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International Roundtable for the Semiotics of Law

International Journal for the Semiotics of Law

Jeremy Bentham

Jeremy Bentham (1832-1748) is a figure of significant importance not only for the two intellectual movements with which he is most commonly associated– namely, Utilitarianism and legal positivism– but also for semiotics. A prolific author, he devoted himself primarily to the elaboration and publication of his proposals for reforms in a variety of substantive areas including law, language, and pedagogy. Bentham is often classified as a philosophical "radical," which may be true, but fails to capture his depth of involvement in a centuries-old tradition of British philosophy that, beginning in the Reformation, combined Protestant theology with a profound criticism of traditional language, epistemology, and institutions.

Although Utilitarianism was anticipated by such earlier thinkers as Thomas Hobbes (1588-1679) and elaborated, in a religious version, by Bentham’s contemporary William Paley (1743-1805), Bentham is generally credited with having developed and promoted the most wide-ranging theory of Utilitarianism as founded on the principle of "the greatest good for the greatest number." Although the utility principle was potentially compatible with any form of government, for Bentham one corollary of the principle was democratic reform, or the devolvement of power to the public. In keeping with this view, he devoted much of his energy to various proposals for legal reform, especially through "codification" or the reduction of the customary English common law tradition to a body of written (and published) statutes. This he believed would have the effect of making the law more democratic and open.

There were close parallels between Bentham’s codification proposal and the earlier religious Reformation, which had emphasized the authority of scripture and sought to make the Bible and the liturgy accessible to the public in the vernacular. Bentham himself pointed out some of the parallels, calling himself the "Luther of Jurisprudence." His engagement with theology was not limited to the appropriation of Protestant polemics. Bentham’s idea of a legal code required a wholesale reform of language in order to remove various "fictions" and other rhetorical devices, many of which were inherited from the Catholic Church and continued in the established Church of England. In his critique of certain pathologies of language as "fictions," Bentham drew upon an earlier philosophical tradition, including Francis Bacon (1561-1626), Hobbes, and John Locke (1632-1704), that had extended the religious critique of "idolatry" to the personification of language or the habit of taking words for things. Bentham’s most direct sources for this tradition were Locke and the etymologist John Horne Tooke (1736-1812). He shared with these thinkers the conviction that all valid language refers ultimately to perceptible entities. A corollary of this linguistic empiricism was that all abstract and class terms are fictions that, when taken to refer to something real apart from individual existent things, can be logically and politically dangerous. Since Hobbes, one of the central targets of such criticisms had been the terms for spiritual beings– which Bentham called "fictitious beings"– and the Church that promoted the belief in their existence. Bentham combined this critical tradition with theological sources to produce a linguistic iconoclasm that was, like Hobbes’s before him, designed for a politico-theological purpose.

Bentham’s special contribution to this linguistic tradition lay in systematizing some of its principles, especially in his work on "ontology"; and in his application of these principles to jurisprudence. He held that, as the "Common Law" was nowhere written down, it referred to nothing with any real existence, but was simply a fiction that permitted lawyers and judges to arrive at whatever conclusion they desired. Consequently, the remedy lay in codifying the law while simultaneously perfecting its language. Bentham also criticized other rhetorical devices employed by law, including judicial oaths.

Bentham’s critique of fictions was appropriated in the last century by Charles K. Ogden (1889-1957), who advanced his own proposal for a "Basic English" reduced to a simplified vocabulary. Certain of Bentham’s ideas concerning logic and language also influenced the later tradition of analytic philosophy. However, his greatest influence remains within jurisprudence, where he is credited as one of the founders of legal positivism, or the idea that law is discrete, knowable, and separate from morals and religion. In this tradition, some of his followers include John Austin (1790-1859) and Herbert Hart (1907-1992). A less direct but still pervasive influence on law came from his Utilitarianism, the broad concepts of which inform the currently popular movement of law and economics which still seeks to frame legislation that will produce the "greatest good."

A largely forgotten contribution to the history of semiotics was Bentham’s philosophy of punishment, which sought to produce an "ideal association" or sign relation between a crime and its attendant punishment. He advocated adjusting the properties of punishment in order to enhance this sign relation, specifically by maximizing its certainty and propinquity (proximity) to the crime, and by using punishments that exhibited some analogy to the offense, as in the ancient lex talionis. He called such punishments "characteristical." Bentham was sensitive to the rhetorical dimensions of punishment, to its need to be both impressive and popular. On occasion, he suggested that illusionary punishments such as hangings in effigy might be used so long as they were convincing. These explicitly semiotic dimensions of Bentham’s philosophy of punishment have been neglected due to the immense popularity of Michael Foucault’s interpretation of yet another of Bentham’s proposals, the circular prison called the Panopticon, which enabled the continuous observation of prisoners by a guard stationed in a central tower. The guard was invisible and might therefore be absent, as a labour-saving device. For Foucault, this epitomized a new, bureaucratic mode of surveillance characteristic of modern society. However, throughout his writings, Bentham was concerned to replace the no longer effective "religious sanction," and within the limited domain of the prison, the Panopticon achieved the desired effect of replacing the fear of reprisal from an invisible and omniscient deity.

Further Reading

Bentham, Jeremy (1843). Works. Ed. John Bowring. Edinburgh: William Tait.

Bentham, Jeremy (1997). De l’ontologie et autres textes sur les fictions. Ed. Philip Schofield et Jean-Pierre Cléro. Paris: Seuil.

Bentham, Jeremy (2002). "Auto-Icon; or, Farther Uses of the Dead to the Living". In James Crimmins, ed., Bentham’s Auto-Icon and Related Writings. London: Thoemmes Press.

de Champs, Emmanuelle (1999). "The Place of Jeremy Bentham’s Theory of Fictions in Eighteenth-century Linguistic Thought". Journal of Bentham Studies 2.

Crimmins, James (1990). Secular Utilitarianism: Social Science and the Critique of Religion in the Thought of Jeremy Bentham. Oxford: Clarendon Press.

Foucault, Michel (1995). Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Vintage.

Lieberman, David (1989). The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain. Cambridge: Cambridge University Press.

Ogden, Charles K. (1959). Bentham’s Theory of Fictions. Boston: Littlefield, Adams.

Postema, Gerald (1986). Bentham and the Common Law Tradition. Oxford: Clarendon Press.

Yelle, Robert A. (2001). "Rhetorics of Law and Ritual: A Semiotic Comparison of the Law of Talion and Sympathetic Magic". Journal of the American Academy of Religion 69: 627-47.

Yelle, Robert A. (2005). "Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law". Yale Journal of Law & the Humanities 17: 151-79.

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