Jeremy Bentham Law and Ethics

Benthamism, Jeremy Bentham Law and Ethics

At this point in the unfolding of the story that we follow in this book as a whole, we must now again turn away from our recent preoccupa­tion with economics to study a new development in the wider field of (general and social, moral, and) political philosophy; the develop­ment, namely, of the body of ideas known as "Benthamism" or "Eng­lish Utilitarianism." This was an outgrowth from the eighteenth-cen­tury Enlightenment, which revised the earlier formulations and founda­tions of its "liberalism," and played a great role in the on-going develop­ment of civic thought and life or practice in the nineteenth century. It stood in a loose but significant relationship, which we shall need to examine, to the economics of Ricardo and his collaborators and disciples, which revised some parts of, and further developed, Adam Smith's economics. Adam Smith himself, as we have seen, was not only an eco­nomist but also a social and moral philosopher with a very wide vision and field of interests, though he was hardly, in the full sense of this term, a political philosopher. But some of his successors, and among them Ricardo especially, had a much narrower concern with economics only, and left to others the work of formulating and elaborating the basic general points of view and the more inclusive visions of the actual and the desirable patterns of all human life and affairs which, however, their structures of economic theory continued to presuppose, and re­quire as supplements. Thus as Ricardo and Bentham were or became friends and, in a sense, intellectual collaborators, the latter's "broad" system of thought has to Ricardian economics a relationship somewhat similar to that of Adam Smith's psychology-and-ethics to his economics; though it made a difference that Ricardo and Bentham were two quite different individuals, while Adam Smith as an economist and a social-moral philosopher was in both roles one and the same man.

But the importance of Benthamism goes far beyond that of its loose relationship to Ricardian economics. It became the main or most im­portant statement of the intellectual foundations of British democratic thought; the main British source, after Adam Smith's work, of the laissez-faire philosophy of economic policy (and yet also the main source of the later and seemingly opposite ideas of the British Fabian socialists); a great source of humanitarian, social-reform ideas and movements of many kinds in various fields; and a principal source of the entire outlook of the British Liberal party in its heyday. Also in the field of the law and legal studies—which was from the outset the central field of Bentham's own interests—his work and that of his dis­ciple Austin came to exert a great influence, over a long period, upon the "legal science" taught in English and American law schools, and ap­plied by the lawyers and judges trained by them. There was also a still more widespread, but less profound and lasting, influence of Ben­thamism as a whole, beyond the English-speaking world, upon much Continental European thought. Bentham's own intellectual an­tecedents lay very largely in a part of the eighteenth-century French Enlightenment (particularly in the writings of Helvetius, one of the Encyclopedists); and all his (Bentham's) voluminous writings were immediately translated into and published in French, and were for a time widely read and admired all over Europe.

The simplicity and crudity of Bentham's system of philosophy-^psy­chology and ethics, jurisprudence, sociology, and political theory stand in a degree of contrast with the greater subtlety, refinement, and pro­fundity of the best thought of earlier times in the same fields. His few and simple basic ideas were very ancient, but he stripped away and dis­carded many of the refinements, qualifications, and supplements that had usually accompanied them, and stated them in a new, bald or bare, and sweeping, direct, and forceful way, which made them and their corollaries seem all-sufficient for solving the problems of practical life. In a way Benthamism represented a culmination of the simplifying, superficializing trend of thought of much of the Enlightenment, and exactly suited the pragmatic temper and outlook characteristic of the long-rising and now dominant business and middle-class people, who demanded from their intellectual servitors and leaders more practicality and less depth than the older, aristocratic, ruling classes had accepted from their mentors. The idea that in business life, as such, intelligent pursuit by each individual of the greatest financial gain for himself could be made to harmonize with the greatest general growth of the wealth or prosperity of all men collectively, had long been an "axiom" of business-community thought and of much economic theory. And the essence of Benthamism was a wider generalization or extension of this idea, applying it not to economic life alone but to all life, and replacing the Calculation of economic gains or benefits from contemplated actions, with attempted, broader calculations of all gains or benefits for human "happiness." There is truth in the jibe that was uttered by the German romantic philosopher, Schopenhauer: "The English Util­itarians talk about happiness, but they mean money."

The simple core of all Benthamism consisted of just this series of propositions: (i) all that human beings, universally, want from life can be summed up as the greatest obtainable amount of happiness, or sum of pleasures, and avoidance, as fully as possible, of unhappiness, pains, or displeasures; (2) the good or right or ideal conduct of life is simply its intelligent conduct, to maximize the pleasure and minimize the pain experienced in or from all the results of all one's ac­tions, choices, or decisions; (3) the social problem is simply that of so arranging society's institutions and laws and the relations and interac­tions among its members, that for everyone the course of action most beneficial to himself will be always the one most beneficial to his fellows also, and deterrent penalties of self-injury will be attached to all courses injurious to others; and, finally, (4) all this can be achieved by creating and applying an exact science of ethics, jurisprudence, and politics, us­ing as its master tool a (Bentham's) "felicific calculus," of the relative quantities of pleasure and pain to be expected as results of different private and public actions, and so of the pattern of all actions re­quired to bring about "the greatest happiness of the greatest number."

It is worthwhile to glance back, however, at earlier pre-Benthamite forms of utilitarianism—the type of ethical theory identifying the moral "goodness" of actions with their "utility" for or in the production of human "happiness"—before taking up, in more detail, the special de­velopment given to this creed by Bentham and his followers. Most of the social thought of the Enlightenment had been more or less strongly tinctured by or with this general idea, though it usually had been combined or blended with the more absolutistic or less relativistic ethi­cal "natural law" ideas which Bentham, as we shall see, professedly re­jected. That is, there had been a prevailing faith that "The Wise Author" of all nature and human nature had so "designed" them that, by a planned coincidence, the intrinsically right or good actions, pre­scribed by the divine-and-natural moral law or code, would also always turn out to be the actions most "useful" in or through their results for the "happiness" of the actors and of society at large. So it eventually be­came a "natural" further step to drop the insistence on—independently and intuitively cognizable—intrinsic or absolute "right and wrong" or ethical "natural law," and accept the study, simply, of the results of all actions for the happiness of mankind, as sufficient to determine their degrees of "goodness" or "badness."

But about the earliest important form of or transition toward this new doctrine to develop in a part of English thought—before Bentham's time—was the "theological utilitarianism" of a number of eighteenth-century divines who taught that God had so perfectly arranged the re­wards of pleasure and penalties of pain for the actor, which invariably follow all possible actions—in this life or in the next or afterlife—that the best behavior, most conducive to the happiness of one's fellows generally, is always and alone expedient for everyone in his own self-interest.1 Other more secular, and political, philosophies could easily transform this, or develop independently on a line parallel with it, by putting the State in the place of God, i.e., by holding it to be not the already accomplished work of the latter but the task or function of the former, thus to so arrange deterrents and incentives—all fully effective within this world—as to lead each citizen, in best serving himself, to best serve society. It was this last development of the basic line of thought, first carried out in France by some of les philosophes—intel­lectuals contributing to the ideology of the French Revolution—which Bentham took over especially from his French forerunner within that group, Helvetius, and made his own and the basis of his system.2 And with it, he also took from Helvetius (and the Enlightenment generally) an associated, still more general doctrine or conception that we have already noticed—that of the "mechanical" or "mechanistic" structure or pattern of all nature or existence including all human life, as a system of relations (scientific "natural laws") connecting all events, including all human experiences, thoughts, and actions, into one endless chain of causes and effects. It was a basic assumption of Bentham's thought that every man is a reasoning and happiness-seeking "machine," reacting to his stimuli on the lines required to maximize his happiness, and thus capable of being manipulated, by applied-scientific statecraft and legis­lation, so that he will always maximize both his own and his contribu­tions to all mankind's happiness.

Let us now look for a moment, however, not at Bentham's in­tellectual antecedents and basic ideas, but rather at his odd personality, early situation and career, and first practical aims; since all these factors greatly affected what he did with the ideas that he absorbed and those of his own which he added to them. Jeremy Bentham was a queer, ec­centric individual, who has seemed unattractive, even repulsive, to many students. Many word-portraits of him have been unfair cari­catures, but he was in himself almost a caricature of "the intellectual" —generally overserious to the point of ridiculous solemnity, conceited, given to "pontificating" on all occasions, and to mistaking the simple and plausible abstract, general theories which appealed to him, for all-important, universal, and eternal truths. Although his blood was purely English, his mind was in one sense or way peculiarly un-English, or at least had a bent which seems the opposite of that which is commonly imputed to "the English mind." The latter is generally said to have little use for abstract, general ideas and theories, even less for all-compre­hensive, architectonic, logical systems of them, and least of all for at­tempts to formulate in this way, or make fully and clearly explicit, the most basic assumptions underlying all its views or convictions; it is said to prefer concrete experience to abstract theory, rough and flexible rules of thumb to precise and rigid principles or doctrines, and the test of results to that of logic.

Now in a way the substance of Benthamism does conform to that English recipe. Utilitarianism is the principle of having no (moral) principles except those found by experience, in actual situations, to lead in practice to the most "useful" results, i.e., the greatest (personal and) general "happiness." But the intellectual method employed by Bentham and his disciples to elaborate and support this point of view— by deducing a complete system of both theorems to explain all human behavior, and precepts to control it, from a few initial propositions held to be universally agreed upon and indisputable—was "un-English," and more in line with the main traditions of French and Continental Euro­pean thought—if the usual generalizations about these matters have any validity.

Bentham tried to give a logical and systematic intellectual formulation to the "common-sense" beliefs which he, and most or many other Englishmen of his time, held; and the resulting discrepancy or tension between the substance and the method of his thought makes it very difficult to achieve a fair description and evaluation of it. His "system" as a whole, I think, contains both a great deal of shrewd, good sense and a great deal of nonsense. The good sense resides in the in­trinsically imprecise or vague elements of the "common-sense" sub­stance, and the nonsense enters through the unwise effort to formulate them with entire precision. It was in the highest degree "useful" and salutary to admonish governments that the function of all laws and public policies is to be "useful" for or conducive to the general happi­ness or welfare of the governed. But it was in the highest degree chimerical, useless or futile, and in many indirect results mischievous, instead of salutary, to believe and propagate belief in the possibility of working out exact rules for maximizing a social sum of individual sums of happiness—rules that would do this and be the rules of an applied, exact science or scientific art of "social engineering."

Bentham's foible in that direction, however, was very prevalent in his generation, and his personal eccentricities and bent of mind only led him to carry it further than did most of his contemporaries. Born well back in the eighteenth century, and fully launched upon his career by its end, he became, however, the adored and highly influential leader of a band of able disciples only in his full maturity and old age, i.e., in the first three decades of the nineteenth century. Having some inherited wealth—enough to make him financially independent—he was a free­lance thinker, writer, and reformer with no other profession or connec­tions. He devoted his life and abundant energies, from his early youth on, wholly to his self-conceived mission of discovering, and teaching and proving to all who would listen to him, the true principles of good-and-wise legislation and human conduct. Holding the law—the body of laws enforced in each state—to be terribly important as the mass of rules by or through which all men are governed, he made the study and reform of law, or legal systems, his first and continuing, central field of work; and developed the other parts of his total system of thought—his views in psychology, ethics, political theory, and political economy— as auxiliary parts either contributing to or supplementing his ju­risprudence or philosophy of law.

He had, however, no use or respect for the professional body or guild of lawyers, and held their traditions of thought to be peculiarly stupid, irrational, rigid, unprogressive, and in general effect inhumane or bar­barous. In particular, he despised the cherished character of English common law. The accumulation of all past judicial decisions, and their use as precedents to guide each new generation of judges in deciding similar disputes or cases, seemed to him to yield merely an unordered heap or hodgepodge of mutually conflicting and mostly antiquated, no longer relevant, implicit rules of law, which derived their authority from nothing better than mere blind tradition, and were peculiarly re­sistant to rational, progressive, and humane reform with the progress of "enlightenment." The law, he thought, ought to be a rational science or logical system of all the general rules or principles, and sanctions to en­sure obedience to them, which are needed to direct all human conduct (or the part of it needing and properly subject to legal control) onto and along the paths conducive to the greatest general or universal happiness. And to make it that, or with that in view as the ideal goal, there must be a radical break with all mere tradition or old precedents, and a thor­ough, complete, systematic rational revision of all existing law, which then, as revised, should be codified. A bit later on in this chapter, I shall return to, and describe in somewhat more detail, some of Bentham's principal ideas about the character and basic elements of the ideal body of law or legal system. But at this point I must detour into the develop­ment of his political theory of the form or kind or system of government which would be required and able to produce, develop, maintain, and enforce his ideal system or code of law.

Understandably, in view of his conception of the latter, he at first—in his youth, still within .the. eighteenth century—inclined toward the then widespread ideal of government by an "enlightened despot," who should as nearly as possible realize the ancient ideal of the perfect lawgiver. But it is very interesting to follow and understand the evolu­tion of his political thought from that starting point to the extremely different position he finally arrived at, which made him and his dis­ciples in early-nineteenth-century England the leading advocates of full-fledged, radical, political democracy. From first to last, his interest in political theory, as such, was subsidiary to his primary interest in the philosophy and reformation of the law; and what.he sought to con­ceive and bring about was the form of government that would be, on the whole, best fitted to function as the agency that would in time remake all law into what it should be. He began with efforts to work through or upon the existing government of England as it stood in the late eighteenth century; i.e., he sought to "enlighten" a few leading members of the aristocratic governing group, or to convert them, through argument, to his ideas of the needed legal reforms, and per­haps, by making these powerful men his active disciples, he hoped grad­ually to transform the existing government, as far as this should prove necessary for the purpose, into one more nearly realizing the ideal of "enlightened despotism"—or "enlightened" oligarchy, which might serve as well. But he made no headway at all in these efforts to find or make converts within the ranks of the ruling noble lords, and soon became fully disillusioned with this program. And he came to see that on his own theories about the mainsprings of all actual human thinking and behavior, he had no logical ground for expecting anything else but the failure he had met with in this quarter.

Every man is necessarily directed in all his feelings, thoughts, and ac­tions by his own self-interest—the (to him apparent) conditions of his own greatest happiness. Coincidence of the self-interest of each with the common interest of all—of the conditions of each one's own with those of universal happiness—does not by any means fully exist in exist­ing societies, but has to be realized or brought into (complete) existence through all the requisite institutional reforms. In aristocratic states, the selfish interests of members of the ruling class in retaining their posi­tions and privileges are in conflict with the interests of the main body of the people, and make them (the aristocrats) incapable of wanting, or of being led or persuaded to want, to support or aid any carrying out of the reforms that are needed in the interests or for the benefit of "the greatest number" of the people. If a government is to be expected to remake all law into what it should be, i.e., to make and administer all and only the laws required to advance the happiness of the people generally, then this must be a government so framed as to fully align the self-interest of each legislator and official with the interests or desires of the people or of the majority among them. And this means that it must be a political democracy, in which only the governors who best serve the governed can both gain and retain their powers.

It was by this line of reasoning that Bentham was led to advocate political democracy, and in consequence his theory or ideal conception of the latter was and remained the purely "mechanistic" vision of a self-equilibrating system of interest pressures operating on and through the government, and mechanically producing the legislation most strongly desired by the popular majority. There were some stipulations intended to ensure that the potencies and balance or resultant of the forces at work would be such as to produce that democratic outcome: there must be universal, equal suffrage—all adult citizens must have equal voting rights; all the legislators must represent equal con­stituencies, and need election and reelection by majorities of those vot­ing on them; the representative legislature must have full control of the executive government and, indirectly at least, of the selection, powers, and conduct of all officials; and all the people as voters must, in time, be educated to the point of being able to vote in line with their true interests always, and be immune to the propagandas and pressures directed at them by interest pressure groups attempting to mislead them. The countless difficult problems not really solved by this crude theory of democracy are fairly obvious; but despite its rather Utopian character and all its gross defects, the Benthamite conception of and program and argument for political democracy was on the whole admirable and great achievement in and for its time.

It would be going too far afield here to go into detail about the actual, gradual growth or realization of political democracy in nineteenth-century England, and the part that was played in that process by the politically active members or adherents of the Benthamite circle. They of course were by no means the only, and perhaps were not the most in­fluential, contributors to that development in the world of practice; but they supplied a good part of the intellectual leadership of the move­ment, and were far in advance of it in the sense of being very early advocates of the full-fledged democracy that was not achieved until a much later time. They supported and aided the first great step that was taken toward the goal, the passage of the Reform Bill of 1832, which made the House of Commons more representative of a larger fraction of the English people, but which went much less far than they wanted to go. And the later reforms which together gradually went the rest of the way owed something at least to the lingering aftereffects of their early writings, speeches, and agitations. In their early time their bold advocacy of a complete democracy, which was a frightening idea to most upper-class Englishmen, was perhaps one of the causes of the fact that, besides being called "the Utilitarians" and "the Benthamites," they were also called "the Philosophical Radicals."

They were "radicals," however, not only on that question but on all questions—though not in the sense in which we use the word radical today, meaning extreme, revolutionary, and often violent, but rather in the word's original and proper and then current sense, in which it was applied to all fully "rationalist" and antitraditionalist thinkers-and-re-formers whose visions, analyses, and programs tried to deal especially with the "roots" of all human practices and institutions, and aimed at (though often only eventual and gradual) "root-and-branch" reform or reconstruction of society. Most or many of the quite early nineteenth-century "radicals" in English and European and all Western politics were in or from the middle or bourgeois, not the laboring, class and were "radical" or thoroughgoing individualists or libertarians, not so­cialists or collectivists like the people who are mainly thought of as "radicals" today; though there were some ("utopian" and other) so­cialists among the "radicals" of that early time, too—as we shall see later on in this book. There was in England in the time of the Benthamites a Radical party with that name which later coalesced with the older Whig party to form the Liberal party; and the Benthamites were "phil­osophical radicals," supplying much of the intellectual leadership of the Radical party, and a bit later, of the Liberal party. Political democracy was only one part, though it was an important part, of all that they stood for and worked for.

But I must now return to the logical starting point of intellectual Benthamism as a whole and, proceeding through it from that point, describe and discuss in a more detailed and systematic way—taking these up in a logical sequence—all the main divisions or parts of it as a body of doctrines in the fields of all the human, social, or moral "sci­ences"—psychology and ethics, the science and art of education, poli­tics and jurisprudence, and (the strictly Benthamite, not the Ricardian) economics and political economy, or positive and normative theory of the economy and the role of the state and the law in relation to it.