Bentham on the Public Character of Law

¹ Postema, G. J., Bentham and the Common Law Tradition, Oxford, 1986 (hereafter cited BCLT).

² Bentham, J., A Comment on the Commentaries and A Fragment on Government, ed. Burns, J. H. and Hart, H. L. A., London, 1977 (The Collected Works of Jeremy Bentham), p. 119. (Hereafter cited Comment/Fragment (CW).)

³ Of Laws In General, ed. Burns, J. H. and Hart, H. L. A., London, 1970 (CW), pp. 153–54.

⁴ Blackstone, W., Commentaries on the Laws of England, 4 vols., Oxford, 1765–1769, i. 71. See also Hale, M., A History of the Common Law, 3d edn., ed. Gray, C. M., Chicago, 1971, p. 45.

⁵ See Bentham, J., An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970 (CW), Ch. XVII, section 22, where ‘authoritative’ is understood by Bentham to mean ‘saying makes it so’.

⁶ Recall Hobbes's assertion in his Dialogue between a Philosopher and a Student of the Common Laws, ed. Cropsey, J., Chicago, 1971, p. 69: ‘Statutes are not philosophy as in Common Law and other disputable Arts, but are Commands or Prohibitions…’

⁷ Michelman, F., ‘Justification (and Justifiability) of Law in a Contradictory World’, Nomos, xxvii (1986), 73.

⁸ Hume, D., Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. Selby-Bigge, L. A., 3d edn., revised P. H. Nidditch, Oxford, 1975, p. 272. The Treatise expresses the same view: ‘[E]very particular person's pleasure and interest being different, 'tis impossible men cou'd ever agree in their sentiments and judgments, unless they chose some common point of view, from which they might survey their object, and which might cause it to appear the same to all of them’. A Treatise of Human Nature, ed. Selby-Bigge, L. A., 2d edn., revised P. H. Nidditch, Oxford, 1978, p. 591.

⁹ In Hobbes's ‘state of nature’ each man calls good that which he desires and evil that which he seeks to avoid: see Leviathan, ed. Macpherson, C. B., Baltimore, 1968, p. 120 (Ch. x). But that is precisely because the state of nature as described by Hobbes is the condition in which there are no recognized common standards (even, it appears, standards of ‘right reason’). Thus, the state of nature represents a condition of radical isolation. Only in the commonwealth where common standards are accessible to each member can a genuine exchange of evaluative judgments take place. These standards can only take the form of law (commands of the Soverign). See BCLT, pp. 48–51.

¹⁰ On this score, Hume's view is more complicated. For Hume at times sympathy or the sentiment of utility provides an adequate common point of view. See, e.g., Enquiries, pp. 272–73. Nevertheless, like Hobbes and Bentham, Hume argues for the necessity of common public rules of justice. See Treatise, pp. 484–513. For a discussion of Hobbesian and Humean accounts of law and its public character see BCLT, Chs. 2.2, 3, and 4.

¹¹ Comment/Fragment (CW), pp. 474–92.

¹² UC lxix. 6, discussed in BOLT, p. 206.

¹³ In BCLT, ch. 2 I give some evidence for this claim.

¹⁴ The Works of Jeremy Bentham, ed. Bowring, John, 11 vols., Edinburgh, 1838–1843, viii. 94.

¹⁵ See Postema, , ‘Co-ordination and Convention at the Foundations of Law’, Journal of Legal Studies, xi (1982), 172–79.

¹⁶ Raz, J., ‘Authority, Law and Morality’, Monist, lxviii (1985), 296. See also Raz, , The Authority of Law, Oxford, 1979, ch. 3.

¹⁷ Hart, H. L. A., Essays on Bentham, Oxford, 1982, pp. 18–19, 253–54.

¹⁸ ‘Elements of Law’, The English Works of Thomas Hobbes, ed. Molesworth, W., 16 vols., London, 1839–1845, iv, 204.

¹⁹ This is a rather strong version of the preremption thesis. Joseph Raz's weaker version holds only that it is an essential feature of authoritative directives, like those of law, to exclude from individual practical deliberation some considerations which in the absence of the directive would be relevant. See Raz, , The Morality of Freedom, Oxford, 1986, pp. 46, 57–62.

²⁰ UC cxxvi. 1; Bowring, , iv. 539. See BCLT, pp. 368–71.

²¹ Comment/Fragment (CW), p. 406.

²² Lewis, D. K., Convention: A Philosophical Study, Cambridge, Mass., 1969, pp. 44, 48. For these criticisms see Green, L., ‘Law, Co-ordination, and the Common Good’, Oxford Journal of Legal Studies, iii (1983), 315–20.

²³ For a useful standard treatment of these problems see Ullman-Margalit, Edna, The Emergence of Norms, Oxford, 1978, Ch. 2. For a very short intuitive description of the major types of problems of collective action see Elster, J., Sour Grapes, Cambridge, 1983, pp. 26–30.Hardin's, R.Collective Action, Baltimore, 1982, applies the game-theoretic models to several issues in social and political theory.

²⁴ Prisoner's dilemma and free-rider problems are not identical when the goods sought are so-called ‘step goods’, but since they overlap in a very wide range of cases free-rider problems can be treated for my purposes as the n-person analogue of two-person PD problems. See Hardin, , pp. 55–61.

²⁵ John Finnis maintains that ‘co-ordination problems’ should be broadly conceived to cover problems of interaction ranging from pure co-ordination problems to prisoner's dilemmas to pure conflict/zero-sum games. See Finnis, J., Natural Law and Natural Rights, Oxford, 1980, p. 255; Finnis, , ‘The Authority of Law in the Predicament of Contemporary Social Theory’, Notre Dame Journal of Law, Ethics, and Public Policy, i (1984), 133. Finnis is right to insist on a broader, non-technical use of ‘co-ordination problems’ for his jurisprudential purposes, but I think this empties the term of any useful content and obscures the complexities of real social interaction.

²⁸ See Sen, A. K., ‘A Game-Theoretic Analysis of Theories of Collectivism in Allocation’, Growth and Choice, ed. Majumdar, T., London, 1969, pp. 12–15; Elster, J., ‘Weakness of Will and the Free-Rider Problem’, Economics and Philosophy, i (1985), 247–49.

²⁷ Hobbes, T., ‘De Cive’, Man and Citizen, ed. Gert, B., New York, 1972, p. 98; Leviathan, pp. 125, 216; for a more extensive discussion and references see BCLT, pp. 48–51.

²⁸ Hobbes, , Leviathan, Ch. 17; BCLT, pp. 51–55.

²⁹ Hume, , Treatise, pp. 484–513. For a discussion of Hume's analysis of this problem see BCLT, pp. 110–34.

³⁰ This is now widely, though not universally, recognized in game-theoretic discussions of social interaction. See A. Sen, K., ‘Goals, Commitment, and Identity’, Journal of Law, Economics, and Organization, i (1985), 344–45; Parfit, D., ‘Prudence, Morality, and the Prisoner's Dilemma’, Proceedings of the British Academy for 1979, Oxford, 1981, pp. 539–64; Elster, J., ‘Rationality, Morality, and Collective Action’, Ethics, xcvi (1985), 136–55.

³¹ On the class of intrinsically collective goods or aims see Postema, G. J. ‘Collective Evils; Harms, and the Law’, Ethics, xcvi (1987), 418–33.

³² Hume, , Treatise, p. 555. This is essentially Bentham's criticism of natural law principles (and, at some points in his career, of the principle of utility itself). It is the argument at the heart of Hobbes's criticism of appeals to ‘right reason’, Leviathan, Ch. 6, pp. 111–12; ‘Questions Concerning Liberty, Necessity and Chance’, in Hobbes, , English Works, ed. Molesworth, v. 193, and notion of ‘metaphysical goodness’, ibid., 192.

³³ See Green, L., ‘Authority and Convention’, The Philosophical Quarterly, xxxv (1985), 339.

³⁴ In the original example, husband and wife both wish to go out for an evening's entertainment together rather than alone, but the husband wants to go to a fight and the wife to the ballet. See Luce, R. and Raiffa, H., Games and Decisions, New York, 1957, pp. 90–94, Ch. 6. See also Ullman-Margalit, Ch. 4.

³⁵ For support for the reading of Bentham set out in this paragraph, see BCLT, pp. 172–83.

³⁶ Hume, , Treatise, p. 535.

³⁷ Compare Finnis, ‘Authority of Law’, pp. 117–20; but see Raz, , ‘The Obligations to Obey: Revision and Tradition’, Notre Dame Journal of Law, Ethics, and Public Policy, i (1984), 150–52.

³⁸ Hume, , Treatise, p. 490.

³⁹ ‘Principles of the Civil Code’, Bowring, i. 309. Bentham's immediate reference in this passage is to the law of property, and to both the assurance and security and the encouragement to foresight which it provides. But the generalization of this sentiment in the text above is in the spirit of this passage.

⁴⁰ Hume, , Treatise, p. 502.

⁴¹ See my ‘“Protestant’ Interpretation and Social Practices’, Law and Philosophy vi (1987), 313–15.