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48
Principles of Morals, 51.
49
Works, III:5, “Pannomial Fragments.”
Jeremy Bentham 167
business of the laws, the only business which is evidently and incontest-
ably necessary, is the preventing of individuals from pursuing their own
happiness, by the destruction of a greater portion of the happiness of
others. To impose restraints upon the individual for his own welfare, is
the business of education; the duty of the old towards the young; of the
keeper towards the madman: it is rarely the duty of the legislator towards
the people.”50
The law is not, then, an instrument for shaping a good life or for
making men good. Its “principal object” is “the care of security.” Under
the rule of law, men are accustomed to labor for the future instead of
using force to acquire what they want from the labor of others. Security
is achieved not by rewarding labor but by ensuring that the fruits of
labor can be enjoyed, or in other words, by ensuring “a fixed and durable
possession which deserves the name of Property.” Indirectly, the law
contributes in this way also to human perfection by serving the human
capacity for anticipating pleasure and pain. The security of expectations
established by the law makes it possible to form “a general plan of
conduct and to unite our present and future existence.” What is secured
is the “persuasion of power to derive certain advantages” from some
object or condition, whether it be wealth, reputation, bodily safety,
power, rank, or condition in life “ that is to say, property in its broadest
sense “ “It is the law alone which allows me to forget my natural weak-
ness” and to “enclose a field and give myself to its cultivation, in the
distant hope of the harvest.” And therefore, the security that the law
brings is an “inestimable good” and “the distinctive mark of civilization,”
and law “is the most splendid triumph of humanity over itself.”51
Even without law, people have a “certain expectation of keeping
what each one had acquired” and in this sense, there may exist “a feeble
kind of property” without civil society. But despite this echo of Locke,
Bentham does not conclude that there are “natural” standards for law. He
is arguing rather that in framing law, one has to build on whatever
expectations already exist and that no legislator can ignore “a multitude
of expectations, founded upon ancient laws or ancient usages.” If he
wishes to make a law that violates established expectations, he must
arrange for it to take effect at a time distant enough to allow people
leisure “to prepare for the new order of things.”52 The legislator™s duty is
to maximize the satisfaction of desire for the community as a whole.


50
Works, I:163, “Promulgation of Laws.”
51
Works, I:307“9, “Principles of the Civil Code.”
52
Ibid., 323.
168 The modern quest

This view of legislation endows adjudication with a character very
different from its traditional one. The judge™s task is not to decide what
rules of law mean in the circumstances of particular cases or to determine
what rights are protected by law. Instead, the judge™s function is to resolve
conflicts of interests; judges turn into arbitrators. Consequently, if they
can settle disputes by mediation without going to trial, so much the better.
It is only when the parties refuse to accept mediation that the judge has to
impose a decision, as a settlement reached by negotiation is far more
desirable than adjudication. Thus, in the context of Bentham™s third
theory of law, adjudication ceases to be intrinsic to the idea of law and
becomes merely a last resort when the arbitration of disputes fails.

IV
Bentham™s fourth theory of law appears when he turns to the reform
of law by codification, the key to which he had found in the principle of
utility. Law codified in this fashion could make the law so accessible
to every citizen that they would have no need of intermediaries to disen-
tangle the obscurities of professional jargon or to find the law that
pertains to their circumstances. “Every man has his determinate measure
of understanding: the more complex the law, the greater the number of
those who cannot understand it.” Complexity produces not only wide-
spread ignorance of the law and reluctance to consult it on appropriate
occasions, but also “false expectations” and deceptions. What is wanted is
“a manual of instruction” simple enough in both style and arrangement to
be consulted by any individual without the aid of an interpreter.53 But in
law that grows haphazardly there can be neither clarity nor completeness.
To look for “a plan” in heaps of ordinances is as hopeless as “searching
for an order of architecture amidst the huts of a village.”54 Only a code
constructed on the principle of utility can collect and condense “the vast
and hitherto shapeless expanse of jurisprudence” into “a compact sphere
which the eye at a moment™s warning can traverse in all imaginable
directions,” with no danger of encountering “terrae incognitae” or “blank
spaces.”55 Clarity and completeness are achieved by systematic formula-
tion in terms of a single “natural” principle that accords with common
sense, that is to say, the principle of utility: “The principle of utility directs
all reasons to a single centre: the reasons which apply to the detail
of arrangements are only subordinate views of utility.”56 A “natural
53
Ibid., 324.
54
Works, I:159, “Promulgation of Laws.”
55
Laws in General, 246.
56
Works, I:162, “Promulgation of Laws.”
Jeremy Bentham 169
arrangement and a familiar nomenclature” permit laws derived from the
principle of utility to be as simple in form as in foundation.57 Because
everything is “recorded and displayed to view,” every citizen has at hand a
repository of “the whole system of the obligations which either he or any
one else is subject to,” and he need but open the book in order to inform
himself “what the aspect borne by the law bears to every imaginable act
that can come within the possible sphere of human agency: what acts it is
his duty to perform for the sake of himself, his neighbour or the public:
what acts he has a right to do, what other acts he has a right to have
others perform for his advantage.”58
Against critics who argue that no code could make the law accessible
in this fashion because it is impossible to foresee all the circumstances that
require regulation, Bentham replied with a distinction between events “in
specie” and events “in general:” “I acknowledge that it is not possible to
foresee them [events] individually, but they may be foreseen in their
species. . . With a good method, we go before events, instead of following
them; we govern them, instead of being their sport. A narrow-minded and
timid legislature waits till particular evils have arisen, before it prepares a
remedy; an enlightened legislature foresees and prevents them by general
precautions.”59 The completeness of a code is guaranteed not by the
inclusion of rules for all possible events, but by systematic organization:
“as every individual is contained within its species, so is every species
within its genus.”60 Once the relations of all the parts are openly dis-
played, it is easy to move by obvious steps from any one part of the code
to another and from general concepts to specific duties. Everyone could
then understand what the law is, and lawyers and officials would lose their
monopoly in knowledge of the law.
In Bentham™s eulogies of codification and in his conception of a code as
a system of rules derived from a single principle, law is identified with
fixed rules that can automatically yield the right answer to every legal
question. Bentham has, as a result, been described as an advocate of
“mechanical jurisprudence.” That description is mistaken because it
ignores much else that he says. For when he addresses himself to the
character of adjudication, he draws a very different picture of law. Al-
though here, as in his discussion of common law, Bentham condemns
judicial legislation and sometimes speaks of the judge in a wholly trad-
itional manner as having to decide, for instance, whether a law regulating

57
Works, I:324, “Principles of the Civil Code.”
58
Laws in General, 246.
59
Works, III:205, “General View of a Complete Code of Laws.”
60
Works, IV:538, “Codification Proposal.”
170 The modern quest

the export of corn is relevant for maize,61 in his detailed proposals for
adjudication under a code Bentham advocates wide powers of discretion
for judges.
He rejected the traditional regard for separating adjudication from
legislation, which had been formulated as a theory of checks and balances
by Montesquieu and had become generally accepted in England by
Bentham™s time. Against this view, Bentham argued that the separation
of powers is irrational because it attempts to prevent officials from abus-
ing their power by removing their power. Moreover, dividing government
into separate powers violates the principle of simplicity, complicates the
machinery of government, and imposes unnecessary and great costs.
Perhaps in a corrupt government the independence of the judiciary might
be a useful corrective, but in any other circumstances it is intolerable.
For all these reasons, Bentham regarded the limits on the discretionary
power of judges imposed by the separation of powers not as a virtue but
as a defect. The fear entertained by advocates of the separation of powers,
i.e., that allowing judges to depart from established rules would give them
arbitrary power, is groundless, Bentham argued, because there is no evil
in arbitrary power as such. Only its consequences are evil when they entail
harm or pain to individuals: “In the hands of a judge, power, in whatso-
ever degree arbitrary, is no otherwise an evil, than in so far as its effect is
to produce evil in a tangible shape “ to wit, human suffering “ in the
breasts of individuals.”62 In order to decide whether judicial discretion is
desirable, we have to ask whether allowing judges to depart from estab-
lished rules will produce more or less evil than strict adherence to them.
Although he had earlier criticized the common law for failing to pro-
vide clear and fixed rules, Bentham later became persuaded that strict
adherence to rules produces greater evil than judicial discretion. As rules
are devised by legislators for an indefinite number of unknown cases, they
cannot be sensitive to the special features of any particular case. Judges
who are obliged to rest their decisions on inflexible rules cannot tailor
their decisions to the circumstances and interests of the parties before
them; the grounds for their decisions are the wholly different circum-
stances and interests of previous cases. Therefore, where an inflexible rule
governs, “the chances against its not producing evil in excess, are as
infinity to one.” In order to minimize evil, “the main caution is, in no
case, on no occasion, to lay down inflexible rules.”63


61
Laws in General, 158.
62
Works, II:31, “Principles of Judicial Procedure.”
63
Works, II:31, “Principles of Judicial Procedure.”
Jeremy Bentham 171
The intricate maze of the law of evidence and procedure, which grants
exclusions and privileges, allows presumptions, and lays down formulas
for weighing evidence, serves only to distort adjudication. Of course,
evidence, as “even justice itself, like gold,” may be bought too dear and
“always is bought too dear, if bought at the expense of a preponderant
injustice.”64 But the foundation of justice is truth, and more rather than
less evidence makes it easier to get at the truth. Procedural rules rest on
the supposition that unjust decisions can be avoided by excluding evi-
dence. In reality, “the effect, or tendency at least, of exclusion put upon
evidence, is “ to give encouragement and increased probability to crimin-
ality, and delinquency, and transgression, and wrong, in every imaginable
shape.”65 Where abstract rules made by distant legislators exclude evi-
dence, there is likely to be misdecision for want of evidence. All evidence
should be prima facie admissible, and what is not admissible in a case
should be decided by the judge. No case ought to be dismissed automatic-
ally for violating procedural rules, for only judges can determine whether
the ability of the court to get at the truth in the case before them has in
fact been jeopardized.
Indeed, the ideal procedure for a court is the same as that of a
domestic tribunal, the only difference between the two being “the neces-
sary enlargement and diversification, correspondent to the difference in
magnitude.” The domestic tribunal is for Bentham the model of a “nat-
ural” system of justice. There anyone can see that doing justice “is in itself
simple” and nothing but what “every intelligent father of a family” does,
rather than regarding it as a “matter of an art or science.” Because there
are no rules in a domestic tribunal, professional intermediaries are not
needed, and attention is focused, where it should be, on the dispute
between the parties.66
As another example of a natural system of justice, Bentham cites the
Turkish cadi who sits at his gate and informally hears complaints, and
without delay of pleading or the intervention of officials issues his defini-
tive command on the spot. Also, even in England, Bentham discovered a
golden age ruled by a “natural system.” It flourished before the Normans
arrived in the Saxon manorial and its hundreds of courts, a judicature
that consisted of numerous small local and informal tribunals. Then it
was no more likely that a suitor would be denied the services of a judge
than that the children in a private family should be excluded from the


64
Works, VII:336, “Rationale of Judicial Evidence.”
65
Works, VI:87, “Rationale of Evidence.”
66
Works, V:438, “Justice and Codification Petitions.”
172 The modern quest

presence of their father. When the Normans replaced the Saxon tribunals
with itinerant officials exercising broad powers, the administration of
justice became centralized, complicated, and bedeviled by an unfamiliar,
technical language remote from the daily experience of ordinary people.
From Norman centralization arose the monopolistic, artificial, and
inaccessible structure of the common law.67
Bentham™s attack on rules of procedure and evidence and his advocacy
of a “natural system” were in part directed against the mystifying irration-
alities of the English law that he knew. A private family with half a dozen
members, Bentham said, could not “subsist a twelvemonth under the
governance of such rules.”68 His criticisms and suggestions were so much
to the point that they played an important part in the reform of the law of
evidence in the course of the nineteenth century. But making English law
“simpler, more like common sense, better expressed, better known, and
better understood” was not Bentham™s only concern.69 But his eulogies of
the “natural system” were derived from a corollary to the principle
of utility, the “non-disappointment” or “disappointment minimizing”
principle, which Bentham praises for giving the true meaning of justice.
It requires that “On every occasion, in so far as benefit in any shape is the
subject-matter of dispute, the question being, to which of a number of
parties the possession, present or future, in whole or in part, shall be
adjudged, “ the manner in which for that purpose disposition will be made
of it, is that by which, among all the interessees taken together, least
disappointment will be produced.” Whereas the legislator ought to give
preference to that interest by “which the happiness of the greatest number
will be most augmented,” judges should balance the utilities of the two
parties before them. In this balancing, the utility of non-disappointment
carries the most weight. The only way to give “any determinate import”
to the term “vested rights” is by employing the non-disappointment
principle: “In case of a right being taken away from a man, if the
attributive vested be attached to it, what is thereby meant to be asserted
is “ that the pain of disappointment thereby produced in his instance is
greater than would be produced by the loss of that same right if the
attributive vested were not with propriety applicable to it.”70
The non-disappointment principle makes it clear that the aim of justice
is to protect expectations, which is the only thing that “men mean, if they
mean anything. . . when they appeal to ˜the first principles of justice™.” But

67
Works, V:448“49, “Petition for Justice,” VII:598“9 “Rationale of Judicial Evidence.”
68
Works, VI:205 “Rationale of Judicial Evidence.”
69
Hart, Essays, 32.
70
Bentham, Works, III:388, 388 n. 212, “Equity Dispatch Court Bill.”
Jeremy Bentham 173
justice may be pursued directly or indirectly. When judges are compelled
to abide by rules, justice is pursued indirectly. The rational way is the
direct way whereby judges clearly and self-consciously apply the non-
disappointment principle to arrive at their decisions: “a much better
chance for prevention of disappointment will be obtained, by aiming at
that object immediately, than by aiming at it through so unconducive, and
in every respect unapt a medium” as rules.71 The proper way for judges to
arrive at their decisions is to consider within themselves as if they were
each of the parties in the suit before them and ask themselves: What
would impose the least disappointment on themselves? Whatever benefit
is in question, it should be given to that party which will suffer the greatest
disappointment by losing the suit. If the issue is about the keeping of a
contract, it should be decided by the non-disappointment principle, not
by whether the technical procedures for making a contract have been
observed.
Just how the non-disappointment principle could operate in cases
where murder is at issue, Bentham does not explain. It is difficult as well
to see how a judge could compare expectations in cases where one of
the parties is the civil authority. Bentham ignored such questions because
his attention was fastened on private disputes and on the interests of the
individuals involved. Moreover, he understood the “public interest” as
nothing other than a sum of individual interests.
As early as the Comment on the Commentaries, where he insists on
stare decisis, Bentham introduced something like his later non-
disappointment principle. The “business of the Judge,” he says there, is
to keep “the distribution of valuables and of rewards and punishments. . .
“ conformable to what the expectation of men concerning them is, or if
apprized of the circumstances of each case, as he is, he supposes would
be.” And he also suggested that judges should put themselves in the place
of the parties to the suit and “to pronounce from such lights, and from
such lights only, as can appear to the judges.”72 In this way, judges can
avoid the danger that the measurement of expectation will be distorted by
the efforts of each party to exaggerate the intensity of his expectation.
What changed in Bentham™s later advocacy of adjudication on the
non-disappointment principle was not his aversion to judicial lawmaking,
but his belief in the possibility of combining flexibility with stability.
Bentham became persuaded that he had found a way to preserve both
by allowing judges to depart from the code but forbidding them to alter


71
Works, III:312, “Equity Dispatch Court Proposal.”
72
“Comment on the Commentaries,” 197.
174 The modern quest

the rules of the code or to set any precedents for later decisions. No
judicial decision was to affect anything other than the case to which it
pertained. Every decision was to be based on a calculation of the utilities
in each particular case without considering the effects on the community
as a whole. The judge could, however, propose changes in the code, which
would be considered in an emendation procedure quite distinct from
adjudication where the legislator will make the final decision on the
changes in the law. Thus, the experience of judges would be harnessed
to emendation of the code without derogating from the legislator™s exclu-
sive power to make law. And security of expectations was protected both
by proscribing judicial legislation and by leaving the judge free to do
justice to the distinctive utilities in each case.
Because adjudication based on the non-disappointment principle ad-
dressed itself directly to satisfying the known interests of known individ-
uals, it did away with the need for special equity courts. All courts would
address themselves to doing justice in each particular case. Instead of
being hampered by complicated, incomprehensible, and inflexible rules,
judges operating on the non-disappointment principle could, without
delay, give decisions precisely directed to the circumstances of each case.
Thus, Bentham™s non-disappointment principle made law one with
equity.

V
As so much is provided for by direct appeal to the principle of utility and
its corollaries, why should a code be needed? The answer to this question
reveals a fifth theory of law.
Bentham suggests several, not wholly compatible, functions for a code.
One is that of a handbook for judges, indicating their powers and object-
ives, reminding them of the utilities to be calculated and compared, and
generally focusing their attention on the relevant considerations. Here the
code is not a real legal landscape, but a map that enables both the citizen
and the judge to trace the route required by the principle of utility
regarding any “imaginable act that can come within the possible sphere
of human agency.”73 Far from being “a collection of peremptory ordin-
ances,” the code is rather a source from which the judge draws inspiration
for his reasoning, where he finds “all the considerations capable of
affording proper grounds” for his decision without being constrained
by any.74

73
Laws in General, 246.
74
Works, IV:479, “Papers on Codification.”
Jeremy Bentham 175
But the code acquires another, more decisive, role and becomes a real
legal landscape when Bentham says that it lays down rules that serve for
most cases, and that judicial decisions merely provide the fine tuning to
particular circumstances. Here the judge exercises discretion only when
equity requires correction of the code and acts as a “counsel” to the
legislator, who retains firm control of the scepter: “the simplicity of the
legislative plan would be preserved from violation: the corrective applied
would be applied, not in the obscure, voluminous and unsteady form
of customary jurisprudence, but in the concise and perspicuous form of
statute law.”75
At other times, however, Bentham writes as if a good utilitarian code
would make adjudication altogether redundant. The judge is needed
for uncodified law because that is full of “oversights and omissions”76
and fails to specify completely the actions denoted by words such as
“murder,” “robbery,” “fraud,” “words of which no tolerable definition
seems ever yet to have been given.”77 If judges did not complete the work
of the legislator, such law would remain impotent. But codifiers armed
with the principle of utility can fill in all the details precisely. They need
only be given information on the present laws of a country, its geography,
and the manners and religion of the people in order to provide a truly
complete legal system. Of course, they would have to observe certain rules
“respecting the method of transplanting laws” and calculate the dissatis-
faction that a change in laws might arouse; they should introduce more
familiar laws first and remain patient if the people are at first antagonistic.

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