• 1 Pitts, Jennifer, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton (...)

1In her influential book A Turn to Empire, Jennifer Pitts contrasts 18th-century thinkers, including Jeremy Bentham, who had 'persistent doubts about the justice of European political and social orders' and 19th-century ones, such as John Stuart Mill, who had 'the dramatically increased sense of cultural or civilizational confidence' over the non-European countries.1

• 2 Pitts, Jennifer, '"Great and Distant Crimes": Empire in Bentham’s Thought', in Selected Writings: J (...)
• 3 Engelmann, Stephen and Pitts, Jennifer, 'Bentham’s "Place and Time"', The Tocqueville Review, 32 (2 (...)
• 4 Bentham, Jeremy, Jeremy Bentham’s Economic Writings: Critical Edition based on his Printed Works an (...)

2Relying on Bentham’s 'Place and Time,' which was written around 1780, Pitts similarly argues that Bentham’s project was 'very different in spirit from later liberal aspiration to use British despotism to civilize the backward.'2 On the other hand, however, Pitts, with Stephen Engelmann, admits that Bentham’s 'translation of various individual circumstances, perspectives, and the desires into the language of pleasure, pain, happiness and finally interest […] involves a kind of ‘cultural’ imperialism of the first order.'3 Moreover, Pitts appears to struggle with how to treat Bentham’s description, for instance, of Islamic countries as 'a region of which incurable barbarity and ignorance seem to be inseparable features.'4

• 5 Quinn, Michael, 'Popular Prejudices, Real Pains: What is the legislator to do when the people err i (...)
• 6 It might be suggested to use 'cosmopolitanism' rather than universal human nature to deny imperiali (...)

3In this article, I will argue that there was no such contradiction as suggested by Pitts in Bentham’s theory. I will, in the second section, discuss Bentham’s 'Place and Time' and show that, unlike Pitt’s interpretation, Bentham tried to change the religions, traditions and customs of non-western countries, which are at odds with his principle of utility. However, this was based on Bentham’s conception of universal human nature. Bentham made a distinction between abstract utility, which relates to 'the pains and pleasures liable to be experienced by human agents as such,' and net utility, which are the pains and pleasures actually experienced by the people, and tried to bring the latter in line with the former.5 However, Bentham’s abstract utility was based on an empirical generalization of universal (non-western as well as western) human nature and was meant to be attained without forcing compliance in non-western or non-civilized countries at his time. In the third section, I will examine Bentham’s enterprise of universal jurisprudence to elucidate Bentham’s conception of universal human nature. I will then discuss how Bentham consistently tried to disseminate this conception around civilized as well as non-civilized countries, which would make him a theorist of universal human nature rather than an imperial theorist.6

• 7 This is a word by José del Valle in his letter to Bentham. Bentham, Jeremy, ‘Legislator of the Worl (...)
• 8 According to Armitage, Bentham’s 'developing universalism was […] shaped by his response to the cha (...)

4Bentham aspired to be 'the legislator of the world.'7 He sought to invent complete codes of laws, known as ‘Pannomion,’ which mainly comprised the Constitutional Code, the Civil Code, the Criminal Code and the Procedure Codes based on the principle of utility. Bentham also argued that, as human beings are sufficiently similar, his Pannomion could be introduced universally,8 and he developed a theory of legal transplants in his article, 'Place and Time.'

• 9 Bentham, J., 'Place and Time', eds. P. Schofield and S. Engelmann, in Selected Writings: Jeremy Ben (...)

5In 'Place and Time,' Bentham discusses what changes are necessary when transplanted to foreign countries: '[t] he laws which I would propose are established in this my country; and they are, of course, according to my conception of them, the best that can be devised [that is, his Pannomion].' He chooses Bengal as the model for the countries where laws are to be transplanted. According to Bentham, '[t]hat it may be as instructive as possible, this second country should, in regard to the circumstances in question, form as strong a contrast with England as possible.' In his view, '[s]uch an example we seem to have in the province of Bengal', for 'diversity of climate, mixture of inhabitants, natural productions, face of the country, present laws, manners, customs, religion of the inhabitants; every circumstance, on which a difference in the point in question can be grounded, as different as can be.'9

• 10 Pitts, J., A Turn to Empire, pp. 121, 146.

6In A Turn to Empire, Pitts contrasts the writings on India of Bentham, who did not impose 'from above without concern for the opinions of the ruled [including the Indian people] or for their interests as they themselves understood them' and those of John Stuart Mill, for whom India was an 'appropriate model of colonial governance for backward society.'10 Pitts, in parts, justifies her points mainly thorough discussing Bentham’s theory of legal transplants developed in 'Place and Time.'

• 12 Pitts, J., A Turn to Empire, p. 120.

8According to Pitts, what is important in this statement and the other related discussions　in 'Place and Time,' is that 'in discussing these different "ages" of society, Bentham always compared particular societies with their own pasts European with the European pasts and the Islamic society with the age of Mohomet.' Unlike John Stuart Mill, Bentham did not suggest that 'India or Asia generally represented the "rude" age.'12

• 13 Pitts, J., A Turn to Empire, p. 119.
• 14 Pitts, J., A Turn to Empire, p. 119.

9Pitts also focuses on Bentham’s discussion of the introduction of the jury system in India. According to Pitts, when Bentham, in his Principle of Judicial Procedure, discussed the introduction of the jury system into India, although he 'believed that the level of education among the general Indian population was too low to enable the proper function of juries selected from the whole population, he made no claim that Indian society as such was so rude or barbarous as to prevent the possibility of juris altogether.'13 Pitts again contrasts Bentham’s 'understanding of education and those of James and John Stuart Mill'.14

• 17 Bentham, J., An Introduction to the Principles of Morals and Legislation, p. 51.

13In calculating the value of pleasure and pain, Bentham cited seven dimensions, the most important of which are intensity, duration, certainty and propinquity. Bentham thought that duration, certainty and propinquity of pain or pleasure could be measured precisely. However, according to Bentham, intensity that 'reflects a particular person’s response to a particular pleasure or pain' cannot be measured precisely because 'in the same mind such and such causes of pain or pleasure will produce more pain or pleasure than such or such other causes of pain or pleasure: and this proportion will in different minds be different.'17

• 18 Bentham, J., 'Place and Time', p. 155.

14The difference or variety of intensity among people is caused by bias and sensibility among people. What is interesting is that Bentham thought that biases or sensibilities are not only different among individuals but also different among communities. In 'Place and Time,' although he denied that different countries have different catalogues of pleasures and pains, he argues that the difference lies in their causes. Bentham proceeds to argue that even the same individual event, which would produce pain or pleasure in one country, would not produce the same effect of the same sort, or not to an equal degree, in another country.18

• 24 Bentham, J., 'Place and Time', pp. 158-9, 162, 165.

20With regard to the first class of the influence of circumstances, Bentham gave the example that a wound in a hot climate may be much more painful, that confinement in a hot country may result in significant pain and that drunken persons in the south may be more harmful than those in the north. Concerning the second class of the influence of circumstances, he gave the example that the confinement of a Hindu may result in serious pain by excluding him from religious ceremonies, that the votary of every sect may receive a cruel wound from any discourse which reflects contempt for the object of his veneration; that imputation of homosexuality may be much more painful in England than in ancient Greece (so that false claims of homosexuality must be punished more heavily in England) and that keeping wives in confinement may be reasonable in Mahometan countries.24

• 25 I use the term, 'donee countries' to denote the countries to where laws were to be transplanted.

21As we saw above, Bentham describes the circumstances of government, religion and manners as 'not necessarily and absolutely insurmountable.' Pace Pitts, Bentham’s theory of legal transplants involves the reformation of donee countries, including India.25

• 26 Bentham, J., 'Place and Time', p. 174.
• 27 Quinn, Michael, Bentham (Cambridge, Polity, 2022), p. 65.

22Bentham set out eight rules for legal transplants. The following are important. '[T]he clear utility of the law will be as its abstract utility, deduction made of the dissatisfaction and other inconvenience occasioned by it ' is the fifth rule, which is complemented by the sixth rule, 'the value of dissatisfaction will be in the compound ratio of 1. The multitude of the persons dissatisfied; 2. The intensity of the dissatisfaction in each person; 3. The duration of the dissatisfaction on the part of each.' We should also note the seventh rule, which is that 'as a means of obviating dissatisfaction, indirect legislation should be preferred to direct: gentle means, to violent: example, instruction, and exhortation should precede or follow, or, if possible, stand in the place of law.'26 Here, Bentham’s usage of the word, 'legislation' is very broad and the 'indirect legislation' included 'everything done by government which was not exclusively an exercise in direct legislation.'27

• 28 Quinn, M., 'Popular Prejudices, Real Pains', p. 77.

24According to Michael Quinn, Bentham also made a distinction between abstract and net utility. 'Abstract utility' relates to 'the pains and pleasures liable to be experienced by human agents as such, which are embodied in the empirical generalizations [by Bentham himself] about human psychology.'28 'Net utility' is identical to 'clear utility' in the fifth rule of legal transplants. Bentham was aware that net utility would fluctuate with the introduction of his codes based on abstract utility according to the prejudicial biases or sensibilities of the natives reacting to his Pannomion. Thus, Bentham argued that to bring net utility in line with abstract utility, 'indirect legislations' were necessary, and the main components of indirect legislations were 'example, instruction, and exhortation,' as shown in his seventh rule of legal transplants.

• 30 Quinn, M., 'Popular Prejudices, Real Pains', p. 82.

26As to the punishment, Bentham proposed that consensual homosexual acts should be punished by banishment instead of by hanging in the face of strong prejudice against homosexuality and the expected unpopularity of decriminalizing homosexual behaviour in 19th-century England. As is well known, Bentham often argued that consensual homosexual acts were harmless. To mitigate the strong prejudice, he suggested that “if you were able to demonstrate that, for instance, widely admired figures in the nation’s military or political history had been in the habit of engaging in consensual homosexual acts, and successfully disseminated that demonstration, you might hope that hostility to homosexuality would gradually abate. » 30

• 32 The work mentioned by Bentham is in The Theory of Legislation (1802).

29'Place and Time' is substantially identical to the work mentioned by Bentham in the extract above.32 Thus, to President Madison, 'Place and Time' should be understood in the light of Bentham’s Pannomion project and its basic theories.

• 34 Bentham, J., An Introduction to the Principles of Morals and Legislation, p. 6, n.c.

31Bentham’s universal jurisprudence includes his discussion of different forms of Pannomion. Bentham’s 'short list' above comprises terms such as 'obligation, right, power, possession, title, exemption, immunity, franchise, privilege, nullity, validity and the like.'34

• 36 Postema, Gerald, Utility, Publicity, and Law: Essays on Bentham’s Moral and Legal Philosophy (Oxfor (...)

33As Postema argues, in Bentham’s concept of law, every legal provision 'must ultimately be tethered to empirical facts (‘real entities’).' Due to his ontology, fictitious entities, which include rights, duties and the like, should be 'understood by displaying the relationship that its import bears to the import of the sentence using names of real entities in place of names of fictitious ones.'36 Ferraro refers us to Bentham’s remarks:

• 39 Ferraro, F., 'Utility, Predictability, and Rights: Bentham’s Utilitarianism and Constitutional Enti (...)
• 40 Ferraro, F., 'Utility, Predictability, and Rights: Bentham’s Utilitarianism and Constitutional Enti (...)

37As we saw above, Bentham argued that every legal provision should be tethered to real entities of act and law. Bentham tries to show this connection by treating every right-conferring law as an exceptive clause of the corresponding penal law―law 'commanding or forbidding an act.' Moreover, Bentham thought that not only civil laws but every kind of legal provision should be tethered to the real entity of '[s]overeign’s expression of will accompanied by the threat of punishment,'39 which event is what Bentham meant by the real entity of 'the union of ' act and law.40 According to Postema,

• 45 Bentham, J., An Introduction to the Principles of Morals and Legislation, p. 6, n.c.

43As we saw in this section, the 'words' in the above quotation include terms such as 'obligation, right, power, possession, title, exemption, immunity, franchise, privilege, nullity, validity and the like.'45

• 47 Postema, G., Utility, Publicity, and Law: Essays on Bentham’s Moral and Legal Philosophy, pp. 150-1 (...)
• 48 Bentham, J., Of the Limits of the Penal Branch of Jurisprudence, p. 196.

45It seems reasonable to regard Bentham’s theory on the form of the Pannomion as based on universal censorial jurisprudence, as suggested by Schofield. It is well known that it was Bentham’s discontent with the common law that led him to struggle to construct a Pannomion. Bentham distinguished the utilities derived from security of expectations ('expectation utilities' vs 'original utilities'). Bentham argued that expectation utilities or utilities derived from the security of expectations have special weight.47 Bentham criticized the common law because judges could overthrow precedents that were contrary to 'reason', for its uncertainty and obscurity by arguing that 'if there be still a man who will stand up for the existence and certainty of a rule of customary law, give him everything he asks, he must still have recourse to fiction to produce any such rule'.48 Bentham tried to replace it with his Pannomion, comprised of determinate rules for the purpose of securing people’s expectations. Thus, Bentham’s theory of the form of Pannomion is certainly based on Bentham’s normative or censorial considerations.

• 49 Bentham, J., An Introduction to the Principles of Morals and Legislation, p. 305.
• 50 Bentham, J., An Introduction to the Principles of Morals and Legislation, ch. 16.
• 51 Lobban, Michael, The Common Law and English Jurisprudence 1760–1850 (Oxford, Oxford University Pres (...)

46As to the substance of the Pannomion, Bentham remarked that 'to exhibit a complete catalogue of all the offences created by law […] would be to exhibit a complete collection of the laws in force'49 and 'a complete catalogue of all the offences' was to be deduced from the division of offences. In Introduction to the Principles of Morals and Legislation, Bentham divided offences into 1. private offences, 2. self-regarding offences, 3. semi-public offences and 4. public offences.50 He continued to subdivide each of these offences. For instance, he subdivided private offences into offences against the person, offences against the reputation, offences against the property and offences against the condition. In dividing offences, Bentham’s method was that of bipartition. It was 'based on contradictory formula: what was classed in one division would thus be contradictory to what was classed in other.'51 The division of offences would continue until the species of offences, which were also complementary, such as wrongful destruction, wrongful occupation, and theft, among others, were obtained.

• 52 Schofield, P., 'Jeremy Bentham and HLA Hart’s ‘Utilitarian Tradition in Jurisprudence', p. 157.
• 53 Bentham, Jeremy, A Comment on the Commentaries and A Fragment on Government, ed. J.H. Burns and H.L (...)
• 54 Bentham, J., A Comment on the Commentaries and A Fragment on Government, p. 417.

47Bentham’s division of offences is based on natural arrangement, which is integrated by the principle of utility and classifies offences according to the objects of pain they produce. According to Bentham, in contrast with a natural arrangement, the technical arrangement of English law was confusing and unsatisfactory, and its terminology, such as misprisions, contempts, felonies, praemunires, and the like, did not show any connections between wrongful acts and the principle of utility.52 In discussing the natural arrangement, Bentham was focusing on replacing 'technical reasons, such as none but a Lawyer gives, nor any but a Lawyer would put up with'53 with utilitarian 'reasons, such as were they in themselves what they might and ought to be, and expressed too in the manner they might and ought to be, any man might see the force of as well as he [a lawyer].'54 Thus, the substance of the Pannomion, which would be generated by the division of offences, is also based on Bentham’s normative or censorial considerations.

• 55 Bentham, J., 'Place and Time', p. 155.

49However, as we have seen, in 'Place and Time,' Bentham denied that different countries have different catalogues of pleasures and pains by saying that 'thus far at least, human nature may be pronounced to be everywhere the same.'55

• 56 Loring, Robert, 'The Role of Universal Jurisprudence in Bentham’s Legal Cosmopolitanism', Revue d’é (...)

50As Loring argues, for Bentham, 'the kinds of pains and pleasure humans experience are more or less universal.' Bentham certainly shows a possible way out of the dilemma of descriptive accuracy versus universality, by directing our attention to the sources of human pleasure and pain and the social practices that are organised around avoiding pain and seeking pleasure.56

• 58 The most reasonable interpretation is offered in Zhai, Xiaobo, 'Bentham’s Natural Arrangement and t (...)

52This is a very complex passage with many possible interpretations.58 It may be possible to understand Bentham’s distinction between 'expository' and 'censorial' in terms of the distinction between 'net utility' and 'abstract utility,' which we discussed in the previous section. According to Bentham, the difference in human nature:

• 60 As Schofield argues, it is important to note here that at first 'Bentham’s theory of sovereignty di (...)

53The 'causes' in the above quotation are identical to 'circumstances influencing sensibility.' Although the abstract utilities are based on common human nature, net utilities would vary among countries due to the variety of moral or religious sensibilities. Although the abstract utility or the division of offences in the Pannomion is based on the common nature of human being, the net utility of each country from time to time deviates from it due to moral or religious sensibilities. Thus, 'abstract utility,' although based on an 'expository' description of common human nature, sometimes becomes 'censorial' to the net utility of donee countries into which Bentham tried to introduce his Pannomion. It is important to note that Bentham, who aspired to be 'the legislator of the world,' regarded western as well as non-western countries as the candidates for 'the donee countries.'60

• 65 Bentham, Jeremy, 'On the Liberty of Press, and Public Discussion', eds. C. Pease-Watkin and P.Schof (...)

59As we saw in Section 2 of this article, Bentham tried to bring the actual utility experienced by the natives in line with the abstract utility which is embodied in his Pannomion by 'indirect legislations.' The main components of indirect legislation were example, instruction and exhortation. Bentham thought that through indirect legislation, people would find their 'true interests' and would abandon laws that were at odds with his Pannomion. Thus, although Bentham supported the colonial rule of India, he tried to introduce his Pannomion incrementally and consensually. On the other hand, Bentham defended the liberty of the press and public discussion as universally desirable. Bentham argued that the liberty of the press and the public discussion was 'indispensable, at all times and every where'65 because he thought people could understand their 'true interests' through these devices, which are also the devices of indirect legislation. In introducing his Pannomion, Bentham invited the Indian people to 'reform' their prejudices which are at odds with universal human nature through the liberty of the press and public discussion. This approach is certainly different from that of John Stuart Mill, who, as seen above, admitted the minor role of Indian people in their government or reforms.

• 66 Rosen, Fred, 'Introduction', in Jeremy Bentham, An Introduction to the Principle of Moral and Legis (...)
• 67 Quinn, M., 'Popular Prejudices, Real Pains', p. 82.

60However, it might be argued that Bentham’s universal human nature was nothing but a Eurocentric concept, which is the second possible objection discussed here. In Section 2, we saw Bentham’s proposal that consensual homosexual acts should be punished by banishment in the face of strong prejudice against homosexuality. Bentham did not try to abolish the punishment for consensual homosexual acts all at once. This shows that Bentham did not force people to abandon their prejudice. Rosen emphasizes that Bentham’s principle utility had empirical or conventional nature, and that is also the case with his universal human nature.66 Although Bentham tried to enlighten people by indirect legislation to find their true interests, he did not try to force them to accept those interests. As Quinn suggests, for Bentham, 'the only way to combat a prejudice is by presenting evidence'67 through indirect legislation. Bentham’s concept of human nature may be Eurocentric, but it was not imperialistic.