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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Serie: Classic Thinkers series
- Sprache: Englisch
Jeremy Bentham - philosopher, theorist of law and of the art of government - was among the most influential figures of the early nineteenth century, and the approach he pioneered - utilitarianism - remains central to the modern world. In this new introduction to his ideas, Michael Quinn shows how Bentham sought to be an engineer or architect of choices and to illuminate the methods of influencing human conduct to good ends, by focusing on how people react to the various physical, legal, institutional, normative and cultural factors that confront them as decision-makers. Quinn examines how Bentham adopted utility as the critical standard for the development and evaluation of government and public policy, and explains how he sought to apply this principle to a range of areas, from penal law to democratic reform, before concluding with an assessment of his contemporary relevance. He argues that Bentham simultaneously sought both to facilitate the implementation of governmental will and to expose misrule by rendering all exercises of public power transparent to the public on whose behalf it was exercised. This book will be essential reading for any student or scholar of Bentham, as well as those interested in the history of political thought, philosophy, politics, ethics and utilitarianism.
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Seitenzahl: 445
Veröffentlichungsjahr: 2021
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Table of Contents
Cover
Series Title
Title Page
Copyright Page
Dedication
Acknowledgments
Abbreviations
Introduction
1 Life and Logic : What Matters, and Why?
§ 1. Life and Work
§ 2. Logic and Language
Conclusion
Notes
2 The Principle of Utility : Raising the Fabric of Felicity by the Hands of Reason and Law
§ 1. Psychology
§ 2. Morality
§ 3. Competing Principles
§ 4. Measuring Pleasures and Pains
Conclusion
Notes
3 Direct Legislation : Bentham and Penal Law
§ 1. Law and Direct Legislation
§ 2. Ends of Punishment
§ 3. What to Punish, and What not to Punish
§ 4. How Much to Punish
§ 5. How to Punish: Properties Desirable in Punishments
Conclusion
Notes
4 Indirect Legislation
§ 1. Acting on Will
§ 2. Acting on Power
§ 3. Acting on Knowledge
§ 4. Indirect Legislation, Behavioural Economics and Libertarian Paternalism
§ 5. The Moral and Religious Sanctions
§ 6. Fooling the Public?
Conclusion
Notes
5 Civil Law and Political Economy
§ 1. Subordinate Ends of Legislation
Subordinate Ends as Universal Human Interests
Subsistence
Security
Abundance
Equality
§ 2. Political Economy
Departures from Smithian Orthodoxy
1. Defence of a Maximum
2. Paper Money
Conclusion: Smith and Bentham – the Politics of Political Economy
Notes
6 Principals, Agents and Institutional Design (I) : Panoptic Architecture and Management
§ 1. The Inspection–Architecture Principle
§ 2. Complementing Architecture: ‘Book-keeping’, Contract-Management and Public Scrutiny
Acting on Knowledge and Power
Acting on Will
§ 3. Foucault, Panopticism and Governmentality
Conclusion
Notes
7 Principals, Agents and Institutional Design (II) : The Prevention of Misrule
§ 1. Early Indifference
§ 2. 1789 and After
§ 3. Bentham’s Journey to Political Radicalism
§ 4. Bentham’s Democratic Polity
Supreme Constitutive and the Public Opinion Tribunal
Supreme Operative: Legislature, Administrative and Judicatory
Conclusion: Two Issues
Notes
8 International Law, the World Next Door
§ 1. International ‘Law’
§ 2. Bentham on Colonies
Notes
9 Jeremy Bentham: Why Bother?
How should we be governed?
Climate Change
Notes
References
Manuscript Sources
Print Sources
Index
End User License Agreement
Guide
Cover
Table of Contents
Begin Reading
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Classic Thinkers series
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polity
Copyright Page
Copyright © Michael Quinn 2022
The right of Michael Quinn to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2022 by Polity Press
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Library of Congress Cataloging-in-Publication Data
Names: Quinn, Michael, 1961- author.
Title: Jeremy Bentham / Michael Quinn.
Description: Medford, MA : Polity Press, 2022. | Series: Classic thinkers | Includes bibliographical references and index. | Summary: “An erudite introduction to the ideas of the father of utilitarianism”-- Provided by publisher.
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Dedication
Für Angela, eine wahre Freundin, die immer daran geglaubt hat.
Acknowledgments
This book is informed in part by fifteen years of teaching students at UCL about Bentham’s thought. I am grateful to them for asking questions to which I had no answers, and contributing in many ways to my understanding of that thought (though I still lack the answers to some of the questions). Another important source of learning has been the parallel editing of parts of Bentham’s corpus for the ongoing critical edition of his writings, The Collected Works of Jeremy Bentham. I need to say a heartfelt thanks to Fred Rosen for giving me the opportunity to begin working on Bentham in 1993, and to Philip Schofield for renewing the opportunity in 2004.
Over the years, many Bentham scholars have been generous with their time and energy in discussion, and in reading and commenting on arguments, and I can only hope that I have been equally obliging. Singling out individuals is always invidious, but I would like to express particular thanks to Jean-Pierre Cléro, Doug Long, Stephen Engelmann, David Lieberman and Peter Niesen. Xiaobo Zhai deserves special thanks for asking too many questions to which I had no convincing answers, and obliging me to think anew. The public policy focus of the book has been present since the beginning, but developed considerably in exhaustive discussions with Malik Bozzo-Rey and Angela Marciniak in 2019. I am very grateful to both, and I hope they are not too disappointed with the result.
This book was written while holding a research fellowship awarded by the DFG Collaborative Research Centre SFB/TRR 138 ‘Dynamics of Security. Types of Securitization from a Historical Perspective’ at Philipps-University Marburg and Justus-Liebig University Giessen. I am deeply grateful to Professor Horst Carl and the Board of SFB/TRR 138 for the invitation, and to the staff of the Research Project for their unstinting efforts to make this Englishman feel welcome in Germany. The fact that I arrived in tandem with COVID-19 has meant that I have seen less of the country than I would have liked, but I have been deeply touched by the care for my welfare demonstrated by Professor Carl and the denizens of the ninth floor of the History tower, and in particular Mark Chaouali, Marina Kraft, Sarah Kramer and Eva-Maria Nitz (especially for making the effort to get me to speak German: es ist immer noch schlecht, aber ich werde mich mehr bemühen). I stand deeply in their debt.
I am grateful to Tim Causer and Benjamin Bourcier, who gave helpful feedback on drafts of chapters, and to Chris Riley, who read the whole text and assisted with troublesome references. My greatest debt is to Angela Marciniak, who has been a never-failing source of support, encouragement and constructive challenge, and who commented on the chapters as they were drafted, while the missteps that remain are mine alone. I cannot begin to return adequate recompense for her friendship and support, but I can say that without it this book would not have seen the light of day.
Parts of Chapters 3 and 4 originally appeared in a special issue of History of European Ideas, Indirect Legislation: Jeremy Bentham’s Regulatory Revolution (Bozzo-Rey, Brunon-Ernst and Quinn, 2017) (https://tandfonline.com). I am grateful to Taylor and Francis for permission to reproduce revised versions here.
I need to say thank you to three referees who reviewed the draft carefully and who all improved it, and finally to record my appreciation for the tact, patience and skill of George Owers and Julia Davies at Polity: working with whom has been a pleasure.
Abbreviations
BL Add. MS
British Library, Additional Manuscripts
MS Dumont
Bibliothèque de Genève, Manuscrits Étienne Dumont
UC
Bentham Papers in the Library of University College London. Roman numerals refer to boxes in which the papers are placed, Arabic to the leaves within each box.
Introduction
To have compleated the junction between interest and duty in every line of human conduct would be neither more nor less than to have brought the science and art of government to perfection – to have established a perfect system of legislation. (2010a: 353)
The Bentham presented in this book is a Bentham who believed that the principle of utility was applicable in all contexts, but whose central focus was on the delivery of good outcomes by public institutions. In other words he was, above all, with Engelmann, a ‘theorist of the art and science of government’ (2017: 71), both in the sense that government was an engineer of the context in which its subjects made choices, and in the sense that the context in which government and its functionaries made choices was in large measure created by the choices of those same subjects. In the current crisis of political liberalism, this approach remains relevant, not to say urgent, across political communities (see Ch. 9: 171–4).
Of course, Bentham does not provide ready-made solutions to the problems that beset modern society, but he does provide a method of framing them that is as relevant now as when first developed. His chosen instrument was law, understood in a very broad sense, and relying on public knowledge and general endorsement (or at least the absence of general resistance) for its effectiveness. His investigations took him in many directions, often sparked by the political salience of particular problems, and his ideas on central issues, especially representative democracy, changed radically. That said, his central frame, based on the combination of two elements, never varied. Those elements were first, the explanation of events and the recommendation of policies on the basis of a belief in the motivational power of self-preference; and second, the evaluation of actions, laws and policies on the basis of their impact on the happiness of those affected by them. If happiness remains valuable, the study of Bentham has much to offer.
It is true to say that once launched on the study of a topic, Bentham followed where the logic of his argument led him, regardless of the popularity of particular conclusions (see Schofield, 2009: 18). In this he is in one way a quintessential Enlightenment rationalist, with a strong belief in the powers of human reason to improve the condition of mankind. His distinction between the role of the expositor (accurate description of things as they were) and the censor (indication of things as they ought to be) (1977: 397–8) led via John Austin to the development of legal positivism. Schofield (2010) is correct in arguing that for Bentham the role of the expositor was to facilitate that of the censor: description preceded evaluation, but utilitarian evaluation was the goal. The existence of an institution or a practice was not a justification for it, and, at bottom, all practices and institutions required justification. At the same time, his approach was pragmatic: what he sought was real-life solutions capable of working in practice and delivering improvements. He was fond of quoting Francis Bacon’s aphorism ‘Respice finem’ (‘look to the end’), believing that the questions to be asked of any rule or institution were ‘What is it for?’, that is, ‘What is it (or should it be) trying to achieve?’, and ‘Does it achieve its goals with the least possible infliction of pain?’ The questions remain as relevant today as when he first put them.
This book is not an attempt to defend Bentham against his many critics, historical or contemporary. It will argue that there are unresolved tensions in his thought. In particular, he wanted to retain the attractions and advantages of two different, if not contradictory, interpretations of his foundational principle (Chs. 2, 7 and 8), and his attempt to accommodate the value of equality within the principle of utility finessed far too easily the consequences of its consistent sacrifice to security (Ch. 5). Hanna Pitkin entitled an article ‘Slippery Bentham’ (1990) and, for all his self-imposed goal of clarity, he was capable of using an expression in whichever one of plural senses best suited the requirements of the argument he was making. He could be selective in assembling empirical evidence in support of his positions, and he was sometimes as guilty as the rest of us of finessing lacunae or tensions in his arguments. All this is true, but it remains the case – partly indeed because of the tensions in his thought – that familiarity with Bentham’s arguments and conclusions is usually worth the pains of its acquisition.
The early Bentham wrote clearly and even stylishly, but was frustrated by the question-begging, value-laden nature of many of the terms used in moral and political discourse (1983b: 87–98). Ironically, in his effort to develop a vocabulary free from the eulogistic or dyslogistic baggage of that in common use, he was prone to inventing new terms, many of which required lengthy explanation (see Rosen, 1983: 128–9). In addition, the later Bentham especially was so anxious to aid clarity by circumscribing his inferences in chains of qualifications and exceptions that it became hard work to keep track of the sense. William Hazlitt famously said that for Bentham to be read he first required to be translated into English (1894: 18), which was an exaggeration, though even Bentham’s friends could see what he was driving at.
Before outlining the arc of the book in relation to the successive chapters, it may be of use to introduce several features of his thought that will appear repeatedly. First, Bentham explicitly founded his prescriptions on generalizations about the workings of human psychology or ‘axioms of mental pathology’, which effectively suspended all the variables, individual, attitudinal or cultural (in his terms ‘circumstances of sensibility’ (1996: 51–73)), which impacted differentially on human individuals’ experience of pleasures and pains, to make universally applicable statements. Mental pathology relied on ‘knowledge of the feelings, affections, and passions, and their effects upon happiness’, while he considered its axioms relating to ‘the several occurrences by which pleasure or pain is made to have place in the human mind’ as incontestable, comprehensive, and clear (1843: i. 304–5; see also 2011b: 248–9, 266–8). Second, from axioms of mental pathology Bentham derived four subordinate ends of legislation (security, subsistence, abundance and equality) intended to guide the legislator in identifying the most important pleasures and pains and in drafting civil or distributive law (1843: i. 302–26; 2011b: 268–79). The four ends constitute Bentham’s version of objective human interests, together capturing both the central conditions for satisfying or happy lives and, with emphasis on protection of security by law, the source of the ‘essential obligations by means of which society is kept together’ (2011b: 174–5). Third, Bentham approached many problems in terms of two parallel internal discourses: an abstract utility discourse, which set aside particular cultural, religious and social contexts, and made inferences derived from the psychological commonalities shared by human beings as such, and a concrete or sociological discourse, which modified the general conclusions of the abstract discourse in the light of the cultural and social beliefs and practices prevalent in particular contexts (2011b: 174). Since no human life is lived in the abstract, it is the concrete ‘final utility’ discourse that finally determines policy. In Bentham’s terms, axioms of mental pathology have to be accommodated to, or filtered by, circumstances of sensibility, and especially to the prevailing patterns of belief in the contexts in which policies were to be applied (see Quinn, 2014b). Finally, the purpose of law is to guide action, while no voluntary action could occur without the coincidence of three necessary and sufficient conditions: desire or will to perform it, knowledge of how to perform it, and power or capacity to perform it. Law or policy-makers might influence conduct by acting on any or all of these conditions, while their choice between which to target determines the distinction Bentham made between direct and indirect legislation, and informs the development of his multi-faceted strategies for guiding action which extends across the possible field of governmental interventions.
The book begins with a sketch of Bentham’s life and then engages with his logic, which underlies two of his central claims. First, that his logic permitted the substitution of the exchange of sense for the exchange of meaningless cant, literal nonsense, in discussion of morality and law; and second for the superiority of his theory – anchored as it was in the real entities of pleasure and pain – over others. Chapter 2 discusses Bentham’s psychology and theory of motivation, and an apparent tension between it and his moral principle. It argues that if that principle coincided with general benevolence, as he often claimed, when it came to practice in the real world the coincidence was with benevolence in a more limited and negative sense. Bentham’s discussion of competing moral principles is reviewed, and his attitude to the problem of measuring sensations investigated. The book does not address the intricacies of Bentham’s theory of law but, instead, in Chapters 3 and 4 develops his distinction between direct and indirect legislation to open the way to discussion of his applications of the utility principle to public policy, which occupies the remaining chapters. Chapter 5 presents Bentham’s subordinate ends of legislation, and his use of them in setting the normative background for his political economy, of which the goal was the maximization of abundance. Other things being equal, an equal distribution maximized happiness but, given established entitlements and the importance of expectation to happiness, other things were almost never equal, and equality is consistently trumped by security for the expectations actually present in societies riven by deep inequalities in property. Chapter 6 shifts the focus to institutional design, and describes Bentham’s attempts to unite agents’ interest with their duty through architecture, transparency and publicity. The chapter reviews the principles of management developed in his panopticon and poor-law writings in terms of the necessary conditions of voluntary action, before concluding with a discussion of Foucault’s complex interpretation of Bentham. Chapter 7 traces the to-and-fro development of Bentham’s views on representative democracy, before providing a sketch of his design for a system of government that combined the knowledge necessary to rule with continuous responsibility to an informed and critical public opinion. It argues on the one hand that Bentham’s enduring fear of popular ignorance led him to exclude the poor from the exercise of governmental power, and on the other that his indefatigable efforts to expose the exercise of that power to relentless public scrutiny provide lessons from which we might still learn. Chapter 8 attempts to shed light on the tension over the scope of the principle of utility identified in Chapter 2 by discussion of Bentham’s efforts to apply it to international law, which finally rely on the potential appeal of negative benevolence to all states, and to the question of colonies, which combined a radical anti-imperialism with a breath-taking disregard for indigenous peoples. Chapter 9 presents a case for Bentham’s continued relevance in an era of widely perceived crisis in governance, and concludes with an examination of the resources available within his theory for addressing the issue of human-induced climate change.
The focus of this study is Bentham as a theorist of government. Given the breadth and fecundity of his thought, many parts of it will not be directly addressed. Thus, his writings on private ethics, ‘adjective law’ or procedure, religion and fallacies, and his detailed critiques of natural right will be addressed only in passing. Bentham’s default perspective is that of government, of a utilitarian legislator seeking to guide human action by manipulating its necessary conditions. His writings are explorations of methods of influencing human conduct to good ends, and their fundamental tool is analysis of the interaction between human agents facing decisions about what to do on the one hand, and the architecture of choice – the constellation of physical, legal, institutional and normative factors that influence decision-making – on the other, which is to say that Bentham was self-consciously an engineer of choices.
It might be objected that this perspective renders his theory necessarily ‘top down’, with the hapless subjects of law dancing to the legislator’s tune and even, thanks to habitual deference and false consciousness (a term which for Bentham meant the belief that something existed which did not exist (1996: 75)), passively endorsing their manipulation and indeed actively assisting it. Broadly, this is the Foucauldian critique of modernity and of Bentham, whom Foucault described as more important to modern society than either Kant or Hegel (1994: ii. 594). The argument of this book is, crudely, that Foucault was half right. Bentham, even before his transition to political radicalism, was simultaneously a technologist of governmental reason and an exposer of misrule, seeking both to oil the wheels of public power and to render its exercise transparent to the public over whom, and on whose behalf, it was exercised.
A Word on Sources
Bentham was a prolific writer but positively awful at bringing his writings into publishable form, with the result that at his death he left some 70,000 pages of manuscript, most of which is now held by UCL special collections. The reputation he gained in Europe and America as an important thinker on law and politics was owed to the simplified recensions of his manuscripts edited in French by the Genevan Étienne Dumont (see Blamires, 2008), especially Traités de législation civile et pénale (1802). In Britain, for well over a century Bentham’s writings were available largely through the inadequate edition of his works overseen by John Bowring (1843), large parts of which were retranslations of Dumont’s recensions. In 1959, the Bentham Committee was established at UCL to oversee a critical edition of Bentham’s writings, and the first volume was published in 1968. Thus far, thirty-four of a projected eighty volumes have appeared, so that there remains much to come.
Until relatively recently any influence that Bentham had, other than through direct contact, was exercised by what Lieberman calls ‘the historical Bentham’ (1999), that is the one known through the works he did publish and the editions of Dumont and Bowring. The vision informing the work of the Bentham Project is to make available a more ‘authentic’ Bentham, derived from scholarly editing of both published writings and manuscript sources. Of course, no edition can ever be unproblematically authentic: the authentic Bentham died in 1832. Every editor constructing a text brings with them their own conscious or unconscious presuppositions and biases, while putting a Bentham volume together requires countless decisions, great and small, which impact on both shape and content. That said, the effort to assemble texts by studying the evidence of their origin and development, and attempting to realize what the editor takes to be Bentham’s most developed intentions in regard to their presentation, must be the right approach.
Finally, it would be a dereliction of duty not to advertise the opportunity for everyone to try their hand at reading Bentham’s hand and contribute to the completion of a major and perennially under-funded research project through the Project’s ‘crowd-sourcing’ initiative. Those interested should visit https://www.ucl.ac.uk/bentham-project/transcribe-bentham
1Life and Logic: What Matters, and Why?
Nonsense . . . is not a mere vague reproach: . . . it is a meaning definite and compleatly defensible. Nonsense – what is it but . . . words without corresponding ideas of which they are the sign. (UC lxi. 34 (1828))
§ 1. Life and Work
On 15 February 1748 Alicia Bentham (née Grove) gave birth to her first child Jeremy in Houndsditch in East London. Alicia had six more children over the next nine years, of whom only the last, Samuel (1757–1831), survived infancy. Bentham’s lifetime witnessed massive historical changes, beginning two years after the last pitched battle on British soil, ending as the Great Reform Bill passed, and taking in not only the American and French Revolutions, but the transformation of Britain into the first industrial economy. His childhood was prosperous, but not emotionally warm, especially after his mother’s death in 1759. He was prodigiously gifted, reading fluently by the age of three, and his father Jeremiah, a successful lawyer and property speculator, fed his cognitive development, hoping that he would one day rise to legal eminence.
Jeremy was taught Latin, Greek, French, music and art, though for a philosopher of pleasure his childhood seems to have been rather ascetic, since he was forbidden books offering mere ‘amusement’, as unsuitable for children (1843: x. 21). His parents were religiously and politically conservative; devotion to religious practice and principles was emphasized. Late in life Bentham recalled that his childhood had been blighted by fear of the supernatural, exacerbated by servants who tormented him with tales of malign spirits inhabiting the toilet at his grandmother’s house (1843: x. 18–19). He had very limited contact with children of his own age before arriving at the exclusive Westminster School in 1755 (1843: x. 14), where he was bullied for his small stature and his intelligence. Dutifully, he tried to satisfy parental expectations, but his childhood must have been a lonely one, alleviated by extended summer visits to his grandmothers in Hampshire and Essex, where the atmosphere was less intense, and he could develop his lifelong interests in nature and science.
In 1760 Bentham, aged twelve, was enrolled at Oxford University, receiving his BA in 1763. His life at Oxford continued lonely, unstimulating and, thanks to Jeremiah’s parsimony, impecunious. In order to graduate, scholars were required to subscribe to the thirty-nine articles of the Church of England, and the young Bentham, viewing them as a series of statements combining obvious falsehoods with contradictory or meaningless prescriptions, but aware that failure to subscribe would shatter his father’s ambitions for him, sacrificed his integrity to that ambition and swore the self-consciously perjurious oath with a sense of intellectual betrayal the bitter memory of which lingered for the rest of his life (2011a: 35–6).
Bentham’s father rented lodgings for him in Lincoln’s Inn and provided a rental income of £100 a year. For a while, he continued ploughing the furrow set before him, attending the courts in Westminster Hall and pursuing the path to qualify as a barrister, before being called to the bar as he came of age in 1769. By then, however, two things had changed. First, Bentham had returned to Oxford to hear the lectures on jurisprudence given by William Blackstone, Vinerian Professor of Law, and decided that English law as it existed, as delivered by Blackstone and witnessed in Westminster Hall, did not make sense: it was, strictly speaking, incomprehensible. The epigraph to this chapter comes from a much later indictment of Common Law in just these terms. Second, he had exploited his relative independence to read the leading authors of the Enlightenment, and enthusiastically adopted their ambition to substitute science for superstition in all areas, especially morality and law. Helvétius (1759), Beccaria (1995) and Hume (2007), who all aspired to establish morality on a scientific footing, were authors who particularly inspired him.1 Having reached his majority, Bentham concluded that his particular genius and mission was not to practise law but to establish its foundation on a rational basis (1843: x. 27). To do so, he began to develop the ontology and epistemology presented in § 2 of this chapter.
Bentham’s decision to abandon the practice of law and the prospects it offered did not please Jeremiah, and their relationship, while courteous, remained strained. He was however, and remained, close to his brother, encouraging his interest in science, doing what he could to assist him in establishing his own career, and expressing the affection he himself, he perhaps felt, had been denied. Another important relationship for Bentham was with John Lind, a decade older and much more worldly wise, who was acting as unofficial agent for the King of Poland in London. Bentham had met Lind at Oxford, and after Lind’s return to London in 1773 the two became, at the least, intimate friends, co-operating in writing in support of the British government in relation to the growing crisis in its American colonies.2
In 1776 Bentham’s A Fragment on Government – an offshoot of a larger critique of Blackstone only published in the twentieth century (1977) – was published anonymously. Fragment followed Hume in rejecting the social contract as the basis of governmental authority, and identified ‘the greatest happiness of the greatest number’ as the standard of right and wrong (1977: 393). There was considerable speculation over its author’s identity, which abated along with its sales when Jeremiah, unable to contain his pride in its success, disclosed Bentham’s authorship. One approving reader was the Earl of Shelburne, a powerful Whig politician, soon briefly to lead the British government, who sought Bentham out in 1780 and invited him to spend the next summer at his country seat. Shelburne, who had encouraged Richard Price and Joseph Priestley among other aspiring thinkers, and controlled several seats in the House of Commons, remained close to Bentham for over a decade. Through Shelburne, Bentham gained access to circles of privilege and power, meeting the young William Pitt, who failed to impress him (1843: x. 119), and the reforming lawyer Samuel Romilly, who became a long-term friend and confidant. The most significant contact for Bentham’s future reputation was Étienne Dumont, a Genevan refugee who would be responsible, through abbreviated and accessible recensions of Bentham’s writings, for making him known in Europe and the Americas as a legal theorist.
In the 1770s Bentham began developing the linguistic tools necessary to exchange sense in discussion of law, and decided that only codified, written law, could remedy the deficiencies of judge-made Common Law, under which no one could be sure what the law was until the judge pronounced it. Common Law was ‘incognoscible’, unknowable, making a mockery of law’s action-guiding purpose. Each judgment being specific to a particular case, no one could be sure that it would be held relevant in apparently similar future cases. Judges interpreted law as they pleased, sometimes relying strictly on precedent, sometimes on personal moral intuitions, so that it was inconsistent and arbitrary. Since only lawsuits gave rise to judgments, it was also radically incomplete. Bentham undertook the task of setting out principles underlying a pannomion or complete code of law. Following Beccaria, and responding to growing willingness on the part of rulers to rationalize and codify state-inflicted punishments, he focused initially on penal law (de Champs, 2015: 55–69). By 1780, he had largely printed An Introduction to the Principles of Morals and Legislation (1996) (henceforth IPML), where this focus is evident (Ch. 3), but is prefaced by discussion of human psychology and presentation of the principle of utility as the only rational foundation for both morality and law (Ch. 2). In 1782, he developed his ‘logic of the will’ (see 2010b: 115–18), a form of deontic logic effectively reinvented in the twentieth century. In the next years, he began writing self-consciously for a European audience, using French in the effort to make his intended ‘Projet d’un code de loix détaillé et complet, à l’usage d’un état quelconque’ accessible to European sovereigns, and especially Catherine the Great, who had indicated her desire to codify Russian law (de Champs, 2014: 185–94).
In 1785 Bentham travelled to Russia to join his brother Samuel, who had secured employment with Prince Potemkin, Catherine’s favourite. He remained there until late 1787, but never made the approach to Catherine. He reacted enthusiastically to Samuel’s invention of the panopticon principle, and wrote a short work extolling its application wherever supervision was required (Ch. 6). A report that the British government, now headed by Pitt, planned to reduce the legal rate of interest prompted Bentham to write Defence of Usury (2016a: 43–121), arguing that Adam Smith had been wrong to defend legal limitations of interest rates, which often presented an insuperable obstacle to innovation by making it impossible for borrower and lender to agree on distributing the additional risks and returns of new enterprises.
Bentham returned to London early in 1788 and in 1789, buoyed by the positive reception of Defence of Usury, published IPML which, however, made hardly a ripple. At the behest partly of Shelburne, now Marquess of Landsdowne, and motivated partly by his own sympathy for Russia, which had been attacked by Sweden, Bentham wrote to the press castigating Pitt’s foreign policy, and made plans for a never-realized work on international law, including a plan for a European tribunal to settle disputes (see 2016a: liii–lix; 1843: ii. 535–60; and Ch. 8). In 1790, preparation for a new edition of Defence of Usury prompted his first effort to write a handbook of political economy (2016a: 165–214). In parallel, encouraged by the Irish administration, Bentham drafted two lengthy ‘Postscripts’ to the Panopticon, and all three were printed, but not published, in Dublin and London (1843: iv. 37–172). However, no official invitation arrived, and Bentham instead attempted, with no small success, to promote the plan to influential parties in England (Blamires, 2008: 57–62, 66–73).
In 1792, Bentham’s father died, and Bentham inherited his estate, including the house on the edge of St James’s Park which would be home for the rest of his life. The Bentham brothers, reunited by Samuel’s return to London in 1791, had by July 1793 succeeded in convincing the British government of the virtues of both the panopticon penitentiary and contracting with them to build and manage it (1981: 22–3). With their new wealth they began to stockpile construction materials. Bentham was, as Blamires argues (2008: 16–17, 39, 42), committed to seizing the opportunity to model a successful utilitarian institution, likely hoping to combine this with continued writing on law, since he anticipated that, once established, the prison would operate like clockwork (2010a: 349–51). He spent much time over the next ten years in a doomed attempt to hold the administration to its word (Semple, 1993; Blamires, 2008: 56–94).
A further prospect for the adoption of the panopticon had been opened by the developing crisis in France. Dumont was now there, effectively working as a publicist for the Comte de Mirabeau, a leading figure early in the revolution. Bentham sought to exploit the suddenly fluid political order to suggest wide-ranging reforms in organization of courts, parliamentary procedure, prisons, political economy and, finally, constitutional law. Briefly, he planned to advocate a massive extension of the franchise in England, but the violent turn of events in France made him an opponent of electoral reform at home for fear of empowering ignorance (see Ch. 7: 135–6). Ironically, just as violence erupted in Paris in August 1792, he was accorded honorary citizenship by the Legislative Assembly. In 1794, he reviewed possible sources of government finance (2019a: 151–262), and developed a proposal devised ten years earlier to generate revenue painlessly by escheat to the state of half the value of estates of those dying childless (2019a: 1–149). Between 1796 and 1798 he developed a plan for provision of poor relief by a National Charity Company, to replace the patchwork of parish authorities holding responsibility under the existing system (2001; 2010a).
In 1799, Bentham finally took possession of a site for the panopticon prison, but the nimbyism of the powerful continued to frustrate attempts to build it. Meanwhile, suspension of payment in specie by the Bank of England in February 1797 prompted him to investigate the supply of credit, and three years’ work produced a detailed proposal for the issue of interest-bearing currency ([2019b]) and a second attempt to distil political economy into a handbook ([2019c5–8]). When Pitt resigned in 1801 Bentham engaged with the new administration, attempting to persuade it of the merits of his currency and of fulfilling the previous administration’s commitment to the prison.
After the definitive rejection of the panopticon plan in 1803, Bentham began drafting the massive, and massively influential, work on evidence edited in 1827 by the young J.S. Mill (1843: vi. 189–585 and vii. 1–598). This work, closely related to his work on logic and justified belief, will not receive detailed attention in this book, but has been insightfully analysed elsewhere (Twining, 1985; 2019; Riley, [2018]). In 1806 he began drafting ‘Scotch Reform’, including a contrast between ‘natural’ arrangement of legal procedure and the existing ‘technical’ arrangement, which was comprehensible, if at all, only to lawyers (1843: v. 1–54), who Bentham was now convinced shared a sinister interest in maximizing their own opulence at the expense of the public. By 1809, the political elite and the King, the ‘Corrupter General’, had been added to the collective ruling few, and a newly democratic Bentham drafted ‘Plan of Parliamentary Reform’, which was finally published in 1817 (1843: iii. 433–552).
In the second decade of the new century, Bentham added the final element to ‘the ruling few’ in the form of the established Church. Over the next decade, he first convicted the Church of England of fostering ignorance and intellectual submission on the part of the populace (2011a), and then expanded his assault to include organized religion in general, especially in Christian form, or ‘Juggernaut’ as he called it. To avoid prosecution, the parts of that assault edited by George Grote (1822) and Francis Place (1823) appeared pseudonymously. The bulk of the assault remains unpublished, although the Bentham Project has made a start on producing it ([2013]; 2014). In the explosive final volume of ‘Not Paul, but Jesus’, Bentham reprised an argument he had made in analysis of penal law in the 1780s (1978), that consensual homosexual sex was a harmless activity, which should not be punished. He went on to argue that contraception, abortion, suicide, and infanticide by mothers should also be permitted ([2013]: 28–56, 59–7, 68–76), and that Jesus himself had probably indulged in gay sex ([2013]: 177–97). He initially proposed an ‘all-comprehensive liberty for all forms of sexual gratification not predominantly noxious’, but, in deference to homophobic public opinion, ended by proposing the replacement of hanging by banishment (2014: 140, 142). Ironically, much of this material was drafted at Forde Abbey in Somerset, the country retreat that he was able to lease for long periods between 1814 and 1818 thanks to the £23,000 he had received in compensation for the abandonment of the panopticon scheme.
In parallel with these works, Bentham substantially redrafted his writings on logic (1997; 1843: viii. 214–357) and composed major works on the detection of political lying (essential in a representative system) (2015), education (1983c) and private ethics (1983b). He also began a campaign to exploit the international reputation he had acquired from the success of Dumont’s recension Traités de législation civile et pénale – translated into several languages and selling 50,000 copies across Europe by 1830 – by offering his services to various governments to codify their laws. He began with the United States in 1811, and responded to President Madison’s tardy refusal by writing severally to state Governors. In 1814 he hoped that Alexander I of Russia might prove amenable, but was again frustrated. Revolutions in Spain and Portugal in 1820 prompted new hopes and new writings (1995; 2012), and he published Codification Proposal, addressed to ‘all nations professing liberal opinions’, in 1822 (1998), when the Portuguese finally supplied the longed-for invitation to draft civil, penal and constitutional codes. Bentham immediately began work on the massive Constitutional Code, which, with various preparatory essays (1989; 1993), occupied the last decade of his life. He continued corresponding with and writing for leaders or aspirant leaders in Tripoli and Greece (1990) and the now independent Spanish colonies in South America, encouraging them to adopt his ideas. The first volume of Constitutional Code was printed in 1827 and published in 1830 (1983a), but the remaining volumes appeared only in the edition of his works published after his death (1843 ix. 333–647).
In relation to British politics, Bentham cultivated powerful politicians who had given indications of pursuing legal reform, including Robert Peel and Henry Brougham. Both were finally condemned as mere tinkerers, recoiling from systematic reform (1993: 157–202; Riley, 2020). Far from being the ‘hermit’ of his own projection, he was unremittingly active in the world of affairs. As detailed by both Dinwiddy (1989: 16–19) and Crimmins (2004: 9–10; 2011: 157–78), he entertained a succession of dinner guests and turned his house into a centre for discussion of radical reform, viewing himself as unofficial leader of radicals in the Commons. One divisive personal influence was John Bowring, viewed by many of Bentham’s friends and supporters as an untrustworthy intellectual lightweight, who had succeeded by relentless flattery and adulation in turning the old man’s head until no criticism of him could be endured. The result was a self-conscious distancing by some of his closest friends and allies, including both Mills.
Bentham died on 6 June 1832, the day after the passage of the Act which ended the worst of Britain’s electoral abuses and set it on the path to representative democracy. He had committed his corpse to dissection for the benefit of medical science in his first will, made in 1769, and it was publicly dissected by his doctor, Thomas Southwood Smith, three days after his death. In accordance with Bentham’s instructions his skeleton, surmounted by a wax likeness of his head,3 padded with straw and dressed in his clothes, took up residence with Smith, before moving to UCL in 1850. Smith had written an article in the Westminster Review, the radical periodical established with Bentham’s financial backing in 1823, on the uses of the dead to the living, arguing that the medical progress was being obstructed by lack of bodies for dissection. Under English law, dissection served as an additional deterrent to the crime of murder, while Christian orthodoxy demanded the interment of an integral corpse to facilitate eventual resurrection. Late in life Bentham wrote ‘Auto-Icon, or Farther Uses of the dead to the living’ (Crimmins, 2002), taking one last opportunity to ridicule lawyers and the Church, and providing considerable evidence of intellectual vanity. Two points might be made: first, ‘Auto-Icon’ constitutes the last salvo in Bentham’s long anti-clerical campaign in favour of a materialist view of the world. A corpse was simply a physical object like any other, and no longer the site of sensations, good or bad. As such, its only immediate use was to facilitate medical instruction. Second, if suitably preserved, it might provide opportunities for recalling happy memories on one hand, and, more importantly, for moral and political learning on the other. He anticipated that auto-icons of political leaders might be transferred from a ‘hall of fame’ to a ‘hall of infamy’ according to the ongoing judgments of public opinion. Educational debates might be undertaken by auto-icons of figures on either side of a controversy, with voices supplied by actors and gestures by transforming the auto-icons into giant puppets. Bentham, of course, imagined that his auto-icon would feature heavily in such debates, while the drama would add to the attraction and the effect, thus opening a new avenue of indirect legislation (see Ch. 4).
§ 2. Logic and Language
As we have seen, Bentham decided early on that English law as it existed did not make sense: it was incomprehensible and unable to guide conduct consistently (2016b: 113–14, 293–5). Legal and political discussion was vitiated by the fact that its core vocabulary (words like right, duty and justice) consisted of terms either undefined or badly defined. Its metaphysics, its science of meaning, was a contradictory chaos, even without taking into account the penchant of common lawyers to work around procedural constraints by resorting to fictional devices, which made assertions all knew to be untrue. Designating phantoms, non-entities, as really existing entities did not offer a constructive solution.
Since law played an essential role in guiding action, leaving law in such a misleading and incomprehensible condition was a dereliction of duty on the part of legislators. In response, drawing on the inheritance of Locke, Hume and D’Alembert (1843: iii. 286), Bentham attempted no less than the invention of a new logic rooted in sense experience. Central to this enterprise was the verbal distinction, reflecting an underlying ontological distinction, between real and fictitious entities. ‘A fictitious entity is an entity to which, though by the grammatical form of the discourse employed in speaking of it existence is ascribed, yet in truth and reality existence is not meant to be ascribed.’ Conversely, a real entity . . . is ‘an entity to which existence is really meant to be ascribed’ (1997: 164 (UC cii. 16)).
The moment language, a construction of the human mind for the formation, recording and transmission of thought, evolved beyond declaration of desire or aversion towards particular real objects, it necessarily ascribed existence to things that had none. It was impossible for all but the most basic language to mirror the world, while to demand that it should was to demand the reduction of human capacity to communicate to the level of animals unable to form abstract concepts. In short, Bentham asserted that all language that deployed the names of anything other than really existing entities is figurative, or metaphorical (UC cii. 466 (1843: viii. 331)). The propositions it contains are fictitious; that is, they are strictly speaking falsehoods, asserting the existence of things that possess no independent existence.
Bentham was less clear than might be wished in delineating the category of real entities, but generally he regarded two sorts of things as real entities, namely particular physical substances or bodies on one hand, and certain psychical entities (that is sensations, impressions and ideas) on the other (1983c: 271n; 2016b: 424; UC ci. 341 (1843: viii. 262); UC ci. 347 (1843: viii. 267); UC ci. 417). All knowledge of external reality came through the mediation of sensory experience and reflection on it. Encounters with physical real entities deposited impressions via our sense organs, while the images or ideas created by those impressions could be recalled at leisure. Since all experience of the world came through our senses, the psychical entities, sensations, impressions and ideas were the direct objects of that experience, so that the existence of the external world was, properly speaking, inferential (1997: 180 (UC cii. 15); 1983c: 271n): we conclude that the wall before us exists because we make highly plausible inferences from the sensory data delivered by sight and touch.
Bentham wasted no time in querying the reality of the external world, arguing that no bad consequences could follow from such acceptance, in contrast to the pain quickly endured if we opted to disbelieve in the wall’s existence. In addition, he assumed not only that the world we perceive exists, but that sense experience is capable of delivering accurate information about it. The basis for accepting these assertions was twofold. First, our only source of information indicated its accuracy. Second, while that source of information might actually be deceptive, the consequences of accepting the evidence of sense were incomparably better than those of rejecting it: ‘in point of practice, no bad consequences can . . . possibly arise from supposing it to be true; and the worst consequences can not but arise from supposing it to be false’ (UC lxix. 52; see also 1997: 182 (UC cii. 15)).
The criterion that rapidly determines the reality of the existence of the external world is thus entirely utilitarian and pragmatic. How do we know that the evidence we perceive in the sensations we experience is reliable? We do not and cannot, but that evidence is the only kind available to us. At this point we might abandon hope of perceiving reality, but Bentham effectively dismissed this option because by denying any rational basis for preferring one course to another it would paralyse thought and action in pursuit of improvement. At this foundational level, utility, the demand that we prioritize pursuit of happiness, wins out over seeking truth in relation to questions that, given the informational constraints of human existence, we simply cannot answer. There is a deep connection here with Bentham’s goal, which was to fashion a discursive tool by which legal and political concepts could be rendered meaningful and determinate. Some philosophers have dismissed Bentham’s logic as revealing the shallowness of his approach and intellect (Peirce, 1931–58: v. para. 158). This, however, is to overlook the fact that, for him, investing effort in doubting the reliability of sensory data led nowhere and thus had little value: logic, like all other arts and sciences, aimed at happiness (UC ci. 92 (1843: viii. 219)).
There are both subjective and objective elements in Bentham’s approach to logic. In relation to the first, all human experience is subjective: we live our lives from the inside out, having no direct access to each other’s experience. Each of us inhabits a private reality, but language provides the bridge between these realities. The subjects of the most primitive communications were existing objects, to which reference was aided by the links between the objects, the names we gave them, and their mental images. When objects were present, we disambiguated our referents by pointing at them. When they were absent, we depended on the ability of their names to call forth the same image in our minds and that of our interlocutors. Such designation, the beginning of both language and logic, became embedded in the structure of language and thought, so that ‘a material image is the only instrument by which . . . conceptions can be conveyed from mind to mind’ (UC cii. 463). To exchange sense through words is, for Bentham, to exchange mental images (1843: iii. 189). Communication about real entities is facilitated by their presentation of unambiguous images, copies of sense impressions. Following Locke, Bentham distinguished between the names of ideas with natural archetypes, and those without: ‘What I assume then, is that of the objects . . . we are in use to speak of, some do, others do not exist. Those which do exist may be said to have their archetypes in nature: those which do not exist may be said not to have their archetypes in nature’ (UC lxix. 52; and see Locke, 1975: 372). However, because noun substantives often do name things, encountering a name produces ‘a disposition and propensity to suppose . . . the real existence, of a . . . correspondent thing’ (UC ci. 341 (1843: viii. 262)).
