It was Jeremy Bentham who first coined the word international in a book published in 1789.[1] The term appeared for the first time aligned with the word jurisprudence. [2] International jurisprudence was put forward by Bentham to replace the term ius gentium or law of nations, what he deemed to be a misnomer: “The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes under the name of the law of nations: an appellation so uncharacteristic that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence.”[3]
Bentham fathered the term international law which was eventually to replace the older phrase law of nations. Bentham explains in his text why he preferred to invent a new word. In discussing how jurisprudence may be classified, he suggests that it can be divided in terms of “the political quality of the persons whose conduct is the subject of the law” and he argues that “these (the persons) may … be considered either as members of the same state, or as members of different states; in the first case, the law may be referred to the head of internal, in the second case, to that of international jurisprudence”.[4] The older phrase law of nations, according to Bentham, refers to a certain discursive space only through the force of custom, or convention. However, he believed that a more appropriate designation should go beyond mere convention. According to Bentham, the phrase law of nations is a sign relying on the mediation of convention. Without the convention, “the force of custom,” the phrase law of nations might be understood as one designating the domestic, municipal law of diverse nations. On the other hand, Bentham explains, that international is a term that stands in no need of the mediation of custom and convention. To put it more simply, Bentham proposed to replace the concept of the law of nations with that of the law between nations.
Background
Jeremy Bentham, jurist and political reformer, is the philosopher whose name is most closely associated with the foundation of the utilitarian tradition.[5] He was born in 1748 in London and was the son of an attorney, Jeremiah Bentham. He attended Queen’s College, Oxford and later the Court of King’s Bench, Westminster Hall as part of his preparation for a law career. He returned briefly to Oxford in 1763 to attend the lectures of William Blackstone, which were published in four celebrated volumes as Commentaries on the Laws of England (1765–69). Bentham was not impressed by Blackstone and detected fallacies in Blackstone’s natural law reasoning. In 1769, Bentham was called to the Bar, but his legal career was brief. That year he discovered the utility principle and related ideas in the writings of Hume, Helvétius and Beccaria and chose instead a career dedicated to analytic jurisprudence, law, social and political reform. He started his career as a legal theorist in 1776 when he published anonymously A Fragment on Government. This is an offshoot of a larger critique of Blackstone that was not published until the twentieth century, titled A Comment on the Commentaries.
Bentham’s career spanned almost seventy years, from the Seven Years’ War to the early 1830s, a period characterized by revolutions.[6] In 1776, Bentham co-authored the official British government response to the American Declaration of Independence, anonymously, with his friend the lawyer John Lind.[7] It was during the American war that Bentham introduced utility as the fundamental principle of his political theory and, as David Armitage notes, it was also then that he first attempted to create a Universal Jurisprudence.[8] In addition, Fragment on Government was promoted by Bentham himself as the product of a global moment in British and human history because it was published just after James Cook’s return from his second voyage around the world in 1775.[9]
In the first page of Fragment on Government, Bentham notes that “ours is a busy age; in which knowledge is rapidly advancing towards perfection. In the natural world, in particular, everything teems with discovery and with improvement. The most distant and recondite regions of the earth traversed and explored … are striking evidences, were all others wanting, of this pleasing truth”[10] It is in Fragment on Government that he first proposes his axiom: “it is the greatest happiness of the greatest number that is the measure of right and wrong.”[11]
In An Introduction to the Principles of Morals and Legislation, Bentham introduces his basic postulates on utility and the utility principle.[12] Worth mentioning is the role the Genevan exile Étienne Dumont (1759–1829), would play in making Bentham’s name and philosophy known in continental Europe and elsewhere through the publication of a number of translations and redactions of his early writings.[13] The most important of these were the three volumes of Traités de législation civil et pénale in 1802, assembled from early manuscript drafts. The first two volumes on civil and penal law were later re-translated into English by the American utilitarian Richard Hildreth and published as The Theory of Legislation in 1840. They remained at the center of utilitarian studies in the English-speaking world through to the middle of the twentieth century.[14] Bentham’s work was translated into Spanish and widely read throughout Spanish America; it was adopted as a basic text for study at University level in Buenos Aires and Santiago, for example. Bentham’s other works would enjoy similar admiration and his ideas were constantly cited and debated in the republics of Spanish America.[15]
In 1786–87, while visiting Russia, he wrote A Defence of Usury, his first text on economic affairs, in which he rejected Adam Smith’s defense of a legal maximum for interest rates. The book later received its widest audience in the United States, where it was reprinted on many occasions and frequently cited in the debates over the usury laws.[16] It was in Russia that Bentham developed the ideas that were published in Panopticon or The Inspection House. [17] Here, taking into account the inefficiency and inhumane conditions in Britain’s penal regime, Bentham advanced the idea of the panopticon penitentiary as a substitute penal system.
Principles of International Law
Bentham’s writings have presented unique challenges for scholars, because the dates of publication were often far removed from the time of writing. Many essays were published posthumously, and some others have yet to appear in authoritative editions. Bentham’s work on international law represents only a small fraction of his voluminous written production.
As noted above, Bentham first publicly treated the law of nations in his Introduction to the Principles of Morals and Legislation,[18] in which he coined the term International. Later, in his Comment on the Commentaries,[19] which he preferred not to make the public but which informed his other works on the topic, he developed further his critique of the traditional notion of the law of nations.[20]
In the second half of the 1780s, Bentham drafted a series of proposals under the general headings of “Law Inter National 1786” and “Pacification and Emancipation.”[21] These remained incomplete and in manuscript form until edited and published as four essays in 1843, under the title Principles of International Law, in the second volume of John Bowring’s edition of Bentham’s collected works.[22] The essays are therefore a bit sketchy and reflect the editor’s choice about what to include or omit.
The four essays deal with international matters, but it is the first, Objects of International Law and the fourth essay, A Plan for an Universal and Perpetual Peace, which identifies most clearly Bentham’s aims for international law.[23] According to M.W. Janis, “Bentham’s basic technique in the essays was to apply his utilitarian methods to international law, much as he had applied utilitarianism to municipal law.”[24]
Objects of International Law begins with the following explanation: “If a citizen of the world had to prepare an universal international code, what would he propose to himself as his object? It would be the common and equal utility of all nations: this would be his inclination and his duty.”[25] Bentham initially questions whether a particular legislator, being a citizen of one nation, could at the same time be trusted to develop laws for the whole world. He attempts to resolve the dilemma by arguing in favor of surrendering national self-interest: “But ought the sovereign of a state to sacrifice the interests of his subjects for the advantage of foreigners? Why not?-provided it be in a case, if there be such a one, in which it would have been praiseworthy in his subjects to make the sacrifice themselves.”[26] His point of departure is the utilitarian principle of the “greatest happiness for the greatest number.” He explains it as follows:
[H]e [the legislator] would follow the same route which he would follow with regard to international laws. He would set himself to prevent positive international offences – to encourage the practice of positively useful actions.
He would regard as a positive crime every proceeding-every arrangement, by which the given nations should do more evil to foreign nations taken together, whose interests might be affected, than it should do good to itself.
In the same manner, he would regard as a negative offence every determination, by which the given nation should refuse to render positive services to a foreign nation, when the rendering of them would produce more good to the last-mentioned nation, than it would produce evil to itself.[27]
As David Armitage notes, “Bentham’s international legal writings applied the principle of utility not only to the relations between sovereigns assovereigns but also to the relations of sovereigns with the rest of humanity taken as an aggregate.”[28] Indeed, Bentham argues that the extension of the greatest happiness principle to include all nations is essential if the legislator’s duty to promote the welfare of his own people is not to be prosecuted at the expense of the well-being of all others. Bentham states that “expressed in the most general manner, the end that a disinterested legislator upon international law would propose to himself, would therefore be the greatest happiness of all nations taken together. The resulting international code would have as its ‘substantive’ laws the laws of peace, while the laws of war ‘would be the adjective laws of the same code.”[29]
Bentham views war as “a species of procedure by which one nation endeavors to enforce its rights at the expense of another nation.”[30] His work concludes with proposals to prevent war, namely the codification of unwritten laws which are considered as established by custom.[31] For Bentham, wars could be prevented by dealing more methodically with the various causes of a conflict, by elaborating new international rules where no such rules exist, and by making unwritten customs explicit. Moreover, Bentham saw internal and international law as equally suitable for reform along utilitarian lines, even as he firmly separated the two realms. As Armitage contends, “in that separation he was of course definitively distancing himself from the natural jurisprudential conflation of the law of nations with the law of nature which he so frequently denounced in all his legal and political writings.”[32]
Even if the ideas presented by Bentham seem at times incomplete, it is evident that Bentham believes firmly in the idea that better international laws could reduce the chances of war. Moreover, he expects that better laws will be written. In Janis’s view, “it may be that in his own mind Bentham was better able to reconcile his skepticism about the old law of nations with his optimism about the new international law by believing that the law of nations was too much founded on the vague unwritten rules of customary law.”[33]
The central theme of his Plan for a Universal and Perpetual Peace essay is that, in order to establish world peace, nations should sacrifice national self-interest. He addresses proposals to all nations, especially to England and France, which include giving up of colonies, establishing free trade, reducing the navies to what is necessary to protect against pirates and the mutual reduction of the size of armies.[34]
Nevertheless, according to Bentham, even if these reforms were to be adopted, there could still be conflicts among nations because “[w]herever there is any difference of opinion between the negotiators of two nations, war is to be the consequence.”[35] Thus, he suggests that to prevent disputes nations should agree to establish an international court of arbitration or, in his own words, “a common court of judicature.” Bentham envisions this court as “a Congress or Diet” composed of representatives of each country.
As envisioned by Bentham, the international court would work by establishing gradual responses. The first response would be the mere reporting of the Court’s opinion. The second response would be the circulation of the opinion in each nation so as to stimulate a favorable public reaction. The third response would be “putting the refractory state under the ban of Europe.” And fourth, as last resort, participating states would contribute and deploy armed contingents “for enforcing the decrees of the court.”[36]
In a manuscript written during the 1820’s, following on this theme, Bentham proposed a legislative alliance among “all civilized nations,” each to be represented by an envoy at a congress with both judicial and legislative authority.[37] In this regard, Bentham was critical of Emmerich de Vattel, the last of the great modern writers on the law of nations. Bentham regarded Vattel’s formulation as an inadequate foundation for a new international order. He argued that only an international order “grounded on the greatest happiness principle, … would, if the plan and execution be more moral and intellectual than Vattels, possess a probability of superseding it, and being referred to in preference.”[38]
The context of Bentham’s position rested on the contemporary resurgence of interest in Vattel’s work, evidenced in new editions and translations of Vattel throughout Europe. Bentham reportedly remarked in 1827 or 1828 that “Vattel’s propositions are most old-womanish and tautological. They come to this: Law is nature—Nature is law. He builds upon a cloud. When he means anything, it is from a vague perception of the principle of utility; but more frequently no meaning can be found. Many of his dicta amount to this: It is not just to do that which is unjust.”[39] Nevertheless, Bentham’s plan for a code of International Law never came to completion.
Bentham’s Contribution
Bentham’s philosophical foundations are based on a calculative view of human nature. Human beings and by extension states are rational calculators who aimed to maximize the quantum of happiness. This happiness is a function of the balance between that which man is governed in his nature by the twin masters of pleasure and pain.[40] Principles of International Law reflects Bentham’s chief aspiration: the necessity for law reform.[41] As Janis argues, “it should be no surprise that Bentham brought his reformatory zeal, albeit briefly, to international, as well as to municipal law. Realist and idealist-Bentham displayed both the skepticism and the romanticism that still invests the discipline he named.”[42]
Bentham believed in the need of a positive code of international law to replace the idea of the “law of nations.” At the heart of this codification is a belief-system. Bentham assumed that if people could only be made to understand the rules, and as error was removed from perception, universal rules could then be drafted and followed. Bentham thought that the same principle could be applied to the law on a global scale. Bentham perceived the inadequacies of existing codes of law as they related to the international realm and advanced his critique of the idea of the “law of nations,” which led him to embrace a distinctly different view of “international law.”
A number of scholars argue that Bentham’s essays indicate that he was certainly concerned with international relations; however, he does not appear to delve at all profoundly into international law itself.[43] In this regard, H.B. Jacobini argues that while the four essays “present an interesting commentary on international relations, they contain little of note concerning the nature of international law.”[44] However, as mentioned above, before Bentham coined the term, international law had not even received a proper distinctive name. In this regard, one of his most significant legacies to the international law field is his nomenclature.
Bentham was called during his lifetime “legislator of the world”.[45] Although his efforts to codify international law failed in his own time, the impact of codification of law cannot be underestimated. Indeed, for Bentham, if the world could be codified by international law then uncertainty could be banished. With uncertainty gone, security and ultimately peace would surely prevail. For Bentham, codification meant replicating European civilization through legal codes to the rest of the world.[46] This in short was Bentham’s ideal.
It can be argued that Jeremy Bentham for his part was a visionary. International legal theorists and historians cannot deny the fact that the codification and institutionalization of many forms of international law took time but indeed took place. Examples of this can be seen from the Geneva Conventions to the World Trade Organization and the International Court of Justice. And despite all of their imperfections, were they not in existence, the world, in search of peace and security, would probably create them again.
[1] J. Bentham, An Introduction to the Principles of Morals and Legislation, edited by J.H. Burns & H.L.A. Hart (London, 1970). Return to Text.
[2] Hidemi Suganami , A Note on the Origin of the Word ‘International’, British Journal of International Studies Vol. 4, No. 3 (Oct., 1978), 226. Return to Text.
[3] Bentham, supra note 1, 296, note x. Return to Text.
[4] Bentham, supra note 1, 296. Return to Text.
[5] Bentham’s background presented in this essay is based on Bentham’s biographical information published in Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/bentham/. Return to Text.
[6] H. V. Bowen, ‘British Conceptions of Global Empire, 1756-83’, Journal of Imperial and Commonwealth History, XXVI, 1998, 1-27. Return to Text.
[7] H. L. A. Hart, ‘The United States of America’, in Hart, Essays on Bentham: Jurisprudence and Political Theory (Oxford, 1982), 53-78. Return to Text.
[8] David Armitage, Globalizing Jeremy Bentham. History of Political Thought 32, 2011, 63. Return to Text.
[9] James Cook, Captain Cook’s Three Voyages Round the World: With a Sketch of His Life, George Routledge and Sons, 1880. Return to Text.
[10] Jeremy Bentham, A Fragment on Government (1776), ed. J. H. Burns and H. L. A. Hart, introd. Ross Harrison (Cambridge, 1988), 3. Return to Text.
[11] Ibid. Return to Text.
[12] He describes the utility principle as that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question. Return to Text.
[13] See, C. Blamires, The French Revolution and the Creation of Benthamism ( London: Palgrave, 2008), 1829. Return to Text.
[14] Supra note 5. Return to Text.
[15] See, Miriam Williford, Jeremy Bentham on Spanish America (Baton Rouge: Louisiana State University Press, 1980). Return to Text.
[16] Supra note 5. Return to Text.
[17] See, The Collected Works of Jeremy Bentham, General Editors: J. H. Burns, J. R. Dinwiddy, F. Rosen, T. P. Schofield, (Oxford: Clarendon Press, 1968). Return to Text.
[18] Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1780/89), ed. J. H. Burns and H. L. A. Hart (Oxford, 1996). Return to Text.
[19] Burns & Hart, Introduction to J. Bentham, A Comment on the Commentaries And a Fragment on Government (Oxford, 1977). Return to Text.
[20] Ibid, 36-37. Return to Text.
[21] Supra note 5. Return to Text.
[22] Jeremy Bentham, The Works of Jeremy Bentham, volume II of the 1843 Bowring Edition, 1848, available at https://www.laits.utexas.edu/poltheory/bentham/pil/index.html. Return to Text.
[23] The other essays are: Of Subjects, or of the Personal Extent of the Dominion of the Law, which has to do with the question of which sovereigns may regulate which subjects; And Of War, Considered in Respect of Its Causes and Consequences, which outlines Bentham’s view of the causes of war, a theme more fully developed in the Plan for an Universal and Perpetual Peace. Return to Text.
[24] M.W. Janis, Jeremy Bentham and the Fashioning of “International Law,” The American Journal of International Law, Vol. 78, No. 2, 1984. Return to Text.
[25] Bentham, Principles of International Law, supra note 20. Return to Text.
[26] Bentham, Principles of International Law, supra note 20. Return to Text.
[27] Bentham, Principles of International Law, supra note 20. Return to Text.
[28] Armitage, supra note 9, 74. Return to Text.
[29] Bentham, Principles of International Law, supra note 20. Return to Text.
[30] Ibid. Return to Text.
[31] Ibid. Return to Text.
[32] Armitage, supra note 9. 77. Return to Text.
[33] Janis, supra note 25, 414. Return to Text.
[34] Bentham, Principles of International Law, supra note 20. Return to Text.
[35] Ibid. Return to Text.
[36] Ibid. Return to Text.
[37] Ernest Nys, ‘Notes inédites de Bentham sur le droit international’, The Law Quarterly Review, I (1885), 225-31. Return to Text.
[38] Ibid. Return to Text.
[39] Bentham’s Conversation, in Jeremy Bentham’s Collected Works, Bowring ed., 1848, p. 584. Return to Text.
[40] Philip Schofield “Jeremy Bentham, The Principle of Utility, and Legal Positivism” 56(1), Current Legal Problems, 2003, 1. Return to Text.
[41] See H. L. A. Hart, Essays on Bentham , supra note 8. Return to Text.
[42] Janis, supra note 25. Return to Text.
[43] See for example, H.B. Jacobini, Some Observations Concerning Jeremy Bentham’s Concepts of International Law, The American Journal of International Law, Vol. 42, No. 2, 1948. Return to Text.
[44] H.B. Jacobini, Some Observations Concerning Jeremy Bentham’s Concepts of International Law, The American Journal of International Law, Vol. 42, No. 2, 1948, 415. Return to Text.
[45] José del Valle, the Guatemalan politician, wrote in a letter to Bentham: “Your works give you the glorious title of legislator of the world.” Return to Text.
[46] Charles Noble Gregory, Bentham and the Codifiers, 13(5), Harvard Law Review, 1900, 344. Return to Text.
For Further Reading
BIBLIOGRAPHY
PRIMARY SOURCES
1838–43, The Works of Jeremy Bentham, Published under the Superintendence of his Executor, John Bowring, 11 vols., Edinburgh: William Tait.
1968–, The Collected Works of Jeremy Bentham, General Editors: J. H. Burns, J. R. Dinwiddy, F. Rosen, T. P. Schofield, London: Athlone Press; Oxford: Clarendon Press, in progress
SECONDARY SOURCES
Bahmueller, C. F., 1981, The National Charity Company: Jeremy Bentham’s Silent Revolution, Berkeley, CA: University of California Press.
Cain, P. J., 2011, “Bentham and the Development of the British Critique of Colonialism”, Utilitas, 23 (1): 1–24.
Crimmins, J. E., 2004, On Bentham, Belmont, CA: Wadsworth.
Harrison, R., 1983, Bentham, London: Routledge and Kegan Paul.
Hart, H. L. A., 1982, Essays on Bentham: Studies on Jurisprudence and Political Theory, Oxford: Clarendon.
Jones, H. S., 2005, “The Early Utilitarians, Race, and Empire: The State of the Argument”, in B. Schultz and G. Varouxakis, eds., Utilitarianism and Empire, Lanham, MD: Lexington Books, pp. 179–88.
Lieberman, D., 2011, “Bentham on Codification”, in S. G. Engelmann, ed., Selected Writings: Jeremy Bentham, New Haven, CT: Yale University Press, pp. 460–77.
Pitts, J., 2005, “Jeremy Bentham: Legislator to the World?” in B. Schultz and G. Varouxakis, eds., Utilitarianism and Empire, Lanham, MD: Lexington Books, pp. 57–92.
Resnik, J., 2011, “Bring back Bentham: ‘open courts,’ ‘terror trials,’ and public sphere(s)”, Law, Ethics, Human Rights, 5 (1): 1–69.
Semple, J., 1993, Bentham’s Prison: A Study of the Panopticon Penitentiary, Oxford: Clarendon Press.
Wallas, G., 1926, “Bentham as Political Inventor”, Contemporary Review, 129: 308–19.