As is well known, Jeremy Bentham sought to codify all law into a ‘complete code of laws’Footnote 1 or ‘Pannomion’. In order to comprehend fully the role which he devised for the judges under such a system, we first need to understand what he meant by ‘completeness’ of the Pannomion. In the first part of this article, the two opposite visions of such completeness entertained in Benthamic scholarship will be exposed: the ‘traditional’ and the ‘minimalist’ vision. Both will be shown to be unsatisfactory on account of contradictory textual evidence within Bentham's works. In the second part, it will be argued that Bentham's utilitarian judge is mainly a tutor of the citizens’ expectations, and that his or her contribution to the flexibility of the code – which is necessary for avoiding suboptimal results – consists in halting the decision and proposing an amendment to the legislature, whenever the case at hand seems to call for substantial change in the law as it is. Such change, if approved by the legislature, will apply retroactively to the case in question. This may lead to the disappointment of law-induced expectations; for Bentham, though, extra-legal general expectations of justice, which are stronger and more deeply rooted, usually will be enhanced by such amendments of the law, so that the overall balance of utilities will eventually be positive.
THE PANNOMION AS A COMPLETE CODE
Two different interpretive lines can be found in Benthamic scholarship regarding the Pannomion's completeness. I shall call the first the ‘traditional vision’ of the Pannomion, and the second the ‘minimalist vision’.
The traditional vision of the Pannomion project, which is almost commonplace among Bentham scholars, sees it as a plan for a code which would leave no choice for the judge at case level, in the sense that no case would be left unprovided for by the law ex ante. The code would be ‘so complete that it would reduce the task of judge and jurist to the mechanical application of its terms’.Footnote 2 This kind of completeness seems to involve the enacting of an enormous number of very specific legal rules.
On the contrary, the minimalist vision sees the Pannomion as leaving a considerable degree of freedom for the judges in enforcing the laws. This is Gerald Postema's ‘revisionist’ interpretation. Postema holds that the Pannomion should not contain a huge number of very precise rules; it should rather consist of a relatively small number of broad principles, which would guide adjudication but could not entirely predetermine it. The code would be complete in the sense that it would be capable of embracing the whole field of human agency, thanks to an all-comprehensive plan on which it would be based.Footnote 3
I take issue with the traditional vision: I will first show in which respects I find it unsatisfying; subsequently, I will analyse the minimalist vision and try to explain why it does not convince me either.
The best version of the traditional vision is probably that offered by Michael Lobban. Although he states that ‘Bentham is an ambiguous character, and there is room for both interpretations’,Footnote 4 he seems to endorse the interpretation of the Pannomion as a code in which the legislator could foresee every possible species of offence and provide for its regulation. The Pannomion, then, was for Lobban a ‘vast’ code and a ‘deductive’ one.Footnote 5 It was deductive in the sense that it was grounded upon a ‘rational deductive method’ which would allow the classification of all possible human actions into genera and species. This method would follow a top-down path, in that it would foresee all possible human actions by proceeding to successive divisions from a single all-encompassing class. In Lobban's view, this would be an ‘a priori’ methodFootnote 6 − by which he seems to mean established ex ante − meant to devise a very detailed body of laws and to eliminate the need for judge-made integrations to the law; the new system should be a ‘static’ one, in need of very few and sporadic changes.Footnote 7 As David Lieberman points out, this, at least, was Bentham's aim since he abandoned the project of a simple Digest of the old materials of common law and switched to the plan of a new system of codified legislative law, built from scratch.Footnote 8
For Lobban, not only was Bentham's alleged project of a complete code built upon an a priori system of classifications doomed to fail; it also contradicted some of his views regarding the nature of commands and judicial creativity. Bentham's code should have been a ‘mechanical’ one, leaving no choice to the judge at case level, because it was based on a ‘system of deduction that would allow perfect movement from the principle of utility down to the instant case’; but ‘it will be seen that this was impossible to achieve, and that Bentham's inductivist methodology disallowed it . . . Bentham's theoretical ideal type of law was unworkable’.Footnote 9
I disagree with Lobban's charge of inconsistency between Bentham's codification projects and his analysis of commands and legal rules. More particularly, I will try to show that this traditional vision of a ‘mechanical’ or ‘deductive’ code does indeed contradict Bentham's views on adjudication, but this is precisely because this image of the Pannomion is actually mistaken.
To begin with, the Pannomion was not meant to be a static system, capable of encompassing the whole field of human action. Bentham did not think that all legislation could proceed ‘top-down’ from an ex ante classification of offences, established once and for all, to exact normative regulation at case level. Classification started indeed from categories established ex ante, but it did not predetermine all sub-species, neither did it allow the complete elimination of judicial discretion. Bentham thought that, to obtain all-comprehensiveness and exhaustiveness in classification, the best available method was that of bipartition or the ‘bifurcate method’. This means that we take any given ‘logical whole’, divide it into two mutually exclusive classes, then we further divide each of these into two other sub-classes, and so on.Footnote 10 The classification we obtain is all-comprehensive and exhaustive in the sense that every member of the logical whole finds a place in it and in one class only, without being duplicated in other classes on the same level. Proof of the desired exhaustiveness can be offered by what Bentham called the ‘contradictory formula’: we find a ‘distinctive property’ which is shared by all members of a class, but which does not belong to members of the other class of the bipartition; subsequently we proceed to formulate two contradictory statements, like ‘object a has the property x’ and ‘object a does not have the property x’; obviously, one and only one of the two is true. Property x, then, allows us to distinguish two classes of objects, those possessing x and those not possessing x; our classification is thus exhaustive.Footnote 11 This method, Bentham suggests, is the best also for understanding any object of inquiry in general, because
to understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. . . . To understand it perfectly, a man must therefore be informed of the points in which it agrees, as well as of those in which it disagrees, with all other things.Footnote 12
Bentham uses the same method to classify all sciences and arts in Chrestomathia, following the model of Bacon's and d'Alembert's ‘trees of knowledge’.Footnote 13
For Bentham, exhaustive bipartition would make it possible to obtain the desired completeness of the code of laws. He proposes taking as a starting point the logical whole of all possible mischievous acts to be made offences. The first dichotomy would be that of offences against assignable individuals versus offences against unassignable individuals. The first category could be divided into offences against one's self, or self-regarding, and offences not self-regarding, that is, against others. The latter category could be divided into offences against every unassignable individual (offences against the state, or public) and offences against limited groups of unassignable individuals (semi-public offences), and so on.Footnote 14 This system of classification would provide the skeleton for the complete code. As we have seen, in describing the bifurcate method Bentham uses ‘all-comprehensiveness’ and ‘exhaustiveness’ as synonyms.Footnote 15 In speaking of the desirable qualities of a body of laws, he also uses ‘all-comprehensiveness’ as a synonym of ‘completeness’ and refers this to the ‘extent’ of the codeFootnote 16 – by which Bentham most likely means its sheer dimensions or the ‘bulk’ of the laws contained in it.Footnote 17 It is safe to assume, then, that for Bentham a complete code is one possessing an exhaustive classificatory structure.
Now, Lobban seems to overlook the fact that the process of dichotomic classification is led by voluntary bipartitions. In the code, it is the legislator who chooses the property or quality to focus on, that is, the content of the ‘contradictory formula’. Only the method of classification is established ex ante and could actually be described as a priori, in the sense that it is logically based on the principle of the excluded middle; but the final result of this method, that is, the classification itself, is not predetermined nor established ex ante, but is rather left to the will of the classifier to determine. More particularly, the division of offences is based on those differences which the legislator finds it useful to take into account when contemplating mischievous acts, in order to differentiate between the associated punishments. This allows the complete code to be a dynamic system, not a static one. It may grow and include new laws, with no alteration of the general structure. It may vary, because
no system of laws will ever, it is probable, be altogether perfect: none so good but that a greater share either of information or judgment or of probity might make it better. Even if at any given instant it were really perfect, at the next instant, owing to some change in national affairs it might be otherwise.Footnote 18
Moreover, we could have many different complete codes, each of which would rule in a different country, with its own particular characteristics like history, religion, climate, and so on. Maybe such general offences as ‘theft’ or ‘murder’ would hold in every human code, but their sub-species could vary, and so would the laws of the code (since every law, for Bentham, ‘turns an act into an offence’).Footnote 19 Terms like ‘murder’ refer to ‘large and general class[es] of acts’, but no law employing such terms would be precise enough for enforcement.Footnote 20 This means that, if we were to adapt the complete code to another country, we should take into account all those ‘circumstances influencing sensibility’ which Bentham enumerates in chapter VI of IPML. The force and effectiveness of these circumstances may vary in different cultural contexts and also depending on differences in the climate or geography of the places. Here, again, no possibility of a complete regulation of all human actions by fixed, ex ante assumptions is seen as desirable, or even as possible. What will not change are
The rules concerning the cases that are respectively meet and unmeet for punishment and for reward – the rules concerning the proportion proper to be observed between offences and punishments, between acts of merit and reward – the rules concerning the properties to be wished for in a lot of punishment and reward – the principles on which the division of offences has its foundation . . . if they are just and proper now, would at any time have been so, and will be so every where and to the end of time.Footnote 21
These rules, then, can be known ex ante and are universally applicable, but they are used to produce laws which vary according to varying circumstances. There can be many different complete all-comprehensive codes, each ruling in a different country. Exactness at case level, therefore, cannot be attained by establishing a few principles and simply applying them to specific circumstances, as Lobban's idea of a ‘deductive code’ would involve.
This also allows us to dispel the alleged contradiction between Bentham's views on rules and commands and his plan of a complete code. He distinguished between two kinds of the power of commanding or ‘power of imperation’: de singulis and de classibus. What we usually call legislative power is generally de classibus, which means that the laws issued by the legislator are abstract and general and address ample classes of acts, things and individuals.Footnote 22 This is so because ‘the legislator in the grouping of the persons, things and acts which he takes for the subjects and objects of his laws is limited to such parcels as correspond to the generic names which are furnished by the language’.Footnote 23 On the other hand, judges have a power of imperation de singulis, that is, they issue commands regarding concrete cases, specific acts and individuals. This power allows them to aggregate individual members to the classes established by de classibus commands: this is why Bentham also calls it ‘accensitive power’.Footnote 24 Now, neither power is absolute and boundless.Footnote 25 This means that adjudication for Bentham can never be entirely predetermined by legislation, since there is always room for choice in judicial interpretation: there is not one correct interpretation (and application to the case at hand) of the legislator's words, but a number of different interpretations (and applications) will be plausible. If we accept that the purpose of the Pannomion was not to render adjudication an entirely mechanical process, then we can see no contradiction between Bentham's views on imperative power and his project. Such a blatant contradiction, on his part, would be very bizarre indeed.
Lobban also points out that Bentham's theory of law included the idea of its ‘adoption as strongly as its enactment’.Footnote 26 This is undoubtedly true, as in Limits we find a definition of ‘a law’ as ‘an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state’.Footnote 27 But this does not mean that ‘in spite of Bentham's hostility to judicial lawmaking, he none the less found himself acknowledging the need for judicial legislation even within the code’.Footnote 28 In Limits we find an acknowledgement of the fact that judicial decisions are, in a sense, laws,Footnote 29 but although they may be so important as to determine ‘the fate of a province’ they will not be termed ‘with any sort of propriety . . . an act of legislation’.Footnote 30 For Bentham, then, issuing laws is not the same as legislating or lawmaking.Footnote 31 Judicial decisions are laws in the sense of legal norms, which are part of the legal system as the sovereign adopts them. However, judges do not issue ‘acts of legislation’: they do not legislate. Bentham, then, does not acknowledge judicial legislation.
There is no contradiction either between Bentham's theory of legal interpretation and his plan of a complete code. It is true, as Lobban underlines, that Bentham recognized the necessity of a ‘liberal’ interpretation, as opposed to a ‘strict’ one. Liberal interpretation is in fact an alteration of the law, which is made by applying a new restrictive or extensive provision to the imperative one (that is, to the main part of a law).Footnote 32 It is rendered necessary when the law issued by the legislator has been ‘improvidently penned’ and it does not adequately express the legislator's will, that is, its enforcement in a certain case would not serve its scope (i.e. the ends that the legislator had in view when enacting the law).Footnote 33 For Bentham, ‘the words of a legislator are no otherwise to be regarded than inasmuch as they are expressive of his will’.Footnote 34 But the need for liberal interpretation was no threat to the completeness of the code, as long as the judicial decisions could be ultimately referred to the legislator's will. Moreover, as Lobban himself acknowledges, Bentham proposes that the judges declare explicitly when they are interpreting liberally and that the alteration, which in effect they are making to the law, be scrutinized by the legislature, in order to improve the expression of the legislative will in the code.Footnote 35 Since the Pannomion is meant to be a dynamic system, not a static one, the necessity of liberal interpretations does not hinder its completeness, nor does it give rise to a new form of case law and judicial lawmaking.
It seems that the supporters of the traditional vision of the Pannomion ascribe to Bentham more or less the same views on codification as those entertained by G. W. Leibniz, who embraced a geometric paradigm of law. Leibniz thought that a whole body of laws could be synthesized ‘on a single sheet’ by stipulating a few rules which could be applied by deduction to any conceivable case.Footnote 36 This was also a typical utopia of the Enlightenment, shared by Frederick the Great in his codification project for PrussiaFootnote 37 and by the Napoleonic code, at least in the first intentions of its compilers.Footnote 38 This would make the legal system a static one, in the same sense as Hans Kelsen conceived of moral systems: moral systems are static because all of their rules, no matter how specific, can be logically deduced from a superior principle. This is because norms belong to moral systems by virtue of their content. On the contrary, legal systems are dynamic because they lack such a deductive structure; laws belong to such systems by virtue of their being created by an authority, and this, in turn, has been given norm-creating power by some higher norm.Footnote 39 Bentham's Pannomion is meant to be a dynamic body of laws, not a deductive static code; moreover, we can say that Kelsen's view of legal interpretation as a non-mechanical process, the result of which cannot be entirely predetermined, resembles Bentham's.Footnote 40
It is worth pointing out that, by claiming that the view of a Pannomion as a deductive code is mistaken, the deductive nature of the judicial decision process is not denied. What is denied here is that for Bentham all laws could be deduced from few superior principles, maybe from the simple application of the principle of utility to the case at hand. Nonetheless, once the laws have been established – not deductively, but by voluntary distinctions operated by the legislator – their application to concrete cases is a matter of deductive reasoning: the judges need to use the laws as part of the premises of a syllogism.
In what sense, then, is the Pannomion complete? First of all, as we have seen, ‘completeness’ is the same as ‘all-comprehensiveness’ and ‘exhaustiveness’. A complete code will be one grounded upon an all-comprehensive structure of dichotomic classification. This will allow the legislature's will to be fully expressed, preventing at the same time a rebirth of customary law, because all law will be referable to a written expression of that will.
If the traditional vision of the complete code is untenable, Postema's minimalist vision seems faulty, too. Postema seems to see the laws in the Benthamic code as so many pieces of advice from the legislator to the judges. The latter would not be bound by them, they should regard them as no more than a ‘list of the relevant expectations’ that the legal system may have encouraged in the citizens. Since disappointment of these expectations should be minimized – as prescribed by Bentham's ‘Disappointment-preventive’ or ‘Non-disappointment’ principleFootnote 41 – the judges will have to take into account the directives of the code. But they will also need to balance these with other relevant utilities, in what can be seen as a direct-utilitarian approach to adjudication. On this view, should the judges reckon that a violation of the code is required by the principle of utility, they are entitled to it. Now, Postema's account seems to contradict textual evidence such as that of the Scotch Reform manuscripts,Footnote 42 in which Bentham clearly states that, whenever the judge finds himself in the position of having to choose between the maximization of the people's welfare, and compliance with the legislator's will, consideration of the people's welfare will have to yield to enforcement of the law as a standard of decision.
No (says somebody) the proper standard of rectitude is – not the will of the sovereign, single-headed or many-headed, but the welfare of the people. I answer: it is both together: there is no opposition in the case. No one will say in our days – under the purest monarchy, any more than in the purest democracy – that any other object than the welfare of the community – the greatest happiness of the greatest number of the members ought to be regarded [as] the ultimate standard of rectitude. But the question regards not theory but practice: and for practice the only object that will serve in the character of a standard of rectitude is the will or wills of some determinate person or persons – that is to say some assemblage of words containing the expression of such will or wills. The question is – not what ought to be taken for the standard of rectitude by a person thinking only – sitting in his closet thinking for himself alone and by himself, but what ought to be taken for the standard of rectitude by the Judge sitting in the judgment seat thinking and acting for the public.
By the Judge then what is it that ought to be taken for the standard of rectitude, of decision? The will of the sovereign, or the welfare of the people? The answer plainly, is – the will of the sovereign as far as it is known: otherwise he himself is sovereign as well as Judge. Shall it be the welfare of the people? Shall his decision be that which in his own opinion, real or pretended, is most conducive to the welfare of the people, no regard being at the same time paid to the will of the sovereign, or of any other person than himself? Acting thus is acting exactly as the sovereign himself does: this is not judicature, but sovereignty.Footnote 43
For Bentham, then, the proper standard which the judges should follow in reaching for a decision is the legislator's will; by following that standard, they will also do what the principle of utility prescribes, that is, maximizing general welfare. If we empowered the judges to substitute direct-utilitarian calculation for compliance with legislative rules, we would endow them with an undue share of sovereignty. Direct-utilitarian adjudication in opposition to the law could only be justified and ‘morally right’ in ‘extreme cases’, in which ‘owing to . . . misgovernment . . . the government is threatened with a dissolution, the people being more or less near to a state of civil war’.Footnote 44 But in normal socio-political conditions, that is, when we have a ‘settled government’ and ‘the governed people [are] disposed as usual to submit their wills to the will of the sovereign’Footnote 45 – which means, according to Bentham's definition of ‘sovereign’, that sovereignty is clear and undisputed – the judge will have to enforce the legislature's will, not to substitute to it the result of his/her autonomous utilitarian calculations in deciding the case.Footnote 46
Moreover, according to Bentham's definition of ‘a law’, it is quite clear that for him laws are essentially commands, with the exception of those ‘discoercive’Footnote 47 or ‘de-obligative’Footnote 48 laws which totally or partially revoke previous commands. The Pannomion does not contain simple pieces of advice nor broad principles or rules of thumb, as Postema seems to hold.Footnote 49 If we conceive of the complete code (from the judges’ point of view) as a mere list of the relevant expectations or as a set of recommendations, it is difficult to hold that it is fundamentally composed of commands. But the content of the Pannomion is essentially imperative and it binds the judges to give execution and effect to the will of the legislator (unless they see ground for proposing to the legislator a change in the law, as we will see). This looks even clearer if we turn to Limits, particularly to a footnote by the editor which refers to a manuscript passage with the marginal heading ‘Law how distinguished from a piece of advice or exhortation’, later deleted by the author. In this passage – which is new content with respect to Hart's edition of Of Laws in General Footnote 50 – Bentham explicitly states that in his definition of ‘a law’Footnote 51 the final part
was inserted for the sake of distinguishing law from exhortation and advice or counsel, or to speak more precisely, of distinguishing a law from a piece of exhortation or advice. Advice and exhortation administer neither of them any new motives. . . . He who advises applies no new motives: all he does is to suggest and bring to view the probability of such interesting events as seem likely to come to pass from other sources.Footnote 52
A law, then, provides the will with new motives, mainly by threatening a punishment in case of non-compliance.Footnote 53 This passage was later deleted by Bentham, but it is reasonable to suppose that this was not because he had second thoughts, since its content is coherent with other undeleted passages in Limits which specify the relationships between the terms ‘law’ and ‘command’ and the sanctionatory character of the latter. Bentham, for instance, explains why he did not consider the word ‘command’ as an adequate substitute for the word ‘law’.
The word command seemed inadequate in three respects. 1. It gives no intimation that the will in question is in any manner referable to the sovereign. 2. It does not include a countermand. 3. It is not applicable without some degree of harshness to any material instrument, such as a written or printed paper, whereby the will in question is expressed. When applied to any thing written, it seems to denote the will which is expressed, in exclusion of the writing by which it is expressed.Footnote 54
Apart from these three aspects, then, a law is quite like a command, in the sense that it has a sanctioning part, which is meant to provide those addressed with motives to comply. ‘Every primordial law that is efficient is a command; every legal command imposes a duty’;Footnote 55 as is well known, ‘duty’ (together with its synonym ‘obligation’) is for Bentham the name of a fictitious entity, which refers to the probability of a punishment.Footnote 56 By the way, the providing of the will with new motives is exactly what distinguishes legislation from ‘private deontology’, that is, the art of teaching practical utilitarian morality by showing its (already existing) points of coincidence with personal interest (correctly understood).Footnote 57
In Postema's view, the Pannomion should not be complete in the sense that it would contain an enormous amount of very specific laws; it should rather contain a relatively small number of generic rules and broad principles. Completeness or all-comprehensiveness would be attained with a rational systematic arrangement and classification, not with a proliferation of laws in an impossible attempt to regulate all human agency in detail.Footnote 58 As we have seen, we should agree that the exhaustive method of classification is the key to completeness, and also that Bentham's project was not that of a code which would allow absolute exactness at case-level. Moreover, Postema very opportunely reminds us that ‘Bentham's model of rational method and systematic arrangement is not geometry, but botany or natural history’, and that his model was that of Linnaeus.Footnote 59 This rules out the possibility of a ‘deductive’ Leibnizian code, developed by inference from few axioms. But Postema does not provide enough textual evidence to support his interpretation that the Pannomion should be made of relatively few laws. While it is true that Bentham sought simplicity and accessibility of the law, and this would seem to involve conciseness,Footnote 60 he also thought that a ‘natural arrangement’ would allow each citizen to single out those laws that apply to his/her case, in such manner that complete knowledge of all the sections of the code would not be requisite.Footnote 61 Overbulkiness of the code of laws should be avoided and the number of laws should be kept down to a minimum,Footnote 62 but we are not told what this minimum should amount to and a huge number of laws could very well be necessary. A minimalist vision of the Pannomion, then, does not seem to represent faithfully Bentham's plan.
EXPECTATIONS AND THE JUDGE
Bentham distinguishes between ‘original utility’ and ‘utility resulting from expectation’. While maximization of the first requires minimizing pain in general, maximization of the second is achieved through preventing the pain issuing from disappointment of expectations.Footnote 63
For Bentham, the main function of a system of laws is that of fixing and coordinating the citizens’ expectations.Footnote 64 The problem with common law is that it prevents the people from forming systems of expectations which are stable and reliable enough to allow them to develop rational plans for their lives.Footnote 65 This is because of the inherent obscurity, uncertainty and lack of publicity of the common law system, which make it ‘ex-post-facto law’Footnote 66 and ‘dog law’.Footnote 67
It is in the courts that the law has a strong and direct impact on people's lives, and the importance of uniformity in judicial decisions is paramount. In his first writings, Bentham advocated strict compliance with the rule of stare decisis in common law as a remedy to the unpredictability of legal sentences.Footnote 68 Very soon he must have convinced himself that codification was the only means to obtain both publicity of legal provisions and uniformity in adjudication. ‘The reason that pleads for the uniformity of decisions, is the same that pleads with equal force for their notoriety’: that is, to allow ‘that men may be enabled to predict the legal consequences of an act before they do it: that public expectation may know what course it has to take’.Footnote 69 Now,
The business of the Judge, then, is to keep the distribution of valuables and of rewards and punishment in the course of expectation: conformable to what the expectation of men concerning them is, or if apprized of the circumstances of each case, as he is, he supposes would be. To do that he is to put himself in their [i.e. the parties’] place, and to pronounce from such lights, and from such lights only, as can appear to them. Footnote 70
In a system of rationally codified law, the citizens’ expectations would adjust themselves to the provisions in the code. This would also pose limits to judicial interpretation. Bentham conceives of a code in which every statute would be accompanied by its rationale, in the form of a declaration of the ends which the legislature has in view at the time of enacting the law. Among other uses, the rationale would help common citizens to anticipate judicial interpretation.Footnote 71 This would provide a bridle to liberal interpretation, while at the same time it would neutralize its departure from the common meaning of the words employed by the legislator. If liberal interpretation is meant to reconstruct the hypothetical will of the legislator, as opposed to the actual will expressed by the words of the law, an explicit declaration of the ends of the statute in question would permit the citizens to focus on the utilitarian sense of the law and to predict somehow the outcome of non-strict constructions. The rationale would bind the judges not to substitute themselves for the legislature in amending the code and adapting it to new circumstances. Liberal interpretation is not meant to anticipate changes in the legislator's will, but only to reconstruct that will at the time the law was enacted.
But a change has happened: circumstances are such the compliance with the directions of the Law in no cases now answers the intention. Are we then to cease to pay and to exact compliance? By no means. For (under Statute Law) the Legislature itself has expressly declared, by limiting a time, that compliance in all cases in which they mean it should ever be exacted shall continue to be exacted for that time. The expectation of men hath fashioned itself to the extent of that time: and sees not how to give any other bounds to it than the Legislator himself has given. Change of circumstances may happen: but change of circumstances may be gradual: and may have happened in the eyes of some before it has in the eyes of others. The expectation of some men concerning the enforcement of Law will not have followed the opinion concerning such a change in others. It is for them only to alter the course of expectation who first gave it its direction.Footnote 72
For Bentham, judicial interpretation is no means to substantial innovation in the law. This is also clear from the Constitutional Code, where he distinguishes between two functions which should be ascribed to the judges under the Pannomion: the Contested-interpretation-reporting function and the Eventually emendative function. The former should be exercised by the judge whenever doubts arise regarding the most correct interpretation of a statute and a party objects to judicial interpretation. The legislature, then, is appealed to in order that it should express itself as to the correct interpretation.Footnote 73 This function is distinguished from the Eventually emendative function, with which the judge proposes to the legislature a substantial amendment of the law, as regarding its matter and not only its form.Footnote 74 In the latter case, the law is seen as leading to unjust, that is anti-utilitarian, results; the problem is not with a faulty expression of the legislator's will, but with that will itself, which – in the judge's opinion – must be changed. No substantial change in the law must be brought about through judicial interpretation, because this would contravene the people's expectations moulded by the statutes in the Pannomion and by their declared purposes.
Bentham's conception of the role of the judges as one of protection of established expectations does not apply only to an ideal system of codified law, as it is shown by his writings on the ‘Equity Dispatch Court’. These concerned the proposal of a new court, which sought to clear the backlog of pending suits in the Court of Chancery. Such courts as the Court of Chancery, which were born in the Middle Ages to afford quick justice, had by the eighteenth century lost their character of expeditious, technicality-free tribunals and had adopted binding procedures, which had made them unbearably slow and inefficient. In 1830, Bentham published his Equity Dispatch Court Proposal; he subsequently wrote an Equity Dispatch Court Bill, which was only published posthumously in Bowring's edition of Bentham's works.Footnote 75 In his proposed new court, a single judge would deliver decisions free from procedural regulations and constraints. This would allow quick and fair adjudication. The Equity Dispatch Court was meant to work under a system of non-codified law and, more specifically, to address the property law cases dealt with in the Court of Chancery. Since there was no settled codified law to ground the citizens’ expectations in this field, the Equity Dispatch Court judge would have to follow directly the ‘Non-disappointment’ or ‘Disappointment-preventive’ principle, which, as we have seen, prescribes that disappointment of established expectations be minimized.Footnote 76 Owing to the great weight of expectation utilities, such a principle is considered by Bentham as ‘the immediate lineal descendant’ of the principle of utility.Footnote 77 The Non-disappointment principle should be followed by the judge with no regard for the procedural rules of the already existing courts of equity.Footnote 78 This also reflected Bentham's hostility to strict procedural rules, particularly in the field of evidence, which led William Twining to call him an ‘anti-nomian’ in this respect.Footnote 79 But, if we keep aside the law of judicial procedure or adjective law, we see that courts adjudicating under the Pannomion would not have to pursue immediately the Non-disappointment principle, nor for that matter the principle of utility itself; they would rather need to comply with codified law and apply the legislator's will expressed in the code. The Non-disappointment principle itself would require this, because the expectations of the citizens would focus on the complete code and rely on judicial decisions to enforce the code's rules.Footnote 80
Under such a system of codified law as that of Bentham's Pannomion, then, the judges would not be permitted to set aside legislative provisions whenever they think it necessary. But what if they are convinced that enforcing the law as it is would produce anti-utilitarian results? As we have seen, Bentham proposes that they submit an amendment to the legislature, and in the Constitutional Code he calls this their Eventually emendative function. Preliminary to the exercise of this, however, is another function which Bentham calls sistitive, suspensive, or execution-staying.Footnote 81 This allows the judge to suspend execution of the law as it is, in order to propose an amendment to the legislator; if the amendment receives approval, the amended law (and not the old one) will be applied to the case in question. This is seen by Bentham as a convenient ‘middle course’ for the judge to pursue, between adjudicating with no regard for utilitarian concerns and dispensing with the code, which is supposed to express the legislator's will, in order to achieve more desirable results.Footnote 82 The performance of such a task is not merely an option open to the judge, but, as Bentham says in the Constitutional Code, it must be rendered the judge's responsibility,Footnote 83 which means that the judge should be subjected to punishment in case of non-performance.Footnote 84
This view of the Benthamic judges’ ‘sistitive function’ contrasts with that entertained by Postema. According to him, suspending decision and sending the case up to the legislature to decide whether to change the law is only one of two options left open to the judge, the other being that of deciding according to the judge's estimation of the utilities at stake, that is, setting aside the relevant provision(s) in the code. For Postema, in the latter case the decision would be denied all precedential effect, so that (in Bentham's view) it would not deprive the code of its expectation-focusing role, thereby risking the rebirth of judge-made law. On the contrary, the interpretation here proposed is exactly that ‘the judge appears to be justified in questioning the application of the law to a particular case (on utilitarian grounds) only when there is apparent utilitarian justification for alteration of the law’.Footnote 85 In Postema's view, ‘such an interpretation would be difficult to advance without strong textual evidence to support it’.Footnote 86 But it rather seems that what really needs textual evidence is the idea that the judge, in Bentham's view, should be granted the power of deciding whether to apply to the legislature for a change in the law or to depart from the law to seek justice in the case at hand (a form of Aristotelian equity), although with no precedential effect. Textual evidence of this has still to be displayed, while the above Benthamic passages suggest that the judge must suggest alteration of the law whenever it seems that its enforcement would lead to suboptimal results in the case at hand.Footnote 87
It may be asked whether the application of the amended rule to the suit at issue can be seen as a case of ex post facto or retroactive legislation, which would clash with Bentham's overriding concern for the protection of expectations. After all, the parties had no reason to suppose that the behaviour under the consideration of the court would incur legal consequences which partially or totally differed from those indicated in the code at the time when they performed that behaviour. Bentham anticipated such an objection. He recognized that, in exercising the suspensive function, the judge ‘disfulfills an engagement entered into by the law’ and runs the risk of weakening the people's confidence in the trustworthiness of the legal system.Footnote 88 But Bentham also held that there are pre- or extra-legal expectations of justice among the citizens, which he called ‘natural’ expectations, and which are independent of the law – in fact, the law itself must conform to them. It is true that legislation influences expectations and, in so doing, it exercises a measure of control over utility itself: in encouraging an expectation, it makes it utilitarianly good not to disappoint it.Footnote 89 But ‘the legislator is not the master of the dispositions of the human heart: he is only their interpreter and their servant. The goodness of his laws depends upon their conformity to the general expectation’.Footnote 90 In fact, natural expectations trace the path to be followed by the legislator and mark the limits of legislative power. They usually express a sense of justice which coincides with the dictates of utility, because utility is a standard to which all generally ‘refer a Law or institution in judging of its title to approbation or disapprobation’.Footnote 91 Of course, cases may arise in which widespread expectation springs from irrational prejudices, so that a law which is conformable to utility may find opposition in public opinion; ‘but this is only an accidental and transient circumstance’, because laws which are really useful, for Bentham, will easily show their desirability, so that ‘expectation will be satisfied, and public opinion reconciled’.Footnote 92
Retroactive amendment, then, might clash with law-induced expectations, but it can be justified if it actually respects those natural expectations and that widespread sense of justice which is conformable to utility, or at least easily reconcilable with it. Because of their enormous importance, expectation utilities must be appropriately weighed up in the final utilitarian balance. If some expectations are disappointed by retroactive amendment, there must be other and at least equally weighty expectations which would be disappointed by non-amendment. For Bentham,
that which the people look to, at the hands of the Legislature and the Judiciary together is – the fulfilment of salutary ordinances, and no others: not the production of evil by admission or omission of this or that word in a law, through inadvertence or otherwise. What may, therefore, be reasonably looked for, is – that, by giving execution and effect to the imperfectly expressed portion of law in question, a severer shock would be given to the public confidence, than by forbearing so to do.Footnote 93
In the Constitutional Code, Bentham also gives two examples of such a situation: one is a penal case, the other a civil one. The first is the case of a law ‘so inappositely penned, as to subject to punishment a medical practitioner’ who, in order to save a life, had to operate on someone in the street and, in so doing, caused that person to bleed. Imagine the physician prosecuted under law by a personal foe for drawing blood in the streets. The judge refuses to enforce the law as it is, which would condemn the doctor, thereby suspending judgment and calling for amendment from the legislator. This would surely disappoint the prosecutor's expectations, but without doing so the expectations of the other members of the community would be negatively affected. More specifically, the prosecutor's pain would be outweighed, not only by the pain of the punished physician, but also by the pain which the public at large would feel because of sympathy towards the sufferer, because of antipathy towards the prosecutor and the judge, and because of the fear that such cruel and absurd laws might actually be enforced. The second case, i.e. the civil one, is drawn by Bentham from Shakespeare's Merchant of Venice: it is the case of the contract between Antonio and Shylock, which allows the latter to cut a pound of flesh from any part of the former's body, if he does not repay his debt in due time. Of course, non-enforcement of such a contract would disappoint Shylock's expectations, but such a pain would be outweighed by the fear that the people at large would feel at knowing that insolvency may be subject to such legal consequences. Retroactive amendment of the law, which would render invalid such a contract only after its stipulation, would then be justified.Footnote 94
To conclude, it must be pointed out that the full responsibility for legal changes and retroactive amendments is borne by the legislator, not by the judge. Under Bentham's ideal body of laws, then, the judges must always respect those expectations that arise from knowledge of the code. Whenever a case seems to call for substantial amendment of the law, in order to avoid undesirable anti-utilitarian results, the judges’ duty is to suspend the decision and ask for amendment from the legislator. In such a way, the citizens’ expectations will keep on focusing on the code, not on judicial decisions in themselves.Footnote 95
