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Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham's Economic Thought*

Published online by Cambridge University Press:  26 January 2009

P. J. Kelly
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Extract

Between 1787, and the end of his life in 1832, Bentham turned his attention to the development and application of economic ideas and principles within the general structure of his legislative project. For seventeen years this interest was manifested through a number of books and pamphlets, most of which remained in manuscript form, that develop a distinctive approach to economic questions. Although Bentham was influenced by Adam Smith's An Inquiry into the Nature and Causes of the Wealth of Nations, he neither adopted a Smithian vocabulary for addressing questions of economic principle and policy, nor did he accept many of the distinctive features of Smith's economic theory. One consequence of this was that Bentham played almost no part in the development of the emerging science of political economy in the early nineteenth century. The standard histories of economics all emphasize how little he contributed to the mainstream of late eighteenth and early nineteenth-century debate by concentrating attention on his utilitarianism and the psychology of hedonism on which it is premised. Others have argued that the calculating nature of his theory of practical reason reduced the whole legislative project to a crude attempt to apply economics to all aspects of social and political life. Put at its simplest this argument amounts to the erroneous claim that Bentham's science of legislation is reducible to the science of political economy. A different but equally dangerous error would be to argue that because Bentham's conception of the science of legislation comprehends all the basic forms of social relationships, there can be no science of political economy as there is no autonomous sphere of activity governed by the principles of economics. This approach is no doubt attractive from an historical point of view given that the major premise of this argument is true, and that many of Bentham's ‘economic’ arguments are couched in terms of his theory of legislation. Yet it fails to account for the undoubted importance of political economy within Bentham's writings, not just on finance, economic policy, colonies and preventive police, but also in other aspects of his utilitarian public policy such as prison reform, pauper management, and even constitutional reform. All of these works reflect a conception of political economy in its broadest terms. However, this conception of political economy differs in many respects from that of Bentham's contemporaries, and for this reason Bentham's distinctive approach to problems of economics and political economy has largely been misunderstood.

Type
Research Article
Information
Utilitas , Volume 1 , Issue 1 , May 1989 , pp. 62 - 81
Copyright
Copyright © Cambridge University Press 1989

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Footnotes

*

A version of this paper was first presented at the History of Economica Society Conference at the University of Toronto, 18–21 June 1988. I am grateful to Jim Crimmins, Bob Fenn, Marco Guidi, John Dinwiddy and Don Jackson for their comments on that paper.

References

1 Bentham began work on Defence of Usury, his first sustained work on an economic subject, while still in Russia, between January and April 1787. However, he first refers to Political Economy in a work dating from 1782: ‘A General View of a Complete Code of Laws’, The Works of Jeremy Bentham, ed. Bowring, John, 11 vols., Edinburgh, 1843, iii. 155–210Google Scholar, was first published as part of P. É. Dumont's, L. Traités de législation civile et pénale, 3 vols., Paris, 1802.Google Scholar

2 While in Jeremy Bentham's Economic Writings, ed. Stark, W., 3 vols., London, 1952–1954Google Scholar, Stark argues that Bentham's main concern with political economy ended in 1804, it is clear from such works as Observations on the Restrictive and Prohibitory Commercial System, London, 1821Google Scholar, and ‘Colonization Society Proposal’, c. 1831Google Scholar, Bentham MSS UC viii. 149–91Google Scholar, University College London, that economic questions were at the forefront of his thought until the very end of his life. Stark does not include the latter of these works in his edition of Bentham's economic writings, but there is a good case for including it in a new edition on the grounds that the problem of colonization arose from the problem of underemployed capital and unemployed labour.

3 A good account of the growth of economics as a science is given in a number of the essays in Burrow, J., Collini, S., and Winch, D., That Noble Science of Politics, Cambridge, 1983.Google Scholar

4 See Roll, E., A History of Economic Thought, London, 1938, p. 201Google Scholar; Schumpeter, J. A., History of Economic Analysis, New York, 1954, pp. 128–34 and 407–10Google Scholar; and Taylor, O. H., History of Economic Thought, New York, 1960, pp. 118–45.Google Scholar See also Letwin, W., ‘Review of Jeremy Bentham's Economic Writings, vol. i.Google Scholar ed. W. Stark’, Journal of Political Economy, lxii (1954), 358–59.Google Scholar Letwin wrote:

Unfortunately the value of this selection is marred as that of a complete edition would not be, by the editor's critical theory. The defect arises from Stark's interpretation of Bentham's place in the development of economic theory. That Bentham inherited the foundation of his economic thought from Smith, Stark closely recognises. But he has apparently concluded that Bentham's own contributions to economic thought lie in detailed corrections, elaborations and variations of Smith's doctrine. He has consequently attributed importance to writings that only summarize Smith's theory and has slighted Bentham's theory of utility, which is his interesting and original contribution to economics even if it played little part in his purely economic writings, [p. 358]

5 See Marx, , The German IdeologyGoogle Scholar; see also Cropsey, J., ‘On the Relation of Political Science and Economies’, American Political Science Review, liv (1960), 3–64CrossRefGoogle Scholar; and Macpherson, C. B., The Life and Times of Liberal Democracy, Oxford, 1977, pp. 29–34.Google Scholar

6 In particular see Defence of Usury, Stark, i. 123–207Google Scholar; Supply Without Burthen; or Escheat Vice Taxation, Stark, i. 282–367Google Scholar; and ‘Defence of a Maximum’, Stark, iii. 249–302.Google Scholar

7 The significance of economic ideas within Bentham's Constitutional Theory will be further emphasised with the publication of First Principles Preparatory to Constitutional Code, ed. Schofield, P., Oxford, 1989Google Scholar (The Collected Works of Jeremy Bentham).

8 Robbins, L. C., The Theory of Economic Policy in English Classical Political Economy, London, 1952, p. 2.Google Scholar

9 For the argument that Bentham was an apostle of laissez-faire, see Dicey, A. V., Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, 2nd edn., London, 1905, p. 44Google Scholar; Stephen, L., The English Utilitarians, 3 vols., London, 1900, i. 310Google Scholar; and Hutt, W. H., Economists and the Public: a Study of Competition and Opinion, London, 1936, p. 137.Google Scholar For the opposite view, that Bentham was an originator of collectivist intervention in the economy and the market-place see, Brebner, J. B., ‘Laissez-faire and State Intervention in Nineteenth Century Britain’, Journal of Economic History (supplementary volume) viii (1948), 59–76CrossRefGoogle Scholar; Mack, M. P., ‘The Fabians and Utilitarianism’, Journal of the History of Ideas, xvi (1965), 76–88Google Scholar; and Gray, J., Liberalism, Milton Keynes, 1986, p. 30.Google Scholar

10 This characterization of economic liberalism is rather more limited than that advanced in Grampp, W. D., Economic Liberalism, 2 vols., New York, 1965, ii. 73–155.Google Scholar Grampp argues that:

Liberal economic policy is deduced from the political principle that free people may do what they will do and are able to do.… What I mean by it is this: (1) A measure of policy to be liberal must be a response to an economic problem which the people believe should be attended to. (2) The measure must be workable, that is, must show some likelihood of being able to solve the problem to which it is directed. (3) The methods it uses must be approved by the people. By ‘the people’, I mean those persons who are represented in the government, whose opinion the government must take for its guide, and who in the end control government, [p. 95]

11 Stephen, L., 1900, iGoogle Scholar; and Halévy, E., The Growth of Philosophic Radicalism, London, 1934, p. 14.Google Scholar A recent restatement of this interpretation is developed at length in Lyons, D., In the Interest of the Governed, Oxford, 1973, pp. 19–106.Google Scholar

12 Petrella, F., ‘Benthamism and the demise of Classical Economic Ordnungspolitik’, History of Political Economy, ix (1977), 215–36.CrossRefGoogle Scholar

13 See Petrella, F., pp. 215–36Google Scholar; Gray, J., p. 30Google Scholar; and Mack, M. P., pp. 76–88.Google Scholar

14 The problem addressed in this paper is not the same as that addressed in Dinwiddy, J. R., ‘Bentham on Private Ethics and the Principle of Utility’, Revue Internationale de Philosophie, xxxvi (1982), 278–300.Google Scholar Dinwiddy was concerned to show how it was possible to reconcile an universal commitment to utilitarianism with an egoistic psychology, and this problem grew out of D. Lyons's ‘revisionist’ account of Bentham's ethics in In the Interest of the Governed. This paper is concerned with the strategies a Benthamite legislator should adopt in order to achieve the maximum social well-being. The need to clarify this difference arose from a conversation with Dr. Dinwiddy. I am grateful to him for his comments.

15 The ‘received interpretation’ is derived from the standard work on Bentham, E. Halévy's, The Growth of Philosophic Radicalism. A modified version is found in Hume, L. J., ‘Revisionism in Bentham Studies’, The Bentham Newsletter, i (1978), 3–20Google Scholar, and Bentham and Bureaucracy, Cambridge, 1981.Google Scholar Other works which reflect aspects of the ‘received interpretation’ include: Bedau, H. A., ‘Justice and Classical Utilitarianism’, Nomos, vol. vi, ed. Friedrich, C. J. and Chapman, J. W., New York, 1963, pp. 284–305Google Scholar; Parekh, B., ‘Bentham's Justification the Principle of Utility’, Jeremy Bentham: Ten Critical Essays, London, 1984, pp. 96–119Google Scholar; ‘Bentham's Theory of Equality’, Political Studies, xviii (1970), 478–95CrossRefGoogle Scholar; and Stearns, J. B., ‘Bentham on Public and Private Ethics’, Canadian Journal of Philosophy, v (1975), 583–94.CrossRefGoogle Scholar Parekh's papers reflect the direct act-utilitarian understanding of Bentham's moral theory. However, on the question of psychological theory his position differs from that from of Halévy, in that he acknowledges a role for non-egoistic motives. He also presents an historical theory of the development of non-egoistic motives in the pursuit of social well-being. See Parekh, B., ‘Introduction’, Jeremy Bentham: Ten Critical Essays, pp. vii–xxvii.Google Scholar

16 For a recent ‘revisionist’ account of Bentham's utilitarian theory, see Postema, G. J., Bentham and the Common Law Tradition, Oxford, 1986.Google Scholar

17 Petrella, F., 220.Google Scholar

18 Even recent commentators such as Harrison, Hart, Postema, and Rosen give only modifications of the ‘received’ view of Bentham's theory of utility in their otherwise admirable books. See Harrison, R., Bentham, London, 1983Google Scholar; Hart, H. L. A., Essays on Bentham, Oxford, 1982Google Scholar; Postema, G. J., Bentham and the Common Law TraditionGoogle Scholar; and Rosen, F., Jeremy Bentham and Representative Democracy, Oxford, 1983.Google Scholar

19 Postema takes precisely this radical line of interpretation in response to D. Lyons's claim that Bentham cannot account for the normative force of legal rights. See Lyons, D., ‘Utility and Rights’, Nomos, vol. xxiv, ed. Pennock, J. Roland and Chapman, J. W., New York, 1982, pp. 107–38Google Scholar, and Postema, G. J., 322–4.Google Scholar

20 Bowring, , i. 307–12.Google Scholar

21 Comment on the Commentaries and A Fragment on Government (CW), ed. Burns, J. H. and Hart, H. L. A., London, 1977, p. 399.Google Scholar

22 Bentham's acknowledgement that legal rights and duties can function as authoritative reasons for action has led H. L. A. Hart to suggest in an important paper, that Bentham had an indirect utilitarian theory of obligation. See Hart, H. L. A., ‘Natural Rights: Bentham and John Stuart Mill’, Essays on Bentham, pp. 79–104.CrossRefGoogle Scholar

23 An Introduction to the Principles of Morals and Legislation (CW), ed. Burns, J. H. and Hart, H. L. A., London, 1970, pp. 21–33.Google Scholar In this chapter Bentham argues that the moral theories of Shaftesbury, Hutcheson, Hume, Beattie, Price, Clark and Wollaston are all reducible to the principle of ‘sympathy and antipathy’. The problem with this principle and these theories is that they all rely on an internally perceived standard for their correct application, and this is what makes them ‘anarchical’. The ‘anarchical’ consequences of this principle differs depending upon whether the proponent of the theory accepts his own judgements as binding upon all others or if he allows the same right to all others to judge according to their own perceptions of right and wrong. In the former case the problem is the lack of a criterion of consistency. Without such a criterion, moral judgements become effectively meaningless and this undermines the practice of morality. In the second case if everyone is free to judge ‘right’ and ‘wrong’ as they see fit, then again there is no consistency and the possibility of morality collapses. Bentham saw morality as an enterprise directed to achieving the well-being of the community. However, if each person is free to make the terms of moral discourse conform to his own particular usage and judgements then there is no way of arbitrating between the ends of different individuals, and this is inconsistent with Bentham's view that morality is primarily concerned with the rules of effective social interaction. A system of moral judgement that lacks any public criterion of consistency cannot embody this shared conception of the enterprise of social activity. Thus the principle of ‘sympathy and antipathy’ is ‘anarchical’ precisely because it is contrary to the enterprise of effective social interaction and resolves the world into conflicting individuals who are incomprehensible to each other and therefore antagonistic.

24 See Postema, G. J., 321–24.Google Scholar Postema's argument that Bentham abandons the traditional understanding of rights as authoritative reasons for action appears to contradict this argument. However, Postema must acknowledge that expectations depend on regularities of behaviour and that these are principally derived from institutions such as rights and legal norms. Therefore, in order for a stable pattern of expectations to develop there must be some basic set of authoritative reasons which are so crucial to stable social interaction that they are immune to revision in the light of any particular direct utility calculation. Bentham does not provide an account of how these institutions develop, but it is clear that he favours an historical account of their development as opposed to a form of social contract. See UC c. 107.Google Scholar

25 IPML (CW), p. 290.Google Scholar

26 See Rawls, J., A Theory of Justice, Oxford, 1972, p. 91Google Scholar; and Hart, H. L. A., ‘Lecture on a Master Mind: Bentham’, Proceedings of the British Academy, xlviii (1962), 304.Google Scholar

27 Bentham acknowledged the difficulties of making direct interpersonal comparisons of pleasure when he wrote:

To every man, by competent attention and observation the quality of his own sensibility may be made known: it may be made known by the most impressive and infallible of all direct evidence, the evidence of a man's own senses.

To no man, can the quality of sensibility in the breast of any other man be made known by anything like equally probative and unfallacious evidence.

Deontology Together With A Table of the Springs of Action and Article on Utilitarianism (CW), ed. Goldworth, Amnon, Oxford, 1983, p. 131.Google Scholar In other manuscript works Bentham argued that the utilitarian legislative science is analogous to that of medicine with its emphasis on observation and experiment, rather than arithmetic. See ‘Pannomial Fragments’, Bentham Papers, British Library Additional MSS 33,550, fo. 114.

28 UC lxi. 47Google Scholar; and BL Add. MSS 33,550, fo. 55.

29 See for example UC xxx. 26–32, 41–59Google Scholar; UC xxxi. 260–85Google Scholar; UC xxxvii. 18–22, 50–68Google Scholar; UC lxi. 9–10, 19–21, 22–66, 83–97Google Scholar; BL Add. MSS 33,550, fo. 48–144.

30 Bowring, , i. 302.Google Scholar

31 Ibid.

32 The concept of an expectation utility is first introduced in Comment/Fragment (CW), pp. 230–31.Google Scholar

33 The emphasis Bentham placed on expectation is reflected in the following passage: Expectation this is the grand word that ought to be sounding in the ears of whoever undertakes to compose or modify a code of Civil Law. Expectation is the basis of proprietory right: it is this affords whatever reason there can be for giving a thing to one man rather than another.

Keep the current of expectation inviolable, in these words are contained the quintessence of everything which utility can dictate on this extensive ground. (UC xxix. 6.)Google Scholar

34 Bentham distinguishes man from the other animals in terms of the concept of expectation in the following passage:

In order to form a clear idea of the whole extent which ought to be given to the principle of security, it is necessary to consider that man is not like the brutes, limited to the present time, either in enjoyment or suffering, but that he is susceptible of pleasure and pain by anticipation, and that it is not enough to guard him against actual loss, but also to guarantee to him, as much as possible, his possessions against future losses. The idea of security must be prolonged to him throughout the whole vista that his imagination can measure.

Bowring, , i. 308.Google Scholar

35 Bowring, , i. 308.Google Scholar See also Postema, , pp. 160–62Google Scholar, for an interesting discussion of the role of expectation as a condition of personal continuity and coherence. While Postema ultimately draws different conclusions from his review of Bentham's legal theory, I have nevertheless, found his interpretation stimulating and useful.

36 Bentham refers to Civil Law as Distributive Law and Civil Justice as Distributive Justice at UC lxi. 51.Google Scholar

37 While there is not room to develop this point, it is possible to interpret Bentham's commitment to the pursuit of subsistence and equality as contributions to the maintenance of security. This can be seen most clearly in Bentham's practical proposals to provide the positive provision of subsistence in his Poor Law writings. See Kelly, P. J., ‘Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law’, unpublished Ph.D. thesis, University of London, 1988, pp. 180–241.Google Scholar

38 The principle of utility provides the foundation of the science of legislation. Once the perversions of sinister interest have been removed, Bentham thought that it would be possible for the law to secure its utilitarian task as the means of ordered political and social change.

39 See Bahmueller, C. F., The National Charity Company: Jeremy Bentham's Silent Revolution, Berkeley, 1981Google Scholar; Himmelfarb, G., ‘Bentham's Utopia: The National Charity Company’, The Journal of British Studies, x (1970), 80–125CrossRefGoogle Scholar, and ‘The Haunted House of Jeremy Bentham’, Victorian Minds, New York, 1968, pp. 32–81Google Scholar; and Parekh, B., ‘Bentham's Theory of Equality’, 478–95.CrossRefGoogle Scholar

40 IPML (CW), p. 188, and pp. 191–94.Google Scholar

41 Ibid., p. 290.

42 See IPML (CW), pp. 195–96.Google Scholar

… What acts are productive of a mischief of this stamp? and, among such as are, which it may, and which it may not, be worth while to treat upon the footing of offences? these are points, the latter of which at least is, too unsettled, and open to controversy, to be laid down with that degree of confidence which is implied in the exhibition of properties which are made use of as the groundwork of an arrangement.

43 This no doubt helps to explain Bentham's liberal attitudes to sexual offences. See Crompton, L., Byron and Greek Love: Homophobia in Nineteenth Century England, Berkeley, 1985, pp. 38–62, and 251–83.Google Scholar

44 Petrella, F., 222.Google Scholar

45 See UC c. 170:Google Scholar

Liberty therefore not being more fit than other words in some of the instances in which it has been used, and not so fit in others, the less the use is made of it the better. I would no more use the word liberty in my conversation when I could get another that would answer the purpose, than I would Brandy in my diet if my physician did not order me: both cloud the understanding and inflame the passions.

48 Admittedly the specification of the class of private offences does not exhaust Bentham's division of offences, but they nevertheless have priority on the grounds that semi-public and public offences are extensions of the framework of private offences to unassignable individuals and unassignable groups such as whole communities. Thus while the specification of semi-public and public offences might appear to warrant greater legislative activity than the sphere of private offences, the basic conditions underlying the specification of private offences also place limits on legislative activity in the realm of semi-public and public offences.

47 An important discussion of the ‘constitutive’ function of law in Bentham's utilitarian science of legislation is to be found in Postema, , pp. 168–90.Google Scholar

48 Deontology (CW), p. 314.Google Scholar

49 Stark did not include Emancipate Your Colonies!, London, 1830Google Scholar, in his selection of Bentham's economic writings on the grounds that it was not strictly an economic argument. However, while there are components of the argument that deal with political emancipation, the main body of this work is confined to showing that trade is limited by capital deployed and consequently that colonies cannot prove an economic advantage.

50 There is some question as to whether this work can be legitimately attributed to Bentham on the grounds that it was prepared for publication by John Bowring. However, there are reasons for including it among Bentham's works on the grounds that Bowring did not claim authorship. Further there are manuscript descriptions of the contents of this work which includes notes by Bentham that do not suggest any dissatisfaction with Bowring's rendering of the text.

51 The text of ‘The True Alarm’ exists only in Dumont's French version, Dumont MSS 50–51, Bibliothèque Publique et Universitaire de Gèneve. The translation found in Stark, iii. 63–216, is based on this and arranged in accordance with notes that Ricardo made on seeing Dumont's translation. See The Works of David Ricardo, ed. Sraffa, P. and Dobb, M., 11 vols., Cambridge, 1951–1973, iii. 259–341.Google Scholar Although both ‘The True Alarm’ and ‘Of the Balance of Trade’ were apparently based on a single Bentham manuscript, this no longer exists. Furthermore, given that Dumont was responsible for the division, in that he divided his French manuscript into two bundles, each dealing with a different subject, it seems appropriate to follow this policy and the use of Stark's titles until a new edition is prepared as part of the Collected Works of Jeremy Bentham.

52 There are two texts covering Bentham's Annuity Note Plan for a new species of interest bearing currency, the ‘Abstract or Compressed View’ and the long version from which this is derived. The body of manuscripts which contains these two proposed works plus a number of related essays constitutes the largest single component of Bentham's economic writings, and there is good reason to believe it was also the most important, in terms of the range of issues this simple proposal was designed to address. Neither of these works were published and it is as yet unclear whether there is a single authoritative text, therefore references to the Annuity Note Plan are intended to encompass the whole body of manuscripts devoted to this issue rather than refer to a single text.

53 Similar arguments underlie Bentham's Poor Law Writings, and his attempts to guarantee the basic provision of the means of subsistence.

54 A particular problem is created by ‘Defence of a Maximum’, Stark, , iii. 247–302.Google Scholar T. W. Hutchison has argued that in this work Bentham returns to a version of mercantilism. See Hutchison, T. W., ‘Bentham as an Economist’, Journal of Economics, lxvi (1956), 288–306.CrossRefGoogle Scholar However, there is some scope for arguing that this work does not create as many difficulties as has been suggested, for in order to maintain the expectations of corn dealers Bentham only argued that the maximum price should be set at a level higher than the highest present asking price. The argument for this is that in the absence of automatically equilibrating markets, the highest asking price might simply be the result of the avariciousness of corn dealers. The maximum was therefore a public statement that in times of dearth, exploitation of the market was unacceptable if it undermined public confidence in the ability of the market mechanism to satisfy demand. In the last resort it was better for the government to step in to prevent the destruction of the social order and maintain overall security of property than for unscrupulous traders to satisfy their greed. This is only an outline of how the argument of ‘Defence of a Maximum’ might be reconciled with an interpretation of Bentham as an economic liberal.