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“injunction” is that it carries a clear intimation, as the other words do not,
of being willed by the sovereign.
But there is an ambiguity in Bentham™s identification of law with a
command of the sovereign. For he says also that what gives a “volition”
the character of law is the likelihood of suffering in accordance with the
will of the sovereign for failing to perform the duties it imposes. Here it
seems that what defines law is not merely the fact of being willed by
the sovereign, but the consequences of disobeying the sovereign™s will.
In other words, the idea of punishment is intrinsic to the idea of law.
And all laws are necessarily coercive or punitive as well as imperative
because they prescribe both specific performances and the punishment
for a failure to perform. Although the imperative part is addressed to
citizens and the punitive to officials, imperative or civil law cannot be
isolated from penal law because unless a failure to obey is subject to
punishment, the command is not law. Indeed, the imperative part might
more easily be omitted because a penal law necessarily presupposes an
imperative law: “To say to the judge, Cause to be hanged whoever in due
form of law is convicted of stealing, is, though not a direct, yet as intelli-
gible a way of intimating to men in general that they must not steal, as to
say to them directly, Do not steal: and one sees, how much more likely to
be efficacious.”23 Ordinarily, however, “principal laws” are imperative,
requiring or prohibiting certain actions, and the “subsidiary” or “puni-
tary” part of the law sets forth the punishment for violations of principal
laws. As only performances or prohibitions specified in principal laws can
give rise to legal obligations, the pain suffered by violators of the law is
clearly distinguished from a merely disagreeable consequence, such as a
tax that may attend conduct not required by law.


22
Laws in General, 1, 12, 3, 4.
23
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation,
ed. J. H. Burns and H. L. A. Hart (London: Athlone, 1970), 303.
Jeremy Bentham 159
Whether a law is formulated as a command or as a prohibition does not
affect its imperative character. For every command may be turned into a
prohibition and vice versa: “The law which prohibits the mother from
starving her child commands her to take care that it be fed. . . . A mandate
prohibiting drunkenness may without any change in its import be con-
verted into a law commanding sobriety: a mandate commanding chastity
into a mandate prohibiting incontinence.”24 Since a command excludes
both a prohibition and a non-command, it must include a permission; and
conversely, a prohibition “excludes both a command and a permission.”25
Every law is therefore either a command or a “revocation of one.”26
Bentham recognizes that the word “law” is sometimes used to describe
permissive regulations, which revoke, rather than create, legal obliga-
tions. But as such regulations are “uncoercive” or “discoercive,” that is
to say, they do not impose any sanction, they are not truly law. On the
other hand, “praemiary” or “invitative” regulations, which offer rewards
instead of imposing punishment, do qualify as laws because they impose
sanctions “of the praemiary kind.” The offer of a reward, no less than
punishment, influences the will by providing a motive for obedience. As
the law cannot, however, administer pleasure but can only place pleasure
within someone™s reach, the business of government must rely mainly on
punishment.27
Bentham acknowledges that laws are rarely phrased in an imperative
tone and more usually in an “assertive” or descriptive tone. But he insists
that laws formulated in this fashion, giving no intimation “that the will of
the legislator or anybody else, has any concern in what is delivered,”
merely conceal their true character. Correct analysis can always disclose
the hidden imperative. The laws concerned with title to property, for
instance, appear to be purely descriptive because they state the conditions
that must be observed in order to have a legal claim. But this is an illusion.
In fact, all property law rests on a basic prohibition of “meddling” with
things or persons. That prohibition is qualified by exceptions for those
who have acquired a title to certain things or services. Though apparently
descriptive, property law consists of the exceptions to the prohibition of
meddling. As the exceptions are exceedingly heterogeneous, numerous,
and intricate, it is more convenient to list them separately as if they were
independent of the basic command and the sanction attached to it. And
this separation creates the illusion that there are laws that are neither


24 25
Laws in General, 96. Ibid., 97.
26
Principles of Morals, 302.
27
Bentham, Principles of Morals, 95“100, Laws in General, 136.
160 The modern quest

imperative nor penal. Thus, the “cause” of our belief that there are purely
descriptive laws “is neither more nor less than. . . the want of coincidence
or conformity between the typographical arrangement and the logical:
between the order of the ideas about which the several laws in question
are conversant, and the order of the signs which are made use of to
express them.”28 If all the parts of every law were assembled in one place,
it would be obvious that all law is necessarily both imperative and penal.
Since all law is necessarily both imperative and penal, every law has a
detrimental effect on someone, either directly, by sanctioning the inflic-
tion of pain for disobedience, or indirectly, by prohibiting certain satis-
factions or granting someone pleasure that thereby becomes inaccessible
to others. No law can be universally beneficial, and every law necessarily
inflicts more pain on some than on others. One may and should ask
whether the evil caused by a law exceeds the benefits bestowed, but it
makes no sense to criticize a law, as Adam Smith did, for being contrary
to natural liberty: “To say that a law is contrary to natural liberty, is
simply to say that it is a law.” For every law is established at the expense
of someone™s liberty “ “the liberty of Peter at the expense of the liberty of
Paul.”29 To speak of a law by which nobody is bound or coerced is simply
to utter “so many contradictions in terms.” All laws necessarily coerce
and restrict the liberty of those subject to them.30
Bentham makes coercion intrinsic to the idea of law because he has no
conception of authority. He dismissed it as a misleading fiction and
insisted that civil society rests on a habit of obedience. Hume had taught
him that civil association did not arise from a state of nature through a
contract between people and sovereign. And Bentham assumed that
without such a contract there could be no right to command and hence
no authority. That there might be an implicit contract or promise to obey,
such as Socrates invokes in the Crito, Bentham did not consider. Neither
did he attempt to answer the parallel questions about his own conception
of sovereignty: How does the sovereign acquire his power to command
obedience? And why are the people disposed to obey him? Bentham
suggested that a disposition to obey might grow by custom out of obedi-
ence to the father in a family, but he regarded that as only one of many
possibilities: “sovereignty over any given individual is a matter which is
liable to much diversity and continual fluctuation. Subjection depends for
its commencement upon birth: but for its continuance it depends upon a


28
Laws in General, 105“6, 26, 197.
29
Works, III:185 “General View of a Complete Code of Laws.”
30
Laws in General, 54, 248.
Jeremy Bentham 161
thousand accidents.”31 All that matters is whether there is a disposition to
obey, for that is the “constituent cause” of the sovereign™s power.32 In the
distinction that Bentham makes between passive and active submission,
what is being distinguished is not power and authority but power exer-
cised over the physical body (“contrectation”) as by the executioner over
the condemned, from power exercised over the will of another (“impera-
tion”) exhibited in a command by an officer to a soldier. Even the subject
who obeys the sovereign willingly is acknowledging not his authority but
his power to inflict suffering: “In point of fact a man is subject to any and
to every sovereign who can make him suffer: whether it be in person (that
is in body or in mind) in reputation, in property, or in condition.”33
That he has no use for the idea of authority does not, however, prevent
Bentham from insisting on an obligation to obey the law. But he describes
it as a “fiction” in the “logical sense”34 because “obligation” does not
refer to any material thing, which for Bentham is the only kind of reality.
Although all fictions breed confusion, he considers legal terms, such as
rights, powers, title, and obligation, useful. To make it possible to use
such fictions without inviting confusion, Bentham developed a theory of
fictions that prescribes the following procedure for determining the real
meaning of a fiction: first, use the word in a sentence; second, translate the
sentence into others where the word in question does not appear;
and finally, identify the fiction with images that make its meaning explicit.
For instance, the appropriate image for “obligation” is that of “a man
lying down, with a heavy body pressing upon him.”35 That image explains
why we speak of someone being under, bearing, or being relieved of an
obligation “ we mean that that person is being restrained by an external
force “ and why “obligation” is a useful “fiction.”
In other words, Bentham™s conception of obligation is nothing like a
moral duty. It is the antipode of Kant™s view. Whereas Kant tried to
purify the notion of obligation from any concern with consequences,
Bentham defined obligation as conduct governed by the expectation of
certain consequences. We are obliged when we are “exposed to suffer” as
a result of a restriction that is appointed or marked out for failure to
perform a prescribed action.36 An obligation exists whenever pain or loss
of pleasure is likely to be experienced as a result of failing to conduct
oneself in a certain manner.37 What distinguishes obligations are the
different sources of pain. We are restrained by the religious sanction when

31 32
Ibid., 20. Ibid., 139.
33 34
Ibid., 30, 139. Works, VIII:199, 126n, “Ontology.”
35 36
Works, VIII:247, “Logic.” Laws in General, 56.
37
Works, VIII:247, “Logic.”
162 The modern quest

we fear punishment by God; we are restrained by the moral sanction
when we fear pain caused by the bad opinion of other people; and we are
restrained by the legal sanction when we fear the punishment imposed by
an officer of the law. Each sanction imposes a duty or obligation. The
law obliges its subjects because the fear of punishment “binds” or holds
them fast to performing or refraining from certain actions.
Bentham vacillates on whether it is simply the likelihood of suffering
pain for a prohibited performance or an awareness of this likelihood
that gives rise to obligation. He is accordingly said to have either two
different theories of obligation, a “predicative” and an “imperative”
theory, or else one “mixed” theory.38 In any case, being obliged is not
for Bentham a recognition that acting in a certain manner is “right,” but
rather a recognition of the fact that painful consequences will attend
a failure to comply. What matters is the relation between what one
does and what officers of the law might do, not the reason why one
conforms. There is no need to call upon figments of the imagination such
as conscience. Nothing is more mysterious than when the likelihood of a
succession of certain actions, which anyone can observe, constitutes an
obligation. The source of obligation is always power, and authority is
nothing but a synonym for power.
What is surprising is that even though Bentham does not distinguish
between power and authority, he insists that the validity of law is inde-
pendent of its desirability. Whether a regulation is a law depends on its
pedigree, not on its content or consequences. If it was made by the
sovereign, or by someone empowered by him, it is valid law. The formal-
ities that attend legislation “ the “ceremonies of authentication” “ are the
recipes for producing authentic law. They serve as “signs for the purpose
of making known to the people that such or such a discourse is expressive
of the will of the legislator.”39 The fact that the content of a law falls
short of what we would like it to be cannot affect its status as law. Thus,
the role of Expositor of law differs from that of a Censor. The former
inquires into “facts” to show us what “the Legislator and his underwork-
man the Judge have done already”; the Censor tells us “what he thinks it
ought to be,” discusses “reasons,” and suggests “what the Legislator ought
to do in future.” Though the Censor speaks as a citizen of the world, the
Expositor must speak as the subject of a particular sovereign.40



38
Cf. A. W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon,
1973), 139 ff.; H. L. A. Hart, Essays on Bentham (Oxford: Clarendon, 1982), 133 ff.
39
Bentham, Laws in General, 126, n.12.
40
Bentham, “Fragment on Government,” 398.
Jeremy Bentham 163
The oddity in Bentham™s insistence that validity depends on pedigree is
that the validity of a law does not give it authority. Knowing the pedigree
of a law is merely a convenience. Just as the stamp on silver tells me that
I am buying the sterling that I mean to buy, so the provenance of a law
tells the subject that he is obeying a genuine command of the sovereign.
Or perhaps the pedigree of a law serves as a signal that pain will attend a
failure to conform. Either way, the obligation to obey a law does not arise
from its authority.
But neither is there any right or law anterior to civil law that can serve
as a ground for repudiating an obligation to obey it. Nothing that the
sovereign commands, whether directly or indirectly, can be unlawful. To
say that a law is void because it violates the “law of nature” or any other
law or “right” is simply a contradiction. No law can violate “rights”
anterior to law because all rights exist “in consequence of civil laws and
by them alone.” The Romanist notion that there are rights that “have
subsisted, or still subsist, independent of the laws” and cannot therefore
be altered or violated by civil law is one of the many “false reasonings”
based on “the law of nature, or the law of nations, or some such other
phrase” which have “no existence at all.” Natural law is imaginary law
invented out of “ignorance, hardihood, and impudence” by the “legislat-
ing. . . Grotti and the Puffendorfs.”41 As it is impossible to know whether
a law violates the law of nature, anything like the French Declaration of
Rights or the American Declaration of Independence is simply an encour-
agement to take up arms against any law that one finds displeasing: “you
can never make a law against which it may not be averred, that by it you
have abrogated the Declaration of Rights; and the averment will be
unanswerable.”42 Such talk confounds understanding and inflames pas-
sions until all can feel justified in disobeying any law they happen not to
like, from which it is but a short step to the conclusion that a bad law is no
law and to resist attempts to enforce it is a “right.” Rebellion follows and
civil peace is at an end.
Nevertheless, a sovereign may grant concessions to his subjects and
choose to abide by them. Such concessions may have the character of
constitutional limitations on his power. But they are “neither commands
nor countermands: in short they are not laws.” Nor do they have the
character of a contract: “They are only promises from the sovereign to the
people that he will not issue any law, any mandate, any command or


41
Works, III:184“85, “General View of a Complete Code of Laws,” 220, “Pannomial
Fragments.”
42
Works, X:215, Correspondence, 1789 Æt. 41, Brissot-Wilson.
164 The modern quest

countermand but to such or such an effect, or perhaps with the concur-
rence of such or such persons.” Such promises are like the treaties that a
sovereign makes with foreign powers: as there are no legal sanctions for
violating a treaty, the people cannot keep the sovereign to his promise.
But he might be influenced to keep his promises by sanctions of another
kind, by the religious and the moral sanction. Fear of punishment for
violating his “treaties with the people” by God in the hereafter, Bentham
says, is one of the great uses of the religious sanction. Or the sovereign
may be moved by the threat that the people will become less disposed to
obey his commands and will withdraw their submission to him. In other
words, constitutional limitations might prevail because the sovereign
finds it impolitic to violate them, not because they have the force of law.43
Here we see that, although Bentham is often coupled with Hobbes as an
advocate of the “command theory” of law because he denies that the
sovereign can be obliged to observe limitations on his will, Bentham™s
reasons are different. It is not because the subjects have authorized the
sovereign to substitute his will for theirs, but simply because the sovereign
has a monopoly of power that makes it impossible for his subjects to
enforce their will. Even though religious and moral sanctions may influ-
ence the sovereign, they do not affect the nature of his relationship with
his subjects. It is a relationship between the possessors of more and less
power. Only the presence of a disposition to obey the sovereign distin-
guishes the civil condition from a state of nature. Law is distinguished
from other commands only by the supreme ability of the sovereign to
compel obedience; it is inseparable from coercion and is in essence an
exercise of power.


III
When, however, Bentham turns to discussing what the law ought to be,
the identification of law with power disappears, and law acquires the
character of an instrument for reconciling conflicting interests. The dis-
covery of the “principle of utility,” Bentham believed, made it possible to
escape from the difficulty that his ancient and medieval predecessors
considered to be intrinsic to mortal life: the difficulty of reconciling the
fixity of law with the contingency of human circumstances. Whereas
Aristotle concluded that the law could no more give answers that were
equally just in all cases than a rigid ruler could adequately measure an
uneven surface, Bentham promised that the principle of utility could


43
Laws in General, 16.
Jeremy Bentham 165
make the law perfectly flexible without endangering its stability. That
was because the principle of utility offered an indisputable measure for
the justice of both general rules and particular commands. Thus, Bentham
invented the modern dream of enjoying all the benefits of law without
suffering from any of its drawbacks: “Until the grand principle of utility
had been exhibited; until. . . by the aid of this principle, the end to be
pursued, and the means to be employed, had been recognized; until, so to
speak, all the legislative apparatus had been provided, and all the funda-
mental truths had been arranged, it was impossible to form any precise
notion of a perfect system of legislation. But if at length these different
objects have been accomplished, the idea of its perfection is no longer a
chimera. . . though no one now living may be permitted to enter into this
land of promise, yet he who shall contemplate it in its vastness and its
beauty may rejoice, as did Moses, when on the verge of the desert, from
the mountain top, he saw the length and the breadth of that good land
into which he was not permitted to enter and take possession.”44
The principle of utility, which Bentham later called the greatest happi-
ness principle, approves or disapproves of every action “according to the
tendency which it appears to have to augment or diminish the happiness
of the party whose interest is in question.”45 Happiness is the sum of
pleasures, and the principle of utility is nothing but an injunction to
maximize pleasure. By pleasure, Bentham means the satisfaction of what-
ever desires one might have, and his list of pleasures includes fourteen
varieties ranging from pleasures of sense to those of wealth, malevolence,
and piety.
The principle of utility tells us that the greatest happiness of the greatest
number is the only right end of all human action in both private and
public life. It is the only true moral principle because it designates what is
good without providing any justification for imposing one man™s opinion
on the rest. All other moral principles consist “in so many contrivances
for avoiding the obligation of appealing to any external standard, and for
prevailing upon the reader to accept of the author™s sentiment or opinion
as a reason. . . for itself.”46 They permit rulers to define the happiness of
the governed so as to promote whatever they find most beneficial to
themselves and to attribute all objections to ignorance of what is “truly
good.” But if happiness is identified with whatever is desired by the
individuals in question, then they can object clearly and forcibly when
their wishes are ignored. No government can excuse discriminating


44
Works, I:194, “Influences of Time and Place in Matters of Legislation.”
45 46
Principles of Morals, 12. Ibid., 25.
166 The modern quest

against the desires of some in order to promote the satisfactions of others
on the ground that the former are excluded by a “true” view of happiness.
Where the greatest happiness of the greatest number is the governing
moral principle, only policies that satisfy the interests of most of the
governed can be justified.
The implication of the greatest happiness of the greatest number is
reenforced by the “principle of self-preference” according to which, “In
the general tenor of life, in every human breast, self-regarding interest is
predominant over all other interests put together.”47 This self-preference
principle means, first of all, that all people, whether or not they are selfish,
necessarily see one another through alien eyes. People react differently to
the same circumstances: “in the same mind such and such causes of pain
or pleasure will produce more pain or pleasure than such or such other
causes of pain or pleasure: and this proportion will in different minds be
different.”48 Therefore, every man™s preferences are ultimately private,
and it is impossible to understand others sufficiently well to know what
their interests are. That is why the philanthropic fanatic, however well-
intentioned, regularly produces misery, and why each man is the best
judge of what is good for him. The self-preference principle does not
imply that human beings are incapable of sympathy or benevolence, but
it does suggest that it is safer to expect that people might put their own
wants first, if only because they understand them better.
As no legislator can know what another man feels and needs, paternal-
istic legislation is ruled out. Of course, society must put “bridles into all
our mouths” to prevent “our doing mischief to one another,” but to direct
a man for his own good is another matter: “the tacking of leading-strings
upon the backs of grown persons, in order to prevent their doing them-
selves a mischief, is not necessary either to the being or tranquillity of
society, however conducive to its well-being.”49 Moreover, as the law can
influence behavior only by punishment, in many attempts to curb un-
desirable behavior the evil of the punishment exceeds the evil of the
offense. It is impossible, besides, to define some offenses precisely enough
so as to ensure that the innocent are not caught in attempts to punish the
guilty. Laws designed to suppress one vice may instead produce other new
and more dangerous vices. And in general, the same mean passions that
inspired the founders of religious orders move legislators who attempt to
shape the lives of their subjects instead of relying on the principle of
utility. For all these reasons, Bentham concludes that “The principal

47
Works, IX:5, “Constitutional Code.”

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