¹ Hayek, F. A., Law, Legislation and Liberty 3 vols., London 1982 (hereafter cited as ILL) ii. 45; iii. 32.Google Scholar

² LLL i. 2Google Scholar. This ‘fundamental insight’ and the other two Hayek identifies, that ‘a self-generating or spontaneous order and an organization are distinct, and that their distinctiveness is related to the two different kinds of rules or laws which prevail in them’, and that ‘the predominant model of liberal democratic institutions, in which the same representative body lays down the rules of just conduct and directs government, necessarily leads to a gradual transformation of the spontaneous order of a free society into a totalitarian system conducted in the service of some coalition of organized interests’, are examined in relation to Bentham's system at greater length in Dube, A., ‘The Theme of Acquisitiveness in Bentham's Political Thought’, Ph.D. thesis, London, 1989Google Scholar. On Hayek's system, see Gray, J., Hayek on Liberty Oxford, 1984Google Scholar, and Hoy, C., A Philosophy of Individual Freedom London, 1984Google Scholar. On the concept of the spontaneous order, see Gray, , Ch. 2, and pp. 118–25.Google Scholar

³ Both types of orders which Hayek identifies (spontaneous orders and organizations), ‘depend upon man's propensity to follow rules. Indeed, the very essence of a human order, system, or structure is that behaviour limited by rules produces patterns of intelligibility, regularity, and predictability’ (Flanagan, T., ‘F. A. Hayek on Property and Justice’, Theories of Property, Aristotle to the Present ed. Parel, A. and Flanagan, T., Waterloo, 1979, p. 337.Google Scholar

⁴ LLL i. 12.Google Scholar

⁵ Ibid., i. 22.

⁶ Ibid., i. 52.

⁷ ‘For Hayek’, explains Hoy, ‘freedom is negative; it is merely the absence of coercion’ (Hoy, , p. 9.).Google Scholar

⁸ UC lxix. 44.Google Scholar

⁹ As Boralevi states, ‘absolute liberty… is for Bentham simply a state of anarchy: absolute liberty cannot be the basis for a political society which affords security and hence entails coercion (as rights impose correlative duties) on its members’ (Boralevi, L. C., Bentham and the Oppressed New York, 1984, p. 182CrossRefGoogle Scholar, noting Long, D., Bentham on Liberty: Jeremy Bentham's Idea of Liberty in Relation to his Utilitarianism Toronto, 1977, p. 76CrossRefGoogle Scholar, and UC lxix. 56).Google Scholar

¹⁰ Hayek, F. A., The Constitution of Liberty Chicago, 1960 (hereafter cited as C of L) p. 139.Google Scholar

¹¹ UC lxix. 56.Google Scholar

¹² Rosen, F., Jeremy Bentham and Representative Democracy, a Study of the Constitutional Code Oxford, 1983, p. 71.Google Scholar

¹³ ILL ii. 102.Google Scholar

¹⁴ An Introduction to the Principles of Morals and Legislation ed. Burns, J. H. and Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham) Ch. XVI, p. 206Google Scholar. Hayek presents Bentham's position on rights, and law in general, in such a way as to condemn him from both sides of various questions. It may be asked, however, how he could reconcile his arguments that Bentham is a father of legal positivism (LLL ii. 45Google Scholar), that legal positivism is in important respects the ideology of socialism (LLL ii. 53Google Scholar), and that the modern language of rights is largely a socialist ruse to organize society under totalitarian domination (LLL ii. 103–4Google Scholar), with Bentham's actual statements on rights (for example, that they are ‘nonsense upon stilts’), and with Bentham's conclusion that ‘there is no arrangement more contrary to the principle of utility than community of goods’ (Theory of Legislation trans, from French of Dumont, E. by Hildreth, R., London, 1864, p. 194).Google Scholar

¹⁵ C of L p. 140.Google Scholar

¹⁶ Mack, M., Jeremy Bentham: An Odyssey of Ideas 1748–1792 London, 1962, p. 176.Google Scholar

¹⁷ The Works of Jeremy Bentham ed. Bowring, J., 11 vols., Edinburgh, 1838–1843 (hereafter cited as Bowring), viii. 530Google Scholar, noted by Mack, , p. 176.Google Scholar

¹⁸ Bentham's and Hayek's theories of property are very similar. For example, Hayek's development of the subjective theory of value of the Austrian School, in Gray's words, ‘the theory that value is conferred on resources by the subjective preferences of agents and cannot be explained as an inherent property of any asset or resource’ (Gray, , p. 16Google Scholar), is somewhat anticipated by Bentham's understanding of the self-appending of value to luxury goods. (See Bentham, Jeremy, Economic Writings ed. Stark, W., 3 vols., London, 1952–1954, iii. 84–6.)Google Scholar

¹⁹ C of L, p. 367.Google Scholar

²⁰ Stark, , i. 213.Google Scholar

²¹ Stark, , i. 236.Google Scholar

²² UC lxix. 55Google Scholar, noted by Long, , p. 78.Google Scholar

²³ Stark, , i. 257.Google Scholar

²⁴ LLL iii. 52.Google Scholar

²⁵ C of L p. 116.Google Scholar

²⁶ C of L, p. 215.Google Scholar

²⁷ ‘Economy as Applied to Office’, First Principles Preparatory to Constitutional Code, ed. Schofield, P., Oxford, 1989 (CW), Ch. I, pp. 4–5.Google Scholar

²⁸ ‘Economy as Applied to Office’, Ch. V, p. 43.Google Scholar

²⁹ LLL ii. 87.Google Scholar

³⁰ Rosen, , p. 107.Google Scholar

³¹ Ibid., referring to Constitutional Code vol. I, ed. Rosen, F. and Burns, J. H., Oxford, 1983 (CW) pp. 260–61Google Scholar. Bentham's attitude to government expenditure is analyzed in Rosen, Ch. 4.

³² Harrison, R., Bentham London, 1983, p. 5.Google Scholar

³³ Stark, , iii. 443.Google Scholar

³⁴ Ibid., iii. 442.

³⁵ Ibid., i. 364–65

³⁶ Ibid., iii. 442.

³⁷ Theory of Legislation p. 120Google Scholar, noted by Boralevi, , p. 99.Google Scholar

³⁸ Stark, , i. 94.Google Scholar

³⁹ Bentham advocates a form of redistribution in Supply Without Burthen (Stark, , i. 279–367Google Scholar, or for a general view, i. 283–97), but it would be difficult to consider it as an active extraction of wealth from individuals. As it has to do with escheat, no living person actually suffers a loss. Moreover the lines of conventional inheritance—‘within the pale’ as Bentham refers to them—are largely exempt.

⁴⁰ Bentham distinguishes between ‘natural’ and ‘technical’ arrangements in his writings on the arrangement of laws. A natural arrangement ‘takes such properties to characterize them by, as men in general are, by the common constitution of man's nature, disposed to attend to’. In contrast, however, once a technical arrangement has been made, the technical nomenclature supporting it ‘stands an invincible obstacle to every other than a technical arrangement’. A technical arrangement ‘governed then in this manner, by a technical nomenclature, can never be otherwise than confused and unsatisfactory’. Just as a natural arrangement invites comprehension, a technical arrangement by nature defies comprehension. Sinister interests will encourage technical arrangement—of laws, institutions, and it could be said, society itself—because this arrangement serves their seeking of advantage. Especially when expanded to include the arrangement of institutions and men themselves, Bentham's concepts of natural and technical arrangements in several ways anticipate Hayek's writings on spontaneous and made orders. (See A Comment on the Commentaries and A Fragment on Government ed. Burns, J. H. and Hart, H. L. A., London, 1977 (CW) pp. 414–16Google Scholar.) See also Twining, W.'s exposition of the natural and technical systems of law in Theories of Evidence: Bentham and Wigmore London, 1985.Google Scholar

⁴¹ Bentham's writings on sinister interest groups and their methods of operation (for example, their laying snares of deception in language), would provide useful support to Hayek's writings on the dangers of special interests to modern democracies. (See, for example, Stark, , iii. 402–12Google Scholar, and Deontology, A Table of the Springs of Action, and Article on Utilitarianism ed. Goldworth, A., Oxford, 1983 (CW) p. 65.Google Scholar

⁴² Theory of Legislation p. 120.Google Scholar

⁴³ Ibid., p. 123.

⁴⁴ Rosen, , p. 218.Google Scholar

⁴⁵ Hayek uses Smith, Adam's ‘Great Society’Google Scholar and SirPopper, Karl's ‘Open Society’Google Scholar to describe the ‘spontaneous order of a free society’ (LLL, i. 2).Google Scholar

⁴⁶ LLL, i. 47.Google Scholar

⁴⁷ Parliamentary Candidate's proposed Declaration of Principles: or say, A Test Proposed for Parliamentary Candidates London, 1831, p. 7Google Scholar, noted by Rosen, , p. 203Google Scholar. Various formulations of the greatest happiness principle are examined in Rosen, Ch. 11.

⁴⁸ Hayek, F. A., New Studies in Philosophy, Politics, Economics, and the History of Ideas London, 1978, p. 74.CrossRefGoogle Scholar

⁴⁹ Bowring, , ii. 301.Google Scholar

⁵⁰ Hayek himself states, ‘The chief concern of what we call legislatures has always been the control and regulation of government, that is the direction of an organization.… Government… is a deliberate organization… it will require distinct rules of its own which determine its structure, aims, and functions.… These will be rules of organization designed to achieve particular ends’ (LLL i. 124).Google Scholar

⁵¹ Bowring, , ii. 301.Google Scholar

⁵² Ibid., ii. 330.

⁵³ Stark, , iii. 257–58.Google Scholar

⁵⁴ Introduction to Stark, , ii. 12.Google Scholar

⁵⁵ C of L p. 289.Google Scholar

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⁵⁷ Hume, L. J., Bentham and Bureaucracy Cambridge, 1981, p. 189.CrossRefGoogle Scholar

⁵⁸ UC clviii. 69Google Scholar, noted by Hume, , p. 189.Google Scholar

⁵⁹ Hume, , p. 97.Google Scholar

⁶⁰ Fragment p. 415.Google Scholar

⁶¹ Contrary to the impression left by Hayek, that Bentham took no account of men's natural unconscious or semi-conscious adoption of rules, it could be argued that it is just such an adaptation to rules which is fostered by the moral and religious sanctions. Bentham's subtle understanding of men's rule-following is also evident in the concept of the ‘habit of obedience’ which distinguishes men in a political society. On this concept see Long, , p. 34Google Scholar, and Postema, G., Bentham and the Common Law Tradition Oxford, 1986, pp. 237–42.Google Scholar

⁶² Fragment pp. 428–29.Google Scholar

⁶³ Ibid., p. 429.

⁶⁴ Ibid., p. 433.

⁶⁵ Ibid.

⁶⁶ Ibid., p. 434.

⁶⁷ Hume, L. J.'s account leads to this suggestion (p. 64).Google Scholar

⁶⁸ For a full exposition of Bentham's theories on representative democracy, see Rosen's study.

⁶⁹ LLL ii. 136.Google Scholar

⁷⁰ Postema, , p. 310.Google Scholar

⁷¹ Ibid., p. 314. One important attitudinal change Bentham sought to encourage was the development of ‘negative benevolence’, which, in Rosen's terms, ‘is manifest in the desire not to harm others.… Impartiality is conceived as not harming others with partiality’ (Rosen, , p. 209–10Google Scholar). The closely related theme of tolerance in Bentham's writings is emphasized by Rosen, , pp. 209–11Google Scholar, Boralevi, , pp. 181–82Google Scholar, and Letwin, S., The Pursuit of Certainty Cambridge, 1965, pp. 137–54Google Scholar, and ‘Utilitarianism: A System of Political Tolerance’, Cambridge Journal, 6 (1953), 323–35.Google Scholar

⁷² Postema, , pp. 310–12.Google Scholar

⁷³ LLL i. 56.Google Scholar

⁷⁴ LLL ii. 25.Google Scholar

⁷⁵ Buchanan, J., Freedom in Constitutional Contract College Station, 1977, pp. 25–30Google Scholar. See also Barry, N., ‘Ideas versus Interests: The Classical Liberal Dilemma’, Hayek's Serfdom Revisited London, 1984Google Scholar, and Gray, , p. 70.Google Scholar

⁷⁶ LLL iii. 3.Google Scholar

⁷⁷ C of L, p. 174.Google Scholar

⁷⁸ LLL i. 42.Google Scholar

⁷⁹ Bentham did not consider democracy a guarantee that the greatest happiness would be the object of government. However, he seems to have come to the view that anything other than democracy was a guarantee that the greatest happiness would not be the object. The people could best advance the greatest happiness of all because they, unlike a monarch or ruling elite, had the ‘moral aptitude’ for this task. On the concept of moral aptitude see Rosen, , pp. 48–54.Google Scholar

⁸⁰ Rosen, , p. 19.Google Scholar

⁸¹ Hayek, , New Studies, p. 269.Google Scholar

⁸² LLL iii. 152.Google Scholar

⁸³ On Bentham's desire to encourage development of men's perceptive faculties see Baumgardt, D., Bentham and the Ethics of Today Princeton, 1952, p. 250.Google Scholar

⁸⁴ Hayek often uses this phrase of Adam Ferguson's.

⁸⁵ As Rosen explains, Bentham regarded the ‘delay, vexation and expence’ inflicted upon citizens by government and government functionaries as a form of oppression (pp. 65–7, 109).