· He doesn’t like social contract theory
o There never was a social contract/false premise
o Social contract: You should obey because you consented
· Instead, replace it with utilitarianism/happiness principle
o Government should be for the greatest happiness of the greatest number of people
o You should obey because government is working towards something
o The advantage of this principle is not that utilitarian principle every happened, but rather that it is the right reason for government to be doing –
§ It only makes sense that people would be part of government only if they got something from it, not if it was harming them (kind-of; it makes sense in the same way that everyone was in the woods and consented to government).
· We’ve been told by three authors in a row that Britain is the model for government – but Bentham disagrees –
· Judicial review (p.99)
o The mode of opposition is a legal one – judicial review
o Give the power to annul acts to the judges, and you give part of the supreme power to a set of men who haven’t been chosen –
o Bentham doesn’t like judicial review – and he doesn’t like common law
· Why does Bentham say that we obey laws?
§ We aren’t always perfectly obedient to the sovereign
§ But the whole existence of being obedient to the government is out of habit
§ Governments go in and out of habit – sometimes more people are in the habit of obeying habit, and sometimes less people are in the habit of obeying the government
§ Why do people obey governments that are bad for them?
· Because they have been doing it that way – habit
· It is the only way they have known existence
§ Habit is the main reason for leadership
o Not fear of punishment, because if it was punishment, then that implies that we have a duty
· Blackstone – social contract is the reason that people obey
o Bentham says that he’s unsure about what Blackstone really is
§ Doesn’t think you should be able to ask “what ought to be”
§ Isn’t concerned about “what ought to be” unless the law is “what ought to be.”
§ You should just follow the law
§ He’s an expositer of the laws who tells you what the laws are, and that they are good
· Because you have an obligation to the law – because they are the laws
· Censorial – what ought to be
o This is the way Bentham thinks that law should be
o This is the philosophy of jurisprudence that Bentham thinks should be in place
· Why does Britain stink?
o Because its not utilitarian
o Because people’s habits are stuck following the social contract
§ Because habits come from what people read and hear – which is just the social contract theory which says obey obey obey
· Why doesn’t social contract theory satisfy Bentham?
o Because social contract theory says you can only revolt when you have a right to revolt
o Bentham thinks this would have to be sooooo bad, that it would never happen
o Utilitarianism will never happen
o He thinks that as the government treats you poorly, you have less obligation to the government.
o It doesn’t add anything to your obligations – It says you have to obey because it is right – but there are no other rules
· The words make it seem like there is a government
o But there is no clear cut distinction between when there is a government and when there is no government
o So why would you obey the laws? What happens if everyone disobeys the laws? Doesn’t everyone disobey the laws at some point?
· Bentham wants to claim that utilitarianism is better than common law
o P.96: It is the principle of utility that guides…
o P.104-105: The total big argument: I cannot see this as merely a dispute over words…
§ Difference that is argued in the utilitarian theory is “happy or less happy” - which is a factual argument rather than simply “yes/no” argument based on theory.
§ What are the two principles: The first type of argument is based on opinion; based on what is determining what is “right” –
· This is the reason he dislikes common law – because the judges are doing what they think is “right”
· Bentham says that people who make the decisions based on whether things are “right” or “wrong” – that relate to the divine law – are speaking on opinion and it is difficult to get a consensus
§ The second type of argument is that based on fact – while it may not settle all arguments, the argument about the effect, rather than on opinion, will lead to more consensus
· But in order to do this in utilitarian theory you have to define what happiness is: and it can be harder to quantify the happiness and make it factual so that the argument can move onto the effects of the factual happiness.
· Bentham wants to say that happiness is quantifiable
· Laws shouldn’t be made to do what is right; laws should be made to suit the happiness of the most people.
o Arguing for laws that are about the “eternal right” aren’t valuable and tend to be absolutist in their position
§ The absolutist position is a bad one because even if it makes sense now, it might abridge happiness in the future, and then you would be obligated to obey it.
· You want to use words that everyone can understand
o Avoid Latin because people don’t know what they heard
o Hates Blackstone because he doesn’t use common words but instead uses words that people don’t understand
· Utilitarian principle is based on pleasure and pain
o Does it cause more pleasure?
o Does it cause more pain?
· A free government has the same limitless power as a despotic gov’t (p.97)
o What is he arguing against?
§ The American government is a limited government; that’s not what Bentham is saying. For him, government is limitless and can do anything in it wants to make the people happy
§ But a free government doesn’t have less power
· It has a different distribution of power
o In a despotism – the power is in single hands
o In a free government – the power is distributed among many
§ There is a free press in a free government
· So that everyone can communicate their discontent
§ Government, even a free government, has to have limitless power…
· But if you structure it in certain ways, you can manage to keep the government free and more utilitarian (happiness oriented)
· Hume had an essay that asked whether the British government was more monarchical or democratic – and said that it was democratic and you needed something to pull it back to the king
· Bentham says that isn’t true – the House of Commons doesn’t represent the commons, it represents the King, the rich - but not the commons.
· You want a government that looks out for the common god – the utilitarian principle (happiness)
o The only alternative is one that says “my wants are more important, screw the happiness of others.”
o But that is what Britain doesn’t have – there are no other legit principles in the interest of the people except the utilitarian principle
o What you really want is a society where people are forced to follow the utilitarian principle
§ Bentham thinks the US solved this problem.
§ Bentham says that the US is better than Britain because everyone is elected and everyone is responsive to the people
· No one is simply placed in office based on their birth
· The power is separated
· Notes from professor – Bentham says that there never were agreements in England, but the truth is that there were – the charters made by the King (who frequently ignored them) – hence what the revolutions were about.
o Bentham really forgets that agreements not being kept can be a factual disagreement.