Jeremy Bentham (1748-1832)

Jeremy Bentham was an English philosopher and political radical. Although he never practiced law, he spent most of his life critiquing the existing law and strongly advocating legal reform. Bentham is primarily known today for his moral philosophy, especially his principle of utilitarianism which evaluates actions based upon their consequences, in particular the overall happiness created for everyone affected by the action. e maintained that putting this principle into consistent practice would provide !ustification for social, political, and legal institutions. Although Bentham"s influence was minor during his life, his impact was greater in later years as his ideas were carried on by followers such as John #tuart $ill, John Austin, and other consequentialists. 1. Life A leading theorist in Anglo%American philosophy of law and one of the founders of utilitarianism, Jeremy Bentham was born in oundsditch, &ondon on 'ebruary (), (*+,. e was the son and grandson of attorneys, and his early family life was colored by a mix of pious superstition -on his mother"s side. and Enlightenment rationalism -from his father.. Bentham lived during a time of ma!or social, political and economic change. /he 0ndustrial 1evolution -with the massive economic and social shifts that it brought in its wake. the rise of the middle class, and revolutions in 'rance and America all were reflected in Bentham"s reflections on existing institutions. 0n (*23, Bentham entered 4ueen"s 5ollege, 6xford and, upon graduation in (*2+, studied law at &incoln"s 0nn. /hough qualified to practice law, he never did so. 0nstead, he devoted most of his life to writing on matters of legal reform%%though, curiously, he made little effort to publish much of what he wrote. Bentham spent his time in intense study, often writing some eight to twelve hours a day. 7hile most of his best known work deals with theoretical questions in law, Bentham was an active

polemicist and was engaged for some time in developing pro!ects that proposed various practical ideas for the reform of social institutions. Although his work came to have an important influence on political philosophy, Bentham did not write any single text giving the essential principles of his views on this topic. is most important theoretical work is the Introduction to the Principles of Morals and Legislation -(*,8., in which much of his moral theory%%which he said reflected 9the greatest happiness principle9%%is described and developed. 0n (*,(, Bentham became associated with the Earl of #helburne and, through him, came into contact with a number of the leading 7hig politicians and lawyers. Although his work was admired by some at the time, Bentham"s ideas were still largely unappreciated. 0n (*,), he briefly !oined his brother #amuel in 1ussia, where he pursued his writing with even more than his usual intensity, and he devised a plan for the now infamous 9:anopticon9%%a model prison where all prisoners would be observable by -unseen. guards at all times%%a pro!ect which he had hoped would interest the 5;arina 5atherine the <reat. After his return to England in (*,,, and for some =3 years thereafter, Bentham pursued%%fruitlessly and at great expense%%the idea of the panopticon. 'ortunately, an inheritance received in (*82 provided him with financial stability. By the late (*83s, Bentham"s theoretical work came to have a more significant place in political reform. #till, his influence was, arguably, still greater on the continent. -Bentham was made an honorary citi;en of the fledgling 'rench 1epublic in (*8=, and his The Theory of Legislation was published first, in 'rench, by his #wiss disciple, Etienne >umont, in (,3=.. /he precise extent of Bentham"s influence in British politics has been a matter of some debate. 7hile he attacked both /ory and 7hig policies, both the 1eform Bill of (,?= -promoted by Bentham"s disciple, &ord enry Brougham. and later reforms in the century -such as the secret ballot, advocated by Bentham"s friend, <eorge <rote, who was elected to parliament in (,?=. reflected Benthamite concerns. /he impact of Bentham"s ideas goes further still. 5ontemporary philosophical and economic vocabulary -e.g., 9international,9 9maximi;e,9 9minimi;e,9 and 9codification9. is indebted to Bentham"s proclivity for inventing terms, and among his other disciples were James $ill and his son, John -who was responsible for an early edition of some of Bentham"s manuscripts., as well as the legal theorist, John Austin. At his death in &ondon, on June 2, (,?=, Bentham left literally tens of thousands of manuscript pages%%some of which was work only sketched out, but all of which he hoped would be prepared for publication. e also left a large estate, which was used to finance the newly%established @niversity 5ollege, &ondon -for those individuals excluded from university education%%i.e., non%conformists, 5atholics and Jews., and his cadaver, per his instructions, was dissected, embalmed, dressed, and placed in a chair, and to this day resides in a cabinet in a corridor of the main building of @niversity 5ollege. /he Bentham :ro!ect, set up in the early (823s at @niversity 5ollege, has as its aim the publishing of a definitive, scholarly edition of Bentham"s works and correspondence. Back to /able of 5ontents 2. Method

0nfluenced by the philosophes of the Enlightenment -such as Beccaria, elvAtius, >iderot, >"Alembert, and Boltaire. and also by &ocke and ume, Bentham"s work combined an empiricist approach with a rationalism that emphasi;ed conceptual clarity and deductive argument. &ocke"s influence was primarily as the author of the Enquiry Concerning Human Understanding, and Bentham saw in him a model of one who emphasi;ed the importance of reason over custom and tradition and who insisted on precision in the use of terms. ume"s influence was not so much on Bentham"s method as on his account of the underlying principles of psychological associationism and on his articulation of the principle of utility, which was then still often annexed to theological views. Bentham"s analytical and empirical method is especially obvious when one looks at some of his main criticisms of the law and of moral and political discourse in general. is principal target was the presence of 9fictions9%%in particular, legal fictions. 6n his view, to consider any part or aspect of a thing in abstraction from that thing is to run the risk of confusion or to cause positive deceit. 7hile, in some cases, such 9fictional9 terms as 9relation,9 9right,9 9power,9 and 9possession9 were of some use, in many cases their original warrant had been forgotten, so that they survived as the product of either pre!udice or inattention. 0n those cases where the terms could be 9cashed out9 in terms of the properties of real things, they could continue to be used, but otherwise they were to be abandoned. #till, Bentham hoped to eliminate legal fictions as far as possible from the law, including the legal fiction that there was some original contract that explained why there was any law at all. e thought that, at the very least, clarifications and !ustifications could be given that avoided the use of such terms. 3. Human Nature 'or Bentham, morals and legislation can be described scientifically, but such a description requires an account of human nature. Just as nature is explained through reference to the laws of physics, so human behavior can be explained by reference to the two primary motives of pleasure and painC this is the theory of psychological hedonism. /here is, Bentham admits, no direct proof of such an analysis of human motivation%%though he holds that it is clear that, in acting, all people implicitly refer to it. At the beginning of the Introduction to the Principles of Morals and Legislation, Bentham writes that 9DnEature has placed mankind under the governance of two sovereign masters, pain and pleasure. 0t is for them alone to point out what we ought to do, as well as to determine what we shall do. 6n the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. /hey govern us in all we do, in all we say, in all we thinkF every effort we can make to throw off our sub!ection, will serve but to demonstrate and confirm it.9 'rom this we see that, for Bentham, pleasure and pain serve not only as explanations for action, but they also define one"s good. 0t is, in short, on the basis of pleasures and pains, which can exist only in individuals, that Bentham thought one could construct a calculus of value. 1elated to this fundamental hedonism is a view of the individual as exhibiting a natural, rational self%interest%%a psychological egoism. 0n his 91emarks on Bentham"s :hilosophy9 -(,??., $ill cites

Bentham"s The Book of allacies -&ondonF unt, (,=+, pp. ?8=%?. that 9DiEn e!ery human breast...self%regarding interest is predominant over social interestC each person"s own individual interest over the interests of all other persons taken together.9 'undamental to the nature and activity of individuals, then, is their own well%being, and reason%%as a natural capability of the person%%is considered to be subservient to this end. Bentham believed that the nature of the human person can be adequately described without mention of social relationships. /o begin with, the idea of 9relation9 is but a 9fictitious entity,9 though necessary for 9convenience of discourse.9 And, more specifically, he remarks that 9the community is a fictitious body,9 and it is but 9the sum of the interests of the several members who compose it.9 /hus, the extension of the term 9individual9 is, in the main, no greater and no less than the biological entity. Bentham"s view, then, is that the individual%%the basic unit of the social sphere%%is an 9atom9 and there is no 9self9 or 9individual9 greater than the human individual. A person"s relations with others%%even if important%%are not essential and describe nothing that is, strictly speaking, necessary to its being what it is. 'inally, the picture of the human person presented by Bentham is based on a psychological associationism indebted to >avid artley and >avid umeC Bentham"s analysis of 9habit9 -which is essential to his understanding of society and especially political society. particularly reflects associationist presuppositions. 6n this view, pleasure and pain are ob!ective states and can be measured in terms of their intensity, duration, certainty, proximity, fecundity and purity. /his allows then both for an ob!ective determination of an activity or state and for a comparison with others. Bentham"s understanding of human nature reveals, in short, a psychological, ontological, and also moral individualism where, to extend the critique of utilitarianism made by <raeme >uncan and John <ray -9/he &eft Against $ill,9 in "e# Essays on $ohn %tuart Mill and Utilitarianism, Eds. 7esley E. 5ooper, Gai Hielsen and #teven 5. :atten, (8*8., 9the individual human being is conceived as the source of values and as himself the supreme value.9 4. Moral hilo!o"hy As Elie alAvy notes, there are three principal characteristics of which constitute the basis of Bentham"s moral and political philosophyF the greatest happiness principle, universal egoism and the artificial identification of one"s interests with those of others. /hough these characteristics are present throughout his work, they are particularly evident in the Introduction to the Principles of Morals and Legislation, where Bentham is concerned with articulating rational principles that would provide a basis and guide for legal, social and moral reform. /o begin with, Bentham"s moral philosophy reflects what he calls at different times 9the greatest happiness principle9 or 9the principle of utility9%%a term which he borrows from ume. 0n adverting to this principle, however, he was not referring to !ust the usefulness of things or actions, but to the extent to which these things or actions promote the general happiness. #pecifically, then, what is morally obligatory is that which produces the greatest amount of happiness for the greatest number

of people, happiness being determined by reference to the presence of pleasure and the absence of pain. /hus, Bentham writes, 9By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in questionF or, what is the same thing in other words, to promote or to oppose that happiness.9 And Bentham emphasi;es that this applies to 9every action whatsoever.9 /hat which does not maximi;e the greatest happiness -such as an act of pure ascetic sacrifice. is, therefore, morally wrong. -@nlike some of the previous attempts at articulating a universal hedonism, Bentham"s approach is thoroughly naturalistic.. Bentham"s moral philosophy, then, clearly reflects his psychological view that the primary motivators in human beings are pleasure and pain. Bentham admits that his version of the principle of utility is something that does not admit of direct proof, but he notes that this is not a problem as some explanatory principles do not admit of any such proof and all explanation must start somewhere. But this, by itself, does not explain why another"s happiness%%or the general happiness%% should count. And, in fact, he provides a number of suggestions that could serve as answers to the question of why we should be concerned with the happiness of others. 'irst, Bentham says, the principle of utility is something to which individuals, in acting, refer either explicitly or implicitly, and this is something that can be ascertained and confirmed by simple observation. 0ndeed, Bentham held that all existing systems of morality can be 9reduced to the principles of sympathy and antipathy,9 which is precisely that which defines utility. A second argument found in Bentham is that, if pleasure is the good, then it is good irrespective of whose pleasure it is. /hus, a moral in!unction to pursue or maximi;e pleasure has force independently of the specific interests of the person acting. Bentham also suggests that individuals would reasonably seek the general happiness simply because the interests of others are inextricably bound up with their own, though he recogni;ed that this is something that is easy for individuals to ignore. Hevertheless, Bentham envisages a solution to this as well. #pecifically, he proposes that making this identification of interests obvious and, when necessary, bringing diverse interests together would be the responsibility of the legislator. 'inally, Bentham held that there are advantages to a moral philosophy based on a principle of utility. /o begin with, the principle of utility is clear -compared to other moral principles., allows for ob!ective and disinterested public discussion, and enables decisions to be made where there seem to be conflicts of -prima facie. legitimate interests. $oreover, in calculating the pleasures and pains involved in carrying out a course of action -the 9hedonic calculus9., there is a fundamental commitment to human equality. /he principle of utility presupposes that 9one man is worth !ust the same as another man9 and so there is a guarantee that in calculating the greatest happiness 9each person is to count for one and no one for more than one.9 'or Bentham, then, there was no inconsistency between the greatest happiness principle and his psychological hedonism and egoism. /hus, moral philosophy or ethics can be simply described as 9the art of directing men"s action to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.9

#. oliti$al hilo!o"hy Bentham was regarded as the central figure of a group of intellectuals called, by Elie alAvy, 9the philosophic radicals9C both J. #. $ill and erbert #pencer can be counted among the 9spiritual descendants9 of this group. 7hile it would be too strong to claim that the ideas of the philosophic radicals reflected a common political theory, it is nevertheless correct to say that they agreed that many of the social problems of late eighteenth and early nineteenth century England were due to an antiquated legal system and to the control of the economy by a hereditary landed gentry opposed to modern capitalist institutions. As discussed in the preceding section, for Bentham, the principles that govern morals also govern politics and law, and political reform requires a clear understanding of human nature. 7hile he develops a number of principles already present in Anglo%#axon political philosophy, he breaks with that tradition in significant ways. 0n his earliest work, & ragment on 'o!ernment -(**2. -an excerpt from a longer work published only in (8=, as Comment on Blackstone(s Commentaries., Bentham attacked the legal theory of #ir 7illiam Blackstone. Bentham"s target was, primarily, Blackstone"s defense of tradition in law. Bentham advocated the rational revision of the legal system, a restructuring of the process of determining responsibility and of punishment, and a more extensive freedom of contract. /his, he believed, would favor not only the development of the community, but the personal development of the individual. Bentham"s attack on Blackstone targeted more than the latter"s use of tradition however. Against Blackstone and a number of earlier thinkers -including &ocke., Bentham repudiated many of the concepts underlying their political philosophies, such as natural right, state of nature, and 9social contract.9 Bentham then attempted to outline positive alternatives to the preceding 9traditionalisms.9 Hot only did he work to reform and restructure existing institutions, but he promoted broader suffrage and self -i.e., representative. government. &aw, &iberty and <overnmentF /he notion of liberty present in Bentham"s account is what is now generally referred to as 9negative9 liberty%%freedom from external restraint or compulsion. Bentham says that 9liberty is the absence of restraint9 and so, to the extent that one is not hindered by others, one has liberty and is 9free.9 Bentham denies that liberty is 9natural9 -in the sense of existing 9prior to9 social life and thereby imposing limits on the state. or that there is an a priori sphere of liberty in which the individual is sovereign. 0n fact, Bentham holds that people have always lived in society, and so there can be no state of nature -though he does distinguish between political society and 9natural society9. and no 9social contract9 -a notion which he held was not only unhistorical but pernicious.. Hevertheless, he does note that there is an important distinction between one"s public and private life that has morally significant consequences, and he holds that liberty is a good%%that, even though it is not something that is a fundamental value, it reflects the greatest happiness principle. 5orrelative with this account of liberty, Bentham -as obbes before him. viewed law as 9negative.9 <iven that pleasure and pain are fundamental to%%indeed, provide%%the standard of value for Bentham, liberty, because 9pleasant,9 was a good and its restriction, because 9painful,9 was an evil. &aw, which is by its very nature a restriction of liberty and painful to those whose freedom is

restricted, is a prima facie evil. 0t is only so far as control by the state is limited that the individual is free. &aw is, Bentham recogni;ed, necessary to social order and good laws are clearly essential to good government. 0ndeed, perhaps more than &ocke, Bentham saw the positive role to be played by law and government, particularly in achieving community well%being. /o the extent that law advances and protects one"s economic and personal goods and that what government exists is self% government, law reflects the interests of the individual. @nlike many earlier thinkers, Bentham held that law is not rooted in a 9natural law9 but is simply a command expressing the will of the sovereign. -/his account of law, later developed by Austin, is characteristic of legal positivism.. /hus, a law that commands morally questionable or morally evil actions, or that is not based on consent, is still 9law.9 1ightsF Bentham"s views on rights are, perhaps, best known through the attacks on the concept of 9natural rights9 that appear throughout his work. /hese criticisms are especially developed in his &narchical allacies -a polemical attack on the declarations of rights issued in 'rance during the 'rench 1evolution., written between (*8( and (*8) but not published until (,(2, in 'rench. Bentham"s criticisms here are rooted in his understanding of the nature of law. 1ights are created by the law, and law is simply a command of the sovereign. /he existence of law and rights, therefore, requires government. 1ights are also usually -though not necessarily. correlative with duties determined by the law and, as in obbes, are either those which the law explicitly gives us or those within a legal system where the law is silent. /he view that there could be rights not based on sovereign command and which pre%exist the establishment of government is re!ected. According to Bentham then, the term 9natural right9 is a 9perversion of language.9 0t is 9ambiguous,9 9sentimental9 and 9figurative9 and it has anarchical consequences. At best, such a 9right9 may tell us what we ought to doC it cannot serve as a legal restriction on what we can or cannot do. /he term 9natural right9 is ambiguous, Bentham says, because it suggests that there are general rights%%that is, rights over no specific ob!ect%%so that one would have a claim on whatever one chooses. /he effect of exercising such a universal, natural 9right9 would be to extinguish the right altogether, since 9what is every man"s right is no man"s right.9 Ho legal system could function with such a broad conception of rights. /hus, there cannot be any general rights in the sense suggested by the 'rench declarations. $oreover, the notion of natural rights is figurative. :roperly speaking, there are no rights anterior to government. /he assumption of the existence of such rights, Bentham says, seems to be derived from the theory of the social contract. ere, individuals form a society and choose a government through the alienation of certain of their rights. But such a doctrine is not only unhistorical, according to Bentham, it does not even serve as a useful fiction to explain the origin of political authority. <overnments arise by habit or by force, and for contracts -and specifically, some original contract. to bind, there must already be a government in place to enforce them. 'inally, the idea of a natural right is 9anarchical.9 #uch a right, Bentham claims, entails a freedom from all restraint and, in particular, from all legal restraint. #ince a natural right would be anterior to law, it could not be limited by law, and -since human beings are motivated by self interest. if

everyone had such freedom, the result would be pure anarchy. /o have a right in any meaningful sense entails that others cannot legitimately interfere with one"s rights, and this implies that rights must be capable of enforcement. #uch restriction, as noted earlier, is the province of the law. Bentham concludes, therefore, that the term 9DnEatural rights is simple nonsenseF natural and imprescriptible rights, rhetorical nonsense,%%nonsense upon stilts.9 1ights%%what Bentham calls 9real9 rights%%are fundamentally legal rights. All rights must be legal and specific -that is, having both a specific ob!ect and sub!ect.. /hey ought to be made because of their conduciveness to 9the general mass of felicity,9 and correlatively, when their abolition would be to the advantage of society, rights ought to be abolished. #o far as rights exist in law, they are protectedC outside of law, they are at best 9reasons for wishing there were such things as rights.9 7hile Bentham"s essays against natural rights are largely polemical, many of his ob!ections continue to be influential in contemporary political philosophy. Hevertheless, Bentham did not dismiss talk of rights altogether. /here are some services that are essential to the happiness of human beings and that cannot be left to others to fulfill as they see fit, and so these individuals must be compelled, on pain of punishment, to fulfill them. /hey must, in other words, respect the rights of others. /hus, although Bentham was generally suspicious of the concept of right, he does allow that the term is useful, and in such work as & 'eneral )ie# of a Complete Code of La#s, he enumerates a large number of rights. 7hile the meaning he assigns to these rights is largely stipulative rather than descriptive, they clearly reflect principles defended throughout his work. /here has been some debate over the extent to which the rights that Bentham defends are based on or reducible to duties or obligations, whether he can consistently maintain that such duties or obligations are based on the principle of utility, and whether the existence of what Bentham calls 9permissive rights9%%rights one has where the law is silent%%is consistent with his general utilitarian view. -/his latter point has been discussed at length by .&.A. art and >avid &yons..