Publicity and the Development of Bentham’s Theory of Value

Bentham was tempted to think of the welfare of the community as a grand composite of the pleasures and pains of individuals and he suggested that it is possible to construct a powerful ethical deliberating machine capable of churning out precise, determinate, and publicly verifiable judgments and prescriptions for all moral occasions (the “felicific calculus”). Yet, he also articulated a sophisticated critique of the assumptions on which this model rests. Although pleasure and pain must ultimately anchor all moral judgments, he insisted that the language of the ordinary business of utilitarian moral deliberation, policy making, and law making must be fully public. Despite his criticisms of the quale conception of pleasure, Bentham did not abandon rationality or the principle of utility. Proper utilitarian reasoning still, in Bentham’s view, involved “calculation”—that is, tracing out the consequences of all the options for action, laws, or institutions, consequencesassessed in terms of their impact on the welfare of all the members of the community in view. But these calculations need not fit the simple model, in fact, they must not, since the simple model cannot meet the demands of moral reasoning, in particular the demands of publicity. Bentham’s universal consequentialism took for its core theory of value concerns about expectations and interests, rather than immediate sensings of pleasure or pain.

Utilitarian International Order

International politics was integral to Bentham’s comprehensive jurisprudential project. His perspective on international law was that of a legislator, an engineer of global order, not that of expositor or theorist of the existing law. He articulated a (quasi-) cosmopolitan principle for the governance of a state-pluralist global order: the ultimate aim of international law, he argued, is the greatest common and equal utility of all nations. This principle articulates a standard of equal, mutual benefit and builds in a proviso that permits derogation from arrangements or laws that work greatly to the disadvantage of any given nation. He envisioned the global order as a loose affiliation of equal sovereign states, each of which participates on an equal basis in a common congress accorded legislative authority through their participation and is subject to judgments of a common tribunal. Bentham’s ultimate solution to the problem of war was threefold: (i) the law was to be put on a clear, authoritative, and fully public basis in a carefully drafted and systematic code; (ii) all disputes arising in international relations were to be directed to this code and a common tribunal was empowered to resolve the disputes in an impartial way; (iii) judgments of the tribunal were to be enforced by the soft power of Public Opinion Tribunal consisting of both nations and individuals.

In Defense of “French Nonsense”

Buried beneath the intemperate rhetoric of Bentham’s attack on natural rights lies a serious challenge to the jurisprudence of rights in constitutional adjudication. The political rhetoric of rights, Bentham charged, is not the rhetoric of rational deliberation, but rather the rhetoric of mere assertion and counter-assertion. The language of rights supplies no determinate basis for deciding particular cases. However, Bentham saw clearly that indeterminacy threatens not objectivity—in the sense of a decision’s being ideally correct, or rationally preferred when seen “from nowhere”—but rather publicity. He argued that the indeterminacy of rights language weakens the rule of law, because it undermines conditions of genuine public justification. The language of rights provides no public standards for evaluating rights assertions. Bentham was correct to insist upon the importance of publicity in a democratic constitutional order. However, he mistakenly assumed that public justification is possible only if the demonstrability condition is met. In defense of constitutional rights jurisprudence, this chapter sketches an alternative conception of public justification and argues that public justification understood in this way is not threatened by indeterminacy.

Utility, Public Rules, and Common-Law Adjudication

A theme running through all of Bentham’s jurisprudential writings is the conflict between the demands for stability and certainty of law and the need for flexibility in adjudication. Although he was keenly aware of the need for fixed rules for social conduct, Bentham regarded the principle of utility as the sovereign rational decision principle. Thus, he sought ways to constrain the decision-making of judges while leaving them room to respond to the constantly varying demands of utility in particular cases. The complex history of the development of Bentham’s theories of law and adjudication is the history of a series of increasingly sophisticated attempts to solve this central problem of utilitarian political and legal theory. This history begins to unfold in Bentham’s early reflections on justice, utility, and common-law adjudication. In these writings, Bentham defined the basic terms of the conflict, surveyed with remarkable insight the issues at stake, and proposed a unique utilitarian solution for his native common-law system. He soon became dissatisfied with this solution and this dissatisfaction set him on a course of increasingly deeper reflections on the nature of law and adjudication that eventuated in a complex and sophisticated jurisprudential theory. However, abandoning his initial solution did not signal that Bentham abandoned the principles underlying his early argument. Rather, he came to see that only a systematic arrangement of comprehensive codes—the “pannomion”—could hope to answer the demands of publicity on the law.

Facts, Fictions, and Law

Bentham’s analysis of the probative force of evidence appears to be skeptical and relativist. Bentham was convinced that in all aspects of the judicial assessment of evidence, there was no place for formal, rule-bound reasoning, and it is tempting to trace this rule-skepticism to a deeper epistemological skepticism. Yet his monumental Rationale of Judicial Evidence shows few signs of this epistemologically skeptical foundation. Rather, seen in light of his theory of language and fictitious entities, the empiricist, quasi-pragmatist elements of his theory become clear. Bentham was no skeptic or radical subjectivist regarding the evaluation of evidence. Statements of probability, or of the persuasive force of some piece of evidence, on Bentham’s view, are subject to rational assessment. Judgments of the probative value of evidence, like moral judgments, are expressions of the speaker’s state of mind; they express degrees of conviction of the speaker, which are subject to the discipline of rational method.

Utility and Command

Bentham located the foundations of his universal jurisprudence in two overlapping traditions. From the Epicurean tradition, he took his motto: “Utility is the mother of justice and equity.” From Hobbes, and the long thetic tradition before him, Bentham took his model: laws “are not Philosophy as is the Common-Law, and other disputable arts, but are Commands or Prohibitions.” These notions influenced thinking about law since classical times and inspired Bentham’s thinking. However, early in his career, Bentham discovered that, for his purposes, the received command model could not capture key features of law. These serious defects called for the model to be refined rather than abandoned; nevertheless, his refinements dramatically transformed the model.

Bentham

Bentham was one of the first, and among the most thorough, theorists of publicity of the modern era. Publicity is a pervasive theme running through all of Bentham’s moral, political, and legal theory; it is foundational to his thought. Bentham constructed a systematic theory of public reason, integrating utility and law into a complex framework for public reasoning, with a detailed architecture of public space, and constructing a network of key institutions and incentives for public accountability and public deliberation. He designed these institutions to secure the transparency of every exercise of ruling power and to encourage, educate, and empower the public in their critical task of holding officials to their responsibilities under the law. This chapter brings together the most important occurrences of the idea of publicity, documenting Bentham’s reliance on it throughout his career and demonstrating its centrality to his moral, legal, and political thought.

The Soul of Justice

Law has the task of securing us against the abuse of power, but it also creates new opportunities and resources for such abuse. The only effective solution to this problem, according to Bentham, lay in publicity, the most robust and comprehensive system of public oversight of public power in all its forms. Security against misrule was his mantra and his singular aim; publicity was his most powerful tool. Law’s ruling, Bentham argued, ultimately depends upon the spirit, intelligence, vigilance, intrepidity, energy, and perseverance of the public. Public opinion can work its constraining magic only if at every point the exercise of governmental power is public. In his extended discussion of securities against misrule, we have a sustained, articulated exploration of the necessary infrastructure of the rule of law. Bentham analyzed the background conditions and engineered the supporting institutions needed for a comprehensive and effective architecture of accountability. He enlisted every kind of device and facility he could imagine for this purpose. Laws requiring all kinds of openness and disclosure of governmental actions were among these devices, but he also thought about the physical and social structures of public spaces. He was an engineer and architect of publicity.

Interests, Universal and Particular

The ultimate end of government, and the aim of all morality, Bentham insisted, is the advancement of the universal interest. The universal interest, according to Bentham, is that interest of a person common to himself and every other member of the community. It (1) excludes all particular interests; (2) includes interests common to all members of community; and (3) that in it each member has a share. Social institutions designed to serve the universal interest are likely to call for the sacrifice of personal interests, but they also make pursuit of such personal interests possible, and always include each member in the benefits resulting from the realization of the universal interest. While the (personal or private) interests of individual members may be sacrificed, individuals are not. Each member is accorded a substantial share in the interest of all.

Bentham’s Equality-Sensitive Theory of Value

Equality lies at the heart of Bentham’s theory of value, and hence at the core of his utilitarian moral and political theory.The thesis of this chapter is that a proper understanding of the foundational role of equality in Bentham’s moral and political theory will give us further insight into his distinctive theory of value. Equality was not merely an ad hoc addition to his principle of utility, undermining the coherence of the entire theory, as critics have charged. Rather, Bentham thought of equality as involved in the very meaning of the principle, as Mill put it. This equality-sensitive principle of utility draws on a person-regarding conception of value that recognizes the equal claim that each person’s well-being has on our moral attention. This conception of value that contrasts sharply with the one standardly attributed to classical utilitarians.