In his review of the first edition of Bentham and the Common Law Tradition (“BCLT”), Charles Silver wrote that while there are “many excellent books on Jeremy Bentham's jurisprudence”, Gerald Postema's “might be the best one yet” (“Bentham and the Common Law Tradition. Gerald J Postema” (1988) 99 Ethics 164 at 164). The same remark can be safely made with respect to the second edition of this fundamental work, now published with a new preface and a forty page long afterword. As this new edition “reproduces the original 1986 text except for occasional minor editorial corrections” (xvi), the present review will focus on its afterword, in which the author addresses “three major challenges to [his] interpretation of Bentham's legal theory” (457) and “view of judicial reasoning” (477).
Postema commences his reflections by admitting that while, when working on the first edition of BCLT, he became conscious that “Bentham's legal theory” (456) would not fit with either twentieth century positivist or natural law doctrines, the research he undertook after the publication of that volume brought him to realise that “Bentham's jurisprudential project was far more systematic and even more ‘revisionist’ than [he] realized in the early 1980s” (456, 462 and 477). Further, and perhaps more significantly, Postema also came to appreciate that the task he had assigned himself – namely, a philosophically- and contextually-charged analysis of Bentham's jurisprudence – was only partly completed (459). Among other reasons, this was also due to his extensive focus on Sir William Blackstone at the expense of other perspectives of inquiry. Postema's afterword is therefore also an opportunity to re-state BCLT's main argument that “Bentham was not just a utilitarian and a positivist; he was a utilitarian positivist” (462). This simply means that despite what might be contrarily thought (and has been extensively held), Bentham's upholding of the principle of utility (“the fundamental principle guiding all rational deliberation, the ultimate rational decision principle”: 461; and see also 143, 151ff, 310, 331, 418, 425, 432, 463 and 477) is not incompatible with his (normative and anti-authoritarian, i.e. “anti-Hobbesian” and “anti-Austinian”: xiii, 59, 307–308, 318, 462, 470, 476 and 487) positivist views. This specification is welcome to the extent that in clarifying his aim, Postema helps the reader navigate through the meaningful engagement with his critics he embarks upon.
Having...
