Lodge, Rupert C.

English

University of Chicago Law School: Chicago Unbound

BOOK REVIEWSLimits of jurisprudence Defined, The. By Jeremy Bentham. Edited by Charles War-ren Everett. New York: Columbia University Press, 1945. Pp. xxii, 358. $4.50.In going over the Bentham manuscripts in the library of University College, Lon-don, Mr. Everett eventually succeeded in identifying some twelve hundred pages ofunpublished manuscripts as belonging to Part II of Bentham's Introdwtion to thePrinciples of Morals and Legislation (1789), which has long been regarded as a classicin its particular field. Patient editorial work eventually resulted in the present publica-tion; and there can be no doubt that this Part II will at once take its proper place be-side Part I in all large libraries, and its citations and references will soon be as wellknown to students of ethics, government, and law, as are the citations and referencesfrom Part I. In reviewing what is the first publication of this important work, I shallfirst discuss the author's method, his vision, and his results. I shall then proceed to dealwith what the editor has accomplished in detail.As a thinker, Bentham is a member of what is called the British School of Empiri-cism, whose chief lights are Locke and Hume. He is further influenced by the exact de-velopments, on this basis, achieved by the Ideologues in France, especially by Hel-vetius. In general, the background and outlook of this school survive today in the "neo-realism" of S. Alexander and Bertrand Russell.For this school, the function of philosophy is largely to clarify concepts. It is be-lieved that human ideas are analyzable, without exception, into "images" which arerelatively vague and fluctuating continuations of what were originally sense-data(sensa), arranged in rather simple relational patterns which give them precision. Thefunction of the philosopher is to take such ideas as "power, right, prohibition, duty,obligation, burden, immunity, exemption, privilege, property, security, liberty" and amultitude of others which are not "realities" but "fictitious entities" (Bentham), andanalyze these into the simple sensory and perceptual experiences which constitute theirreal origin. The simple experiences are direct, and go behind language to "the thingsthemselves." They are clear, vigorous, and unmistakably precise.The Aristotelian Scholastic method of defining per genus et differentiam, remainingas it does within an established linguistic system, does not go behind words to "thethings themselves" except at second hand. Locke's method of enumerating the simpleexperiences or sensa which lie at the root of all complex linguistic formulations, andproceeding to build up, step by step, the "mixed modes" which constitute the "ficti-tious entities" dealt with in the social sciences, restores factuality and clarity to thework of social scientists. Hume's "mental microscope" which concentrates, with evengreater precision, upon the direct "impressions" in which all complex ideas originate,introduces certainty into the field of the metaphysical.A thinker of the stamp of Bentham thus does not hesitate to call himself a meta-physician, to conceive it as his professional business to clarify, in the way indicated,the ideas and practices of lawyers, judges, and legislators, and to provide a clear, dis-tinct, analytic and synthetic pattern to guide future legislators in advancing beyondthe dogmatic opinions of infancy and adolescence toward a critically self-conscious andscientific adulthood in their important task.His vision is of a system of laws planned on the pattern of a new "logic of will" whichis to be the counterpart of the Aristotelian "logic of debate" or possibly, "of under-standing." The ultimate aim of will is "utility," a term which Bentham proceeds to re-late very directly to the pleasure-pain sense (sensation), and supplies with a clear andTHE UNIVERSITY OF CHICAGO LAW REVIEWdistinct formulation. The resulting code will be, in so far as an inter-implying formalsystem can be, complete, and will reduce to a minimum the informal interpretation (byjudges and other persons, some qualified and some unqualified by position and experi-ence) of "customary law which has spread itself like a plague over the surface of thestatute law, infecting it with its own characteristic obscurity, uncertainty, and con-fusion."The result here, as in the well-known Part I, is to set before Bentham's readersmasses of very exact analysis and reasoning, together with principles of classificationand synthesis which involve, in many places, the creation of new terms of a highlytechnical nature and function. As a lawyer and careful student of the empirical factsof jurisprudence, as well as a clear and persistent thinker, Bentham reveals withouthesitation the types of inaccuracy and confusion which inevitably and in principle re-sult from unguided empiricism on the part of legislators; in fact, the limitations ofjurisprudence which stand out in every chapter are the unclarities, the indeterminate-ness and incompleteness, and other inadequacies of codes which, like Topsy, "havejust growed." It is not merely the weakness of language and logic that stands out.Bentham does not hesitate to draw attention to the comparative absence of clear, defi-nite and candid thinking on the part of almost all empirical ad hoc legislators.In its own field, Bentham's work resembles Kant's Critique of Pure Reason, in whichmost readers feel that the critical part somewhat overshadows the constructive partwhich is designed to take the place of what the author rejects. But in both cases it ishardly possible to criticize effectively without at the same time making plain the basisfrom which the criticism derives its strength; and all of Bentham's chapters contain,bound up with the negative criticism, significant and useful classifications and syn-theses in detail, as well as helpfully clear statements of principle. The whole book, ifwe include Part II with Part I, will certainly be regarded as the classical exposition ofeighteenth century hedonism at its best.What is the value of his book at the present day? Chiefly, it must be confessed, his-torical. In a hundred and sixty years, or so, philosophy has made great strides; andwhile philosophers of every school will admire the erudition, the persistent reasoning,the candor, and the massive determination of Bentham and will be attracted by themany evidences of a hopeful modernism which has many echoes today, there will belittle that they can really use, except to point a moral and adorn a tale somewhat dif-ferent from Bentham's.A "logic of will"? Yes, indeed. But Bentham's account of "will" in relation to asimple pleasure-pain sense will raise only a smile today. His hedonism, correctly statedand correctly quoted in our modern textbooks, is used to introduce beginners in philos-ophy to the simpler pitfalls of a naive psychology, ethics, and logic. In place of his ex-tremely simple "will-to-pleasure," we have seen more far-reaching developments: a"will-to-live" (Schopenhauer), a "will-to-power" (Nietzsche), what might be called a"will-to-action" (Pareto), and an elan vital (Bergson), before whose unblushing non-logic the simple rationalism of Bentham would feel entirely lost. Psychological and so-ciological research have severely limited the field within which the confident pronounce-ments of the logician have any status; and in the light of these findings, the appeal canno longer be to "everyone's observation [introspection] and experience," but only toprolonged social experimentation which distrusts ideas whose only merit, perhaps, isthat they are clear and distinct.BOOK REVIEWSClarifying ideas may be an important part of the work of philosophers. But thetechnique of Locke and Hume represents the beginning, rather than the completion ofthat work. Bentham is in too much of a hurry. Modem realists will claim that he doesnot push his researches into fact far enough. Modem idealists will claim that his idealsare narrow in range and deficient in insight. Modem pragmatists will object to hisreadiness to substitute formal schemata for the flexibility of continuing social experi-mentation. In social enterprises (they will insist), formal and informal are not enemies,but correlatives which can work well together. Intuition has to be mixed with formal-ism if the judgment of the executive is to be kept alive; and for the living judgment ofthe executive (whether judge, legislator, or business leader) there is, and can be, nosubstitute.So much in general for Bentham and presently existing philosophy. Now for theeditor and the quality of his achievement. Bentham's handwriting is difficult to read,especially so in microfilm. The editor is accordingly to be congratulated upon his un-failing persistence, courage, and determination, no less than upon his judgment in ar-ranging material, filling gaps, and keeping himself out of the completed picture. Theonly possible criticism is in matters of detail.Thus, in modernizing the spelling, many readers will feel that the editor might wellhave gone even further: printing "group" in place of the noun "groupe" passim, andchanging the odd "hath" to "has" wherever it occurs. He might have printed "dis-played" for "display'd,"' "ordered" in place of "orderd,' 2 "employed" in place of"employ'd,"3 "allowed" for "allow'd,"4 "glossary" for "gloss'y,"s and possibly "Janu-ary" for "Jan'y" and "Jan." 6There are also a number of inconsistencies which the editor should surely havesought to avoid more successfully: e.g., "considered" and "consider'd,"7 "leveled" and"levelled,"8 "referable" and "referrable,"9 "comprise" and "comprize," ° "neighbor"and "neighbour,""r "until" and "untll,"12 and "shown" and "shewn."13 One referencereads, "In ch. xvi, 'Division of Offences' .... ,'4 whereas in all other references,which are quite numerous, we read "Ch. i6 (Division) .......The following errata require correction: after "seen" comes a full stop, whereas itshould be a question mark.'s The word "celerent" should be printed "celarenf";'6"word" should be "work"; 7 "obstinancy" should be "obstinacy";"8 "stronger than I"should be "stronger than myself";19 "lines" should be "line";"° "meri" should probablyz P. 78. 3 Pp. 92 and 311. S P. 255, n. zo. 7 Pp. 322 and 312.2P. 80. 4P. 114 bis. 6p. 17. P 8Pp. 83 and 89.9 Pp. 112, 226, and 270; cf. pp. 72, 94 and 96. Cf. also "transferable" on p. 89, n. i."0 PP. 97, 98, io6, 123, and 138; cf. pp. 94, 264 bis, 313 and 314. Cf. also "comprizable"on p. 291 n." P. 3gn bis; cf. p. 343. " P. 324.'3 Pp. 246 and 247; cf. pp. 24o and 290. Cf. also "shew" on p. 142.X4 P. 330, n. zo. 15 P. 21, middle.'6 P. 26, middle and p. 294, bottom. Cf. correct printing on p. 340.'7 P. 27, seven lines from botton.isp. 35, in the middle of the second citation; cf. correct printing on p. 83.ig P. 5o, one-third way down the page. 2 P. 86, four lines down.THE UNIVERSITY OF CHICAGO LAW REVIEWbe printed "mtero' '2 (as elsewhere in the text); "effected" should probably be "affect-ed";" "venditeo" should probably be "venditio";23 the penultimate word "geneology"should probably be "genealogy" ;24 and "falle" should be printed "fall,"2s whateverBentham's manuscript reads. In the Greek word reading "rrwo7 ," the fourth lettershould not be printed "s," but "a-.,,2 6 A similar sigma should be printed in place of thetau in "rw-w T,"which should read ".... oe," and "tXew re" should read ".. . . "e2The comma after the last "o," just before "anw," should be in the proper place forcommas, i.e., on the line and slightly below it, not above it. The sentence beginning"But let it say let no one kill his father here there is.... ."28 really needs to be properlypunctuated, in spite of the editor's hesitation to correct his author's idea of punctu-ation.Furthermore, "principium" should probably be printed "principem," as it is else-where in the text;29 "articles then one" should be "articles than one";3o "Topic. Iv"should be "Topic. IV";31 "mumerous" should be "numerous";3' and should not "dicso-dotic" be printed "dicaodotic" or "dicaeodotic"?33 In addition "actium agere" shouldbe printed "actum agere";34 and should not"epirogastic"read"epergastic"?3sAnd wouldit do any harm to the author's intentions, if the proper breathing were added to thetwo Greek words? Should not "Reglements" have an acute accent on its first "e"?36Finally, "chastity" should be followed, not by a full stop, but by a question mark;37"species infim" should be printed "species infinu "";31 and should not the second"right" commence with a capital "R"?9 And "such and one" should read "such aone" or "such an one," and in the penultimate line "is" should be "in."4oI One further trap for editors. Bentham's manuscript shows a carelessness in twoways which ordinarily call for the editorial hand. Writing analytically, he enumerateshis points "I . ... 2 .... 3 .... ," but sometimes changes over from figures towords.41 Sometimes he changes over from words to figures;42 and occasionally he putsin a "2." but omits what should be the preceding "i." Several other instances of care-"'P. 93, middle. 23 P. io6, seven lines from the bottom of the note."P. 97, middle. 24p. 1l7.Is P. x3o, four lines from the bottom of the note.26 p. i3o, three lines from the bottom of the note. This sigma is correctly printed elsewherein the text.7 p. 125, n. 12. 34 P. I85, two-thirds down the page.'8 P. 135, nine lines from the bottom. S P. 229, middle of note."9 P. 147, middle and in the index. 36 P. 242, four lines from the bottom of the note.30 P. 159, four lines from the bottom. 4 P. 252, one-third down page.31 P. 161, last line. 38 P. 262, middle; cf. p. 265 for correct printing.32 P. 164, middle. 39 P. 274, sixth line.33 P. 169, four lines from bottom of text. 40 P. 310, seventh line.4' P. 74, below middle, "investitive power of the 2d order .... investitive powers of thethird, fourth or fifth orders ..... " See p. 69, one-third down in n. x, "i .... 2 ly .....The same note also has "I .... 2 .... 3 .... fourthly .......4' P. 118, five lines from bottom of text, "In the tenth place .... in the 15 th place .......See p. 277, a. 4, "In the first-mentioned .... in the second .... in the 3 d .... in the last..... See also p. 3iS, second paragraph, "First .... 2 .... 3 .......BOOK REVIEWSlessness occur, wherein the reading should be "two ways: i. in the way of .... 2. inthe way of . . .";43 and ...... several respects: i. in respect of.. . . 2 .... 3 .... 4..... "44 Occasionally numbers should be utilized in place of "Next."4s Furthermore,the text should be corrected to read ".. . . duty will either be i. a duty of forbear-ance .... or 2. a duty of performance. . . .";46 and the "2." has been omitted in".... distinguished into i. barren, or 2. productive."47 Finally, in the sequence be-ginning "In the second place .... In the third place .... In the fourth place," thereis no "In the first place."48 The editor has corrected these mistakes of Bentham's inso far as his analytic numbering affects very large sections, such as whole chapters.But would it be considered as contrary to the author's intention, to expect the editorto check up on these smaller instances of the same error?The second carelessness of the manuscript is in connection with references. AsBentham writes, here and there he notes-recollecting that he has treated the subjectat length elsewhere-something like "Cf. Ch. Actions," intending, doubtless, to verifythe reference when passing the work through the press, if not earlier. The editor has,in a number of cases, printed the correct reference, and readers will be duly grateful.But could he not, without going to too much trouble, have done it in all instances?49Finally, would it not be better to print the reference "Ch. 7 (Actions) 22 .... ."So soas to bring it into conformity, not merely with the final line of the immediately pre-ceding note, but with all similar references in the book? What is actually printed, i.e.,"Ch. VII (Acts) XXII ... ." is in rather startling contrast with all other references ofthe sort.The Index is useful, but "Let re de cachet" should add the important reference 262.It may be thought that the above detailed criticisms of the editor's performance ofhis task affect only minutiae. And so they do. But is not an editor's work mostly con-cerned precisely with such minutiae? It is because the reviewer is convinced of the im-portance of this publication of a classic, and because he realizes that the editor's textwill be the basis of all subsequent editions, that he ventures to suggest that the editorwould do well to have the Columbia University Press print a full list of errata as soon aspossible, and have it inserted in all possible copies of the work.RUPERT C. LODGE*Judicial Decision and Practical Judgment. By Morris Gall. New York: King's CrownPress, 1946. Pp. 99. $1.50.Despite the ponderous tome which its title suggests, Jitaicial Decision and PracticalJudgment is a ninety-two-page booklet, published in a paper-back, inexpensive editionby the King's Crown Press, which is a division of Columbia University organized forthe purpose of making certain scholarly material available at a minimum cost. Thisbook is directed primarily toward educators and not lawyers. To the educator it maybring a significant proposal for revising present methods of teaching students how to43 P. 1o3, middle. 46P. 312, nine lines from bottom.44 P. IO4, fourth line. 47 P. 317, middle.4s P. rio, first word in first two paragraphs. 48 pp. 331-33.49 Pp. i4o, n. 4; i49, n. I3; 184, n. 2; 185, n. 6; and 226, n. 5 (2).so P. 3', n. 6. * University of Manitoba.

Review of \u3ci\u3eThe Limits of Jurisprudence Defined\u3c/i\u3e by Jeremy Bentham, Charles Warren Everett

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Review of \u3ci\u3eThe Limits of Jurisprudence Defined\u3c/i\u3e by Jeremy Bentham, Charles Warren Everett

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