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But as the same motives and passions operate in all men, if the laws are
rational, the people will be able to see the salutary effects at once. The
utilitarian codifier can draw up, for any and every country, codes that
provide for every contingency.
When he is writing in this vein, Bentham suggests that a good utilitar-
ian code will automatically yield indisputable decisions. It would require
neither schools to explain it nor casuists to unravel its subtleties: “It
would speak a language familiar to everybody: each one might consult
it at his need. It would be distinguished from all other books by its
greater simplicity and clearness. The father of a family without assistance
might take it in his hand and teach it to his children, and give to
the precepts of private morality the force and dignity of public morals.”78
In this context, law becomes a technical calculation that anyone might
and should make.

75 76 77
Laws in General, 241. Ibid., 239. Ibid., 183.
Works, III:209, “General View of a Complete Code of Laws.”
176 The modern quest

This view of law dominates Bentham™s discussion of the right to resist
observance of the law. Although he dismissed the argument that an
authentic legislative enactment is not law when it fails to conform to
natural law as pernicious nonsense, he commended resistance to law on
utilitarian grounds as rational and even obligatory. He found an obvious
example of a law deserving such resistance in a statute passed by the
English Parliament under Henry VIII, when it “made over its whole
power to the King alone.” Were that to happen again, Bentham declares
himself ready to “take up arms, that is if I can get what I think enough to
join with me: else I will fly the country. I well know I shall be a Traitor
and a Rebel: and that as such the Legislature would act consistently and
legally in setting a price upon my head.” Nevertheless, as such a law
would destroy the Constitution, which is “more highly conducive to the
happiness of those who live under it than any other yet exemplified,” there
could be no doubt that the mischiefs produced by obeying the law would
exceed the mischiefs produced by rebellion.79
For each individual a “juncture for resistance” is reached when
“according to the best calculation he is able to make, the probable mis-
chiefs of resistance (speaking with respect to the community in general)
appear less to him than the probable mischiefs of submission.”80 The mere
fact of dissatisfaction is not enough to justify rebellion. One has to
calculate carefully: “Of the two masses of evil, “ intensity, duration,
certainty, all included “ which appears to be the greatest, that to which
one believes one™s self exposed from continued obedience, or that to
which one believes one™s self exposed by its discontinuance?” In addition,
one has to consider whether there is likely to be enough support for
rebellion, since disobedience by just one or a few individuals will merely
be punished. One has to ask: “On which side is the greatest probability of
success? On the side of the satellites of the tyrant, who will endeavor to
punish me in case of disobedience? or on the side of the friend of liberty,
who will rally around me to defend me against oppression?” Like all other
questions about human conduct, this “is an affair of calculation” that
“each one must make for himself according to circumstances,” which
indeed all do make even if they do not realize that they are using the
principle of utility.81
But in the Fragment on Government, Bentham pointed out that though
each man may calculate for himself whether resistance is desirable, there is
no “common signal alike conspicuous and perceptible to all” that makes it

“Comment on the Commentaries,” 56“57.
“Fragment on Government,” 491.
Works, III:219, “Pannomial Fragments.”
Jeremy Bentham 177
clear that others have reached the same conclusion. And because there is
no such common sign, the sovereign™s power must be “allowed to be
indefinite.”82 This qualification disappears once Bentham turns from
arguing against doctrines of natural rights to explaining the principle of
utility, where one™s duty to obey the law rests on nothing other than the
balance of utilities. At no time, however, does Bentham allow an appeal
to “rights.” Claims based on the principle of utility are not universal
“rights,” he points out, because they are necessarily personal rather
than general, and they are bound to fluctuate over time. And there are
no non-legal rights: only the sovereign power can create rights.
His belief in the possibility of reaching rational agreement by adopting
the principle of utility as the criterion of correct reasoning led Bentham
to propose that instead of binding judges by procedural rules, they should
be made accountable by “publicity.” Different ways of making judges
accountable without binding them by procedural rules were considered by
Bentham. He devised an administrative structure for the judiciary in
which each judge is made answerable to a superior. In the 1790s and
again in the 1820s, he advocated that judges be elected and made subject
to recall. But most persistently, he extolled the value of “publicity,” that is
to say, exposing judicial decisions to public censure as the most effective
way of controlling judges. He called this the “principle of dependency”:
“Publicity is the very soul of justice. It is the keenest spur to exertion and
the surest of all guards against improbity. . . It is through publicity alone
that justice becomes the mother of security. By publicity, the temple of
justice is converted into a school of the first order, where the most
important branches of morality are enforced, by the most impressive
means. . . Without publicity, all other checks are fruitless: in comparison
of publicity, all other checks are of small account.”83 Keeping the judge
under the eye of the public has the added advantage that not only is
justice more likely to be done, but it will also be seen to be done. The
security of the whole will be promoted because the “appearance” of
justice helps to persuade the public to approve of judicial decisions.
The public is enabled to scrutinize judicial decisions by the requirement
that judges give an account of the reasoning that supports their conclu-
sions in terms of the principle of utility. If he departs from the established
rules, his reasons will indicate “the evil which, in the individual case in
question, would result from compliance with the rule: and with a proof,
that by the aberration, either no evil in any shape has been produced, or

“Fragment on Government,” 491“2.
Works, IV:316“17, “Judicial Establishment.”
178 The modern quest

none but what has been outweighed by concomitant good.”84 The public
can then easily check judicial reasoning, and every trial in a court of law is
at the same time a trial of the presiding judge before the court of public
Bentham™s faith in exposing officers of government to public criticism
appears even in his very first publication, the Fragment on Government.
What distinguishes a free constitution from despotism, he argues there,
is not adherence to stable rules and procedures, but public discussion
and judgment of whether those who govern are producing desirable
results. What matters is the subject™s right of having the reasons for every
act of the government publicly assigned and canvassed and the ease with
which everyone, whatever class, may make complaints known to the
whole community, concert with others, whether through the press or
meetings, to express opposition short of actual revolt. There is no need,
then, to worry about the difficulty of interpreting judicial decisions or
about disappointing expectations by departures from precedent because
everything is to be settled by the principle of utility.
Whereas in his early writings Bentham stressed the conflict of interests
between ruler and ruled, later his emphasis fell on the likelihood of
reaching rational agreement once the principle of utility governed public
discourse. A hint of this line of thought appears in the Fragment on
Government, where he says that a calculation of utilities provides “a plain
and open road, perhaps, to present reconcilement: at the worst to an
intelligible and explicit issue, “ that is, to such a ground of difference as
may, when thoroughly trodden and explored, be found to lead on to
reconcilement at the last. Men, let them but once clearly understand one
another, will not be long ere they agree.” What prevents such agreement is
merely the “perplexity of ambiguous and sophistical discourse,” which on
the one hand, “distracts and eludes the apprehension,” and on the other,
“stimulates and inflames the passions.”86 Later, Bentham altogether dis-
missed the peremptory nature of law and replaced the idea of obligation
with that of rational assent. Assent is achieved by requiring that every
legal rule and decision be supported by a public justification that can
persuade those subject to the law of its desirability. Mere obedience to the
law is no longer enough; how obedience is secured becomes all-important.
Where the law is sustained only by fear of punishment, there is no rational
assent; one will is merely imposed upon another. Such a regime fails to

Works, II:32, “Principles of Judicial Procedure.”
Works, IV:316“17, “Judicial Establishment.”
“Fragment on Government,” 492.
Jeremy Bentham 179
respect the rationality of its citizens and cannot be stable: “Power gives
existence to a law for the moment, but it is upon reason that it must
depend for its stability.”87 In order for law to receive rational assent,
every law and legal decision has to be supported by reasons that can
justify it. The reasons should be articulated in a way that allows everyone
to understand and assess them: “The catechism of reasons is worthless, if
it cannot be made the catechism of the people.”88 Talk of “justice” is not
merely insufficient, but a threat to rational criticism of the law because it
appeals to feelings rather than reason and makes it easy to conceal the
defects of the laws with colorful language.
The principle of utility provides a language that renders public account-
ing accessible to all. Everyone can understand it, and no one can use it to
impose prejudice and superstition because the principle of utility “holds
up to view, as the only sources and tests of right and wrong, human
suffering and enjoyment “ pain and pleasure. It is by experience, and by
that alone, that the tendency of human conduct, in all its modifications, to
give birth to pain and pleasure, is brought to view.”89 The principle of
utility thus exposes the law and all decisions to rational criticism. Such
criticism, far from encouraging popular discontents, offers the best pro-
tection against them. Where discontents can be aired, there is no danger
of unpredictable explosions of rebellion. Where citizens can scrutinize the
laws and decisions by which they are governed and are persuaded that
they are desirable, their obedience is rational and willing. Moreover, in
the course of assessing the law rationally, citizens learn to think in terms
of the greatest happiness. They come to realize that they can gain support
only for measures that are beneficial to a substantial number of other
people, since “For the gratification of any sinister (i.e., purely private
interest) at the expense of the universal interest,” individuals “cannot
hope to find co-operation and support from any considerable number
of his fellow-citizens.”90 In all these different ways, exposing law to
public criticism will ensure that the law is obeyed without imposing any
Thus, in his enthusiasm for the principle of utility, Bentham replaced
not just coercion with persuasion, but the rule of law itself with persua-
sion. He still held that since not everyone may stop to calculate utilities or
calculate correctly or abide by the conclusions, punishment is needed.

Works, IV:310, “Judicial Establishment.”
Works, I:163, “Promulgation of Laws.”
Works, VI:238, “Rationale of Judicial Evidence.”
Works, IX:100, 63, “Constitutional Code.”
180 The modern quest

Here, however, punishment is no more than the rabbit™s foot used by the
vestryman to prod dozing parishioners.

Each of Bentham™s five different theories of law is inspired by a different
project: when arguing against the common law, he identifies law with
fixed rules that are not to be changed by judges. In opposition to doctrines
of natural law and natural rights, he formulates the “command theory” of
law, which identifies law with the sovereign™s commands enforced by
coercion. When using the principle of utility to reform the law, Bentham
converts law into an instrument for satisfying the interests of the members
of civil society. In considering the adjudication of a case, he identifies law
with equity. And finally, as his enthusiasm for the principle of utility
becomes boundless, he suggests that law could be replaced by calculation
and persuasion.
What is missing in all five of Bentham™s theories of law is the idea of
authority. Because Bentham dismissed the idea of authority as a mislead-
ing fiction and insisted that civil society rests on a habit of obedience, he
could not avoid making a legal command indistinguishable from an
exercise of power. The principle of utility enabled Bentham to disengage
law from an exercise of power without having to acknowledge the idea of
authority, but it was at the cost of repudiating the idea of law. Only his
wonderful ingenuity preserved Bentham from doing so explicitly.
Bentham™s more immediate disciples, who wrote in the Westminster
Review, lacked his fertility of mind and succeeded in making plausible
Dickens™s caricature of Benthamism in his picture of Gradgrind, who
answered every human question with heartless calculations and syllo-
gisms. The most influential disciple of Bentham was John Austin, who
in 1826 became the first professor of jurisprudence in the University of
London. He extracted from Bentham™s elaborate reflections on law one
strand, which became known as the “command theory of law.” From
Bentham™s insistence that mandates, degrees, orders, edicts, and regula-
tions are all laws because anything commanded by the sovereign is law,
Austin arrived at a definition of law as a command that excluded any
distinction between a general rule stipulating conditions to be met and an
order to perform a particular act. Austin also adopted an instrumental
view of law, that is to say, he regarded law as the instrument of a
government that also acts as a “trustee” of the people, as suggested by
John Locke. In addition, Austin™s emphasis on the logical distinction
between the law as it “is” and the law as it “ought” to be, without any
reference to ideas such as Hobbes™s concept of authority, led both
Jeremy Bentham 181
disciples and critics of his theory to conclude that to insist on distinguish-
ing between what the law “is” and “ought” to be implies that any consid-
eration of why a legal system or a law is desirable is irrelevant to an
adequate understanding of the rule of law. This reaction came to be
identified as the “positivist” view of law.
It was by association with Austin that Bentham became known as the
father of “positivist” jurisprudence. In truth, however, he had a far more
complicated view of law. In the course of his many and varied writings on
law, he elaborated one or more of the following five themes in jurispru-
dence: (1) that a legal decision is necessarily an exercise of power; (2) that
a legal decision in a court as well as in a legislature is an arbitration
among conflicting interests; (3) that what matters in adjudication is not
respecting the established rules but reaching the right decision, in other
words, that there is no distinction between law and equity; (4) that any
uncertainty in a legal decision destroys its legal character; and (5) that the
obligation to obey the law rests on assent to it. Bentham™s resourceful
journey from an assault on the common law to basing civil peace on
rational assent encapsulates the much cruder movement in this century
from an unwitting repudiation of the idea of authority to the conclusion
that the only way to preserve justice is to dispense with the rule of law.
Part IV

The signi¬cance of rules
10 From historical jurisprudence to Realism:
Savigny, Jhering, Duguit, Holmes,
Gray, Frank

The disciples of Kant and Bentham accepted the traditional view that
law consists of stable, non-instrumental rules. But they produced highly
simplified versions of their masters™ theories and ignored or disparaged
the need to consider how such rules can accommodate the contingency of
the human world. As a result, their critics found it plausible to conclude
that equating law with stable, non-instrumental rules turned it into a non-
human mechanism. That conclusion provoked a reaction against what
was described as “mechanical jurisprudence,” which culminated in an
attack on the identification of law with rules, an identification which
has since become known as legal formalism.1 The attack moved on to
blur or deny the distinction between legislation and adjudication, and
ultimately to a repudiation of the traditional idea of law.

Friedrich Karl von Savigny
At first, however, the reaction against mechanical jurisprudence took the
innocuous shape of a new interest in the historical character of legal
systems. Friedrich Karl von Savigny, who initiated this development with
his studies in Roman law, did not in any way challenge the traditional
idea of law. What he opposed was the disposition to liken law to a system
of mathematics that can be deduced from axioms, an analogy that
appealed to those who saw in codification the universal remedy for all
defects in a legal system. Savigny argued that the character of law is rather
like that of a language, about which rules can be formulated but whose
complexity can never be fully expressed by such rules.

Cf. P. S. Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law
(Oxford: Clarendon, 1987); Robert S. Summers, “The Formal Character of Law,”
Cambridge Law Journal 51 (July 1992): 242“62.

186 The significance of rules

Against the codifiers who believed that there were abstract principles
from which law could be deduced, Savigny insisted that law can only be
understood as a development over time. This does not mean that Savigny
substituted principles drawn from history for principles drawn from
reason. Although he advised his contemporaries to acquaint themselves
with Roman law, it was not in order to discover the essential principles of
law, but to become familiar with the texture of a peculiarly rich and
orderly legal system.
Because Savigny rejected the entire notion of law™s essence consisting in
abstract principles, he understood the development of law differently not
only from Kant, but also from Hegel. With Hegel he conducted a vigor-
ous debate on the desirability of codifying German law. Hegel regarded
law as the concrete embodiment of reason in history, and he saw progress
as the increasing incorporation of reason in concrete human institutions.
Hegel therefore contrasted the rationality, objectivity, and permanence of
the law to the irrationality, subjectivity, and contingency of individual
acts of will.2 Although he had no use for attempts such as Kant™s to
deduce law from formal universal principles, he saw in codification an
advanced effort to give reason objective embodiment and accordingly
condemned Savigny™s views as an insult both to the nation and to the
legal profession.
But if Savigny did not regard law as an embodiment of reason or a
deduction from reason, he neither denied its rationality nor opposed
changing law. He even praised some attempts at codification. His argu-
ments were directed against those who would jettison a legal heritage by
assuming that its subtlety and variety could be comprehended by any one
set of men at any given time and place, or by thinking that, as Thomas
Jefferson said, “every law, naturally expires at the end of 19 years.”3
Savigny™s thesis was that the law, like all human institutions, had been
made by thinkers and statesmen who knew which way to turn their feet
without knowing the final destination. The law of the present had been
developed over many centuries by men working in a variety of circum-
stances for a variety of purposes. The unintended consequence of numer-
ous acts with more particular intentions was the blending of rules of law
into an organic whole that could not be deduced from any simple set of
principles. Therefore, both in its structure and in its mode of change, law
is not like mathematics or logic, Savigny argues, but rather like language.

Frederick Hegel, Hegel™s Philosophy of Right, trans. T. M. Knox (Oxford: Clarendon,
1942), 140“41.
Thomas Jefferson, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York:
Library of America, 1984), 936.
Savigny, Jhering, Duguit, Holmes, Gray, Frank 187
This analogy to language implied that law is to be understood as an
abstraction from a totality of ideas and habits and procedures that
constitute the life of the community, which Savigny described as the
Volksgeist. By using this term he did not mean either that there is a
generic difference between the laws of different countries attributable to
a national spirit or that justice could be dispensed directly from the
Volksgeist by a leader, as Carl Schmitt later maintained. Lawmaking
rightly understood, according to Savigny, is an act of self-conscious
articulation of what had previously been embedded in the custom of the
community. It does not follow that the law must remain unchanged,
but that it does not change by acts of creation out of nothing. There
can be no absolute beginning or end to law; all jurists, insofar as they are
conversant with the law, must carry in their modes of thought legal
concepts and practices of the past; and if they attempt to change the
law by applying the dissecting knife of codification, they run the risk of
cutting through sound flesh and producing a monstrosity. Any attempt to
reduce to a systematic unity what had developed over centuries would
necessarily ignore and destroy the complexity that had made the legal
inheritance so rich and valuable.
Savigny maintained that interpreting the law is no more mechanical
than legislation. No code and no command can relieve the judge of an
obligation to interpret the law. Adjudication was described by Savigny as
an act of imagination in which the judge reproduces within himself the
activity of the legislator. And he warns that either to tie the judge to a
mechanical application of a text, or to give him leave to make the law for
every case, would destroy the security of law against the encroachments of
caprice and dishonesty.4
Savigny™s contribution to modern jurisprudence lay in his effort to
make plain how contingency is combined with stability in the law. He
denied that contingency could be eradicated, but believed that neverthe-
less stability is possible. The stability of the law, he tried to show, is based
on continuity.
But this was not what his admirers and would-be disciples drew from
him. His admirers learned from his work that it is a mistake to preserve
the ancient distinction between law and custom and to identify law with
formally recorded rules. Some of his disciples converted his emphasis on

See Frederick von Savigny, System of the Modern Roman Law, vol. I, trans. William
Holloway (Madras: Higginbotham, 1967), 171, iv“v, 13, 16; Savigny, Of the Vocation of

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