ABSTRACT
In the last three chapters it has been seen how Bentham’s thought is based on the presupposition of an is-ought distinction. In Chapter V his general project was described as an attempt to solve the problem bequeathed to him by his predecessors of how a legislator, given certain assumptions about the way in which people actually do behave, can so construct the laws and institutions of society that, while still continuing to follow their natural tendencies of action, the people in that society will in fact do just those things which they ought to do, as prescribed by a quite separate evaluative assumption, the principle of utility. In the two chapters which followed the descriptive and evaluative assumptions which together form this general project were separately examined and, to some extent, defended. It might now seem, therefore, that there were not any further problems about the overall project and that the legislator should just get on with solving the more specific problems about the ways in which the two sets of assumptions could be combined. However, this would be to ignore the problem of the legislator himself, the problem of who he is, of what he is doing, and why. So far he has remained an unquestioned, but wholly mysterious and shadowy, figure. As soon as the question is raised of who he is and why he does what he does, then it seems that it can no longer be presupposed that the legislator occupies a unique position in which the only relevant considerations are what he ought to be doing. If for no one else is consideration of what they ought to do supposed to be directly relevant, and if for no one else is direct appeal to their recognition of moral duty thought to be appropriate, then it is anomalous that both of these are supposed to have a proper place just when dealing with the legislator. Who, it can be asked, is the legislator supposed to be? If it is supposed that he is mortal, a human being or a collection of human beings, then he is also a subject for natural psychology and is subject to the laws of natural psychology. However, in that case, just like anyone else, given the facts are as they are, the legislator will be naturally inclined to do certain things. There would then seem to be no more point in making moral recommendarions to the legislator than there is to anyone else. If, on the other hand, it is supposed that the legislator does not correspond with any real person or set of people but is just regarded as a merely fictional device designed to give expression of what ought to be done, then this obviously, automatically, solves the problem of why moral recommendation to the legislator is appropriate, but leaves it completely problematic both how and why any of the particular proposals for reform which Bentham worked out should be adopted. To ensure adoption the legislator would need to be a real, flesh and blood, sovereign.
