Utilitarian Adjudication within the Shadow of the Code

The previous chapters traced the development of each of the central elements of Bentham's theories of law and adjudication. This chapter considers whether these elements can be stitched together into a coherent and systematic theory. Bentham's theory combines in one account both central elements of the codification movement and elements of the theory of equity. Bentham gave institutional expression to an essentially standard Aristotelian view of the role of equity. Burke expressed well the Aristotelian dictum which lies at the heart of Bentham's theory of adjudication: ‘As no legislators can regard the minima of equity, a law may in some instances be a just subject of censure without being at all an object of repeal’.

The Judge as Paterfamilias

Following his radical critique of Common Law, both as a system of laws and as a theory of adjudication, Bentham embarked on a career-long attempt to produce an alternative which more adequately meets the criteria of his background utilitarian theory. This chapter focuses on his theory of adjudication. In his view, the proper definition of the judicial role and a proper understanding of the nature, scope, and limits of judicial decision-making could only be achieved by attempting to solve central problems of the design of adjudicative institutions and procedures. The principle on which he based his construction of adjudicative institutions was drawn from his analysis of the defects of Common Law, especially his view that it is self-defeating to attempt to structure judicial decision-making by means of fixed rules in order to constrain arbitrariness and abuse of power.

Plucking Off the Mask of Mystery

This chapter discusses Bentham's critique of Common Law theory and practice. Bentham's critique is of special interest because that criticism reflects the considerations and arguments that moved him to his positivist conception of law. This radical critique of both the practice and the theory of Common Law rests on the same set of principles and arguments, drawn from his social and political theory, in particular his conception of the primary tasks and functions of law, and the best or most efficient means of serving them. Thus, Bentham's defence of his conception of the nature of law rests not on normatively neutral, analytical, or conceptual considerations, but on his analysis of fundamental human and social needs, and the ways in which law can be used to meet them. Jurisprudence draws directly on political theory. His is a distinctively utilitarian positivism.

Hume’s Jurisprudence

This chapter continues the discussion of Hume's theory of justice. Justice addresses the problems arising from the inevitable interdependence of human social behaviour. The sole virtue of justice lies in coordinating this social interaction. Its necessity lies in the disastrous consequences of failure to coordinate it. The special genius of Hume's account of justice lies in his realization of the fact that in this necessity, and the strategic interdependence of social behaviour, also lies the possibility of success. The problem, as Hume sees it, is to explain how general concurrence in a scheme of rules for mutual benefit might arise. Hume's explanation involves giving an account of the strategic situation facing each of the parties in the group and a description of the processes of self-adjustment of belief, intention, and sentiment which result from recognition of this situation. His argument proceeds in two stages: in the first he explains the emergence of a sense of common interest; in the second he explains how this convention is made specific.

Judicial Virtues and the Sanctions of Public Opinion

Bentham's insistence on simplicity and flexibility in judicial procedure ruled out all fixed rules of procedure and evidence. Procedural rules may be set aside whenever utilitarian considerations warrant it. Bentham also insisted on a wide definition of the judicial role involving a broad grant of discretionary power to the judge. Since Bentham decisively rejected the standard method of binding judicial decision to fixed, pre-existing rules, it was incumbent on him to develop an adequate alternative. This alternative can be found in his doctrine of publicity and the constitutional theory which gives that doctrine institutional expression. This chapter examines Bentham's basic-principles of constitutional design as they apply to adjudication, and the relations between these principles and his psychology and general political theory.

Utilitarian Positivism

Professor Hart claims that Bentham's utilitarianism at times gets in the way of his analytical vision. This chapter defends Bentham against this criticism which rests on two mistakes. First, it seriously misunderstands Bentham's theoretical motivations; second, it rests on a mistaken view of the jurisprudential enterprise generally. It is argued that Bentham's reliance on normative considerations in his criticism of Common Law theory, and his argument for his positivist theory of law, would not be regarded by him as a mistake, but rather as an essential part of the programme he set for himself at the outset of his career. This programme is not incoherent, but in fact rests on a more plausible understanding of the jurisprudential enterprise than that inherited from Austin and Analytical Jurisprudence.

Bentham as a Common Law Revisionist

This chapter presents Bentham's ‘revisionist’ account of Common Law adjudication. It considers materials where Bentham clearly assumes a context of non-statutory decisional law. Although he discusses issues of statutory interpretation and adjudication in the shadow of statutory law, he is primarily concerned with the special problems of adjudication within (as he called it) ‘judge-made’ law. No defence of familiar Common Law theory or practice is attempted. Rather, Bentham tries to articulate for himself the principles and minimal conditions which such a practice of adjudication must meet. Once these principles and conditions were made clear, Bentham was convinced that no system of law remotely resembling his native Common Law could possibly meet the conditions.

The Coherence of Bentham’s Theory of Law

This chapter considers again the coherence of Bentham's theory. However, it takes up only two issues: the compatibility of Bentham's utilitarian theory of adjudication with his positivist theory of laws and the plausibility of his theory of adjudication. It argues that Bentham's theories of law and adjudication cannot achieve the aims of the jurisprudential project he set for himself. It suggests briefly why this project itself is fundamentally mistaken. The arguments here can only be sketchy and to an extent they presuppose a conception of the nature and tasks of law which needs to be more fully articulated and defended.

Utilitarian Justice and the Tasks of Law

This chapter discusses the early writings of Bentham. A central theme running through all of his jurisprudential writing is the conflict between the demand for stability and certainty of law and the need for flexibility in adjudication. Bentham regarded the principle of utility as the sole and sovereign rational decision principle, and insisted that judges must be free to respond to the constantly varying demands of utility in particular cases. The chapter first sets out in a quite general form the problems and issues around which Bentham's jurisprudence developed. It begins with a look at his early reflections on justice, rules, and utility. It then traces how Bentham shaped these early ideas into structuring elements of his developing theory of law. This discussion fixes the basic direction of Bentham's thought and uncovers important guiding assumptions regarding the central aim or task of law.

Law, Social Union, and Collective Rationality

This chapter explores the philosophical motivations behind Common Law theory and legal positivism. The primary aim is to define more precisely the terms of the debate between these two great jurisprudential traditions. It considers the thoughts of Coke and Hale, while Hobbes appears as their antagonist. However, because both Hobbes and the Common Law theorists substantially reworked a patchwork of political and jurisprudential ideas inherited, at least in part, from the natural law tradition, Aquinas's theory is used as the point of departure of the chapter. It is the most familiar and theoretically the most sophisticated discussion of the issues to be found within the natural law tradition.