An Essay on the History of Civil Society , by Adam Ferguson. Online Library of Liberty.
Nations stumble upon establishments, which are indeed the result of human action, but not the execution of any human design.
Adam Ferguson: An Essay on the History of Civil Society1 (1767)
Jeremy Bentham was always ready to ply his trade with absolute sovereigns and liberal governments from Russia to Mexico, from England to Greece, hoping to be offered the possibility to rewrite their laws or carry out administrative reforms on the basis of his philosophy. The case of the Iberian world is especially interesting, as indicated by the more than 260 documents of his Correspondencia ibérica and many other works from his pen that I am in course of having translated.
It was in the 1820s that Bentham took special interest in the affairs of the Spanish and Portuguese speaking world. Liberal revolutions swept through the Iberian Peninsula and the Indies. The effect of Bentham's efforts on Iberian reality was in the end rather scarce. Political philosophies suffer diffraction when transported to a different culture.2 This was the case for the political and administrative philosophy of Jeremy Bentham: much was 'lost in translation' when his ideas were received in Spain, Portugal and Iberian America. This is ironic, given Bentham's belief that his philosophy was universally valid.
The reason he wrote so confidently to sovereigns, politicians, writers and educationists of all lands was that his proposals for the wholesale reconstruction of society were 'rational' and based on a simple model of human nature. In this he was the typical 'constructivist', to use F. A. Hayek's expression. Anything smacking of historical tradition or unplanned evolution was anathema to him. Bentham was so interesting because he was so unreasonably rational.
Jeremy Bentham was born in London in 1748 and died there in 1832. This does not mean that he was averse to travelling both in fact and in imagination: he wrote his famous In Defense of Usury (1787) while staying with his brother Samuel in Russia; and in his sixties he seriously contemplated going to live in Mexico, Argentina, Venezuela, or Chile. This indifference to what country he resided in while doing his work I take as an indication of his conception of the law. He gave his whole life to jurisprudence and the application of his kind of political and administrative reform to every human society on the lines of what he considered rational and proper. For him, jurisprudence was a universal science, based on two immutable principles of human nature: the search for pleasure and the avoidance of pain.
If society were the result of the natural harmony of individual utilities, there would be no need for law. As James Madison said, "If men were angels, no government would be necessary". Bentham was fully aware that when individual utilities clash there must be laws to impose artificial harmony, but he was less than aware that much in society is in fact the result of spontaneous evolution and not the result of legislation.
In the beginning, Bentham tried to convince enlightened despots, such as Frederic the Great or Catherine of Russia, that he possessed the formula to make their subjects happy. The logic of his utilitarian philosophy led him to write a "Project for a Constitutional Code for France" around the change of year 1788 to 1789, in which he advocated a great widening of the suffrage and the secret ballot. The French Assembly made him an honorary citizen, but the Terror turned him against the Revolution to the point that he forgot his erstwhile position. Around 1802, however, disappointed with the sovereigns in whom he had put his faith, he became increasingly radical. The failure of his attempt to convince the government to reform the procedure of the Scottish Courts and the failure of his project for a "Panopticon" prison, which had been approved by the House of Commons but was never built3 opened his mind to radical reform. By 1809 James Mill, John Stuart Mill's father, was able to turn him into a democrat, if by that we mean the extension of the suffrage to the middle classes. From then on Bentham embarked on the study of the ways to align the interests of governments with those of the governed, so as to maximize the happiness of the greatest number.
This new line of research took shape with the questions posed by the independence movements in America and by the restoration of the liberal Constitution of Cadiz in Spain in 1821, which led him to start work on a Constitutional Code addressed to "all nations and all governments professing liberal opinions".
Let me remind my readers of some of the works of this indefatigable 'projector'. In 1776 he published his first work, A Fragment on Government (anonymously and with some success), in which he for the first time applied "the fundamental axiom that the measure of right and wrong is the greatest happiness of the greatest number". His second book of political philosophy was An Introduction to the Principles of Morals and Legislation (1789) whose opening words I will comment on immediately. Bentham's legal philosophy spread in Europe (and later in the Americas) thanks to the three volume arrangement and translation of some of his manuscripts into French by the Genevan Étienne Dumont (1759 -1829), titled Traités de Législation civile et pénale (1802, 1820). It appeared in Spanish in 1821, just as the Cadiz Constitution of 1812 was reinstated.4 This excellent summary of Bentham's legal writings is what many Spanish, Portuguese and American liberals read. This was the first example of the way Bentham's doctrines spread in the Spanish world: through the untiring efforts of his devoted disciples.
One of his constant endeavors was the reduction of civil, penal, and procedural laws to clear and complete legal codes, so that judges would not act as legislators and people would know their rights and obligations. Political developments in the Iberian Peninsula and in America fanned his interest in constitutional questions: what he wrote on the 1812 Constitution of Cadiz and the American colonies and the interest he took in Greek independence led to his writing his Constitutional Code, of which only the first volume was published in his lifetime (1828). He also wrote amply on questions of political economy, where he showed himself less convinced by laissez-faire than is usually believed. He wanted to transform and spread education by means of a new kind of "Chestomatic" schools. Naturally he was a feminist. His manuscripts on Sexual Irregularities and Sexual Morality, in which he criticized the criminalization of homosexuality and other conducts, are in the course of publication now. As it was forbidden to use bodies other than those of criminals for anatomy lessons, he entrusted his own body to his friend Dr. Southwood Smith: his bones were then boiled, covered with his clothes and topped with a wax head by Madame Tussaud. This can be seen in a glass case at University College London, an institution he patronized. His manuscripts are being published by the Bentham Project of that self-same College—31 volumes up to now, going to 50.
His first publication came in 1789, under the title An Introduction to the Principles of Morals and Legislation.5 It contained the essential elements of his legal philosophy, maintained throughout his life. Chapter I on "The Principle of Utility" started with the following words:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne.
He immediately proceeded from this assertion of linked value and fact to his philosophy of law and the state:
The principle of utility recognizes 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 law.
One can understand the enthusiasm of his future disciples when they discovered in Bentham's works such a simple and seemingly all powerful principle, which jurists and politicians could take as a guide through the maze of social norms in any country of the world.6
The problems posed by this ethical principle are twofold: one regarding personal morality and the other regarding the organization of society. First, as a guide for personal morality it was (and is) widely felt to be too narrow a representation of what moves individual people for good and for bad. The explanation of all human behavior cannot be reduced to 'the avoidance of pain and the seeking of pleasure'. This is shown by the slow emptying of the concept of 'utility' in economic theory in the 20th century: today, utility is not understood as happiness but defined as anything individuals choose to value. In any society, especially a free society, there will be a great variety of choices and preferences. In extreme situations, some people are ready to set aside their personal interest for a selfless aim. These cases are insoluble from the utilitarian point of view.7 If Antigone had been nothing but a superstitious young girl and Creon a selfish tyrant, the play would have been nothing but a banal drama. When Creon asks Antigone to understand that it is his duty to apply the law that forbids her to bury her brother on pain of death and tells her to marry Haemon and be happy, she insists that she will perform the customary rites: "I am not here to understand. I am here to say No and die". Socrates, rather than flee the city, drank hemlock, not because he looked forward to eternal happiness in the Elysian Fields but because the gods told him to seek justice and virtue. Galileo should have been more prudent than ask skeptical Princes of the Church to observe the moons of Jupiter through his new looking glass; he was not trying to make them happy but to show them what he thought was the truth.
Then, should we conclude that individuals do not systematically try to maximize their utility? Remember Adam Smith's famous dictum: "It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard of their own interest."8 Individual self-interest has great explanatory power when analyzing human behavior, not only in markets but also in non-market contexts. This was the position of Nobel laureate Gary Becker. He was the economist who extended economic calculus to non-market goods that do not have a money price, such as racial discrimination, crime, marriage, number and quality of children, and labor supply. Was he applying utilitarian analysis to new fields previously ignored by economists? Not quite.9
Though Becker did take "an economic approach to human behavior" he was no narrow utilitarian. First, the principal aim of Becker's work was not to tell us what we ought to do, as Bentham would, but to analyze what in fact we do. Further, in his analysis he did not assume that we individuals are exclusively moved by pleasure and pain. The basic goods we humans value and try to maximize include the material, the immaterial, the religious, the social—such as life, health, protection, a happy conscience, love, the meaning of life, proper use of language, social consideration... not exclusively pleasure and pain. These fundamental goods are produced in the household, which functions as a kind of small factory, demanding the necessary inputs on the market or in society at large and combining them to the best of its knowledge. Homo Benthamicus only comes in when households demand these inputs, which are the arguments or elements of a conventional utility function.10
Becker was agnostic as to the happiness value of goods judged from outside. But this did not stop him from studying the formation of tastes.11 He did not rest content with assuming that individuals will value this or that good because the happiness it elicits is more intense or nearer in time.12 Individuals do not have an instant happiness meter. Neither is it enough to say that individuals modify their utilitarianism by rationally taking into account the long term consequences of their actions. For Becker, preferences are not formed rationally or consciously in that way. Preferences are in great part formed during childhood under the influence of the rules and behavior of their parents. In this, the traditions of society will be transmitted to children. As regards adults, their past habits in great part will guide behavior. Good habits are beneficial in as far as they increase future utility; they increase 'positive enjoyment capital' and make people inclined to consuming classical music or jogging, for example. Bad habits will reduce future utility and destroy 'enjoyment capital', so that larger and larger doses of liquor or drugs will be needed by addicts or alcoholics, for example, to maintain the same intensity of enjoyment.
Thus Becker shifted the attention of economists away from individual utility to opportunity cost, which influences actual choice and allows one to explain and predict behavior. The observed (equilibrium) mix of resources demanded by the household will depend on the opportunity cost of the elements in that choice, the main costs being price but also time, which is limited, and information, which is imperfect. As an example, let me mention Becker's study of racial discrimination. He started by admitting that there are employers who dislike people of other so-called races and prefer not to employ them; that is a given. But the more competitive the market in which they operate, the higher the cost they will have to bear in terms of lost talent if they follow their preferences. The predicted result is that minorities will be employed at a vanishing difference in wage. Preferences do not automatically translate into observed fact.13
For related ideas, see the EconTalk podcast episodes David Skarbek on Prison Gangs and the Social Order of the Underworld and David Rose on the Moral Foundations of Economic Behavior. See also "The Relentless Subjectivity of Value" by Max Borders, Library of Economics and Liberty, May 3, 2010; and "More Nonsense on Stilts: Mr. Bentham Is At It Again" by Anthony de Jasay, Library of Economics and Liberty, April 24, 2003. On EconLog, A few notes on utilitarianism, by Scott Sumner, July 24, 2014; and The Error of Utilitarian Behavioral Economics, by Bart Wilson, Oct. 3, 2013.
The greater problem with Bentham's utilitarianism is the transition from personal pain and pleasure to "the greatest happiness of the greatest number". Why should any authority care for the greatest happiness of its subjects? Must we suppose the law-giver or ruler is free of selfishness? No, we cannot. Bentham was the first to see that: hence his Securities against Misrule (1822-23), which he wrote for Tripoli and Greece; and the first volume of his unfinished Constitutional Code (1828).14
Then there is the problem of minorities. Why should legal and political decisions be in the hands of the majority? This could result in democratic oppression, especially since for Bentham, constitutions could be changed at the behest of each Parliament and no special majorities would be demanded to change or repeal fundamental laws. For him, total transparency, two year Parliaments and the "Public Opinion Tribunal" were enough guarantee. The experience of democracies in the 20th century, especially as regards taxation, may lead one to doubt such optimism.
Finally, there is Bentham's conception of the law. Three characteristics of Benthamite law fill one with apprehension: (1) that all law is an act of will of the sovereign upheld by penal sanctions; (2) that existing law should be razed to the ground, reconstructed and codified; and (3), that the resulting legal codes should exclusively be based on reason, i.e., on the principle of utility.
From the very beginning of his study of jurisprudence, Bentham saw punishment as the essence of social obligation. Penal codes were the base on which all other codes, civil or constitutional, were built. To be obeyed by their subjects, sovereigns had to announce and enforce penalties for disobedience.
It is not that Bentham ignored the existence of a body of law based on judicial precedent. On the contrary, Bentham fought the Common Law system all his life, because of its obscurity, casuistry, contradictions and lack of clear connection with utility.15 He wanted the whole body of law in England to be replaced by a coherent, all embracing system of codes (penal, civil, constitutional, and procedural), preferably drafted by Bentham himself and rationally deduced from utilitarian principles.
True, codification was all the rage in Europe at that time. The major model was Napoleon's 1804 French Civil Code. But the intent of these codifiers was not happiness but unification of the law in the name of unity around a national state. Also, given the continuous expansion of statutory law, codes in the end proved always to be provisional. Finally, codes are by necessity incomplete because most of the rules in any society have emerged and not been decreed by any sovereign; people abide by them not for fear of punishment but because the expectation of their being obeyed suits all parties.16
One could not imagine a more constructivist system than Bentham's. On the basis of the natural impulse of mankind to seek happiness, a rational legislator could draw the blueprint of a perfect society to be willed into existence by an enlightened sovereign.
There is a still more fundamental argument against political utilitarianism. In a most perceptive essay on the origin of social values, Friedrich Hayek underlined the large part played by the spontaneous evolution of rules. Even more important for our theme today, he showed in 1979 that happiness is not a very good guide for the advance of civilization and the prosperity of the Open Society.17
It is typical of constructivists and social engineers such as Bentham to think that the rules of conduct in our societies are either derived from our feelings of pleasure and pain, or consciously built by rational engineers. Hayek added a third source of values as bases of our organization beside the natural or the rational: blind cultural evolution.
The basic tools of civilization—language, morals, law and money—are all the result of spontaneous growth and not of design, and of the last two organized power has got hold of and thoroughly corrupted them. (Hayek, page 163)
This does not mean that rational criticism and amendment of traditional law is to be totally avoided, only that the legislator should be aware of the extent of his ignorance and prepared for unexpected consequences in any reform. Social engineering has such a good press among intellectuals and mainstream economists because people want to resist the spontaneous evolution of open societies. Many are the features of an open society that go against the grain of our nature as it was formed during the many centuries of tribal life. The customs and rules of the market economy clash with much of our inherited make-up and make us unhappy. Hayek gives a number of examples of 'unnatural' practices prevalent in market economies:
... the toleration of bartering with the outsider, the recognition of delimited private property, especially in land, the enforcement of contractual obligations, the competition with fellow craftsmen in the same trade, the variability of initially customary prices, the lending of money, particularly at interest... (page 161)
These practices grate with the customs of small face-to-face societies where our instinctive moral reactions were formed.
All this leads Hayek to underline that "[t]he morals which maintain the open society do not serve to gratify human emotions". Since the open society was never an aim of evolution (if evolution can have an aim), the emotions imprinted in the human breast only told man "what he ought to do in the kind of society in which he had lived in the dim past". The open rules learnt by cultural selection
... became necessary chiefly in order to repress some of the innate rules which were adapted to the hunting and gathering life of the small bands of fifteen to forty persons, led by a headman and defending a territory against all outsiders. (pages 161-162)
This disharmony in civilised life makes it impossible to use happiness as a guide for all the decisions that we must make in today's societies. Utilitarianism is basically flawed because it tries to base the ethics of the open society on the natural impulses of pain and pleasure, and "man has been civilized very much against his wishes". (Hayek's emphasis, page 168)
The Great Society has not come about as a result of consciously trying to promote the maximisation of happiness and it cannot be assumed that it will survive if we consciously pursue that aim.
My translation of the Iberian correspondence will include nearly one thousand documents. Bentham's feverish activity regarding the Iberian world is an indication of his efforts to spread his ideas and have them applied in the different nations of the civilized world—and beyond.
Let me give a taste of who his correspondents were in Iberia and Latin America during the twenty five years from 1807 to 1831.
Bentham touched on Spanish affairs in nine of the many letters he exchanged with Etienne Dumont, his Genevan translator. He also corresponded with Joseph Blanco White, a writer well known as the editor of magazines in Spanish that he published from the safe haven of London; he had fled Spain and had established himself in England as early as 1810, in search of political and religious freedom. He was lucky to have the protection Lord Holland, a great friend of the Spanish liberals during the Peninsular War against the French. Bentham also exchanged letters with Holland on an extraordinary commission: to ask him to intercede with the then Minister of Justice in the Spanish Government, the great writer and economist Gaspar Jovellanos, to grant him permission to go and live in Mexico; for he could not stand the London weather, he said. At that time he was sixty!
While the Peninsular War raged, Bentham shifted his attention to Spanish America, where the first stirrings of independence were being felt. Buenos Aires was the first territory to cut ties with Spain. He had received a visit from Bernardino Rivadavia, later the first President of Argentina. Bentham gave him a copy of his Tactique des assembleés législatives (1816) and wrote to him when he was back in South America. Rivadavia had a most agitated political life. He tried to turn Argentina into a centralized state along utilitarian lines but was thwarted militarily in his plans and died in exile, in Cadiz of all places. His only lasting Benthamite contribution was the book of procedure of the Argentine Assembly, which still bears the mark of Bentham's Tactique.
When in 1821 a liberal regime was reestablished in Spain by force of arms and the 1812 Constitution reinstated, Bentham saw this as a precious opportunity to influence the Cortes' legislative program. He had a number of helpers and correspondents in this endeavor: mainly two Englishmen, Edward Blaquiere and John Bowring, and a number of Spaniards, mainly Jose Joaquin de Mora and Toribio Nunez. Many letters passed between them. I have counted twenty-nine letters exchanged with Mora, who translated some of Bentham's works into Spanish; and four with Nunez, who wrote a book on The Spirit of Bentham (1820) and attempted to effect a synthesis between utilitarianism and the philosophy of Kant. Another large body of letters was that of his correspondence with Count Toreno on a proposed penal code. The full extent of Bentham's attempts to intervene in Spanish affairs can be gauged by the writings translated by Mora: two letters against the creation of a House of Lords, four on freedom of the press, three Tracts Relative to Spanish and Portugueze Affairs and seven Letters to Count Toreno on the Proposed Penal Code. 18 Among his manuscripts one can also find three full works of comment on the 1812 Spanish Constitution with an exhortation to give up their Empire. Unhappily, he only finished them after 1823, when King Ferdinand VII had re-imposed absolutism and done away with all traces of liberal thought among his subjects—except for the rebels in America.19
The letters to Portuguese correspondents were also abundant: seventeen to the Portuguese Cortes directly and another thirty five to different officials. The Cortes of Portugal officially had invited Bentham to write some of their legal texts, but the liberal regime in Portugal only lasted from 1821 to 1822 and the whole project fell by the wayside.
By the year 1825, Spanish liberals had been imprisoned, put to death, or forced into exile. The Spanish Indies had attained full independence. Bentham turned his attention to America, with nine letters exchanged with the great Venezuelan leader Simon Bolivar, one sent to the Argentinian Jose de San Martin and four with Jose Cecilio del Valle from Guatemala.
Few in Spain paid any attention to Bentham's diatribe against an Upper Chamber. The Penal Code of 1822 shows no trace of Bentham's objections set out in his letters to Toreno. In South America, Bolivar tried to create a centralized Federation along the lines of the US and in keeping with the spirit of Bentham; he failed dismally. Later, after an attempt on his life by a group of radical students, he forbade the use of the Traité at the Faculty of Law. From his base in Argentina, San Martin freed Chile and Peru from Spanish domination but refused to have any part in post-colonial political squabbles. And Valle, who tried to unite Central America into a single state, failed and duly fell from power. Only in today's Colombia were Bentham's ideas central in the attempt of the state authorities to take education from the hands of the Church. Bentham's blueprints for the Iberian world went the way of many other rational reconstructions of society in Western history.
In sum, utilitarianism is a choice example of what Hayek denounced as political 'constructivism'. It is fundamentally oblivious to local tradition, so it did not fit in well with the circumstance in those faraway lands. And its mechanical rationalism strongly appeals to political philosophers inclined to rebuild societies after their own preferences, one of the distinguishing characteristics traits of today's welfarist democracy.
Some prime examples are Marxism in Russia and China, and democracy in parts of Africa and Latin America.
"Sinister interests", as he would later call them, successfully resisted the construction of that scientific prison in London. Panoptic prisons were built in other parts of the world, but never in England. The buildings were circular, with individual cells like orange slices. The inmates never knew whether a guard was invigilating them from the center—hence the name of Panopticon. The expenses were to be defrayed with the produce of the prisoners' work.
Tratados de legislación civil y penal: obra extractada de los manuscritos del señor Jeremías Bentham, jurisconsulto inglés por Esteban Dumont, miembro del Consejo Representativo de Ginebra, y traducida al castellano con comentarios por Ramón Salas. Madrid, 1821, in five volumes.
Edited by J. H. Burns and H. L. A. Hart. The Collected Works of Jeremy Bentham. Oxford University Press, 2000. Gated access at: http://library.nlx.com/xtf/view?docId=bentham/bentham.00.xml;chunk.id=div.bentham.pmpreface.1;toc.depth=2;toc.id=div.bentham.pmpreface.1;hit.rank=0;brand=default.
Bentham was conscious that he was treading on slippery ground when linking pleasure, pain and ethics in a single passage. He was clearly committing a logical fallacy, later called 'the naturalistic fallacy'. He was familiar with David Hume's writings and the warning that 'ought' propositions could not be derived from 'is' propositions. As Dr. Dinwiddy has underlined, Bentham did end his paragraph with the following words: "But enough of metaphor and declamation: it is not by such means that social science is to be improved." A dangerous metaphor, as I shall argue. However, it is my contention that the utilitarian philosophy is a clear example of the 'naturalistic fallacy'. Despite Dinwiddy's explanation (Bentham, Alianza Editorial, 1995) it still is my contention that Bentham wanted to base both his individual psychology and his moral philosophy on a single principle, the principle of utility.
Amartya Sen for this purpose distinguishes "basic" and "non-basic" values, the basic being those that are defended whatever the consequences. (Collective Choice and Social Welfare, 5.3. 1971, Oliver & Boyd, Edinburgh.)
An Inquiry Into the Nature and Causes of the Wealth of Nations, par. I.2.2, by Adam Smith (1776). The £20 note at present legal tender in England and Wales on the reverse bears a portrait of Adam Smith and a quotation of his pin factory example of the division of labor. It should have been the butcher, the brewer and the baker. It is typical of today's instinctive rejection of free markets that bureaucrats should have chosen the division of labor rather than the operation of self-interest as the most important idea of The Wealth on Nations.
See the "Introduction" to R. Febrero and P. Schwartz, eds., The Essence of Becker. Hoover Institution Press, 1995.
Becker even showed that a normal demand curve (i.e. that the quantity demanded increases when price falls) could be derived even if the individual was assumed not to behave rationally. See "Irrational Behavior and Economic Theory"(1962), Febrero and Schwartz eds. Op. cit., article 2.
Gary Becker: Accounting for Tastes. Harvard University Press, 1998.
This is what Bentham tried to do with his "felicific calculus". See Chapter IV of his Introduction to the Principles of Morals and Legislation (1780), titled "Value of a Lot of Pleasure or Pain, How to be measured".
Gary Becker, The Economics of Discrimination. University of Chicago Press, 1971.
Securities against Misrule and Other Constitutional Writings for Tripoli and Greece, Phillip Schofield ed., in The Collected Works of Jeremy Bentham, Oxford University Press, 1990; and Constitutional Code, volume I, F. Rosen and J. F. Burns eds., Oxford University Press (1830, 1983).
Bentham's first publication was an anonymous pamphlet titled A Fragment on Government (1776), consisting of an attack on the Commentaries on the Laws of England by the great defender of the English Common Law system, Sir William Blackstone (1723-1780).
See Pedro Schwartz, "Happiness Is Not within the Government's Remit: The philosophical flaw in happiness economics," in Philip Booth, ed. ... And the Pursuit of Happiness. Institute of Economic Affairs, 2010. PDF file.
"The Three Sources of Human Values", the Epilogue to the three volumes of Law, Legislation and Liberty (University of Chicago Press, 1979).
Not all the essays for Count Toreno were published at the time. See On the Liberty of the Press and Public Discussion and Other Legal and Political on Spain and Portugal, the Collected Works, Catherin Pease-Watkin and Philip Schofield, eds., Oxford University Press, 2012.
Peter Schofield ed., Colonies, Commerce, and Constitutional Law. Rid Yourselves of Ultramaria and Other Writings on Spain and Spanish America. Oxford University Press, 1995.