The argument of this paper is part of a general defence of the claim that Bentham's moral theory embodies a utilitarian theory of distributive justice, which is developed in his Civil Law writings. Whereas it is a commonplace of recent revisionist scholarship to argue that J. S. Mill had a developed utilitarian theory of justice, few scholars regard Bentham as having a theory of justice, let alone one that rivals in sophistication that of Mill. Indeed, Gerald J. Postema in his bookBentham and the Common Law Tradition, argues that Bentham had no substantial concern with the concept of justice, and that what analysis of the concept there is in Bentham's thought is unlike the utilitarian theory of justice to be found in chapter five of J. S. Mill'sUtilitarianismAlthough Postema's interpretation is not the only one that will be addressed in this paper, it serves as an important starting point for any rival interpretation of Bentham's ethical theory for two reasons. Firstly, it is the most comprehensive and most penetrating discussion of Bentham's utilitarian theory, drawing as it does on a wide variety of published and unpublished materials written throughout Bentham's career. Secondly, it is interesting in this particular context because the contrast that Postema draws between Bentham's and Mill's theories of justice depends upon a particular reading of Mill's theory of justice and utility which is derived from recent scholarship and which is by no means uncontroversial. As part of the defence of the claim that Bentham had a sophisticated theory of distributive justice, it will be argued in this paper that the contrast drawn between Bentham and Mill does not stand up to careful scrutiny, for insofar as Mill's theory of justice can be consistently defended it is not significantly different from the utilitarian strategy that Bentham employed for incorporating considerations of distributive justice within his theory. This is not to claim that there are not significant differences between the theories of justice of Bentham and J. S. Mill, but it is to claim that whatever technical differences exist between their theories, both writers saw the need to incorporate the concept of justice within utilitarianism. Therefore, rather than showing that Mill is an interesting thinker to the extent that he abandons his early Benthamism, by demonstrating how close Mill's theory of utility and justice is to that of Bentham, it will be possible to argue that Bentham employed a sophisticated and subtle utilitarian theory that was responsive to the sort of problems which occupied Mill a generation later.
Scanlon’s contractualism: A review essay
