BENTHAM, JEREMY (1748–1832)

BENTHAM, JEREMY (1748–1832)

Born in 1748, Jeremy Bentham was an author whose notable writings displayed many of the rationalist assumptions of the Enlightenment. By his death in 1832, the development of these biases into fully fledged system building had become part of the ‘spirit of the age’. This article outlines Bentham’s life, his ethical theory (commonly known as utilitarianism), his writings on legal, administrative and penal reform, his reaction to the French Revolution, his general theory of legislation and his later work on representative government.

Often seen as the founder of modern British jurisprudence, Bentham was a child prodigy—educated privately and later at Queen’s College, Oxford (1760–64). His father and grandfather were both attorneys and a legal training at Lincoln’s Inn followed (1764– 72). Although Jeremy was called to the bar, he never practised law (or got married) and instead sought to establish himself as both an author of legal criticism and a practical prison reformer. The latter ambition involved an unsuccessful expedition to Russia with his brother Samuel, in the 1780s, and a long and futile campaign to persuade the British Government to adopt his panopticon proposal (see below). Moreover, during most of his lifetime, Jeremy was significantly more productive as a writer of manuscripts than he was as an author of published texts and he lived on a rentier income. Bentham’s A Fragment on Government was first published anonymously in 1776; his Panopticon pamphlet had a very limited circulation in 1791 and the more analytical text of An Introduction to the Principles of Morals and Legislation was no more of a publishing success in 1789. He only attracted significant public attention with the provocatively titled 1787 tract, Defence of Usury, which attacked statutory restrictions on the lending of money at interest. From c.1780–1808 Bentham moved in Whig circles, but in later life he became aligned with parliamentary and extra-parliamentary Radicals who favoured a more ‘democratic’ liberal system. Bentham’s researches on the law of evidence and judicial procedure, undertaken in the early 1800s, were eventually edited for publication by the young JOHN STUART MILL as Rationale of Judicial Evidence (1827), but the work received poor reviews.

After Bentham’s death, the first attempt to bring both his published and unpublished work to public attention—The Works of Jeremy Bentham (1838–43), edited by John Bowring—was both incomplete and of highly uneven quality. Hence, during the late twentieth century, an ongoing project was established at University College London, dedicated to the publication of the Collected Works of Jeremy Bentham. More than twenty volumes have been produced for the new series, and it must be assumed that total coverage will eventually be achieved.

On the very first page of his first publication (A Fragment on Government), Bentham observed that ‘it is the greatest happiness of the greatest number that is the measure of right and wrong’. Happiness (or utility) was understood by Bentham as pleasure (or the absence/minimal presence of pain) and to be capable of measurement. Moreover, he made the additional assumption that individuals frequently sought to maximize their own pleasure (where no countering force applied), which in turn explained the ‘natural’ order of—and the capacity of legislators to regulate—society. Bentham seems to have maintained these ethical and psychological positions throughout his long and varied

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career, but—towards the end of his life—he sought to make his normative utility principle philosophically more rigorous (see below). In the 1822 edition of An Introduction to the Principles of Morals and Legislation, Bentham proposed to substitute the terms ‘greatest happiness principle’ and ‘greatest felicity principle’ for the term ‘principle of utility’, but the change of terminology failed to catch on. (His school was never redesignated ‘felicitarian’!) The principle of utility was egalitarian in that it gave equal consideration to the happiness of each individual member of the community, but it could (in theory) be applied to legislation by an undemocratic government—such as an ‘enlightened’ despotism—although his later works questioned this assumption (see below). Finally, in his 1831 pamphlet, Parliamentary Candidate’s Proposed Declaration of Principles, Bentham expounded a more rigorous and complete conception of his ethico-political position:

I recognise as the all-comprehensive, and only right and proper end of Government, the greatest happiness of the members of the community in question: the greatest happiness—of all of them, without exception in so far as possible: the greatest happiness of the greatest number of them, on every occasion on which the nature of the case renders the provision of an equal quantity of happiness for every one of them impossible: it being rendered so, by its being matter of necessity, to make sacrifice of a portion of the happiness of a few to the greater happiness of the rest.

Bentham’s œuvre of publications and manuscripts (taken as a whole) indicate a further presumption that legal structures were more or less identical with social structures. Consequently, Bentham inferred that utilitarian ethics implied legal and political reform, undertaken by a single legislator (a person or a group) who was endowed with complete legal sovereignty—as a trust exercised on behalf of the citizens of any given state. A single ‘legislative will’ implied coherence of legislative action—‘In every political state, the greatest happiness of the greatest number requires, that it be provided with an all- comprehensive body of law’—and Bentham devoted much energy to the production of general and comprehensive legal codes that sought to indicate how his ideas on crime, punishment, property, reward, surveillance, policing, judicial organisation, political and administrative organization and public service could be linked together in a logical and practical manner. This concern with codification links manuscript works from the 1780s, such as Of Law in General—which asserted that ‘as yet no complete code of statute law is anywhere to be found’—with published texts such as Codification Proposal Addressed by Jeremy Bentham to All Nations Professing Liberal Opinions (1822) and the 1830 version of the Constitutional Code, which included references to further work on civil and penal codes. Furthermore, in 1811, Bentham had offered to codify the laws of the USA and (in 1814) had made the same offer to the Russian Empire, although neither proposal was accepted!

Bentham’s famous ‘panopticon’ proposal took the form of a plan for a prison/workhouse/factory of circular design, with a central observation point from which

a superintendent could maintain continuous surveillance of the establishment. This novel conception of a penitentiary (originally developed in Russia in the 1780s) sought to achieve deterrence, moral reformation and secure imprisonment of prisoners as well as

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ensuring economy of expenditure for government(s). When panopticist ideas were applied to poor relief and factory production in Pauper Management Improved (1797), the emphasis fell upon the deterrence of indigents from seeking relief and the fiscal economy that would arise from supervised production, although the inculcation of habits of self-reliance (a type of reform) was also part of the overall plan. Although twentieth- century critics as diverse the totalitarian possibilities implicit in the panopticon schemes, it should also be noted that Bentham’s ‘lenity principle’ involved full respect for a prisoner’s health and nutrition requirements within the institution, while his ‘severity principle’ as Foucault and Himmelfarb have emphasized was only used to justify incarceration (Bentham was a consistent opponent of the common practice of manacling). ‘Economy’, the third principle of Bentham’s penology, was to be achieved through commercial contracts—which could be terminated on humanitarian grounds— between the supervisors of the new institutions and government(s), plus a variety of ingenious schemes to maximize the productivity of the labour of the inmates and to minimize expenditure on their (very limited) enjoyments.

At its outbreak, Bentham was sympathetic to the French Revolution. His private manuscripts show that between 1789 and 1792 he conceived representative democracy (rather than enlightened despotism) as the best mechanism for the achievement of a rational governance that accepted the principle of utility, but, during the 1790s, he became disillusioned with this view. His main concern was that democratically elected assemblies were unlikely to provide the careful definitions of terms and the consistent use of language that were necessary if the calculation of community happiness was to become an exact science. In Anarchical Fallacies (1796), Bentham attacked the ‘Declaration of the Rights of Man’ as a ‘perpetual vein of nonsense’ that arose from an unscientific view of language and politics, and which involved numerous self- contradictions, such as the advocacy of both unbounded natural rights of liberty and property on the one hand, and criminal laws and taxes on the other.

Although Bentham’s general principles of legislation gave priority to negative liberty over other legislative goals (see below), in his overarching philosophy, personal liberty was subsumed within a more general category of ‘Security’. In a manuscript of the 1790s, known as Principles of the Civil Code (PCC), he contended that it was the ethical duty of

a legislator to measure and balance the claims of ‘Subsistence’, ‘Abundance’, ‘Equality’ and ‘Security’ as the objectives of civil (and criminal) law—using the principle of utility as a guide. Despite the technocratic bias of the panopticon project, in PCC, Bentham argued against what is now known as social engineering, on the grounds that the advocate of ‘a coercive law ought to be ready to prove, not only that there is a specific reason in favour of this law, but also that this reason is more weighty than the general reason against every law’, namely ‘that such a law is restrictive of liberty’. While Bentham favoured measures against inherited wealth (see below), he claimed that doctrinaire egalitarianism involved the danger of removing the incentive to maintain and possess abundance, so that if ‘all property were to be equally divided, the certain and immediate consequence would be, that there would be nothing more to divide’. Bentham’s increasing concern with the logic of private property in this period was also reflected in manuscripts on the principles of laissez-faire economics (for example his ‘Manual’ and ‘Institute of Political Economy’) and pamphlets such as Supply without Burthen (1795), which argued for a kind of inheritance tax that would only fall on estates where no close

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relatives stood to benefit, thereby greatly reducing the disincentive effect associated with other forms of public revenue collection.

Bentham’s work on British legal procedure helped him to conclude that the defeat of his panopticon project was no accident, but instead due to what he came to describe as ‘sinister interests’. In particular, he adjudged that a ‘conspiracy among the high and opulent to support one another against the low and indigent’ was the most profound obstacle to utilitarian reform and he now sought allies outside the charmed circle of the British Establishment. Bentham became increasingly concerned with parliamentary reform (e.g. Bentham’s Radical Reform Bill, 1819) and as a result of extending the economic assumption that every individual was best judge of their particular self-interest to the realm of politics, he came to the conclusion that universal suffrage was a fundamental precondition of good government. On grounds of efficiency and social order, however, Bentham always favoured representative democracy over direct democracy, as the former allowed a special role for the expert legislator and he was keen to avoid the charge of Jacobinism. In principle, Bentham favoured female as well as male suffrage, but he concluded that even enlightened public opinion could not accommodate this degree of radicalism and he chose to work with the advocates of adult male suffrage. During Bentham’s ‘democratic period’ (roughly 1808 to 1832) he formed strong personal links with a variety of ‘self-made men’ who were in broad sympathy with his aims, if not always with the minutiae of his utilitarian philosophy. This Benthamite group (with subsequent offshoots) became known as ‘the Philosophic Radicals’ and included figures such as Samuel Romilly (1757–1818), Francis Place (1771–1854) and JAMES MILL.

Bentham’s Constitutional Code project, which began in 1822, was not completed in his lifetime. Only one of the three projected volumes was published, although a vast array of manuscripts was produced. The work was both a concrete expression of Bentham’s internationalism (for he hoped, but failed, to see it enacted in Portugal, Spain or Greece) and a conceptual development of the liberal aspects of his earlier thought. The Constitutional Code was a republican constitution, based on the separation of powers, but endowed with an active executive branch led by a ‘Prime Minister’, who was directly elected by a full male suffrage. Fourteen ministries and sub-departments dealt with elections, legislation, the army, the navy, ‘preventive service’ (public works), interior communication, indigence relief, education, ‘domain’ (public buildings), health, foreign relations, trade and finance—all according to the dictates of the greatest-happiness principle. Yet, elections were a necessary, but not a sufficient condition for this to be achieved, for good government also needed to be transparent. Bentham had subscribed to an ‘interest-duty junction’ principle (that equated the duties of rulers with the common interest) since the 1770s, but it was only in his later works that he concluded that radical, democratic measures were necessary to ensure that ministers, civil servants, legislators and judges did not mistake their self-interest for their duty. In the Code, both adult male suffrage and genuine freedom of the press were necessary preconditions for the existence of a ‘Public Opinion Tribunal’ (otherwise, an active citizenry) as an additional check on the pernicious exercise of political power.

In popular debate, Bentham has been commonly associated with a narrow legalism and a laissez-faire approach to economics. However, not even the popularization of his work during the early nineteenth century—by such close followers as Pierre Etienne Dumont (1759–1829)—clarified the distinction between Bentham’s empirical and

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normative assumptions about human happiness or indicated the breadth of his project of legislative and administrative reform. Hence, despite the famous claim by the influential liberal historian, A.V.DICEY, that, in the period 1825 to 1870, ‘the teaching of Bentham obtained…ready acceptance among thoughtful Englishmen’, scholarship in the final quarter of the twentieth century has tended to suggest that the rationalist and doctrinaire style, and the technical and abstract terminology of much of Bentham’s writing (e.g. his 1818 tract on religious education, Church-of-Englandism), prevented specifically Benthamite—as opposed to generally utilitarian ideas—from becoming common currency. Finally, it should be noted that Bentham was a child of the ‘radical Enlightenment’ in that his philosophy was materialistic and discreetly sceptical of religion. Despite the authoritarian aspects of his panopticon, his unpublished manuscripts indicate an iconoclastic interest in extending democracy and applying the greatest- happiness principle to questions of race, gender and animal welfare. As Bentham’s full corpus becomes generally available, these novel aspects of his thought may even become central topics for twenty-first-century Bentham studies.