THE AGE OF BENTHAM AND AUSTIN

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1 CHAPTER 6 - THE Chapter AGE OF BENTHAM 6 AND AUSTIN 155 THE AGE OF BENTHAM AND AUSTIN Hobbes s attack on the common lawyers had presented jurists with the problem of how to reconcile a view which conceived of law in terms of authority, rather than reason, with the existence of a body of rules which were developed by courts over a period of time. Hale s answer to Hobbes was to agree with his positivist conception of law, but to argue that the foundational rules of English law had originated in a past agreement, and were subsequently developed by judges. He had shown that judges, who had expertise in the law and experience of the world, could apply the rules of law to the new facts which came before them, judging when an old rule should be extended by analogy, and when there had to be resort to reason. However, while he spoke of the law as growing, Hale did not give a very detailed account of the methods judges were to use in developing the law, particularly in novel cases. Nor did his successor, Blackstone, add a great deal of enlightenment. Indeed, if the commentator was able to show that the fundamental rules of property could be clearly summarised and applied, in many other areas of crucial importance in a commercialising society, he was unable to explain how judges developed law, save by referring to ideas of natural equity. When Jeremy Bentham ( ) attended Blackstone s lectures at Oxford, he therefore found that many fundamental questions about the nature of common law reasoning remained unanswered, hidden beneath a rhetoric which tended to invoke custom and the law of nature at the same time that it lauded parliamentary sovereignty. Bentham was to look more clearly than any previous writer at how the common law sought to develop its rules; and the closer he looked, the less adequate he found it. He saw that earlier common law writers had not solved the problem of how to show the law to be authoritative and coherent. Ultimately, Bentham felt that the common law could not adequately generate the rules which were needed for social co-ordination, and he derided the idea that there was a natural law which could be used by judges in the process of adjudication. The only solution to the problem was to create a comprehensive code issued by the sovereign legislature based on the principle of utility. The intellectual project of creating a code occupied him for the rest of his life and remained unfinished at his death in 1832 (see Dinwiddy 1989b; Lieberman 1989, ; Long 1977, 13 25; Crimmins 1990, 28 40; Burns 1989). In the 1770s, Bentham worked steadily on analysing legal concepts, in order to clear the ground for his legislative project. At the same time, he sought to set out the principles on which a code could be established. In 1776, he published part of his critique of Blackstone, A Fragment on Government, and in 1789, he published An Introduction to the Principles of Morals and Legisla-

2 156 TREATISE, 8 - THE COMMON LAW WORLD, tion. Moreover, a preliminary outline of a code, written in the mid-1780s, formed the basis of the Traités de Législation Civile et Pénale edited by Étienne Dumont in However, much of his most important early theoretical work, notably Of Laws in General, was not published until the twentieth century, and much important material remains unpublished. From the mid-1780s, Bentham s focus of attention turned to more practical projects, including his plan to construct a Panopticon prison (Semple 1993). He also wrote on matters such as the Poor Laws, Police and Political Economy. In the era of the French Revolution, he began to consider constitutional questions more directly, as well as turning his attention to matters of judicial and legislative organisation. In , he composed the material for his Rationale of Judicial Evidence and wrote other works on judicial organisation. Frustrated by the failure of his Panopticon project, Bentham now became increasingly critical of vested interests, particularly in the state, law and church. Convinced that real reform would be impossible under current political arrangements, by 1809 he converted to the cause of radical political reform (Dinwiddy 1975). Henceforth, he gave increasing attention to the problem of sinister interests and how they could be controlled within a constitutional system. He also now began to solicit invitations to write codes of laws for various states, including the United States. In the 1820s, Bentham worked on a Constitutional Code, hoping to see its implementation in Portugal or Greece (see Bentham 1998; Rosen 1992). A first volume was published in 1830, and Bentham turned to writing more on civil law matters, beginning to plan the outline and purposes of a civil code. By the end of his life, he was still engaged on manuscripts entitled Blackstone Familiarised, and had yet to complete a code of laws. By then, however, he had a large following of disciples, both in England and abroad, and had played a significant role in a transformation about legal thinking in England Jeremy Bentham on the Foundations of Law Following Hume, Bentham rejected the common lawyers notion that political authority rested on a social contract (Bentham 1977, 97). Instead, he defined political society in terms of the people s habit of obeying the commands of a certain sovereign ruler. A number of persons accustomed or agreed to act in all things as a certain person or persons shall command, Bentham wrote, is called a State (Bentham Manuscripts, UC lxix, f. 87; cf. Bentham 1970, 1). For Bentham, it was in man s nature to seek happiness, which was best promoted in political society. For if a state of nature was a state of liberty, it was also one of great insecurity (Bentham 1970, 253 4; Bentham , 3: 219). However, there was no single point at which people emerged from the state of nature into a political society. The habit of obedience was cultivated by experience, which had patriarchal roots. It is in the bosom of a family, he wrote,

3 CHAPTER 6 - THE AGE OF BENTHAM AND AUSTIN 157 that men serve an apprenticeship to government (Bentham Manuscripts, UC lxix, f. 204; cf. Bentham , 2: 542; see Long 1977, 31 5, 211; Burns 1993). It was when people saw the good of government that the habit emerged. Bentham s concept of the habit of obedience has been much debated. H.L.A. Hart argued that the concept is unable to account for the normativity of a sovereign s command: it cannot explain the development of criteria determining the validity of laws, or explain such notions as legally limited government. For Hart, if the command of a lawgiver acts as a content independent and peremptory reason for obedience, the fact of the command is not a reason in itself for normative acceptance (Hart 1982, 243). There must rather be an external, social rule, generating a general recognition in a society of the commander s words as peremptory reasons, something like his own rule of recognition (Hart 1982, 258; Hart 1994, ). Hart s view has been challenged by Gerald Postema. He points out that for Bentham, political society was not a collection of individuals who happened to obey one man. Rather, the obedience given to any particular law of any ruler rested on a general habit of obedience, which had foundations in a broader custom or disposition (Postema 1986, 218, 240). Bentham s understanding, he suggests, was not far from Hart s, for his habit of obedience was interactional, not mechanical. In Bentham s view, for a command to count as law, each person addressed had to accept it as authoritative law, which depended in turn on one s beliefs and expectations regarding the behaviour and attitudes of most of the other members of the community (ibid., 237). Like Hart himself, Bentham felt that the foundations of law do not consist in acceptance of some indefinitely specified set of substantive legal or constitutional standards, but rather in certain morally neutral, formality- (or pedigree -) defined criteria of validity (ibid., 262). For Bentham, subjects were thus only in the habit of obeying the laws of a recognised sovereign which were passed in a recognised way. Certain formalities were needed for the passing of a law, since without them people would not know what were the authentic commands of the sovereign (Bentham 1970, 126n; cf. Postema 1986, 239). Hence, they would not obey laws not validly passed, since they would not be recognised as laws. At the same time, there was also a substantive basis to the habit of obedience. It existed if a sufficiently large number of people obeyed a ruler, from a conviction that his rule was necessary for their happiness. Although the habit was at present firmly rooted in our own and every other civilized nation that we know of (Bentham Manuscripts, UC lxix 69, ff ), Bentham pointed out that it was in fact never perfect. The state of nature and perfect political society were therefore poles: the more disobedience existed, the more society was like a state of nature. The habit was more or less perfect, in the ratio of the number of acts of obedience to those of disobedience (Bentham 1977, 430 note o, 14). A certain level of obedience was necessary to constitute a government, but even this was liable to suffer periodic interruptions (ibid., 433 4).

4 158 TREATISE, 8 - THE COMMON LAW WORLD, However, society could not subsist if every man could disobey any law he disliked. People were therefore bound in conscience to observe the laws of their country, unless they were persuaded by a thorough and reflective conviction of their inutility (ibid., 86). Bentham s theory also explained how revolutions occurred and sovereignty was lost. If enough people came to the conclusion that the probable mischiefs of rebellion exceeded the probable mischiefs of obedience, the juncture for resistance arrived (ibid., 57, 481). There was no common sign by which this juncture could be known. Each individual would act on his own internal persuasion of a balance of utility on the side of resistance (ibid., 484). Resistance would be a political act and each person resisting would know that his act was illegal and that he would be liable to be punished for it (ibid., 25). For instance, Bentham said that if the legislation were passed to give statutory force to royal proclamations, I will take up arms, that is if I can get what I think enough to join with me: else I will fly the country. I well know I shall be a Traitor and a Rebel: and that as such the Legislature would act consistently and legally in setting a price upon my head. (Ibid., 57; cf. ibid., 436) Bentham s revolution was thus defined in sociological rather than legal terms. Political society would be dissolved when a sufficiently large number of people chose to rebel and succeeded (cf. ibid., 491). In effect, this discussion sought to provide a more convincing explanation of the revolution of 1688 than was to be found in Locke s contractual theory in the Second Treatise (cf. ibid., 442 3). Revolution, or its prospect, was not however the only limit to the ruler s power. Bentham acknowledged that a ruler could set limits to his own power by constitutional laws in principem, a transcendent class of laws, which prescribe to the sovereign what he shall do (Bentham 1970, 64). These were covenants entered into by the ruler concerning his conduct. Such limitations were not judicially enforced, for within the dominion of the sovereign there is no one who while the sovereignty subsists can judge so as to coerce the sovereign (Bentham 1970, 68; cf. Bentham 1977, 487 8). However, his acts might be considered unconstitutional, by being repugnant to any privileges that may have been conceded to the people whom it affects (Bentham 1970, 16). Constitutional laws in principem therefore rested on the moral or religious sanctions, which experience showed were effective in keeping the sovereign in check (Bentham 1970, 70 1). They also set new standards for the habit of obedience. The effect of such a concession, Bentham said, is to weaken on the part of the people, in the event of its being violated, that disposition to submission and obedience, by which the power of the sovereign, in point of fact, is constituted (ibid., 16). While succeeding sovereigns would not be bound by the covenants of earlier ones, it would become customary for them to adopt them, for the obedience of the people would come to be conditional their adoption (ibid., 65 6).

5 CHAPTER 6 - THE AGE OF BENTHAM AND AUSTIN 159 At some points in his early writings, Bentham spoke of the limitations on the sovereign in a way as to suggest that any act by the sovereign exceeding them would be regarded simply as ultra vires. Once the supreme body had marked out bounds to its authority, the disposition to obedience confines itself within these bounds and beyond them the subject is no more prepared to obey the governing body of his own state, than that of any other (Bentham 1977, 489). This was to suggest that the people would simply ignore some of the sovereign s mandates, although in all other respects they would continue to obey him. In illustrating this, however, Bentham gave examples from federal constitutions, such as the Swiss cantons or the Holy Roman Empire, rather than domestic ones (Bentham 1977, 484 note k, 489). Bentham s early work did not look in detail at questions of constitutional law, for he then regarded it as the least important aspect of law for the reformer (Hume 1981, 77). At this point, Bentham saw government in private law terms, as a trust (Bentham 1970, 249, 86). However, from around 1788, Bentham began to look more deeply at constitutional questions, and to reformulate his terms. In the years before the revolutionary Reign of Terror in France, and again after 1809, Bentham began to develop a democratic theory of government which would culminate in his Constitutional Code in the 1820s. In these writings, Bentham took up the question, raised in the Fragment, of how to blend the interests of the governors and the governed. In doing so, he began to recast his notion of sovereignty, and ceased to talk of constitutional laws in principem (see Burns 1973). He now distinguished between two aspects of sovereignty. The first was the sovereign efficient power (Hume 1981, 116), or Supreme Operative Power as he later called it. This was the power by which every thing that is done in the way of government is done (quoted in Rosen 1992, 65). In his Constitutional Code, the Supreme Operative Power effectively took the place of the sovereign of his earlier work. The supreme legislature, which held this power, was omnicompetent and had the power of imposing upon persons of all classes, obligations of all sorts, for purposes of all sorts, and with reference to things of all sorts: obligations such as are not capable of being annulled or varied by any other power in the State (Bentham 1983, 41; Bentham 1989, 6). By contrast, the Sovereign Constitutive Power, which rested in the people, was the power of determining at each point of time in the hands of what individual functionary or individual functionaries the correspondent operative power shall at that time be lodged (quoted in Rosen 1992, 65). For Bentham, potentially everyone should share in the power to constitute the governors, but only the latter should have the power to make law. The sovereignty, he now wrote, is in the people (Bentham 1983, 25). There has been some debate among scholars whether this change in his discussion of sovereignty represents a change in his theory. According to H.L.A. Hart, Bentham s later formulation involved a quite different theory of law

6 160 TREATISE, 8 - THE COMMON LAW WORLD, from his earlier language (Hart 1982, 228). Hart argued that whereas Bentham s earlier writings saw law in terms of commands issued by the sovereign, the constitution which conferred the supreme constitutive power on the electors was itself a law which derived its status not from any command, but from the fact that it was generally acknowledged to be in force. Moreover, he claimed that Bentham s new definition could not constitute a general theory, since he himself acknowledged that there were states such as hereditary monarchies lacking a supreme constitutive power. Against this view, however, it may be suggested that Bentham s later constitutional thought was in effect a refinement of his earlier ideas, linked to a positive programme of political reform (cf. Postema 1986, 261). For Bentham, of course, the people had always constituted the government by the fact of their obedience (see Bentham 1989, 279). The Constitutional Code was a mechanism to make the influence of the people over the government more direct and constant. The true and efficient cause and measure of constitutional liberty, or rather security, he wrote, is the dependence of the possessors of efficient power upon the originative power of the body of the people (Bentham 2002, 409). Bentham s aim now was to create a chain of responsibility leading ultimately to the people and to make the particular interest of the rulers mirror the universal interest of the people. The two powers were interdependent. For Bentham, the Supreme Operative Power performs the office of the main spring in a watch; the [Supreme Constitutive Power] that of the regulator in a watch. Without the regulator, the main spring would do too much: without the main spring, the regulator would do nothing: viz. one with one another and antagonizing with one another, in so far as they are aptly proportioned to each other, they will do that which is required. (Bentham 1989, 135) Bentham was clearly aware that in most states notably in hereditary monarchies the power of locating the ruler did not directly lie with the people (see Bentham , 9: 97). In seeking to put the power of location and dislocation directly in the people via regular elections, he was therefore seeking to establish the best possible constitutional system, with the least scope for misrule (see Bentham 1989, 53, 117; see also Schofield ). Outside a representative democracy, the control people exercised over their rulers was blunt. While they always had the power of dislocation, it could scarcely be effected in a monarchy without either a homicide or a war (Bentham , 9: 103, cf. Bentham 1990, 122). Moreover, although rulers might be influenced to act for the good of the community by fear of inferior sufferings, such as popular obstructions to the exaction of taxes, or the execution of judgments (Bentham 1990, 124), they were often able to hide their sinister interest, and make the people believe that the government was acting for their good (see Bentham 1989, ). In the system of the Constitutional Code, there would be no need for substantive limitations on government, since the

7 CHAPTER 6 - THE AGE OF BENTHAM AND AUSTIN 161 checks built into the system would prevent the ruler from acting against the universal interest. The constitution itself was made by the legislator. As Rosen has argued, for Bentham, the origin of constitutive power came in the operative power of government itself (Rosen 1992, 65 6). He did not see constitutions as the organic product of community custom, nor as the creation of the people as a whole. Rather, he retained a patriarchal view of constitution-making. A people, needing a government, would follow the ruler who could give them the constitution which satisfied them. He was himself attracted by the prospect of writing a constitution for Greece, seeing it as a clean slate, a place which had not yet acquired settled habits of rule and obedience (Rosen 1992, 99; cf. Bentham 1990, 146). The Constitutional Code was thus a law set by the legislator and enforced ultimately by the moral sanction of the Public Opinion Tribunal, or the people, just as the constitutional laws in principem which he had previously discussed were seen as laws set by the sovereign enforced by the moral sanction (see Bentham 1990, 30, 139; cf. Ben-Dor 2000, 183 4). The principles of the constitution, Bentham made clear, were not to be protected by any form of judicial review (Bentham 1983, 45). The persistence of the system rested ultimately on the holders of the supreme operative power acting in accordance with the people s constitutional expectations. It was, Bentham admitted, conceivable that the holders of this power might conspire to change the constitution in ways that were harmful to the interests of the people. In so doing, the legislature might be acting in a legally valid way, given their power to change any part of the code. In such a situation, the only redress was mass petitioning by the people, demonstrating to the chief executive a contest tending to a revolution (Bentham 1989, 35). For those living under the Constitutional Code, however, the juncture of resistance was more clearly signalled than in a monarchy: Upon [the people s] compliance or non-compliance, all power, as has been seen, necessarily depends. On any occasion towards producing, on their part, non-compliance, all that can be done by a constitutional code, is to give them the invitation. If by such invitation, power is not limited, by nothing else can it be limited. (Bentham , 9: 120) The invitation Bentham here had in mind was to an act of revolution. This would still be an act of political judgment: since the legislature had power to alter even constitutional rules (Bentham 1983, 44), revolt would only ensue when the change in the system was so great in the people s eyes as to justify resistance (but contrast the views of Ben-Dor 2000, 157). Bentham s idea that the constitutional rules were created by the ruler, but generated expectations in the public, led to his holding something of a teleological view of constitutional development, leading to the system of democracy he championed. In his view, people entered political society to obtain happiness. Over time, concessions, such as Magna Carta or the Bill of Rights,

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