Utility, Public Rules, and Common-Law Adjudication

A theme running through all of Bentham’s jurisprudential writings is the conflict between the demands for stability and certainty of law and the need for flexibility in adjudication. Although he was keenly aware of the need for fixed rules for social conduct, Bentham regarded the principle of utility as the sovereign rational decision principle. Thus, he sought ways to constrain the decision-making of judges while leaving them room to respond to the constantly varying demands of utility in particular cases. The complex history of the development of Bentham’s theories of law and adjudication is the history of a series of increasingly sophisticated attempts to solve this central problem of utilitarian political and legal theory. This history begins to unfold in Bentham’s early reflections on justice, utility, and common-law adjudication. In these writings, Bentham defined the basic terms of the conflict, surveyed with remarkable insight the issues at stake, and proposed a unique utilitarian solution for his native common-law system. He soon became dissatisfied with this solution and this dissatisfaction set him on a course of increasingly deeper reflections on the nature of law and adjudication that eventuated in a complex and sophisticated jurisprudential theory. However, abandoning his initial solution did not signal that Bentham abandoned the principles underlying his early argument. Rather, he came to see that only a systematic arrangement of comprehensive codes—the “pannomion”—could hope to answer the demands of publicity on the law.