Philip Schofield

Utility and Democracy

The earliest reference to sinister interest which has been traced, with the exception of that in the poor law writings of November 1797, appears in a passage dated 18 February 1804, where Bentham contrasted the prohibition usually laid on extraneous witnesses from giving false evidence with the permission given to litigants or parties to do so. The reason for this apparent contradiction was not difficult to discover, noted Bentham, when it was considered ‘that men of law are but men—that their interest is on many occasions in direct opposition to that of the community at large, and that this sinister interest is supported by powers adequate to the accomplishment of all its purposes.’ The point was that the lawyer profited from the expense which arose from the prosecution of an extraneous witness for making false statements, whereas in the instance of the party it was to the advantage of the lawyer that false statements be permitted, since ‘every assertion the object or effect of which may be to protract the suit, and thereby add to the number of steps that require on both sides to be taken in it, is a source of profit to the men of law on both sides.' Whether the assertion was true or false was irrelevant, since the benefit to the lawyers would remain the same, or if there were any difference, 'the effect of falshood will be rather to encrease than diminish the advantage.' Wherever a distinct legal profession had been established, its members had a common interest:

In some points this particular interest has coincided with the general interest of the community at large: and thus far, according to the psychological and pathological laws of human nature, the dictates of justice would be pursued; at least according to the measure of men's intelligence. In other points the particular has acted in opposition to the general interest: and thus far as to these points the general interest would of course be sacrificed to the particular, and the result would be an established system of regular injustice.

Where falshood on the part of the suitor was a source of profit to the man of law, falshood of course, so far as decency would permitt, and pretences could be found, would be rewarded and encouraged. Men's morals have been corrupted that their purses might be drained.

Bentham's claim that, where his interest was opposed to that of the people in general, the lawyer would strive to sacrifice the latter to the former, rested on 'the psychological and pathological laws of human nature.' In An Introduction to the Principles of Morals and Legislation he had, of course, emphasized the connection between interest, motivation, and action: he now applied these insights to the situation of the lawyer. He began in general terms, contrasting the proper end of legislation, the happiness of the whole community, with the sinister end, the happiness of some particular part of the community whose happiness could only be promoted at the expense of the greater happiness of the rest:

In every line of legislation, the true, the proper end—the only true, the only proper end— will at this time of day be generally—not to say universally—acknowledged to be the happiness—the well-being—the welfare—the prosperity—the interest—all these words mean the same thing, of the community: of the aggregate body of human beings under consideration.

In every line of legislation, the interest and so forth of any minor assemblage of individuals forming part of that aggregate will, if put in opposition to the general interest, be in alike manner recognized as being a false—an improper—a sinister end. The pursuit of the sinister end will, in so far as the result is considered as sure to be or likely to be the loss of a greater quantity of the happiness of the whole body taken together than is gained to the part, will accordingly be recognized as being an improper, a sinister pursuit: and the accomplishment of such sinister end, an undesirable result: undesirable, to wit to any person, who, considering himself on the occasion and for the purpose, as the representative, or guardian, or agent, or advocate of the whole community considers for that same purpose and on that same occasion its interests as coinciding with his own.

In one sense, continued Bentham, it was a truism that every man, on every occasion, pursued his own interest. His conduct would be governed by the preponderant motive or motives which operated on him. In another sense, however, it was not true, for a man might act against what was his interest, either from a lack of understanding as to what his interest required, or from considerations of generosity, sympathy, and antipathy. In contrast, it was not in any sense true that a man ought on every occasion to pursue his own interest. But what was true, in other words, in accordance with the principle of utility, was that every man on every occasion ought to pursue the line of conduct most conducive to the aggregate interest of the community. In practice he would do so only if motivated by ‘actually predominant interests, rightly or wrongly understood.' It was pointless merely informing a man that he had a duty to act in a particular way if his interest made it certain he would act in some other way. 'The interest of this or that body of men is adverse in certain points to the general interest of the community.—What is the application here to be made of the terms ought and ought not? It ought (shall we say) to pursue that sinister interest? to speak thus would be to say what is at once false and nugatory: that it ought not?—For this time not false indeed, but as nugatory as before.' The situation of the legislator had to be distinguished from that of other men, in that it was his duty to protect the interest of the whole community from the sinister interests of particular individuals and groups. Furthermore, a particular individual might be disposed by a sense of moral obligation, in other words by consideration for the public interest, 'to regard the sinister private interest with the same jealous eye.' A group of men, however, insofar as they possessed a particular and sinister interest, would pursue it with more determination than an individual would pursue his interest, whether legitimate or sinister. The individual was much more effectively restrained by the sense of shame imposed by the force of the moral sanction, even when not restrained by the fear of legal punishment. The members of a group paid more attention to the opinion of the other members of the group, which operated in support of their sinister interest, than to that of 'the great public,' which operated in support of the general interest.

Having shown that sinister interest operated most strongly on the members of a group, Bentham turned to the legal profession and its role in the creation of the law of procedure. Lawyers were no different from other groups of men in the state in possessing 'a partial, a sinister interest adverse to that of the community,' but, in addition, they possessed the requisite knowledge and power to accomplish their sinister designs, in other words to promote effectively their own interest to the detriment of the community as a whole. The sinister interest of lawyers was the most important factor in producing the abuses which existed in the system of procedure:

And so sufficient will this single cause be found to be to the task of accounting for the effect, that the just cause of wonder will be not so much how it should have happened that there should be so much that will be found amiss—but how it should have happened that any thing should have been right. To trust the interest of suitors, that is of all mankind in their occasional capacity of suitors, to the management of the man of law, would have been exactly the same sort of policy, had there been any choice, as the committing of the sheep to the guardianship of the wolf: or rather to a sort of animal who under the outer covering of the faithful defender of the fold, has under the change of circumstances found it necessary to change his nature from the open voracity of the wolf to the more subtle and disguised rapacity of the fox.

All men desired money, reputation, and ease. Lawyers in all civilized countries had enjoyed considerable success in securing these advantages, but nowhere more so than in England:

England, if with any such propriety, it may be stiled a paradise for men, may be stiled a very heaven for men of law. What of old time priests were in Egypt (not to speak of so many other countries) lawyers will be found to be—to be even to this supposed enlightened hour—to England. What priestcraft with its hieroglyphics was in Egypt, lawyercraft with its fictions and technicalities will be seen to be in England: nor were devotees more unmercifully ridden by the long-robed cast in Egypt, than they will be found to be in England by men of law.

Had the benefit reaped by the lawyers been no greater than the detriment suffered by suitors, there would, of course, not have been any grievance, but the fact was that the detriment to the latter was 'deplorably vast' compared with the benefit to the former.

Whether considered by 'the light of reason' or from 'the page of history,' Bentham thought that no one should be surprised by the state of the law of procedure:

The interests of the wolf are not more plainly and diametrically opposite to those of the sheep, than those of the professional lawyer have every where been to those of the suitor: and to expect that at the time when any of the several established plans of inquiry in the way of judicial procedure were instituted and brought to their present form, the interest of the suitors should have been the real object is exactly such an expectation as would be formed were any one to suppose that the security of the sheep would be the first object in a line of march prescribed by wolves.

The system of procedure would have been very different had it been instituted by a legislator who both understood how justice might be attained, and was uninfluenced by sinister interest. However, no such legislator had existed, and the system had been the product of judges who, deriving their profits from the suitors, and having the suitors at their mercy, took advantage of the situation in the way that any other class of men would naturally have taken advantage of it: 'In a word, the sheep having been every where without a shepherd, their lot has been every where determined upon by the wolves.'

The interest of lawyers was, in a variety of ways, opposed to that of the people at large in their capacity of suitors. First, in relation to the cost of legal proceedings, the lawyer had a clear interest in the fees and other costs that went fully and directly into his own pocket, though his interest in the costs which he did not receive was more equivocal. In one respect he was a loser, in that the more a suitor was made to pay to other people, the less he could afford to pay to the lawyer. In another respect he benefited, in that '[t]he general principle and practice of imposing upon suitors factitious and unnecessary expence is sanctioned by it.' By taxes upon law proceedings the lawyer lost some clients, namely those unable to pay the tax and thereby denied access to justice, but in this loss of emolument he saw ‘a premium by which he ensures the continuance of the rest': it was the price of an alliance with 'the man of finance,' whose political position gave him the power to prevent reform. Second, while delay did not in itself serve the interest of the lawyer, in that the longer it took for a given quantity of emolument to be extracted the less its value, it nevertheless gave rise to 'incidents,' each of which produced expense for the suitor and profit for the lawyer. Third, the ease of the lawyer was promoted by the institution of law terms and the corresponding vacations, which freed him from labour for large parts of the year, but without diminishing his income. This 'time of comfort and amusement' enjoyed by the lawyer produced injustice either to one party or to the other, or to both: 'While the time of the man of law is filled with amusement, the time of the injured suitor is filled with bitterness.'

There were, however, areas in which the interest of the lawyer coincided to some degree with that of the community in general. For instance, the interest of the lawyer and suitor coincided in relation to reducing the cost of law proceedings where the cost of a cause was so expensive that it was not instigated, thus denying the lawyer the profit he would have reaped had it been instigated. The lawyer and the suitor also shared an interest in avoiding injustice in the form of an apparently wrong decision. Having said that, while the suitor was interested in the reality of justice, the lawyer was interested in the appearance, and only in the reality insofar as it was necessary to produce the appearance. Every category of lawyer, whether professional or official, and if official, whether a judge or a subordinate officer of the court, possessed a similar interest in relation to the appearance of justice. The judge had a personal interest not in justice, but in the reputation of justice. Indeed, providing he enjoyed the reputation of justice, it was 'a matter of indifference' to him whether his decisions were just or unjust. Yet his reputation would be affected by any actual injustice he committed to the extent of the publicity given to the proceedings of his court. Furthermore, where the parties had the option of taking the same cause to more than one court (for instance to the different Common Law courts in Westminster Hall), the income of the judge would depend to some degree upon his reputation. The judge, therefore, had an interest in maintaining a reputation for dispensing justice, and would compete with the judges of the other courts in this respect. As far as the subordinate officials were concerned, the abstract justice or injustice of the judge's decisions was a matter of indifference, but insofar as their income depended upon the quantity of business, and insofar as the general reputation of the court depended upon that of this or that subordinate office, the official would have an interest similar to that of the judge.