Bentham’s Public Utilitarianism and Its Jurisprudential Significance

• Published date: 01 December 2021
• Author: Dan Priel
• Date: 01 December 2021
• DOI: http://doi.org/10.1111/raju.12334

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 4 December 2021 (415–437)

Bentham’s Public Utilitarianism and Its

Jurisprudential Significance

DAN PRIEL*

Abstract. One of the ways by which Gerald Postema’s Bentham and the Common Law Tradition

revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popu-

lar by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study

of law in general is normatively neutral. Against this view, Postema argued that one must un-

derstand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the

time of publishing the book, Bentham went very much against the grain, but this view has since

gained considerable support. In my paper I seek to refine it. As I see it, Bentham did not think

of utilitarianism as a moral theory. Rather, he is best understood as advancing utilitarianism as

a public philosophy— an end for the legislator, and only indirectly applicable for individuals in

their everyday lives. This makes Bentham’s utilitarianism tied to his legal philosophy in an even

deeper sense than Postema suggested. Law is not there to imitate and help enforce an already

existing utilitarian morality that tells people (independently of the law) what they should do.

Instead, we should think of law as a mechanism (or a technology) for generating normative

guidelines (where those do not otherwise exist). The effect of this is to reverse the familiar way

of understanding the relationship between law and morality.

1. Introduction

Back in the 1970s, around the time that Gerald Postema began the research on what

would later become Bentham and the Common Law Tradition (BCLT) (Postema 2019a

[1st ed. 1986]), there were two dominant strands of Bentham scholarship. The first fo-

cused on Bentham the analytic legal philosopher. Probably the best- known exponent

of this perspective was H. L. A. Hart, who, starting with his 1953 inaugural lecture

and then more emphatically in his Holmes Lecture (both reprinted in Hart 1983),

drew a direct intellectual line from Bentham to his own brand of conceptual legal

positivism (cf. also Raz 1980). When, some years later, Hart turned to a closer study

of Bentham, he somewhat revised aspects of his earlier assessment, but largely stuck

to the idea that Bentham deserved the title of founder of legal positivism, because of

“his insistence on a precise and so far as possible a morally neutral vocabulary for use

in the discussion of law and politics” (Hart 1982, 28).

* I presented an early version of this paper at a workshop on Gerald Postema’s work on Jeremy

Bentham that took place at the ISUS conference held at Karlsruhe in 2018. I thank Xiaobo Zhai

for organizing the workshop and for his comments on its latest draft. I also thank all partici-

pants at the workshop, and in particular Gerald Postema. Thanks also to an anonymous re-

viewer for Ratio Juris.

Dan Priel

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Ratio Juris, Vol. 34, No. 4© 2022 University of Bologna and John Wiley & Sons Ltd.

It was the second research program that made Bentham an intellectual’s house-

hold name, although perhaps not quite in the way he would have wanted. Here, it

was Bentham the inventor of the Panopticon, that “cruel, ingenious cage” (Foucault

1977, 205), that became a synecdoche for all the evils of the intrusive, spying, modern

state. Joining together an unusual coalition of critics from the left (Bahmueller 1981;

Graham 1987; Long 1977) and the right (Hayek 1960; Himmelfarb 1968; Oakeshott

1991), authors adopting this perspective depicted Bentham as a dangerous author-

itarian, a “fanatic statis[t],” and even a “proto- Stalinist” (Graham 1987, 1212, 1214).

These two lines of scholarship rarely intersected. This was no coincidence: Despite

fundamental differences in scholarly aims, disciplinary orientation, and methods, the

two bodies of work implicitly accepted that Bentham the analytical philosopher had

little in common with Bentham the legal reformer. Especially among jurisprudents,

maintaining the distinction between the analytic and the normative was by then

something of a shibboleth, so much so that to suggest otherwise was tantamount to

committing a basic philosophical error. Thus, according to Jules Coleman (1982, 147),

[l]egal positivism makes a conceptual or analytic claim about law, and that claim should not

be confused with programmatic or normative interests certain positivists, especially Bentham,

might have had. Ironically, to hold otherwise is to build into the conceptual account of law a

particular normative theory of law; it is to infuse morality, or the way law ought to be, into the

concept of law (or the account of the way law is). In other words, the argument for ascribing

certain tenets to positivism in virtue of the positivist’s normative ideal of law is to commit the

very mistake positivism is so intent on drawing attention to and rectifying.

This view was so deeply entrenched that Hart— who, recall, credited Bentham for

being the first to insist on keeping analytical and normative inquiries separate—

chastised Bentham himself for an occasional slip. There are instances, Hart lamented,

where Bentham’s “utilitarianism gets in the way of his analytical vision” (Hart 1982,

162).

If the terrain looks very different today, this is without question in part due to the

contribution of BCLT. Postema did not just say that there were important connections

and continuities between Bentham’s analytic and normative projects; he struck at the

heart of the Hartian interpretation of Bentham, arguing that Bentham’s jurisprudence

was not a purely conceptual inquiry at all (Postema 2019a, 328– 36, with earlier sug-

gestions in Postema 1979, 664– 70). To make things worse, Postema did not think this

rendered Bentham’s ideas obviously wrong.

Today, at least as far as the interpretation of Bentham is concerned, this is the

dominant view. True, there are some holdouts insisting that Bentham’s legal posi-

tivism is completely independent of his works on legal reform (e.g., Gardner 2012,

36– 7), but this is very much a minority view, asserted rather than carefully defended.

Indeed, scholars are increasingly skeptical of the idea that Bentham was engaged in

anything like twentieth- century conceptual analysis. Though there is no doubt that

Bentham had a keen interest in language, his aims in studying it were quite differ-

ent from those of his twentieth- century followers (Kelly 1990, 147; Priel 2015, 987–

8, 1017– 9; Strowel 1987, 327– 8). Consequently, some now doubt whether Bentham

should be considered a legal positivist, at least as the term is currently understood

(Priel 2015; Schofield 2003, 2021; Zhai 2012).

On the other side, though the Panopticon remains a symbol of the omnipresent

state, and some scholars still describe Bentham as a “dirigiste” (Israel 2006, 666),