Untitled Document

In the previous essay I explained how Bentham came to focus on this one section (47-53) of B's first edition. At first he wanted to write a critique or "Comment" on the Commentaries in general, but the more he focused on this section of the Introduction, where he actually says that B was most original, the more he thought it needed separate treatment. Hence, Bentham's focused treatment on it follows. Thus, he decided to write an entire work devoted to these few pages of B, and to put off until another time this more ambitious project "under some such title as that of 'A Comment on the Commentaries.' Actually he returned to that task but only half-heartedly, later in life.

Bentham's working arrangement here is typical of his genius and his modus operandi. He gets an idea, begins to focus on it, discovers it really is a very, very huge idea, takes a small piece of it, writes with abandon on that small piece (deciding to "save" the big project for later) and then never really returns to the big project because so many other things occupy his mind. Thus, at the end of his life, he had thousands of MS. pages of complete and incomplete musings, which will, when the Bentham Project finishes editing them all, come out to about 70 volumes. Not bad for a lifetime of work.

Now, to the Work

1. In the middle of p. 4, then, Bentham lays out one of the principal distinctions that will guide his work--the difference between the Expositor and the Censor. He explains: "There are two characters, one or other of which every man who finds any thing to say on the subject of Law, may be said to take upon him; that of the Expositor, and that of the Censor. 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 to us what he thinks it ought to be." Thus, the Expositor only is concerned with the "faculties of the mind" of "apprehension, the memory, and the judgment," while the Censor, according to Bentham, because he is interested in pleasure or displeasure about the laws themselves, "holds some intercourse with the affections." While the Expositor is interested only in the laws of a country, the Censor is "or ought to be the citizen of the world." The Censor teaches "that science, which when by change of hands converted into an art, the LEGISLATOR practices." Hence, we know that for Bentham the work of the Censor is really the valuable work in law.

2. So how does Bentham evaluate B's work? By his motto 'Ita lex scripta est' ("thus the law was written"), B shows himself to be one interested in explaining what the laws of England were. He, therefore, is an Expositor. For B the work of censure "was to him but a parergon: a work of supererogation," a wonderful and show-stopping phrase coined by Bentham (and picked up by no one) to mean a completely superfluous activity. Well, B doesn't give us a Censorial work, and Bentham is willing to excuse him for it. Indeed, B thereby is not "chargeable with any deficiency."

3. Yet B's decision not to be a Censor but only to be an Expositor has a subtle effect on the reader. If he is a "bigotted and corrupt defender of the works of power," he then "becomes guilty, in a manner of the abuses which he supports: the more so if, by oblique glances and sophistical glosses, he studies to guard from reproach, or recommend to favour, what he knows not how, and dares not attempt, to justify." If B had contented himself simply with narrating the history of English law or stating how an institution has functioned, little blame could be heaped on him. But "if not content with this humbler function, he takes upon him to give reasons in behalf of it...it is far otherwise." If he gives a "false and sophistical" defense of an institution, by not merely describing it but also giving the impression that the institution is good and correct and right, "he himself is chargeable with: nor ought he to be holden guiltless even of such as, in a work where fact not reason is the question, he delivers as from other writers without censure." (still p.4). In other words, under the guise of mere description or exposition, B is really saying that this is the way things ought to be. Bentham will take it as his task to unveil this tendency in B's work, to expose its subtle prejudices which are captured in a word here or a word there, to show that the great Expositor of the law is, in fact, a person who opposes all reformation and is utterly committed to the status quo. Thus, Bentham looks at B's work as having an insidious dimension to it--under the guise of description it really is a prescriptive work. He sees B really saying--'not only is this the way that law is; this is the way law has to be.'

4. But Bentham leaves no doubt as to where he stands. "Thus much is certain; 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." Even the declaration "everything is as it should be" (which he takes to be B's real motto) is at variance "with reason and utility." He will be a Censor, just as B is an Expositor. Yet, he doesn't see himself as casting precipitate censure on institutions. Sometimes he admits that censure may be "ill-founded," but if directed at an institution it has the salutary effect of bringing it to the test: it will show how valuable the institution actually is to the society. Rather than looking at criticism then as destructive of institutions, he sees it as beneficial for the strengthening of good institutions.

5. In a digression of sorts (top of p. 5), Bentham turns to the difference between attacks on an institution and those on a person. The former should be taken with seriousness and, because of their impersonality, are not directed at "law as enemy." However, attacks on people often arise from some real grievance. This allows him a long digression (fn. 4) on the word "arrogance." The footnote, really, is a scathing attack on how B has changed some of his wording from the first to the second edition as the result of some objections of Priestly and Furneaux. In order fully to understand Bentham's point we would have to have both editions before us. But Bentham is trying to show that B was indiscreet in using the word "arrogant" to describe anyone who censures some long-standing institutions (such as the church). In the second edition B deleted the word "arrogance," toning it down to "indecency." But B added other words, too, leading Bentham to say that critics "have been the means of his adding a good deal of this rhetorical lumber to the plentiful stock there was of it before." Bentham also adds, however, that by deleting some words like "arrogance," B is somewhat chastened, "but all the Doctors in the world, I doubt, would not bring him to confession" (fn. 4).

6. Who are the people, in Bentham's judgment, that simply submit to the authoritative words of someone like B? "The fruits of such tuition [i.e, honor paid to people like B] are visible enough in the character of that race of men who have always occupied too large a space in the circle of the profession: A passive and enervate race, ready to swallow any thing, and to acquiesce in any thing: with intellects incapable of distinguishing right from wrong, and with affections alike indifferent to either: insensible, short-sighted, obstinate: lethargic..." (p.5).

Conclusion

We are only on p. 5 of his Preface, but we can clearly see that here is a man who is not going to suffer fools gladly. Here is a young man supremely confident not only in his critical abilities but of his ability to put the law of Britain on a different footing. Bentham will have huge blind spots, but right now he is going like a terrier after B.

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