Thomas Jefferson Versus Jeremy Bentham

The roots of my long running debate with John Yoo

The latest Three Whisky Happy Hour podcast led off with a brief description of the latest Berkeley Law seminar on constitutional theory that John Yoo, Linda Denno (“Lucretia”), Judge Janice Rogers Brown, Dan Kolkey, and I taught recently. It resumed a long-running debate I’ve been having with John for several years now, pitting the natural law/common law tradition against modern legal positivism. Positivism sees law as anchored only in the will of the sovereign, and not traceable to any fundamental theory or principle of natural right.

Jefferson, Lincoln, Bentham, and Hart

Put differently, my argument is that there has to be an unchanging ground of changing experience, and, derivatively, an unchanging orientation of the law amidst changing circumstances and the demands of judging. This debate is as old as Plato, and the dispute came up in the Supreme Court as early as Calder v. Bull in 1798. Justice Samuel Chase argued: “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.”

To which Justice James Iredell argued back:

“The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”

There’s a lot more to this argument which can be traced back to the subtle distinctions about the nature and limits of legislative power as laid out in Blackstone and Locke, but it would take too long here to go through that vector adequately even though it is much needed today.

The alternative, however, is the view that all law is merely conventional, that is, the pure or sole will of the sovereign. This essential positivism was rejected and (in my mind) thoroughly refuted by the classics, and many modern examples both philosophical and historically contingent (say, for example, Lincoln versus Douglas over slavery, or the problem of law during and after Nazi Germany’s brief but catastrophic rule in the 20^th century.)

Modern legal positivism, and some of its derivatives such as the law and economics school of jurisprudence, derives largely from Jeremy Bentham’s Utilitarianism. Recall that Bentham called natural rights—the core principle of the Declaration of Independence—“nonsense on stilts.” He also disdained the idea of liberty itself, opposed Bills of Rights or Declarations of Rights, and opposed any declaration of principles held to be immutable and above criticism in constitutions.

For Bentham and his epigones, pleasure replaces the rational telos of “the good” as the classics understood it. Utilitarian pleasure is just an updated but arguably desiccated form of Epicureanism. While more purely subjective, the pain side of the Utilitarian equation was not. In the late 20^th century in law and economics, Bentham’s “pleasure and pain” equilibrium became a pure “social welfare function,” in which maximizing wealth through efficiency is the chief analytical technique.

It would take too long to explore Bentham’s philosophy and impact on jurisprudence. Perhaps some other time. In my opinion the greatest analysis and critique of Bentham remains a book that is nearly 100 years old, Elie Halevy’s 1928 masterpiece The Growth of Philosophic Radicalism. The title conveys my thesis: despite how Bentham’s Utilitarianism was domesticated by his successors James Mill, John Stuart Mill, David Ricardo, and others, Bentham’s radicalism rivals the significance of Hegel, Rousseau, Marx, and Nietzsche for its effect on social-moral-legal thought in the 20^th century.

Rather than try in the short form of a Substack article to trace out the immense difficulties of Bentham, let’s just compare two statements side-by-side. The first is from Thomas Jefferson in his famous letter to Roger Weightman just weeks before Jefferson died in 1826, arguing the premise of human equality from which the principle of the consent of the governed is derived (among other things), and which Lincoln grabbed hold of as the centerpiece of argument against slavery in the 1850s:

“All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God, these are grounds of hope for others.”

Now compare what Jefferson says here to what H.L.A. Hart, the Bentham-inspired author of the famous 1958 Harvard Law Review article “Positivism and the Separation of Law and Morals” has to say about the same question:

“Some find the political and moral insight of the Utilitarians a very simple one, but we should not mistake this simplicity for superficiality nor forget how favorably their simplicities compare with the profundities of other thinkers. Take only one example: Bentham on slavery. He says the question is not whether those who are held as slaves can reason, but simply whether they suffer. Does this not compare well with the discussion of the question in terms of whether or not there are some men whom Nature has fitted only to be the living instrument of others? We owe it to Bentham more than anyone else that we have stopped discussing this and similar questions of social policy to that form.”

I’ll stick with Jefferson and Lincoln over Bentham and Hart, thank you.