LINEBURG


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junior rank is insulted, he is obliged by the opinion of his equals to prove
that he has the quality that his profession demands, the courage to face
death. If the penal law punished such killings, it would declare honor to
be a mere illusion, which would be cruel; if the law refused to impose the
death penalty, it would be remiss in punishing unlawful killings. The only
solution, Kant argues, is to recognize that the Categorical Imperative of
Penal Justice, requiring that unlawful killing be punished by death,
remains in force, but that the positive law cannot adequately deal with
actions motivated by honor.
Uncertainty about what is right need not afflict adjudication any more
than legislation. Adjudication completes the derivation from the prin-
ciples of right begun by the legislator. Since the decision of a court is
the conclusion of the syllogism for which the legislator lays down the


41
Ibid., 201.
150 The modern quest

major premise, adjudication is the last step in the deduction of an
indisputable conclusion.
It follows, Kant argues, that considerations of equity can never enter
into a judicial decision. He acknowledges that there may be good ground
for complaint in some cases. His example is the grievance of a domestic
servant who has been paid his agreed wage but, because the currency in
which it is paid has depreciated, gets less in real value than he had
expected. Nevertheless, his loss cannot be defended in a court of law,
Kant says, because there was nothing bearing on it in the contract of
service, and a judge “cannot give a decree on the basis of vague or
indefinite conditions.” A court of equity is a self-contradiction. Although
the Crown may, if it chooses, compensate persons for such a loss, in strict
right the claim has to be rejected because the “parties in question under-
took the performance of the service occasioning the loss, at their own
risk.” It may be true, as the dictum of equity says, that “the strictest Right
is the greatest Wrong,” but that sort of evil can be settled only by a
“Court of Conscience.” A civil court can decide only questions of right.42
Although on the whole Kant moves unhesitatingly from the principles
of right to prescriptions for positive law, about which he expresses no
uncertainty, he does at times acknowledge a distinction between “pure,”
practical reason which dictates what is right in itself, and “practical
reason,” which tells us what the positive law ought to require. In his
Lectures on Physical Geography, he distinguishes between the first
principle of civil society, which is a universal law, and the particular laws
of a particular region, which, he says, are relative to the soil and inhabit-
ants of the region. And in the Philosophy of Right, he points out that “All
this is to be here viewed a priori, according to the rational Conditions of
Right, without taking into consideration how such a Constitution is to be
actually established or organized, for which particular Statutes, and
consequently empirical Principles, are requisite.” He acknowledges that
the question, What is right in itself? has to be supplemented by a judgment
about What is right as applied to this case?43 And he even recognizes that
different circumstances may require a legal judgment at variance with the
judgment of “mere sound Reason.”44 But he does not suggest that these
acknowledgments should qualify what he says about what the law ought
to be.
Kant also introduces considerations of contingent circumstances in
connection with the right of suffrage. He does not ask whether or how a
legislature can in practice truly represent the will of the people, but he
does consider the qualifications needed by anyone claiming the rights of

42 43 44
Ibid., 51“52. Ibid., 142. Ibid., 146.
Immanuel Kant 151
citizenship. These rights belong, he says, only to those who do not depend
on the will of anyone else for their existence and sustenance. Anything less
is incompatible with the independence of a citizen. Among those
who should be classified as dependent, Kant includes apprentices to
merchants or tradesmen, domestic servants, resident tutors, ploughmen,
itinerant laborers, women, and minors. All such people are entitled to
equality and freedom as “Men helping to constitute the people” and may
claim that whatever positive laws are enacted should not “be contrary to
the natural Laws that demand the Freedom of all the people and the
Equality that is conformable thereto.” But as they lack independence,
they are merely “passive” as opposed to “active” citizens and therefore are
not entitled to vote.45
Otherwise, Kant makes no concession to contingent circumstances in
deriving his prescriptions about the content of law from the principles of
right. Nor does he anywhere indicate how conclusions derived from
principles of right could be qualified by other considerations. In only
one context, in his discussion of perpetual peace, does Kant explicitly
sanction practice that does not perfectly accord with what the principles
of right require. Although he presents perpetual peace as “the ultimate
end of all the Right of Nations,” Kant says that it is “an impracticable
ideal,” because once a union of states extends over a vast territory, the
protection of its individual members becomes impossible, and then war
returns.46 Therefore, the establishment of universal and perpetual peace
must “always remain but a pious wish.” And yet, it remains our duty to
work for “what may perhaps not be realized” by establishing whatever
Constitution seems “best adapted to bring it about.” We cannot deny that
it is our duty to do so without reducing the moral law to a deception and
thereby degrading ourselves “to the level of the mechanical play of
Nature.”47
Kant™s acknowledgment that perpetual peace can never be realized
implies that practical action and what is right are measured on the same
scale, but that the former might never reach as far along the scale as
the latter. What is right is impractical in the sense that it cannot be wholly
attained; human actions cannot scale the heights of reason. This view is
in keeping with Kant™s conception of practical reason as distinguished
from theoretical reason only by being directed to action. But it also
shows that Kant™s “practical reason” is a far cry from practical reasoning
in the Aristotelian sense, which is concerned with contingent matters
and proceeds by a different logic. Although Kant acknowledged that
empirical knowledge is needed for the definition of specific duties and

45 46 47
Ibid., 168“69. Ibid., 224. Ibid., 230.
152 The modern quest

occasionally claimed to have taken such knowledge into account, he gave
no indication of how thought moves from a priori principles to contingent
practical judgments. What concessions he made to contingency only
prompts us to ask, How “pure” can practical reason be?, and to notice
that Kant is far from consistent in his answer. He seems, as Beck says,
“always to have been striving for a degree of purity which could be
obtained only in the emptiness of Wolff™s ˜universal practical philoso-
phy,™” which he rejected.48 Nor could Kant have made room for practical
reasoning without abandoning the understanding of reason and rational-
ity that informs his critical philosophy. For he identifies reason with
universal value rules or “laws,” rational acts with acts bound by
such laws, and moral conduct with rational acts, thus wholly excluding
consideration of contingency from rational and moral discourse and
conduct. Given his conception of reason and his identification of law
with reason, Kant could not relate law to the contingency of the human
world. And that is why he has been charged with having no philosophy
of law.49
In one sense then, Kant is Augustinian and Hobbesian. He takes the
view that the proper concern of law is not with leading men to God, or
translating substantive natural law into positive law, or with satisfying the
desires or achieving the goals of its subjects. Whether a law is “just” is a
question solely about whether it regulates the relationships of the
members of a civil union appropriately. In another sense, he is Platonic
or Aristotelian, since by divorcing the moral realm from the empirical
world, Kant unequivocably identified law as a moral regulation. But his
singular contention, which separates him as much from classical prede-
cessors as from Hobbes and Augustine, is that uncontentious principles of
positive law can be derived directly from the principles of right. As Kant
is unable to acknowledge the rationality of deliberation about contingent
matters or of answers that are neither universal nor indisputable, he could
not account for the rationality and objectivity of contingent, controver-
sial, and changing legislation and adjudication. Instead, Kant assumes
that since rational people are bound to agree about what the law ought to
command, any decision infected with contingency must be irrational and
arbitrary. As a result, Kant suffered an ironic fate. He became the patron
saint both of those who divorced law from morality and of those who,
deprived of an indisputable basis for positive law, made wholly arbitrary
prescriptions for law in the name of morality and reason.
48
Lewis Beck White, A Commentary on Kant™s Critique of Practical Reason (Chicago:
Chicago University Press, 1960), 53“54.
49
Cf. Stuart M. Brown, Jr., “Has Kant a Philosophy of Law,” Philosophical Review 71
(January 1962): 33.
9
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Jeremy____________________ _ _Bentham_____________________________________________________________________________________________________________



Although Bentham also tied the idea of law to a moral theory that does
not rely on either revelation or transcendent metaphysics and had no use
for the uncertainties of practical reasoning, his understanding of law
could hardly be more unlike Kant™s. Whereas Kant sought to preserve
the moral character of law by divorcing it from the practical pursuit of
satisfactions, Bentham made that pursuit the foundation of law. But
neither his concerns nor his methods were simple. What we find in
Bentham is a medley of five different and not altogether compatible views
of law, which sets the pattern for the theories that became dominant in the
twentieth century.

I
In textbooks Bentham is described as the father of the positivist philoso-
phy of law, the view that law consists of rules whose validity can and
should be distinguished from their desirability. And he is credited with or
accused of believing that adjudication consists of interpreting established
rules and that maintaining a fixed set of authenticated rules is the essence
of the rule of law. This wholly traditional view of law appears in his
criticism of common law.
There Bentham argues that the common law is defective because it
does not consist of authentically recorded rules made by known legisla-
tors. There is an echo of ancient authors in Bentham™s insistence that a
rule of law can only be predicated on “some certain assemblage of
words. . . It is words only that can be spoken of as binding: because it is
words alone that are producible with certainty when occasion comes for
any individual to be bound.”1 Therefore, the only real law is statute law
because we can see “in every instance who made it: when, where, and how

1
Jeremy Bentham, “A Comment on the Commentaries,” in A Comment on the
Commentaries and a Fragment on Government, ed. J. H. Burns and H. L. A. Hart
(London: Athlone, 1977), 259.

153
154 The modern quest

they made it: we call for and have produced to us at any time the very
thing they made.” No such object to which the word “law” could be
attached is to be found in common law. It is merely an “assemblage of
fictitious regulations feigned after the images of these real ones that
compose the Statute Law.”2
Even when judges pretend to find the common law in written records,
those are not the records of authentic law: “there are plenty of books
purporting to be books of customary or as it is more frequently called
unwritten law. . . But what are they? Books written not by the legislator
but by private individuals: Books not of authoritative but of unauthor-
itative jurisprudence. In none of all these books is there so much
as a single article which can with propriety receive the appellation of a
law. It is owing rather to an imperfection. . . peculiar to the English
tongue. . . They contain jus indeed, but not leges: le droit but not des
lois.”3 Though they pretend to report judicial transactions, these reports
are often only “abridgements, extracts, digests” of those transactions,
further adulterated, moreover, by the interpretations imposed upon them
over many years, for the reporter who begins as a historian invariably
ends as a metaphysician “creating rules.”4
As a result, what we take to be common law is in reality no more than
someone™s conjecture about law. So various and conflicting are the ma-
terials from which the common law is derived that only chance could
determine which rules are appealed to by either judge or pleader: “A
question arises concerning the title to an article of property. A deed
copied from one drawn by a conveyancer of great name and since copied
from by a thousand others, but now impeached for the first time; a
decision badly reported upon the face of it but taken from a printed
book of high authority; a decision well reported upon the face of it but
taken from a printed book of low authority; a decision indifferently
reported and taken from a book without a name; a corresponding string
of unprinted cases; an ancient treatise, and the decisions which it quotes
and which when examined make against it; these. . . are all candidates
at the same time for the prerogative of legislation:“ which of all these
outstanding authorities ought to carry it? When the circle has been
squared, this problem will be solved.”5
As anyone may be a legislator if he “happens to bestow his thoughts
upon the subject,”6 and as he can extract whatever law he prefers, there is

2
“Comment on the Commentaries,” 120.
3
Jeremy Bentham, Of Laws in General, ed. H. L. A. Hart (London: Athlone, 1970), 153.
4
“Comment on the Commentaries,” 331; cf. Laws in General, 184.
5
Laws in General, 191“92.
6
“Comment on the Commentaries,” 331.
Jeremy Bentham 155
no limit to the making of common law. It “can never be finished,”7 but
is constantly altering and increasing without being understood to do so.
Instead of marking “the line of the subject™s conduct by visible direc-
tions,” common law turns him “loose into the wilds of perpetual conjec-
ture.” It has none of that “grand utility of the law,” which is “certainty.”8
And because there is no knowing who made it or when, we are beguiled
into believing judges like Blackstone who tell us that the common law is
sacred and may not be altered by human hands.
At best, common law consists of rules extracted from particular cases
by a process called “extrapolation.” In reality, “abstract and contentious”
fictions such as “natural law,” “equity,” “reasonableness,” “policy,” and
“contra bonos mores” conceal the fact that the “extrapolated” rules are
invented by judges. They are necessarily ex post facto and can serve
whatever purpose judges prefer. We are told that the special skills and
experience, which ordinary men lack, enable lawyers and judges to divine
rules from particular cases. But this only means that judges and lawyers
share habits of thought alien to the ordinary man and to his conception of
justice, and that judges and lawyers are joined in a “partnership” designed
to extract “on joint account, and for joint benefit, out of the pockets of
the people, in the largest quantity possible, the produce of the industry
of the people.”9
The coherence of the common law is supposed to be protected by the
requirement that judges “tread in one another™s steps.” On this adherence
to precedent depends what feeble and vacillating degree of security is
provided by the common law. Whereas Blackstone no less than Mansfield
assumed that the courts could and should adjust law to new conditions,
Bentham insisted on strict adherence to precedent in all common law
adjudication: “Should there be a Judge who enlightened by genius, stimu-
lated by honest zeal to the work of reformation, sick of the delays, the
caprice, the prejudices. . . of popular assemblies, should seek with his sole
hand to expunge the effusions of traditionary imbecility, and write down
in their room the dictates of pure and native Justice . . . let him but reflect
that . . . amendment from the Judgment Seat is confusion . . . that partial
good thus purchased is universal evil.”10 In his first published work, A
Fragment on Government, Bentham argued in wholly traditional fashion
7
Jeremy Bentham, The Works of Jeremy Bentham, ed. John Bowring, 11 vols. (London:
Simpkin, Marshall, 1843), III:206, “General View of a Complete Code of Laws”
(hereafter Works).
8
“Comment on the Commentaries,” 95; Works, III:206, “General View of a Complete
Code of Laws.”
9
“A Fragment on Government,” in Jeremy Bentham, A Comment on the Commentaries
and a Fragment on Government, ed. Burns and Hart, 509.
10
Works, V:478, “Petition for Justice”; “Comment on the Commentaries,” 223“24.
156 The modern quest

that judicial lawmaking upsets confidence in the “stability of any rules of
Law, reasonable or not reasonable: that stability on which every thing
that is valuable to a man depends.”11 However great the benefit to the
party favored, it is outweighed by the evil to the community at large.
Besides, judges cannot see the whole as readily as the legislator, and the
judge who legislates in the course of adjudication does not attend to the
particular circumstances of the parties to a suit, but uses them as examples
of some general condition requiring a new rule.
But at the same time, Bentham argued that the benefit of adhering to
precedent was secured at a great cost. Respect for precedent assumes that
“Whatever is, is right” and encourages an unthinking resistance to
changing the law. Judges perpetuate ancient regulations which, though
they may have been adequate for their time, are hardly likely to suit the
circumstances of a later, less barbarous age. Yet the more ancient the
precedent, the more compelling it is.12 Thus, the common law imposes an
impossible task on judges. They are asked to serve two incompatible
purposes, to keep the law fixed in order to protect security of expectations
and yet to make it flexible enough to do justice in particular cases. As no
man can do both, judges are compelled to vacillate between hard-hearted
rigidity and capricious arbitrariness.
If they respect precedent, it becomes an “avowed substitute for
reason”13 and mechanical judicature replaces mental judicature. Con-
cerned only to “follow their leader, “ as sheep follow sheep, and geese
geese,” judges grow indolent and self-indulgent.14 Instead of attending
to the particular circumstances of each case, they spin their decisions out
of “some vague maxim, conceived in general terms without exceptions,
and without any regard to times and circumstances: a maxim conceived. . .
by persons who have no such case as the particular one in question
present to their view.” In any case, qualifications that a legislator would
take into account are forbidden to the common law judge. If they want
to keep the law steady, judges have to become insensible enough to
doing justice to tolerate appalling mischiefs; “Hence the hardness of
heart which is a sort of endemical disease of lawyers where that part of
the law which is in the customary form is predominant in the system.”15
When the consequences of adhering to precedent become too blatantly
absurd to be tolerated, judges become wholly arbitrary. Like conjurers


11
“Comment on the Commentaries,” 409, fn. p.
12
Works, IX:322“23, “Constitutional Code.”
13
Works, X:511, “Extracts from Bentham™s Memorandum Book, 1818“19.”
14
Works, V:472, “Petition for Justice,” IX:322, “Constitutional Code.”
15
Laws in General, 194“95, n. 1.
Jeremy Bentham 157
and, with public approval, the judge “draws from the same fountain bitter
waters, or sweet.”16 The judge is left free to “give or to refuse impunity to
the murderer,” for if the murderer is punished, the Justification is stare
decisis, and if the murderer is acquitted, the judge is praised for his
liberality.17 And whatever the judge does, the accused is punished without
warning and absolved without reason. While the rights discovered are
“mere illusions,” the punishments are “sad realities.”18
Both the adherence to precedent and the violations of it reduce the law
to a maze of technicalities that no layman dares enter. He is driven to
collect as many lawyers and opinions as his fortune permits, yet this
“ruinous procedure often serves only to create new doubts.”19 The legal
profession cannot be made accountable for the simple reason that no
one else has access to the materials of their craft. Judges and lawyers are
thus left free to satisfy whatever “sinister interests” they choose to serve,
and the people have no way of knowing either their rights or duties:
Not even slaves in the American South suffer such tyranny.20

II
Although Bentham never wavered in his antagonism to the common law,
the identification of law with written rules that is central to his attack on
the common law disappears in other contexts. In his account of civil
society, he takes up Aristotle™s suggestion that law derives the validity
that ensures obedience from habit. The unity of civil society is constituted,
Bentham says, not by a set of rules that all members are obliged to
observe, but by a “habit of paying obedience to a person, or an assemblage
of persons, of a known and certain description.” Those who possess such
a habit are, together with those whom they obey, in “a state of political
SOCIETY.”21 The person or persons whom they obey is the sovereign.
And the readiness of his subjects to submit to his will is what defines his
sovereignty. Whether the habit of obedience in his subjects is the cause or
the effect of the sovereign™s power is not made clear by Bentham, but he
certainly regards the possession of power to enforce obedience as the
essence of sovereignty.



16
Works, I:326 “Principles of the Civil Code.”
17
Works, V:478 “Petition for Justice.”
18
Works, V:546, “Petition for Codification.”
19
Works, III:206, “General View of a Complete Code of Laws.”
20
Works, IX:7, “Constitutional Code,” V:547, “Petition for Codification.”
21
Jeremy Bentham, “Fragment on Government,” 428.
158 The modern quest

“An assemblage of signs” declaring the will of the sovereign is a law. So
completely is law identified with the will of the sovereign that “in its
primary sense,” law is an intellectual object that exists nowhere in a
material object that we can buy at the bookseller™s. Any command issued
by the sovereign, whatever its form, qualifies as law. Far from distinguish-
ing law from orders or decrees, Bentham says that any judicial, military,
or executive order, “even the most trivial and momentary order of the
domestic kind” or a “temporary order issued by any magistrate” may
with “equal propriety” be called a law if it emanates from the sovereign.22
The only reason for preferring the word “law” rather than “order” or

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