Guide Bentham’s Theory of Law and Public Opinion

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Bentham argues that there is no need to exclude criminals and the insane, because the former would not be released from confinement in order to vote, and the latter would be too small in number to affect the outcome Bentham d: However, while he argued for the inclusion of women at one point early in his career, at least with regard to France Bentham , —9 , their exclusion is a more consistent theme. Ultimately, he rejects the idea for fear that it would derail the possibility of other 8 To be fair, his strong support for universal education should be acknowledged.

The contest and confusion produced. But it is difficult to believe that an argument in favor of extending the franchise to incarcerated criminals and the insane would be less controversial than the inclusion of women. Essentially, Bentham justifies his position by saying that that the greatest happiness requires constitutional reform that expands the franchise and makes legislators accountable to the electorate.

If it is necessary to exclude half the adult population to accomplish it, so be it, since some expansion is better than none at all. What matters most is official aptitude, which is the consequence of a democratic system, not the principle of democratic participation. To get good laws requires establishing a system for good governance, which requires maximizing official aptitude and minimizing expense.

Democracy, then, is instrumental to good governance—and the ultimate end, the greatest happiness—insofar as it ensures official aptitude and minimizes expense. Ball and Boralevi agree on this point, but disagree sharply over whether Bentham can properly be considered a feminist. Much of their argument is concerned with issues outside of the question of the suffrage and need not detain us here. In my view both arguments have merit— this is clearly not a topic on which Bentham maintained a great deal of consistency.

If Bentham had hit on another, cheaper means for this, such as a way to ensure that a dictator may be kept benevolent, we may imagine that he would have promoted it. By the time of the Constitutional Code it was much more formalized. The Tribunal includes not only those who wield constitutive power i. It appears that his primary reason for incorporating a discussion of it in the Code was in support of an argument for the protection of freedom of the press.

As we have already seen, publicity, in his view, is a foundation- stone of good government. But the actual functioning of the Public Opinion Tribunal remains quite vague. These are generally accepted now as essential elements of any representative democracy although elections are usually not quite so frequent ; by the same token they were certainly radical at the time. But, like Schumpeter, Bentham sees democracy as a method, not an end to itself Schumpeter Republican government based on popular sovereignty, where the legislature is accountable to the people as opposed to, say, a monarch, is necessarily democratic.

The constitutive power is superior to the operative power; at the head of the operative power is the legislative power. What makes the system work as it should, according to Bentham, is official aptitude, which prevents the corruption of sinister interest. Bentham argues, in effect, that people left to their own devices will engage in self-interested behavior that will undermine security and be productive of nothing but misery. Thus the need for a system of rule that will be able to invoke the macro principle of utility to establish security and to put a thumb on the scale of pleasures and pains to guide people away from actions that are contrary to the greatest happiness and toward those that support it.

The problem he sees is that, without a way to ensure that they are beholden to the people, the rulers themselves may succumb to sinister interest and act in a self-interested manner that undermines the security and happiness of the people. This points, then, to an underlying contradiction in his theory, since the whole point of rule, as he sees it, is to shape the behavior of the people so as to align their self-interest with the social interest. But this invokes a kind of paternalism that is quite incompatible with the idea of popular sovereignty.

How can it be that the leader both provides direction and obeys the will of the people? As it happens, Mill may have William Thompson to thank for his insights on the educative effects of democratic participation. Kaswan 16 3. In this and subsequent works he lays out a radical democratic theory that is highly distributed and participatory.

To suggest that democracy is instrumental to utility in a utilitarian theory of democracy is, in a way, tautological, since every element in a utilitarian theory should be instrumental to the end of the greatest happiness. That sympathy and accountability should both. This, however, is a matter of speculation that should not detain us here. Kaswan 18 that a group of business leaders will accurately represent the interests of workers. But even with universal suffrage, Thompson expects little social improvement to come from its effects on legislators. By far the greater portion of these blessings will be found in the salutary effects produced by the exercise of political rights by the individuals of the community, on their own characters, in that acquisition of knowledge, security, and enlarged sympathy with indefinite numbers of their fellow-creatures.

This is an effect of a system based on inequality, as those who enjoy positions of power recognize that the stability of the system depends on the ignorance of their subordinates Thompson —3. Kaswan 19 Unlike Smith, Thompson extends his discussion to political institutions. The laws may produce a mechanical effect, and the people may be drilled to act their particular parts of subordination.

However, Thompson may owe W ollstonecraft more of a debt than he realizes, as his arguments against subordination bear a fairly strong resemblance to hers. Kaswan 20 representation.

Challenges for a revised view of Bentham on public reasoning

Thus, education is necessary in order to participate in government, and the act of participating in government provides them with further education. Interestingly, it shares many characteristics with the decision-making structures adopted by some social-movement organizations in the late s and early s e. Kaswan 21 participation in public affairs. Where democracy is at least twice removed for Bentham democracy being necessary for good government, which is necessary for the greatest happiness , it can be understood as a necessary condition, as its absence would break the cycle and undermine the whole system.

He makes the now- common observation that with great wealth comes great power, and those with wealth use this power to exert control over the political system, particularly with the goal of protecting their wealth Thompson Another part comes from the separation of the rulers and the ruled, and the recognition that it is in the interest of the rulers to devise rules in order to perpetuate their rule. Thompson argues that this premise is, in fact, false, because by the principle of utility men and women are only really concerned with their own happiness, and that this does not imply that they will seek to control others—if they recognize that the best means for achieving happiness for themselves involves seeking the happiness of others, then they will do so.

The problem here has to do with the nature of the competitive electoral system itself, where the accumulation of political power is the object. Such competition sets up winners and losers, placing members of the community against one another. The connection between economic and political power is twofold, in the sense that economic power provides both the reason and the means for the exercise of political power. To explore this, some ground-work must be laid using contemporary political theory before returning to Thompson.

Generally the primary concern is formal equality, although it is a fairly common point of critique of late- modern liberal capitalism that the inequality it engenders undermines democracy, where the advantages of wealth and the disadvantages of poverty enable some to have greater influence than others, or even most e. In the radical democracy literature, equality is a central concern, especially in the form of a critique of subordinate relationships such as those in the workplace, along with other forms of social subordination for example, as arise in racial or sex-based hierarchies.

Equality comes in many different forms: formal legal , economic, social, etc. Mainstream and radical democracy theorists generally agree that political equality is a necessary condition for democracy. In fact, democracy can be understood as the enactment of political equality: political equality put into practice is democratic practice. Thompson has been recognized, at least by some, as the principal theorist of Owenism e. Kaswan 24 representatives ballot measures—direct democracy—are generally treated with suspicion.

In radical democracy, the domain is expanded to include the social arena, particularly in the spaces where individuals interact on a regular basis: social institutions. Another way of putting this is to say that mainstream theorists tend—although by no means do they all—to maintain respect for a strict division between public and private realms, while radical democrats challenge that division Laclau and Mouffe ; Trend The radical democratic project can be understood as an attempt to extend the notion of equality as broadly as possible through the society. So, just as Foucault referred to all sites of the assertion of power in the form of authority as potential sites of resistance Foucault 92—6 , these may also be understood as sites or spaces for democratization: where the relationships between individuals are shaped in some sense by dynamics of power, there exists the potential for the participants to be recognized as equals in a political sense, such that each may have equal opportunity to affect—in other words, to participate in decision-making about—the conditions of that space.

The nature of that space—the context of politics—then becomes a central question for democratic theory. Dahl ch. In the cooperative community, people relate to one another as equals, and the institution of the community is structured so as to ensure that equality. The practice of equality—in other words, democratic practices—is, in a sense, free-floating, in that it is present as a structural condition in 20 These terms were fairly commonly used by first-wave feminists, as early as the s by Mary Astell, in the s by W ollstonecraft, and by Thompson himself in the Appeal W ollstonecraft ; Astell ; Thompson There are complicated questions about the nature of difference and the distinction that must be made between difference and inequality or— to put it another way— between equality and identity.

To say that two things are equal— i. These are interesting questions, but they go beyond what can be discussed here. Kaswan 26 each interaction between members of the community. Here it is ever-present. But while free- floating, equality and democratic practices are a part of the institutional structure, contained specifically within the institution of the cooperative community, and there is no guarantee that they will exist, at least in the same form, outside of the confines of the particular institution.

In effect, it is difficult to see how a community, organized expressly on principles of equality and mutual cooperation, could be anything other than self-governing. Although it is only mentioned once in this brief passage, the operation of this principle is evident throughout his work. Governance becomes little more than a way of solving coordination problems. For Thompson, public opinion acts to regulate the actions of the members of the community themselves.

Nothing could be more useful for every community than these voluntary individual exchanges: by means of them, all the uncongenial members of every community would be gradually withdrawing to societies more attractive to them. Might there be a community made up of curmudgeons and irritable misfits? Kaswan 28 leaders, then public opinion can be said to have a vertical, upward and unidirectional operation from public to officials.

The laws must be repealed. By the same token, it could be said that Bentham recognizes the function of public opinion to regulate the behavior of individuals through his discussion of the pleasure of reputation, but this certainly is not something he would consider as a political function, whereas Thompson sees it as a central component of the politics of the community. If this public opinion be formed of a very small majority, its force will be weak.

This might appear to be the very epitome of a deliberative democratic system, where deliberation is understood as an integral element of the decision-making process of the community.


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The question is, how to remove the institutional factors that impose force and constrain reason. While it may be said, as was seen with Bentham, that this is not necessarily the basis for a democratic system, it is for Thompson, with his emphasis on equality, voluntarism and self-government. The elimination of the causes of social division—property and competition—sets up the conditions whereby, under the principle of a virtuous disposition, an identity of interests can develop among the members of a community such that they may be self-governing both individually and collectively through the mechanism of public opinion.

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Jeremy Bentham political thought - दर्शनशास्त्र - Philosophy optional for UPSC in Hindi

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His research focuses on Bentham's applications of the principle of utility to public policy. 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. 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 , which he wrote for Tripoli and Greece; and the first volume of his unfinished Constitutional Code 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.

Jeremy Bentham

The experience of democracies in the 20th century, especially as regards taxation, may lead one to doubt such optimism. 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.

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.

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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. True, codification was all the rage in Europe at that time. 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. 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 that happiness is not a very good guide for the advance of civilization and the prosperity of the Open Society. 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 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. These practices grate with the customs of small face-to-face societies where our instinctive moral reactions were formed. The open rules learnt by cultural selection.


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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. Let me give a taste of who his correspondents were in Iberia and Latin America during the twenty five years from to 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 , 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. 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. Many letters passed between them. Another large body of letters was that of his correspondence with Count Toreno on a proposed penal code. Unhappily, he only finished them after , 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.