A BRIEF CHRONOLOGY OF COLLECTIVISM
Attorney At Law
This is now an age of revocable rights and privileges. There once was an awareness of and belief in natural law and individual liberties. In fact, natural law was the basis by which the American Revolution was fought. Similar beliefs later motivated a revolution in Texas. Once the fighting stopped, the founders of each wrote written constitutions. The general idea was that each generation should not have to fight their own revolution to obtain freedom. Birthrights were provided in writing and were intended to be the paramount law known to each citizen.
Over the past century and a half these written inalienable individual rights, guaranteed most forcefully at the state level, were entrusted to the guardianship of the judiciary and lawyers. If you review various judicial opinions, over the years, it becomes apparent that there has been a gradual change of attitude disfavoring the individual and favoring the government. The people were sovereign when the government was established and have yielded their rights to elected representatives. Representative government is now the watchword of "democracy." If you can obtain a statute, you have rights. The necessity of forming groups to "lobby" comes from the stress on some sort of parliamentary system. America has become ever more English in its political nature. Unlike here, there is no written paramount law in England. Parliament reigns supreme and has no obligation to "follow" higher law.
In judicial opinions laws are now "presumed" to be constitutional. Inalienable rights are not taught in school and are looked upon from the bench primarily with scorn. If an individual is aware of rights and asserts them in opposition to a statutory scheme, judges now most often say that there is no such thing as an absolute right. All rights are relative. A "balancing" approach now weighs the government's interests against inalienable inviolate rights. The consequence is that judges most often rule in favor of "law-makers" and against citizens. The limiting purpose of Bills of Right have now been completely overthrown.
The assault on our individual rights has been philosophical. The origin of the contempt for mere individuals has come from both education and a varied assortment of elite societies and clubs. The particular individuals involved in what is here termed "collectivism" are among the most adored and respected in conventional history. They have preached collectivism in a most eloquent and convincing verbage. The purpose of this chronology is to set forth the particulars of what is most often called the "pragmatic" philosophical view. After reading through this short synopsis, you should experience a form of "comprehension" and begin to hear the empty drumbeat of "pragmatism" being expressed in the world around you.
The earliest written laws were attributed "to a divine source." Benjamin Fletcher Wright, Jr., AMERICAN INTERPRETATIONS OF NATURAL LAW 4 (Harv. Univ. Press 1931). The Stoics first produced an interpretation of natural law. The Stoic conception of natural law had a place of great importance in the writings of Cicero and in the works of Roman jurists. Wright, pp. 4-5. Marcus Tullius Cicero put forward the first full-blown theory of natural law, in his Commonwealth (51 BC): "True law is right reason in accord with nature; it is of universal application, unchanging and everlasting. . ."
Middle Ages, together with the medieval principle of property rights with which the king could not interfere, expressed the idea of limitations on the power of rulers. Wright, p. 6.
While Blackstone upheld the absolute power of Parliament, he also said: "This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe; in all countries and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive their force and all their authority, mediately or immediately, from this original." Wright, p. 11. Blackstone wrote that "natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endured him with the faculty of free will . . . Politicial . . . or civil liberty, so far restrained by human laws (and no further) as is necessary and expedient for the general advantage of the public." Wright, p. 11.
In 1772 Samuel Adams ("the Father of the American Revolution") wrote a report drafted for the Boston Committee of Correspondence which relied very heavily upon natural rights. It was adopted by the Town Meeting of November 20, 1772. Wright, p. 73. In the twenty five years following the passage of the Stamp Act, "the essays, pamplets, state papers, and constitutions of the Americans were among the most significant political documents of the Western world. Wright, pp. 62-63. After 1773 there were few writings in America in which the natural law was not of real importance. Wright, p. 63.
After the passage of the Coercive Acts in 1774, the New England doctrine of natural law was whole-heartedly accepted in all the colonies. Wright, p. 75. In September of 1774, the First Continental Congress made the first official statement of the principle of total exemption of the colonies from the regulatory power of Parliament. Wright, p. 83. Between November 1774 and April 1775, a series of letters by John Adams were published in the Boston Gazette (Novanglus). Wright, pp. 87-88. He denied the supreme authority of Parliament on religious, moral and political matters. Wright, p. 88.
In the May 1776 publication of Virginia's Declaration of Rights, Mason noted among the inherent natural rights "among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and preserving and obtaining happiness and safety." Ferdinand Lundberg, CRACKS IN THE CONSTITUTION 162 (1980).
Natural rights "are those rights which are necessarily inherent, rights which are innate, and which come from the very elementary laws of nature, such as life, liberty, and the pursuit of happiness, and self-preservation." Byers v. Sun Sav. Bank, 41 Okl. 728, 730, 139 P. 948. James Wilson, Chase, Marshall, Story, Kent, Cooley and Miller "were all of the opinion that courts have the right to set aside legislative enactments as against natural law even when there is no violation of any specific provision of the Constitution." Morris Raphael Cohen, REASON AND LAW (Collier Books 1961); 41 Yale L.J. 1102 (1932). By 1931 Morris R. Cohen described the status of natural law: "To defend a doctrine of natural rights today, requires either insensibility to the world's progress or else considerable courage in the face of it. Whether all doctrines of natural rights of man died with the French Revolution or were killed by the historical learning of the nineteenth century, every one who enjoys the consciousness of being enlightened knows that they are, and by right ought to be, dead. The attempt to defend a doctrine of natural rights before historians and political scientists would be treated very much like an attempt to defend the belief in witchcraft. It would be regarded as emanating only from the intellectual underworld." Morris R. Cohen, REASON AND NATURE 401 (1931).
While many causes have been assigned to the American Revolution, one relatively unknown issue was the lack of accountability of the Parliament to higher law. When England pushed and pursued the principle of "parliamentary absolutism" and insisted that the rights of English subjects were exclusively and precisely what the Parliament declared them to be, this was at variance with all the great traditions of the natural and common law. Manion, p. 16.
American colonists determined the need for written constitutions that protected rights grounded in "the immutable laws of nature". They had a novel concept of "constitution" which signified a supreme law creating government, limiting it, unalterable by it and paramount to it. Leonard W. Levy, ORIGINAL INTENT AND THE FRAMER'S CONSTITUTION 143 (1988).
The American Revolution invented written constitutions: "The idea of a written constitution as the means of giving supremacy and permanence to the fundamental law was an American invention of the Revolutionary era. Apart from the Cromwellian aberration, there was no precedent for it in English experience, and, of course, the glory of the English constitution was coming to be associated with a degree of parliamentary freedom and flexibiity that was incompatible with a written frame of government." Merrill D. Peterson, The Idea of A Written Constitution in the Thought of the Founders, THE UNITED STATES CONSTITUTION (Ed. by A.E. Dick Howard 1992).
The most fundamental difference between the early American and the British view was that not even a Parliament possessed all political powers. Natural rights became the rallying cry for the revolution. As we will see, over the past century or so, the original view of Americans has been subtly and gradually replaced with a re-established British parliamentary view. This was crucial to installing socialism and Big Government to the American New World.
Henry Campbell Black said the right of revolution "is a fundamental, natural right of the whole people, not existing by virtue of the constitution, but in spite of it. It belongs to the people as a necessary inference from the freedom and independence of the nation." HANDBOOK OF AMERICAN CONSTITUTIONAL LAW 10 (1895). It is not a right recognized by the law: "But revolution is entirely outside the pale of law. 'Inter armes silent leges.'" Id. A revolution is "either a forcible breach of the established constitution or a violation of its principles. Thus, as a rule, revolutions are not matters of right, although they are mighty natural phenomena, which alter public law." Id. at 11.
In 1835 the informal Texas Declaration of Independence stated: "Now, the good People of Texas, availing themselves of their natural rights . . . " 20 ST. MARY'S L.J. 95. The League of Women Voters noticed the purpose of the 1876 Constitution's Bill of Rights: "(T)he Texas Bill of Rights . . . reflects the very special determination of the constitutional convention of 1875 that the natural rights of Texas would never be violated." TEXAS CONSTITUTIONAL REVIEW 6 (1966).
Thomas Jefferson left us this very solemn warning:
The spirit of the times may alter, will alter. Our rulers will become corrupt, our people careless . . . From the conclusion of this (Revolutionary) war we shall be going down hill. It will not be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will be heavier and heavier, till our rights shall revive or expire in a convulsion.
Quoted In THE HERETIC'S HANDBOOK OF QUOTATIONS 100 (Charles Bufe Ed. 1988).
It was once stated "that 'laws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits.'" Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630 (Tex. 1948); Wooley v. Sterrett, 387 S.W.2d 734, 738 (Tex. Civ. App. -- Dallas 1965, no writ).
Today the principle of inalienable rights has been replaced by relative rights that are merely notions: "The notion of 'natural' rights is the notion that rights have independent authority in absolute right, so that they are not relative or contingent, but absolute." I ESSAYS OF WILLIAM GRAHAM SUMNER 358 (Yale U. Press Dec. 1934). Collectivists, both ancient and modern, believe that human society should be "set up like the beehive." Henry Grady Weaver, THE MAINSPRINGS OF HUMAN PROGRESS 38 (1953). Collectivism brings control: "The more complete the collectivization, the greater the degree of control that can be exercised." Rev. Clarence Kelly, CONSPIRACY AGAINST MAN AND GOD 15 (1974). Where rights are collective and relative, there are no boundaries to prevent even further government intrusions on individual liberty.
Plato's Republic was "one of the world's most brilliant expositions of the theory that the community should completely dominate the private citizen, coupled with the doctrine that control over the community should rest, not with the vulgar mob, but with a small specially gifted minority." William Montgomery McGovern, FROM LUTHER TO HITLER 21 (1941). Plato believed that the "community as a whole" was the standard of value. He advocated a life of self-sacrificing service. Peikoff, p. 27. Men were to wipe out their individuality, become a cell and merge into the living organism of the state or community. Id. Plato advocated a state with unlimited authority that indoctrinated citizens with government-approved ideas in government-run schools, censorship of all art, literature and philosophy, assigned vocations, and the regulation of economic and even sexual activities. In his Republic and Laws Plato wrote "the first blueprint of the totalitarian ideal." Id. at 28. Peikoff, p. 27. He believed that the mass of men were entangled in personal concerns, enslaved to the lower world revealed to them by their senses and incapable of acheiving mystic contact with a super-natural principle. They were fit only to obey orders. Id. at 28-29. Rule was to be by "philosopher kings."
Plato held that individuals could have arms only with the permission of the state although he did support mandatory military training for all citizens. 9 HAMLINE L. REV. 69, 79 (1986). Plato "believed not in political liberty, but in order." C.M. Bowra, CLASSICAL GREECE 140 (1965). While the idea that private citizens should have certain inate or "natural" rights with which the polis should not interfere was more ignored than attacked by early Greeks, Plato theorized "that the state, through its rulers or guardians, should regulate in minute detail the moral and economic actions, the literature, the music, and even the thoughts of its citizens." William M. McGovern, "Collectivism and Individualism," ESSAYS ON INDIVIDUALITY 237 (Felix Morley Ed. 1958). The outline for Plato's utopia was Sparta although it was "a little blurred by a strange indifference to Ideas. Weary and fearful of the vulgarity and chaos of democracy, many Greek thinkers took refuge in an idolatry of Spartan order and law." Will Durant, THE LIFE OF GREECE 87 (1939).
Under collectivism, the individual is viewed merely as a means to satisfy the needs of "society." The state is the instrument for organizing people to meet those needs. So it is the state, not the individual, that is sovereign. Under individualism, the individual is sovereign. The individual is an end in himself, whose cooperation is to be obtain only through voluntary agreement. All people are expected to act as traders, either voluntarily agreeing to interact or going separate ways; it's either "win-win, or no deal." The government is limited strictly to ensuring that coercion is banished from human relations, that "voluntary'' is really voluntary, that both sides choose freely to deal and both sides live up to their agreements.
Individualism and collectivism represent opposite views of the nature of humans, society and the relationship between them. Under Individualism, it is the individual who is the primary unit of reality and the ultimate standard of value. This view does not deny that societies exist or that people benefit from living in them, but it sees society as a collection of individuals, not something over and above them. Collectivism holds that the group, the nation and the community is the primary unit of reality and the ultimate standard of value. This view does not deny the reality of the individual. But ultimately, collectivism holds that one's identity is determined by the groups one interacts with, that one's identity is constituted essentially of relationships with others. Individualists see people dealing primarily with reality; other people are just one aspect of reality. Collectivists see people dealing primarily with other people; reality is dealt with through the mediator of the group; the group, not the individual, is what directly confronts reality. Individualism holds that every person is an end in himself and that no person should be sacrificed for the sake of another. Collectivism holds that the needs and goals of the individual are subordinate to those of the larger group and should be sacrificed when the collective good so requires. Individualism holds that the individual is the unit of achievement. While not denying that one person can build on the achievements of others, individualism points out that achievement goes beyond what has already been done; it is something new that is created by the individual. Collectivism, on the other hand, holds that achievement is a product of society. In this view, an individual is a temporary spokesman for the underlying, collective process of progress.
Collectivism may describe a political or economic system in which the means of production and the distribution of goods and services are controlled by the people as a group. Generally this refers to the state. Collectivism is the opposite of capitalism or free enterprise, in which the means of production are owned by private individuals and distribution is determined by free trade and considerations of personal profit. The concept of collectivism is derived from the social theory holding that the interests and welfare of the collective group are of greater importance than the interests and welfare of any individual. As a political-economic theory, collectivism differs little from theoretical socialism. Modern revolutionary communism is a more extreme type of collectivism in which not only capitalistic enterprise but also most private property is abolished, by violent means if necessary. Communalism is a form of collectivism in which ownership of the means of production is vested in a smaller unit, the commune, with a corresponding reduction in the authority of the state. Variations on collectivism include: Communism, Eurocommunism, Fascism, Government ownership, Socialism, Dialectical materialism. In each system the rights of the group take precedence over the rights of the individual.
Those who seek to get in position to tell others what to do oppose individualism. Those who have higher degrees and positions, often bought with much sweat and debt, feel they have the right to make their living correcting individuals in the name of the state. However, they too find that the destruction of individualism makes them also subject to some higher person in the chain of compulsory command.
At its root, collectivism is the submergence of the individual to an elite group -- no matter whether it is called socialism, communism or fascism. responsibility and cause. Vladimir I. Lenin said in STATE AND REVOLUTION (1916): "From each according to his ability; to each according to his needs." He also said: "It is true that liberty is precious -- so precious that it must be rationed." Vladimir I. Lenin, SOVIET COMMUNISM: A NEW CIVILIZATION? (1916). Mao later said: "Communism is not love. Communism is a hammer which we use to crush the enemy."
Today it is largely the group, not the individual, that matters. Individuals are identified as members of a group. Their identity is not in their individuality but in their membership of some group. Their identity is defined in terms of how they fit in with others. They are blacks, whites, men, women, gays, straights, etc. first, and individuals second. Not only is the individual identified by his group, but so is his behavior. We can no longer tell if one's behavior is good or bad, right or wrong, until we find out his group identity. And individuals are taught to test their behavior, not against any individual standard, but against how it compares with what is socially -- collectively -- acceptable. Ours is the collectivist age of style and image, groups and groupies, and the fruitless search for inner-identity and self-esteem in others. Few want to be seen as out-of-step. We are mere spectators in the stadium with no chance of getting on the playing field. Belonging is more important than what one belongs to. Being in step is more important than the tune of the drummer. Singers put words in our mouths. When something is "in" and "trendy", no one is allowed to dissent. Most people have become comformist "otherists" and function only within the premises of collectivism. They struggle to understand its nuances and principles, thinking, like Machiavelli that there is only one way to deal with man, believing that group thinking is the last word, unaware that there is any alternative.
A Frenchmen, Claude Adrien Helvetius (1715-1771) contributed the most to our (Benthamite) vein of thought. Helvetius was the product of the social and moral decline of 18th century France. At the college of Louis le Grand, young Helvetius made friends with Voltaire and the Encyclopedists. In Paris he frequented salons where radicals discussed social issues that would soon throw France into bloody revolution. The illustrious Freemasons d'Alembert, Diderot, Helvetius, d'Hollback, Voltaire, Condorect "completed the evolution of minds and prepared the new era." Nesta H. Webster, SECRET SOCIETIES AND SUBVERSIVE MOVEMENTS 162 (1924). In 1758 Helvetius's De l'Esprit appeared. Mordecai Grossman, THE PHILOSOPHY OF HELVETICUS 16 (1926). [This book was No. 210 in a series for Teacher's College at Columbia University. Grossman's dissertation committee, according to the July 1925 Foreward, consisted of Professors W.H. Kilpatrick, John Dewey, E.H. Reisner and J.R. Randall. Grossman was most in debted to Kilpatrick and Dewey. He was also stimulated by W.F. Ogburn of Columbia, J.H. Tufts of the University of Chicago and Francis Tyson of the University of Pittsburg.]
Both civil and religious authorities were angered when the book appeared. They pronounced it "atheistic, sacrilegious, immoral and subversive!" D.W. Smith, A STUDY IN PERSECUTION 25 (1965). It was forbidden by order of Council and burned, together with the Encyclopedia. Grossman, p. 17.
The philosophy of Helvetius contained the essence of humanism. He defined the object of life as earthly happiness, rather than salvation, and advocated legislation, certainly not preaching, as the means by which happiness for the greatest number would be achieved. He said that great virtues were made possible by great passions. Grossman, p. 107.
Christianity was in this way construed to be a deterrent to virtue. Helvetius believed man to be entirely a product of his environment. D.W. Smith, A STUDY IN PERSECUTION 14 (1965). Men develop according to the cultural pressures to which he is subject. Education accounts for all differences between individuals and must be utilized to realize "the ideal of general intelligence, virtue, and happiness." Even though he admitted there was no way to prove this, he said society must act as though it were true. Grossman, p. 122. Denying all absolutes of justice, good and evil, Helvetius held that self-love is the mainspring of human action. In his system, the only pleasure that is immoral is one that conflicts with the pleasure of the greatest number. Grossman, p. 100. The final test of any action, then, is its utilitarian value -- its use to the public. The ideal government, he believed, would bring the greatest happiness to the greatest number, and universal education would make children useful to such a society. He advocated legislation of punishments and rewards to force men to contribute to public welfare. Under such a system, he felt only madmen could prevent themselves from being good citizens. Individual preferences and rights are lost to Helvetius in the all-consuming importance of public interest. He believed "only the union, the identification, of private and public interests," and suggested that "fine women" be offered as prizes for publicly beneficial acts. He found Christianity to be at cross-purposes with his entire scheme. Id.
The effort to find a moral code more palatable to the Church became futile when De l'esprit brought the entire movement into conflict with authorities. Helvetius, who held that sexual enjoyment was the greatest of all human pleasures, made self-love the basis of ethics. After his book was published, he was seen as principle spokesman for an "organized philosophic movement that proposed to supplant the Church."D.W. Smith, A STUDY IN PERSECUTION 48 (1965).
Helvetius had a powerful impact upon on Jeremey Bentham. Mill wrote about Bentham: "The generalities of his philosophy itself have little or no novelty: to ascribe any to the doctrine that general utility is the foundation of morality, would imply great ignorance of the history of philosophy, of general literature, and of Bentham's own writings. He derived the idea, as he says himself, from Helvetius; and it was the doctrine no less, of the religious philosophers of that age, prior to Reid and Beattie." John Stuart Mill, Bentham, London and Westminster Review, (Aug. 1838), revised in 1859 in Dissertations and Discussion, vol. 1. Mills continued: "But it is selfish interest in the form of class-interest, and the class morality founded thereon, which Bentham has illustrated: the manner in which any set of persons who mix much together, and have a common interest, are apt to make that common interest their standard of virtue, and the social feelings of the members of the class are made to play into the hands of their selfish ones; whence the union so often exemplified in history, between the most heroic personal disinterestedness and the most odious class-selfishness. This was one of Bentham's leading ideas, and almost the only one by which he contributed to the elucidation of history: much of which, except so far as this explained it, must have been entirely inexplicable to him. The idea was given him by Helvetius, whose book, 'De l'Esprit', is one continued and most acute commentary on it; and, together with the other great idea of Helvetius, the influence of circumstances on character, it will make his name live by the side of Rousseau, when most of the other French metaphysicians of the eighteenth century will be extant as such only in literary history." John Stuart Mill, Bentham, London and Westminster Review, (Aug. 1838), revised in 1859 in Dissertations and Discussion, vol. 1.
Thomas Hobbes represented "the high-water mark in seventeenth century absolutism. By absolutism is meant the belief in the absolute right of the state to control the individual, and also the belief that the state itself should be controlled by a single person. On both points Hobbes must be regarded as an early but important precursor of Fascism." William Montgomery McGovern, From Luther To Hitler 80 (1941). Hobbes, in his Leviathan, stated: "The name of tyranny signifieth nothing more or less than the name of sovereignty." John Neville Figgis, THE DIVINE RIGHT OF KINGS 241 (1922). After Hobbes: "The idea of an entity completely empowered to regulate all behaviours made a resounding entry into political science. It was the hour of sovereignty in itself, whose existence hardly anyone would thenceforth have the hardihood to deny; the efforts of all would be directed merely to its division, and to such attribution of it was seemed to promise its least dangerous use. But it is the idea itself which is dangerous." Bertrand De Jouvenel, SOVEREIGNTY 198 (1957). As Hobbes was writing, however, a new movement was taking form that would put a renewed interest in individualism. The early Jesuits and Calvinists laid the foundations for the new individualism. Both agreed that the state was a purely human organization that should be subordinated to the divine church. William M. McGovern, "Collectivism and Individualism," ESSAYS ON INDIVIDUALITY 244 (Felix Morley Ed. 1958).
Calvinists took the lead in developing the right of subjects to rebel against secular authority. While Calvin was supreme in Geneva, his followers were forced to rebel in France, the Netherland and Scotland. William M. McGovern, "Collectivism and Individualism," ESSAYS ON INDIVIDUALITY 245 (Felix Morley Ed. 1958). In England the Calvinists strongly influenced the Puritans who rebelled against Charles I. Initially the orthodox Puritans wanted to get rid of the bishops, curb the king and Calvinize the national church: "But Cromwell and many of his fellow soldiers went beyond orthodox Calvinism in their views regarding the church. Instead of a national church, they wanted a free association of local churches and claimed that within limits each church should be allowed to formulate its own doctrines. This helped to popularize the belief that it was a duty to rebel against any government which attempted to interfere with ideas, or with actions based upon the individual's conscientious sense of what was right or wrong. This doctrine received its most eloquent expression in the Areopagitica of John Milton, at one time Cromwell's Latin Secretary. In this essay Milton argued convincingly not only for freedom of thought and expression, but also for freedom of moral action -- the right of each man to do as he pleases so long as he does not injure his neighbors." Id. at 245-246. In a sense the separation of church and state also represents competition between church and state. So long as religion and state advocates competed, the concept of individual survived.
After the death of Cromwell, the Stuarts were brought back to the English throne: "The works of Milton were burned by the public hangman." William M. McGovern, "Collectivism and Individualism," ESSAYS ON INDIVIDUALITY 246 (Felix Morley Ed. 1958). Individualism was not revived until a new revolution against James II thirty years later in 1688. Id. It was in John Locke's Civil Government that a well-reasoned and stirring plea for individualism was made. Id.
Later, through John Austin (Bentham's disciple), Hobbe's views served the ends of middle-class liberalism. George H. Sabine, A HISTORY OF POLITICAL THEORY 388 (3rd Ed. 1951). The theory of parliamentary absolutism was derived from Blackstone, Bentham and Austin. Kenneth Pennington, THE PRINCE AND THE LAW, 1200-1600 285 (1993). Austin and Bentham wrote in response to the dominant theory of English law before the 19th century -- Blackstone's theory of common law. Anthony J. Sebok, Misunderstanding Positivism, 93 MICH. L. REV. 2054, 2062 (1995).
Gradually restraints on the government, contained in written constitutions, have been softened as the "representative" legislature has become much more prominent and deferred to. Philip Dormer Stanhope, 4th Earl of Chesterfield (1694-1773) said in a speech written for the House of Lords in 1737: "(A)rbitrary Power has seldome or never been introduced into any Country at once. It must be introduced by slow degrees, and as it were step by step, lest the people should perceive its approach." George Seldes, THE GREAT THOUGHTS 77 (1985).
In 1763 at the age of 16, Jeremy Bentham (1748-1832) began to eat dinners at Lincoln's Inn and to attend the Court of King's Bench "where his father had secured for him a student's seat." In December he returned to Oxford to hear Blackstone's lectures. Later he wrote: "I attended with two collegiates of my acquaintance. They both took notes; which I attempted to do, but could not continue it, as my thoughts were occupied in reflecting on what I heard. I immediately detected his fallacy respecting natural rights; I thought his notions very frivolous and illogical about the gravitating downwards of hereditas; and his reasons altogether futile, why it must descend and could not ascend -- an idea, indeed, borrowed from Lord Coke. Blackstone was a formal, precise and affected lecturer -- just what you would expect from the character of his writings: cold, reserved, and wary -- exhibiting a frigid pride. But his lectures were popular, though the subject did not then excite a wide-spread interest, and his attendants were not more than thirty to fifty." Charles Warren Evertett, THE EDUCATION OF JEREMEY BENTHAM 37 (Columbia U. Press 1931).
Along with David Hume and other utilitarians, Bentham in his early writings did not show any faith in the commmon man. He believed in a benevolent tutelage furnished by the better class: "This English version of the continental doctrine of benevolent despotism Bentham grounded in the belief that ordinary men were unlikely to take a rational view of their self-interest, or to follow it if they saw it." Carl J. Friderich, THE NEW IMAGE OF THE COMMON MAN 8 (1950). At the time of the French Revolution Bentham was a Tory rather than a democrat -- he believed in the aristocracy. Id. Austin wrote that "(L)aw, simply and strictly so called [is] law set by political superiors to political inferiors." Sebok, p. 2063; AUSTIN, PROVINCE at 1.
Classical legal positivism was developed in England by Jeremy Bentham and John Austin. Sebok, p. 2054. In classicial positivism, law consists of a series of general propositions which Bentham insisted must be reducible to a command that one person might give to another. Sebok, p. 2064. Under the third principle, every valid legal norm can be traced to a sovereign. Sebok, pp. 2064-2065. A sovereign, according to Austin, has two attributes: 1) habitual obedience from the population and 2) habitual noncompliance with the commands of any other human superior. Sebok, p. 2065. Austin wrote: "The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals . . . The existence of laws is one thing; its merit or demerit another." John Austin, LECTURES ON JURISPRUDENCE 114-115 (5th Ed. 1885).
According to Jonathan Clark, Bentham and Austin stripped Blackstone's "unreformed common-law sovereign of its Anglican and natural law limitations. That done . . . law was merely whatever the sovereign commanded." Kenneth Pennington, THE PRINCE AND THE LAW, 1200-1600 287 (1993).
In 1780 Bentham stated: "I dreamt the other night that I was founder of a sect; of course, a personage of great sanctity and importance. It was the sect of the utilitarians." This was, historically speaking, a prophetic dream. BENTHAM'S POLITICAL THOUGHT 13 (Edited by Bhikhu Darekhl 1973). In the 19th century Bentham and Austin proclaimed the sovereignty of Parliament. Austin did so largely under the influence of German jurisprudence. Carl J. Friderich, THE NEW IMAGE OF THE COMMON MAN 45-46 (1950). For a long time the great bulk of Englishmen had accepted as an axiom that certain rights came from a higher source than the civil government and that legislation could not abridge or destroy such rights. It was due to the influence of John Austin, more than anyone else, with the possible exception of Bentham, that the tenet of natural rights was discredited and abandoned "by almost every scholar in England and America. Austin's teachings on this subject were not, however, altogether original with him, but were derived from Hobbes, whose writings, except when occasionally mentioned with a shudder, slept unnoticed for two hundred years until brought into prominence again by his great disciple." A. Lawrence Lowell, The Limits of Sovereignty, 2 HARV. L. REV. 70, 72 (1889). In 1895 it could be said: "To the influence of Bentham and his followers is chiefly due the almost complete discredit into which in England the doctrine of natural law has fallen. Till the days of Kant on the Continent and of Bentham in England, there was no striking discordance between English and Continental jurisprudence. It is not possible to draw a sharp line of distinction between the teaching of Hobbes, Locke, Cumberland and Blackstone on one side of the Channel, and that of Grotius, Puffendorf, Spinoza, Thomasius and Wolff on the other. All were the inheritors of the same traditions. The acceptance, however, of Kant's metaphysical theory on the one hand, and of Bentham's sceptical theory on the other, established between English and Continental juridical and ethical thought a wall of separation that has not yet been broken down." John W. Salmond, "The Law of Nature," XLII LAW Q. REV. 121, 137 (1895). By 1920 it was stated: "Oblivion went so far that it was possible for Bentham and his followers to suppose quite honestly that the Law of Nature meant nothing but individual fancy." Sir Frederick Pollock, ESSAYS IN THE LAW 62 (1922).
While Blackstone had a tremendous influence on the early American colonists at the time just prior to the American Revolution, Bentham's significant impact came much later. It was stated in 1991: "But Bentham had a terrific impact on thoughtful minds and has had widespread influence among legal scholars and reformers. Many philosophers and professors of law of this country and in England avow themselves to be Benthamites. It was through his colleague, John Austin, that his legal theory was cogently elaborated. Its influence in America increased incalculably through the prestige and eloquent exposition of Justice Oliver Wendell Holmes, Jr., who gave it a pragmatic twist." Beryl Harold Levy, Anglo-American Philosophy of Law 22 (1991). A threesome predominates: "From Bentham to Austin to Holmes is the triple play of Anglo-American jurisprudence." Bentham's revolt led to "sociological jurisprudence" in America. Id. at 27. While Blackstone has been called "an unsuccessful practitioner" Bentham never practiced law. Id. at 21-22. Bentham, consistent with Kant and Fichte, attacked Blackstone's reliance on both the doctrine of natural law and the doctrine of the social contract--both concepts that were firmly and even derisively rejected by Bentham. Id. at 23.
Natural law was "nonsense on stilts." Levy, p. 23. A legislator who claims to know absolute principles is guilty of a conviction syndrome Bentham labeled as "ipsedixitism." Id. at 24. He disdained the Declaration of Independence and said that if the doctrine that men's liberties and properties are beyond government tampering, then it would be impossible to imprison anyone for crimes or to tax property to support government activities. Id. at 25. In 1839 J.S. Mill wrote: "The father of English innovation, both in doctrine and in institutions, is Bentham: he is the great subversive, or, in the language of Continental philosophers, the great critical thinker of his age and country . . . He introduced into morals and politics, those habits of thought and modes of investigation, which are essential to the idea of science . . . It was not his opinions, in short, but his method, that constituted the novelty and value of what he did . . . He found the practice of law an Augean stable: he turned the river into it which is mining and sweeping away mound after mound of its rubbish." Charles Warren Evertett, THE EDUCATION OF JEREMEY BENTHAM xviii (Columbia U. Press 1931).
Bentham, using flattery, said in 1789 that America was "one of the most enlightened, if not the most enlightened, at this day on the globe." Joseph Hamburger, "Utilitarianism and the Constitution," CONFRONTING THE CONSTITUTION 235 (1990). He described himself as "at heart more of a United-States-man than an Englishman." Id. However, utilitiarians opposed the very idea of constitutional limitations. Austin taught that a sovereign body (parliament) was "incapable of legal limitation." Id. at 236. Austin also wanted to emanicipte sovereign power to maximize opportunities to confer benefits by legislative means. Id. at 238. Bentham said it was "an abuse of language" to speak of them exceeding their unlimited authority. Id. at 236. Bentham sought to play Newton's role for a science of law which would discover how to maximize the general happiness; sovereign authority guided by the science of law ought not to be limited by constitutional checks. Id. at 237. He rejected all rights that were not created by sovereign power and were not legally established. Hamburger, p. 238. Natural rights diminished the authority of government and encouraged insurrection. Id. He said the drafters of the Declaration of Independence had "outdone the utmost extravagance of all former fanatics" and compared them to the German Annabaptists. All declarations of rights, said Bentham, were "rights asserted as against government in general, [and they] must be . . . the rights of anarchy -- the order of chaos." Id. His views were shared by Austin and Mill. In ON LIBERTY Mill made it plain that he did not ground his argument on an assertion of individual right. Id. at 239.
Both Austin and Bentham enthusiastically advocated centralization or a "common centre." Hamburger, p. 239. In 1846 Austin wrote a long article to set forth the advantages of centralization. Id. at 254. While giving lip service to local self-government, Mill said the centralized administration of the New Poor Law was "in its general conception almost theoretically perfect." Id. at 239. Bentham trounced the idea of a separation of powers as "a confused idea" and countered that "a house divided against itself cannot stand. Id. at 240. He was opposed to judicial interference with legislation: "Give to the Judges a power of anulling the legislature's] acts; and you transfer a portion of the supreme power from an assembly which the people have had some share, at least, in chusing, to a set of men in the choice of whom they have not the least imaginable share." Id. at 241.
John Austin did not oppose what Bentham had called "by the disrespectful . . . name of judge-made law." Hamburger, p. 241. Utilitarians (including Bentham, Austin and Mill) rejected common law. Id. at 242. They claim, in politics, to write laws on behalf of the people. Id. at 245. John Stuart Mill, after reading Bentham on law and morals said the principle of utility "gave unity to my conceptions of things. I now have opinions; a creed; a doctrine, a philosophy; in one among the best senses of the word, a religion." Id. at 250. Mills in 1835 defended the making of governments "by preconceived and systematic design" -- what he called "the practicability of Utopianism." Id. at 250-251. The utilitarians were often indifferent to liberty or equivocal about it. Maximizing liberty created a threat of anarchy. Id. at 251. Bentham thought of liberty as a means for obtaining security rather than an end in itself. Id. at 252. Bentham was highly critical of juries. Id. at 253. He had a "most inveterate hatred" for lawyers as a class. Id. at 253. Bentham regarded religion as incompatible with rational politics. Id. Tyranny, to Mill, came from the middle class. Id. at 254.
The Boston Tea Party was held on the decks of East India Company ships. Bentham's East India Company (EIC) has a fascinating history. Thomas Malthus, an EIC employee, attributed Indian hunger to overpopulation. Other senior EIC employees included Adam Smith, David Ricardo, and Jeremy Bentham. Anton Chaitkin, TREASON IN AMERICA 56 (March 1984). James Mill (1773-1836) was Examiner of Correspondence for the EIC for eighteen years, an economist and also was the disciple of Jeremy Bentham. His son, John Stuart Mill (1806-1873), was a key policy making official of the EIC and was the central organizer of the Radical Party which planned the policies of England and the U.S. in the 19th century. Chaitkin, p. 279. Mill lived with Bentham with his son John Stuart -- as worshippers and tenants. James Mill told Bentham that in his son he would have "a disciple able and anxious to devote his whole life to 'the propagation of the (EIC) system.'" Id. James Mill became the EIC chief of intelligence Department in 1830. Id. John Stuart Mill helped create Ralph Waldo Emerson and Thomas Carlyle. Chaitkin, p. 56. Robert Dale Owen, known as the Father of Socialism, was an intimate of Jeremy Bentham who he called his "favorite author." Aaron Burr, a British intelligence agent killed Alexander Hamilton in a duel. Bentham was his controller and the man to whom he fled afterwards. DOPE, INC. 126 (1992). After his death, Bentham was decapitated, embalmed, affixed with a wax replica of his head, and dressed in his customary clothes. The spectacle of the natural rights foe is still preserved in that condition at University College, London. In his Last Will and Testament, Bentham left his entire estate to London Hospital on the condition that his preserved remains be permitted to preside over its board meetings. Dr. Southward Smith performed the complete Bentham body dissection. A glass-fronted mahogany case displays Bentham sitting upright in an armchair. For 92 years after he died in 1832, the wax apparition was present, although duly noted as "not voting" at the board meetings. David Wallechinsky, and Irving Wallace, THE PEOPLE'S ALMANAC 1329 (1975).
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