ABSTRACT
The appearance of The Limits of the Penal Branch of Jurisprudence is an occasion for revisiting our understanding of Jeremy Bentham’s jurisprudence. The re-absorption of what we had come to know as Of Laws in General into An Introduction to the Principles of Morals and Legislation and Bentham’s broader pannomial project reorients our thinking about Limits and its contents. 1 Granted, these contents remain extensively and intensively preoccupied with what H.L.A. Hart rightly identified as a fundamentally legal-philosophical project: a project on the foundations of jurisprudence rebuilt through a close analysis of the logic of the will. 2 But the contents of Limits no longer seem so fundamentally foundational, with a legal theory as their ultimate focus. Instead, they are made explicitly subservient to the art and science of government that Bentham discusses in the first pages of the new text. It is my contention that Hart’s editorial decision to separate Of Laws in General from Chapter XVII of Introduction has contributed to a limited reading of the project of Limits that aligns it with the protocols of a subsequent tradition of analytic jurisprudence: a tradition interested in law for its own sake. We are now instead able to see how inseparable Bentham’s analysis is from the project of utilitarian government that informs all his work. Clues to appreciating the approach and extent of this art and science of government can be gleaned by the important references to ‘indirect legislation’ – the subject of the missing Chapter XVIII of Introduction – that bookend Limits . Indirect legislation defines the outer boundary of the penal branch of jurisprudence, which by no means prescribes limits for government as a whole. 3 This confirms an only apparently paradoxical reading of Bentham’s government that should be increasingly familiar to us in our neoliberal era: government is at once liberal (various topics are to be removed from the penal code and even insulated from the political sanction altogether) and decidedly not limited (everything is open to scrutiny and regulation by a governmental rationality mobilising alternate sanctions). 4
How can I say that indirect legislation bookends, or frames, Limits ? Ever since the publication of Of Laws in General we have been aware of how Limits ends: it describes legislation as ‘a state of warfare: political mischief is the enemy: the legislator is the commander.’ Whereas direct legislation is ‘a formal attack made
with the main body of his forces in the open field: indirect legislation [is] a secret plan of connected and long-concerted operations, to be executed in the way of stratagem or petite guerre .’ 5 We might be less aware, however, of the role of indirect legislation in the beginning. Now that the text is reunited with Chapter XVII of Introduction , we can see that indirect legislation informs both the opening to Limits and its conclusion. After introducing the ‘art of government’ (legislation, administration, education) and the ‘art of self-government’ (private ethics, i.e., prudence, probity, and beneficence), and pointing to happiness as their common end, 6 Bentham repeatedly alludes to indirect legislation when distinguishing between them.
