BENTHAM'S INFLUENCE

ON THE LAW AND

ECONOMICS MOVEMENT
Richard A. Posner*

I have been asked to discuss Bentham's influence on the important

modern movement in legal scholarship known as 'law and
economics', or, more descriptively, as the economic analysis of
law. The topic is both narrow and difficult. It is narrow because it
concerns only a tiny slice of Bentham's vast influence on legal
thinking and practice. 1 It is difficult because the determination of
influence is difficult, especially when the span of time that must be
considered is great. The law and economics movement began
sometime between 1958 and 1973. The first date is the first year
that the Journal of Law and Economics was published, and the
second date is the date of publication of the first edition of my
book Economic Analysis of Law. Before the launching of the
Journal of Law and Economics, the law and economics movement
could not have been said to exist; after my book was published, its
existence could not be denied, though it could be deplored. If one
* This is the slightly revised text of my Presidential Address to the Bentham
Club of University College London, on 2 Mar. 1998. I thank Gary Becker and Eric
Posner for helpful discussions of the topic, and Ronald Coase, Neil Duxbury, and
Peter Newman for helpful comments on a previous draft.
1 On which see, e.g., George W. Keeton and Georg Schwarzenberger (eds.),
Jeremy Bentham and the Law: A Symposium (London, 1948); Gray L. Dorsey,
'The Influence of Benthamism on Law Reform in England' (1968) 13 St. Louis
University Law Journal 11; Peter J. King, Utilitarian Jurisprudence in America:
The Influence of Bentham and Austin on American Legal Thought in the
Nineteenth Century (New York, 1986) chs. 2-5. I have found only one previous
work on Bentham's relation to the law and economics movement: Alan Strowel,
'Utilitarisme et approche economique dans la theorie du droit: autour de Bentham
et de Posner' (1987) 18 Revue interdisciplinaire d'etudes juridiques 1. But it is
mainly a comparison of Bentham's and my views, and does not discuss his influence.

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Richard A. Posner

year must be picked for the beginning of the movement, it would

be 1968, and for a reason that turns out to be connected, though
only loosely, with Bentham. And in 1968 Bentham had been dead
for 136 years.
I must distinguish between two meanings of 'influence'. One,
which I will call 'inspiration', refers to the situation in which (if
we are speaking, as I shall be, of the influence of a person's ideas)
an idea held by one person, call him 'A', is picked up from A by B
and used by B. The important thing is that B in fact got the idea
from A, rather than discovering it independently or borrowing it
from someone whose chain of title does not go back to A. The
second sense of 'influence', which I will call 'cause' (though 'necessary condition' would be more precise), refers to the situation in
which B would not have used the idea if A had never held it. To
determine influence in this sense a counterfactual inquiry is necessary; one must ask how would the world, and specifically how
would Bentham, have been different had A never existed or been
in a different line of work? B might have been inspired by A in the
sense of having got an idea from him, and yet it might be that if A
had never lived B would have got the same idea from someone
else, who would have discovered or invented it had A never
existed-discovered it later, but before B's time. The longer the
interval between A and B, the likelier it is that someone else would
have thought of the same idea, in which event A could not be said
to have caused B to hold the idea-B would have held it even if A
had never lived.
Inspiration is much more easily determined than causation. It
does not involve speculation about counterfactuals, and can
usually be determined from records or statements by B or his
acquaintances or by the sort of internal evidence (striking similarity inexplicable except on the hypothesis of copying) used in many
copyright cases to determine copying. Notice that causation
entails influence-if the later work did not derive directly or indirectly from the earlier, the earlier could not have caused the
later-although influence does not entail causation, because I am
treating inspiration as a mode of influence, though often it will
have no causal efficacy.
In the case of Bentham, it would be extremely difficult to establish a causal relation to an event, the birth of the law and economics movement, that occurred almost a century and a half after his

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death. But I think he can be shown to be one of the inspirers. That

any rate is the dual thesis that I shall try to defend in this paper.
I may not assume, however, that all readers are familiar with
the law and economics movement. And so before turning directly
to the issue of Bentham's influence, let me describe it briefly.2
That there is a relation between economics and law was, of
course, known (quite apart from Bentham) long before the 1960s.
But the relation was thought limited to the handful of legal fields,
mainly antitrust and public utility (or common carrier) regulation,
that dealt explicitly with competition and monopoly, which as
early as the 1930s were receiving the sustained and sophisticated
attention of leading English and American economists. 3 In retrospect, an economic literature dealing with other fields of law,
notably Robert Hale's work on contract law, which also dates
from the 1930s, can be discerned. But even after the Journal of
Law and Economics commenced publication, the 'law and
economics' movement, if discernible at all, would have been associated primarily with problems of competition and monopoly,
with occasional forays into taxation (Henry Simons) and corporations (Henry Manne), even patents (Arnold Plant). It was not until
1960, when Ronald Coase's article 'The Problem of Social Cost'
was published,4 and at about the same time Guido Calabresi's
first article on torts, that an economic theory of the common law
could be glimpsed. When several years later Gary Becker
published his article 'Crime and Punishment: An Economic
Approach',5 it began to seem that perhaps no field of law could
not be placed under the lens of economics with illuminating
results. And within a few more years papers on the economics of
contract law, civil and criminal procedure, property, consumer
protection, and other areas new to economists had appeared and
the rough shape of the mature field could be glimpsed. Later,
books and articles would extend the economic analysis of law into
such fields as employment, admiralty, intellectual property, family
2 See also 'The Future of Law and Economics: Looking Forward' (1997) 64
University of Chicago Law Review 1129 (round-table discussion); and my textbook-treatise, Economic Analysis of Law (5th edn., Cambridge, Mass., 1998).
3 Competition and monopoly had received the attention of economists since
Adam Smith; hence the qualification 'sustained and sophisticated' in the text.
4 (1960) 3 J. Law and Econ. 1.
5 (1968) 76 J. Political Economy 169-217.

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Richard A. Posner

law, legislation, environmental law, administrative law, conflict of

laws, and judicial behaviour-and this is only a partial list. The
field has developed to the point where the dean of the Yale Law
School, a critic of the field, said recently: '[t]he law and economics
movement was and continues to be an enormous enlivening force
in American legal thought and, I would say, today continues and
remains the single most influential jurisprudential school in this
country,.6
Economic analysis of law as it now exists, not only in the
United States but also in Europe, which has a flourishing law and
economics association, has both positive (that is, descriptive) and
normative aspects. It tries to explain and predict the behaviour of
participants in and persons regulated by the law. It also tries to
improve law by pointing out respects in which existing or
proposed laws have unintended or undesirable consequences,
whether on economic efficiency, or on the distribution of income
and wealth, or on other values.
It is not merely an ivory-towered enterprise, at least in the
United States. There the law and economics movement is understood to have influenced legal reform in a number of important
areas, including antitrust, the regulation of public utilities and
common carriers, environmental regulation, the calculation of
damages in personal injury suits, the regulation of the securities
markets, the federal sentencing guidelines, the law governing
investment by pension funds and other trustees, and even the division of property and calculation of alimony in divorce cases. And
it has also been a significant factor in the deregulation movement
and in free-market ideology generally. Most major and many
minor law schools in the United States have one or two full-time
economists on their faculty; a number of law professors have
Ph.Ds in economics; there are six scholarly journals devoted to
economic analysis of law, with a seventh on the way; the use of
economists as expert witnesses has become conventional in a
range of important fields; judicial opinions refer to economic
concepts and cite economic books and articles; and a number of
federal judges, including a Justice of the Supreme Court (Stephen
Breyer), are alumni of the law and economics movement. As my
6 Remarks of Anthony T. Kronman, 'The Second Driker Forum for
Excellence in the Law', (1995) 42 Wayne Law Review 115, 160.

Bentham and Law and Economics

429

quotation from Dean Kronman suggests, economic analysis of law

is generally considered the most significant development in legal
thought in the United States since legal realism petered out a half
century ago.
Most economic analysis consists of tracing out the consequences of assuming that people are more or less rational in their
social activities. In the case of the activities that interest the law,
these people may be criminals or prosecutors or parties to accidents or taxpayers or tax collectors or striking workers-or law
students. Students treat grades as prices, so that unless the university administration intervenes, unpopular professors, in order to
keep up their enrolments, will sometimes compensate students for
the low perceived value of the course by giving them higher
grades, that is, by raising the price that the professor pays for the
student.
I said that the tracing out of consequences is subtle as well as
simple, and here is an example. A 'spendthrift' clause is a very
common, indeed standard (in the United States at any rate), provision in a trust whereby the trustee is forbidden to payout any of
the money or other property in the trust to the creditors of the
trust's beneficiaries. The law will enforce such a restriction, yet it
has seemed to many students of the law a fraud on creditors; for
the trust beneficiary, assuming that his whole wealth is in the
spendthrift trust, can borrow all he wants, spend what he
borrows, and not be forced to repay the lenders. But if one thinks
about this for a moment, one will be driven to the opposite
conclusion-that, provided the provision preventing creditors
from reaching into the trust is not concealed, a spendthrift trust
limits borrowing by the trust beneficiary, because he cannot offer
security to the lender. And the next step in the analysis is to see
how increasing the rights of debtors in bankruptcy, far from causing an avalanche of reckless borrowing, could reduce the amount
of borrowing, and so the incidence of bankruptcy, by causing
lenders to make smaller loans to risky borrowers. So lenders may
oppose easy bankruptcy, not because they fear there will be more
defaults, but because they fear a reduction in the demand for
loans. To see this, imagine how many, or rather how few, loans
there would be if borrowers had no obligation to repay. Notice
also how creditors can be hurt as badly by excessively stringent as
by excessively lenient bankruptcy rules: if creditors had the legal

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Richard A. Posner

right, as under ancient Roman law, to carve up a defaulting

borrower into as many pieces as there were creditors, most people
would be afraid to borrow. This discussion will help you to understand why in Chicago loan sharks break the legs of defaulting
borrowers but do not kill them.
Much economic analysis of law is, despite the reputation of
economics for being jargonized and mathematized, quite simple,
though the simplicity is deceptive; the simple can be subtle. Most
consists of simply tracing out the consequences of assuming that
people are more or less rational in all the decisions they make,
whether as criminals or prosecutors or parties to accidents or
taxpayers or tax collectors or striking workers. It is true that many
of these decisions are made under conditions of uncertainty. But
economists have devoted a good deal of attention to decision under
uncertainty. An important example of a law-related decision under
uncertainty is deciding how much care to take to avoid an accident.
Assume that the accident will occur with probability P, and that if it
does occur it will impose a cost that I will call L, for loss; and
assume further that eliminating the possibility of such an accident
would impose on the potential injurer a cost that I will call B (for
burden). Then it is easily seen that the cost of avoiding the accident
will be less than the expected accident cost (or benefit of avoiding
the accident) if B is smaller than L discounted (multiplied) by P, or
B<PL, and if this condition is satisfied then the potential injurer can
be said to be negligent if he fails to take the precaution. This is the
negligence formula of Judge Learned Hand, announced in a judicial
opinion in 1945 but not recognized as an economic formula for
determining negligence until many years later. It is a simple formula,
but its elaboration and application to specific doctrines in the law of
torts have generated an immense and illuminating literature.
With this severely truncated sketch of the law and economics
movement as background, I complete my preliminaries and move
at once to the issue of Bentham's influence on the movement,
beginning first with the inspirational aspect of influence. Here the
clearest example, it might seem, would be presented by Gary
Becker's 1968 crime paper,? which has turned out to be a fount of
7 Gary S. Becker, 'Crime and Punishment: An Economic Approach' (1968) 76
Journal of Political Economy 169, reprinted in Ramon Febrero and Pedro S.
Schwartz (eds.), The Essence of Becker (Chicago, Ill., 1995),463.

Bentham and Law and Economics

431

economic writing on crime and its control. Becker's paper

contains several citations to the discussion of the economics of
crime and punishment in Bentham's Introduction to the Principles
of Morals and Legislation. 8 Bentham had made a number of
important economic points in the Introduction: a person commits
a crime only if the pleasure he anticipates from the crime exceeds
the anticipated pain, or in other words only if the expected benefit
exceeds the expected cost; to deter crime, therefore, the punishment must impose sufficient pain that, when added to any other
pain anticipated by the criminal, it will exceed the pleasure that he
anticipates from the crime; punishment greater than this should
not be imposed, because the result would be to create pain (to the
undeterrable criminal) not offset by pleasure (benefits) to the
potential victims of crime;9 the schedule of punishments must be
calibrated in such a way that if the criminal has a choice of crimes,
he commits the least serious; fines are a better method of punishment than imprisonment, because they confer a benefit as well as
impose a detriment; the less likely the criminal is to be caught, the
heavier the punishment must be, to maintain an expected cost
great enough to deter. (If C is the social cost of a crime, P the
probability the criminal will be caught, and S the sentence if he is
caught, then, as a first approximation, C should equal P times S
(C=PS). Hence if C is unchanged and P falls, S must be increased
to maintain the desired equality.)
These points constitute the essential elements of the economic
theory of crime and punishment as revived by Becker. Becker and
his successors added a great deal, but the core is clearly and
comprehensively stated in Bentham's Introduction. Even though
Bentham was a famous economist and the economic character of
his analysis of crime and punishment is unmistakable despite the
slightly archaic vocabulary, and even though Bentham's theory
has influenced the design of the criminal justice system in England
8 (1780, expanded edn. 1789). Becker also cites Sutherland's treatise on criminology, which contains a few references to Bentham, but credits Beccaria with
having 'made the principal contribution of this doctrine [utilitarianism] to penology': Edwin H. Sutherland, Principles of Criminology (5th ed., revised by Donald
R. Cressey, Chicago, Ill., 1955), 52.
9 Bentham recognized the vengeful pleasure that punishment can produce,
and though he thought it normally outweighed by the pain of the person punished,
in principle it should be considered in deciding on the utility-maximizing punishment.

Richard A. Posner

432

and the United States, no economist before Becker, so far as I have

been able to determine, had expounded an economic theory of
crime and crime control. But I have it on good authority-namely
from Becker himself-that when he began thinking about the
economics of crime, he was unaware of Bentham's discussion of it.
He became aware of that discussion while he was working on his
article, but he no longer remembers whether any of the points in
the article were suggested to him by it, although a few of the citations to Bentham in it suggest that they may have been. 10 So this
turns out to be an uncertain case of Bentham's having influenced
by inspiration the economic analysis of law.
Consequently it is an even more doubtful case for arguing that
Bentham was a cause of that analysis. For even if Becker had been
inspired by Bentham, it is possible that if Bentham had written
nothing about crime, or, for that matter, if Bentham had never
been born, some other economist before Becker would have
invented the economic theory of crime in essentially the same form
as Bentham. He was not, after all, the inventor of utilitarianism;
and in retrospect, at least, crime seems a natural field for the
application of utilitarian ideas-in fact, Bentham's predecessor,
Beccaria, an earlier utilitarian, had discussed crime in utilitarian
terms, although much less systematically than Bentham.
Yet if an economic theory of crime was somehow 'in the air' in
the latter part of the eighteenth century, it is remarkable that
almost two centuries passed before another economist picked up
on it. So there is just a chance that if Bentham had never lived, the
economic theory of crime would have had to wait a few more
years to become a part of modern law and economics. But it is a
small chance, since Becker's economic theory of crime appears to
be largely an independent discovery rather than a case of copying.
Bentham did not, so far as I am able to discover (though I will
not pretend to be an expert on Bentham's voluminous and still not
easily accessible corpus of writings), write on other areas of law
from an economic standpoint. The qualification is vital, since he
wrote extensively on other areas of law besides crime, notably
evidence, not to mention his unpublished advocacy of the repeal
of the sodomy laws. But it is only with respect to the criminal law
that he formulated an economic theory. I suspect the reason was
10

See The Essence of Becker, n. 7 above, 511 nn. 40, 42, 36.

Bentham and Law and Economics

433

that he was extremely interested in issues of social and political

governance, and the criminal law is an important part of that
governance. I do not think he realized that tort, contract, and
property law are also important parts of the social fabric. He may
have been blinded to this by his antipathy to the common law,
which he seems to have thought served no function other than to
enrich lawyers. Curiously, though, when he wrote, the criminal
law was largely a body of common law as well.
Just because he confined his economic approach (so far as law
was concerned) to criminal law, it does not follow that his influence on the economic analysis of law is necessarily confined to the
area of crime (where that influence may, in fact, as I have just
suggested, have been slight). I think, and shall now try to show,
that his utilitarian theory may have had an important influence on
the law and economics movement quite apart from any specific
applications of utilitarianism by him to law, and that even his
non-economic writing on law may have influenced the movement.
An initial distinction should be made between utilitarianism as a
description of human behaviour and utilitarianism as an ethical
theory. Bentham is better known for the latter than for the former,
but this may be cause for regret. Bentham, as I said earlier, was not
the first utilitarian. Utilitarian ideas go back to Aristotle, and utilitarianism as a fundamental ethical principle had been clearly enunciated in the eighteenth century, before Bentham wrote, by
Hutcheson, Beccaria, Helvetius, Priestley, Godwin, and othersand, indeed, by Beccaria in virtually the same words as Bentham'the greatest happiness of the greatest number' .11 What sets
Bentham apart, what makes him the real father of utilitarianism, is
the tenacity, even vociferousness, of his insistence on the universality of utility calculations in human decisions. As he put it on the
very first page of the Introduction to the Principles of Morals and
Legislation, '[nlature has placed mankind under the governance of
two sovereign masters, pain and pleasure ... They govern us in all
we do, in all we say, in all we think.' Another name for pain, as I
have said, is cost; and for pleasure, benefit; so Bentham is claiming
11 See H. L. A. Hart, 'Bentham and Beccaria', in H. L. A. Hart, Essays on
Bentham: Studies in Jurisprudence and Political Theory (Oxford, 1982), 40.
Beccaria, however, had apparently got the phrase from Hutcheson: J. B.
Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy
(Cambridge, 1998),420.

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Richard A. Posner

that all people, all the time, in all their activities, base their action
(and words, and thoughts) on co.st-benefit analysis. Bentham spent
much of his life reiterating, elaborating, and instantiating this claim.
This claim could be thought the foundation of the economics of
non-market behaviour, which is to say the investigation by economists of behaviour that occurs other than in explicit markets. A
good deal of the economic analysis of law is an application of those
economics, because law is primarily a non-market institution and
one that regulates non-market as well as market behaviour-the
behaviour of criminals, prosecutors, accident victims, divorcing
couples, testators, polluters, religious believers, and so forth, as well
as businessmen, workers, and consumers engaged in their conventional activities (an important qualification, since businessmen, for
example, can be polluters or criminals as well as buyers and sellers).
Without economics of non-market behaviour, the scope of
economic analysis of law would be where it was in the 1950s,
limited to the analysis of the legal regulation of explicit markets.
Bentham may be taken to have invented non-market economics.
His invention, however, lay fallow for almost as long as his theory
of crime and punishment. The explanation belongs to the sociology
of science. That is, it has to do with why scientists are interested in
one set of problems rather than another, and specifically with why
nineteenth-century economists, and economists in the first half of the
twentieth-century as well, took virtually no professional interest in
such social phenomena as crime, litigation, the household, discrimination, accidents, and rules of law. (An important exception is the
interest taken by A. C. Pigou and Frank Knight in externalities, of
which accidents to strangers is a form and one brushed by Pigou.)
Maybe they felt they had their hands full trying to understand the
market economy, or maybe they felt they lacked good tools, and a
metric comparable to money, for studying non-market phenomena;
there are economists who believe this to this day. At all events, until
Gary Becker's Ph.D dissertation in the 1950s, the subject of which
was the economics of racial discrimination, the promise of
Bentham's claim for the universality of the economic model of
human behaviour had been essentially ignored. 12
12 For a striking example, see T. W. Hutchison, 'Bentham as an Economist,'
(1956) 66 Economic Journal 288, which completely ignores, as obviously not
'economics', Bentham's theory of crime and his belief that people are rational
maximizers in all areas of life.

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Again I have it from Becker that he was not consciously following in Bentham's footsteps. He identified Bentham with the
normative thesis that there is a moral duty to maximize the greatest happiness of the greatest number rather than with the positive
thesis that people act so as to maximize their own utility. Utility
maximization had, however, long been a fundamental principle of
economics, and though its origins in Bentham had largely been
forgotten (probably because it did not become useful to economists until some fifty years after Bentham's death 13 ), he can claim
credit for having planted the idea. 14
But before Becker, economists generally assumed, though
usually implicitly rather than explicitly, that people maximized
utility only in economic markets. The handful of economists who
claimed in the spirit of Bentham that utility maximization was a
universal feature of human psychology-of whom the outstanding
example is Wicksteed-did not cite Bentham for this proposition,15 and, more important, did very little with his insight into
the possibility of applying economics to non-market behaviour. 16
Becker's manifesto on behalf of non-market economics does
mention Bentham, along with Adam Smith and Karl Marx, as
precursors,17 but criticizes Bentham for having been primarily a
reformer and having failed to 'develop a theory of actual human

13 George J. Stigler, 'The Adoption of the Marginal Utility Theory', in

G. J. Stigler, The Economist as Preacher and Other Essays (Oxford, 1982), 72,
76.
14 Ibid., 78.
15 See Philip H. Wicksteed, The Common Sense of Political Economy (Lionel
Robbins (ed.), (first published in 1910), London, 1935), i, ch. 1. As Robbins points
out in his introduction, Wicksteed 'insist[edl that there can be no logical dividing
line between the operations of the market and other forms or rational action' (p.
xxii). Yet Robbins does not attribute this idea of Wicksteed's to Bentham; nor does
he cite Bentham in the book in which he expounded his own, equally broad
conception of economics: Lord Robbins, An Essay on the Nature and Significance
of Economic Science (3rd edn., London, 1984). Not much significance can be
assigned to Wicksteed's failure to cite Bentham, however, as he cited hardly
anyone, except Jevons once.
16 Although ch. 1 of The Common Sense of Political Economy contains a
lengthy discussion of household production.
17 See Gary S. Becker, The Economic Approach to Human Behavior, ch. 1
(1976), reprinted in The Essence of Becker, n. 7 above, at 7-8, 15, n. 13. He also
cites Robbins's broad definition of economics, at 14 n. 3 (citing The Nature and
Significance of Economic Science, 16), but notes that Robbins failed to develop its
implications. (Ibid., at 14 n. 5.)

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Richard A. Posner

behavior with many testable implications'J8 And here we can see

another reason why Bentham's contributions to economics have
frequently been overlooked. He does not have a clear identity as
an economist. 19 His importance as a philosopher and reformer has
tended to overshadow his economic work. Of course, Adam Smith
was also a famous philosopher as well as an economist, but Smith
wrote a treatise on economics, and Bentham did not.
Still, if the idea of utility maximization as a fundamental
feature (whatever its precise scope) of human psychology can be
traced to Bentham, as I believe it can be, then the economics of
non-market behaviour-the branch of economics that takes this
idea most seriously-can be said to have been influenced by
Bentham. And, to repeat, without the economics of non-market
behaviour, the scope of the economic analysis of law would be
greatly contracted. But again this is influence in the sense of inspiration. It is unlikely that if Bentham had never lived, utility maximization would never have been discovered or applied to
non-market behaviour, for remember that we are talking about a
lag of almost two centuries between the Introduction and Becker,
and that the concept of utility and the philosophy of utilitarianism
both predate Bentham.
Two more routes of influence between Bentham and the law
and economics movement remain to be traced. The first goes
through welfare economics and the second through legal realism.
The idea not that maximizing utility is what people in fact do but
that it is what people, and governments, should do-that utility
somehow aggregated across persons (in some versions, across all
sentient beings) should be the guide to moral and legal duty-is
the foundation of economics viewed as a normative discipline.
Utilitarianism, although it continues to have distinguished defenders among economists, such as John Harsanyi, has taken hard
knocks lately, and not only from philosophers. Some economic
analysts of law, myself included, believe that utilitarianism has a
number of serious weaknesses, and that a better goal for law
economically conceived is the maximization of wealth defined as
18 At 8. For a similar criticism of Bentham for having over-emphasized reform
at the expense of positive analysis, see Richard A. Posner, The Economics of
Justice (Cambridge, Mass., 1981), 33-41. I do, however, note there the indebtedness of the law and economics movement to Bentham (see 41-2).
19 N. 10 above.

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the sum of consumer and producer surplus in all market and nonmarket activities. But these are details. The important point is that
Bentham can be considered, along with Smith, who was, however,
more ambivalent about the ethical significance of economics, the
founder of normative economics. This is true I think even though
so influential an early welfare economist as Pigou did not cite
Bentham and used the term 'total welfare' rather than utility,20
citing Sidgwick,21 whose utilitarianism can, however, be traced to
Bentham. And because the law is inveterately normative-because
law professors, judges, and practitioners are all looking for
grounds for evaluating actions and proposing reforms-the fact
that economics have a normative dimension was of great importance in the reception of economics into legal thinking. But once
again while the inspirational influence of Bentham seems undeniable, the causal influence is altogether less clear. Even if Bentham
had not lived, there is a substantial likelihood that a normative
version of economics oriented toward utility maximization would
have emerged in the almost century and a half between his death
and the birth of the law and economics movement.
Last to be considered is the influence of Bentham on law and
economics via legal realism. Legal realism is an instantiation of
one side of an age-old jurisprudential debate. Bentham is an influential earlier instantiation; but the debate is fully discernible as
early as Plato's dialogue Gorgias, where Socrates equates the
rhetoricians whom today we would call lawyers with the lowest
form of sophist and demagogue. Much later, in the reign of James
I in the seventeenth century, the debate would be carried on
between Chief Justice Coke and James, the former extolling the
'artificial reason of the law', or what today would be called legal
reasoning, and James wondering why the law should be the
preserve of a guild of obscuranist quibblers. Toward the end of
the eighteenth century the debate resumed, with Blackstone taking
Coke's place and Bentham James's. Although Blackstone was not
the shameless apologist for the professional status quo that
Bentham depicted him as in A Fragment on Government (1776),
he did praise the common law and emphasize the importance of
legal rights. Bentham, in contrast, thought the common law a
20
21

A. C. Pigou, The Economics of Welfare (4th edn. London, 1938), 12.

Ibid., 18,24.

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Richard A. Posner

hopeless muddle, good only for keeping lawyers in fees, and he

thought rights talk nonsensical. But he did not just say these
things; he tried to reconstruct the law, proposing for example that
the common law be replaced by a simple, readily understandable
code that would largely dispense with the need for lawyers. He
wanted law to be rebuilt on a scientific basis shaped by the
'Greatest Happiness' principle, and the traditions and usages of
traditional law discarded.
He was the great debunker of law, and his numerous followers
in England, and fewer but still influential followers in America,22
including the designer of the first great American law code, David
Dudley Field, who drafted a code of procedure for New York
State, kept the Benthamite flame of legal reform lit. Without
Benthamite legal scepticism, it is hard to imagine Oliver Wendell
Holmes writing what turned out to be the manifesto of legal realism-his 1897 essay 'The Path of the Law'. And without Holmes's
involuntary sponsorship it is a little hard to imagine legal realism
obtaining quite the hold over the legal imagination that it did in
the 1930s-complete with a zeal for codification that reached its
zenith in the promulgation of the Uniform Commercial Code. And
without legal realism it is hard to imagine Guido Calabresi
embarking on his project of rethinking the law of torts in light of
economics. His first article on torts thanks Fleming James and
Fowler Harper, two leading legal realist torts scholars, and though
there is an element of piety toward one's elders in this reference, it
is also apparent that Calabresi, a product of the Yale Law School,
the bastion of legal realism and still identified with it when
Calabresi started teaching there in the late 1950s, was saturated
with the realist spirit.
The path is indirect, even circuitous, and the issue of causal
influence is once again indeterminate. And yet it does seem to lead
without breaks from Bentham to Calabresi, who was, of course,
one of the principal founders of the modern law and economics
movement.
To summarize, I do not think it is possible to show that had
Bentham not lived the law and economics movement would have
been delayed or different. But I think it is highly likely that
22 See, e.g., Jesse S. Reeves, 'Jeremy Bentham and American Jurisprudence'
(Indiana State Bar Association, 11-12 July 1906), 23-6.

Bentham and Law and Economics

439

Bentham had an important, though indirect, influence on the

movement in two distinct ways. First, he pointed the way toward
using economic thinking normatively, and this was very important
to the movement. Secondly, he is an ancestor of legal realism, and
realism, particularly through Calabresi, was important in the
creation of the movement. On both counts, Bentham can rightly
be described as an important influence on law and economics.

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