Foundations on Silt: Jeremy Bentham, Liberalism and the Science of International Law

When the words good or bad are uttered the user generally takes their meaning derived from a system of ethics or morals. In this sense good and bad are particularist in nature and also socio-culturally specific. Let us take a simple example from Antiquity. At school in the West we learn of a figure called Alexander the Great, the Macedonian. By all accounts we are taught that he was a great, and by extension a good man. In modern day Iran Alexander of Macedonia is known as Alexander the Devil. So the question arises: was Alexander good or bad, or both? Is it possible to state unequivocally that the actions of Alexander were as a matter of fact morally good or morally bad? I think the answer to this question is fairly straightforward: it depends. Now this answer is not a simple descent into postmodern territory and moral relativism; there are genuine and empirical reasons to believe all three possibilities pertaining to the actions of Alexander. In short it is not possible to extrapolate from the particular to the general and it is not a question of semantics or even of critical hermeneutics. There is no either/or for Alexander of Macedonia. The binary opposition of good and bad cannot be applied to the particular actions of an individual and furthermore cannot be generalized as a principle, rule or otherwise. This distinction or argument between what can be deemed good and what can be deemed bad may at first sight seem irrelevant to the law but it is not. In moral philosophy natural law theory states that law is based on morality, therefore negating the possibility of a bad law. It is at this point that Jeremy Bentham comes to our attention. Bentham believed that law and morality, although connected need not necessarily be so. Under the principle of utility, which I will explore in more detail later in this essay, Bentham believed that individual intent of an action could be disassociated from the intent that ought to be in place. The principle of utility was this test. In other words when determining the right course of action and what laws should be obeyed for all circumstances and systems, the principle of utility was the foundation. And I will argue later on in this essay that although Bentham is identified as a legal positivist and a philosophical realist his negative idealism is based on an error, much in the same way that he thought he had identified the fallacy of natural law. Bentham’s foundations may not be on stilts but perhaps, more accurately, they were built on silt. Moreover Bentham’s position as a moral philosopher is rather unusual in that although he was indeed interested in the behavior of the individual he was insofar as that behavior might have some bearing on a general system of law. This essay is therefore concerned with this troubling problem. I will proceed as follows. Firstly, I will give an overview of Bentham’s criticism of natural law and of William Blackstone in particular. Secondly, I will look at Bentham’s contribution to the internationalization of the law and his use of the “principle of utility”; he coined the neologism “international” as one of many. I will then move on to see how Bentham expected to actualize his foundational principle through his efforts to persuade others of the efficacy of codifying international law as a form of ‘science’. I conclude by arguing that Bentham’s philosophical realism was, in fact a form of idealism, bordering on the religious; his ‘cosmic calculus’.