Prof. Bill Long 9/29/05
I devised the following worksheet in order to help you focus on Bentham's argument in the Preface, Introduction and ch. 1 of A Fragment of Government (1776). I will put in answers to some of the questions. Where I give only partial answers it is because I have already answered the questions more fully in the 2005 Bentham essays.
1. What is the difference between an Expositor and a Censor for Bentham? Which is he?
This question gets to the heart of how Bentham saw his work differently from Blackstone ("B"). He says, "To the province of the Expositor it belongs to explain to us what, as he supposes, the Law is: to that of the Censor, to observe what he thinks it ought to be." Bentham sees himself as Censor while B is an Expositor. However, when the work of Exposition is dolled up in such nice language and such seeming authority as B gives it, people tend to get confused and think that it is also the work of a Censor. That is why Bentham is so adamant in trying to emphasize his distinctness from B. B is opposed to reformation of the law; Bentham wants changes.
2. Show some language from Bentham where he specifically says why he doesn't like either the writing or the approach of B to the common law.
Many passages will do, but I like par. 30 of ch. 1. In par. 29 he quotes B's words that "when society is once formed, government results of course" (p. 48). Then Bentham goes to work. "By the words, 'of course,' is meant, I suppose, constantly and immediately." But he then points out examples of the "Hottentots" or "Patagonians," where this isn't the case. Then, in par. 30 he accuses B of using words imprecisely. Maybe he really is trying to say that this "ought" to happen rather than it "does" inevitably happen. But if this is the case B would be a "Censor" rather than an "Expositor," though he claims to be the latter. This is only one small example of how Bentham characterizes B as a slippery writer, covering over large issues with imprecise words, and therefore arrogating to himself a larger scope of authority for his work than it actually deserves.
3. Bentham coined words, as we saw last class (i.e., international, minimize, maximize). What does he mean by the following?
a. condivident (at fn. 2 in text)-- separate.
b. parergona work of superorgation (two pages later)--a real
mouthful--it means a completely superfluous work.
c. animadversion (several times)-- an objection.
d. paralepsis (my word). See this essay.
e. quiddities (bet. fn. 23 and 24)-- obscure matters.
f. inveterate (par. 30, ch. 1) -- unyielding or unchanging.
g. chimera (par. 36, ch. 1) -- monster
4. What is Bentham trying to argue about burglary, fns. 8 and 10 in Preface?
See this essay under paralepsis.
5. What does Bentham mean by calling the CL "dog law" (he does this elsewhere)?
Bentham's two most memorable lines describing the CL are that it is "dog law" and its numerous fictions and fables are "nonsense upon stilts." A word first about fictions and fables. The great "fable" for him is natural law. A fiction, however is a device spoken of that really has no meaning in current terminology but which is used as a legal "shorthand" in order to work injustice. For example, he asks, "What then is to be done with those names of classes that are purely technical? With offenses, for example, against prerogative, with misprisions, contempts, felonies, praemunires? (at fn. 23)" This is "blind and intractable nomenclature," and Bentham sees himself as bringing light into the terminology of law.
His "dog law" reference is illuminating. You beat your dog after it has done something wrong. How does it know, then, to avoid something? Only after it has done the thing that you don't want it to do. The CL functions in the same way for Bentham. Because of the multitude of conflicting precedents and the inaccessibility of the law, plaintiffs and defendants are truly "rolling the dice" every time they go into court. This observation about the CL being "dog law" is behind his effort to support codification with clear and easily definable terms. People of average intelligence ought to be able easily to discover what the law is.
6. What is the value of a promise, for Bentham?
I asked this question because it is here that his break from the "natural law" approach is most evident. But let's be clear for a moment about natural law. In class we focused on natural law as taught by Thomas Aquinas, especially in QQ 90-97 of Part 1 of Part II of his Summ Theologica. In this text natural law is one of four laws built into the structure of the universe by God: eternal, natural, divine and human. Natural law is a reflection of the eternal law of God and is captured in such statements as one should avoid the evil and seek to do the good. But natural law theorists also had another champion and that was the 17th century philosopher John Locke. Though he might have agreed with Thomas, he was no theologian and thus sought to locate the natural law in a hypothetical "original contract" entered into by people in which duties of rulers and ruled were spelled out and social harmony was assured. Each of the two parties to this "original contract" made promises that it must fulfill. But it is easy to take this "natural law" philosophy in a conservative direction, only allowing revolt or dissension when things had become utterly intolerable.
Bentham wants nothing to do with this doctrine. In brief he suggests that not only contracting parties but citizens only owe obedience to the government as long as it remains to their advantage or their interest (par. 43, ch. 1). The baldness of Bentham's statement is jarring. But, we need to put his answer in the context of the section in which it appears. As suggested above, he has been trying to debunk the myth of the "Original Contract," taught by social contract theorists such as John Locke and assented to by B, but powerfully criticized by David Hume. Thus his comparative overstatement. In addition, the doctrine of "efficient breach" in contract law, as taught by law and economics folks more than a century later, finds its origin here in Bentham.
7. What is his attitude toward the theory of the social contract?
See preceding answer and this essay.
Even though Jeremy Bentham makes nearly everyone mad at some point or other, he is, in my mind, the most interesting and compelling person in the modern study of jurisprudence. He simply is uncompromising when he thinks he is on the right track. And, he believes deeply that the CL as it is practiced in England is a system that favors the rich and has no claims on being a just system. But, as I mentioned in class, I don't recall whether he ever uses the word "justice" to describe what interests him. I think he is far more interested in applying the principle of utility to all human activities and having laws that are clear and succinct, and which flow from this principle (maximizing pleasure or happiness for the greatest number) than he is with maintaining traditional (and stifling) legal terminology.
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