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Published online by Cambridge University Press: 26 January 2009
The argument of this paper is part of a general defence of the claim that Bentham's moral theory embodies a utilitarian theory of distributive justice, which is developed in his Civil Law writings. Whereas it is a commonplace of recent revisionist scholarship to argue that J. S. Mill had a developed utilitarian theory of justice, few scholars regard Bentham as having a theory of justice, let alone one that rivals in sophistication that of Mill. Indeed, Gerald J. Postema in his book Bentham and the Common Law Tradition, argues that Bentham had no substantial concern with the concept of justice, and that what analysis of the concept there is in Bentham's thought is unlike the utilitarian theory of justice to be found in chapter five of J. S. Mill's Utilitarianism Although Postema's interpretation is not the only one that will be addressed in this paper, it serves as an important starting point for any rival interpretation of Bentham's ethical theory for two reasons. Firstly, it is the most comprehensive and most penetrating discussion of Bentham's utilitarian theory, drawing as it does on a wide variety of published and unpublished materials written throughout Bentham's career. Secondly, it is interesting in this particular context because the contrast that Postema draws between Bentham's and Mill's theories of justice depends upon a particular reading of Mill's theory of justice and utility which is derived from recent scholarship and which is by no means uncontroversial. As part of the defence of the claim that Bentham had a sophisticated theory of distributive justice, it will be argued in this paper that the contrast drawn between Bentham and Mill does not stand up to careful scrutiny, for insofar as Mill's theory of justice can be consistently defended it is not significantly different from the utilitarian strategy that Bentham employed for incorporating considerations of distributive justice within his theory. This is not to claim that there are not significant differences between the theories of justice of Bentham and J. S. Mill, but it is to claim that whatever technical differences exist between their theories, both writers saw the need to incorporate the concept of justice within utilitarianism. Therefore, rather than showing that Mill is an interesting thinker to the extent that he abandons his early Benthamism, by demonstrating how close Mill's theory of utility and justice is to that of Bentham, it will be possible to argue that Bentham employed a sophisticated and subtle utilitarian theory that was responsive to the sort of problems which occupied Mill a generation later.
A version of this paper was first presented at the International Bentham Society Conference, King's College, Cambridge, 13–15 July 1989. I am grateful to Professor Gerald Postema and Professor David Lyons for their comments on a subsequent draft.
1 For an extended discussion of this interpretation see Kelly, P. J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Oxford, 1990Google Scholar; see also Kelly, P. J., ‘Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham's Economic Thought’, Utilitas, i (1989), 62–81.CrossRefGoogle Scholar
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18 Here Mill writes: ‘The creed which accepts as the foundation of morals, utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain and the privation of pleasure’ (Essays on Ethics, Religion and Society, CW, x. 210).Google Scholar
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… Bentham is not arguing for a principled restriction of official attention to considerations of expectation utilities, to the exclusion of all other potentially relevant utilities. His utilitarian theory of justice does not mark a departure from the direct act-utilitarian view that the principle of utility is always the sovereign decision principle. Tied to expectation is a species of utilities which in Bentham's view, are especially weighty in contexts of official decision-making, and this is why they tend to override relevant original utilities. But there is no reason to believe that they will do so in every case (p. 154).
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28 In the 1829 ‘Article on Utilitarianism’, in Deontology Together with A Table of the Springs of Action and Article on Utilitarianism, ed. Goldworth, Amnon, Oxford, 1983Google Scholar (The Collected Works of Jeremy Bentham), pp. 289–318Google Scholar, Bentham refers to property as including rights to protection of the person, possessions, condition in life and reputation.
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The act-utilitarian is therefore in fact able to give an account of social norms which bar direct appeals to utility as more than mere rules of thumb in a two-fold sense. Firstly, they perform the central function of directing human behaviour into channels that it would not otherwise take by restructuring the sets of considerations of consequences of which utilitarian moral agents must take account. Secondly, they provide reasons for action in that their conventional acceptance is tantamount to the existence of systems of warranted expectations, the disappointment of which is a disutility according to standard normal cases of their violation (pp. 70–1).
32 Bentham did not accept the conservative position of Hume, that the maintenance of a stable and secure pattern of social rules was all that was required by justice. However, though Bentham introduced the disappointment-preventing principle in his later writings as a means of reconciling security of expectation with the requirements of reform, the principle was intended as a means of minimizing the disutility that necessarily arose from certain required interferences with a given pattern of expectations.
33 It is perhaps not surprising that Bentham's own concerns with Poor Law administration and various economic projects are concentrated in the decade of the 1790s, at the height of the war with France.
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63 Bentham's employment of the concept of a security enables him to avoid some of the problems that Hart raises for an account of moral rights within the utilitarian theories of Bentham and Mill. See Hart, , ‘Natural Rights: Bentham and John Stuart Mill’, pp. 79–104CrossRefGoogle Scholar. Firstly, by abandoning the language of moral rights, Bentham is able to avoid the difficulties that arise from Mill's analysis of moral rights as a reason for the creation of a conventional moral or legal right. The problem with such a position is that it precludes the claim that someone has a moral right to x from serving as a ground for a legal right, for this would mean that if the having of a moral right already means that there is a reason for there being a conventional legal or moral right, then the claim that x has a moral right is not itself serving as a reason for there being such a conventional right. This sort of problem can be avoided by adopting a realist methodology where all rights are features of conventional rule systems, and employing the concept of a security to refer to those particularly weighty considerations which may not feature within a given conventional configuration of rights, but which on the grounds of utility ought to be included. Secondly, Bentham's use of the concept of a security enables him to identify a particular set of considerations that ought to be incorporated within the configuration of rights and titles. In the Civil Law writings Bentham uses securities to demarcate a basic realm of personal inviolability which in turn provides the conditions of interest formation and the conditions of personal continuity and coherence. In this way the sort of considerations incorporated in a utilitarian theory of justified legal or conventional rights are able to provide peremptory near stringent constraints on direct appeals to the principle of utility, and they are precisely the sort of considerations which, according to Hart, must be at the root of an adequate notion of moral rights.
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