Jeremy Bentham
Ross Harrison
In Ted Honderich (ed.), The Oxford Companion to Philosophy, Oxford, 1995, pp. 85-88

English philosopher who dreamed at a young age of founding a sect of philosophers called utilitarians and who lived to see his dream fulfilled.

He also planned that his body when he died should be made into what he called an 'auto-icon' (that is, a representation of itself) so that it could be used as a monument to the founder of the sect. This intention was also fulfilled, so that to this day meetings of Benthamites sometimes take place in the actual presence of Bentham himself (who spends the rest of his time sitting in a glass box in University College London.)

Bentham was the son and grandson of lawyers working in the City of London and was intended by his father to follow and surpass them as a practising lawyer. However, while following his legal studies, Bentham became disgusted with the current state of English law and so, rather than making money by the practice of the law as it is, he turned instead to a study of what the law might be. This study formed the centre of his long life, during which he wrote an enormous amount of manuscript material on law, economics, politics, and the philosophy which naturally arises from these subjects.

In his earlier years Bentham turned some of this manuscript into books, such as his Fragment on Government of 1776, or his Introduction to the Principles of Morals and Legislation of 1789 (although, as the titles indicate, both of these were in fact only parts of projected works). Later on, even the fragments tended not to be published by him and were left for others to edit. In this manner, the first work which made his name was produced in French and published in Paris by his disciple Étienne Dumont of Geneva (the Traités de législation civile et pénale of 1802). Dumont subsequently edited other works; these were translated into English by disciples, who also edited others directly. Therefore much of the published text of Bentham has passed through the hands of others, and also sometimes been translated or retranslated prior to its publication. In fact, Bentham's greatest work on the philosophy of law was not published until the present century (in its latest version, edited by H. L. A. Hart, under the title Of Laws in General).

Bentham's grand project was for legislation: the exploration and theoretical foundations of a perfect system of law and government. For this he needed a measure of perfection, or of value; and this for Bentham was the principle of utility, otherwise known as the greatest happiness principle. In his already mentioned Introduction to the subject, Bentham starts chapter 1 with the rousing declaration that 'Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.' This first paragraph ends with the statement that 'the principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law'. Bentham's aim is to produce felicity, happiness. The means to be employed are 'reason and law': the right law will produce happiness, and the right law is one in accordance with reason. This means one in accordance with the principle of utility. In Bentham's draft codes of law, each particular law was attached to a 'commentary of reasons on this law'. The commentary demonstrated its value and also, Bentham hoped, improved its effect. For, as he says elsewhere, 'power gives reason to law for the moment, but it is upon reason that it must depend for its stability.'

Bentham explicitly says in the Introduction that by 'utility' he means 'that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness ... or ... to prevent the happening of mischief, pain, evil, or unhappiness'. The rightness of actions depends on their utility; and the utility is measured by the consequences which the actions tend to produce. Of all these varying terms describing the consequences, the most important for Bentham are the ones with which he began the Introduction, pleasure and pain. For Bentham thinks that these are clear, easily understandable terms, which can therefore be used to give precise sense to the others. So the good, for Bentham, is the maximization of pleasure and the minimization of pain. Otherwise, as he puts it in the Introduction, we would be dealing 'in sounds instead of sense, in caprice instead of reason, in darkness instead of light'. For Bentham the principle of utility, interpreted in terms of pleasure and pain, is the only appropriate measure of value because it is the only comprehensible one.

Bentham's aim of increasing happiness is a practical one; and he had many purely practical proposals, such as for trains of carts between London and Edinburgh, or a Panama canal, or the freezing of peas. But the most famous and important of these particular practical proposals was for a prison which he called the 'panopticon'. It was to be circular so that the warders could sit in the centre and observe all the prisoners. It was also going to be privately run, by contract management with Bentham as its manager. Bentham therefore not only intended to produce what he called a 'mill for grinding rogues honest' but also to make money in the process. In fact, blocked by the interests of the landowners whose property abutted the site of the proposed prison (now occupied by the Tate Gallery in London), he lost both money and time until, after twenty years' struggle, he was compensated by Parliament. Bentham took his winnings, rented a house in Devon, and instead of grinding rogues chopped logic, producing his most profound work on the philosophy of language.

In his more general theory of government, just as in his more particular prison proposals, Bentham needed to rely on a psychology. This is that people tend to act in their own interests, where these are again understood in terms of pleasure and pain. People are understood to be seekers after pleasure and avoiders of pain. Given this knowledge of people's psychology, the benign legislator can so arrange his system of law that people, seeking only their own interests, will in fact be led into doing what they are meant to do, which is to promote the general interest (or the greatest happiness for all.)

From this follows the Benthamite theory of punishment. It is a deterrent account. The proper aim of punishment, as of anything else, is to produce pleasure and prevent pain. Now all punishment is in itself a pain. Therefore, for Bentham, all punishment is in itself a harm. Therefore it can only be justified if this particular pain is outbalanced by the reduction in pain (or increase of pleasure) it causes. If people are deterred by punishment from doing things which would produce more pain (such, for example, as rape, theft, or murder), then the punishment will be justified. If not, not: there is no point in punishment or retribution for its own sake. This defence of punishment not only justifies punishment but also enables in principle the precise calculation of how much punishment is appropriate. It is that amount whose pain is outweighed by the pains of the actions it deters.

Bentham's general account of law and punishment and his use of the principle of utility as a means of providing reasons for his particular codes of law is constant through his life. However, his ideas about the particular political system which should be the source of this law developed. At the start he thought that he only needed to appeal to enlightened governments for such obviously beneficial arrangements to be put into effect. When he found that this did not happen (or that he was blocked in his own proposals, such as that for the panopticon), he became a supporter of democracy. Not just the law had to be changed but also the system of government. He was accordingly active in the movement for the extension of the parliamentary franchise, which finally came into effect in the year he died (although Bentham wanted something considerably more radical than the extension which actually happened: he wanted one man, one vote; and a secret ballot.)

Such democratic proposals were in any case much more in accord with his general theories. If, according to the psychological theory, everyone acts in their own interests, so also do governments or governors. The classic eighteenth-century figure of the benevolent, semi-divine legislator has to be dispensed with. Dictators (supposedly enlightened or otherwise), kings, oligarchies can not be trusted. The appropriate end of government, popularly sloganized by Bentham as 'the greatest happiness of the greatest number', is only safe in the hands of the greatest number themselves. If the people as a whole are granted political power, they will, merely by following their own interests, promote what is also the appropriate end. Just as in the right system of law, so in the right system of politics or government, actual and appropriate action will coincide.

It can be seen that Bentham's project was centrally a project of clarification. He wanted to clarify values, to show at what we ought to aim. He wanted to clarify psychology, to show at what people actually do aim. He wanted to devise the appropriate systems of government, law, or punishment so that these two things could be placed in step. However, his interest in clarification went further. He also wanted to clarify the very idea of law; both as a whole and also in its central terms. It was in this project that he was led into his most original thought.

Understanding the law involves understanding such things as rights and duties. In the empiricist tradition, to which Bentham was loosely attached, understanding is provided by perception. Locke and, following him, Hume made a distinction between simple and complex ideas which allowed them to understand things which were not directly perceived. Complex ideas, such as that of a golden mountain, can be understood because they can be analysed into their simple constituents, of which we have experience. However, this technique does not work for the terms which Bentham wished to analyse, such as obligation or right. So here he was forced into a wholly new technique, which he called 'paraphrasis.'

This technique anticipates twentieth-century methods of analysis as does Bentham's related claim that the primary unit of significance is a sentence rather than a word. His idea in paraphrasis is not to translate the problematic word into other words. Rather, 'some whole sentence of which it forms a part is translated into another sentence'. So in the analysis of what Bentham called 'fictional entities' (such as right, duty, property, obligation, immunity, privilege - the whole language of the law), he uses his technique of paraphrasis to place these terms in sentences for which he then gives substitute sentences not containing the offending term. For example, sentences about rights are explained by Bentham in terms of sentences about duties. A particular right is for him the benefit which is conferred on someone by the imposition of duties on others. With duties we still, of course, have fictional entities. But these, in turn, can be placed in sentences which are translated into sentences about the threat of punishment. Punishment is, for Bentham, the threat of the imposition of pain. So here, at last, we reach what Bentham calls real entities. We reach clear, simple ideas, which can be directly understood by perception. As Bentham says in the Fragment on Government, 'pain and pleasure at least are words which a man has no need, we may hope, to go to a Lawyer to know the meaning of'. With them the law can be clarified; for lawyers and others. The ultimate clarifier of value, of what the law should be, will also work as a clarifier of what the law actually is.

These projects are projects for change: current conditions are criticized. However, although Bentham's goals were the same as many of the contemporary movements for change, his foundations were not. Bentham was on the side not just of the struggle for reform of the franchise in England but also of the American and French Revolutions. The central contemporary justification for these revolutions was in terms of natural rights. However, Bentham was consistently opposed to the use of natural rights and he therefore criticized the rhetorical justification of both of these revolutions.

Bentham thinks that a natural right is a 'contradiction in terms'. He thinks that they are 'non-sense', fictitious entities. However, as has been seen, Bentham produced a new engine of analysis in his technique of paraphrasis precisely to make sense of fictitious entities. So it might be thought that he could make sense in the same way of natural rights. However, comparing a natural right with a legal right exposes the difference. Both can be analysed in terms of corresponding duties. However, as seen, Bentham analyses a legal duty in terms of the law (or threat of punishment) which creates it. There is no corresponding law, he holds, with respect to supposed natural duties. Hence he holds that natural rights are just imaginary rights by contrast with the real rights produced by actually existing systems of law. As he puts it, 'from real law come real rights ... from imaginary laws come imaginary ones'. The so-called rights of man are in fact merely 'counterfeit rights.'

Bentham's most famous slogan expressing this view is 'nonsense on stilts'. This comes from his critical analysis of the French Declaration of the Rights of Man and Citizen in a work usually known as Anarchical Fallacies (which, in fact, is Dumont's title). Bentham's claim is that language which looks as if it is describing what rights there actually are is in fact suggesting what rights there ought to be. That is, instead of citing existing rights, the French Declaration is giving reasons why there ought to be rights. As Bentham puts it in Anarchical Fallacies, 'a reason for wishing that a certain right were established, is not that right; want is not supply; hunger is not bread'. So to suppose that such rights actually exist is nonsense. Even worse is to suppose that we can be sure that the correct rights have been found for all time. For Bentham is a promoter of experimentation. We have to keep seeing what utility is actually produced by particular systems of rights. Hence it is an additional mistake to think that any rights are unalterable (indefeasible, imprescriptible). This mistake was also made by the French. Hence the famous slogan. The complete remark from which it comes is 'natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.'

Natural rights was one attempted answer to the question of the source of obedience to the state and the conditions for legitimate revolution. Another attempted answer also popular in Bentham's day was the original, or social contract. This device, founding obedience on agreement, was used by the leading contemporary defender of British law William Blackstone. Bentham ridicules such a defence in his Fragment on Government. For Bentham, justification of obedience to government depends upon utility, that is upon calculation of whether the 'probable mischiefs of obedience are less than the probable mischiefs of resistance.'

A contract will not work here for Bentham because, just like rights, all real contracts are legal contracts. Hence they are produced by law and government; and cannot therefore be used to provide a foundation for law and government. Even if its force is not supposed to be the force of a proper contract but merely that of a promise, or agreement, this again will not help to provide justification. For whether someone (government or people) should keep their agreements has, again, for Bentham to be tested by the calculation of utility. Yet if utility is to be the ultimate justification of promise-keeping, it would have been better to have started there in the first place, rather than (like Blackstone) traversing a tortuous path through contracts, original contracts, and largely fictional agreements. Again Bentham designates the supposed alternative source of justification to be merely a fiction and, as he puts it in the Fragment, 'the indestructible prerogatives of mankind have no need to be supported upon the sandy foundation of a fiction.'

Although all justification comes from utility, this does not mean that Bentham can not support secondary ends; that is, things which, if promoted, will normally tend to increase utility. He lays down four such intermediate ends which should be promoted by the right system of law and government: subsistence, abundance, security, equality. These form two pairs so that subsistence (the securing to people of the means to life) takes precedence over abundance; and securing people's expectations takes precedence over equality. The utilitarian argument for this depends upon the psychological claim that deprivation of the former member of each pair causes more pain than the latter.

Psychological assumptions also lie behind Bentham's promotion of equality. He claims that (in general) equal increments of a good will not produce equal increments of utility. (That is, he claims that there is diminishing marginal utility.) Therefore, in general, provision of a particular good will provide more utility for those who already have less than those who already have more; hence a general tendency towards providing goods for the less well-off; or equality.

Bentham's is a consequentialist ethic. It looks towards actual and possible future states of affairs for justification of right action, not to what happened in the past. (For example, punishment is not retribution for past action, but prevention of future harms; obedience to the state is not because of some past promise, but to prevent future harms.) This is for Bentham the right, indeed the only possible, way of thinking correctly about these matters. It explains his central stance with regard to reform of the law. The law he found was common law, made by judges, based on precedent and custom. It came from history. For this he wanted to substitute statute law, made by democratic parliaments, and founded on reason. These reasons would be independent of history and would be in terms of future benefit.

Bibliography

J. Dinwiddy, Bentham (Oxford, 1989).

Ross Harrison, Bentham (London, 1983).

H. L. A. Hart, Essays on Bentham (Oxford, 1982).

David Lyons, In the Interest of the Governed (Oxford, 1991).

Gerald J. Postema, Bentham and the Common Law Tradition (Oxford, 1989).

Frederick Rosen, Jeremy Bentham and Representative Democracy (Oxford, 1983).


Utilitarian Philosophers :: Jeremy Bentham :: 'Jeremy Bentham', by Ross Harrison