Discuss and critically evaluate the contribution to jurisprudence of Jeremy Bentham.

In the assignment it is necessary to deal with: (1) Benthams contribution to legal positivism; (2) Benthams contribution to utilitarianism; (3) How Benthams idea of the model prison, the Panopticon influences the work of Foucault.

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(a) Benthams Contribution to Utilitarianism It is difficult to assess Jeremy Benthams contribution to utilitarianism when Bentham scholars cannot agree on the kind of utilitarian that Bentham was, that is, if they could agree that he was a utilitarian at all.1 What is certain, however, is that although Bentham was not the progenitor of the core ideas of utilitarianism he was no doubt the first to expound them systematically and, as such, he may be considered as the father, if not the founder, of the movement. Indeed, of the precursors, of whom there were many Cumberland, Shaftesbury, Hutcheson, Gay, and Hume, to name a few it was the reading of David Humes A Treatise on Human Nature that was to have the most profound effect on Bentham: That the foundations of all virtue are laid in utility, is there demonstrated with the strongest force of evidence For my own part, I well remember, no sooner had I read that part of the work which touches on this subject, than I felt as if scales had fallen from my eyes. I then, for the first time, learnt to call the cause of the people the cause of Virtue.2 On the other hand, it had been French philosopher and littrateur Claude Adrien Helvtius in his work De lesprit3 who had, according to Bentham, been the first to cogently describe the nexus of interconnection between the notions of utility, happiness, pleasure and pain.4 For it was in reading Helvtius that he realised the significance of his discovery of the sole and universal standard of right and wrong in matters of both morals and legislation the principle of utility.5 As Bentham remarked: From [Helvtius] I learnt to look upon the tendency of any institution or pursuit to promote the happiness of society as the sole text and measure of its merit: and to regard the principle of utility as an oracle which if properly consulted would afford the only true solution that could be given to every question of right and wrong.6 In the famous opening lines to his work An Introduction to the Principles of Morals and Legislation Bentham eloquently forwards his most familiar statement of the principle of utility. In it he recognises that mankind is subject to two sovereign masters, pain and pleasure, who determine not only what we do but also what we ought to do. Bentham continues: 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. Systems

Lyons, Was Bentham a Utilitarian? Royal Institute of Philosophy Lectures, 5 (1971) 196-221. Hocutt, Was Bentham a Utilitarian? Canadian Journal of Political Science, 38:3 (2005) 697-717. 2 A Comment on the Commentaries and A Fragment on Government , ed. J. H. Burns and H. L. A. Hart (London, 1977), at p.440 n. Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006) at p.3. 3 Helvtius, De lesprit. First published in French in 1758, appeared in English translation: De LEsprit: or, Essays on the Mind, and its several Faculties (London, 1759). 4 Deontology, 2901, 3245; Official Aptitude Maximized; Expense Minimized, ed. P. Schofield (Oxford, 1993), at pp.350 1. 5 Schofield, p.4. 6 Bentham to the Revd John Forster, Apr./May 1778, Correspondence, vol. ii, ed. T. L. S. Sprigge (London, 1968), at p.99. Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006) at p.4, fn.24.
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which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.7 Firstly, for Bentham, the two sovereign masters are equated with good and evil, the former being the object of desire and the latter being the object of repulsion. Secondly, as happiness consists in the enjoyment of pleasures and security from pains8 it follows that pleasure is that which is morally good and pain evil. By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered.9 The principle of utility, therefore, as the criterion of moral action is a standard which takes as its measure the tendency of that action to increase or decrease happiness. Moreover, Bentham saw this principle as universal, as the party in question may be the community in general or the individual, for it is in vain to talk of the interest of the community, without understanding what is the interest of the individual.10 Thus the fundamental axiom of utilitarianism arrived at by Bentham states: It is the greatest happiness of the greatest number that is the measure of right and wrong.11 Indeed, Benthams aim was to develop a science of ethics by ontologically grounding its abstractions, good and evil for example, in physical fact for without such a grounding moral conceptions and principles are effectively meaningless nonsense. The principle of utility, according to Bentham, deals in sense rather than nonsense through its foundation in the physical experience of pleasure and pain and, as Bentham understood the experience of pleasure and pain as the common foundation both of psychology, in being determinative of our actions, and of morality, in being determinative of what we ought to do, he was thus able to place ethics on a scientific footing and it was at this soft spot in Benthams theory that his most stubborn criticisms were levelled. These criticisms centred around the relationship obtaining between the concepts of ought and is in Benthams theory. In his seminal article The Principle of Utility the philosopher A.J. Ayer accuses Benthams project, the grounding his ethical standard in facts about the physical world, as an attempt to derive an ought from an is and thus as a classic example of the naturalistic fallacy. This leads Ayer to level two related criticisms against Bentham, the first, that Bentham does no more than describe a particular sort of action, viz. those acts which maximise happiness are described as right, the second, that not all human action is goal-driven and not all goal-driven action is undertaken in order to promote
Bentham, An Introduction to the Principles of Morals and Legislation. In The Works of Jeremy Bentham, Volume 1: (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843]. ed. John Bowring (Edinburgh: William Tait, 1838-1843) at p.121 8 Ibid at p.169. 9 Ibid at p.121. 10 Ibid at p.122. 11 Bentham, A Fragment on Government. In The Works of Jeremy Bentham, Volume 1: (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843]. ed. John Bowring (Edinburgh: William Tait, 1838-1843) at p.443.
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happiness.12 The first criticism proposes a theoretical conundrum which Bentham attempts to solve pragmatically: an individual has no motive to act in beneficence of the community unless that action is of benefit to his or herself. This criticism brands Benthams theory with the mark of egoism and Bentham attempts to solves the problem by introducing legal sanction as the motive factor which unites the interests of the individual with those of the community. The second criticism simply acknowledges the psychological truth that the goals of mankind are not necessarily those from which there is an expectation that pleasure will be derived, individuals often act in ways that create painful circumstances for themselves. Furthermore, this problem bleeds into a further criticism levelled by P.J. Kelly which holds that propositions regarding what is the right action and what ought to be done are propositions which describe how an action maximises pleasure and thus implies the tautologous conclusion that to do right it to do that which results in the greatest amount of pleasure (conversely, to do that which results in the greatest amount of pleasure is to do right).13 Both Ayer and Kelly attempt to solve these problems for Bentham by re-branding his theory. Ayer proposes that Benthams definition of right action should be understood as persuasive rather than descriptive. An individual does not have to act in a way that is conducive to the greatest happiness but is motivated to do by the knowledge that such action will increase happiness in general.14 Secondly, Ayer reformulates Benthams notion of goal-driven action to read that the ends pursued whatever they may be identified with happiness such that the principle of utility becomes the principle that we are always to act in such a way as to give as many people as possible as much as possible of whatever it is that they want.15 On the other hand Kelly, re-brands Benthams principle of utility as a meta-ethical principle and argues that the notion that Bentham defines good as synonymous with pleasure is not supported by a close reading of the text and what Bentham is actually doing is to build a philosophical framework around the principle of utility from which in which terms such as good and evil can be employed meaningfully.16 (b) Benthams Contribution to Legal Positivism Interestingly, it is also a distinction between is an ought that is one of the keys to Benthams legal positivism, that is, the distinction between what law is and what it ought to be. In commenting on Benthams Fragment on Government, H.L.A. Hart, the most influential proponent of legal positivism, noted that: In legal theory Benthams sharp severance in the Fragment between law as it is and law as it ought to be and his insistence that the foundations of a legal system are properly described in the morally

Ayer, The Principle of Utility at pp.252-7. Kelly, Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, 1990) at pp.44-45. 14 Ayer, The Principle of Utility in G.W. Keeton and G. Schwarzenberger, eds., Jeremy Bentham and the Law: A Symposium (London, 1948), ch. 13 at pp. 254-5. 15 Ibid at pp.256-7. 16 Kelly, op. cit.
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neutral terms of a general habit of obedience opened the long positivist tradition in English jurisprudence.17 It would appear from this passage that Hart is identifying two distinct doctrines, respectively, substantive legal positivism and methodological legal positivism18 and is holding Bentham out as the founder of both. However, it is not clear if Hart was actually distinguishing the two doctrines or whether he saw the separation of law and morals, the law as it is and as it ought to be, as a consequence of Benthams methodology. Indeed, he argues that Bentham insisted on a precise, morally neutral vocabulary for use in the discussion of law and politics as part of a larger concern to sharpen mens awareness of the distinction between what is and what ought to be.19 With this in mind, it could be argued that Benthams contribution to the former could be construed as a contribution to the later thus widening his field of influence. Indeed, in a 1973 article Hart noted that the fundamental and original feature in Benthams whole austere approach to the philosophy of law and the one which was at the very epicentre of legal positivism, was methodological: Bentham differed in insisting that we must not so define our terms in legal or political theory as to make the practical conclusions which we favour follow from them. Such definitions have been aptly called persuasive definitions and among Benthams many claims to be an innovator none is better founded nor, I think, more important than his insistence on a precise and so far as possible a morally neutral vocabulary for use in the discussion of law and politics. This insistence, though it may seem a merely linguistic matter, was the very centre, and I would say the sane and healthy centre, of the legal positivism of which Bentham may be regarded as the founder.20 Hart clearly identifies Benthams approach to the question of law as his great leap forward and goes on to describes this approach as new, shocking, and a tonic for reformers.21 There can be no doubt, however, that Hart saw the separation of law and morals, or what became known as the seperability thesis, as an equally powerful and transformative innovation and one which united the tradition from Bentham and Austin to himself.22 Where Bentham and Hart differ is in their theoretical approaches to the relation between the seperability thesis and the principle of utility, for Bentham the principle of utility was at the heart of the justification of laws, whereas Hart effectively detached and discarded the principle.23

Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982) at p.53. See: Perry, Harts Methodological Positivism, in J. Coleman, ed., Harts Postscript: Essays on the Postscript to the Concept of Law (Oxford, 2001) at pp.31113. 19 Schofield, Jeremy Bentham, the Principle of Utility and Legal Positivism (2003) at p.32. Schofield is quoting: Bentham, An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns and H.L.A. Hart, with a New Introduction by F. Rosen (Oxford, 1996) at p. lxxxv. 20 Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982) at p.28. 21 Ibid. 22 Dyzenhaus, The Genealogy of Legal Positivism, Oxford Journal of Legal Studies 24:1 (2004) 39 at p.40. 23 Ibid. See also: Hart, Positivism and the Separation of Law and Morals reprinted in Hart, Essays on Jurisprudence and Philosophy (Oxford, Clarendon Press, 1983) at p.56-62.
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For Bentham, unlike Hart, a law could be justified by examining it through the lens of utility, in that, those law that produced happiness and pleasure and guarded against misery, mischief and pain. As Bentham states: From utility, then, we may denominate a principle, that may serve to preside over and govern, as it were, such arrangement as shall be made of the several institutions, or combinations of institutions, that compose the matter of this science Governed in this manner by a principle that is recognised by all men, the same arrangement that would serve for the jurisprudence of any one country, would serve with little variation for that of any other.24 Moreover, the application of the principle of utility in this manner would not only be capable of uncovering and placing under suspicion bad law but also of guiding the hand of the legislator. Modes of conduct which offend against the principle could then be collected into classes of offence. The synopsis of such an arrangement would at once be a compendium of expository and of censorial Jurisprudence: nor would it serve more effectually to instruct the subject, than it would to justify or reprove the Legislator. Such a synopsis, in short, would be at once a map, and that an universal one, of Jurisprudence as it is, and a slight but comprehensive sketch of what it ought to be.25 Although Hart diverges from Bentham on this point he still sees his utilitarianism as being a fountain of splendid reforms and of ridding the law of much irrational and oppressive rubbish.26 On the other hand, however, Hart argues that this same utilitarianism put in the position of being the sole criterion of the morality of legal institutions, has a darker side one which, according to Hart, places basic civil liberties in jeopardy by rendering as negotiable the fundamental rights of citizens over against the State.27 By way of example Hart takes the right to silence of the accused and argues that Bentham would view the right to silence not in terms of those who might be wrongly convicted if the right were withdrawn but in terms of the direct and indirect victims whom the law, because it concedes a right to silence, fails to incarcerate or deter. Thus, into Benthams utilitarian equation must be considered not only the suffering of innocent victims but that of the greater population who suffer by alarm and terror at the thought such criminals at large. As such, Bentham believed that a rational calculation of the suffering makes a weighty case for the abolition of the right to silence.28 Indeed Bentham goes even further according to Hart, seeing the argument that there is something profoundly wrong with a legal system where individuals who enjoy the presumption of innocence are placed under a duty to account for themselves on the basis of a mere risk of conviction, as mere mystifying nonsense. Rights which override the dictates of

Bentham, A Fragment on Government. In The Works of Jeremy Bentham, Volume 1: (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843]. ed. John Bowring (Edinburgh: William Tait, 1838-1843) at p.453. 25 Ibid at p.454 26 Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982) at p.36. 27 Ibid. 28 Ibid at p.38.
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reason and utility were, according to Bentham, nothing but the effusion of a hard hart and a cloudy mind.29 (c) Benthams Panopticon and its Influence on Foucault

Similarly it might be argued that capacity of reason, when governed by utility, to work at undermining the cause of basic human rights is also at the heart of Benthams panopticism. What ought to be kept in mind, however, is the facility of Benthams thinking to act as an agent of reform, that is, to encourage and engage if not persuade his audience toward a reconsideration or reconstruction of legal institutions which remain grounded in ossified or fragmentary theory. Hart considered the presumption of innocence to be one such institution and there can be no doubt that the prison system is another.30 One of the main problems, however, in assessing the influence of Benthams Panopticon or Model Prison on Foucault thinking is that scholars themselves have maintained contrary positions. Semple, for example, argues that Panopticon is the one book of Benthams that Foucault never actually read,31 while Brunon-Ernst and Laval argue that Foucault possessed a deep understanding of Benthams panoptic theory.32 Given the growth of scholarship on both Foucault and Bentham, an apt starting point would complement Foucaults Discipline and Punish (1975) which devotes an entire chapter to the Panopticon or, as Foucault terms it, panopticism33 with his recently published lectures from Collge de France (197879) in which references are made to Benthams Panopticon and to Constitutional Code.34 The Panopticon is essentially what Brunon-Ernst has called architecture to fit a social purpose.35 An circular institution built to facilitate the continuous inspection of inmates through a central control tower which conceals the observer such that the inmates cannot tell if they are being observed at any particular moment. The Panopticon thus constructs and supports a visible but unverifiable functioning power which Bentham defines as: [A] type of power that is applied to individuals in the form of continuous individual supervision, in the form of control, punishment, and compensation, and in the form of correction, that is the moulding and transformation of individuals in terms of certain norms.36

Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982) at p.36. Hart is quoting Bentham, Supply without Burden, in Economic Writings, ed. Stark (London 1952) I 355. 30 Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982) at pp.36-8. 31 Semple, Foucault and Bentham: A Defence of Panopticism, Utilitas, iv. (1992), pp. 105-06 32 Brunon-Ernst, Foucault Revisited, Journal Of Bentham Studies, Vol.9 (2007). Laval, Comment Foucault a-t-il luBentham?, International symposium Bentham and France, Paris, 2-4 November 2006. 33 M. Foucault, Discipline and Punish. Trans: Sheridan, Vintage (New York, 1997) at pp. 195-230. 34 Brunon-Ernst, Foucault Revisited, Journal Of Bentham Studies, Vol.9 (2007) at p.5. 35 Brunon-Ernst, ed., Beyond Foucault: New Perspectives on Benthams Panopticon (Ashgate, 2012) at p.7. 36 Bentham, Panopticon; or the Inspection-House: containing the Idea of a New Principle of Construction applicable to any sort of Establishment, in which Persons of any Description are to be kept under Inspection. In Bowring (ed.), The Works of Jeremy Bentham (Edinburgh, 183843), vol. 4, pp. 3766.
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In Discipline and Punish Foucault sees the Panopticon as a model of modern disciplinary power which acts covertly through the discreet surveillance of the watchman is mild, humane and insidious. Foucault writes: If the inmates are convicts, there is no danger of a plot, an attempt at collective escape, the planning of new crimes for the future, bad reciprocal influences; if they are patients, there is no danger of contagion; if they are madmen there is no risk of their committing violence upon one another; if they are schoolchildren, there is no copying, no noise, no chatter, no waste of time; if they are workers, there are no disorders, no theft, no coalitions, none of those distractions that slow down the rate of work, make it less perfect or cause accidents. The crowd, a compact mass, a locus of multiple exchanges, individualities merging together, a collective effect, is abolished and replaced by a collection of separated individualities.37 The Panopticon is seen by Foucault as increasing the operational facility of the organs of power by increasing the number of those who are controlled while diminishing, almost to vanishing point, the number required to maintain that control. [T]he perfection of power, he writes, should tend to render its actual exercise unnecessary.38 The Panopticon, by inducing in its inmates a state of conscious and permanent visibility assures this perfection by allowing power to function automatically. An important point for Foucault is that this structure removes the necessity for a sovereign, coercive, power: The ceremonies, the rituals, the marks by which the sovereign's surplus power was manifested are useless. There is a machinery that assures dissymmetry, disequilibrium, difference. Consequently, it does not matter who exercises power. Any individual, taken almost at random, can operate the machine.39 Indeed, for Foucault the inmate takes upon himself the power relation and, in it, plays both the role of observer and observed ultimately becoming the principle of his own subjection such that the power, through the medium of panopticism, may throw off its own weight and tend towards the noncorporeal.40 In this way it could be argued that Discipline and Punish may be seen as advocating the seeds of what comes to be called the frugal government. Indeed, this notion has been said to stand at the core change in the Foucault-Bentham relationship as an evolution in his thought away from a disciplinary approach toward a form of liberalism.41 Moreover, it is this concept of frugality that brings Foucault into direct contact with Benthams utilitarianism. As Foucault writes: the limit of a governments jurisdiction will be defined

Foucault, Discipline and Punish. Trans: Sheridan, Vintage (New York, 1997) pp.200-1. Ibid at p.200. 39 Ibid at p.202. 40 Ibid at pp.202-3. 41 Brunon-Ernst, Foucault Revisited, Journal Of Bentham Studies, Vol.9 (2007) at p.8.
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by the utility of such government intervention. ... Utilitarianism is a technology of government".42 The concept itself was borrowed from Bentham, and Brunon-Ernst argues that Foucault utilises it to build his theory of the growth of the modern liberal state.43 It can thus be said that Benthams influence and the influence of the Panopticon as a model reaches beyond what can be ascertained by reading Discipline and Punish alone. Foucault appeared to adopt Benthams utilitarian concept as an explicative tool in his theory of the modern state ruled noncorporeally. As Brunon-Ernst notes: Using the concept of frugal government implies reading Bentham at the crossroads of [Foucaults] economic writings and his small-scale or wider-scale government experiments in his Writings on the French Revolution, in the series of the Panopticon Writings and in Constitutional Code.44 It would thus appear that Foucault inherited not only panopticism and a utilitarian leaning from Benthams writings but also his undermining of natural rights through the application of a form, function and a utility based form of reasoning. In the case of the Panopticon what is sacrificed for the greater good, amongst other things, is a basic right to privacy in favour of frugal governance through a form of self-induced paranoia. Moreover, although Foucault sees the Panopticon as removing the risk of external violence he neglects the psychological violence that comes with forced individualism, isolation, constant observance and a complete removal of privacy. (d) Conclusion It is clear that Benthams writings have a very broad spectrum of influence. Where his theories fall or stumble it must be recalled that it is not only the structure of his thinking but the reformative power it carries which is of great value. Thus, when Blackstone confidently stated that: Every thing is now as it should be45 Bentham was apt to counter that: [A] system that is never to be censured, will never be improved: that if nothing is ever to be found fault with, nothing will ever be mended: and that a resolution to justify every thing at any rate, and to disapprove of nothing, is a resolution which, pursued in future, must stand as an effectual bar to all the additional happiness we can ever hope for; pursued hitherto would have robbed us of that share of happiness which we enjoy already.46 In the words of H.L.A. Hart: Where Bentham fails to persuade he forces us to think.47

Brunon-Ernst, Foucault Revisited, Journal Of Bentham Studies, Vol.9 (2007) at p.10; quoting Foucaults Michel Foucault, Naissance de /a biopolitique. Cours au College de France. 1978-1979 (Paris, 2004) at p.42. 43 Ibid 44 Ibid. 45 William Blackstone, Commentaries on the Laws of England (4 vols., Oxford, 17659), iv. 49. 46 Bentham, A Fragment on Government. In The Works of Jeremy Bentham, Volume 1: (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843]. ed. John Bowring (Edinburgh: William Tait, 1838-1843). 47 Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982) at p.37.
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Bibliography Ayer, The Principle of Utility, in in G.W. Keeton and G. Schwarzenberger, eds., Jeremy Bentham and the
Law: A Symposium (London, 1948).

Bentham, An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns and H.L.A. Hart, with a New Introduction by F. Rosen (Oxford, 1996). Bowring, ed., The Works of Jeremy Bentham, Volume 1: (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) [1843] (Edinburgh: William Tait, 1838-1843). Brunon-Ernst, ed., Beyond Foucault: New Perspectives on Benthams Panopticon (Ashgate, 2012) Brunon-Ernst, Foucault Revisited, Journal Of Bentham Studies, Vol.9 (2007). Dyzenhaus, The Genealogy of Legal Positivism, Oxford Journal of Legal Studies 24:1 (2004) 39 at p.40. Foucault, Discipline and Punish. Trans: Sheridan, Vintage (New York, 1997). Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982). Hart, Positivism and the Separation of Law and Morals reprinted in Hart, Essays on Jurisprudence and Philosophy (Oxford, Clarendon Press, 1983) Hocutt, Was Bentham a Utilitarian? Canadian Journal of Political Science, 38:3 (2005) 697-717. Kelly, Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law (Oxford, 1990). Lyons, Was Bentham a Utilitarian? Royal Institute of Philosophy Lectures, 5 (1971) 196-221. Perry, Harts Methodological Positivism, in J. Coleman, ed., Harts Postscript: Essays on the Postscript to the Concept of Law (Oxford, 2001). Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006). Schofield, Jeremy Bentham, the Principle of Utility and Legal Positivism (2003). Semple, Foucault and Bentham: A Defence of Panopticism, Utilitas, iv. (1992).

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