The Dimension of History in Bentham's Theory of Law

Abstract

BENTHAM WAS INDIFFERENT TO HISTORY So reads the scholarly literature. Students of Bentham such as Sir Henry Maine, Leslie Stephen, and John Plamenatz all agree that Bentham's utilitarianism was divorced from history. Bentham himself provides direct evidence of this assessment. To be sure, he said, legal reform requires the use of history, but is from the folly not from the wisdom of our ancestors that we have so much to learn.' Against this consensus and, indeed, against Bentham's own denial of the utility of history,2 this paper directs our attention to Bentham's use of notions of time and history against history as conventionally understood. Three arguments are offered. The first is that Bentham's formal jurisprudence and proposals for legal reform incorporate elements of natural or hypothetical history an explanation of the past, present, and future in opposition to the uses of the past as authoritative. The second is that Bentham's schemes of indirect legislation and political-religious reforms presume this countertheory of history and seek to make it authoritative in the future. The last argument is that liberal interpreters of Bentham utilize elements of this same countertheory of history both in criticizing and in defending Bentham's legal theory. Re.ntham did nnt invent natulrnl or hvnothetical hiktnrv Its 0tr.c-