Constitution and the Code: Jeremy Bentham on the Limits of the Constitutional Branch of Jurisprudence

In recent years, the focus of much Bentham scholarship has been driven by the publication of new volumes in the Collected Works. Constitutional thought is no exception. The first volume of the Constitutional Code (1830) was republished in 1983, but before that date the topic had come under scrutiny with the publication by H. L. A. Hart, under the title Of Laws in General, of manuscripts originally intended as a continuation of An Introduction to the Principles of Morals and Legislation.¹ Today, new light can be cast on this topic with the publication by Philip Schofield of a new arrangement of this set of manuscripts as chapter XVII of the Introduction, entitled Of the Limits of the Penal Branch of Jurisprudence, and with ongoing research on Bentham's French manuscripts.²

Commentators have first attempted to make sense of the constitutional implications of Bentham's theory of legislation as set out in his early texts (from the 1776 Fragment on Government to the 1789 Introduction) by focusing on the issue of sovereignty. Back in 1967, while preparing Of Laws in General for publication, H. L. A. Hart devoted an article to "Bentham on Sovereignty".³ The main question he — and other jurists after him — asked was, in the words of Oren Ben-Dor, "[h]ow could Bentham offer a command theory of law on the one hand, and provide for a constitutionally limited government on the other?"⁴ Hart later came back to the question when reworking his earlier article for a chapter in his Essays on Bentham.⁵

In order to reconcile Bentham's seemingly contradictory statements, it has been necessary to break with Hart's presentation of the philosopher as an unambiguous proponent of legal positivism. To that effect, following the leads presented by J. H. Burns in reply to Hart in an article published in 1973,⁶ Frederick Rosen and Philip Schofield have adopted a more historical standpoint. They have explored the various ways in which Bentham's constitutional ideas unfolded in the course of his long writing career.⁷ These studies stressed the changes in Bentham's constitutional and political theory between the "early" writings of the 1770s-1780s and the later Constitutional Code and its preparatory manuscripts though they disagreed on the nature and on the timing of these breaks.⁸

The aim of this paper is to cast light on an often neglected aspect of this debate: the depth and continuity of Bentham's efforts to understand the place and status of constitutional law within a complete code. As we shall see, the continuity of his ideas in that respect is striking, as was the attempt, which remained at the forefront of his thought, to write a Pannomion, a complete body of laws.⁹

Bentham's definition of constitutional law remained strikingly similar throughout his life. In manuscripts dating from the 1770s, he wrote:

On laws of the constitutional class ... depend the power of the governors and the security of the governed. On the one hand they confer fiduciary powers: on the other hand they prescribe limits to those powers / narrowing the description of the modes of acting authorized.¹⁰

The definition given in 1822 was not very different:

The Constitutional branch is that which establishes the denominations, powers and duties of the several servants of the Community, and determines the operations or other events or states of things by which they respectively begin and cease to be so.¹¹

How could constitutional law, thus defined, be included within a complete code? As this paper will show, Bentham was consistent in presenting this branch as fully integrated in the code. How Bentham did that cannot, however, be understood without reference to his main goal: uniting morals and legislation around one single principle, that of utility. It is by referring Bentham's constitutional theory to his wide-ranging reform scheme that we can understand the specific character of constitutional law, at the precise juncture of morals and legislation.

This paper will focus firstly on early texts (published ones and...