## 1. Life and Writings



Jeremy Bentham was born on 15 February 1748 and died on 6 June 1832 in
London. He was the elder son of an attorney, Jeremiah Bentham
(1712-92) and his first wife, Alicia Whitehorn (d. 1759), and
brother to Samuel (1757-1831), a naval architect and diplomat.
Bentham's later interest in educational reform was rooted in his
unhappy experiences at Westminster School (1755-60) and
Queen's College, Oxford (BA 1763, MA 1766). He described
Westminster as "a wretched place for instruction"
(1838-43, X, 30), while his three years at Queen's, which
he entered at the age of twelve, were no more stimulating. He viewed
the Oxbridge colleges as seats of privilege, prejudice and idleness.
His Oxford experience left him with a deep distrust of oaths and
sparked a general antipathy toward the Anglican establishment (2011,
35-40). In the early 1770s, he jotted down notes for a critical
work on "Subscriptions [to articles of faith]" (UC v,
1-32; xcvi, 263-341), and returned to the same theme in
the controversial tract *Swear Not at All* (1817).



Following Oxford Bentham attended the Court of King's Bench,
Westminster Hall as part of his preparation for a law career. There he
heard cases argued before Lord Mansfield, including the proceedings
against the radical journalist and politician John Wilkes. He returned
briefly to Oxford in 1763-64 to attend lectures given by William
Blackstone, the first Vinerian Professor of English Law, which were
published in four celebrated volumes as *Commentaries on the Laws
of England* (1765-69). Bentham was not impressed, detecting
glaring fallacies in Blackstone's natural law reasoning. In the
years following other aspects of Blackstone's theory received
his critical attention, notably his defence of England's
"mixed and balanced" government and English common law.
Thereafter Blackstone was associated in Bentham's mind with the
"every-thing-as-it-should-be" school of legal and
political apologetics.



Bentham was called to the Bar in 1769, but his legal career lasted
only one brief. In that year he discovered the utility principle and
related ideas in the writings of Hume, Helvetius and Beccaria
and chose instead a career dedicated to analytic jurisprudence, law
reform, and social and political improvement. Unaware of
Hutcheson's version of the utilitarian formula in *An Inquiry
into the Original of our Ideas of Beauty and Virtue* (1729),
Bentham was occasionally deceived by faulty memory into thinking he
had discovered it in Priestley's *Essay on the First
Principles of Government* (1768). More plausible, however, are his
claims to have found it in Beccaria's *Dei Delitti e delle
Pene* (1764), where the Italian law reformer announced that the
only valid criterion for evaluating the merits of a law is "la
messima felicita divisa nel maggior numero"--the
greatest happiness of the greatest number. In reading Hume's
*Treatise of Human Nature* (1739-40)--which declared
that all social inquiry should be based on the "experimental
Method of Reasoning"--Bentham found virtue equated with
utility, at which he "felt as if scales had fallen from my
eyes" (1776 [1977, 440n]). Having borrowed the nomenclature of
utility from Hume, Bentham then turned to *De
l*'*esprit* (1758), in which Helvetius
delineated the potential for utility to act as a guide to human
conduct by making a connection "between the idea attached to the
word ... 'happiness' ... and the ideas attached
to the words 'pleasure' and 'pain'".
This meant, as he recalled in the "Article on
Utilitarianism" (1829), that "attached to the words
'utility' and 'principle of utility' were now
ideas in abundance", from which "a commencement was made
of the application of the principle of utility to practical
uses" (1983a, 290).



Bentham's writings present distinct challenges for the historian
of ideas: the dates of publication are not always consistent with the
time of composition, in some instances with many intervening years; a
good number were published posthumously, and some have still to appear
in authoritative editions; many were produced, edited or translated by
other hands from original manuscripts with little authorial
control.



Bentham launched his career as a legal theorist in 1776 with the
anonymously published *A Fragment on Government*. This slim
volume is an offshoot of a larger critique of Blackstone that was not
published until the twentieth century, and is now known as *A
Comment on the Commentaries*. In the *Fragment* Bentham
stated the "fundamental axiom" that "it is the
greatest happiness of the greatest number that is the measure of right
and wrong", and "the obligation to minister to general
happiness, was an obligation paramount to and inclusive of every
other" (1776 [1977, 393, 440n]). In *An Introduction to the
Principles of Morals and Legislation* (*IPML*), his major
work of this early period, he described utility as "that
property in any object" which "tends to produce benefit,
advantage, good or happiness" (all commensurate terms in
Bentham's moral vocabulary), and the utility principle as
"that principle which approves or disapproves of every action
whatsoever, according to the tendency which it appears to have to
augment or diminish the happiness of the party whose interest is in
question" (1789 [1970, 12]). Bentham would give these basic
postulates exposition, argumentative support, and further refinement
in the decades following, but it was the operationalization of the
utility principle that absorbed most of his energy and time during a
long and highly productive working life.



In 1781, Bentham--who delighted in inventing new terminology to
describe philosophical concepts--coined the name
"utilitarian" in recording a dream he had while a guest at
the country estate of his patron, the Whig politician William Petty,
2nd Earl of Shelburne (1737-1805). In this dream he
imagined himself "a founder of a sect; of course a personage of
great sanctity and importance. It was called the sect of the
*utilitarians*" (text of the dream in Crimmins 1990,
314). It was through Shelburne that he became acquainted with the
Genevan exile Etienne Dumont (1759-1829), who was to play
a critical role in making Bentham's name and philosophy known in
continental Europe and elsewhere through the publication of a number
of translations and redactions of his early writings (1829-30;
see Blamires 2008). The most important of these were the three volumes
of *Traites de legislation civil et
penale* (1802) assembled from early manuscript drafts,
parts of *IPML* and other works. The first two volumes on civil
and penal law were later re-translated into English by the American
utilitarian Richard Hildreth and published as *The Theory of
Legislation* (1840 [1864]), a text that remained at the centre of
utilitarian studies in the English-speaking world through to the
middle of the twentieth century.



In 1786-87 Bentham visited Russia, where his brother Samuel was
in the pay of Prince Potemkin, the favourite of Empress Catherine.
There he wrote *A Defence of Usury* (1787), his first
contribution to economic affairs, in which he rejected Adam
Smith's defence of a legal maximum for interest rates. Bentham
argued that Smith's position was inconsistent with his general
advocacy of freedom of trade and would restrict economic growth and
national prosperity by deterring investment and innovation. The volume
later received high praise from J.S. Mill, who thought it "the
best extant writing on the subject" (1963-91, II, 923). It
received its widest audience in America, where it was reprinted on
many occasions and frequently cited in the debates over the usury laws
(Crimmins 2022, 53-54, 75, 209-11). It was in Russia, too,
that Bentham took an idea of Samuel's and developed it into the
"panopticon", the full dimensions of which he explained in
*Panopticon; Or, The Inspection House* (1791). The panopticon
is a building of circular design intended for any institutional
arrangement where the "inmates" required constant
supervision--such as hospitals, schools, workhouses and poor
houses--but the panopticon became most well-known as a prison for
"grinding rogues honest and idle men industrious"
(1838-43, IV, 342). Appalled by the inefficiency and inhumane
conditions in Britain's penal regime, Bentham developed the idea
of the panopticon penitentiary as a substitute penal system, in which
convicted criminals would be subject to a disciplinary regime based on
the maxim (penned in relation to his poor law writings of 1797, but
not then published) that "the more strictly we are watched, the
better we behave" (2001, 277). In achieving the ends of
punishment it represented a significant advance on the dilapidated
condition of England's gaols, the rat-infested hulks anchored in
the Thames and the practice of transporting convicts into penal
servitude in the colonies. In the years following, Bentham used this
critique as a platform to expand upon his general disdain for
colonies, first enunciated in *Emancipate Your Colonies!* in
1793 (2002, 289-313), to argue for a free, self-governing
community of settlers in southern Australia in "Colonization
Company Proposal" (1831 [2022]; see also Causer, Finn and
Schofield 2022).



Upon his return from Russia, Bentham was encouraged by Shelburne to
turn his attentions to foreign policy and international law. The term
"international" was coined by Bentham. He drafted short
papers on several topics that were later published under the general
title *Principles of International Law*. This work included, as
was then the philosophical vogue, "A Plan for Perpetual
Peace" and, uniquely, a proposal for an international court of
arbitration (1838-43, II, 535-71). Sympathetic to both
Russia and France at this time, in 1789 he issued a critique of Prime
Minister William Pitt's war-like stance towards these countries
in a series of letters in the *Public Advertiser* under the
nom-de-plume "Anti-Machiavel" (1838-43, X,
201-11).



The political upheaval in France provided Bentham with an opportunity
to put certain of his ideas into practice and also the context in
which he first developed the utilitarian logic of democracy based on
the identification of interests between the ruler and the ruled. He
nevertheless stopped short of publicly advocating parliamentary reform
in Britain and at this stage was very far from the republicanism he
adopted in later life (Dinwiddy 1975; Crimmins 1994; Schofield 2006).
With Dumont's assistance, in 1788 Bentham began sending
pamphlets of suggestions to the Comte de Mirabeau. In 1790 he wrote a
*Draught of a New Plan for the Organisation of a Judicial
Establishment in France* which, together with Dumont's
translation of parts of *Panopticon* and parts of *An Essay
on Political* *Tactics* dealing with the organisation of
legislative proceedings, was also placed before the French National
Assembly. The bloody excesses of the Terror reinforced his criticism
of the abstract and slippery nature of natural and imprescriptible
rights, which he famously dismissed as "nonsense on
stilts" (1795 [2002, 330])--a disposition formed while
listening to Blackstone's lectures and which shaped his
contribution to John Lind's *An Answer to the Declaration [of
Independence] of the American Congress* (1776). Nevertheless,
Bentham's efforts to stimulate reform in France were recognised
in the granting of honorary citizenship in September 1792.



When war broke out between England and revolutionary France,
Pitt's security measures made it precarious to engage in reform
activities at home, but Bentham's caution also stemmed from the
need to curry favour in official circles for the panopticon
penitentiary (Semple 1993, 187-90). The building of a new prison
in London had been authorised by the Penitentiary Act 1794 and
Bentham's plan initially received the support of the Pitt
administration. Over the years he devoted considerable sums of his own
money to the project, and published further material comparing the
merits of the panopticon with the disadvantages of the transportation
system (2022). In 1802, however, he admitted defeat, and in 1812 the
government officially closed the books on the whole sorry affair,
paying Bentham PS23,000 in compensation.



In the intervening years Bentham turned his attentions to poor law
reform, the reform of policing, economic and financial questions,
judicial administration and the rules of evidence--the last of
these being a product of his critique of the archaisms and confusions
of common law and the arbitrary character of "judge-made
law" (Postema 1989).



The essays on poor law reform from 1796-98 (2001, 2010a) were
partly stimulated by rising food prices and the resultant debate about
the treatment of the poor. The essays contained a plan for a system of
"industry houses" run by a joint-stock company (named the
National Charity Company) to house the indigent, provide them with
employment, and provide welfare services for the working poor, the
short-term unemployed and disabled or unwell (Bahmueller 1981). On
police reform, Bentham was in advance of the age in advocating
preventive policing and evidence-based crime analysis (see the essays
in Jacques and Schofield 2021). Bentham's writings on political
economy include *A Manual of Political Economy*
(1790-95), *A Protest Against Law Taxes* (1795),
*Supply without Burthen; or Escheat Vice Taxation* (1795),
"Circulating Annuities" (1799-1800), "Paper
Mischief" (1800-1), *The* *True Alarm*
(1801), *Institute of Political Economy* (1800-4), and
*Defence of a Maximum* (1801). Few of these were published
during Bentham's lifetime, and some only became known in the
mid-twentieth century (Stark 1952-54), which explains their
relative neglect compared to the attention given the writings of other
political economists of the period. New editions are now in progress
(two volumes so far, 2016a, 2019, with more to come) which will
provide abundant material for a reassessment of Bentham's
contributions to this field. The writings on monetary matters, in
particular, contain original and innovative solutions to practical
financial and currency difficulties. While many of the economic
policies recommended and defended in these writings derive from
Bentham's reading of Adam Smith--with the notable exception
of the prescriptions contained in *Defence of a
Maximum*--they are also expressly based on the subordinate
ends of his theory of civil law (Kelly 1989), as were his ideas for
poor law reform (Quinn 2008).



After ruminating on the subject for several years, Bentham took up the
reform of judicial administration in *Scotch Reform* (1808),
while the voluminous manuscripts on evidence from this time were later
edited and published by J.S. Mill as *Rationale of Judicial
Evidence* (1827). In the latter, Bentham laid down practical
guidelines on the forms and admissibility of evidence, favouring
"natural" over "technical" procedures as most
apt to produce truth in court proceedings and to rid the system of
vexation, expense, and delay, which he attributed to the vested
interest of lawyers in maintaining an arrangement designed to maximize
legal fees. In courts open to the public, judges were to be charged
with following basic principles that would allow for the most complete
and accurate testimony available (Twining 1985, 42, 70; Schofield
2006, 119-31; Resnick 2011). Adjudication in Bentham's
reformed courts would require the strict application of the
utilitarian codes of law. The overriding consideration was the
subordination of the judge to the lawmaker, though the judge may (if
empowered) suspend the execution of the law where utility demanded,
pending a final decision by the legislature (Dinwiddy 1989a).



Despite these wide and varied interests, the government's
betrayal over the panopticon continued to anger Bentham for many
years, generating a deep-seated scepticism of the motives of those in
positions of power and influence. Added to his own first-hand
experience of the maneuvers of aristocratic landowners determined to
prevent the erection of a panopticon in the vicinity of their London
estates, there was also a suggestion that the King himself, outraged
by Bentham's "Anti-Machiavel" letters and disturbed
by rumours of his Jacobinism, may have directly intervened to thwart
the project (1830-31 [1838-43, XI, 96-105]). In
Bentham's mind such actions were representative of the
"sinister interests" typically ranged against beneficial
schemes of reform. This insight served to draw Bentham into an open
engagement with parliamentary reform. A further catalyst came from his
association with James Mill, whom he met in late 1808, and who for
many years thereafter acted as his philosophical and political
*aide-de-camp*.



With Mill's encouragement, Bentham returned to his earlier
manuscripts on political reform and refined and significantly expanded
his critique to encompass the forms of "influence" at work
in British political institutions. The drafts he wrote in
1809-10 provided the outlines for his first public statement in
support of representative democracy in *Plan of Parliamentary
Reform in the Form of a Catechism with Reasons for Each Article*
(1817). Based on the arithmetic of interests, aimed at limiting the
sinister interests of those in positions of power while promoting the
interests of those without power, Bentham advocated a comprehensive
set of reforms. These included: the elimination of royal patronage, a
substantial extension of the franchise, annual elections by secret
ballot, the election of intellectually qualified and independent
members of parliament with a system of fines to ensure regular
attendance, and the accurate and regular publication of parliamentary
debates. Without these reforms Bentham believed Britain risked
revolution. From this point on, he became widely recognised as the
foremost philosophical voice of political radicalism.



Other political writings from this time include *Defence of Economy
against the Right Honourable Edmund Burke* and *Defence of
Economy against the Right Honourable George Rose*, both written in
1810 but not published until 1817 (1993, 39-155). These essays
attacked waste and corruption in government and were later reissued,
with other previously published essays, in *Official Aptitude
Maximized, Expense Minimized* (1830), the overall aim of which was
to optimize the competence of public servants while reducing
government expenditure. In 1824, Bentham's *Book of
Fallacies* appeared, in which he employed a humorous vein of barbs
to lay bare the fallacious reasoning frequently used to bolster
sinister interests and stymie proposals for reform (2015).



Bentham's position on female suffrage at this time was nuanced
(Boralevi 1984, Ch.2): he objected to the exclusion of women from the
vote in James Mill's 1820 essay "On Government" (UC
xxxiv, 303), an exclusion he had long ago condemned as founded on
nothing but prejudice (2002, 247; 1838-43, III, 463),
Nevertheless, in public he argued that women were to be excluded until
such time as universal male suffrage had been achieved (1838-43,
IX, 108).



Closely related to Bentham's critique of the political
establishment were his substantial criticisms of religious
institutions, practices and beliefs in
*Church-of-Englandism and its Catechism Examined*
(1818), *An Analysis of the Influence of Natural Religion on the
Temporal Happiness of Mankind* (1822), and *Not Paul, but
Jesus* (1823). In these works he brought to bear with telling
scepticism his reasoning on logic, language and ontology from the same
period (1838-43, VIII, 193-338; Crimmins 1990). At about
the same time, he also wrote at length on private ethics in
*Deontology*, published posthumously in two volumes in 1834.
Education was another topic that occupied Bentham in these years. In
*Church-of-Englandism* he was highly critical of
the education offered in the schools run by the National Society for
Promoting the Education of the Poor in the Principles of the
Established Church. When Mill, Francis Place and others became
involved in a scheme to establish a non-sectarian school in London,
Bentham busied himself with ideas for its curriculum, stressing
science and vocational subjects over the classics, the first part of
which (printed in 1815) appeared in 1816 in *Chrestomathia*
(meaning "conducive to useful learning") and a second part
in 1817 (Itzkin 1978). While the Chrestomathic school was never built,
in 1826 the same reformers, with support from a number of Evangelicals
and Nonconformists, formed the nucleus of a group that succeeded in
founding University College London, England's first secular
university. An important supplement to Bentham's educational
theorizing is contained in a long appendix to the
*Chrestomathia* on logic and classification, later translated
and edited by his nephew George Bentham and published as *Essai sur
la nomenclature et la classification des principles branches
d'art-et-science* (1823).



In his final years Bentham revisited aspects of his utilitarian
philosophy and sought to define his place in the utilitarian tradition
in the "Article on Utilitarianism". However, more often
than not his thoughts were focused on constitutional questions,
including the administrative structures and the formal and informal
arrangements of a viable representative democracy--in short, the
ways and means of limiting and controlling political authority or, as
Bentham termed them, "securities against misrule".
*Codification Proposal, Addressed ... to all Nations
Professing Liberal Opinions* (1822) was intended to advertise his
credentials as a codifier of law to politicians and statesmen around
the world, first by setting down the utilitarian principles of an
"all-comprehensive" code, and second by providing
testimonials to his aptitude for the task of codification (1998,
241-384; see also Lieberman 2011). The testimonials came from
far and wide in the years 1814-22, in the form of extracts from
speeches, requests for information, and letters of support, from the
likes of Francis Burdett and Henry Brougham in England, government
ministers and representatives of the Cortes in Spain and Portugal,
Italian and French liberals, state governors and other political
representatives in the "Anglo-American States", the
Russian Emperor Alexander, and the influential Polish statesman Prince
Czartoriski. In the years following, Bentham produced draft upon draft
of elements of the *Constitutional Code*, only the first of
three volumes of which was published during his lifetime. In these
writings he unequivocally pinned his colours to the republican cause,
but also demonstrated an acute sense of the growing importance of the
administrative functions of the modern state (Rosenblum 1978; Hume
1981; Rosen 1983).



In old age Bentham liked to style himself "the hermit of
Queen's Square Place" (the location of his home in
London), but he was anything but a hermit. In December 1823 he
provided funds to start the *Westminster Review*, a periodical
dedicated to radical views. He also assumed a leadership role in the
movement for law reform and political reform, maintained regular
contact with similarly inclined reformers, publishers and
intellectuals at home and abroad, and was surrounded by disciples who
acted as secretaries, collaborators, and editorial assistants. The
Mills, Place, George Grote, Richard Smith, Peregrine Bingham, Thomas
Southwood Smith, Edwin Chadwick, and John Bowring all worked with
Bentham in this way. Together with others, such as Thomas Perronet
Thompson, Charles Buller, John Roebuck and Joseph Hume, these later
came to be known as the "philosophic radicals" (a coinage
of J.S. Mill's), though in reality the group was far less
cohesive than is sometimes thought (Thomas 1979). Bentham had a
telling influence on the Irish socialist utilitarian William Thompson
and for a time he maintained close ties with the Irish
"Liberator" Daniel O'Connell, whom he sought to
bind, with limited success, to the radical cause in parliament
(Crimmins 2013, Ch.7). Burdett and Brougham were also treasured
acquaintances, though this did not prevent Bentham from expressing
scepticism about the dedication to radical reform of the former, or
from criticising the latter's proposals to reform the Chancery
Court in *Lord Brougham Displayed* (1832 [1838-43, V,
549-612).



Bentham never married, and died in the company of friends on the eve
of the signing of the Great Reform Act. Convinced that even the dead
should serve a utilitarian purpose, in his last will he directed that
his body be publicly "anatomised" in order to publicize
the benefits of donating bodies for medical research (Richardson
1986). The sanitary reformer and physician Thomas Southwood Smith
(1832) delivered the eulogy over Bentham's dissected remains. In
preparation for this final act, in an unpublished pamphlet written in
the year before his death, *Auto-Icon; or Farther Uses of the Dead
to the Living* (printed 1842, but not then published), he proposed
the display of auto-iconized bodies and heads as a means to public
instruction. He requested that his own mummified head and skeleton,
dressed in his habitual garments, be displayed, and it can still be
viewed today at University College London. Bentham's (admittedly
eccentric and somewhat humorous) ideas about
"auto-iconism" can also be understood as an attempt to
find a secular substitute for the rituals and practices of
conventional religion.


## 2. Philosophical Foundations



Preliminary to the analysis of existing legal systems and the
construction of the utilitarian *pannomion*, in 1776 Bentham
began drafting "Preparatory Principles" (of censorial
jurisprudence or what the law ought to be). In these over 600 pages of
manuscript, now published in authoritative form in the *Collected
Works* (2016b), he offered a series of disquisitions on the
definitions, distinctions, axioms, and aphorisms intended as tools for
demystifying the "fictions" of English law and legal
practice, fictions which he found uncritically reiterated in
Blackstone's *Commentaries*. In these and other early
writings we see Bentham striving to emulate in the moral world the
great advances made in physical science. In the process he consciously
allied himself with the more progressive elements of the Enlightenment
and made plain the intellectual influences that shaped his thought,
notably Bacon, Locke, Hume, and the French *philosophes*.



Influenced by the empiricism of Bacon and Locke, Bentham held that all
knowledge is derived from sensation: the intellect has no material to
work with apart from that obtained by the senses. In the second half
of the 17th century, the Royal Society had emphasized the
role of experiment and empiricist epistemology in the development of
the natural sciences. Suitably impressed by the progress made in this
department of knowledge, Bentham carried over into moral science the
basic principle that people can only know, in any certain or
scientific sense of that term, that which can be observed and
verified. He argued that legal science ought to be built on the same
immovable basis of sensation and experience as that of medicine,
declaring "what the physician is to the natural body, the
legislator is to the political: legislation is the art of medicine
exercised upon a grand scale" (UC xxxii, 168).



This was the core of the "experimental method" for
Bentham; it was an approach implicitly associated in his mind with a
materialist ontology and a representational theory of meaning. He
rejected all forms of idealism in philosophy and insisted that in
principle all matter is quantifiable in mathematical terms, and this
extends to the pains and pleasures that we experience--the
ultimate phenomena to which all human activity (and social concepts,
such as rights and duty) could be reduced and explained.



In Bentham's theory of language general terms have no
corresponding reality: words, ideas and propositions must represent or
describe "real entities", which may be either
"perceptions" or "substances" (UC lxix,
62-63), otherwise they are "fictitious entities".
This was a distinction Bentham learnt from d'Alembert
(1838-43, III, 286), though he turned it to a more radical
ontological purpose. He defined a fictitious entity as "a mere
nothing" and "no proposition by which any property is
ascribed to it can therefore be in itself and of itself a true one,
nor therefore an instructive one". If there is any truth
associated with a fictitious entity it "can not belong to it in
any other character than that of the intended and supposed equivalent
of ... some proposition having for its subject some real
entity" (1838-43, VIII, 246). The technique of
"paraphrasis" was the key instrument Bentham employed to
demystify fictitious entities. Some fictitious entities are necessary
for human discourse, but their meaning can only be revealed through
their connection to real entities (1977, 495n; 2010b, 287-88,
317-18); if a fictitious entity proves impervious to this
paraphrastic technique it is shown to be a meaningless abstraction
unrelated to demonstrable reality. Concepts such as
"obligation" and " interests", for example,
can be rendered meaningful in terms of the perceptible pains and
pleasures experienced and anticipated by specific individuals.
Concepts like "community" derive their meaning from the
sum of individuals that compose an actual community, and the happiness
of a community is nothing but the aggregate happiness of the
individuals that constitute the community in question. On the other
hand, theological propositions, having no correlation with material
reality, deal not with the facts of ordinary experience but with a
supposed "reality" that transcends the physical world, and
just as the language of opinion ought to have no place in the
discourse of physical science, so the untestable and unverifiable
propositions of theology have no place in moral science.



In *IPML*, Bentham directed this analysis against a host of
ethical propositions he sought to eliminate as competing alternatives
to the utility principle, such as "moral sense",
"common sense", "law of reason",
"natural justice", and "natural equity". All
are dismissed on the grounds that they are merely empty phrases that
express nothing beyond the sentiment of the person who advocates them.
Not representing verifiable reality, such phrases could not be
considered useful. Indeed, they were surely pernicious, serving as a
"pretense, and aliment, to despotism; if not ... in
practice, a despotism however in disposition" (1970, 28n). By
comparison, "utility" was a principle rooted in the
empirical and verifiable facts of the felt experience of pains and
pleasures.


## 3. Pains and Pleasures



At the beginning of *IPML* Bentham offered the famous
declamation that underscores the primacy of pains and pleasures in
utilitarian theory:



> 
> Nature has placed mankind under the governance of two sovereign
> masters, *pain* and *pleasure*. It is for them alone to
> point out what we ought to do, as well as to determine what we shall
> do. On the one hand the standard of right and wrong, on the other the
> chain of causes and effects, are fastened to their throne. They govern
> us in all we do, in all we say, in all we think: every effort we can
> make to throw off our subjection, will serve but to demonstrate and
> confirm it. In words a man may pretend to abjure their empire: but in
> reality he will remain subject to it all the while. The *principle
> of utility* recognises this subjection, and assumes it for the
> foundation of that system, the object of which is to rear the fabric
> of felicity by the hands of reason and of law. (1970, 11)
> 



There are two forms of hedonism expressed in this seminal passage: (1)
psychological hedonism, which states that all motives of action are
grounded in the apprehension of pain or the desire for pleasure; and
(2) ethical hedonism, which holds that pleasure is the only good and
actions are right in so far as they tend to produce pleasure or avoid
pain. As Bentham went on to explain, allowing for "immunity from
pain", pleasure is "the only good", and pain
"without exception, the only evil" (1970, 100). As such,
pain and pleasure are the *final* cause of individual action
and the *efficient* cause and means to individual
happiness.



Nor were these observations restricted to humankind in Bentham's
view--the proposed penal code was to include a section on cruelty
to animals. As he explained, "the question is not, Can they
*reason*? Nor, can they *talk*? But, can they
suffer?" (1970, 283n)--a proposition that lies at the
beginnings of utilitarian arguments for the ethical treatment of
animals (see Singer 1975).



Since each person's happiness is constituted of the aggregate
balance of pleasures over pains, this is "the sole end which the
legislator ought to have in view: the sole standard in conformity to
which each individual ought, as far as depends upon the legislator, to
be made to fashion his behaviour" (1970, 34). But how is the
legislator to influence individual actions and gain conformity to his
decisions? Bentham delineated four "sanctions" or sources
of pain and pleasure, which he may have learnt from Gay's essay
*Concerning the Fundamental Principle of Virtue or Morality*
(1731): physical, political, moral, and religious. These sanctions (he
later added sympathy to the list) are available to the moralist and to
the legislator in guiding and determining an individual's moral
conduct, and they explain how an essentially self-interested
individual may be encouraged and, where necessary, directed to perform
actions that promote the greatest happiness of both himself and
others. It is incumbent on the utilitarian legislator, therefore, to
understand the "value" of the pains and pleasures he must
employ to achieve this objective.



While the consequences of an act often depend on the motives which
give rise to the act (and partly on the agent's intentions and
the circumstances in which the act is performed), in Bentham's
theory the utility of an act is independent of its originating
motive(s). In effect, there is no such thing as a good or bad motive.
The utility of an act--its goodness or badness--is
determined solely by its consequences: the benefits and/or costs that
result. When deciding whether to act or which act to undertake, a
person must calculate as best as he can the pains and pleasures that
may reasonably be expected to accrue to the persons (including
himself) affected by the acts under consideration. A similar
calculation should guide the legislator in formulating laws. However,
Bentham recognised that it was not normally feasible for an individual
to engage in such a calculation as a preliminary to undertaking every
act. For this reason he spoke of the general tendencies of actions to
enhance happiness (suggested by past experience) as a sufficient guide
in most situations. On the other hand, the implicit consequentialism
of utilitarian theory is central to Bentham's theory of
punishment, in which the objective was to ensure that a punishment is
in proportion to the mischief produced by a crime and sufficient to
deter others from committing the same offence. To this end he
developed rules to guide the lawmaker in the construction of a penal
code, including the elements involved in the calculation of the
mischief caused by offences and the appropriate punishments.


### 3.1 Interests



In Helvetius' account "interest" lies at the
epicentre of moral science, but Bentham recognised that the concept
only had meaning, like other fictitious entities in ethics such as
"desire" and "motive", when redefined in terms
of the avoidance of pains and acquisition of pleasures (1970, 12;
1838-43, VIII, 290). In general he followed Adam Smith in
believing the individual to be the best judge of his or her own
interests, but the simplicity of this proposition is deceptive (see
Engelmann 2001).



First, a person's consideration of her interest involves
*expectations* or mental projections of the future, not
actually existing material interests. This involves the individual in
*imagining* what will occur if she were to act in a certain
manner. The specific expectations that attend the consideration of an
action may be shaped by a myriad of external considerations, as well
as the agent's own predilections and preferences. For Bentham,
the most important elements of the external environment in which a
person imagines outcomes are the penalties and rewards laid down by
law and those deriving from other educative and moral institutional
arrangements and practices, including the sanction exercised by public
opinion. In this sense, law and other agencies may be used to
construct interests by providing individuals with the motives to
pursue courses of action beneficial to the community. It is the
individual who then must correctly perceive where her interests lie;
she must imagine the expected outcomes the legislator has determined.
The result is that Bentham's material view of pains and
pleasures as the factors which define "interest" tends to
evaporate in favour of interests composed of imagined (though not
imaginary) apprehensions and expectations about the future.



Second, Bentham recognised that explaining action in terms of interest
is potentially circular. If we mean by acting according to interest,
acting selfishly, then the statement "Agents act in accordance
with their self-interest", is false. If we mean, acting to
pursue our interest in the widest sense, then the statement is
tautological (2010b, 93n). In this respect, the validity of the
"self-preference principle"--the assumption that
self-interest is the motivation of all human action--is
questionable. Bentham recognised the possibility of altruistic
actions, and frequently alluded to his own philanthropy when
recommending schemes to further the public good. Moreover, in
*IPML* he held that sympathy was a "primeval and constant
source" of pleasure and action (1970, 61), and later, in
*Deontology*, elevated it to his list of sanctions as a source
of pain and pleasure (1983a, 84, 183, 201, 203-4). However, if
not all action is motivated by self-interest in the narrow or strict
meaning of the term, then how far can the self-preference principle be
considered a reliable guide for the legislator in constructing
motives? Bentham's answer, probably influenced by Hume's
view of the matter, is that the self-preference principle is a sound
generalisation. While it is not true that everyone always acts in his
or her self-interest, it is best that the legislator design
institutions and law as if this were in fact true. Self-interested
acts are the norm; altruism is the exception. As he explained it in
the *Constitutional Code* (1830), even if the self-preference
principle "held good in no more than a bare majority, of the
whole number of instances, it would suffice for every practical
purpose, in the character of a ground for all political
arrangements" (1838-43, IX, 6).



Third, although individuals may in general be the best judges of their
own interests, they may not always judge wisely. This creates a
disjunction between the perception of their interest and their
"real" interest. Since the "public interest"
is a fictitious entity which represents nothing more than the
aggregate of individual interests (1970, 12), an effective legislator
must have a fairly accurate understanding of the interests of those
individuals that constitute the community, of what will motivate them
to act in the desired ways (especially in criminal law). But if people
incorrectly perceive their interests, then the legislator may be
misled in constructing the appropriate motivation. Clearly, the
knowledge needed by the legislator (in order to be effective in
constructing adequate motives to direct individual actions) is of
people's apparent interests, while the legislator's
objective is to further their "real" interests, that is,
what they would choose if they were fully rational and informed. This
means that assessing the value of the constituent elements of interest
(pains and pleasures) is a tricky business for the legislator; he must
accurately observe the ways people behave, deduce the motives behind
their actions, and encompass this knowledge in the sanctions of law.
Yet these same observations of human behaviour may not also be
reliable guides to the "real" interests of individuals,
which must be determined on other grounds. This is why some modern day
utilitarians focus on "preferences", that is on the
subjectively expressed opinion of the individual as to what she
*thinks* will be pleasurable or painful (see Bykvist 2013).



Bentham addressed the potential disjunction between an agent's
perception of her interest and her real interest in his writings on
indirect law, which he described as "a secret plan of connected
and long-concerted operations to be executed in the way of a stratagem
or *petite guerre*" (2010b, 233). The aim is to tell
individuals what they should not do, but also to provide them with
motives (pains and pleasures in prospect) sufficient to divert their
desires into channels best designed to serve the public interest.
Codes of behaviour and other "implements of moral
instruction", such as texts of "history, biography, novels
and dramatic compositions" (UC lxxxvii, 18-19), could be
utilised to divert people from inclinations damaging to themselves and
others and to teach them to derive pleasure from benevolence. In this
way government could educate its citizens to make more effective
choices, or at least guide them into more appropriate paths to achieve
their real interests (1838-43, I, 161).


### 3.2 Felicific Calculus



Though Bentham did not use this terminology, the calculus he
devised--commonly known as the "felicific
calculus"--describes the elements or dimensions of the
value of a pain or pleasure. To an individual the value of a pain or
pleasure will be more or less according to its
"intensity", "duration", "certainty or
uncertainty", and its "propinquity or remoteness".
Where the object is to measure the value of a pleasure or pain in
terms of the tendency of an act, there are two additional
circumstances to be taken into account: "fecundity" or
"the chance it has of being followed by sensations of the
*same* kind", and "purity" or "the
chance it has of *not* being followed by sensations of the
*opposite* kind". Where there are a number of persons,
with reference to whom the value of a pleasure or a pain is
considered, a further circumstance must be factored into the calculus,
that is the "extent" or the number of persons who are
affected by the pleasure or pain (1970, 38-39). Although Bentham
believed there was nothing in what he had proposed "but what the
practice of mankind, wheresoever they have a clear view of their own
interest, is perfectly conformable to", it has often been said
that applying the felicific calculus is impractical. Bentham
recognised that neither the individual nor the legislator could
strictly follow the process he described. Rather, he presented it as a
model of the ideal calculation, and "as near as the process
actually pursued on these occasions approaches to it, so near will
such process approach to the character of an exact one" (1970,
40).



As is well known, while adhering to the basic Benthamic analysis of
motives, in *Utilitarianism* (1861) J. S. Mill introduced the
concept of"higher pleasures", by which he meant aesthetic
and spiritual gratification and the pleasures of the intellect, and
claimed these were intrinsically more desirable than other pleasures.
This tended to undermine the aggregative dimension of the theory laid
down by Bentham, since the depth of feeling associated with such
pleasures resist quantification. Recent commentators, however, have
questioned whether the distance between Bentham and Mill is as large
as commonly supposed, arguing for example that "intensity"
and "purity" are qualities of pains and pleasures that, in
principle, are still subject to measurement, at least when comparing
alternative actions on the same index (Warke 2000; Rosen 2003, Ch.
10).


### 3.3 Diminishing Marginal Utility



Bentham occasionally suggested that pains and pleasures might be
evaluated in relation to income or wealth, but he was aware of the
limitations of this approach. While we might plausibly assume that, of
two individuals with unequal fortunes, the richer of the two would be
the happier, it does not follow that adding increments to that
person's wealth will continue to make him happier in the same
proportion. It is in the nature of the case that the amount of
increase in happiness will not be as great as the increase in wealth;
the addition of equal increments of money will eventually bring
successively less of an increase in happiness. Modern economists know
this analysis as the law of "diminishing marginal
utility". One of its practical consequences for a utilitarian
such as Bentham is that, where choices present themselves between
giving an additional increment to a rich man or to a poor man, more
happiness will result from giving it to the poorer of the two. Also,
the analysis underscores why money cannot be a direct measure of
utility, since the utility represented by a particular sum of money
will vary depending on the relative wealth of the person who receives
it. Moreover, it is evident that diminishing marginal utility is also
a feature of the additional increments of pleasure a person may
experience beyond a certain point; equal increments of pleasure will
not necessarily add to the stockpile of happiness if a person has
reached a saturation point.


## 4. Later Improvements



In the 1829 "Article on Utilitarianism" Bentham pointed to
two later "improvements" to his understanding of the
utility principle--the "disappointment-prevention
principle" and the "greatest happiness principle" (a
substitute for the "greatest happiness of the greatest
number" formula).


### 4.1 Disappointment-prevention Principle



For Bentham, the unhappiness created by the loss of something will
usually have a greater impact on a person than the happiness brought
about by its gain to someone else (1838-43, I, 304-7). All
other things being equal, the reduction of utility to one person
caused by theft will have a greater bearing on that person's
happiness than the gain in utility to another person from a lottery
win of the same monetary value. Of course, if the loser is a wealthy
person and the gainer a poor man, this will not hold. But in the
normal run of things, this is why Bentham gave a higher priority to
the protection of property by law and why he held that the alleviation
of suffering demands more immediate attention than plans to produce
wealth (1952-54, III, 324, 342). It is also the rationale for
what Bentham later called the "disappointment-prevention
principle" (1838-43, V, 416), which requires that the
security of legitimate expectations take precedence over other ends,
save where the public interest manifestly justifies government
intervention, such as raising funds through taxation for vital
services and the emergency expropriation of property in times of war
or famine, usually with compensation paid to the property owner.



For Bentham, the significance of this principle as a practical guide
could hardly be overstated. It is, he says, the "one
all-comprehensive rule" upon which all property arrangements
ought to be based (1983a, 308), and by this, "the first
application, or say emanation, of the greatest happiness
principle", all the arrangements of the law of property
"in its most extensive sense", meaning "all objects
of general desire", ought to be ordered (295-96; see also
1838-43, III, 312).


### 4.2 Greatest Happiness Principle



Bentham detected a serious and potentially debilitating defect in
rendering the utility principle as the "greatest happiness of
the greatest number". He came to see that such a principle could
justify inordinate sacrifices by a minority, however that minority
might be composed, in the interest of enhancing the happiness of a
majority. He considered this a false conclusion, but one that needed
to be addressed. "Be the community in question what it
may", he writes, "divide it into two unequal parts, call
one of them the majority, the other the minority, lay out of the
account the feelings of the minority, include in the account no
feelings but those of the majority, the result you will find is that
to the aggregate stock of the happiness of the community, loss, not
profit, is the result of the operation". The less the numerical
difference between the minority and majority, the more obvious the
deficiency in aggregate happiness will be (1983a, 309). Logically,
then, the closer we approximate the happiness of *all* the
members of the community, the greater the aggregate of happiness.


### 4.3 Universal Interest



As an additional improvement in the manner in which Bentham conceived
the utility principle, he might have included the "universal
interest", an idea initially stated in *Plan of Parliamentary
Reform* where it appears as a more particular conception of the
greatest happiness principle aimed at the "*maximum*
... of comfort and security" for all (1838-43, III,
452). The universal interest relates to interests that are shared by
everyone, and only when it is impossible for government to contrive
policies to achieve this end is a distribution of happiness less than
universal or less than equal justified (1983b, 136). However, the
number of decisions made by governments that are genuinely of
universal reach are relatively few and may be limited to national
defence and the framework of individual rights (securities). Beyond
that, redistributive policies invariably involve unequal sacrifices
and benefits. This means that the legislator must employ a utilitarian
calculation in which the pain experienced by the few is reduced to the
minimum necessary to produce benefits for the many; only on this basis
may pleasures be summed and pains subtracted in order to produce the
rationale to justify the best policy.



Related to this conception of the universal interest is the
egalitarian commitment that in arriving at the appropriate law or
policy the interests of each and all must count, and count equally
(1840 [1864], I, 144). This does not mean that optimal utility is not
the goal, but simply stresses that optimal utility is more likely
achieved where there is an approximate equality in the distribution of
the basic requirements of happiness (Postema 1998). 



This aspect of Bentham's theory has often been ignored or
dismissed as irrelevant by critics who, from T. H. Green forward,
argue that calculations of total utility fail to respect the
distinctiveness of persons and thereby place their interests at
perpetual risk (Rawls 1971, 22-27; Nozick 1974, 28-35; see
the discussions in Ten 1987, 13-37; Rosen 2003, Chs.
12-13; and Bykvist 2010, Ch. 5). If deterrence can be achieved
by punishing an innocent bystander when the real culprit cannot be
caught or brought to justice, then why should the bystander not be
punished? Because public utility would be maximised by making an
example of an innocent bystander just as much as by punishing the
person who was actually guilty of the offence but who has not been
apprehended, it seems the utilitarian ought to support the punishment.
But this is not only intuitively wrong, it is also wrong because there
is a real danger that violations of security would lead to other such
violations, with no principled basis to cease inflicting them. Bentham
was emphatic on this score: "If it is a good thing to sacrifice
the fortune of one individual to augment that of others, it will be
yet better to sacrifice a second, a third, a hundred, a thousand,
...; for whatever may be the number of those you have sacrificed,
you will always have the same reason to add one more. In one word, the
interest of everybody is sacred, or the interest of nobody"
(1840 [1864], I, 144). Basic securities must be afforded to each and
every member of the community, and violations of these vital interests
are not justified, whether they be perpetrated by other individuals or
government, since they contravene the distributive elements of
utilitarian theory. To this extent, at the very least, each
person's happiness must count.


## 5. Subordinate Ends, Principles and Maxims



From early on in his utilitarian theorizing, Bentham understood that
the achievement of utilitarian objectives in practice required the
translation of the utility principle into elements amenable to
implementation in ways that the philosophically abstract principle
itself could not be. Concrete manifestations of happiness, for
example, could be found in personal security and reduced crime rates,
enhanced health and declining death rates, broader opportunities for
education, the reduction of diseases caused by sewage pollution, and
so on. The statistical measurement of these and other issues would
provide a solid basis for the dissection of existing law and the
development of new law, but Bentham's thirst for such
information was always well in advance of the available data. This
deficiency did not, however, prevent him from developing the
theoretical apparatus to direct the formulation of such laws.



In founding a system of law upon the principle of utility, Bentham
announced near the beginning of his career, "I do no more than
found it upon a set of rules" (UC lxix, 38). This was more than
the Humean observation that utility is embedded in customary rules
that have evolved over time. The maximization of utility required that
the jurist cast a "censorial" eye on existing practices to
test their capacity to enhance the greatest happiness. Where the
jurist detects deficiencies, new rules and precepts must be developed
that demonstrably accord with the utility principle. In
Bentham's hands this took the form of a multitude of subordinate
or secondary ends, principles and maxims designed to give practical
direction to the utility principle in each and every aspect of the
law. The greatest happiness principle sets the over-arching objective
and is the critical standard against which existing practices are to
be judged. As such, it stands ever ready to be summoned forth whenever
new guidelines are needed, subordinate ends conflict, or existing laws
require amendment, refinement, or further elaboration. However, in
practice it is the secondary elements of the theory that do the work
of producing beneficial outcomes. In this way, they give practical
concreteness to the philosophically abstract end of the greatest
happiness.


## 6. Civil Law and Political Economy



The subordinate ends of civil law are security, subsistence,
abundance, and equality, in this order of priority. "The more
perfect enjoyment is in all these respects", Bentham wrote,
"the greater is the sum of social happiness: and especially of
that happiness which depends upon the laws" (1840 [1864], I,
96). As we have seen, security is maintained by laws that protect
property and the expectations derived from ownership, and uphold the
contracts that facilitate the trade in goods and services. Subsistence
and abundance are also derived from this source. When an overall
abundance exists but not all enjoy the necessary means of subsistence,
then legislative intervention may be conducted in accordance with the
"disappointment-prevention principle", such as when the
state takes ownership of an estate for which there is no legitimate
heir (122-23), or when a tax on income or property can be
introduced without materially detracting from a person's
expectations, and the funds accrued used to provide food and basic
services to those in need. Based on this redistribution of wealth, a
degree of equalization is also achieved (Kelly 1990, 191-97), an
objective entirely consistent with the view that, properly understood,
the utility principle entails a presumption in favour of an equal
distribution, unless there is compelling empirical evidence that
utility would not be served by such a policy. As Bentham put it in
*Leading Principles of a Constitutional* *Code*,
"the more remote from equality are the shares ... the less
is the sum of felicity produced by the sum of those shares"
(1838-43, II, 276).



The theory of "diminishing marginal utility" also lends
support to equalization policies, dictating that decreases to the
wealth of a rich man cause less pain than similar decreases to a poor
man, while additions to the wealth of the poor man bring happiness in
a greater amount than they would to a rich man (1840 [1864], I,
103-9). In *First Principles Preparatory to Constitutional
Code*, written 1822 but not then published, Bentham went further,
to postulate that the greatest happiness of the people "requires
that the external instruments of felicity, whatsoever they may be, be
shared by the whole number in a proportion so near to equality as is
consistent with universal security" (1989, 16; see also 1840
[1864], I, 104). However, he refused to countenance the idea that
policies to redistribute wealth *at the cost of security* would
be beneficial either to social prosperity or individual wellbeing.
Proposals to alter the distribution of wealth in line with diminishing
marginal utility must, therefore, be conducted in accordance with the
"disappointment-prevention principle".



On the other hand, Bentham believed that a system of laws based on the
utility principle would gradually and "indirectly" evolve
towards greater equality in the distribution of goods, and pointed to
the historical evidence of post-feudal Europe in support of his
position. In the long run the key to achieving a more equal
distribution of property lay in abundance: "in a nation
prosperous in its agriculture, its manufactures and its commerce,
there is a continual progress towards equality" (1840 [1864], I,
123). The important caveat Bentham introduced to justify this optimism
is the proviso that government must not impede this tendency by
allowing monopolies, putting "shackles" on trade and
industry, or placing obstacles in the path of the division of property
on inheritance.



Bentham believed that facilitating individuals in the pursuit of their
interests in a free market is what government should do, because this
is the proven best way to maximise the public good. Where
*laissez-faire* does not produce the best result, however, the
legislator must act in other direct and indirect ways to produce the
optimal outcome. The question, as Bentham explained in *Manual of
Political Economy*, "is to know what ought and what ought
not to be done by government. It is in this view, and in this view
only that the knowledge of what is done and takes place without the
interference of government can be of any practical use"
(1952-54, I, 224). In the *Institute of Political
Economy*, he argued that past experience provided sufficient
evidence to convince us that governments should not act in the
economic realm as much as they often do, hence the motto "Be
quiet" and the lists of "Non-agenda" items. Where
departures from this general rule are required--such as when
vital subsistence goods would be priced beyond the reach of
many--they become "Agenda" items for government
(1952-54, III, 333; see also 247-302). But radical schemes
for property re-distribution are ruled out; the axiomatic requirement
that each be treated equally, that the happiness of each be counted,
justified policies to equalize the distribution of goods only where
this could be achieved without disappointing legitimate
expectations.


## 7. Penal Law and Punishment



Civil and penal law are inextricably connected in Bentham's
legal theory. Just as the primary purpose of civil law is economic
security and national prosperity, so it draws powerful support from
the protection afforded persons, property and expectations by the
threat of punishment (1838-43, III, 203). To this end,
utilitarian penal law is framed in terms of the principal objective of
deterrence, but it also embraces the secondary ends of disablement,
moral reformation, and compensation (see Crimmins 2011). The
effectiveness of the theory in practice depends on two additional
features: offences must be classified solely on the basis of the harm
perpetrated, and there must be an appropriate proportion between
crimes and punishments. It is because of its failure to satisfy the
first feature that Bentham (2014) rejected the prevailing
criminalization of consensual sexual acts, and developed the first
systematic defence of sexual liberty in the English language.



In settling the required proportions of punishment, Bentham recognised
he had burdened the legislator with a vastly complex task--the
calculation of the correct quantity and type of pain needed to achieve
the desired ends, in particular the objective of deterrence. To guide
the legislator in proportioning punishments to offences he stipulated
thirteen rules or "canons", such as that the punishment
must outweigh the profit of the offence, venture more against a great
offence than a small one, punish for each particle of the mischief,
and the like (1970, 167-71; see also Bedau, 2004; Draper, 2009).
The delineation of such guidelines to protect against
"unfrugal" or excessive punishments is indicative of his
attempt to be as comprehensive and as exact as possible while
attending to practicalities. This is nowhere more apparent than in
Bentham's critical analysis of the death penalty.



Bentham first examined the utility of the death penalty in the 1770s
when he delineated the principles of penal law (1838-43, I,
441-50; see also 1970, Ch. XV), and followed this with an
unpublished essay in 1809 in which he presented a critique of William
Paley's defence of the death penalty in his *Principles of
Moral and Political Philosophy* (1785), and in particular the use
of discretionary pardons (UC cvii, 193-277; Crimmins 1987). A
further short essay "On Death-Punishment", published in
1830, repeats many of the arguments from the first essay
(1838-43, I, 525-32). Arguably, Bentham's
utilitarian analysis of the issues raised by the death penalty in the
first of these essays stands as the most thoroughgoing examination of
the question up to this time (Bedau 1983). In sum, it is a special
application of his utilitarian theory of punishment. The framework of
analysis is presented as an objective, neutral exercise, by which the
benefits and costs of the death penalty in cases of murder are
assessed in comparison with life imprisonment with hard labour. All
things considered, Bentham believed the weight of the calculation
worked against the death penalty on the grounds of deterrence, the
fact that it is inequable in its application, falling mainly on the
shoulders of the poor, and because it is a form of punishment that is
irremissible in the face of judicial error. Nevertheless, at that time
he thought the death penalty might reasonably be maintained for murder
with aggravating circumstances and for cases of treason "in
which the name of the offender, so long as he lives, may be sufficient
to keep a whole nation in a flame" (1970 183). By 1809, however,
he abandoned the exceptions and argued that no offence warranted
capital punishment (UC cvii. 201).


## 8. Panopticon



Subordinate ends are also evident in the design and management of the
panopticon prison: security and economy are foremost, but tempered by
humanity and accountability. Impressed by the dynamic of its circular
architecture which allowed the warden, obscured from view in the
shuttered watchtower, to observe the activities of prisoners day and
night, Michel Foucault took the perspective that
"panopticism" defined a "new physics of
power", an experimental "laboratory of power" in
which behaviour could be modified, and he viewed the
panopticon--that "cruel, ingenious cage"--as a
symbol of the repressive, disciplinary society, the modern
"society of surveillance" (Foucault 208). This view of the
panopticon has opened up some interesting lines of discourse on the
encroaching methods of control and surveillance in contemporary
liberal societies (Brunon-Ernst 2012). However, as a critique of
Bentham's proposals it hardly does justice to the intricacies of
the project, as Semple (1993) has shown.



The end of economy determined that the panopticon prison should be a
private self-sustaining operation not requiring financial assistance
from the public purse. Security determined that the community be
protected from convicted criminals, and severity in punishment was to
serve the ends of deterrence and reformation. But security also
required that the inmate be protected from cruel treatment, and
humanity determined that prisoners should be deprived only of liberty
not health or life. Prisoners were to be kept clean and their labour
made productive and profitable, including the development of skills
that might be useful to them when released. In support of these
objectives, Bentham invoked several devices to effect transparency and
accountability in prison government. The chief mechanism intended to
bring the interest of the prison owner/administrator in line with his
duty to be humane is publicity, described as "the most effectual
means of applying the force of moral motives, in a direction tending
to strengthen the union between his interest and the *humane*
branch of his duty; by bringing to light, and thus exposing to the
censure of the law and of public opinion ... every instance of
contravention" (1838-43, VIII, 380). To the seemingly
"constant" but unseen surveillance of the inmates by the
warden, Bentham added the observation of the warden and his
subordinates by the public. Interested members of the public and
members of parliament were to be guaranteed free access to the prison,
making the panopticon subject to "the great *open
committee* of the tribunal of the world" (1838-43, IV,
46). This was the prototype for Bentham's later ruminations on
the benefits of the Public Opinion Tribunal in a system of
representative democracy.


## 9. Administration, Government, Constitutional Law



As with the panopticon, economy, transparency and accountability were
equally important in Bentham's innovative account of
administration, as were devices to ensure the maximization of
"intellectual", "moral", and
"active" aptitude in public officials. In government
utilitarian outcomes required various democratic procedures that
function as "securities against misrule". These procedures
include: "virtual" universal suffrage, annual parliaments,
the secret ballot, and provisions for transparency, publicity and
unconstrained public debate.



Much of what Bentham recommended in relation to administrative and
political institutions is governed by "the
*interest-junction-prescribing* principle", designed to
ensure that the interests of those with power would be reconciled with
the public interest, the interests of the governed. This idea was
prominent in *A Fragment on Government*, where he argued that
effective government was not to be had on the foundation of abstract
formulas such as "mixed and balanced" institutions, but
required "the frequent and easy *changes* of condition
between govern*ors* and govern*ed*; whereby the
interests of one class are more or less indistinguishably blended with
those of the other" (1977, 485). In the later constitutional
writings Bentham added many more administrative devices to ensure
aptitude, transparency and accountability, none more important than
the "Public Opinion Tribunal", or the open court of public
opinion founded on the freedom of the press, by which government
actions could be held up to public scrutiny (1983b, 36). And, just as
the panopticon was to be monitored by the publication of regular
reports, so reports of government activity were required to keep the
democratic polity informed and facilitate the accountability of public
officials.



When Bentham turned his thoughts to constitutional law in earnest in
the 1820s, partly inspired by constitution-making in parts of southern
Europe, it was with the conviction that all states in which the
institutions of representative democracy already existed or in which
they could be introduced were fertile soil for the utilitarian
*pannomion*. "Of this constitution", he announced
near the beginning of the *Constitutional Code*, "the
all-comprehensive object, or end in view, is, from first to last, the
greatest happiness of the greatest number; namely, of the individuals,
of whom, the political community, or state, of which it is the
constitution, is composed" (1983b, 18). The administrative,
electoral and legislative details of this project occupied much of the
last decade of his life, with its core ideas discussed in the pages of
a variety of works in addition to the *Code*, such as
*Securities Against Misrule*, *First Principles Preparatory
to Constitutional Code*, and *Official Aptitude Maximized;
Expense Minimized*. The subsidiary principles of accountability,
efficiency, and economy underpinned the institutional design and
procedural operations elaborated in these writings. In essence, these
principles provided the grounding for the "securities against
misrule" that Bentham thought essential to ensure that the
greatest happiness would be the sole objective of government in a
republican representative democracy.


### 9.1 Securities Against Misrule



Bentham held that those who hold the "operative power" in
government, administration, and judiciary are, like everyone else,
motivated by personal interest. It is imperative, therefore, to devise
mechanisms that will ensure that only by acting in the public interest
could they promote their own interests. So, for example, under
representative democracy the members of the legislature, as the
representatives of the "constitutive power" of the people,
could be counted on to promote the greatest happiness and hold other
functionaries to account, since elected legislators only serve at the
will of their constituents and risk not being re-elected if they fail
to do their duty (Schofield 1996, 226-28; see also Lieberman
2008). Given the extensive powers Bentham envisaged the thirteen
ministries of the reformed government would possess--far more
power in the areas of public health, education, and relief of the poor
and indigent than existed at the time--further safeguards would
be required. Refining and expanding the suggestions contained in his
*Plan of Parliamentary Reform*, he stipulated that public
officials must possess the required "moral aptitude" (the
disposition to promote the greatest happiness), "intellectual
aptitude" (divided into scientific aptitude or knowledge, and
judicial aptitude or judgement), and "active aptitude"
(the conscientious performance of assigned responsibilities) (1990,
272). Intellectual and active aptitude were to be tested through an
examination process, though this would come to naught if the appointed
official did not possess the appropriate moral aptitude
(1838-43, IX, 128). Other devices designed to ensure, encourage,
and test the required aptitude of public officials include: (1) the
precise definition of responsibilities attached to each office,
against which the actions of officials could be judged by either a
superordinate official or the public; (2) the principle of
subordination, according to which every official was subordinate to
another who could punish him for inefficiency in the performance of
his tasks; (3) complete exposure to legal prosecution of all officials
for wrong-doing; (4) the elimination of the practice of handing out
unwarranted titles of honour to party supporters and other favourites;
(5) complete publicity of government business and the elimination of
secrecy; and (6) freedom of the press, speech and association (see
Rosen 1983, Ch. 8).


### 9.2 Sovereignty



The popular dimensions of the constitutional code appear to run
contrary to the legal positivism commonly associated with
Bentham's utilitarianism, which implies a theory of sovereignty
that requires that power be located in the hands of the legislator,
however constituted, and stipulates that all laws are imperative and
depend for their enforcement on coercive sanctions. Rosen has argued
that as early as *A Fragment on Government*, Bentham rejected
the Hobbesian idea of sovereignty based on simple command and
obedience, in which the sovereign is necessarily a single, unified
supreme power, in favour of "the notions of the legal limitation
and division of sovereign power" (Rosen 1983, 41, 44).



Generally, by the term "sovereignty" Bentham meant the
power to legislate (legal sovereignty), but he also employed it in
relation to the power of the people to limit or control government and
public officials (political or popular sovereignty). In the first
sense of the term it is seemingly impossible for there to be a law
that deliberately functions contrary to the will of the legislature.
All law emanates from the will of the sovereign and the will of the
sovereign "cannot be illegal" (2010b, 38). However,
Bentham also held that all political authority, no matter what form it
takes, is necessarily limited by its capacity to compel obedience from
the people. As he put it in *A Fragment on Government*,
"By a sovereign I mean any person or assemblage of persons to
whose will a whole political community are (no matter on what account)
supposed to be in a disposition to pay obedience" (1977, 18).
And in *Of the Limits of the Penal Branch of Jurisprudence* he
explained that this implies two volitions, both of which are necessary
components of a complete theory of sovereignty: on the one hand, the
enactments of a legislature and, on the other, the will of the people
to obey those enactments. In effect, the will of the people to disobey
amounts to a permanent constitutional check on the authority of the
sovereign, and in this sense "the submission and obedience of
the people" acts as the "constituent cause" of
sovereignty (2010b 150n). The legislature may be "supreme"
but it "can never of itself be absolute and unlimited" or
"amount to the entire power of imperation" (113). The
result is a "split concept" of sovereignty defined by a
dynamic interaction between the legislature and the people, subject to
changing times and the reflection of this in the public's
attitude to law, to what is admissible and inadmissible (see Ben-Dor
2000, Ch. 2). The process of public deliberation and accountability
this requires is greatly facilitated by the communicative freedoms of
the "liberty of the press" and the "liberty of
public association" (1977, 485)--crystalized in
Bentham's conception of the "Public Opinion
Tribunal" (POT).


### 9.3 Public Opinion Tribunal



Based on his earlier enunciation of "the motto of the good
citizen"in *A Fragment on
Government*--"*To* *obey punctually, to
censure freely*" (1776 [1977, 399])--in the
*Constitutional Code* Bentham conceived the POT as a
"fictitious tribunal" or public court of opinion,
argument, and debate. "Able rulers lead it", he advised,
"prudent rulers use or follow it; foolish rulers disregard
it". The POT would scrutinize the actions of elected
representatives, public and judicial officials, prosecuting charges
where they are found remiss in their responsibilities, censoring
misrule and imposing penalties when applicable. Penalties would
generally take the form of the "moral sanction"--the
broadcasting of the shame and disgrace of bad conduct and the
imputation of the reputation of the person responsible (1830 [1983b,
35-39]; 1989, 283). In these terms, the POT would be the leading
security against the misuse and abuse of power (1989, 125). Operating
on a continuing basis, and therefore not constrained as a check in the
same limited way as periodic elections, it would act as "the
only force ... [by] which ... government when operating in a
sinister direction can experience any the least impediment to its
course" (1990, 121).



Vital to the functioning of the POT is the dissemination of
information. In the first instance this would require the
establishment of a public archive of government actions and activities
containing records of law, policy, legislative debate, and statistics,
which the government would be constitutionally required to make
available to the public by a freedom of information provision in the
constitutional code to ensure transparency. Secondly, it would require
an unshackled press to ensure widespread publicity and the freedom to
criticize unimpeded by censorship or gagging orders. Here Bentham drew
upon his essay *On the Liberty of the Press, and Public
Discussion* (1821) to point out the dangers of laws designed to
limit these liberties. The liberty of the press is an indispensable
check on arbitrary government, and therefore "necessary to the
maintenance of good government" (1838-43, II, 277, 279).
Publicity is vital in this process, since "the greater the
number of the members of the whole community to whom the existence of
an act of oppression has been made known, the greater is the number of
those by whom ... not only may obedience be withholden, but
resistance opposed" (1990, 30).



Bentham did not consider that the effectiveness of the POT as a check
on misrule could be undermined by secret government methods to limit
the flow of information, nor did it occur to him that a press
dominated by the views of one class or by special interests could
subvert the veracity of the information it disseminated. He pinned his
faith on transparency and publicity (Postema 2014, 49). Ideally, the
public would be adequately informed, and the POT would be constituted
by those among the public who were both knowledgeable and concerned
about the issues before it. Its judgements could change as new
evidence came to light or as new arguments were enunciated, and it
could be fragmented or unified in its view in proportion to the
variety of individual opinions expressed.


## 10. Influence



Before the publication of Dumont's edition of the
*Traites de legislation* in 1802, Bentham's
writings had a very limited distribution. During the revolutionary
years in France, Dumont fed his ideas into the debates over judicial,
legal, penal and legislative reform, and if his proposals had little
impact on the social and political improvements undertaken they yet
contributed to the direction of French liberalism (Champs 2015). With
the publication of the *Traites de legislation*
Bentham's stock as a legal philosopher increased dramatically.
3000 copies of the *Traites* were sold almost
immediately (1838-43, I, 388), the Emperor Alexander ordered a
Russian translation, and this was followed by translations (or partial
translations) into Spanish, German, Polish, Portuguese and Hungarian,
with particularly impressive sales in Spain, Portugal, and Latin
America (1838-43, XI, 33, 88; see Avila-Martel 1981; McKennon
1981; Luno 1981). The 1820 edition of the
*Traites* lists nineteen booksellers in eleven European
countries from whom the book could be purchased. It was from this
platform that Bentham was able to promote himself as a potential
codifier of the laws in countries near and far. Despite the herculean
efforts of Dumont, however, his ideas received a mixed reception in
France (see Champs 2015, Ch.15). The aging Andre Morellet was
keen to see the principles of utilitarian legal philosophy implemented
in French law and administration, and Marc-Antoine Jullien and
Jean-Baptiste Say among others appealed to Bentham in their attempt to
ground political economy on scientific principles. On the other hand,
self-interest and the utility principle was rejected by Germaine de
Stael as an impoverished grounding for moral duty, and rejected by
other reformers such as Benjamin Constant who grounded their
liberalism on natural rights.



Bentham's ideas began circulating in Spain in 1810 through the
London-based *El Espanol* (Dinwiddy 1984, 20), but
interest increased during the liberal triennium of 1820-23. In
1820, Toribio Nunez published a two-volume account of
utilitarian legal philosophy based on the
*Traites*--titled *Espiritu* *de Bentham
o sistema de la ciencia social, ideado por
Jeremias Bentham*--and his own writings on moral and
political philosophy were greatly influenced by Bentham's ideas.
In 1821-22, Ramon de Salas produced the first Spanish
translation of the *Traites* in five volumes, which
received a scathing critique by Jose Vidal, a Dominican
theologian at the University of Valencia, who condemned the work as an
encouragement to revolution (*Origen de los errores
revolucionarios de Europe, y su remedio* 1827). Earlier, in 1793,
Bentham had counselled the French National Convention to divest itself
of its colonies on the grounds of their disutility (though the text
*Emancipate Your Colonies!* was only published in 1830; Bentham
2002, 289-315). In the 1820s he directed his arguments towards
Spain in "Rid Yourselves of Ultramaria" and
"Emancipation Spanish" (1995, 3-276), and was
gratified to see his ideas gaining traction in its former colonies in
Latin America.



Andres Bello used Salas' translation as the basic text
for his law lectures at the Colegio de Santiago in Chile, as did Pedro
Alcantra de Somellera, Professor of Civil Law at the University
of Buenos Aires. In 1825 Francisco de Paula Santander, the
Vice-President of Gran Colombia, decreed that the work be required
reading for all law students in the vast territories of the new
republic, but in 1828 its President Simon Bolivar, the
legendary "Liberator", after previously embracing the
principles and purpose of Bentham's legal philosophy, bowed to
clerical pressure and banned its teaching as detrimental to religion,
morality, and social order (1838-43, X, 552-54).
Santander, who was more inclined to resist the influence of the
Catholic Church, restored it to the curriculum of the universities
when he became President of the newly constituted state of Colombia in
1832.



Following the Greek revolution against Ottoman rule, the historian and
legal scholar Anastasios Polyzoides, who had a hand in drafting its
new constitution in 1822, translated an extract on
"publicity" from Dumont's *Tactiques des
assemblee legislatives* for a Missolonghi newspaper in
1824, promoting transparency in legislative proceedings and in
government more broadly. A year later he published in Greek *A
General Theory of Administrative Systems and especially of the
Parliamentary One, Accompanied by a Short Treatise on Justices of the
Peace and Juries in England* (1825), containing a defense of
representative government and advocating a judicial system based on
utilitarian principles, replete with references to Bentham (Peonidis
2009).



In the United States, the dissemination of utilitarianism was
initially hampered by the absence of an English translation of the
*Traites*, but there too Bentham's influence was
not long in being felt. David Hoffman first introduced utilitarian
ideas into legal education in America at the University of Maryland in
the early 1820s. John Neal, who studied law under Hoffman's
guidance, described Hoffman as one of Bentham's "most
enthusiastic admirers" (Neal 1830, 300). In his bibliographic
*A Course of Legal Study* (1817), Hoffman recommended students
read parts of Dumont's redaction of Bentham, *Theorie
des peines et des recompenses* (2 vols., 1811), and it was
Hoffman who encouraged Neal to translate the *Traites*
into English, a task he began during the eighteen months he stayed
with Bentham in London in 1825-26. In the event, only the
introductory sections of the *Traites* appeared in
Neal's *Principles of Legislation* (1830), parts of which
had first appeared in a series of articles in *The Yankee*, a
journal he edited under the banner heading "the greatest
happiness of the greatest number".



It was Richard Smith, a government tax officer and one of
Bentham's young London disciples, who eventually translated the
civil and penal law parts of the *Traites* into English
for the *The Works of Jeremy Bentham* in 1838 (1838-43,
I, 297-580). While Smith was at work in England, the historian
and anti-slave propagandist Richard Hildreth, Bentham's foremost
American disciple, was busy translating the same material on the other
side of the Atlantic, convinced that the widespread interest in legal
reform in the United States would benefit greatly from utilitarian
ideas. The reviews of Hildreth's translation praised
Bentham's legal philosophy while objecting to its underlying
moral assumptions and disdain for religion, a position frequently
adopted by early critics--even Hildreth took this less than
consistent view (1840 [1864], I, iii). The reviews paid particular
attention to the systematic presentation of the theory of civil law,
which also impressed itself on the teaching of law in the newly
independent states of South America, where property rights were a
matter of considerable importance in the aftermath of the collapse of
the Spanish and Portuguese empires.



Hildreth, whose own *Theory of Morals* (1844) drew
substantially on the *Traites*, was correct in thinking
that law reformers in the United States would find sustenance in
Bentham's critical jurisprudence. Thomas Cooper, who left
England for the United States in 1794 with Joseph Priestley, from whom
he initially derived his utilitarianism, was a confirmed Benthamite by
the 1820s and the intended recipient of writings Bentham entrusted to
John Quincy Adams. Thereafter Cooper employed utilitarian principles
in his writings on law and political economy, most notably in the
*Lectures on the Elements of Political Economy* (1826), based
on the lectures he gave at South Carolina College in Columbia, the
first course of lectures on the subject in America. Edward Livingston,
the famous author of codes of law for Louisiana, corresponded with
Bentham, who sent him books for his research. Livingston acknowledged
it was his reading of the *Traites* which
"fortified me in a design to prosecute the subject" of a
code of penal law (1838-43, XI, 51). In its final comprehensive
and systematic version, Livingston's *System of Penal
Law* (1833) was celebrated by many continental jurists and became
the centrepiece of the codification campaign in the United
States--a campaign Bentham had attempted to launch himself some
years earlier by directing copies of his *Papers Relative to
Codification and Public Instruction* (1817) to a number of
well-placed American politicians. The freethinker Gilbert Vale used
his position as editor of the radical periodical *The Diamond*
(1840-42)--like *The Yankee*, published with the
banner heading "the greatest happiness of the greatest
number"--to disseminate Bentham's criticisms of the
vagaries, chicanery, and technicalities of the law. Inspired by
Bentham, Vale was in favour of humane penal laws that proportioned
penalties to the objective of deterrence and an advocate of state
intervention to alter the social circumstances that fostered crime.
John O'Sullivan, the quixotic editor of the *United States
Magazine and Democratic Review*, wrote sympathetic reviews of
Bentham, Livingston, and Hildreth, and followed them in advocating
utilitarian law reform, particularly the abolition of the death
penalty. Bentham's influence on these figures is discussed in
detail in Crimmins (2022).



Bentham's influence continued throughout the century in America,
where the *Traites* paved the way for the reception of
other editions and versions of his writings, which in turn led to
sympathetic responses to the more amenable forms of utilitarian moral
and legal theory offered by John Austin, J. S. Mill, and Henry
Sidgwick*.* On the other hand, Bentham's
*political* prescriptions made little impact in the United
States, which was, by comparison to aristocratic England, already an
advanced democracy. If the utilitarian *Constitutional Code*
was directed "for the use of all nations and all governments
professing liberal opinions", as its title page declared, the
political positions it embraced were recommended, in the first
instance, for adoption at home.



For all Bentham's success abroad, in the early years of the
nineteenth century he was little known in his own country. The April
1804 issue of the *Edinburgh Review* announced his arrival on
the British stage in a substantial critical review of Dumont's
*Traites*, though his main appeal was initially confined
to a small band of law reformers determined to tackle the antiquated
and notoriously harsh punishments meted out by English penal law. In
the years following the defeat of Napoleon in 1815, however, when
calls for legal, social, and political reform were becoming
commonplace, Bentham's reputation in Britain was transformed
from that of an eccentric and often misunderstood oracle on the
periphery of the intellectual and political world to that of a
venerable sage situated at the center of a broad reform movement.
Throughout the following century his influence continued to be felt,
particularly in discussions of moral and legal philosophy and economic
theory and practice.



John Austin became acquainted with Bentham's utilitarian legal
philosophy during his undergraduate years at Cambridge. In 1821 he was
hired to tutor J.S. Mill in Roman law, began attending meetings of the
Utilitarian Society established by the younger Mill in 1823, and in
1826 was appointed to the Chair of Jurisprudence at the newly founded
University of London, where he was the first in England to introduce
utilitarian ideas into legal education. Building on Bentham's
science of legislation, Austin imported its leading ideas into his own
jurisprudence, none more so than Bentham's distinction between
the law as it *is* and the law as it *ought to be*, an
idea that stands at the foundation of the doctrine of legal positivism
(1977, 397). With the posthumous publication of *Lectures on
Jurisprudence or The Philosophy of Positive Law* (1863),
Austin's legal philosophy was to have a major impact on English
and American jurisprudence--in the latter context his
conceptualization of the nature of sovereignty proved especially
influential.



Bentham's most important influence was on John Stuart Mill. In
his *Autobiography* (1873) Mill relates that when he first
encountered Bentham's ideas in the *Traites*
"I now had opinions, a creed, a doctrine, a philosophy; in one
among the best senses of the word, a religion; the inculcation and
diffusion of which could be made the principal outward purpose of a
life" (1963-91, I, 67-68). It was in the flush of
his early commitment to utilitarianism that Mill edited the five
volumes of Bentham's writings on evidence, *Rationale of
Judicial Evidence* (1838-43, VI, 189-585, VII
1-644). Around this time, however, partly in response to the
challenge of T. B. Macaulay's criticism of his father's
"On Government" and partly the result of his own
reflections on his intellectual inheritance, Mill developed a revised
version of utilitarian theory. This revisionism was first announced to
the world in the essay "Bentham" (1838) and received
definitive expression in *Utilitarianism* (1861), in which he
introduced the notion of higher pleasures. Though, like Bentham, an
advocate of representative democracy based on universal suffrage, Mill
also made several proposals to temper the potential excesses of
unconstrained majoritarian institutions. In other respects, including
his defence of individual freedom and individuality in *On
Liberty* (1859), Mill's utilitarianism remained within the
Benthamic framework.



Bentham's influence has been felt to a considerable extent in
the field of economics, in which the felicific calculus provided the
groundwork for the development of policy based on cost-benefit
analysis. As we have seen, he shared Adam Smith's view that the
route to a nation's prosperity is by individuals pursuing their
interests in ways of their own choosing, with government intervention
limited accordingly. However, he also developed the theory of
diminishing marginal utility, furnishing the legislator with a
conceptual tool by which to address the uneven distribution of social
happiness. The collectivist conclusions Bentham drew from this
principle were modest in scope, but later reformist economists like W.
S. Jevons (1871), impressed by the idea that social utility could be
calculated based on the aggregate of individual interests, developed
the theory in the direction of modern welfare economics. F. Y.
Edgeworth (1881) thought Bentham's formula of the
"greatest happiness of the greatest number" a mathematical
absurdity, and reformulated the goal in terms of the greatest total
happiness (or greatest average happiness for a fixed number of
people). The Fabian socialist Sidney Webb also applied utilitarian
ideas to maximize and better distribute "total
utility"--Webb's wife Beatrice once described Bentham
as her husband's "intellectual godfather" (Mack
1955). Graham Wallas, another of the Fabians, was deeply impressed by
Bentham's legal, political and administrative innovations and
hailed him as "Britain's greatest political
inventor" (Wallas 1926).



On the other side of the ledger we find the libertarian Herbert
Spencer who deployed the utility principle in *Man versus the
State* (1884) and other writings to underwrite the liberty of the
individual, defend the existing social order, and attack the drift
towards socialism and "slavery". James Fitzjames Stephen,
Henry Sidgwick, and A.V. Dicey all advocated versions of utilitarian
individualism, although Sidgwick occasionally gave voice to
"socialist" sentiments in developing his
*intuitional* utilitarian theory in *The Methods of
Ethics* (1874). Reform-minded liberals such as J.A. Hobson and
L.T. Hobhouse viewed themselves as "new" utilitarians,
finding in the protean nature of utilitarianism a justification for
distinctly non-individualist policies. Thus Hobhouse in
*Liberalism* (1911) incorporated utilitarianism into a new
liberal discourse that, in addition to *laissez-faire*
economics (and notwithstanding Herbert Samuel's quasi-Benthamic
motto "the greatest liberty of the greatest number") also
included elements of socialism, social Darwinianism, and the reformist
idealism of T. H. Green.


## 11. Critics and Commentators



Once Bentham's ideas began to take hold in the early nineteenth
century, critics were not hard to find. In his *Principles of
Politics Applicable to All Governments* (1810), Benjamin Constant,
who admired Bentham's originality and praised his contributions
to political economy and penal law, questioned the vagueness of the
concept of utility, which he thought susceptible to many different
definitions and pregnant with danger as a principle of policy.
Constant preferred the prescriptions of natural law as the
philosophical basis for government. William Hazlitt, who was for a
time Bentham's tenant, satirised him as a venerable anchorite in
the quiet of his cell reducing law to a system and the mind of man to
a machine, divorced from the life of spirit, imagination, passion and
sentiments of love, a philosophy "fit neither for man nor
beast" (1826, 184). Thomas Carlyle summed up the general
perception of the crassness of "Benthamee utility" as the
"pig-philosophy", nothing more than "virtue by
Profit and Loss" (1840, 65). Other critics, like the Whig
reformers James Mackintosh and T.B. Macaulay, ready to follow
Bentham's lead in law reform, were also dismayed by the
diminished view of human nature that underpinned his philosophy and
attacked the radical proposals for political reform that emanated from
the utilitarian camp (Lively and Rees 1978). The Anglican divine John
Colls, for a time Bentham's secretary before he took holy
orders, published an intemperate expose of his former employer
as a selfish and bigoted subversive in *Utilitarianism
Unmasked* (1844), a work which proved popular among his fellow
clergymen.



As the nineteenth century wore on assailants came forth from all
points across the philosophical spectrum. Marx considered Bentham an
"arch-philistine" and utilitarianism a superficial and
ephemeral bourgeois ideology (*Capital* I, Ch. XXIV, sect. 5).
Sundry religionists, including those of a philosophical bent like the
classicist J.B. Mayor, intuitionists like William Whewell, and
idealists like Green, F.H. Bradley, Bernard Bosanquet and D.G. Ritchie
combined to attack its atomism, crude materialism, narrowly construed
theory of motivation, and lack of appreciation of the spiritual
dimension of the human condition. The legal scholar Henry Maine could
admire the bravado and ambition of Bentham's science of
jurisprudence, but also deplored his failure to appreciate the
historical and evolutionary nature of law; he further objected to
Bentham's faith that the ignorant masses could truly know what
is in their best interest. As we have seen, on the other side of the
Atlantic, Bentham's legal philosophy made some headway but the
underlying moral ideas met stiff resistance, and his supposed atheism
added fuel to the fire of outrage bellowing from evangelical critics.
In a different vein, the Pragmatists, notably William James and John
Dewey, may have shared Bentham's ontological misgivings about
the meaning and misrepresentation of fictions and fictitious entities
(Quinn 2012) and recognised the critical value of the utility
principle to the development of Liberalism as a philosophy of action
(Dewey 1935, 13-17), but they rejected the claim that all
motivation may be reduced to a drive to seek pleasure and avoid pain,
which they viewed as a self-defeating commitment to materialist
individualism (Dewey and Tufts 1908, 271-74; see also Crimmins
2022, Epilogue). Like J. S. Mill, the Pragmatists also dismissed the
idea that any single form of the *summum bonum* could account
for the many goods that people seek (James 1891, 186-200). There
have been many critics of Bentham since.



Numerous commentaries on Bentham's philosophy have also
appeared, from the early general accounts of Leslie Stephen (1900) and
Elie Halevy (1901-4), to more recent introductions to his
ideas (Harrison 1983; Dinwiddy 1989b; Crimmins 2004, 2013; Schofield
2009; Quinn 2022) and a wide range of revisionist disquisitions on
discrete aspects of his thought. In addition to the themes and issues
already addressed in this article, Hart (1982) and Postema (1989) have
penned important studies of Bentham's jurisprudence, while
topics that have engaged contemporary commentators include his
critical views on race and slavery (Jones 2005; Rosen 2005),
colonialism and empire (Pitts 2005; Cain 2011; Causer, Finn and
Schofield 2022), marriage, divorce, adultery, desertion and
wife-beating (Sokol 2011), and sexual liberty (Dabhoiwala 2010,
168-74; Schofield 2014). Schofield (2013) provides an overview
of some new directions in Bentham studies, to which may be added
essays on the global Bentham (Armitage 2011; Zhai and Palmer 2021),
Bentham and the arts (Julius, Quinn and Schofield 2020), and policing
(Jacques and Schofield 2021). Many of these commentaries have been
inspired by the publication of the authoritative volumes in *The
Collected Works of Jeremy Bentham* that began appearing in 1968 to
replace the poorly edited and incomplete Bowring edition
(1838-43). The *Collected Works* continues to bring to
light new and more complete versions of Bentham's writings and
previously unpublished material. At the time of writing, 35 of the
projected 80 volumes have been published. As new volumes appear the
topics of discussion and debate will continue to increase, burnishing
the reputation of a philosopher whose ideas remain relevant in a great
number of areas of interest to moralists, psychologists, economists,
historians, legal and political philosophers.