the Theban Band—the association of men "most celebrated for personal courage" in Greek an­ tiquity—and now adds the examples of Nisus and Euryalus, from Virgil's Aeneid . 31 It occurs to him that legends of mythical heroic lovers, such as Hercules and Hylas, are even more instructive in reflecting the opinions of the clas29. 30. 31.

"Sextus," August-September 1817, box x6xa, folio 15b. "Code Penal," April 19, 1814, box 74a, folio 97. May i, 1814, box 74a, folios 144,143.

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sical world than historical examples since they record "the conclusion drawn by opinion from universal and continual experience."32 In this particular case, poetry was indeed more universal than history. New anthropological data seemed further to call into question the idea that toleration of male homosexuality leads to the neglect or mistreatment of women. The most brutal abuse of women he has heard of occurs in two di­ verse tribes, one in New South Wales, the other in eastern Canada: neither culture appeared to practice or condone male homosexuality.33Missionary accounts from Polynesia also throw new light on conditions there: In the newly-discovered Islands of the Pacific Ocean the preva­ lence of the improlific appetite, after having been concealed by the prudent delicacy of polished historiographers, has been revealed by the untutored and querulous zeal of pious mission­ aries. Prostitution by profession and that profession marked by peculiarity of attire has there been observed among the male sex, as in other countries among the female. Yet neither in these any more than in other tropical regions has the treat­ m ent bestowed by the stronger to the weaker sex been found to exhibit any indifference .34

It is true that Islamic countries generally countenance male relations and oppress their women, but seclusion there arises from the intensity of the Mussulman's jealousy, not from his neglect of women. Turning to Europe, Bentham remarks that England, the most homophobic of nations, was also in his day the one in which women had least in­ fluence over men: In politics, in literature, in business in general, the influence of the female sex has for a long time been more conspicuous in France than in England. Yet in France, that propensity which in England is matter of ostentatious abhorrence is a source of jest and merriment, to most persons an object of physical dis-

32. 33. 34.

May 1, 1814, box 74a, folio 144. April 27, 1814, box 74a, folio 156. Ibid.

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gust, to many of religious abhorrence, to some of moral con­ tempt, but scarce to any of moral abhorrence. Neither in Italy nor in Germany have the female sex ever so much as fancied to them selves any cause of complaint or apprehension on the score of indifference on the part of the male. Yet not only in Italy but in Germany the propensity in question is in general regarded with a degree of indifference and even gratified with a degree of notoriety and security the bare mention of which cannot be endured in England with patience .35

To indict his countrymen for cruelty and intolerance was a project daring enough, but the inherent logic of Bentham's utilitarian ethic carried him a step further. According to his hedonistic calculus, any pleasure without painful conse­ quences was in itself "pure good." In this category he included most consensual nonprocreative sex acts. In ef­ fect, Jeremy Bentham stood Thomas Aquinas on his head. Whereas it was specifically nonprocreative acts—mastur­ bation, contraception, sodomy—against which traditional moral taboos had been strongest, Bentham took the op­ posite view—that it was the procreative rather than the nonprocreative acts that most often caused real harm. Marital intercourse, though necessary, posed the threat of overpopulation. Fornication produced undesired pregnan­ cies. From these followed abortions (highly dangerous in Bentham's day) and frequent infanticide, which in England was the object of harsh legislation. Seduced women who had lost their reputations and all prospects of a husband were not infrequently forced into prostitution with its at­ tendant horrors of degradation, poverty, disease, and early death. Should not the "irregular modes" of intercourse be encouraged as preferable in their consequences to these? Bentham developed exactly this line of thought in thirty pages of notes begun in August 1816 under the title, "Ben­ eficial effects of certain of these modes." It was not until 1957 that the Wolfenden Report recommended to the En­ glish government that homosexual acts be decriminalized 35.

April 27, 1814, box 74a, folio 157.

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on the grounds that prosecutions did more harm than good. But Bentham went beyond this to affirm that homo­ sexuality, as a form of nonprocreative sex, was a positive good to be encouraged. Examining the sources of human happiness with the eye of a moral economist, Bentham saw that material goods were necessarily limited and that each person's portion was constantly threatened by the pressures of population, but these difficulties did not at­ tend sexual pleasure divorced from procreation. Here was a source of enjoyment open to the wealthy and indigent alike, to the "subject many" as well as to the "ruling few." If one were to remove "the cloud of prejudice by which this part of the field of morals has to this time been obscured, what calculation shall compute the aggregate mass of plea­ sure that might be brought into existence?"36 It is not surprising that Bentham left to the end of his notes a consideration of a particularly delicate subject—re­ lations between teachers and their pupils. Would not de­ criminalization render these more common? Bentham does not think there is much likelihood of their occurring in ordinary schoolroom settings. The jealousy of a class of boys will prevent the master from favoring one, nor is the lack of privacy in the typical boarding school conducive to such relations. But what of private tutors? In such a case he is willing to believe that there may be some advantage in such a relation. The master may teach with greater "zeal" if he is the lover of his pupil. "The pupil on his part, experi­ encing instead of that moroseness and haughtiness [by] which that commanding situation at present is so frequently exemplified, a degree of attention and kindness so extraor­ dinary, will easily find a pleasure in an occupation which otherwise would have been a painful and laborious one."37 If, on the other hand, the boy should take advantage of the situation and idle away his time, the affair could be broken 36. 37.

July 3i(?), 1816, box 74a, folio 219. July i, 1816, box 74a, folio 208.

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off by his parents. Here Bentham approves something like the pedagogic eros of the Greeks. In all this, Bentham presents a striking contrast with Byron. The philosophical hedonist and moral revolution­ ary lived the life of an ascetic; the rake who mocked society never seriously challenged its moral premises. Byron is proud of his sexual knowledgeableness in Don Juan, but though he portrays an idyllic and innocent love between Juan and Haidee, this does not reflect his usual attitude to­ ward sex. More often his implied stance is, the world has condemned me, but the hypocritical world is as bad as I am. In assuming this posture, he accepts the world's val­ ues and "exposes" it as failing to live up to them. Contem­ porary moralists condemned Don Juan. Later ones, such as Paul Elmer More, took a longer view; Byron was less of a moral heretic than, say, Shelley, simply because he did, in fact, have a sense of guilt. But this is to ignore the effect this guilt had on Byron or on the others and, above all, on 'the women whose lives he touched. Men who hate and de­ spise themselves usually do not treat other people very well either. Having made a case for the social utility of male ho­ mosexual relations and decried the evils of punishment, Bentham, with energy remarkable for a man nearing sev­ enty, took the offensive on another front. Of all the forces making for prejudice, he felt the most formidable was the ascetic morality to which the English gave such fervent lip service. And, behind this, far more significant than philo­ sophical stoicism, was Pauline Christianity. (On this point, Byron would have agreed. In the extensive conversations on religion he engaged in during his second visit to Greece, he remarked that English religion seemed more Christthan God-centered and even more preoccupied with Paul.) For Bentham, Paul was the antiutilitarian par excellence; he came to see in Paul a fear and distrust of pleasure, which, in his view, did not at all accord with Jesus. If the link between the two men's teachings could be weakened,

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Bentham thought English Christianity might become less puritanical. With this aim in mind, he began in 1817—the first year of Byron's Italian exile—the lengthy treatise to which he gave the name "Not Paul but Jesus." The first aim of this magnum opus was to show that Paul's connection with Christ's disciples was tenuous and equivocal: in effect, the authority he presumed to wield was usurped. This was a step toward Bentham's more im­ portant goal, which was to question Paul's moral stance, especially his ascetic attitude toward sex in general and ho­ mosexuality in particular. Bentham was keenly aware what dangerous ground he was treading. In 1823, under the pseudonym "Gamaliel Smith," he published Parts I and II of his notes in the form of a four-hundred-page book chal­ lenging, on historical and scriptural grounds, Paul's right to set himself up as a spokesman for Christ and Christian­ ity. The book bore the title Not Paul but Jesus, though in fact it incorporated only the first half of his project and did not touch the more controversial second half. It is not clear to what extent the book was recognized as Bentham's nor to what extent he had collaborators. According to the Diction­ ary of National Biography, Bentham's fellow reformer Francis Place, in a note, claimed the book as his. But the volumi­ nous University College manuscripts leave no doubt that, whatever hand Place had in turning Bentham's fragmen­ tary observations into publishable prose, the fundamental ideas and basic structure of the work were Bentham's. Inevitably, it caused controversy, as any attack on Paul's apostleship was bound to do. Two books attempted to an­ swer Bentham, and a modest debate ensued. Apparently, the reception was not encouraging enough for Bentham to acknowledge the essay during his lifetime, though it was reprinted after his death with his name on the title page. No doubt a further reason for Bentham's pseudonymity was the explosive nature of the sequel he had planned. After he had fully developed his ideas for the first part of his book and had pretty well determined what he wanted to

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say in the second, he produced a curious document that clarifies some of these aims. This took the form of a twentytwo-page synopsis or prospectus addressed to William Beckford. In this proposal, he suggests that Beckford might act as a literary collaborator to put his ideas into final shape, supply new materials (especially from classical sources), and provide sympathy, encouragement, and, presumably not least, financial help. We do not know what prompted Bentham to address this precis to his old acquaintance at this particular moment or whether any version of it ever reached him. It is piquant to consider that if Beckford had responded favorably and the book had appeared, the kind of collaboration between Havelock Ellis and John Ad­ dington Symonds that led to the publication of Ellis's Sex­ ual Inversion in the 1890s might have been anticipated by Bentham and Beckford in the reign of George IV. Whatever the personal relation between the worldfamous philosopher and the ostracized connoisseurromancer, the document has a unique interest. The charac­ teristically Benthamite title of the summary is "General idea for a work, having for one of its objects the Defense of the principle of Utility, so far as it concerns the liberty of Taste, against the conjoint hostility of the principle of as­ ceticism and the principle of antipathy." Bentham adds, illuminatingly, that the book will have "for its proposed title, proposed on the ground of expected popularity, or at least protection against popular rage,—'Not Paul but Jesus.'" With magisterial naivete Bentham states that his object is "the greatest happiness of the greatest number" and his motive "sympathy with the whole human race." Then he adds an intriguing detail. This motive, he claims, is "mixt with as little of personal interest as it is possible for it to be mixt with." Is this a declaration on Bentham's part that he had no interest in homosexual relations himself? It might be construed this way. He wants, he tells Beckford, to re­ claim the public mind "from the gloomy and antisocial— and, in proportion as they are gloomy and antisocial, per-

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nicious—notions, involved in the Calvinistic and various other modes of the religion of Jesus, and the antipathies that have sprung out of them." Such terrors derive from Paul as "contradistinguished from the acts and sayings as­ cribed to Jesus" in whom, he thinks, they find no warrant.38 Bentham speculates that English tolerance will allow a book criticizing Paul provided the tone is not bitter or ridiculing. Part I will question his authority, challenge his pretensions "to any connection with Jesus," and expose him as "a mere impostor, erecting an empire to himself on the foundation of that name."39 Though Part I will touch incidentally on Paul's moral doctrines, to show their incompatability with Jesus, the full critique will be reserved until Bentham can observe the public reception of the "by far least obnoxious" Part I. Bentham is clearsightedly pes­ simistic about the reaction he expects his revolutionary moral position to provoke—"to the work, and thence to the author, if known, nothing but unpopularity" can ac­ crue "and that to a degree beyond all power of measure­ ment."40Bentham was fearful what influence he had in the world as a reformer might be forfeited. Then he recalls how exile and ostracism ended the parliamentary career of Sir William Meredith.41 In mentioning this scandal of 1780, Bentham was delicately reminding Beckford that the pro­ posed book would attack the prejudices that had driven him, too, from society a few years later. The next ten pages minutely classify, in abstract, scien­ tific language, first sensory pleasures generally and then every kind of sex act, ending with those Bentham now calls relations "in the Attic mode." Then he pauses, no doubt fearing that the wearied Beckford might need some reas­ surance that this roundabout approach was worthwhile: 38. 39. 40. 41.

"Sextus," box i6ia, folio 14a. "Not Paul but Jesus," box 161a, folio 14b. Box 161a, folio 14c. See p. 46.

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Note here the advantages derived from the comprehensiveness of the plan here pursued: for example, in shewing, that in this last mentioned case, no more ground exists for punishment or disrepute, than in so many other cases, as above, in which no punishm ent is applied. Among a number of m odes of grati­ fication all equally innoxious, that indeed would have been best worth rescuing from punishment and unmerited reproach, to­ wards which the propensity [i.e., of hate] is most extensive. But any such exclusive plan . . . would have given to preju­ dice a shock, which by the present course is lessened, if not avoided .42

Bentham then rejects the alleged negative social conse­ quences of homosexuality and enumerates its beneficial effects when contrasted with the evils of adultery, rape, and illegitimacy. On one point, however, he is now willing to compromise. Fearing no doubt that so radical a step as complete decriminalization would be impractical, he re­ vives his compromise proposal to make the sanction ban­ ishment. He adds a proviso, however, that would have made conviction difficult and the law all but a dead letter: except in cases of violence, two witnesses should be re­ quired, neither of them a principal or an accessory.43 Bentham also proposes that the projected book devote three chapters to literary and historical topics. One would deal with philosophers and notables of ancient times, an­ other with modern thinkers and jurists such as Hume, Vol­ taire, Beccaria, Blackstone—and Bentham. His most origi­ nal idea is to include an analysis of the treatment of homosexuals in contemporary fiction, criticizing homophobic tendencies in Smollett, Fielding, Wieland, Cum­ berland, and "Madam Graffigny." Bentham has a lively sense of the power of popular fiction to create prejudice: "In passages such as these, in works so extensively dif­ fused, much mischief, viz. by inflaming the antisocial an­ tipathy, can not but be produced. . . . By the thus holding 42. 43.

Box 161a, folio 16c. Box 161a, folio 18b.

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up to view of these instances of groundless censure . . . the violence of it may, perhaps, be more or less abated."44 Here we have in embryo an anticipation of the modern idea of "consciousness raising," that is, the bringing to light of prejudicial tendencies in speech or writing which the hearer or reader may be inclined by cultural condition­ ing to accept uncritically. Bentham's proposal breaks off abruptly after he has sketched three other chapters, which were to deal, respec­ tively, with Jesus's failure to condemn "divagations of the sexual appetite," with Paul's vehement attack on them, and with the "favorable aspect" shown by some early Chris­ tians to matters of sex. Most of Bentham's manuscripts (and indeed all of them dealing with homosexuality, except the essay of 1785) are incomplete. But in this case the abrupt breaking off seems especially odd since this is not a rough draft but a carefully polished essay based on a scribbled first draft, which still survives. Perhaps Bentham felt he needed to develop his ideas on the Bible more fully before attempting to summarize them. The University College cataloguer has assigned the Beckford prospectus to August and September of 1817. From November 1817 to February 1818, Bentham wrote out 44. Box 161a, folio 18c. "Madam Graffigny" is a mistake for Thomas Gueulette (see chap. 1, n. 95). Richard Cumberland, in the , had, according to Bentham, unjustifiably contradicted Xenophon by denying Socrates's "participation in the propensity in question" (box 161a, folio 18c). Bentham makes the same charge against Bishop Warburton. Cumberland's essay was published in the for 1807-1808 and reprinted in The drift of the essay is difficult to make out. Shelley, for his part, read it as an indictment of Socrates (November 3, 1819, ed. Frederick L. Jones [Oxford: Clarendon Press, 1964], 2:145). Bentham, on the other hand, may have fixed on the sentence: "Great authorities have ascribed his attachment to Alcibiades to the most virtuous principle; common fame, or perhaps (more properly speaking) common defamation, turned it into a charge of the impurest nature" ( , ed. A. Chambers, no. 140, vol. 40 [London: Nichols et al., 1817], p. 224). Here Cumberland seems to be discounting the charge. We must remember, of course, that Bentham did not know Plato's treatment of this subject in the

Observer

Observer The British Essayists. The Letters of Percy Bysshe Shelley, The British Essayists

Symposium.

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elaborate notes on the second half of Not Paul but Jesus. These three hundred pages seem to have been written helter-skelter and then reorganized under chapter head­ ings for the planned volume. The first six chapters (the notes for which run to over one hundred pages) were to have been a philosophical attack on asceticism in general— which Bentham denounces as absurd, wicked, and mis­ chievous—and the foolishness of its application in particu­ lar cases, the chief among these being sexual. Looking at the matter philosophically, Bentham wonders why the "pleasures of the bed/' as he now calls them, should be any more restricted than the "pleasures of the table." Why not, he asks, limit sexual pleasures only by the same rules of prudence (avoiding excess) and probity (concern for oth­ ers) that govern eating and other pleasures?45 In brief asides, he once again enumerates and dismisses the al­ leged bad effects of homosexuality and notes the suspect sources of homophobic prejudice.46 All this is familiar. In the next three chapters, describing what he interprets as the antiasceticism of Jesus, Bentham contrasts Jesus with a true ascetic like John the Baptist, underscoring his rejection of fasting, his acceptance of wine and feasts, his Sabbath-breaking, and his defense of the woman taken in adultery. What emerges in Bentham's notes of 1818 is not just an antiascetic Christ but an antinomian Christ strikingly similar to the portrait William Blake was elaborating at almost exactly the same time in his unfin­ ished poem "The Everlasting Gospel." In these distichs Blake's Christ (like Nietzsche) rejects Christian humility, gentility, and "Moral Virtue," overrules the law of Moses by pardoning the adulterous woman, is himself the child 45. January 28, 1818, box 161b, folio 271. 46. Folios 275-88 of box 161b, written on January 2 and 3, 1818, dismiss the alleged threats to population and the status of women. Folios 303-07, written on January 5, enumerate six "Causes of the vituperation commonly bestowed upon these modes/7

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of adultery, and sends his seventy disciples "Against Reli­ gion & Government." The remaining six chapters (the last is incomplete) deal with the Bible and homosexuality and are obviously the raison d'etre of the book. To begin with, Bentham points out that Jesus nowhere condemns relations between men. He adumbrates modern criticism by dismissing Christ's frequent references to the fate of Sodom and Gomorrah as irrelevant; in none of these gospel passages "is any the slightest allusion made by him to the propensity in ques­ tion [as] the sin by which the calamity is produced."47Jesus seems instead to identify the sin of Sodom with inhos­ pitality and the mistreatment of strangers; repeatedly he compares cities that reject his apostles with the cities of the plain. In doing this, Bentham thinks he is merely following the true emphasis in the original story in Genesis 19. There the relations referred to are not consensual homosexuality but a mass rape whose threatened enormity was com­ pounded by its gross violation of the laws of hospitality so important in primitive societies.48 Undoubtedly the Mosaic law prescribes the death pen­ alty for male homosexuality in Leviticus. But should nine­ teenth-century England hang men on thisaccount? It is a serious error to assume the laws of Moses weremeant as "giving direction to practice among nations so far ad­ vanced in improvement as even the least advanced of na­ tions of Europe in these our times."49Moreover, when we examine the Old Testament critically, we are led, Bentham thinks, to conclude that the Mosaic law (which Bentham, following an earlier scholarly tradition no longer generally accepted, dates about 1500 B.C.) was often in practice dis­ regarded. For instance, in the Book of Judges we find the story of a group of Benjaminites who reenact the Sodom 47. 48. 49.

December i, 1817, box 161b, folio 421. December 20, 1817, box 161b, folio 429. December 23, 1817, box 161b, folio 444.

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story: attracted by the beauty of a young Levite, they insist that his host surrender him; when the shocked host re­ fuses and delivers the Levite's concubine instead, they rape her so violently that she dies and a retaliatory war en­ sues.50Such a tale shows that homosexual passion was well known in ancient Israel. Moreover, the first and second books of Kings speak of '"sodomites in the land" and do not always imply intolerance. Indeed, II Kings 23:7 de­ scribes "the houses of the sodomites that were by the house of the Lord." Bentham concludes from this that "so far from its being punished, we find receptables for this species of gratification set up and maintained at different periods in Judah by authority of government."51 Bentham's notes include also a full transcription of the David and Jonathan story from Samuel, ending with David's famous lament over his dead friend. Bentham ar­ gues that we are to take the "love surpassing the love of women" David felt for Jonathan not only as love of mind for mind but also as a sexual bond: In a country which could give birth on occasion to such a scene as that which originated in the beauty of the young Levite, is it possible that the nature of that love which had place between David and Jonathan would be matter of doubt? or that it could

50. December 28, 1817, box 161b, folios 454-455. 51. November 28, 1817, box 161b, folio 462. The Revised Standard Version translates II Kings 23:7 as "the houses of the male cult prostitutes that were the house of the Lord" (my italics). There has been much recent controversy over the King James translation of the Hebrew word (literally, "holy men") as "sodomites." The Revised Standard Version, by rendering the term as "male cult prostitutes," keeps the homosexual implication. Derrick Sherwin Bailey argues that the sexual role of these devotees was heterosexual rather than homosexual ( [London: Longmans, Green, & Co., 1955], pp. 48-53), and John Boswell, in (Chicago: University of Chicago Press, 1980, pp. 9899), follows Bailey. However, both Bailey and Boswell overlook the evidence of the Talmud (Sanhedrin 54b), which shows that the law banning the was interpreted as a law against homosexuality in Old Testament times.

in

kedeshlm

sexuality and the Western Christian Tradition and Homosexuality kedeshim

Homo­ Christianity, Social Tolerance,

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be more clearly designated by any the grossest than by this sentimental language? . . . From the very outset of the story, the clearest exclusion is put upon any such notion as that the love of mind to mind, or, in one word, friendship, was in the case in question clear of all indications of the love of body for body, in a word, of sexual love.— "Love at first sight" in the words of the title to the play.— Yes, nothing can be more natu­ ral. But friendship at first sight and friendship equal in ar­ dency to the most ardent sexual love! At the very first inter­ view, scarce had the first words . . . issued from his lips w hen the soul of Jonathan was knit with the soul of David, and Jonathan loved him as his own soul. In a country in which the concupiscence of a w hole male population of a considerable tow n is kindled to madness by a transient glimpse of a single man, what impartial eye can refuse to see the love by which the young warriors N isus and Euryalus were bound together in Virgil's fable, and Harmodius with Aristogiton in Grecian History ? 52

But surely, when preachers or rhetoricians have held up the love between these two men and its literary expres­ sion for "edification," they have not understood it in this sense. By Old Testament standards, would not "any ad­ mixture of sensuality" be enough to make the relation one of the "foulest complexion," meriting severe punishment? Bentham's answer to these difficulties was to introduce a distinction: But if among the Jews this same propensity which under some circumstances the law . . . made capitally punishable was [sometimes] regarded without disapprobation, this same pro­ pensity under other circumstances [was] regarded not merely w ith indifference but with admiration and spoken of in corre­ spondent terms. In this, whatever inconsistency there were, there would be nothing at all extraordinary. Considered as mere sensuality it would be regarded with disapprobation. Considered as a bond of attachment between two persons jointly engaged in a course of life regarded as meritorious, it m ight nevertheless be respected and applauded .53 52. 53.

December 21, 1817, box 161b, folio 458. December 21, 1817, box 161b, folio 459.

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Bentham then reviews the references to Sodom and Gomorrah in the prophetic books that conclude the Old Testament. He takes cognizance of the temptation felt by preachers to dwell on natural calamities as indications of divine wrath, noting how frequently the prophets mention the destruction of the cities of the plain. But once again he anticipates modern scholarship in remarking that for all their fondness for the legend, Isaiah, Jeremiah, Ezekiel, Amos, and Zephaniah at no point connect the overthrow of Sodom with the sin of homosexuality.54 On this point of interpretation Bentham arrives at the same conclusions reached by Derrick Sherwin Bailey in his Homosexuality and the Western Christian Tradition in 1955. His next step, however, was far more daring. Examining the Gospel of St. John with the same attention with which he had analyzed Genesis, Judges, Kings, Samuel, and the prophets, he excerpts all the passages in the story of the Last Supper, the Crucifixion, and the Resurrection in which the "beloved disciple" speaks of the special fondness Jesus bore him. Could John have meant to imply that he and Jesus were lovers? Bentham admits that "good taste and self-regarding prudence would require us to turn aside" from this "topic of extreme delicacy." But "a regard for hu­ man happiness and important truth and the sound prin­ ciples of penal justice compell him to go over it."55He specu­ lates on the nature of their love as follows: If the love which in these passages Jesus was intended to be represented as bearing towards this John was not the same sort of love as that which appears to have had place between David and Jonathan, the son of Saul, it seem s not easy to con­ ceive what can have been the object in bringing it to view in so pointed a manner accompanied with such circumstances of fondness. That the sort of love of which in the bosom of Jesus Saint John is here meant to be represented as the object was of a different sort from any of which any of the other of the 54. 55.

November 29-30, 1817, box 161b, folios 464-74. November 28, 1817, box 161b, folio 475.

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Apostles was the object is altogether out of dispute. For of this sort of love, whatever sort it was, he and he alone is in these so frequently recurring terms maintained as being the object. [As to] any superiority of value in his service in relation to preaching of the G ospel— no such foundation could the dis­ tinction have had: for of this nothing is to be found in Saint John by which he can stand in comparison with Saint Peter, and on no occasion is the rough fisherman to be seen "leaning in the bosom of Jesus" or "lying on his breast . " 56

Bentham thinks Jesus's numerous references to the de­ struction of Sodom are not germane to the issue since, like the prophets, he does not seem to have associated the city with homosexuality. But would he willingly have flown in the face of the Mosaic dispensation? For Bentham's antinomian Christ, the answer is an unhesitating yes: "As to the law of Moses—to him who has resolution enough to keep his eyes open to it nothing can be more manifest than that in the eyes of Jesus the law of Moses was but a mere human law so ill-adapted to the welfare of society that on no occasion is it ever spoken of as coming under his cog­ nizance without being taken by him more or less expressly for the declared object of [his] scorn."57 Bentham was par­ ticularly struck by the emphasis on love in the epistles of John, which contain, apart from a few stereotyped warn­ ings about the world and the flesh, no specific ascetic doc­ trines. "Of that love which has 'the brethren' for its object more is to be found in these three short letters than in all Paul, or even in all Peter: the sexual kind as might well be supposed is not specially mentioned for the purpose of commendation, but as little is it for the purpose of censure."58 Perceptions of Christ and the morality he taught or em­ bodied varied remarkably from one nineteenth-century writer to another. Blake's Christ and Bentham's were icono­ clasts, Tennyson's a blameless moral exemplar who wrought 56. 57. 58.

November 28, 1817, box 161b, folios 476-77. November 28, 1817, box 161b, folio 478. December 5, 1817, box 161b, folio 485.

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With human hands the creed of creeds In loveliness of perfect deeds .59

Arnold's Victorianization went a stage further. In "He­ braism and Hellenism" he makes Christ an "affecting pat­ tern" of asceticism, whose mission of charity is completed by his "crucifying" of the flesh. For Arnold, half the mean­ ing of Christianity lay in its opposition to the alma Venus of the pagan world, with what he calls its "vile affections," the latter phrase being the one Paul used in Romans to characterize homosexuality. Later, combining the moral with the social, Tolstoy would make Christ an anarchist, and Shaw (following Shelley) would transform him, in the commentary of the gospels he wrote as a preface to Androcles and the Lion, into a socialist and egalitarian, criti­ cal of the family as an institution and averse to revenge and punishment. But Bentham's speculation was, in a sense, more chal­ lenging still, given the prejudices of his native land. Where the Middle Ages had kept alive the legend of a Christ at whose birth all homosexuals were supposed to have died, Bentham, less extravagant but more daring, developed a countermyth whose outlines had only dimly appeared be­ fore, a myth that to the typical Englishman would have seemed a supreme blasphemy, the myth of Christ the lover of men. Bentham might have written Blake's couplets: Both read the Bible day & night, But thou readst black where I read white. . . . I am sure This Jesus will not do Either for Englishman or Jew .60

Another incident in the gospels, comparatively minor, also engaged Bentham's imagination and half made a nov­ elist out of him. This was the story of the boy he calls 59. In Memoriam, XXXVI, in The Poems of Tennyson, ed. Christopher Ricks (London: Longmans, 1969), p. 894. 60. Complete Poetry and Prose of William Blake, p. 524.

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the "stripling clad in loose attire" whom Mark alone of the evangelists mentions in his account of Jesus's arrest in Gethsemane. In Chapter 14 of the King James translation the relevant verses are these: 50 51

52

And they all forsook him, and fled. And there followed him a certain young man, having a linen cloth cast about his naked body; and the young m en laid hold on him: And he left the linen cloth, and fled from them naked.

Six years earlier Bentham had come across a terse para­ graph in the Monthly Magazine, in which an anonymous writer, commenting on the odd grammar of the King James translation, referred cryptically to the passage as “the epi­ sode of the cinaedus" (i.e., boy prostitute).61Now Bentham recalls and, in effect, endorses this theory. He prefers the translation "stripling" as closer to the Greek than "young man" and suggests that the boy may have been a "rival or a candidate for the situation of rival to the Apostle" (i.e., to John). Bentham argues that the passage is intelligible only if the boy is indeed a "cinaedus" and the "loose attire" the badge of his profession. Bentham interprets the sindona or "linen" that the stripling wore as a "fair and costly" gar­ ment and thinks that the men who laid hands on him and it regarded both the boy and the cloth as a "prize," as the men of Sodom regarded the angels.62 But why should this incident have been recorded in a story "so awful as that of the cruel death of Jesus"? Bentham turns it into a touching romance: The answer seem s not very difficult to find. The timidity and consequent mendacity of Saint Peter, the earliest chosen and m ost confidential of Jesus's twelve selected servants, is not only one of the most remarkable features in the history, but .

6 1 Bentham says he had seen the remark "some 6 or 8 years ago" in a column headed "The Portfolio of a Man of Letters" (November 29,1817, box 161b, folio 489). The comment had in fact appeared in the Monthly Magazine for September 1811. 62. November 29, 1817, box 161b, folios 491-92.

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one the details of which are with every mark of correspondent sense of extraordinariness particularized. With this timidity and backsliding the fond and unexampled attachment of the nam eless stripling forms a most striking contrast. At the conjunction in question, the traitor excepted by w hom was let in the multitude by which he was apprehended, Jesus was found accompanied by all the rest of the disciples. At the first onset one of them, according to all the four evange­ lists, being provided with a sword, stood for a moment on the defensive, and aiming a stroke at the head of an officer of the police, struck off one of his ears: according to Saint John this was Saint Peter. Whoever it was, this boldness neither con­ tinued beyond the moment nor found any one to second it. "They all forsook him and fled/' Mark XIV: 5 1 : this is what is written of the disciples. Followed him then one only of all his attendants— this loosely attired stripling: like Milton's Abdiel, "Among the faith­ less, faithful only h e . " 63

But what was the young man's relation to Jesus? May he not have been a penitent who had come to present himself? Bentham rules out this possibility. His loyalty to Jesus is not intelligible if we suppose this was their first meeting; somehow Jesus must have won his devotion. Nor, if he was a penitent, would he have presented himself in the questionable clothes of his profession. The presumption is that Jesus did not find his homosexuality offensive. Ben­ tham concludes: In the acts and sayings of Jesus, had any such mark of reproba­ tion towards the mode of sexuality in question been found as may be seen in such abundance in the epistles of Paul— in a word, had any decided marks of reprobation been found pro­ nounced upon it by Jesus, in the eyes [of a] believer in Jesus could any such body of evidence as here presents itself be con­ sidered as worth regarding? But w hen the utter absence of all such marks of reprobation is considered, coupled with the urgency of the demand for the most pointed and decided marks of reprobation in a new system of religion promulgated by supernatural authority and by supernatural means, the practice in question being universally spread not only over the

63.

November 29, 1817, box 161b, folios 493-94.

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vast region of the East in which Judaea formed a part, but in the metropolis of the empire and on and about the throne, evi­ dence of this sort thus standing not only [not] opposed but corroborated seem s to have that claim to attention which the reader is now in a condition to reject or to confirm, to bestow or withhold, as to him seem s reasonable .64

A Christian to whom homosexuality is abhorrent will of course reject Bentham's reading of the Gospels out of hand and with vehemence. Certainly the evidence he builds on is fragile and inconclusive, surprisingly so when we re­ member that Bentham was his age's leading authority on legal evidence. But what people believe, especially in mat­ ters of religion and morals, is rarely determined by evi­ dence. Personal or cultural bias is much more important. A Greek ignorant of Paul or Leviticus who read the Gospel of St. John in the first or second century might very well have interpreted it as a homosexual romance, just as, with little more evidence, he interpreted the story of Achilles and Patroclus in the Iliad as a homosexual love affair. Bentham's interpretation is neither probable nor impossible. Most re­ sponses to Bentham's theory, however, will be less a re­ sponse to the evidence than an indication of one's feelings about homosexuality or, for that matter, about ascribing sexual feelings of any sort to Christ. 64.

November 29, 1817, box 161b, folio 497.

Part VI The French Revolution and Political Raducalism

[19]

BENTHAM AND THE FRENCH REVOLUTION By J. H. Burns, Ph.D., F.R.Hist.S. READ

9

OCTOBER I 9 6 5

‘ £ ' OD Almighty predestinated me to be the ame damnee of I -^France.’ So wrote Jeremy Bentham on 9 June 1789.1 It was a moment of frustration for a man who already felt a great opportunity slipping away from him. Opportunity above all was what the French Revolution meant for Bentham. Forty when the States General were summoned, he had for twenty years been convinced of his genius for legislation. Much of that time he had spent upon an immense but never completed Code of law. In 1785 he had gone to Russia, to join his brother Samuel and (he hoped) lay his Code before the Empress Catherine. But Catherine never saw either the Code or its author. Bentham remained secluded in western Russia, translating his work into French; and when the empress visited the district he stayed—stubbornly diffident—in his cottage.2 So it had been time and again with Bentham. So it would prob­ ably have been also with the most influential connexion of his life so far—the patronage and friendship of Shelburne. Only Shelburne’s persistence made this relationship possible in 1781.3 When Bentham returned from Russia in February 1788 Shelburne (now Lansdowne) was still ready to help, reproaching himself in­ deed for his failure to ‘do something’ for Bentham when in office five years before. Yet again Bentham withdrew—this time to a farmhouse at Hendon, where (he told his brother) he lived much as he had done in Russia—‘saving and excepting fleas, gnats, 1 Bentham to Etienne Dumont: B[ibliotheque] P[ublique et] U[niversitaire, Geneva], Dumont MSS. no. 33, f. 56. 2 For the Russian venture cf. esp. C. W. Everett. The Education o f Jeremy Bentham (New York, 1931), chap. VIII, pp. 150-79. 3 Cf. Everett, op. «7., pp. 120-21; though that account requires some modification, which is partly provided by M. P. Mack, Jeremy Bentham: An Odyssey o f Ideas (New Y ork and London, 1963), pp. 370-72.

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mice, dirt, and interruptions.’ The decisive moment lay, as always, in an indeterminate future: As soon as I have finished such parts of Code as cannot be published one without the other, I go to Paris to get it cor­ rected, and advise about the printing of it.1 In fact Bentham was not to revisit Paris until 1802, and in the years between a world had passed away. It seems to have been in the summer of 1788 that Bentham’s attention was first attracted to the course of events in France. A fragmentary note on Lamoignon’s abortive Cour Pleniere is apparently the earliest of the many manuscript sheets in which Bentham’s reflections on French problems can be followed.2 He came to see that a new order across the Channel might afford him the chance he had so far failed to find. Nor were his hopes ground­ less. His ideas had been shaped largely under French influences: the influence of Helvetius above all. He belonged wholly to that ‘busy age’, as he himself had called it,3 the age of reform which was now (it seemed) to reach fulfilment. If his hopes were to prove illusory, so did those of many more celebrated revolu­ tionary figures. And if history did not concern itself with illusion as well as with reality it would imperil its title as a humane study. From the first Bentham realized that his problem was above all one of communication. He had no established French corre­ spondence, no intellectual bridgehead in France. Lansdowne could help here, but at first Lansdowne’s part was indirect. Mirabeau is the centre of Bentham’s early French ventures, and Lansdowne deeply distrusted Mirabeau.4 But Samuel Romilly, whom Bentham had met at Lansdowne’s before going to Russia, and with whom his acquaintanceship ripened in the autumn of 1788, had known

1 Bentham to Samuel Bentham, 2 May 1788: [The] Works [of Jeremy Bentham, Published under the Superintendence o f his Executor, John Bowring (Edinburgh, 1838-43)], x, pp. 182-83. 2 U[niversity] Cfollege] Lfondon], Bentham MSS., clxx. 36 Cf. also

.

Lansdowne to Bentham, 16 June 1788: Lansdowne MSS., [Bowood] (printed, with some errors, x, p. 183). 3 Preface to 1776: i, p. 227. 4 x, p. 185: ‘A s to Count Mirabeau . . . it’s madness to hazard any communication with him.’ Bowring gives neither the exact source nor the precise date o f this remark o f Lansdowne’s.

Cf. Works,

Works, A Fragment on Government,

Works,

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475 97

Mirabeau for several years and had lately met him again in Paris. Almost certainly, Romilly suggested to Bentham that he address himself to Mirabeau.1 As a result there developed between the almost unknown English jurist and the emergent statesman of revolutionary France an oddly hesitant, ambiguous relationship. They never met, nor does it appear that Bentham ever had any direct communication from Mirabeau. But it was with Mirabeau in mind that Bentham drafted his earliest pamphlets on French affairs in November 1788—the first of them indeed an open letter to Mirabeau. These early efforts were quite abortive.2 Bentham was trying to do for the French what they were already doing superabundantly for themselves. For him to write, in his own highly individual French, polemics against the Parlement of Paris or the noblesse of Brittany was to carry not so much coals as clinker to Newcastle.3 Even when Etienne Dumont entered the story for the first time as corrector of Bentham’s French,4 there were still difficulties. Buisson, the Paris bookseller to whom the manuscripts were sent in December,5 objected, among other things, that the material ‘was too strong for the Censor’.6 And as time passed even topicality was lost. At the same time, the occasion drew Bentham into reflections of more lasting importance. He set out to answer the questions about the organization of the States General submitted to the re­ convened Assembly of the Notables. Part of this discussion be­ came virtually what Bentham himself called it a few months later 1 This is indicated by Bentham’s letter to Dumont of 9 June 1789 (cf. p. 95, n. 1 above). 2 That a copy o f at least the open letter was sent to Mirabeau appears from Bentham’s letter to Andre Morellet o f 25 February 1789: Works, x, p. 199. Bentham himself perhaps explained (or explained away) Mirabeau’s failure to reply: ‘I had designed myself to him as the author o f the Defence o f Usury, and he did not know that any such book existed’ (Bentham to Dumont, 9 June 1789: cf. p. 95, n. 1 above). 3 Drafts o f these pamphlets are in U .C.L., Bentham MSS., clxx. 1-7, 122-33. 4 Cf. Bentham to Romilly, 2 December 1788: B.P.U., Dumont MS, no. 33, ff. 171-72; Romilly to Bentham, 3 December 1788: Works, x, p. 195. 5 Mentioned in Bentham’s letter to Romilly cited in n. 4 above; probably F. Buisson o f the rue Hautefeuille: cf. J. Benetruy, L ’atelier de Mirabeau (Paris, 1962), p. 233, n. 1. 6 Bentham to Morellet, 25 February 1789: Works, x, p. 199.

476

Jeremy Bentham

98 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY —‘an essay on Representation’.1 This asserts quite sweepingly democratic principles derived from utilitarian assumptions, and it has played a controversial part in interpretations of the develop­ ment of Bentham’s political thought.2 Here it is important to emphasize that Bentham was consciously dealing with specific questions about French problems at a particular time, not de­ veloping a general theory. He drew a sharp distinction between the French and British situations. In his open letter to Mirabeau he argued that the rejection of parliamentary reform earlier in the decade represented ‘le voeu de la nation merae’; and this was because in Britain tout a peu pres est deja fait et bien fait de ce qui sembleroit

demander une representation egale pour le bien faire.

Liberty o f the press, the absence o f arbitrary executive power, and the impartial administration o f justice were among the benefits already enjoyed in Britain, which France could not hope to enjoy without a radically reshaped representative system .3

In any case this discussion of representation was never com­ pleted. A more eventful and rather more successful fate awaited a second work of substance written by Bentham for France at this period—the Essay on Political Tactics. This is one of Bentham’s most original works, for it seems to be the first attempt ever made to theorize broadly about parliamentary procedure. The subject had interested Bentham since at least the late 1770s.4 But he now wrote at length on it in order to provide the States General with what, as he shrewdly foresaw, they would badly need: an ordered form of procedure, based (though not slavishly or uncritically) upon British experience. Romilly too tried to meet this need: helped by Bentham’s old friend George Wilson and another friend and fellow-barrister James Trail, he drew up an abstract of the rules of procedure in the House of Commons. After many delays the translation begun by the Comte de Sarsfield was comWorks, x, La formation du radicalisme philosophique Lajeunesse de Bentham op. cit., Cf. op. cit., op. cit., Cf.

1 p. 199. Extracts from the essay (U .C.L., Bentham MSS., clxx, 87-121) were printed by Elie Halevy, , i, (Paris, 1901), Appendice IV, pp. 424-39; and, in translation, by M. P. Mack, Appendix D , pp. 448-53. 2 Halevy, pp. 270 ff.; Mack, pp. 416 ff. 3 U .C.L., Bentham MSS., clxx. 3. 4 Bentham to Samuel Bentham, 14 August 1778: B[ritish] M[useum], Add. MS. 33,538, ff. 221-22.

477

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99

pleted by Dumont and published, with an introduction by Mirabeau himself, in June 1789.1 To follow the greater vicissitudes of Bentham’s more elaborate work needs as background some account of Lansdowne’s part in Bentham’s French activities. Not till the very end of 1788, it seems, did Lansdowne know of his protege’s French ambitions. He was Very glad to hear’ of Bentham’s ‘taking up the cause of the people of France’.3 At the same time, as he told the Abbe Morellet a month later, Bentham ‘was getting into hands which for various reasons, I did not much approve’.3 Lansdowne per­ suaded Bentham, first, to write in English, not French, and second, to approach Morellet with a view to securing the trans­ lation of what he wrote. Bentham had written to Morellet in 1778,4 but nothing came of this approach. Now, with Lansdowne behind him, with Lansdowne’s son Lord Wycombe in Paris, as it happened, to act as his ‘ambassador extraordinary and plenipo­ tentiary’—not merely to Morellet but also to Madame Necker,5 things were different. Attention was assured, if not results. Part of the Essay on Political Tactics was sent in manuscript to Morellet at the end of February 1789, by way of Wycombe.6At the end of March, in Morellet’s reply, Bentham was not only urged (vainly) to continue his work on representation, not only assured of the

1 For the history of this work— Reglemens observes dans la Chambre des Communes pour debattre les matieres et pour voter— c f J. Benetruy’s critical edition of Dumont’s Souvenirs sur Mirabeau (Paris, 1951), p. 277, n. 2 (also his Uatelier de Mirabeau ,pp. 170-71 and n.). Benetruy, however, ignores the evidence of Bentham’s correspondence for Wilson and Trail’s contribution. Bentham to Wilson, 16 May 1789: pp. 200-01; Wilson to Bentham, 21 May 1789: B.M., Add. MS. 33,541, ff. 32-33 (also x, pp. 212-13); Bentham to Wilson, 12 June 1789; x, pp. 213-14. Nor does Benetruy mention the part apparently played by the due de La Rochefoucauld: Morellet to Bentham, 8 May 1789: B.M., Add. MS. 33,538, ff. 184-87. 2 3 1789: p. 195 (

Cf.

Works, x, Works,

Works,

Works, x,

cf. B.M., Add.

cf.

Lansdowne to Bentham, January

M S. 33,541, f f i- 4 -

3 Lansdowne to Morellet, 3 February 1789: Lansdowne MSS (MS. copy, sent in 1876 to Lord Edmund Fitzmaurice by L. J. Cist of Cincinnati, Ohio, then in possession o f the original). 4 U.C.L., Bentham MSS., clxix. 51. 5 Bentham to Wycombe, 1 March 1789: , x, pp. 196-97. 6 Bentham to Morellet, 25 February 1789: x, pp. 198-99 (the exact date, not given by Bowring, is indicated in Morellet’s reply: p. 100, n. 1).

Cf.

Works Works,

cf.

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Jeremy Bentham IOO

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interest shown in his ideas by both Madame Necker and her hus­ band, but glowingly praised by Morellet himself: votre tactique me paroit la seule a l’aide de laquelle nous puissions gagner la grande bataille que la raison et la liberte vont livrer a l’ignorance et a la tyrannie des mauvaises lois et d’une vicieuse constitution.1 Publication would not be easy amid a glut of pamphlets, but Morellet sent the manuscript—and a further instalment in April2 —to the translator of Philip Mazzei’s Recherches sur les Etats Unis, Louis-Joseph Faure.3 At the same time copies of Bentham’s work were sent to Mirabeau, to Lafayette, and to Lansdowne’s friend the due de La Rochefoucauld.4 Yet again time was passing, and there was no hope of publica­ tion before the States General met on 5 May. On the other hand, the early sessions of the assembly revealed an acute need for adequate procedural rules. In particular Mirabeau was himself convinced by harsh experience. Not only did he promote the pub­ lication of Romilly’s Reglemens; he expressed ‘vive impatience’ for the continuation of Bentham’s essay.5 Bentham could soon read, in the tenth of Mirabeau’s L ettres. . . cl ses Commettans (later the Courier de Provence), dated 7-12 June 1789, six basic principles of procedure, taken (as George Wilson pointed out in some alarm) directly and without acknowledgment from Ben­ tham’s manuscript.6 Bentham was sure that Mirabeau ‘could not 1 Morellet to Bentham, 25 March 1789: B.M., Add. MS. 33,541, ff. 36-39 (partial translation, Works, x, p. 199).

2 Bentham to Morellet, April 1789: draft in U.C.L., Bentham MSS., clxix. 164-67 (undated but must be between Morellet’s letters o f 25 March and 8 May). 3 Morellet to Bentham,8 May 1789: B.M., MS. 33,538, ff. 184-87. For the translator c f R. C. Garlick, Jr., (Baltimore, 1933), p. 121; xvii, col. 180. 4 U .C.L., Bentham MSS., clxix. 172, which despite its (later and evidently mistaken) heading, ‘Advice to Fayette’, may be a draft letter to La Rochefoucauld: it mentions the sending o f copies to Mirabeau and Lafayette. Morellet also sent part o f Bentham’s MS. to La Rochefoucauld: his note, dated 31 August 1810, on B.P.U., Dumont MSS., no. 72 (1). 5 by 17 1789: MSS., 153. 9 1789: MSS., 33, 55. 6 i, no. X , pp. 8-9; Wilson to Bentham, 5 July 1789: x, p. 216.

Cf

cf.

Add. Philip M a^ei, Friend o f Jefferson Nouvelle Biographie Generate,

The words are quoted Bentham in a draft letter to Lansdowne dated June U.C.L., Bentham clxix. Cf. also Bentham to Dumont, June B.P.U., Dumont no. f. Courier de Provence, Works,

Jeremy Bentham

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BENTHAM AND THE FRENCH REVOLUTION

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with Dumont en tete mean anything dishonourable’.1 His hopes revived; but he was perplexed because, despairing of Tactics, he had embarked on a new enterprise—a controversy in the Public Advertiser over British policy towards Russia and Denmark.2 However he arranged for Morellet to transfer the existing manu­ scripts of Tactics to Dumont, to whom Bentham himself sent a complete plan of the essay.3 Dumont was now well launched on his career in Mirabeau’s atelier. The nature of his early association with Bentham has been seriously misunderstood. It has been too readily assumed that from the outset an intimate relationship of master and disciple developed between the Englishman and the Swiss.4 In fact the evidence shows that during the first three and a half years at least of their acquaintanceship contacts between Bentham and Dumont were limited and formed a minor part of Dumont’s pre­ occupations at least during Mirabeau’s lifetime. Undoubtedly some of the contacts were important and laid the foundations of the respect for Bentham’s ideas which later enabled Dumont to devote so much time and energy to the production of order out of the chaos of Bentham’s manuscripts. But Dumont’s part in the story of Bentham’s Essay on Political Tactics is typical of the early stages. It was not Dumont’s fault that his letter acknowledging receipt of the manuscripts went astray. But the limited urgency he attached to the matter is evinced by his not having written again to Bentham until late September. By then Morellet at least was sure that Dumont had abandoned the translation.5 Dumont him­ self urged Bentham to continue his work, but neither he nor Morellet held out any hope of its principles being speedily adopted. The best Dumont could offer was the hope that the next Works, x,

1 Bentham to Wilson, 8 July 1789: p. 217. 2 Bentham’s ‘Anti-Machiavel’ letters are reprinted in Works, pp. 201-11. also Bentham to Dumont, cited p. 100, n.5 above. 3 Bentham to Dumont, as above; Morellet to Lansclowne, 22 June 1789: Lansdowne MSS. 4 x,pp. 184-85; Everett, pp. 182-83,196; Mack, pp. 408-09. A corrective view is supplied by Charles Blount, ‘Bentham, Dumont and Mirabeau’, iii, 1951-52, pp. 153-67. 5 Morellet to Lansdowne, 25 September 1789: E. Fitzmaurice (ed.), a . 1332—1803 (Paris, 1898), pp. 183-84.

Cf

Cf. Works,

op. ch.,

x,

op.cit.,

University o f Birmingham Historical Journal, Lettres de I’abbe Morellet lord Shelburne . .

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TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY

French legislature might come to see the value of Bentham’s ideas. This, with fresh assurances of the good opinion of Mirabeau and La Rochefoucauld, was all Bentham had to show for nine months’ effort.1 A new approach was needed. When Bentham saw a footnote in the Courier de Provence of 2—3 October 1789, drawing attention to the ‘profound analysis’ of his Defence o f Usury, 2 he misinterpreted it as an undertaking by Mirabeau himself to translate the book. This prompted him to approach Mirabeau with other economic and fiscal ideas. He planned and started a series of letters for this purpose; but while these papers have a minor place in the develop­ ment of Bentham’s economic thinking,3 there is no evidence that anything came of the projected approach to Mirabeau. Similarly, a series of notes and comments on various constitutional projects for France, apparently belonging to the ‘Mirabeau period’, re­ mained, so far as can be discovered, in Bentham’s study.4 The truth about Bentham’s relationship with Mirabeau is in­ deed remote from the myth propagated by Bentham’s biographers. Through the distorting prisms of Bentham’s senile vanity and the posthumous toadyism of his first (and worst) biographer, John Bowring, that relationship has appeared as one in which the materials for some of Mirabeau’s ‘finest speeches’ were ‘provided by Bentham’.5 This misrepresentation is intimately connected with the misunderstanding, already mentioned, of Bentham’s rela­ tions at this period with Dumont. Neither at first hand nor in­ directly through Dumont did Bentham contribute in more than the most marginal way to the stock of Mirabeau’s ideas. That this was not for want of trying has perhaps been sufficiently demon1 Dumont to Bentham, 27 September 1789: B.M., Add. MS. 33,541, ff. 79-80 (partial translation, Works, x, 219). 2 Courier de Provence, iii, no. X L IX , p. 6 n. 3 C f U .C.L., Bentham MSS, ix. 37-49, clxvi. 1-26; W . Stark (ed.), Jeremy Bentham s Economic Writings (London, 1952-54), i, 28—29 and nn.; iii, pp. 524-25. 4 C f U.C.L., Bentham MSS., clxx. 60-63, 134-72, 179, 181. 5 Works, x, p. 185. C f Everett, op. cit., p. 196: . . more and more, the voice o f Mirabeau expressed the thoughts o f Dumont. And . . . the ideas were taken direct from the MSS. o f . . . Jeremy Bentham.’ A truer view is indicated by Charles Blount in the article cited above, p. 101, n. 4. Blount, however, does not consider all the available evidence, and the conclusions in the present paper differ from his in emphasis and detail.

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strated: that the attempts failed almost completely is the only conclusion warranted by the evidence. Experience was perhaps already giving Bentham, in the autumn of 1789, some notion of the possible divergence between the hopes of reformers and the tide of revolution. Certainly he was already aware of what would nowadays be called the ideological gulf be­ tween his doctrines and those of the National Assembly. ‘The phrase natural right/ he remarked in one of the unfinished letters to Mirabeau, ‘when opposed to utility is altogether an unmeaning one’.1 The Declaration of the Rights of Man and the Citizen had not yet had his detailed attention, but his opinion of it is not to be doubted.2 The eclipse of rational reform by revolutionary metaphysics, however, still lay far ahead. The remaking of French institutions afforded ample scope for Bentham’s talents; and towards the end of 1789 a new prospect of useful effort was opened. On 21 Decem­ ber the constitutional committee presented to the National Assembly a draft plan for a new judicial system. Bentham set to work on an alternative plan, with a running commentary on the differences between the two. By March 1790 he was able to print in England the first of seven instalments of his Draught? Almost simultaneously the first of a series of extracts in French appeared in the Courier de Provence for 22-23 March 1790.4 The translation of these was the first major service rendered to Bentham by Etienne Dumont, and perhaps the true beginning of what was to become their intimate intellectual relationship. Dumont had just returned to England, where he was to remain till the beginning of 1791. It was a moment of disillusionment for the members of Mirabeau’s team,5 but they could still use the Courier for their own purposes and Bentham now benefited from this as never before. For the first time he began to achieve some reputation in the new France. 1 U.C.L., Bentham MSS., ix. 43 a r°. 2 Bentham to Brissot, n.d.: , x, p. 214— ‘I am sorry you have undertaken to publish a Declaration of Rights. It is a metaphysical work— the o f metaphysics.’ 3 . . March, 1790: iv, pp. 285—406. 4 , vii, pp. 123—28, 177—84, 225—325 viii, pp. 49-56, 188—91, 321-28. 5 Benetruy, U , pp. 268 ff.

Cf.

Works

ne plus ultra Draught o f a New Plan for the Organisation o f the Judicial Establishment in France . c f Works, Courier de Provence Cf

atelier de Mirabeau

482

Jeremy Bentham 104

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY

Nor was this success ill-deserved. The Draught is the practical, constructive side of Bentham at its best. Concrete without an overweight of detail, lucid, moderate, unpretentious, it deserved indeed greater success than it obtained. Here, the striking thing about a work which includes the first salvo in Bentham’s war against the jury system, is his acceptance from France of the popular election of judges. It was a hesitant acceptance, even if Bentham brought himself to feel ‘little fear of the success’ of this ‘bold experiment’. Bentham confessed that the National Assembly’s committee had ‘gone further on the popular side than perhaps, without the encouragement of their example, I should have ventured to have gone’.1Later in the Draught he wrote more boldly: ‘I have not that horror of the people. I do not see in them that savage monster which their detractors dream of.’2 But when he goes on to equate ‘the people’ with ‘select men chosen by select men’; when we note that he has just insisted that the opinion of a body of people is the opinion neither of a minority nor of ‘the majority of a moment’, but of‘that majority which keeps the field and governs’—then we may wonder whether the gulf between Bentham and Burke in 1790 is quite as wide as we might have expected.3 On x April 1790 a hundred copies of Bentham’s Draught were sent, by means of Barthelemy, the French minister, to Paris for the members of the Assembly.4 Lansdowne was enthusiastic and wrote by the same post to La Rochefoucauld enlisting his aid.5 Other channels too were used;6 but a month went by without news. On 3 May Bentham wrote rather desperately to Dumont, 1 Works, iv, p. 309. 2Ibid., p. 363. :t Ibid., pp. 362-63. 4 Cf. B.M .,Add MS. 33,553,ff. 31-32; 33,550,ff. 397-99 (extractsprinted, Mack, op. cit., pp. 408-09). The reliability in detail o f these picturesque octogenarian reminiscences (written in January 1828 and March 1831 (respectively) is problematical. Cf. also Barthelemy to Lansdowne, 8 April 1790: B.M., Add. MS. 33,541, f. 121. 5 B.M., Add. MS. 33,541, ff. 119-20 (copy in Bentham’s hand; printed, Works, x, pp. 226-27). 6 Mme. Gautier to Romilly, 1 May 1790: Memoirs o f the Life o f Sir Samuel Romilly written by himself. . . 3rd edn., (London, 1841), i, pp. 303—04. This letter indicates that Mme Gautier (nee Delessert) and her husband (a Paris banker o f Genevan origin) had passed a copy o f Bentham’s Draught to a member o f the constitutional committee.

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asking him in turn to make enquiries of his colleague in the Mirabeau atelier, Jacques-Antoine Du Roveray.1Du Roveray had in fact written on the same day to Dumont, reporting that Bentham’s work had indeed been made available to the Assembly —‘En a pris qui a voulu’.2Bentham’s letter to the President of the Assembly on the occasion of submitting his Draught had, it seems, been printed in the newspapers; but Bonnay, the then President, was not (Dumont feared) the man to further Bentham’s ideas.3 Jacques-Pierre Brissot, with whom Benthaim had lately renewed an earlier friendship,4 published a glowing tribute in his Patriote franfais on 4 May to ‘un des meilleurs juris-consultes que possede maintenant l’Angleterre’.5 On the other hand, the Courier de Provence did not continue its series of extracts beyond 22 May, and by then the discussions of judicial organization in the Assembly had been carried through with little reference to the original report by the constitutional committee, let alone Bentham’s Draught.6 By the middle of the month Bentham felt that he had ‘lost all prospect of being of use in France, at least upon the present occasion’. He commented with wry resignation: My kingdom like other people’s, is not to be of this world, but [when] I get to Heaven I will make as many tribu[nals] as I please, and I’ll promise you they shall [every] one of them have cognizance of everything, and hold none of them more than one Judge . . . As for Juries, I will have none of them, though the 12 Apostles were to offer themselves to make the first.7 Hope was not in fact so easily abandoned. On 6 June 1790 Lansdowne wrote again to La Rochefoucauld enclosing another 1 B.P.U., Dumont MSS., no. 33, ff. 57-58. 2 Bcnetruy, op. p. 274. 3 Dumont to Bentham, n.d. (between 3 and 14 May 1790): B.M., Add. MS. 33,541, ff. 109-10. 4 Cf. Works, x, pp. 190 ff.; J. P. Brissot, Memoires (1754-1393), ed. Cl. Perroud (Paris, n.d. [1912]), i. pp. 363-67. 5 Patriote franfais, no. 269, p. 2. 6 Cf. Dumont to Bentham, cited p. 8, n. 3 above: ‘ Qui auroit devine qu’en traitant l’organisation judiciaire, on ne feroit nulle mention du plan du Comite.’ 7 Bentham to Dumont, i4(?) May 1790: B.P.U., Dumont MSS., no. 33, f. 59. Bentham enclosed (f. 60) a supplement to the extracts in the Courier de Provence, but this was not published.

cit.,

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letter from Bentham to the President of the National Assembly.1 That office was filled, when the letter was delivered, by the Abbe Sieyes, no friend (according to Brissot) to Bentham’s projects.2 Certainly Sieyes’s reply, quoted by La Rochefoucauld to Lans­ downe on 27 June, was discouraging: it was too late to communi­ cate Bentham’s letter to an assembly by this time busy with other subjects. ‘As to the French business,’ Bentham wrote to the ladies at Bowood, ‘the time for perseverance is at an end, and yet I persevere.’3 The latter part of 1790 was indeed a time of disappointment for Bentham. On top of the indifferent success of his plans for the French judiciary came the failure of his hopes of a seat in parlia­ ment through Lansdowne’s patronage.4 On the French side, only the belated appearance of a translation of the Defence o f Usury could be set against the record of failure.5But, as always, new pro­ jects were not slow to take possession of a mind in which the foul weather of diffidence and disenchantment merely punctuated a climate of optimism. The year 1791 began for Bentham in withdrawal and an attempt to pick up loose ends. His work on judicial establishment had been carried as far as it was ever to go. He prepared to publish the com­ pleted fragment of the work on political tactics.6 Prompted by Lansdowne, he made some of its conclusions available to a monCf. La Rochefoucauld to Lansdowne, 27 June 1790: B.M., Add. MS. ff. 131-32. U.C.L., Bentham MSS., clxix. 170-71 are probably drafts for Lansdowne’s letter of 6 June, referred to by La Rochefoucauld; while the second leaf of f. 171 may be a draft of Bentham’s accompanying letter to the President of the National Assembly. 2 Cf. Brissot, op. cit., i, p. 366; also Bentham’s later narratives cited above, p. 104, n. 4. Sieyes was President from 8 to 21 June. 3 Works, x, p. 227. 4 Cf. Works, x, pp. 229-45. 5 Lettres sur la liberte du taux deVinteret del’argent . . . (Paris, 1790). The translator was probably Etienne Delessert, Mme Gautier’s father. Cf. Romilly to Mme. Gautier, 20 August 1790: Romilly, Memoirs, ed. cit., i, p. 308; Bentham to Samuel Bentham, 6 December 1790: Works, x, p. 246; id. to id., 5 April 1791: ibid., p. 249 and n. 6 Essay on Political Tactics . . . Being a Fragment o f a larger Work,a Sketch o f which is subjoined. . ., London, 1791. Some copies contain only Essay VI—i.e. Chap. VI in Works, ii, pp. 330—50. Others include also the opening of Essay V— Chap. V, Works, ii, pp. 327-28, along with the preface reproduced in Works, ii, pp. 330-31 n. The 1791 edition seems to have been in print by 2 February (cf. Benjamin Vaughan to Bentham: Works, x, p. 247). 1 33,541,

485

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IO7

archy as near its final extinction as the Bourbon monarchy of France—the kingdom of Poland.1 He persuaded himself—some­ what in advance of the evidence—that he had in Dumont ‘a zealous disciple’.2 But on the very day Bentham wrote these words Romilly was writing to Dumont: Bentham leads the same kind of life as usual at Hendon; seeing nobody, reading nothing, and writing books which nobody reads.3 Bentham’s chief preoccupation at Hendon was to become almost obsessive for ten years and more—the Panopticon plan for a model prison based on the inspection-house principle devised originally by his brother Samuel while he was employed in start­ ing up industries on Prince Potemkin’s estate at Krichev in White Russia.4 The French fortunes of this quintessentially Benthamic project were undoubtedly favoured by the fact that Brissot, now a member of the Legislative Assembly, was a rising star in French politics. Bentham became, so he wrote, ‘a great man . . . upon the strength of being able to reckon M. Brissot in the number of my friends’.5 He sent Brissot a copy of Panopticon. To Brissot’s col­ league of the assembly, the Pa trio te franc ais, and the Chronique du mois, Jean-Philippe Garrain de Coulon, he sent also a French ex­ tract from the book, translated by Dumont.6 Garrain, who had already shown interest in Bentham’s ideas, brought the matter before the assembly, and the French extract was officially printed before the end of the year.7 Bentham’s offer to come to France in person and establish the model prison was received with applause by the Legislative Assembly on 13 December: on the proposal of x.

1 Lansdowne to Bentham, February 1791: Works, p. 247; Bentham to Lansdowne, 24 February 1791: Lansdowne MSS. 2 5 1791: Works, 249. 3 5 1791: Memoirs, ed. cit., 318. 4 Panopticon or the Inspection-House 1791. (C f Works, 37 172 5 1791 Works, 226. 1789 1790;

Bentham to Samuel Bentham, April x, p. Romilly to Dumont, April Romilly, i, p. ; . .., London, iv, pp. - ). Bentham to Brissot, November : x, p. (Bowring placed this letter in late or early but its contents establish the date given here). 6 Bentham to Garrain de Coulon, 25 November 1791: Works, x, p. 269.

7 Panoptique, Memoire sur un nouveau principe pour construire des maisons d ’inspection . . . Paris, 1791. For Dumont’s authorship of the translation cf. Bentham to Dumont, 26 October 1801: B.P.U., Dumont MSS., no. 33, f. 83.

Jeremy Bentham

486 108

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY

La Rochefoucauld’s kinsman Liancourt, the matter was referred to the legislation committee.1 In committee things languished. By 17 February, on the pre­ text of sending corrections to the French text of Panopticon, Bentham wrote impatiently to Brissot: You are a pretty set of people! You will neither do anything yourselves, nor let anybody do anything for you.2 If, as it seems, Brissot did not reply, that is scarcely surprising: the victory of his party and the launching of the revolutionary war lay only just ahead. Yet even the outbreak of war did not entirely check Bentham’s project. On 19 May 1792 Etienne Claviere, a former member of Mirabeau’s team, now prominent in the Dumouriez ministry, wrote to ask Dumont: Votre ami Bentham n’auroit-il point le courage de vous accompagner pour solliciter l’essai de son panoptique?3 Courage would indeed have been required in the Parisian summer of 1792; and as late as 9 August Bentham seems to have felt that his might be equal to the challenge. On that day he wrote across the top of a letter to Lansdowne: Poor France turned into a Bedlam! Yet I am almost minded to take a peep into one of the cells.4 A month later, though Lansdowne seemingly still favoured the idea, Bentham’s feelings, on the morrow of the September mas­ sacres, had understandably changed. He complained of Lans­ downe’s ‘Lettre de Cachet ordering me to Paris’: he feared lest ‘the innocent blood of a “poor philosopher” . .. dye the handker­ chiefs of the Parisian Amphitrites.’5 The next day Liancourt can­ celled a dinner engagement with Bentham because he had just had news of La Rochefoucauld’s murder in Paris.6 The character of France’s ‘second revolution’ was coming home to a circle where the first had been so hopefully welcomed. 1 C f Works, x, pp. 269-270. 2 Works, x, p. 278. 3 Bcnetruy, op. cit., p. 419. 4 Lansdowne MSS. 5 Bentham to Lansdowne, 9 September 1792: Lansdowne MSS. 6 Liancourt to Bentham, 10 September 1792: B.M., Add. MS. 33,541, f. 363; Bentham to Lansdowne, same date: Lansdowne MSS.; Dumont to Romilly, 11 September 1792: Romilly, Memoirs, ed. cit., i, p. 352.

Jeremy Bentham BENTHAM AND THE FRENCH REVOLUTION

487 10 9

There had throughout been an implicit irony in the fact that Bentham’s nearest approach to official success in France came under Brissotin auspices at a time when the revolution was moving rapidly leftwards. Even before the Constituent had given way to the Legislative Assembly, already in the summer of 1791, Bentham’s reservations had gone beyond questions of procedure, of failure to adopt his ideas, even of metaphysical ideology. His doubts now touched the substance of what the revolution was doing, above all in respect of property rights.1 Now the irony be­ came overt. While Bentham was accommodating refugees from the French ‘Bedlam’ in part of the Westminster property he had inherited from his father in the spring of 1792, the National Assembly was conferring upon him, in mixed but distinguished company, the status of honorary citizen of France.2 Bentham’s letter of thanks, not the least creditable of his writings, makes an eloquent plea for the refugees—‘unfortunate beings’ who ‘Be­ cause they have ill estimated the movement of the general will. .. are crushed with all the weight of its indignation.’3 It was a forlorn plea. Bentham’s relations with the France which had conferred on him an honour he never forgot4 suffered no abrupt or total rup­ ture. With Talleyrand during his abortive mission to London, and with members of the Talleyrand circle, he had fairly close relations during the last months of peace between Britain and France.5 On the eve of Talleyrand’s departure, Bentham gave his secretary, Gallois, an address to the Convention, printed in January 1793 but not till thirty-seven years later published as Emancipate your Colonies! 6 Once more the revolutionary

1 Samuel Bentham to Lord St Helens, 8 July 17 9 1 : Works, x, p. 264, referring to the Draught on judicial establishment—‘When he began it his opinion of the French National Assembly was much better than it is at present. They had not at that time laid violent hands on private property . . .’ ^ On 26 August, under the seal o f Louis X VI; but the republic had been declared before official notification was sent in October: c f Works, x, pp. 280-82. 3 Works, x, p. 282. 4 In 1830 he addressed pamphlets to his ‘fellow-citizens of France’ (cf. Works, i, pp. 525-32; iv, pp. 419-5°)5 Cf. Gallois to Bentham, 4 October 1792: B.M., Add. MS. 33,541, f. 367; Beaumetz to Bentham, 3 November 1792: ibid., ff. 373-74. 6 Jeremy Bentham to the National Convention o f France. January 1393 . ( Works, iv, pp. 407-18). C f MS. note on p. 1 o f B.M. copy, 1127, c. 3(2).

TRANS. 5TH S.--- VOL. 16— H

488 IIO

Jeremy Bentham TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY

experience had crystallized ideas that had for years been present in Bentham’s mind. But this was the last occasion of quite that kind. The six months between September 1792 and March 1793 marked the decisive shift in Bentham’s attitude to revolutionary France. In the autumn he remained somewhat detached, his position balanced between extremes—‘a royalist in London’, as he said, ‘a republican in Paris.’1 ‘The Euthanasia of the British Con­ stitution,’ he wrote about this time, ‘is a Republic.’ But he added at once: The French in forming a Republic are sacrificing the happiness of the present generation to that of the future.2 Six months later he was writing of the ‘inestimable advantage of a formed constitution such as the British’—a system, he went on, in almost Burkean terms, such that ‘So far from being the fruit of wisdom, a priori nobody could have . . . foretold its answering.’3 Rejecting parliamentary reform, he argued that the very excel­ lence of the British system was ‘that it does all that can be wished for from the interference of the people with so little actual inter­ ference’.4 Two years later he was planning a work to be called ‘Rottenness no corruption, or a Defence of Rotten boroughs by the author of the Defence of Usury’.5 This desertion of a cause Bentham had at least tentatively adhered to in or about 17906 has been represented as no more than ‘a Fabian retreat’.7 This is to call Dunkirk a tactical with­ drawal. Bentham wrote nothing in favour of parliamentary re­ form between 1790 and 1809. Not until 1817 did he publish any­ thing to further it.8 The range and depth of his reaction against Works,

1 x, p. 282. 2 U.C.L., Bentham MSS., clxx. 51: headed ‘Constitut. Franc.’, subsequently dated ‘ 1792-3’. The phrase quoted suggests a date in the autumn o'f 1792. 3 clxx. 175: dated ‘ 1793 March’. 4 clxx. 173: headed ‘Constit. 1793’. 5 xliv. 3—5: dated 8 July 1795. 6 cxxvi. i —18; cxxvii. 1—19: partly printed in Mack, Appendices E, F and G, pp. 453-66. 7 The phrase is Mrs Mack’s, p. 440. 8 . . ..• iii, pp. 433—557. Bentham claims indeed (p. 435) to have had publication refused by a newspaper in 1809; but this hardly accounts for an eight-year delay.

Ibid., Ibid., Ibid., Cf. ibid.,

op. cit., Plan o f Parliamentary Reform Works,

op. cit.,

Jeremy Bentham BENTHAM AND THE FRENCH REVOLUTION

489 III

the revolution and the political tendencies associated with it has been quite inadequately realized. Many illustrative passages could be cited. One o f the most striking among the less familiar o f these must suffice: Remember the ides o f September is a momento I always conceive o f as given when I hear o f natural rights: where this is the imagery displayed in front, I always see in the background a cluster o f daggers or o f pikes introduced in the National Assembly with the applause o f the President Condorcet for the avowed purpose o f exterminating the King’s friends. O f late these pikes and daggers have been exhibited in broad day, and pointed out to reasonable and reasoning men, as gibbets used to be to murderers and thieves. But though till lately kept behind the curtain, they were always at hand, and but too close to the elbow o f many a well-meaning man who hardly suspected how near he was to use them, or how void o f all meaning his discourse, his politics, his fancied philosophy was, except in so far as he meant to use them.1 This passionate conviction o f the anarchic implications o f the revolutionary ideology was no passing revulsion from the Terror. T w o years later Bentham was systematically developing the theme in the last o f his substantial works inspired directly by the French Revolution— but how differently inspired from its predecessors! was the title given it when, a decade after Bentham’s death, it appeared at last in English.2 But when, in 1801, Bentham considered offering it to Cobbett or to the , his proposed title was And over twenty years later, in 1823, Bentham was still arguing that the real object o f one who asserts natural rights was ‘T o engage others to join with him in applying force, for the purpose o f putting things into a state in which he would actually

Anarchical Fallacies

Jacobin

AntiPestilential Nonsense Unmasked?

Economic Writings

1 , ed. Stark, i, p. 336. A footnote (pp. 336-37 n.) referring to Condorcet’s being in hiding places the passage between July 1793 and March 1794. 2 ii, pp. 489-534. The term ‘Anarchical Fallacies’ was (perhaps first) used by Bentham in a MS. dated August 1B11: U .C.L., Bentham MSS., civ. 49. For the date o f composition Romilly to Dumont, 27 October 1795: Romilly, , i, p. 389. 3 U.C.L., Bentham MSS., cxlvi. 238-40.

Works,

Memoirs ed. cit.>

cf.

490

Jeremy Bentham 112

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY

be in possession o f the right o f which he thus claims to be in possession . . .V It is important not to misunderstand Bentham’s position. Even in the 1790s he never abandoned the pursuit o f reform, o f legal, administrative, fiscal, and social improvement; but he believed that no useful reforming purpose would be served by major political changes. His anti-Jacobin attitudes are unequivocal— ‘Could the extermination [of Jacobinism] be effected, I should think no price we could pay for such a security too dear; but whether war or peace would give the best chance for it, may be the matter o f very honest difference’.2 Peace, when peace could be securely obtained, was to Bentham by far the better alternative. It is hard not to smile at the naivete o f his proposal, in September 1796, that William Wilberforce (another honorary French citizen) should, with Bentham himself as coadjutor, undertake a peace mission to France.3 But, however naive, it does reinforce the point that Bentham’s reaction against the revolution was not a mere retreat into indiscriminate anti-French panic. T o say this is not to minimize but to emphasize what was said earlier about the profundity o f Bentham’s alienation from the central doctrines o f the revolution. The sources o f that alienation ran deep in his thought. He had rejected natural rights in the 1770s no less decisively, if less vehemently, than in the 1790s.4 The French Revolution, indeed, forfeited Bentham’s goodwill because it so fully and fatally worked out what he took to be the logic o f the American Revolution. Whatever the source and character o f Bentham’s eventual conversion to radical democracy, it was no return to a revolutionary faith, for such a faith Bentham had never held. Radical as he might become in his advocacy o f reform, utility as he understood it always drove a wedge between

Works,

(PannomialFragments)',

1 iii, p. 218 B.M., Add. MS. 33,550, f. 87 shows that the passage was written on 30 December 1823. 2 Bentham to Philip Metcalfe, 31 October 1793: p. 296. 3 Bentham to Wilberforce, 1 September 1796; Wilberforce to Bentham, 3 September 1796: 315—19. It may be apposite also to recall here Bentham’s defence of Benjamin Vaughan against the charges made in 1796: U .C.L., Bentham MSS., clxix. 335—49. 4 He contributed to John Lind’s (London, 1776) a destructive analysis o f the natural rights doctrine in the preamble to the Declaration of Independence: pp. 120-22 and B.M., Add. MS. 33,551, ff. 359-60.

Works, x,

Works, x,

cf. can Congress

An Answer to the Declaration o f the Ameri­

c f op. cit.,

Jeremy Bentham BENTHAM AND THE FRENCH REVOLUTION

491 II3

rational improvement and revolutionary Utopianism. That wedge is not without its historical importance in the subsequent history o f social theory and social policy. It is almost too obvious to be worth saying that the French Revolution was much more important for Bentham than Bentham was for the Revolution. Yet the ground explored in this paper is, for at least two reasons, not o f merely biographical significance. First, Bentham’s experiences between 1788 and 1793 sharply and even poignantly illustrate the complex meeting o f the currents o f reform with the tidal flow o f revolution. Bentham, no doubt, never saw much below the intellectual surface o f the revolution he met in hope but came to fear. Its excesses were for him the product o f fallacies. An isolated passage in which he expresses the conviction that such extremes are ‘essential to this [republican] form o f government in a nation so full o f manufacturers and other day labourers as Britain’,1 may perhaps indicate that he had an inkling at least o f the social and economic forces behind the events he deplored in France. But the devils in that ‘Pandemonium’2 were for Bentham essentially intellectual devils. He did not understand what had happened to the age o f reform; but his experience remains historically important as an exemplification o f it. The second reason for attributing historical significance to this part o f Bentham’s life lies in Benthamism. T o the extent that philosophical radicalism is an important historical phenomenon, major phases in the development o f its presiding genius must be important too. Now it has been argued already that the revolutionary years helped to crystallize ideas and attitudes in Bentham which became characteristic o f his version o f reforming radicalism. But the matter goes further than that. Left to himself Bentham would never have founded a school or launched a movement, for all his ambitions and dreams.3 Benthamism, in virtue o f Bentham alone, did not exist. It had to be invented, and it was in fact invented twice over. W ith James Mill and the second o f these 1 U .C .L., Bentham MSS., clxx. 176: dated ‘ 1793’. 2 Bentham to Wilberforce, 1 September 1796: fPorks, x,p. 315— ‘W e must sooner or later have done fighting with Pandemonium . . .’ 3 The word is used advisedly: in an undated but apparently early MS. (U .C.L., Bentham MSS., clxix. 79) Bentham says: ‘I dreamt t’other night that I was a founder o f a s ect. . . it was called the sect o f the utilitarians . . . ’

492

Jeremy Bentham 114

TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY

inventions we are not here concerned. But the first invention— by another Calvinist ex-minister, Etienne Dumont— is intimately associated with the subject o f this paper. Not only was it the French Revolution that first brought Bentham and Dumont together— that, o f itself, might have led nowhere. But the turn taken by revolutionary development alienated Dumont as well as Bentham and effectively exiled him from what might otherwise have become his adopted country. It can hardly be a mere accident that it was in August 1792 that Dumont first turned seriously to the task o f editing Bentham’s manuscripts.1 His revolutionary occupation was gone, and we know that the problem o f finding an outlet for his talents preoccupied both Dumont and his friends.3 In a real sense, then, the French Revolution made possible the creation o f Benthamism. Much remains to be learnt about the relationship between Bentham and Dumont, but its results are familiar enough— the versions o f Benthamite doctrine which, first in French, and then in translations into many languages (including English) made Bentham’s ideas current in a fashion their originator could never have contrived. One curious footnote may be offered by way o f conclusion. Toribio Nunez, the author o f the first o f many Spanish recensions o f Bentham, tells us how he first encountered Bentham’s ideas when, among the French publications which flowed into Portugal in the wake o f Napoleon’s invading armies, he found Dumont’s To Bentham (who had, in his capacity as a citizen o f France, cast a vote in favour o f the consulship for life for Bonaparte in 1802)4 there might have been some ironic consolation for his disappointments in the years o f revolution in the thought that the military heirs o f that revolution helped to carry his doctrines to the Iberian peninsula and thence to the wider world o f Latin America beyond.

Traites de Legislation?

1 Cf.

Bentham to Dumont, 16 August 1792: B.P.U., Dumont MSS., Dumont to Bentham, 23 August 1792: B.M., Add. MS.

33, ff. 61-62; 33,541, f. 359.

no.

2 Cf. 3 Cf.

Dumont to Romilly, 29 November 1793: B.P.U., Dumont MSS., no. 17, f. 87V0— recounting a conversation with Lansdowne. Toribio Nunez, . . ., Salamanca, 1821, pp. viii-ix. Nunez had previously published (Salamanca, 1820). Bentham to Dumont, 27-30 May 1802: x, p. 389.

4 Cf.

Principios de la Ciettcia Social Sistema de la Ciencia Social. .. Works,

[20]

BENTHAM’S TRANSITION TO POLITICAL RADICALISM,

1809-10

By J. R. D in w id d y It is known that in 1789-90 Jeremy Bentham, having previously been more or less uncritical of the existing forms of government in European states, was briefly converted to democratic views. In the opening year of the French Revolution he decided that the Bourbon regime could not be renovated by any but the most sweeping reforms, and he wrote an essay for the National Assembly arguing that the French should adopt a system of representation based on a wide suffrage and the secret ballot.1 He did not at this time regard such radical measures as necessary in England; but shortly afterwards, as Mary Mack has shown, his examination of English institutions revealed so many abuses and inadequacies that he came to see parliamentary reform as the indispensable prelude to other changes, and in 1790 he sketched out a treatise on this question which anticipated many of the points he was to make in his first published work on the subject twenty-seven years later. Mrs. Mack says that Bentham’s conversion to democracy in 1790 was “ the climactic change in his thought,” and she refutes the “ fiction”— repeated, as she says, by Bain, Halevy, Bertrand Russell, Crane Brinton, Sabine, and Plamenatz— that James Mill converted Bentham to democracy in 1809.2 Yet she admits that owing to the alarming course taken by the French Revolution the original conversion was very ephemeral; three or four years later Bentham was writing against parliamentary reform,3 and he subsequently forgot that he had ever written the fragment of 1790 in support of it.4 So the fact surely remains that the really fruitful turning-point in the development of his political thought came in 1809, when he began the process of drafting and redrafting that was to culminate in the works on parliamentary reform published in 1817 and 1819.5 Some attention has been paid to this turning-point by Halevy and Michael Roberts, but neither of them used the unpublished notes and drafts in Bentham’s papers which throw much light on the evolution of his ideas.6 Professor Roberts’ section on the Parliamentary Reform Catechism uses the pamphlet of 1817

‘E. Hal6vy, La Formation du Radicalisme philosophique (3 vols., Paris, 1901), I, 455ff. 2Mary Mack, Jeremy Bentham: an Odyssey of Ideas 1748-1792 (London, 1962), 17, 416,432-40. 3Works of Jeremy Bentham, ed. Sir John Bowring (11 vols., Edinburgh, 1838-43), X, 293. University College, London, Bentham MSS, box 44, fos. 2-5. Cf. J. H. Burns, “Bentham and the French Revolution,” Transactions of the Royal Historical Society, 5th series, 16 (1966), 110-12. 4Bentham MSS, box 44, fo. 1. Mack, op. cit., 441. Plan of Parliamentary Reform, in the form of a Catechism (London, 1817). Bentham’s Radical Reform Bill, with extracts from the Reasons (London, 1819). BHal6vy, The Growth of Philosophic Radicalism, trans. Mary Morris (2nd ed., London, 1934), 256 seq.; and M. Roberts, The Whig Party 1807-1812 (London, 1939), 259 seq. Nor are these papers made use of in K. M. Adams, “How the Benthamites be­ came Democrats,” Journal of Social Philosophy and Jurisprudence, 7 (1942), 161-71.

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Jeremy Bentham

684

J. R. DINWIDDY

and discusses it in the context of the reform movement of 1809; but although the catechism itself (which covers only about a dozen pages in Bentham’s collected works) was written in 1809,7 the long introduction8to which Roberts’ points chiefly refer was written considerably later, in 1816- 17. What Bentham did write (in addition to the catechism) in the twelve months or so after August 1809 was a total of some thousand pages of draft material9 for a projected work on parliamentary reform, plus five hundred pages on the subject of sinecures.10This last group of papers may originally have been intended as part of the work on reform of parliament,11 but came to form a separate study. The other papers carried the general heading “ Parliamentary Reform” and were ranged under three principal sub-headings: “ Necessity,” “ Influence,” and “ Plan.” Bentham apparently designed the work in three main sections, one on the reasons why reform was necessary, another on the various kinds of influence that could be exerted over voters and representatives and which of these were legitimate, and another on the actual measures of reform which he wished to see effected. The more detailed arrangement of the work will not be discussed in this article, nor can any attempt be made here to provide a general analysis of the whole body of papers. But the reasons for Bentham’s conversion— or return— to political radicalism will be examined, together with the main features of the new doctrine he was shaping in these lengthy drafts of 1809- 10. The extent of James Mill’s influence over Bentham in 1809 is not directly deducible from the latter’s manuscripts; but some new evidence can be produced to confirm Halevy’s inference that Mill’s entry into his life in 1808 was a crucial factor in turning Bentham into a radical. The one piece of evidence that Halevy gave for this supposition was a passage in an article on Spanish American politics which Mill wrote for the Edinburgh Review of January 1809— a passage in which he made a novel attempt (Halfcvy said) “ to base the theory of representative government on the principle of utility.” 12 In fact there is a somewhat earlier and perhaps more striking adumbration of the Utilitarian argument for representative government in an article Mill wrote for the same review in October of the previous year. He maintained in this essay (“ Leckie on the Foreign Policy of Great Britain” ) that the condition of Sicily showed the inevitable effects of a political system which allowed one order of the citizens to pursue its own ends without any check or control from the rest. “The natural feelings of men impel them to be much more solicitous for their own interests than for the interests of others,” he wrote. Whenever the joint affairs of a community are not managed by the joint influence, fairly compounded of all the orders of which it consists— whenever the small number acquire the whole, or the greater part of the direction of the common interests, they are sure to draw towards themselves the advantages, and thrust upon the multitude the burdens of the social union, to the utmost of their power. 7Bentham, Works, 111,435,458. 8Draftsin Bentham MSS, boxes 125,129(a), 129(b). interspersed with later material in Bentham MSS, boxes 125-30. X0Ibid.> box 147. 1 ‘Some of the early pages (e.g., fos. 109-16) were re-headed “Sinecures” after being initially headed “Parliamentary Reform.” 12Halevy, op. cit., 257.

495

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685

He went on to say that even in England since the Revolution of 1688, despite the existence of more safeguards for the people’s interests than had ever been established in any other government, there had been a tendency for the aristocracy to increase its power and exploit its position. He argued that the system of taxation, to a much greater extent than was generally supposed, favored the higher orders and threw the main burden onto the middle and lower; that the composition of the House of Commons had become less dependent on the voice of the people; and that the enormous revenue of the government, which was mostly taken from the pockets of the people, mostly found its way into the pockets of members of the higher ranks by whom so many of the lucrative offices were held.13 He was also convinced, as is clear from other passages which he wrote in the years 1808- 09, that the preponderance of landowners in parliament had produced legislation which favored the landed interest at the expense of other sections of the community.14 Of course his ideas were not wholly novel. The Manchester radical Thomas Cooper had written in 1792: “ It will be found on examination (whether pursued with a view to mere theory, or the evidence of past facts), that every government has been, and will be conducted for the advantage in the first instance of the governors, whoever they are: and the whole secret [of good government] lies in making those the actual governors, whether directly or indirectly, whose interests and welfare are intended to be the main object of the government.” 15 Similarly Bentham had written in 1790 that “ the stricter the dependence of the governors on the governed, the better will the government be.” 16 In 1808— 09, however, it seems that Mill led the way in formulating, or reformulating, the basic argument on which the Utilitarian case for democracy was to be built. Bentham himself did not start writing about parliamentary reform until the summer of 1809— and here there is a notable coincidence of dates that tends to confirm the theory of Mill’s influence. Bentham had rented a house at Oxted as a summer residence, and James Mill and his family joined him there for a two-month visit at the end of July. It can be seen from the dated sheets on which Bentham wrote his drafts that it was just at this time, in the first half of August, that he began applying himself intensively to the reform question.17 Another factor which may have been important in changing the character of Bentham’s politics was the impact of events in Spain and Spanish America. Brougham and Jeffrey, in the famous “ Don Cevallos” article in the Edinburgh

13Edinburgh Review, 13 (Oct. 1808), 196-98. The article is only tentatively at­ tributed to Mill in The Wellesley Index of Victorian Periodicals, vol. I, ed. Walter E. Houghton (Toronto, 1966), 444; but a comparison between the passage quoted above and that quoted by Halevy from Mill’s article of Jan. 1809—together with a reference to “his [i.e. Mill’s] Leckie” in a letter from Jeffrey to Brougham (19 Oct. 1809, University College, London, Brougham MSS)—leaves no doubt as to the authorship. 14James Mill, Selected Economic Writings, ed. Donald Winch (Edinburgh, 1966), 9-10,96. Eclectic Review, 5 (Jan. 1809), 51. 15Thomas Cooper, A Reply to Mr. Burke's Invective against Mr. Cooper and Mr. Watt, in the House of Commons, on the 30th of April, 1792 (Manchester, 1792), 27. George Dyer, The Complaints of the Poor People of England (London, 1793), 12. 16Mack, op. cit., 455. 17Alexander Bain, James Mill (London, 1882), 72-73, 99-101. Bentham MSS, box 104, fo. 78; box 126, fos. 406 seq.; box 127, fos. 168ff.

Jeremy Bentham

496 686

J. R. DINWIDDY

Review

(Oct. 1808), maintained that the Spanish rising against Bonapartist rule had decisively shifted the balance of political sentiment in England away from anti-Jacobin alarmism and in the direction of liberal sympathies; “ the cause of freedom and reform,” they wrote, was now on a better footing than it had been even at the beginning of the French Revolution.18 James Mill and Bentham’s friend Dumont were both enthusiastic about the liberation of Spain and the Spanish colonies. Dumont began revising his translation of Bentham’s Political Tactics in the hope that it would be of use to Spanish statesmen, and Mill wrote a spirited article in January 1809 called “The Emancipation of Spanish America.” At the same period Bentham himself seriously considered going to live in Mexico, and there was even a wild idea that his American friend Aaron Burr would set up an independent empire there with Bentham as his legislator. In 1809 Bentham was in contact with Don Gaspard de Jovellanos, a leading member of the Spanish Junta, and with General Francisco de Miranda, soon to become the first ruler of an independent Venezuela; indeed in August Mill wrote to Miranda at Bentham’s request inviting him to join them at Oxted.19 The drafts on parliamentary reform which Bentham was composing at this time do not show a direct connection between his new interest in this subject and his interest in constitutional renovation in Spain and the establishment of new states in Spanish America. But it is likely that such a connection existed—just as in 1789-90 his concern with the remodeling of political institutions in France had made him look with a more radical eye at English institutions. In England, in 1809, there was a marked revival of radical feeling, but this was due less to events abroad than to a sensation at home— the investigation into the conduct of the Duke of York as Commander-in-Chief. The inquiry ended in a storm of indignation against the House of Commons when the House acquitted the Duke of corruption in spite of a widespread popular belief that he was guilty. Bentham was not particularly stirred by this affair— in fact he described the instances of corruption and misgovern ment which it revealed as “ comparatively trifling.” 20 He did pay some attention to current controversy on reform,21 but on the whole the domestic events and abuses which affected him were different from those which lay behind the radical agitation in the country. This is clear from some jottings he made, before he settled down to elaborate his ideas on reform, in June and July 1809: especially from a list dated 4 July setting out the grievances which in his view made political reform necessary.22 He included sinecures, which were a subject of public and parliamentary interest at that period;23 but most of the grievances he mentioned

18Edinburgh Review, loc. cit., 221-23. 19Dumont to Bentham, 15 Apr. and 26 Aug., 5 Sept. 1808, British Library Addi­ tional MSS [Add.MSS] 33544, fos. 356, 368, 375, 384-85. Edinburgh Review, 13 (Jan. 1809), 277-311. Bentham, Works, X, 432-48. W. Spence Robertson, Life of Miranda, 2 vols. (Chapel Hill, 1929), II, 63 . 20Works, X, 449. 21See the short list of recent publications on the subject which he made out on 25 June, Bentham MSS, box 127, fol. 116. Note also his copy of Curwen’s Bribery Act of June 1809, and his dismissive remarks about it (ibid., box 125, fo. 411; box 127, fo. 62). 22Ibid., box 127, fo. 117. 23Roberts, op. cit., 183-90. Bentham’s unpublished work on sinecures, written in the Spring of 1810, consisted partly of an extended critique of the third report of the Com­

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were more idiosyncratic and more specifically related to the law: e.g., “ Virtual Outlawry of the bulk of the people. Preference given by the Laws to the superior to the prejudice of the middle and inferior ranks. . . . The statute law in a state of chaos. . . . On the occasion of Scotch Reform among Commissioners not one who had manifested any signs of his having applied his mind to the subject.” This last point referred to the commission on the judicature of Scotland, a subject in which Bentham was deeply interested. Since June 1806, when Grenville had introduced resolutions in the House of Lords as a preliminary to a legislative reform of civil justice in Scotland, Bentham had devoted much of his time to working out proposals of his own for Scottish legal reform;24 and the treatment of this question by the legislature had become for him something of a test case, a trial of parliament’s goodwill and effectiveness. In the three years or so before 1806, Bentham’s chief concern had been his analysis of the law of evidence, and in the course of this study he had become more than ever convinced that the obscurities, complexities, delays, and inordinate expenses which characterized English legal procedure were the outcome of the “ sinister interest” of the legal profession. The reason, in his view, why the system was so bad was that “ the power found itself in company with the interest, and consequently the will, to produce as bad a system as the people, with the legislature at their head, could in their primeval, and as yet but little ameliorated, state of relative ignorance and helplessness, be brought, by the utmost stretch of artifice, to endure.” 25 Bentham had long regarded it as axiomatic that individuals or groups, if entrusted with irresponsible power, could only be expected to use that power for the promotion of their own interests. He noted in 1805 that this axiom applied to government as well as to any other branch of human activity; but at that stage he still regarded the legislature as a body sufficiently identified with the public to moderate in some degree the exploitation which the public suffered at the hands of lawyers: it provided some protection by “ interfering for the benefit of the people, and removing more or less of the mountain of abuse and injustice which the fraternity of lawyers were so constantly employed in raising up in the pursuit of their own sinister ends.” 26 In reaching the very different view of parliament which he expressed in 1809, he was definitely influenced by its behavior over the Scottish judicature question. His pamphlet on Scotch Reform ( 1808) had been intended as a contribution to parliament’s consideration of the subject,27 but no official, and little unofficial,

mons select committee on public expenditure (presented in June 1808 and considered in a committee of the whole house in June 1809); and partly of Bentham’s own more rigorous analysis of the issues which the committee had discussed. See Bentham MSS, box 147; Parliamentary Papers 1808, III, 257 seq.; Cobbett’s Parliamentary Debates, XIV, 862-81,957-60. 24Parliamentary Debates, VII, 730-36. Bentham MSS, boxes 82, 91-94, 168. Scotch Reform (1808), Works, V, 1-53. 25 Works, V, 4. 2fiBentham MSS, box 47, fos. 176-77. 27 Works, V, 3. He had wished, through Sir Samuel Romilly, to offer the House of Commons his gratuitous services in preparing a code of law for Scotland; but Romilly had told him that—the temper and principles of the House of Commons being what they were—such a disinterested offer would be “absolutely incredible” and would excite nothing but ridicule (ibid., X, 432).

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notice had been taken of it.28 Lord Eldon had carried a small measure of reform in 1808, but Bentham regarded it as nugatory;29 and although a commission had been appointed to investigate the need for further reforms it appeared from discussions in parliament in 1809 that this body had not yet got down to business.30 Bentham was shocked by the general perfunctoriness of the proceedings— and particularly by the threadbare arguments which Perceval and Robert Dundas were able to get away with in the House of Commons in replying to Francis Horner’s criticisms of abuses in the Court of Session.31 By the summer of 1809 he was convinced that what he had seen as a marvellous opportunity of purifying and rationalizing the law of Scotland would in fact produce no improvement of consequence. The legislature, he now saw, habitually deferred to the lawyers within it on any legal question, and would carry no measure relating to the law without the lawyers’ sanction.32 This realization had major implications for Bentham’s whole strategy as a reformer of the law. He had always believed that what was necessary to reduce English law to order and simplicity was codification— the conversion of jurisprudential or “judge-made” law (i.e., common law) into enacted or statute law.33 He had recognized that statute law was itself unsatisfactory in its present state,34 but he had assumed that its imperfections were remediable. By 1809, however, he had lost any hope he may have had that parliament would one day embark on the task of codification; and he had decided that the chaotic state of statute law arose endemically from the fact that the unreformed parliament had no more interest than the judges did in making the law intelligible to the public.35 For the notion that the legislature had provided some check to the growth of legal abuses, he now substituted the theory that abuses in the law and abuses in parliament were symbiotic. Members of parliament were themselves beneficiaries of abuses and were united in one “confederated sinister interest” with others who benefited from abuses in other shapes.36 This partnership he saw as deriving from the fact that those who profit from a particular species of abuse will naturally join in the protection of other abuses from which they draw no direct profit— both “ on account of the mischief done in the way of precedent to their interest in any instance in which abuse in any shape receives correction, and in consideration of the assistance they may expect to secure in return, for the eventual protection of abuse in that special shape in which they possess their special interest.” 37 Thus parliament and the legal profession (directly linked by the lawyers who had seats in parliament) were allied against the people, and so

28But cf. James Mill’s enthusiastic review in Annual Review and History of Literature, 7 (1808), 198-203^ 2948 Geo. Ill, c. 151. Works, V, 47. 30Parliamentary Debates, XIV, 405-08, 889-95. 31Ibid., XIV, 1016-18. Bentham MSS, box 127, fo. 114. 32Cf. Rationale of Judicial Evidence, Works, VI, 207. 83See, for instance, Bentham MSS, box 49, fos. 291-95. :i4A Comment on the Commentaries, ed. C. W. Everett (Oxford, 1928), chaps, x and xii. 35For further remarks about the “disorderliness” and other imperfections of English statute law, see Nomography, Works, III, 238-41. 36Bentham MSS, box 126, fo. 304. 37/&/