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

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

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

⁵ See Bentham, J., An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970Google Scholar (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. 69Google Scholar: ‘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.Google Scholar

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.CrossRefGoogle Scholar 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.Google Scholar

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. 120Google Scholar (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.Google Scholar

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.Google Scholar Nevertheless, like Hobbes and Bentham, Hume argues for the necessity of common public rules of justice. See Treatise, pp. 484–513.Google Scholar 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.Google Scholar

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

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.Google Scholar

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

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

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

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

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.Google Scholar

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

²¹ Comment/Fragment (CW), p. 406.Google Scholar

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

²³ For a useful standard treatment of these problems see Ullman-Margalit, Edna, The Emergence of Norms, Oxford, 1978, Ch. 2.Google Scholar 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.CrossRefGoogle Scholar Hardin's, R. Collective Action, Baltimore, 1982Google Scholar, 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.Google Scholar

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. 255Google Scholar; Finnis, , ‘The Authority of Law in the Predicament of Contemporary Social Theory’, Notre Dame Journal of Law, Ethics, and Public Policy, i (1984), 133.Google Scholar 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. 12–15Google Scholar; Elster, J., ‘Weakness of Will and the Free-Rider Problem’, Economics and Philosophy, i (1985), 247–49.Google Scholar

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

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

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

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), 344–45Google Scholar; Parfit, D., ‘Prudence, Morality, and the Prisoner's Dilemma’, Proceedings of the British Academy for 1979, Oxford, 1981, pp. 539–64Google Scholar; Elster, J., ‘Rationality, Morality, and Collective Action’, Ethics, xcvi (1985), 136–55.CrossRefGoogle Scholar

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.Google Scholar

³² Hume, , Treatise, p. 555.Google Scholar 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. 111–12Google Scholar; ‘Questions Concerning Liberty, Necessity and Chance’, in Hobbes, , English Works, ed. Molesworth, v. 193Google Scholar, and notion of ‘metaphysical goodness’, ibid., 192.

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

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.Google Scholar

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

³⁶ Hume, , Treatise, p. 535.Google Scholar

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

³⁸ Hume, , Treatise, p. 490.Google Scholar

³⁹ ‘Principles of the Civil Code’, Bowring, i. 309.Google Scholar 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.Google Scholar

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