Vol. 14 No. 6 (June 2004), pp.357-362

BENTHAM: SELECTED WRITINGS OF JOHN DINWIDDY, by William Twining (ed.).  Stanford, California: Stanford University Press, 2003.  208pp. $45.00 Cloth.  ISBN: 0-8047-4519-6.

Reviewed by John Michael Eden, Duke University School of Law, Email:  john.eden@law.duke.edu

and

John Paul Ryan, The Education, Public Policy, and Marketing Group, Inc. Email: johnpryan@mindspring.com 

Jeremy Bentham was a leading figure in the development of utilitarian theory.  But unfortunately, many scholars are unaware that Bentham exerted a great deal of effort describing the myriad deficiencies inherent in English common law, identifying their general causes, and suggesting potential solutions to those imperfections.  In an effort to remind modern readers of these underappreciated dimensions of Bentham’s work, William Twining offers a fresh introduction to John Dinwiddy’s BENTHAM, a series of essays that not only illuminates what Bentham himself thought about the proper role of law in a republican regime, but also provides often acute normative analyses of the virtues and limitations of the Western common law tradition.  These essays, penned in an accessible style, provide one of the best starting points for an engagement with the arguments of one of the most revered and reviled utilitarian theorists. 

BENTHAM also provides a succinct introduction to the range of Bentham’s intellectual influence across such disciplines as philosophy, economics, government, and jurisprudence, as well as his efforts at political and legal reform in England and beyond.  In the first set of essays, Dinwiddy sketches with some precision how Bentham’s utilitarian ideals animated and shaped his own substantive positions on legal and social policy.  In subsequent essays, Dinwiddy provides a view of Bentham’s transition to political radicalism, a critical analysis of David Lyons’ 1973 book that tries to reconcile Bentham’s views on utilitarianism and private ethics, and, finally, a critical analysis of Gerald Postema’s 1986 book on Bentham’s jurisprudence.  This review attempts to provide some perspective on the most innovative arguments made in these essays, and to that end focuses on four of Dinwiddy’s interpretations of Bentham’s thought that are of special interest to legal theorists and political philosophers.   

The first is found in “Codification versus Common Law.”  Here, Dinwiddy’s principal point is that by providing a detailed critique of the role arbitrary judgment plays in the evolution of common law, Bentham stretched his intellectual imagination beyond the narrow ambit of utilitarian reasoning about matters political and moral.  Bentham thought that law could play a crucial role in maintaining a fair and pragmatically workable social order, as he expressed the justification for this view with precision in 1796:  “If one branch of knowledge be in its nature [*358] more interesting than another, it should be this of Law, on the breath of which personal security, life, property, reputation, condition in life, everything that can bear the name of interest depends” (pp.51-52).   

If Bentham’s enthusiasm for the law knew no bounds, it can be regarded as somewhat unfortunate that this enthusiasm was coupled with a disdain for, and often severe impatience with, the actual workings of the English common law system.  Like modern critics of judicial activism, yet unlike Blackstone, the intellectual giant who tirelessly lauded the virtues of the common law, Bentham saw judge-made law as providing no roadmaps for understanding what constitutes the law or how to predict what the law would be.  The law could be known only ex post, and what is potentially even more unsettling, could only be explained and justified against the backdrop of a given case’s particulars and the way those particulars were massaged – and perhaps manipulated – by the lawyers and jurists to whom its disposition was entrusted.  After a sober consideration of such facts, Bentham thought it obvious that any dispassionate individual would conclude that the common law served the interests of lawyers and judges, who would need to be called upon to interpret and explain the law, rather than the general public.  

In Bentham’s early work there was a hope that these shortcomings might be alleviated through the adoption of a comprehensive code called the Pannomium, a code consisting of constitutional, civil, and penal rules.  He viewed the Pannomium, when complete in its drafting and internally consistent in its provisions, as an instrument that could not only (1) ensure a degree of consistency in judicial outcomes whose achievement was impossible under the common law, but also (2) underwrite the political legitimacy of which the common law was woefully bereft.  To ensure that the provisions of this code were faithfully and effectively interpreted, Bentham developed a very complicated set of norms to which jurists would have to abide.  The underlying principle of this set of norms can be stated simply:  If, in the adjudication of a particular case, the Code required an outcome that would be inconsistent with the principle of utility, judges would be required to propose an amendment to the legislature which, upon approval, would by virtue of subsequent incorporation into the Pannomium shield the law from “petrification.” 

Though Dinwiddy portrays with vivid accuracy the content of Bentham’s views on the defects of the English common law system, he fails in two ways to achieve the critical distance essential to any fair, balanced evaluation of those views.  First, Dinwiddy never carefully distinguishes between the common law’s tendency to allow, or even to encourage, self-serving behavior on the part of the judiciary or the bar, on the one hand, and its tendency to announce ad hoc legal principles, on the other.  It is hard to overstate how important it is for a utilitarian like Bentham to consider these questions independently, especially the former, for Bentham’s own position, as expressed in the DEONTOLOGY, is that self-serving behavior often has structural causes which sometimes can be remedied by altering a set of social arrangements or by modifying a particular institution.  Thus, if Bentham thought it impossible to cure, or at least [*359] treat, the common law’s tendency to encourage self-serving or rent-seeking behavior, it would be helpful to know why he held so tightly to such a view.  As for the second of these two different objections to the common law, it is helpful to remember that the law’s flexibility comes at a high price – when we are handed an unsavory outcome we are likely to exclaim that the common law is “ad hoc” and “unpredictable,” and yet when a welcome decision is delivered the law magically becomes “fair” and “equitable.”  The second problem is that Bentham’s revision procedure appears to place a cellophane wrapper – i.e., an inadequately opaque covering – around what is essentially a process that allows judges to change the law.  In fairness to Bentham, judges would have to submit their revisions to the legislature for approval prior to using a new, revised legal principle to decide a particular case.  But this does not obviate the fact that common law adjudication is substantively very similar to what Bentham envisioned under the Pannomium Code, nor does it undermine the objection that the amendment process required by the Code would be cumbersome and inefficient.  

The second of Dinwiddy’s interpretations is found in “Critique of Natural Rights,” where it becomes clear that one ventures a solecism in claiming that legal institutions can recognize rights which exist prior to the advent of political institutions and yet still delimit those rights without challenging their status as unbounded, pre-political freedoms.  By framing Bentham’s rejection of natural rights theory in this particular way, Dinwiddy avoids a number of intellectual snares to which interlocutors in the “natural rights vs. legal positivism” debate have fallen prey.  First, this characterization properly identifies the primary analytic issue at stake, namely, whether the content that natural rights theory attributes to specific human rights can be squared with the types of limitations to which those rights are necessarily subject.  Dinwiddy helpfully points out that if the very content of a right can by definition be sculpted, shaped, and modified by political institutions, then it is nonsensical to say that such a right is either unbounded or that such a right exists “pre-politically.”  Second, by focusing on the content of rights, it becomes easier to see that both sides of the debate often mistakenly assume that the “objectivity” of rights is the primary, most important issue to be addressed.  Legal positivists have often claimed that a right whose content depends on a political process or on the will of legislators simply could not be objective, and natural rights theorists, including Ronald Dworkin, have often insisted in riposte that the objectivity of such rights is evidenced by the deep roots these rights have taken in our (collective) moral imagination.  Dinwiddy’s main point is that objectivity cannot be the main issue – since even a legal positivist can avow that what are referred to as “natural rights” do exist in some sense as objectively verifiable, deeply embedded moral intuitions that a great number of people share, without concluding that those intuitions actually determine the content of our rights. 

The third interpretation is found in “Bentham’s Transition to Political Radicalism.”  Dinwiddy’s principal argument here is that it is difficult, if not impossible, to understand Bentham’s mature utilitarian views without first [*360] appreciating the role his brief conversion to democratic ideals played in modifying his earlier views on the superiority of a codified legal system over a common law regime.  The impetus for Bentham’s conversion was his realization that the one hope for the English common law – codification – would never see the light of day.  By 1809 he had completely lost hope in the possibility that the common law could be codified, and had come to the unsettling conclusion that parliament and the judiciary were “allied against the people” (p.117).  In drawing this gloomy conclusion Bentham drew on empirical studies of increased prevalence of strategic lawyering (jury selection techniques), on statistical demonstrations of the restricted availability of legal counsel (approximately 90% of the male population was too poor to obtain legal services), and, most famously, on his own sense that his Panopticon scheme for the centralized surveillance of prisoners was thwarted by the personal influence of the King and certain high-ranking aristocrats.  It is difficult to resist most of the generalizations that Dinwiddy makes of Bentham’s newfound admiration for democracy.  For not only is it true that Bentham at this time began referring to the King and his legislative advisors collectively as “Corruptor General & Co.,”’ obviously to underscore the insipid character of their motives, it is also true that many of his positive arguments for popular, democratic government were based upon a firm belief that parliamentary government in its current guise was patently unjust.  Dinwiddy does consider in this connection the possibility that in making these arguments Bentham was insufficiently responsive to the role that human dignity played in justifying political liberty, especially in light of the role that such concepts have historically played in creating and maintaining the conditions indispensable to democracy.  With this in mind, perhaps the only serious blindspot in this segment of Dinwiddy’s book is that even though Bentham maintained genuine, enduring alliances with natural law advocates – such as Major John Cartwright – in order to promote democratic governance, Bentham the man appears a bit more hardnosed and bullheaded than his personal and political associations would suggest.  Though an ardent advocate of what we today would call legal positivism, Bentham was also a pragmatist who did not allow his own philosophical commitments, deep as they were, to get in the way of promoting the larger social and political goals he held dear.        

The fourth and final interpretation is in “Bentham on Private Ethics and the Principal of Utility.”  Dinwiddy takes umbrage in this chapter to David Lyons’ influential claim that Bentham advocated a “dual standard” version of utilitarianism according to which self-interest and mercenary calculation ruled in the private sphere, but the best interest of the community as a whole would be the guiding norm when devising public policy or deciding matters of general concern.  The most important question posed by Lyons’ dual-standard hypothesis can be stated straightforwardly:  Did Bentham advocate just one utilitarian standard to be applied in all contexts, public and private alike, or did he countenance two different utilitarian standards, each appropriate to either the public or the private sphere?       

Dinwiddy argues that Bentham had just [*361] one standard, and in so doing appears to get the best of Lyons in a number of different respects.  First, only Dinwiddy’s interpretation remains faithful to the available textual evidence, for Bentham on a number of occasions makes clear that even though men will naturally tend to desire the promotion of their own interests at the expense of the public weal, utilitarianism offers no sanction for such desires, or for the actions which they enable.  Second, to make sense of the distinction that Bentham himself makes between ethics – i.e., the field of inquiry dealing with what one ought to do – and moral psychology – i.e., the field of inquiry concerning what one has a natural tendency to do – the dual-standard hypothesis must be rejected.  As Dinwiddy observes, to recognize that human beings have a tendency to selfishly promote local over global interests does not imply that “anything a private individual [might] do that [is] conducive to his own happiness [is], in utilitarian terms, right” (p.146).  Finally, while Lyons’ dual-standard hypothesis could amplify an individual’s natural tendency to self-serving or rent-seeking behavior, rejecting this hypothesis has the benefit of preempting the endorsement of private pleasure seeking at the wider community’s expense. 

One of the strengths of Dinwiddy’s essays is the intermingling of Bentham the thinker with Bentham the person.  Bentham was part philosopher, part political activist.  Dinwiddy deftly shows how Bentham was frequently busy seeking ways to implement his Code or jurisprudential theories – e.g., his proposal for the construction of a Panopticon penitentiary in London (that would embody his penal theories), Parliamentary reforms that would eliminate corruption, and procedures for ensuring that adjudication under the Pannomium code would strike the appropriate balance between adherence to the letter of the law, on the one hand, and the need to serve the utility principle, on the other.  The Bentham that emerges is thus a political activist who hewed closely to his theoretical convictions, developed those convictions with verve and acuity, and tested their mettle against the competing positions championed by the many great legal and political theorists of his time – including Blackstone (with whom Bentham sharply disagreed about the value of the common law), John Stuart Mill (often in sympathy with Bentham’s views, but someone who placed a greater emphasis on the importance of ethics in human motivation), Montesquieu, David Hume, and the economist James Mill, among others. 

This book is a useful, short introduction to the philosophy and writings of Jeremy Bentham.  The editor, William Twining, has provided both an introduction to Dinwiddy’s 1989 edition and a quite comprehensive, twenty-page bibliographical update of books, articles, and theses published from 1989-2002.   These essays could be effectively used in upper division and graduate-level courses in political and legal theory.  Because BENTHAM anticipates so many of today’s enduring jurisprudential controversies, and takes interesting positions on many of those disputes, the book is all the more valuable. 

REFERENCES:

Bentham, Jeremy; Goldworth, Amnon (ed.).  1983.  DEONTOLOGY : A TABLE OF THE SPRINGS OF [*362] ACTION ON UTILITARIANISM (Collected Works of Jeremy Bentham).  New York: Oxford University Press. 

Dinwiddy, John. 1989. BENTHAM. New York: Oxford University Press. 

Lyons, David. 1973. IN THE INTEREST OF THE GOVERNED: A STUDY IN BENTHAM'S PHILOSOPHY OF UTILITY AND LAW. London: Clarendon. 

Postema, Gerald J. 1986. BENTHAM AND THE COMMON LAW TRADITION. New York: Oxford University Press.

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Copyright 2004 by the authors, John Michael Eden and John Paul Ryan.