WAS J. BENTHAM THE FIRST LEGAL UTILITARIAN?

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Abstract


Legal utilitarianism is attractive for practice because this field of legal thought and philosophy of law sets out a particular direction of legal policy and statutory regulation (focus on the utility principle in decision-making) that can, under certain reservations, be used to improve people's lives. Most scholars conclude that the first utilitarian was J. Bentham. However, scientific studies prevalently do not involve the analysis of earlier legal doctrines in relation to the use of utility principle. Thus, the relevance and scientific novelty of analysis of the origin of legal utilitarianism is associated with the need to develop a theoretical component of this doctrine that is of current interest for the legal policy and to enlarge the underdeveloped - in our opinion - theoretical framework of legal utilitarianism genesis. The purpose is to identify the first theory in the history of legal thought, which can be classified as legal utilitarianism, and, if such theory is the J. Bentham's utilitarianism, to determine the reasons why earlier theories based on the utility principle cannot be classified as legal utilitarianism. The theoretical basis of the article is materials such as original sources by various thinkers whose works are based on the utility principle and scientific papers of European and the US researchers. For the purpose of the article, the following methodological tools were used: metaphysical (dialectic method), general (analysis and synthesis, deduction and induction, analogy, comparison) and specific (historical and legal-historical) scientific methods. The main outcome of the research is identification of distinct features of pre-Bentham legal thought based on the utility principle and identification of pre-requisites and basis (provisions which had formed the basis) for J. Bentham's utilitarianism, as well as the answer to the question: “Was J. Bentham the first legal utilitarian?”.


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Introduction Utilitarianism is based on the assessment of actions (omissions), acts, phenomena or other events judging how useful they are. Thus, in terms of utilitarianism, the most preferred actions are those maximizing the utility, and particularly, increasing happiness and reducing pain from the standpoint of classical utilitarianism. In this regard, public relations can be regulated by law, including happiness; achievement of happiness by some persons does not occur due to the pain of others. Given that, the social interaction is manifested through certain actions, including legally significant actions; identification of motives of behaviour can be significant in the improvement of legal activity. While events and actions are evaluated from the standpoint of utility, the utilitarianism deems it reasonable to make such evaluation in respect of universally binding rules of conduct used by legal actors when making decisions, committing acts; that is it is essential to look at evaluation of law as a regulator of social relations in order to determine whether certain legal regulation increases happiness and decreases pain and whether the utility function reaches its maximum. Thus, utilitarianism is not reduced to the analysis of actual events and actions but arrives at the necessity for the analysis of legal regulation. In the history of legal thought in Russia, the position prevails that J. Bentham, one of utilitarianism founders (together with J.S. Mill), was the first to pay attention to the necessity of evaluation of legal affairs, their consequences, including legal rules regulating social relations, from the standpoint of utility, and to develop the respective concept. Thus, W. Holdsworth (Holdsworth, 1940:568-586), the English historian in the field of law, mostly associates the beginning of utilitarianism with the J. Bentham's works. B. Eggleston and D.E. Miller note: “utilitarianism came into its own in the nineteenth century” (2014:10). C. Welch (Welch, 1989:257-258) supposes that even though the idea to use the utility principle was not discovered by J. Bentham, the philosophy of utility, which affected the development of politics and law was founded by him. In the Russian legal science, the formation of legal utilitarianism is associated with ideas of J. Bentham (Nersesyancz, 2004:646; Ostroukh, 2002:224-225, 227, etc.; Seydemetova, 2011:62). In fact, there had been a lot of legal doctrines based on the utility principle before Bentham’s works. However, in certain scientific papers there is an opinion that utilitarianism appeared in an earlier period. Thus, C. Sorinel (Sorinel, 2011:274) together with K. Mathis, D. Shannon (2009:103) find the origin of utilitarianism in Antiquity, Aristippus of Cyrene, Epicurus, Parmenides, British Moralists, and certain philosophers and theologians, such as G. Berkley and J. Gay. G.L. Lustila (2018:86- 106) asserts that J. Gay was the first utilitarian. M.D. Caro (2016:1-12) finds the origins of utilitarianism in the works of C. Beccaria, while R.C. Chaurasia (Chaurasia, 2001:359) claims that the founder of utilitarian school is F. Hutcheson, as he was the first to develop the formula of the greatest good of greatest number. Therefore, the question arises whether J. Bentham was the first legal utilitarian. Undoubtedly, J. Bentham developed the legal utilitarianism in sufficient detail. The significance of his works for the development of legal thought is beyond any questions. At the same time, can it be supposed that he was not the first to develop the legal doctrine based on the utility principle? It is likely that the early utilitarianism appears in the works by F. Hutcheson and C. Beccaria and some other philosophers and legal theorists of the early modern period, and the first preconditions of utilitarianism and the utility principle application in legal doctrines appeared much earlier. In order to determine whether the doctrine of utility principle in legal affairs was sufficiently developed early second half of the 18th century and to state that J. Bentham was not the first legal utilitarian, we should conduct an in-depth study of pre-Bentham legal thought based on the utility principle. Utility principle in the legal thought of the Ancient World Recognition of the utility principle as a factor, which should guide the decision-making process, as well as politics and legal affairs, had come up long before the classical utilitarianism. The Arthashastra, the Old Indian artefact of legal thought, is commonly translated from Sanskrit as “the science of politics”. However, the word-for-word translation is “the science of benefit” or “guide to achieving utility” (Kosambi, 1977:141). The Arthashastra recommends implementing a policy based on secular principles. Practical utility rather than the Divine Providence should guide us. This is, inter alia, the basis of legal force of regulatory provisions. Proceeding from the expediency and practical utility principles, secular laws (dharma established by the king's order) are preferred to religious laws. Moreover, Kautilya, the author of the Arthashastra, expressly instructs to be guided by utility as he holds that “wealth, and wealth alone, is important, inasmuch as charity and desire depend upon wealth for their realisation”[187]. The text of the Arthashastra reflects, in one way or another, the necessity to make decisions, including those having legal consequences and based on the utility principle. Thus, as regards the personality of a wise king, his imperious utilitarian functions are obvious. At the same time, based on the utility principle it is concluded that: “In the happiness of his subjects lies his happiness; in their welfare his welfare; whatever pleases himself he shall not consider as good, but whatever pleases his subjects he shall consider as good”[188]. Simultaneously, to ensure happiness (welfare) the king cannot allow violating the laws established by him. Thus, according to the Arthashastra, the state governance shall be based on strict observance of laws, but such laws, in turn, shall be dictated by the necessity for improvement of overall welfare and happiness of people. In Ancient India, not only the Arthashastra is based on the utility principle. The followers of Brihaspati and Charvaka (Lokayata) schools taught that the wisdom consists in striving for pleasures and avoiding pain where possible. In the Mimamsa Sutra (Sandal, 1999:1-4), the goods are defined as anything that brings happiness, and therefore the measure of value is anything that leads to satisfaction of needs, thus bringing the utility and (or) leading to pleasures. N.A. Nikam (1967:55-56) notes that some Indian schools teach that all things have value as they are directly associated with the conscious satisfaction. Given the above, we assume that the utility principle in the history of legal thought has been already addressed in the Ancient India. The aforesaid Indian thought is close to the classical utilitarianism by their essence, and in particular, ideas are based on the necessity to achieve happiness, pleasures or utility. Thus, S.N. Gupta (1978:7), the Indian axiology scholar, notes in “The Indian concept of values” that the value is also understood as utility, and this serves the basis for European subjectivistic concepts defining values through the psychological state of an individual (including utilitarianism), i.e. the concepts of J. Bentham, J.S. Mill, H. Sidgwick and H. Spencer. Thus, the utility principle was used in legal thought of Ancient India as a criterion for evaluation of legally significant actions. At the same time, the Arthashastra uses as a moral orientation not only the utility, but also love, and the law[189] itself what is even more important within the framework of legal doctrines. Legal regulations are not always governed by the utility principle. The law and utility principle are more likely to serve as relatively independent moral orientation, though it is not ruled out that the law may be based on utility in some situations. Moreover, the legal thought of Ancient India is not premised on the goal to provide the greatest good for the greatest number. Considering this, it seems to be impossible that the legal utilitarianism emerged in Ancient India. Kautilya was not the first legal utilitarian. Nevertheless, the beginning of the utility principle application, in the legal field as well, dates back to those times. At first sight, utilitarianism as an individualistic and often egoistic concept does not correlate well with such traditional values of Chinese philosophy as a need for virtue, humanity, (ren, 仁), the Junzi concept (superior person, for whom public interests come before his own) and others. Along with this, Y. Feng holds that Mozi was a utilitarian, placing his “philosophy of virtues” in opposition to the Confucianism. “The Confucians tried to be correct in righteousness, without considering whether profit (would result); tried to be pure in their principles, without considering whether this would bring material return. The Mohist school, on the other hand, laid exclusive emphasis on ‘profitableness’ (li, 利) and ‘accomplishment’ (gong, 功).” (Feng, 1952, I:84). Analysing the attitude to love in the mohism, Z. Li also notes utilitarian principles of the Mozi philosophy: “In Mozi, ‘love’ has its conditions, and it is based upon material utility in real life. It is not rooted in the inner and psychological ‘ren’ (仁, benevolence) but has its origin in the external ‘yi’ (义, righteousness) which is a doctrine of mutual-benefit. Acting according to ‘profitableness’ and ‘righteousness’ is the moral rule and criterion of small peasant proprietors.” (Li, 1986:58-59). Thus, Mozi and his followers believe that righteousness or moral are associated with the material benefit. Such a narrative of Mozi's moral philosophy still prevails and is popular in scientific studies. V.A. Rubin expressly states that “Mozi presumed that a man is concerned of seeking pleasure and avoiding pain” (Rubin, 1999:28-30), thus equating it with utilitarianism. Driven by Y. Feng and Z. Li, the Mozi theory is supposed to have been wrongly classified as utilitarianism by certain researchers. According to Mozi's ideas, an urge to profit or utility is not a result of selfgratification, but the way to achieve common welfare by exercising virtues in relation to third parties (without personal preferences). Accordingly, achievement of the maximization of utility is aimed at the welfare for society in general. This should serve the basis for the state policy and legal regulation for its implementation. Thus, in order to increase the welfare of everyone the state issuing obligatory decrees may influence particular individual by rewards and penalties, repressing the socially dangerous and injurious behaviour and encouraging the desirable acts for the achievement of the aforesaid goal. In contrast to J. Bentham, mohism is not utilitarian, precisely because this is not an individualistic concept as the rest of areas of Chinese philosophy. It is not hedonistic. The importance of outcomes that are good for the state outweigh the importance of individual utility, and therefore it can be attributed to the state consequentialism rather than legal utilitarianism. The utilitarianism of J. Bentham originates from the increase in the number of pleasures and decrease in the number of pain to maximize utility. In Ancient Greek, pre-Socratics Democritus and Eudoxus of Cnidus described pleasure as the highest good. The first hedonistic school was founded by Aristippus of Cyrene, a student of Socrates, who stated that pleasure is the highest good and a single purpose in life. The listed philosophers proclaimed other fundamental values similar to utilitarianism. According to Democritus, the state exists for the public good and justice. Public interests prevail over private ones, and the activity of citizens should be aimed at improving the social order. The aim of law is to benefit the life of man, but the prerequisite for its achievement is subordination to law. Actually, according to Democritus, laws are necessary for polis citizens to curb their inherent egoism, envy, discord, mutual causation of injury, which according to Democritus are caused because “people are willing to achieve happiness and the good” (Vitz, 1979:145). These aspirations impeding the detriment of the public interest are caused by human nature, which proceeds from the motive for improvement of one's own position, not always considering the interests of third parties. To eliminate negative consequences of obedience to human nature, “the law seeks to give seemly form to the lives of people [...] for only to those who obey it does it reveal its full and peculiar excellence” (Malakhov (ed.), 2003:84). Thus, we should subordinate to law to achieve the common good. According to Democritus, certain individuals should be legally punished, if their actions are aimed at enjoying pleasure by themselves at the expense of society; the same refers to the achievement of common good and (or) if they make other people suffer by their actions. “As there are laws against hostile [towards humans] animals and creeps, the same way we should treat people, I think. […] Laws would not make everybody's life a misery if one does not make harm to the other” (Malakhov (ed.), 2003:84-85). In general, Democritus views on crime and punishment are based on his vision of law as an enforcement tools against those, who due to their moral and mental deficiencies do not tend to virtue voluntarily “by their inner drive and verbal persuasion”. The classical utilitarianism comes to the same conclusion. Punishment for the conviction of crime makes the offender pain, and therefore decreases its utility, but is necessary to prevent even more pain (because of repression of persistent crimes in the future). Considering the Democritus attitude, this utilitarian conclusion is not new. Legal views of Democritus are similar to the classical utilitarianism from the standpoint of public evaluation of consequences of legally significant actions. Reference to happiness and welfare as motives for human behaviour in the Democritus philosophy of law is close to the ideas of J. Bentham. However, Democritus did not proclaimed the philosophy of utility as a landmark of state governance (the necessity to achieve the common good, in our opinion, does not mean that the purpose of any law should be the greatest good for the greatest number). Moreover, it is emphasized that Democritus theory was not utilitarian as such, that he pointed out the need to confine oneself to a sense of moderation (not to maximize pleasure like in the utilitarianism): “the golden mean in everything: I like neither lack, nor abundance [...] the good sense of mind appears through moderation in pleasures” (Ivanova, 2009:12). Thus, it is assumed that Democritus was not the first legal utilitarian. The ideas of ethical utilitarianism can be found in Socratic dialogues. This is stated by multiple researchers, including R. Hogan (Hogan, 1978:118-131) and W. Guthrie (Guthrie, 1971:143-144). In opposition to this, I.Y. Kozlikhin and E.V. Timoshina (Kozlikhin, Timoshina 2016:9-16) stick to the point that Xenophon might have exaggerated the utilitarianism of Socrates. According to the Xenophon’s recollections, Socrates notes the necessity for self-consciousness, evaluation of one's skills and abilities through the utility: “for those who know themselves know what suits them […] by doing what they understand how to do, they procure what they need and do well” (Bruell, (ed.), 1994:120). The utility principle is also applied in the legal ideas of Socrates. Thus, the Republic of Plato contains the Socrates' utilitarian answer to the question about justice: “the just is something of advantage” (Bloom, Kirsch, (eds.), 1991:16). Taking into account that in the Meno of Plato Socrates equates the utility and the good. We point out that according to Socrates the state governance should be exercised with the objective of achieving virtue for everyone by “good people”. It is supposed that this also generates the need to observe the polis law and substantiation of unequal rights of a polis and a citizen according to Socrates. Thus, if skilled people govern, such governance is attributed to the need to achieve a virtue and common good. According to V.S. Nersesyantcz (1996:82), the administration of polis affairs based on knowledge is regarded by Socrates as a single reliable path to the common good. Similarly, classical and modern legal utilitarianism concepts proceed from the need to achieve the common good or maximize the total (public) utility in the state governance, whilst knowledge and minimization of asymmetry and other incompleteness of information in the decision-making play a critical role just as in the Socrates's theory. While noting certain features of ethical utilitarianism in the legal doctrine of Socrates, one cannot but agree with I.Y. Kozlikhin and E.V. Timoshina insofar as these features are rather attributed to the Xenophon's interpretation than to the actual utilitarianism of Socrates. If Socrates had adhered to the position of ethical utilitarianism attributed to him by Xenophon, he would have had to adapt himself to the circumstances arising in his life. At least, he would have avoided the initiation of legal case against himself, not to mention the fact that if such a case had been brought, he would have saved himself from “misfortune” - the death penalty. Socrates, in his activities, was least of all guided by his own profit and utility, he did not consider any circumstances, and, believing in the justice of his cause, he deliberately condemned himself to “unhappiness”, he did not compromise his conscience and beliefs during the trial, and did not try to use an opportunity of escape from prison after sentencing. Thus, Socrates was not a utilitarian. Aristotle and Plato stand at the origins of many social sciences. Aristotle's state and legal views are mainly described in his treatise “Politics” (Skvorcov, 1893:145-146), in which the author notes that to gain happiness one should follow the virtues. The state contributes to the achievement of this goal. Thus, according to Aristotle, the state is “a mass [...] of citizens [...] which suffices itself to satisfy all the needs of life” (Skvorcov, 1893:97). The philosopher admits that such needs, include without limitation the material needs, and the need to protect people from mutual injustice, but at the same time the main motive “is not just to live, but rather to live happily,” and therefore “the state's goal is the happiness of life” (Skvorcov, 1893:97). Plato also notes that the reason for state emergence is the need to satisfy people's needs. This idea is the basis for definition of the state: “when one man takes on another, for one need and another for another need, and, since many things are needed, many men gather in one settlement as partners and helpers, to this common settlement we give the name city” (Bloom, Kirsch, (eds.), 1991:46). According to Plato, state and legal processes are caused by the need to gain utility. At the same time, the aim of law should be meeting the needs of people, if possible. The priority of the common good over the private one is justified thereby (Bloom, Kirsch, (eds.), 1991:198). Later, in his felicific calculus, J. Bentham has determined the formula to prove the need to achieve the greatest happiness for the greatest number (also F. Hutcheson before J. Bentham), and following Plato, has actually defined the priority of utility or happiness for majority over the utility or happiness of separate individuals, laid the beginning of the unsolvable unambiguous problem of ethics and philosophy, as well as of law at certain stages of its development, whether it is acceptable to sacrifice the happiness or utility of one individual for the sake of significant increase of utility of another one or the majority? Is it admissible to seize property from a welloff person and redistribute it to the benefit of the most unprivileged persons (subject to the law of diminishing marginal utility)? Is it admissible to commit crimes or other offences under conditions of necessity or “under the influence of passion” if the person committing the act prohibited by law will provide the equivalent (or greater) compensation for the pain of victims? According to utilitarianism, the listed actions should lead to the increase in overall happiness, but not always such actions or other events are consistent with the general legal principles of equality and justice. This was undoubtedly the reason why the felicific calculus of J. Bentham and subsequent ideas of utilitarians were criticized by researchers, especially as it pertains to the aggregation of utility of different individuals with the subsequent substantiation of the necessity to make decisions redistributing the utility. Obviously, fundamentals of these ideas were laid by Plato. The completed analysis of the legal thought of the Ancient World leads to the conclusion that certain ideas regarding the application of the utility principle within the framework of legal affairs were not sufficiently developed to assert the emergence of legal utilitarianism at that time, though they were close to the classical legal utilitarianism. At the same time, the abundance of ideas of various law theorists makes it possible to conclude that many topical issues of utilitarianism have been considered. In our opinion, the legal utilitarianism did not appear in the Ancient World due to the absence of the systematized legal thought, which absorbed the ideas of its predecessors and created a unified and consistent theory based on them. Simultaneously, in his “Essays on the Philosophy of Law” I.V. Mikhailovskii writes: “the considered branch of ethics [utilitarianism - remark by the author] is quite old: it existed back in Greek philosophy; there is an opinion that Aristotle was a utilitarian” (Mikhailovskii, 1914, I:90). At the same time, recognizing some similarity of branches and referring to the Aristotle's words from the Politics, I.V. Mikhailovskii notes that the latter was not an advocate of proceeding only from the utility principle in all situations. “The ancient civilization, its material and spiritual culture, the ancient production process, the ancient mentality itself have always had a tremendous impact on the genesis of European culture as a whole, on its formation and development” (Sigalov, 2018:45). It seems that such a tremendous impact was also observed in the context of the use of the utility principle in relation to the state and legal phenomena. Some of the considered theories, as it was justified, are intrinsically close to the classical legal utilitarianism and had a significant impact on it. However, the ideas of Ancient thinkers regarding the application of the utility principle to the state and legal phenomena were not systematized but heterogeneous and covered only the limited sphere of social life. Thus, for these reasons, it is impossible to trace the origin of legal utilitarianism in the Ancient World. Utility principle in the legal thought in Early modern period In early modern period, the idea of the need to achieve happiness, common good and, consequently, people's utility function appeared among philosophers and educators even before the classical legal utilitarianism. Thus, B. Spinoza notes that “every one […] seeks his own interest” (Spinoza, 1891, I:74). Utilitarian views of B. Spinoza have much to do with his ideas described in the Tractatus de Intellectus Emendatione, which he begins by analysing the value of different goods. B. Spinoza notes that the acquisition of certain goods is associated with the probabilistic outcomes, and people tend to strive for riches and honour: “the more we have of them [honour and riches - remark by the author], the more our joy increases” (Spinoza, 1895:3). For B. Spinoza, riches and honour are associated with the increased personal utility. The gain in riches and honour leads to the increased utility just as it was with the marginalism (a few centuries later). B. Spinoza obviously proceeds from the assumption that the individual's utility increases if others share true benefits with him. Given that the utilitarianism of B. Spinoza appeals to the need to get only “true benefits” rather than to maximize pleasure (any pleasure), the actions of individuals, according to B. Spinoza's ethics, are measured by one fundamental principle: whether they meet the criterion of attainment of excellence. In this case, a particular act is morally positive when it is based on positive motives and when it simultaneously leads to the consequences that meet the criterion of excellence and does not lead to pain. It is believed that this Spinosian concept is similar to the utilitarian principle of maximizing utility. If the actions of certain individuals are aimed at attaining excellence and do not lead to pain, then such activity is socially desirable or at least it is not socially undesirable or socially dangerous. Such behaviour should be encouraged by statutory regulation or at least it should not lead to the legal liability. This is the criterion for the legal policy implementation according to B. Spinoza. Taking into account the assessment of actions based on their consequences, we find it possible to suppose that the above mentioned legal ideas of B. Spinoza were consequential. But are they utilitarian, taking into account that utilitarianism is a kind of consequentialism? V. Gluchman (Gluchman, 1995:53) makes a distinction between utilitarian and non-utilitarian consequentialism, which is as follows. Non-utilitarian consequentialism, as opposed to utilitarian: 1) evaluates not only the consequences of one or another action, but also the motives, intentions and other circumstances, that are not expressed as a result of action; 2) has a broader structure of values, which is not limited to utilitarian values only; 3) does not assume that the action is morally justified simply because it leads to the best possible consequences (the maximization principle) and, therefore, can be morally justified even if only positive consequences of this action prevail. Considering this, it is noted that there are many provisions in the moral philosophy of B. Spinoza, which associate him with utilitarianism, for instance, his methodical use of eudemonistic, hedonistic or utilitarian approaches to solve ethical issues (Gluchman, 1996:72). Nevertheless, for B. Spinoza the utility of action is always associated with the necessity for continuation of existence and self-improvement, that is with his conatus (Zuolo, 2016:23-40). To this end, the Spinoza's concept of utility was rather a metaphysical or epistemological utilitarianism than its ethical form. In many situations, individuals have an opportunity to act in a certain way to maximize the utility of their actions, using methods contrary to the rational essence, and the works of B. Spinoza do not encourage such actions. The theory of B. Spinoza is aimed at excellence, but it does not put the excellence of individual over the excellence of the world. The human action not only increases or decreases his own excellence, but also social or natural excellence and these excellences are more important to B. Spinoza than individual excellence. Accordingly, we believe that this is the reason why legal ideas of B. Spinoza are based on the assumption that laws should restrict the actions of individuals so that such actions in their own interests do not harm society and the common social welfare. For this reason, such legal institution as legal liability is especially important, it is as important as strict observance of laws, but only this political and legal consequence of moral philosophy of B. Spinoza is in contrast to his ideas that it is not necessary to maximize utility by any means. Thus, it does not allow us to draw a conclusion about the classification of his doctrines as the legal utilitarianism. The beginning of utilitarianism can be seen in certain conclusions of F. Hutcheson as well as B. Spinoza. Thus, F. Hutcheson, and not how generally accepted to consider J. Bentham, was the first to word the fundamental formula of utilitarianism: “That Action is best, which procures the greatest Happiness for the greatest numbers; and that, worst, which, in like manner, occasions Misery” (Hutcheson, 2008:125). C. Beccaria’s works also include ideas about being guided by the utility principle. Thus, he noted: “the sovereign's right to punish crimes is based on the need to protect the depository of the common good from encroachments of certain individuals” (Beccaria, 2004:90). In this case, it should be understood from the work of C. Beccaria “On Crimes and Punishment” that the need to adhere to the principles of the common utility and the common good should result in actions committed within the limits of the law and not in violation of the law, even if such violation is supposed to result in the attainment of the common utility. According to C. Beccaria and B. Spinoza, unlike J. Bentham, the considerations of common utility, no matter how important they may be, should never lead to violation of the law, to justification of injustice, which does not allow us to attribute their thought to the utilitarianism in the pure form. F. Hutcheson turns to the public interest. The utilitarian prerequisite of his legal doctrine is based on the analysis of actions that are positive in relation not to a certain individual, but to the majority, which makes it possible to attribute his doctrine to non-utilitarian consequentialism rather than utilitarianism, relying on the premises of V. Gluchman. Thus, the utilitarian orientation is present in the works of B. Spinoza, F. Hutcheson and C. Beccaria, but it is not dominant like that of J. Bentham. At the same time, it cannot be denied that these thinkers have laid some foundations for the emergence of legal utilitarianism of J. Bentham. Some ideas similar to utilitarianism are found in the works of theological philosophers, such as R. Cumberland and J. Gay. The J. Gay's utilitarianism can be expressed in three main theses formulated by him (Selby-Bigge, 1897, II:849-887): 1) personal happiness is the ultimate goal of all human actions; 2) the direct criterion of virtue is “the will of God”. In this case, the happiness of mankind is the criterion of God's will. Thus, the happiness of mankind can be called the criterion of virtue; 3) the duty is a need to take or refrain from taking any actions to be happy. J. Gay actually created a doctrine based on an individual pursuit of happiness by laying the foundation that is also relevant to the ideas of W. Paley and J. Bentham. In “A Fragment on Government”, J. Bentham forms an axiom, which is fundamental for his utilitarianism, that the measure of the correctness of state governance is the greatest good for the greatest number. These are the theses formulated not only by F. Hutcheson, but also by J. Gay. R. Cumberland and J. Gay believed that human happiness is achieved through the actions of individuals themselves with the blessing of God. Such actions include, but are not limited to, obligations to others arising out of a law written by people or an agreement concluded between people. Thus, theological philosophers wrote regarding the law: “considering all existing kinds of obligations [...] the universal of such obligations is that which is applicable in all cases. Such an obligation may arise only by the will of God” (Cumberland, 1978:412). This interpretation of the emergence of obligations has been combined with the analysis of motivation of human behaviour, its selfish nature, i.e., the need of individual to achieve his own well-being. Whether a person achieves happiness, whether he will do righteous deeds depends on whether his actions correspond to the will of God. In other words, an individual will utility from those actions, which are approved by God and which, in particular, involve the observance of the law and commission of permissible civil law agreements as entailing obligations. However, in our opinion, such utilitarianism as a legal concept has a significant deficiency as it does not define the God's “normative role” at least in terms of normative ethics. The God as a “source of normativity” is compatible with utilitarianism, but utilitarianism as a legal concept can be self-sufficient without including God in the concept, which allows us to conclude that these theologian philosophers were not the first legal utilitarian. The enlightening ideas of the early modern period, which led to the formation of the idea of natural law and a social contract, are similar to utilitarianism in the philosophy of happiness, as a result of achieving pleasure and avoiding pain. Thus, J. Locke writes: “happiness then in its full extent is the utmost pleasure we are capable of, and misery the utmost pain.” (Locke, 1824, I:245). Since people, by virtue of natural law, are equal, government should be built in order to provide the opportunity to achieve happiness by obtaining the highest pleasure and avoiding pain on an equal footing by all people. For these purposes, law must ensure freedom. Thus, J. Locke notes that “the necessity of pursuing happiness [is] the foundation of liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty. The stronger ties we have to an unalterable pursuit of happiness in general, which is our greatest good, and which, as such, our desires always follow, the more are we free from any necessary determination of our will to any particular action” (Locke, 1824, I:252-253). Thus, a person should be able to achieve happiness. J. Locke, even before J. Bentham, proclaims a formula for maximizing pleasure and minimizing pain, but unlike legal utilitarianism, he considered it impossible to allow the pain of one person to bring more pleasure and, accordingly, happiness to another person (to other persons; in other words, in public interest). He did not put happiness, pleasure, utility above equality and freedom. Equality and freedom are primary, that does not allow us to classify J. Locke's legal doctrine as legal utilitarianism. Before J. Bentham, utilitarian ideas in the field of law were largely opposed to the ethical philosophy of T. Hobbes. Basically, such rationalists as the Cambridge Platonists and R. Price, in fact, appealed to an objective good or right. Such sentimentalists as F. Hutcheson rejected the T. Hobbes' egoistic theory and defended the need to adhere to virtues and the moral component of activity. Other philosophers, appealing to the utility principle, opposed T. Hobbes, denying his “bellum omnium contra omnes” (the war of all against all). In fact, the early utilitarianism was formed before J. Bentham; it was based on the need to achieve happiness and reduce pain. The achievement of these goals should correlate with legal regulation. At the same time, early utilitarians proceeded from the need to maintain the balance between the interests of each person in achieving his or her own personal happiness and the common good. Some ideas of the early utilitarians were repeated in the classical legal utilitarianism. Although hedonistic and eudemonical ideas were repeatedly expressed in the history of legal thought in Ancient India, Antiquity and Modern Age, the legal utilitarianism obtained its first systematic structure as a moral system, looked at as the basis for legal regulation, in the works of J. Bentham. The legal thought of J. Bentham, unlike his predecessors, is fully based on the utility principle. Before him, the utility principle, as a rule, played an auxiliary role in legal doctrines. Utility principle is also called the principle of happiness and welfare, as it shows the principle's association with pain and pleasure, which are the true “sovereign masters” of mankind. Thus, J. Bentham’s legal thought continues ideas of antique philosophers, who concentrate on the notion of pleasure and its role for an individual (Aristippus, Democritus, Epicurus and others), on the one hand, and early modern period philosophers, who proceed from the need to achieve happiness, which should be ensured by implementation of certain legal regulation (F. Hutcheson, C. Beccaria, J. Gay and others), on the other hand. The legal utilitarianism of J. Bentham absorbed both of these branches of legal thought and, thanks to the synthesis of their ideas, it became possible to comprehensively justify the need to administer legal affairs based on the utility principle. The J. Bentham's status of a founder of legal utilitarianism is confirmed by the universality of the utility principle application that was not observed in his predecessors. Having considered the nature of utility and its role in motivating the human activity, the philosopher has determined the legal regulation in various branches of law by the utility principle. J. Bentham holds that the “art of legislations” consists of only two branches - civil law and criminal law. In the civil law, in continuation of the economic principle of non-interference “laissez-faire”, J. Bentham, justifies the necessity of freedom of contracts and non-interference of the state in civil relations of citizens provided that the obligations arising from the respective contracts are properly performed. The ideas of the thinker correspond to such principle as equal legal capacity of all civil actors, the principle of “pacta sunt servanda” and others. In the field of criminal law, relying on the need to minimize pain, J. Bentham proceeds from the necessity to respect the principle of proportionality of punishment to the crime committed. In his opinion, only those acts, which cause real harm to society, should be considered a crime. J. Bentham defines the concept of punishment based on the utility principle. Punishment as a measure of criminal liability is a necessary, but “undesirable evil” because it imposes “pain” as a means of eliminating even greater “pain” and thus contributes to maximizing the utility. Maximization of social utility is the main reason for punishment and the main justification for it. Considering this, punishment should be an inevitable consequence of crime, even though it brings pain to the offender. J. Bentham believes that no matter how hard people try to avoid the governance of pleasure and pain over them, they strengthen it even more in such a way. In Bentham's ideas, the dichotomy of pleasure and pain as the main drivers of human behaviour has become absolute for the first time in the history of legal thought. The mere principle of utility is based on this dichotomy because it approves or rejects the action depending on happiness and pain resulting from that action. At the same time, J. Bentham emphasizes in the definition of the utility principle that this principle is applicable to any action, including every measure of government, and therefore to the law. Since the key issue is the question of coercion to follow any regulations, and coercion works only through pleasure or pain, J. Bentham finds it necessary to identify their sources: physical, political, moral and religious, referred to as sanctions. It is they that give force to certain laws and rules, i.e. they are the sources of law, and pain resulting from the failure to comply with these laws take the form of legal liability. Given the above, we believe that J. Bentham was the first legal utilitarian. Conclusion Before the Bentham's theory, many philosophers and researchers in the history of legal thought were guided by the utility principle in one or another aspect of their works. In our opinion, the work ate a new concept. The mere idea to use the utility principle as a fundamental one in determining the guidelines for the development of state and law, politics and society dates back to the Ancient World - to Ancient India and Antiquity. At the same time, J. Bentham created the first detailed moral system as the basis for legal regulation. The Bentham's theoretical development of issues related to the utility principle in law had a significant impact on jurisprudence, both theoretical and practical. In the theoretical part, he has laid the foundations for a new legal doctrine - legal utilitarianism - as it was substantiated in this article. In the practical part, it is difficult to overestimate the impact of “Newton Legislation” (Hoesch, 2018:315) on the legal regulation in various branches of law, especially in criminal law, including modern law. The tendency of utilitarian determinism of the development of law and legal science during the XIX century, and in the first half of the XX century gained its impetus (Hart, Sacks, 1958:113-114). By that time, the theory of criminal law had become clearly utilitarian, although certain prerequisites for this had been revealed previously. In the United States of America, the concept of “absolute” rights was abandoned in favour of “balancing test” with actually utilitarian prerequisites [190]. Utilitarianism has also had a significant impact on civil law, in particular, on tort and con- tract law. J.B. Ames (Ames, 1908:97, 110) notes the significant impact of utilitarianism on the law in general: “The law is utilitarian. It exists for the realization of the reasonable needs of the community”. Considering this, we can state that the theoretical basis and preconditions for the emergence of legal utilitarianism appeared long before J. Bentham. At the same time, legal utilitarianism appears only in the Modern Age, and the first who managed to systematize the ideas related to application of the utility principle within the framework of state governance and legal regulation in general was J. Bentham. Thus, despite the existence of separate legal ideas based on the utility principle, we believe that J. Bentham was the first to develop the fundamental legal concept of utilitarianism.

About the authors

Igor V. Kolosov

Peoples' Friendship University of Russia

Author for correspondence.
Email: i.v.kolosov@yandex.ru
6 Mikluho-Maklaya str., 117198, Moscow, Russian Federation

Postgraduate Student, Department of History of Law and State, Law Institute

Konstantin E. Sigalov

Peoples' Friendship University of Russia

Email: sigalovconst@mail.ru
6 Mikluho-Maklaya str., 117198, Moscow, Russian Federation

Doctor of Juridical Science, Candidate of Philosophy Sciences, Associate Professor, Professor of Department of History of Law and State, Law Institute

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