British Utilitarianism after Bentham: Nineteenth-Century Foundations of International Law II

Abstract

What are the legal principles of British utilitarianism in the long nineteenth century; and what conception(s) of international law do they offer? The celebrated founder of the utilitarian school is Jeremy Bentham, who categorically rejects all metaphysical natural law thinking by insisting that all positive law ought to be adopted by a legislature. But in the absence of a world legislature, what did this mean for the positivity and normativity of international law? Surprisingly, Bentham and a second generation of utilitarian thinkers can affirm the legally binding nature of international law; yet with John Austin, a radical ‘sovereigntist’ critique subsequently casts doubt over the nature of international law as law ‘properly so called’. This infamous scepticism would have a profound impact on British international thought in the twentieth century; yet in the nineteenth century, the ideas of a third-generation utilitarian became more prominent: the liberal philosophy of John Stuart Mill. Mill’s ‘relativist’ and ‘civilisational’ conception of international law thereby gave the utilitarian project a specifically imperialist dimension that will be analysed, both in its utilitarian-philosophical and practical-legal dimensions. The article however also explores two other legacies of British utilitarianism, namely: the rise of international codification and the emergence of a specifically British conception of private international law during the nineteenth century.