Philosophy, Obligation and the Law

Bentham’s Ontology of Normativity

Piero Tarantino

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138496576
• eBook ISBN: 9781351021241
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book presents a comprehensive investigation of the notion of obligation in Bentham's thought. For Bentham, obligation is a fictitious – namely linguistic – entity, whose import and truth lie in empirical perceptions of pain and pleasure, 'real' entities.

This work explores Bentham's fictionalism, and aims to identify the general features that ethical fictitious entities (including obligation) share with other kinds of fictitious entities. The book is divided into two parts: the first examines the ontological and epistemological foundations of Bentham's distinction between real and fictitious entities; the second part addresses the normative and motivational aspects of moral and legal notions.

This book reveals the centrality of the following issues to Bentham's legal reform: logic, theory of language, physics, metaphysics, metaethics, axiology, moral psychology, the structure of practical reasoning and action with reference to the law.

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The normativity of fiction

The evolution of the theory of real and fictitious entities

Bentham’s idea of fictitious entity first appeared and was shaped in his very early writings, dating back to the early 1770s; they were devoted to mathematics and particularly to geometry. These as yet unpublished manuscripts are addressed to his brother Samuel in order to introduce him to certain elemental notions of Euclidean mathematics and thus improve his education.¹ Along with the technical explanation of some portions of Euclid’s Elements, these texts offered Bentham the opportunity to outline his view on the ontological and epistemological nature of mathematical objects and properties according to the general distinction between real and fictitious entities.²

Bentham understands mathematical notions as fictitious, that is, as intellectual constructions, which, however, need to be rooted in real entities, such as bodies or substances perceived by the senses, in order to be made intelligible. Bentham is aware of the interrelation between fictitious properties and real objects, from which the former are conceived to derive, and, by virtue of this, he adopts specific expository strategies aimed at disclosing the meaning and truth of fictitious entities. This view of mathematics is later put forward again in an educational context, in Appendix viii of his book Chrestomathia. The high level of abstraction and the unempirical character of mathematical concepts probably attracted Bentham and allowed him to put to the test his insight into the fictitious character of certain entities which are not susceptible to being experienced by perceptive faculties.

The chronological order of Bentham’s writings seems to suggest an important element in understanding the origin and evolution of his theory of real and fictitious entities. At the beginning of his career as a writer, Bentham’s interests were mainly focused on law or, more generally, on ethics. In that time, roughly between 1774 and 1789, he did not produce a separate treatment of the distinction between real and fictitious entities, even though he used to regard the main political and legal notions as fictitious entities.

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The adjective fictitious and the noun fiction occur many times in the works belonging to the first phase of Bentham’s production, such as Preparatory Principles, An Introduction to the Principles of Morals and Legislation, A Comment on the Commentaries, A Fragment on Government, and Of the Limits of the Penal Branch of Jurisprudence. When employing the words fictitious and fiction, Bentham was aware of the particular status characterizing certain entities. As a legal scholar, he was mostly concerned with the examination of central elements of law and also ethics, thereby revealing their fictitious nature, which was usually misconceived.

The paragraphs collected in Preparatory Principles show Bentham’s involvement in ontology, logic, language and grammar. In these texts he sketches out the foundations of his theory of real and fictitious entities, but without giving it a sort of unity. In particular, Bentham sets out his ideas concerning the nature of fictitious entities and their difference from real and fabulous entities, the importance of definition and of the method of exposition, the concept of substance, and the notions of cause, relation, motion and rest.³

The material contained in Preparatory Principles throws light on the metaphysical and epistemological background of Bentham’s conception of ethics and law; it may be regarded as preliminary to his specific treatment of ontological, logical, linguistic and grammatical issues. Bentham’s concern with these issues, thus, is intimately related to his reflections regarding human behaviour and the organization of the State. Indeed, he maintained a lifelong committment to working out the theoretical foundations of the practical domains.

Bentham’s long-standing interests in ontology and metaphysics derived from his belief that the various subsets of ethics have a linguistic structure underpinning them. The linguistic clarification of the ideas, namely of the words, employed in a particular area of knowledge is a crucial task belonging to metaphysics.⁴ Exploring the empirical roots of ideas such as obligation, right, good, virtue and so on enables us to understand the meaning and the truth of these notions along with their distinctive normative claim. In Bentham’s view, metaphysics consists in an analysis of the language we use. This metaphysical analysis illuminates the structure of ethics and, therefore, should precede and underlie any attempt to examine the moral and legal regulation of human behaviour.

Therefore, the distinction between real and fictitious entities, although not yet systematically formulated, was initially adopted by Bentham to account for the ethical and especially the legal field. Bentham aimed at the clarification of the structure of ethics and law, understanding each ethical and legal notion within the larger framework of the interrelations between real and fictitious entities. His doctrine of real and fictitious entities served as a basis for the investigation of the practical branches of knowledge, with particular regard to law.

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Only in a subsequent phase of his production, dating back to the years 1813–15, did Bentham’s theory of real and fictitious entities received an independent theoretical formulation. His manuscripts on ontology, logic, language and grammar testify to a systematic attempt to theorize the status of a fictitious entity, along with its relation to reality, and to explore its usage no longer only in the practical domain, but also in the physical domain. The theory of real and fictitious entities began to provide the general framework to explain the world as a whole.

In this later period Bentham lays the ontological and logical foundations for his treatment of ethics. Bentham’s concern with ontology, namely the study of being or “an account of being in general,”⁵ is chiefly motivated by his interest in the study of well-being. Insofar as well-being is a type of being, eudæmonics, i.e. the science of well-being, may be regarded as depending on ontology. An examination of well-being implies the knowledge of being in general because, from a cognitive point of view, eudemonics is subordinate to ontology: “Eudæmonics is the art of well-being. Necessary for well-being is being. In every part, therefore, of the common field, concomitant and correspondent to Eudæmonics considered as an art, runs Ontology.”⁶

In line with the tradition, Bentham considers ontology as the most basic and general discipline, which investigates being in general. Each discipline focuses on a type of being as its own object of research. For example, eudemonics or ethics investigates well-being, physics material being and, we may suppose, arithmetic numerical entities. All these objects are particular forms of being, which is, in its generality, scrutinized by ontology.

The ethical dimension of life depends on ontology. Insofar as ethical notions such as happiness, goodness and rightness are entities, that is, types of being, they fall within the domain of ontology. Thus, ontology deals with the characterization of an entity in general and eudemonics examines its ethical characterization as well-being, namely happiness. However, the exploration of the practical component of human life seems to have a priority over Bentham’s theoretical interests: the main purpose of his treatment of ontology is the clarification of the concept of well-being or happiness. Indeed, “Directly or indirectly, well-being, in some shape or other, or in several shapes, or all shapes taken together, is the subject of every thought, and object of every action, on the part of every known Being, who is, at the same time a sensitive and thinking Being.”⁷

Similarly, Bentham’s practical interests influence his conception of logic, “the art of thinking.”⁸ This discipline is not merely a working instrument to offer to the various branches of knowledge in order to help them to carry out their particular investigations. Logic contributes to the accomplishment of the end at which each discipline aims. Bentham defines logic as “the art, which has for its object or end in view, the giving to the best advantage, direction to the human mind and thence to the whole human frame, in its pursuit of any object or purpose, to the attainment of which it is capable of being applied.”⁹

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Logic reveals a practical finality: it directs the human mind to the achievement of the main and general end of human life, namely well-being or happiness, in any fields of knowledge. Well-being is not simply “the end in view, the ultimate as well as direct and immediate object” of ethics, but also and especially the “ultimate object” of any action, the “common result” pursued by any action.¹⁰

By being aimed at the pursuit of well-being, ethics is not, or at least not only, a descriptive but most of all a prescriptive discipline, which claims to direct human conduct. In this task ethics is guided by logic. The relation between logic and ethics is co...

Table of contents

• Cover Page
• Praise
• Philosophy, Obligation and the Law
• Routledge Research in Constitutional Law
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Acknowledgements
• List of abbreviations
• From the normative question to Bentham
• The ontology of fiction: The theory of real and fictitious entities and its relation with the normative question
• The normativity of fiction: The evolution of the theory of real and fictitious entities
• From Bentham to the normative question
• Bibliography
• Index