‘The flatterer of the people will finish by disgusting the people’

In Bentham’s virtual world, legislative assemblies approved procedures designed to prevent all imagined ‘bad’, ‘evil’ or ‘inconvenient’ outcomes. Evasion of this taxonomy, on Bentham’s sociology, was impossible.

Is the measure proposed a bad one? Indecision is not only an evil from the time lost, but it allows a state of dread to subsist in the public mind - the dread lest this measure should at last be adopted.

Is the measure proposed a good one? The evil which it would have caused to cease is prolonged, and the enjoyment of the good it would produce is retarded, so long as the indecision subsists.⁵⁰

These mind experiments relieved code-writers of the dreary task of reading volumes of parliamentary history and citing to episodes to support their proposed rules. The ‘evil of precipitation’, to take one example, ‘lies in the danger lest it should be a cover for a surprise’.⁵¹

In one case Bentham produced evidence to back up his risk and reward analytic. In the passage following he referred to the practice of the French States-General. In that assembly members tendered their votes and opinions according to a fixed sequence.

Conceive this regimen adopted by the States-General, consisting (sup­pose) of 1100 members: he who sits first may hope to persuade 1099; the hopes of his next neighbour are confined to number 1098; and so down to the lowest, who sees nobody on whom his eloquence can make any effective impression but himself.⁵²

The arrangement weighted, in advance, the persuasive effect of any given member’s address to his colleagues; this weight accorded with the speaker’s position in the fixed order of speakers. Beginning with the member whose status made him the second to speak, that member had the opportunity to persuade 1,098 members.

‘The tactics of political assemblies’ 131 Chapter 3, this volume. Bentham painted his own lively picture of inequality at work in the French assembly, as he ‘conceives’ its ‘regimen’.⁵³

In the French model this risk of persuasion changed from speaker to speaker. This has often been overlooked. In Mason’s Manual of Legisla­tive Procedure (1935 1st ed.) the author declares that: ‘In any group there can be but one majority but there may be many different minorities’.⁵⁴ As Bentham pointed out in the case of these French assemblies, there will be as many minorities and majorities as there are members of the assembly itself, if a fixed order of speaking is observed. The second-to-speak mem­ber of the assembly (in my paraphrase) may announce: ‘I have a chance to persuade 1,098 of 1,100 members to my position’. A French Hare, Burke’s member lacking more than a ‘single friend’, will have only a single colleague to persuade. These assemblies took the logical possibilities - and their consequences - into account. The procedure governing behaviour in these assemblies preferred rules that visited an enhanced risk of failure on speakers of lower status when they addressed the assembly.

Bentham’s preferred speaking arrangement assigned to each member an equal number of other members who have not yet balloted and were subject to persuasion. Bentham laboured to elaborate this point: if members voted simultaneously, then the ‘slave’ would be unable to vote according to the will of his ‘master’ because ‘the will of the seducer ... is concealed’.⁵⁵ The risk and reward calculus was the same for each member, if best practices embraced equal voice and vote: ‘Each one in this beautiful political order, is more afraid of losing what he possesses, than desirous of what he has not’.⁵⁶

The Benthamite preference for equality in risk and reward works out as follows.

Bentham correctly argued that members did not have anything to learn from a pre-fixed order of speaking. In other words, such arrangements did not promote skill acquisition. Bentham’s analysis pivoted from a mundane critique of a foreign assembly’s procedure to best practices in code-writing. Procedural best practices, suitably idealised, enabled viable trans-national analysis. Unpacking this approach permitted the ideal that motivated each assembly to come into focus along with the real world hurdles that each assembly took into account when it composed its pro­cedures. Every nation’s assembly became, on Benthamite reasoning, a political problem-solving machine whose gears and levers were open to scholarly investigation and reverse engineering.

Bentham elaborated on the mathematics inherent in his critique of the French model when he turned to the ‘comparative number of suffrages being

the only measure of probability as to the correctness of its decisions’.⁵⁷ He supported his argument as follows: a lower margin of success of a measure in Commons, for example, should inspire the losing ‘party’ with ‘hope for future success’.

The existence of a government regulated by an assembly, is founded upon an habitual disposition to conformity with the wish of the major­ity: constant unanimity is not expected, because it is known to be impos­sible; and when a party is beaten by a small majority, far from finding in this circumstance a motive for illegal resistance, it only discovers a reason for hope of future success.⁵⁸

Marco Guidi’s essay ‘The Devil in Details: Bentham’s Political Tactics as a Theory of Agenda’ directs attention to the ‘well-assessed evalua­tion’ of the ‘long-term interest’ of members in a legislative assembly.

Given that ‘Bentham reasons in probabilistic terms’, Guidi concludes that the ‘larger the majority, the higher the probability that the decision taken will promote the general interest of the community’. A ‘majority decision, in a representative body, is the best “probabilistic” approximation to the gen­eral utility of those who have elected this assembly’.⁶¹ Bentham was, on this account, in a position to defend the modelling he presented in his Essay. As members supply greater ‘suffrages’ in favour of a given bill or resolution - we are speaking of Jefferson's balloting words in, words out, words swapped gradatim - the assembly’s ‘system of tactics will the more nearly approach perfection’.⁶² As interpreted by Guidi, the guideposts demonstrating prog­ress towards ‘perfection’ are quantifiable. I underline that analysis on this point directs attention to the ‘perfection’ of procedures.

By the 1790s speculative philosophy had acquired a distinct odour, thanks to the work of David Hume in his Treatise of Human Nature (1738-1740) and Immanuel Kant’s Kritik der Reinen Vernunft (1781, rev. ed. 1787). If an investigator could name an object - or an observable pattern of events - the speculative faculty presumed that the investigator might readily attach features to the object under examination.

‘The tactics of political assemblies’ 133 be assigned at will. This was so old-hat by the last quarter of the eight­eenth century that Kant referred to the ‘perfect island must exist’ fallacy as a ‘Schulwitz’, thereby adopting medieval philosophers’ bemusement at the enterprise of free-wheeling predicate-attaching.⁶³

Bentham offered a modern take on the human eagerness to attach ought- ness to isness. Preliminarily, two tidying-up concessions must be employed to bail out his reasoning. Bentham most certainly did traffic in ‘observations concerning human affairs’. These observations focused Hume’s attention on the is-to-ought problem. Despite Hume, Bentham declared that he was cultivating political science ‘brought to an equal certainty with geometry or algebra’. Hume sneered at this enterprise; Bentham plunged forward.⁶⁴ Whether the proposition embodied in any law project would ‘promote the general interest of the community’ - Guidi’s phrase - was known at the time members engaged each other in debate-and-ballot or auction-and- bargaining. The proposition was therefore falsifiable. Perfect islands aren’t falsifiable. Those who speculate that perfect islands must exist (if they didn’t exist they wouldn’t be perfect) rely on the lack of any venue experiment that might test their is-to-ought reasonings.

Bentham’s advance may be viewed from another perspective. Nowhere did Bentham argue that assemblies should enact law projects into statutes, observe their effects, and then revisit their merits via follow-up legislative attention. Bentham was an anti-pragmatist on this score. The predicate useful life of a statute or the mean time to failure (MTTF) is fixed at the moment the measure is enacted. There were human beings at work, to be sure; they attached a longevity’s worth of shouldness to the isness featured in an Act of Parliament.

It is worth observing that Edward Christian, Blackstone’s editor in the same decade, argued that better laws should prove their worth by ‘math­ematical demonstration’. ‘May our political liberty be augmented by reforms?.... Before any serious experiment was made, we ought to be convinced by little less than mathematical demonstration, that we shall not sacrifice substance to form, the ends to the means, or exchange present pos­session for future prospects’.⁶⁵ Christian’s reasoning permits isolation of a predicate, here longevity. The investigator may then frame a range of per­missible values for the variable that tracks this predicate. Is a useful life of

10 or 20 or 50 years optimal? Is repeal when the next government comes into power suboptimal? If we are to excuse Christian from crimes against Hume and Kant, the justification may be laid to Christian’s employment of a range of values. These are predicated of statutes, but in so doing the investigator engages in analysis which may be tested in the real world. The Chronological Table of Statutes, for instance, tracks the lifetime of every statute enacted in the study interval. Christian and Bentham were not wrong in supposing that this variable had significance in the disciplines of political science and economic history.

Bentham argued that legislators were to be faulted when they wrote a faulty law project into the statute books. In his phrase ‘the art of the leg­islator’ Bentham made law-makers responsible for the laws they wrote because - and this is the nub of it - they were also the ones responsible for the configuration of procedures which governed their behaviour. Ben­tham certainly overplayed his hand. Process can’t be responsible for all the details of merit outcomes, from commonplace statutory messiness to a leg­islative act offering a class of stakeholders the benefit of a corrupt bargain. If trimmed back modestly: if Bentham was arguing that the system was responsible for the mix of systemic and stochastic variables that the assem­bly’s procedures managed, a solid foundation will have been laid for further investigation. The Essay’s analytic on this point is worth a full hearing.