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Chapter 3 - The Great Divide

Bentham and Paley

from Part I - The Emergence of the Rule-Consequentialist Paradox

Published online by Cambridge University Press:  29 July 2021

Alex Tuckness
Iowa State University


Chapter 3 examines the decisive break between religious and secular utilitarianism in the thought of William Paley and Jeremy Bentham. Paley, the better known and more widely respected thinker of the two at the time, is in many ways the paradigm case of the theological version of morality as legislation. Paley, like Locke, used human legislative deliberation as a paradigm of rationality for thinking about the content of the divine law. Bentham’s project must be understood in part as motivated by a desire to reject the theological assumptions of theories like Paley’s that stood in the way of radical reform. It also encouraged a reframing of moral expression as a kind of legislative act. Bentham saw reputational sanctions as one substitute for religious motives for moral action, but this also required a perspectival shift towards a legislative approach when making moral statements.

Morality as Legislation
Rules and Consequences
, pp. 83 - 100
Publisher: Cambridge University Press
Print publication year: 2021

The authors surveyed in the previous chapters had set all the basic elements in place for the great division between William Paley and Jeremy Bentham over whether to retain God as legislator in consequentialist ethical systems. Hume had provided a plausible psychological account of how a system based on rules of justice could arise without the need for people to be conscious of a divine legislator. If one set aside claims about the existence of God there were still questions about why we are obligated to act morally and whether we have sufficient psychological motivation to act morally when doing so is against our interests. While these questions have been discussed above and by others, there was also an explicit awareness that act-by-act consequentialism could lead to morally shocking and troubling conclusions. The influential Joseph Butler, as we have seen, had made the argument that any wicked act, if benefiting the common good, could in principle be morally right given such a framework (Reference O’FlahertyO’Flaherty 2019, 87). This third concern is of primary interest because it allows us to see a way in which the alternative strategies of Paley and Bentham preview the later debates between act- and rule-utilitarians.

Paley sought to promote a utilitarian outlook by presenting a rule-based theory that was sufficiently similar to prevailing beliefs to be taken seriously, an endeavor that was largely successful. His rule-based approach avoided what were taken by most people to be decisive counterexamples where act-by-act utilitarianism yielded immoral results. The twentieth-century rule-utilitarians would make the same move, but with their arguments transposed into a secular key. Bentham, by contrast, saw that the counterfactual use of the legislative point of view made little sense in a secular theory and was much more committed to secularism than to arriving at moral conclusions that his contemporaries would find palatable. Rather than deny that act-by-act utilitarianism would lead to those troubling conclusions or explicitly draw attention to them, Bentham strategically shifted his attention away from the counterfactual contexts where we are not legislating and focused his attention on cases where our contexts were plausibly legislative. In these contexts, Bentham could deploy a secular legislative point of view without paradox and without drawing attention to the counterintuitive conclusions. This chapter will explore Paley and Bentham’s conflicting strategies that preview twentieth-century debates while foregrounding the theological dimensions that were largely absent from those later debates.

William Paley

While Jeremy Bentham is far more famous now, William Paley’s version of consequentialism received a much warmer reception in the closing years of the eighteenth century. William Whewell, in his Lectures on the History of Moral Philosophy in England, wrote of Paley’s book, The Principles of Moral and Political Philosophy (Reference PaleyPaley 1785), that “It was very favorably received by the public, and was almost immediately adopted into the course of teaching in this University [Cambridge]” (Reference WhewellWhewell 1852, 165). Paley’s book continued to be the standard text on morals and politics at Cambridge for more than two decades. Paley was also a prominent proponent of natural religion, having authored a book titled Natural Theology that explored what could be known about God by reason alone (Paley Reference Paley, Eddy and Knight1802). John Stuart Mill (CW, 10:53–7) thought that much of Paley’s appeal was due to the fact that his version of utilitarianism was more congenial to the political and religious status quo. Bentham’s radicalism was absent.

Paley is interesting in that he is so like Bentham in some ways and yet so unlike him in others. Like Bentham, he argued that the good is defined in terms of consequences. His theory of human motivation, like Bentham’s, claimed that we always act for our perceived self-interest. Like Bentham, he was skeptical, or at least noncommittal, about whether human beings had an innate moral sense. Like Bentham, he thought that rather than consulting our moral sense we needed to calculate the expected consequences of different types of actions. The principles of morality that most people accept are understood as a summation of principles that society has found beneficial and therefore affirmed. Our focus here is on his emphasis of a rule-based approach to consequences based on the ideas that we are obligated to obey God and that God governs the world through general rules that aim at happiness.

Early on, Paley made clear the central role that God plays in his argument. “Virtue is ‘the doing good to mankind, in obedience to the will of God, and for the sake of everlasting happiness’” (Paley, 25). Here we see a utilitarian criterion of right as “doing good” and a self-interested conception of human motivation (our future rewards in heaven motivate our virtuous action). In between is his claim that virtue is “obedience to the will of God,” and this is the principal source of his divergence from Bentham. The disagreement is not primarily about motivation. Paley’s concept of obligation, like Bentham’s, is primarily about our response to positive and negative incentives. For both Paley and Bentham, I can be obligated by a robber’s threat as much as by a just law. Rather, the difference between Paley and Bentham stems from God’s use of general rules.

Paley argued that the Bible is incomplete in that it does not answer all our moral questions. Moreover, it does not give new rules, but gives better sanctions and certainty to old ones in that it reaffirms what reason and conscience reveal to us (Paley, 5). The word “rules” is important. Paley assumed that whether through reason or revelation, God reveals his will by general rules. “The method of coming at the will of God, concerning any action, by the light of nature, is to inquire into ‘the tendency of the action to promote or diminish the general happiness’” (Paley, 39). By “tendency” Paley did not mean the probable effects of a particular action; he meant the effects of a whole class of actions that are permitted, required, or forbidden by a general rule. Once we discover which rules lead to beneficial outcomes, we know God’s will. He claimed that “what promotes the general happiness, is required by the will of God” (Paley, 33).

That God rules the world through general rules is crucial to his argument. He stated that while the benefits of general rules are well known in human government, there is some disagreement about whether God also governs by general rules. His answer is “that general rules are necessary to every moral government” (Paley, 44) including that of God. Without general rules, those governed cannot know what is expected of them and rewards and punishments cannot serve their intended purpose of modifying our conduct. There are several different ways we might think about “general tendencies.” First, we might note that an action, in addition to its immediate effects, may also affect a person’s character. When considering the temptation to gain attention from a fairly harmless white lie, a person should reflect on how the habit of truthfulness has been valuable and how a new habit of lying might lead to trouble (Paley, 28–9; see also 109). This is a form of argument that John Stuart Mill would use later (RBP, 10:7–8). Second, we might think about how other people’s actions might be influenced by our own action. A full accounting of the consequences of a particular act should include how others will view us if they discover we have committed it, whether they will be likely to imitate the behavior, and so on. Neither of these arguments require recourse to a counterfactual legislative point of view. They only require a more thorough examination of the likely future effects of a particular act.

The third form of “tendency,” and the one that is our concern, is explained in the following example. In many cases, a person may think that an action that should not be performed if it were to be publicly known may be performed if the action can be kept secret. One might think that people who plan their own suicides so that it will look like an accident can set aside the objection that they will encourage others to commit suicide or that their families will be harmed by knowing that they died by suicide rather than accidentally. Paley replies that “those who reason in this manner do not observe, that they are setting up a general rule, of all others the least to be endured; namely, that secrecy, whenever secrecy is practicable, will justify any action” (Paley, 45). Notice that the person in question is no longer considering the direct and indirect consequences of a particular action. Instead, the person is contemplating whether a generally known rule would be beneficial. If the only things that mattered were the actual consequences of the act, then secrecy, by changing the consequences, could change the moral permissibility of the act. Paley denied this.

A crucial point is whether one must follow the rule even when it seems like breaking the rule would produce better consequences. Paley did occasionally admit that the benefits of breaking a rule might sometimes outweigh the costs. He considered the principle “let us not violate a general rule, for the sake of any particular good consequence we may expect.” His comment on it was that it “is for the most part a salutary caution, the advantage seldom compensating for the violation of the rule” (Paley, 49). His qualification “for the most part” gives the impression that this is not an absolute principle. There are several things Paley might have meant here. He might have meant that, as in act-utilitarianism, rules are only a heuristic shortcut and can be violated whenever one is sufficiently confident one can produce better consequences. This would contradict his whole framework and the way he deploys his principle in the cases discussed elsewhere. A second interpretation is that we have to compare the good produced by breaking the rule not with the good of following the rule in this particular case, but with all the good produced by the rule in aggregate. A third interpretation is that Paley was envisioning cases where a rule that includes an exception produces better results than one without an exception and so some rules should have escape clauses built into them.

The third interpretation is closest to Paley’s original meaning. The clearest example of Paley’s endorsement of exceptions is in the area of international law. He followed Hume in finding international agreements less binding than normal promises. In Hume’s example, the obligation to keep our promises is a function of the benefits of that practice (Hume E, 2.4, 99–103; Hume T, 3.2.11, 567–9). Since nations are more self-sufficient than individuals, they have less to lose by breaking faith with other nations than individuals do by breaking faith with other individuals. Moreover, the stakes may be much higher and nations may have far more to lose by keeping an unfavorable agreement. Paley made a similar point, arguing that a nation might break a particularly burdensome treaty (Paley, 457–8). This seems to be closer to interpretation three than two. In Hume’s example, a prince is not likely to think that all treaties in the world will become void if he breaks a burdensome one, which is what would happen if violation of the particular instance were compared with the value of the entire practice. Instead, what both Hume and Paley seem to have had in mind is a known, tacit exception that is part of the rule. When countries enter into treaties with each other, they know the other party is likely to back out if it becomes too onerous and the parties account for this in making their agreements. This way of framing it allowed Paley to think of the exceptions as a kind of generalizable, universally understood rule.

A crucial feature of the legislative point of view is imagining morality as a code highly analogous to a legal code such that one must consider effectiveness of sanctions, fallibility and bias in enforcement, likelihood of popular acceptance, and so on. These features of Paley’s consequentialism were fully articulated in the late eighteenth century. In what follows, we will examine seven different examples of this sort of argument in Paley. These examples both illustrate how much he relied upon counterfactual use of the legislative metaphor and also show how, by using this framework, he was able to defend positions that made his theory attractive given the prevailing moral opinions of his time. Some of those judgments are much less widely shared today, so the claim is not that present readers will agree that in each case Paley’s views lead to morally superior conclusions than an act-by-act approach would have. Instead, it is to suggest a parallel: although various moral opinions changed from the eighteenth century to the twentieth century, in each century the legislative approach would have more closely aligned with people’s considered moral judgments. Here we explore the eighteenth-century examples and in Chapter 5 we will look at the twentieth-century version of this same strategy.

First, Paley agreed that, as a matter of moral right, the poor sometimes have a just claim on some of the property of the rich. He denied, however, that they should be able to take property by force because a general rule allowing them to do so would be misapplied and resisted (Paley, 54). On the other hand, in cases of truly dire necessity, he does think the poor can take property without permission so long as they aim to make restitution in due course (Paley, 61). In the case of a typical beggar, allowing him to take alms by force would, as a general practice, cause too many problems. Genuine life and death cases are rarer and we gain more by allowing an exception. Paley’s position here is in line with many of his predecessors who also thought that extreme need could override property rights, but he frames his position in such a way as to avoid radically undermining the institution of private property. By denying the poor the right to take property by force and by requiring restitution, he assigns a high priority to protecting the system of rules that constitute private property.

A second example comes from divorce laws. Given the fact that there are cases where the law might prevent a divorce that both parties believe would make them better off, Paley pursued two lines of argument. First, he argued that some causes for divorce are such that a general rule permitting them is advisable. He gave examples such as adultery, desertion, “outrageous cruelty,” and insanity. He rejected as causes dislike, coldness, severity, peevishness, and jealousy. His reason was “not that these reasons are trivial, but because such objections may always be alleged, and are impossible by testimony to be ascertained; so that to allow implicit credit to them, and to dissolve marriages whenever either party thought fit to pretend them, would lead in its effect to all the licentiousness of arbitrary divorces” (Paley, 189). This would be uninteresting if he were talking about actual divorce legislation, but the paragraph begins by making clear that what he was addressing was whether “the law of nature admits of an exception in favour of the injured party” in cases of divorce. The difficulties of differentiating true from false claims impact both how the law of nature and civil laws are understood. His second line of argument takes up the objection that in cases where both parties want a divorce it must be in their best interest to allow it. Again, he reverted to the framework of a legal code and stipulated that the divorcing couple must be told that “the same permission, as a general rule, would produce libertinism, dissension, and misery, amongst thousands, who are now virtuous, and quiet, and happy, in their condition” (Paley, 190). Even so, it is wrong to assume that Paley always accepted the status quo without revision. For his day, this position still represents a liberalization of divorce laws. Foreseeing the opposition this would likely create, the rule-based approach provides him with a strong response to the critic who says that a utilitarian must approve of divorce under any circumstances where the affected parties would be happier.

A third example addresses the worry that an obligation to promote the greatest good would be overwhelming. Paley, discussing the special obligations of parents to their own children, said that

the good order and happiness of the world are better upholden whilst each man applies himself to his own concerns and the care of his own family, to which he is present, than if every man, from an excess of mistaken generosity, should leave his own business, to undertake his neighbour’s, which he must always manage with less knowledge, conveniency, and success.

(Paley, 197)

Paley’s logic is that we are more effective at promoting happiness where we have more knowledge and that we have much more knowledge about what will benefit those close to us than we do for strangers. This justifies parents focusing on the well-being of their own children. Such a rule produces more happiness than if all parents regarded all children as equally deserving of their assistance. Though Paley did not say so explicitly in the passage, he likely took as given that the natural concern of parents for their children is part of the calculation of the best rule. His goal was to put it within proper boundaries so that it is not excessive. This is one example that closely parallels later debates. A persistent worry about utilitarianism has been that its strong claims of impartiality would be unacceptable and burdensome given the normal tendency to show special concern for one’s family and friends. Most utilitarians employ some sort of indirect strategy to avoid this counterintuitive conclusion. Paley’s rule-based strategy provided a very straightforward way to do this.

A fourth example relates to self-defense. Some argue that self-defense can be used to justify killing whenever any of our rights are threatened, no matter how insignificant the right. Paley instead argued that if we think about general rules that would have better and worse consequences, lethal force should only be permissible in the cases of attempted rape or attempted murder. Even here, if one can escape harm some other way, one should do so (Paley, 217–8). Paley weighed the harm inflicted by the attacks against the harm done by the responses. His conclusion is more restrictive than Locke’s, given that Locke allowed lethal force in cases of attempted robbery. Here I think it is fair to characterize Paley’s position as reformist without being radical. He did not have to say that in each case one may use whatever level of force is utility-maximizing in the particular case.

A fifth example is another argument related to suicide. If the goal is human happiness, it would seem that there are at least some cases where a person’s estimate that his remaining life will be unhappy or painful would justify suicide. Paley argued that we would reject a rule authorizing suicide in such cases because people who are “melancholy” wrongly calculate the consequences of suicide (Paley, 225–6). Put in modern terms, people with clinical depression are not good estimators of their likely future happiness. Paley further noted that added worry by third parties about whether others will commit suicide would be an additional harm incurred due to the rule (Paley, 227). Paley relied on the assumption that any rule will be publicly promulgated and that we will worry that people, knowing suicide is permitted, will make use of the permission. Given prevailing opposition to suicide in Paley’s day, an act-by-act application of utility to this question would have been a major problem for his theory and the rule-based account provided Paley with a way to justify a suicide prohibition that would otherwise be rejected.

Paley’s general principle for evaluating rules was that “uniformity is of more importance than equity, in proportion as a general uncertainty would be a greater evil than particular injustice” (Paley, 362). A sixth example shows that in some cases uncertainty is worth the costs. He considered the question of whether persons may take up arms against a bad government. He allowed them to do so if they think it expedient based on the overall costs and benefits that revolt will likely bring. To those who objected that it is too dangerous to allow individual persons to make such a judgment, Paley responded that “The danger of error and abuse is no objection to the rule of expediency, because every other rule is liable to the same or greater” (Paley, 299). Here Paley was likely following Locke who thought that the alternative of letting the government judge whether the government should continue in power was unacceptable and that the threat of revolution might deter some bad behavior by government. Writing not long after the American Revolution, Paley gave this practical illustration: the Americans should have reasoned about whether a rule allowing all colonies to separate was good for the whole empire, not just whether America separating from England would be beneficial (Paley, 303). In his own day, this is one of the better examples of Paley trying hard to find neutral ground on a volatile topic (Reference O’FlahertyO’Flaherty 2019, 194–5). Being able to affirm Locke’s general conclusions (and thus the permissibility of the Glorious Revolution) while raising doubts about the justification of revolution in the American case was helpful for Paley. The rule-based approach allowed him to differentiate the cases by showing that only in the first case was there a principle that would be approved from a legislative point of view.

Lastly, let us look at his views on religious toleration and establishment. His argument here closely followed Locke’s argument from the Third Letter Concerning Toleration discussed in Chapter 1. In principle, Paley said, religion is not exempt from political regulation (Paley, 407–8). Governments exist to promote the good and promoting religion might be one way to accomplish this. It does not follow that rulers should force people to their religion even if they think this is the greatest possible good for them. This is mistaken because we must look at the “general tendency.”

It obliges the magistrate to reflect, not only whether the religion which he wishes to propagate amongst his subjects be that which will best secure their eternal welfare; not only, whether the methods he employs be likely to effectuate the establishment of that religion; but also upon this farther question: Whether the kind of interference which he is about to exercise, if it were adopted as a common maxim amongst states and princes, or received as a general rule for the conduct of government in matters of religion, would, upon the whole, and in the mass of instances in which his example might be imitated, conduce to the fartherence of human salvation.

(Paley, 409–10)

This is exactly Locke’s argument from the Third Letter. The extraordinary degree of similarity between the two arguments provides evidence for the claim that this approach to thinking about the generalized consequences of rules when applied by fallible human actors was one taken from Locke.

Paley’s argument left open room for religious establishment. Although Locke did not discuss it as explicitly, as a member of the Church of England he likely thought that religious establishment was permissible so long as dissenters were free to worship in other peaceful churches. Paley agreed with this conclusion and was willing to state a general rule such that if a religious minority persuaded enough people to join its ranks and thus become a majority, that group would then be allowed to change which church received public support (Paley, 416). Both authors, seeing general value in belief in God, were willing to use state power to discourage atheism. In Paley’s treatment of religion, we see many of the elements of the legislative point of view in play. God as the author of general rules must consider how a rule allowing religious persecution would be used not just in London, but also in Paris and Constantinople. The likely wrong applications provide an additional and decisive reason for toleration. On the other hand, atheism (which Locke would also have criminalized) poses a threat to public order. This helps justify public funding for a national church and even fines for those who don’t attend any church (Paley, 246). The legislative framework allowed Paley to defend the permissibility of religious establishment alongside religious toleration.

The perception of Paley as a simple apologist for the status quo is unfair. Paley may have strategically taken less radical positions so that the general utilitarian framework he proposed would be more widely adopted, trusting that others could draw their own conclusions once they became adept at using the framework (Reference O’FlahertyO’Flaherty 2019, 173–7, 192–5). This general tendency did not keep him from taking some strongly reformist stands, such as being an early opponent of the African slave trade (Reference O’FlahertyO’Flaherty 2019, 275–7). We have noted other reformist elements of his theory above. On the whole though, the legislative approach made his thought appealing to his contemporaries on two levels. First, the prominent role of God as legislator was reassuring to an audience that still expected morality to be grounded in religious beliefs and found outright rejection of God scandalous. Second, the rule-based framework yielded more acceptable conclusions than an act-by-act approach would have. Bentham’s view would be more controversial on both counts.

Jeremy Bentham

While Bentham is sometimes known as the father of utilitarianism, Ernest Albee was closer to the mark more than a hundred years ago by identifying him as the father of secular utilitarianism. Most distinctive of Bentham was his secularism and anticlericalism that fed into his eagerness to upend commonly held beliefs.Footnote 1 Among his most deeply held convictions was that religious belief and practice were a detriment, rather than benefit, to human happiness. It promoted a pointless asceticism, depriving people of pleasures and subjecting them to needless pains. To this particular enterprise, Bentham brought an amazing talent for classifying phenomena in very detailed taxonomies. Bentham’s rejection of the claim that God plays any meaningful or constructive role in utilitarian ethics was a very conscious decision, yet he drew little attention to the way the content of a utilitarian ethic changes when one eliminates the counterfactual perspectival shift. This helps account for some peculiar features of Bentham’s theory. Bentham focused primarily on giving advice to human legislators, thus obviating the need for a divine motivation for private individuals to take on the legislative point of view in nonlegislative contexts. When discussing our private moral evaluations of the actions of individuals, Bentham reframed moral praise and blame as a kind of moral legislation, following Locke’s lead.

We have seen that Paley was part of a long tradition of viewing God as the author of a morally binding code who promulgated his will through rationally discoverable general rules. Bentham challenged this both implicitly and explicitly. He challenged it implicitly by simply leaving God out of his writings. For example, in his most famous work, An Introduction to the Principles of Morals and Legislation, there is no hint that it is helpful to ask what God would legislate in deciding what human beings should legislate. To Bentham, this was an unnecessary assumption. Religion did enter in but only in a descriptive way. Bentham famously began Chapter 2 of that book by stating that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do” (Bentham PML, 1). These sentences include one of the biggest problems with Bentham’s theory. If, in fact, human beings are motivated by their own pleasures and pains, they will do what maximizes their own utility whether it maximizes the good of the greatest number or not. Bentham seems to hold up a criterion for good, namely the greatest good for the greatest number, that is contrary to the way human motivation actually works.

In this early work, Bentham’s strategy was to focus on the perspective of human legislators; hence, the Introduction is primarily a guide to legislation. One role for a writer is to help people see more clearly what is in their interests so they will be motivated to do it. The incentives that human legislation brings with it are, however, only one of the factors that influences human behavior. Physical sanctions relate to the normal cause and effect of our actions. Drunkenness, for example, has the physical sanction of a hangover. Political sanctions are additional rewards or punishments administered by governments. Moral sanctions are the sanctions of praise and blame we get from other people (Locke’s law of opinion or reputation). Religious sanctions are rewards or punishments given out directly by God. Framing human motivation this way allowed Bentham to take the religious sanction as an empirical psychological question. If people believe that God will punish something, that gives them a reason not to do it, whether or not God actually exists and whether or not God would actually punish the action in question. What matters is the belief. From there, Bentham framed the rest of the book in this way: his goal was to give advice to the legislator of political sanctions, but such a legislator must be aware of the way beliefs about moral or religious sanctions will either help or hinder human laws (PML, 27–8).

The focus on human legislators was only a partial solution for Bentham. If it is true that human beings are governed by hedonistic motivation, then altering the political sanctions can alter their behavior in ways that will create more overall good. This, however, only shifts the problem up one level. What will prompt legislators to legislate for the common good rather than their own good? Eventually Bentham thought democracy was a solution to this problem as it would give legislators an incentive, in theory, to pursue the good of the majority (Reference HarrisonHarrison 1983, 195–224). Moreover, Bentham’s egoistic hedonism must apply, not just to legislators, but to Bentham himself. If the ethicists must only write what will bring them pleasure or lessen their pain, can we rely on the fact that there will be a convergence of the interests of ethicists and the public? Thomas Rawson Birks, a nineteenth-century critic of Bentham (and utilitarianism more generally) argued: “But while the herd of mankind are left under this necessity of pure selfishness, the moralist and the legislator, we are taught, must rise above it” (Reference BirksBirks 1874, 27). For Bentham and his original audience, this seemed to have been the most important problem to solve, namely how his theory of motivation and his ethical theory fit together. More specifically, would removing God deprive ethics of a necessary moral motivation?

Bentham took up this issue in his scathing attack on natural religion. Paley had written an entire book titled Natural Theology in which he argued on the basis of nature and science that the Earth contained evidence of “contrivance,” or design. From this we could then infer various characteristics of God, importantly including God’s benevolence. This was crucial to Paley’s argument and those of his predecessors who argued that belief in a benevolent legislator, God, was both available by reason and beneficial to humanity. Bentham rejected both claims, vehemently, in his book Analysis of the Influence of Natural Religion on the Temporal Happiness of Mankind.

This daring and incredibly polemical book was published under the pseudonym Philip Beauchamp in 1822. Bentham, as was common for him, had worked on the book in manuscript but left it incomplete. A friend took the papers and put them into their present form. We have every reason to think that what we have represents Bentham’s own views (Reference McKownMcKown 2004, 19–20). Bentham took the radical position that whether or not natural religion was true, it was certainly harmful rather than beneficial. Given the incendiary claim, Bentham carefully framed his argument so that, in the event that his authorship was discovered, he could say he was only describing natural religion, not revealed religion. He could thus claim that his book was not an attack on religion in general or Christianity in particular, only on those who promoted natural religion. Nonetheless, the actual content includes any number of claims that clearly are attacks on religion generally and Christianity specifically. When combined with his other works in which he attacked the Bible as authentic revelation (he had particular contempt for the Apostle Paul), it shows Bentham consciously advancing, in the early nineteenth century, a radically secular agenda. Bentham’s religious writings were sufficiently controversial that the editor of his collected works chose to omit them, thus obscuring for many readers in later generations this aspect of his thought (Reference CrimminsCrimmins 1990, 3–4).

In the Analysis of the Influence of Natural Religion, Bentham argued first that on the basis of reason we know next to nothing about what God wants us to do and how punishments and rewards will be distributed in the next life. He stated “that natural religion communicates to mankind no rule of guidance” (Bentham Analysis, 10). The result is that natural religion leads us to think that human beings find themselves under the power of a God who is capricious and terrifying, hardly a situation beneficial to our temporal happiness. To this he added an argument that we know those in positions of weakness tend to use praise and commendation when they seek to influence others while those in positions of strength use condemnation and punishment. It is therefore reasonable to think that God, who is incomparably powerful, uses condemnation and punishment to influence human behavior. Humans, from our position of weakness, can respond only with flattery: “mere natural religion invariably leads its votaries to ascribe to their Deity a character of caprice and tyranny, while they apply to him, at the same moment, all those epithets of eulogy and reverence which their language comprises” (Bentham Analysis, 16).

Not only that, but Bentham found religious sanctions from natural religion to be unhelpful. Religion and legislation work at cross purposes, with the former advocating things contrary to the human happiness that the latter seeks. “It is altogether impossible, therefore, that the mandates of natural religion can be directed to the promotion of temporal happiness, since they diverge so strikingly from the decrees of the legislators” (Bentham Analysis, 40). In fact, where people claim that we need divine sanctions to motivate people to behave differently, what we should instead do is solve the problem through better human legislation. “To affirm therefore the necessity of a recurrence to a super-human agency for the repression of any definable mode of conduct, is merely to say that human laws are defective and require amendment” (Analysis, 43).

We can see the convergence of these lines of thought in Bentham’s Deontology. This work, also left uncompleted by Bentham, was published by his editor in the collected works such that it was more of a paraphrase than a work by Bentham himself. More recently, a critical edition based on Bentham’s original manuscripts has become available. The work is important in that it is the only work where Bentham puts morals rather than legislation at the center of the endeavor. It is also a very strange book. One might think a principal issue in deontology is explaining why someone should fulfill their duty when it conflicts with their interest. Bentham opened the chapter “of deontology in general” (likely intended to be the first chapter of the book) by writing:

That a man ought to sacrifice his interest to his duty is a very common position … But when both interest and duty are considered in their broadest sense, it will be seen that in the general tenor of life the act of sacrifice is neither possible nor so much as desirable; that it can not have place, and that if it were to have place, the sum total of the happiness of mankind would not be augmented by it.

(Bentham Deontology, 121)

He was, therefore, dismissive of ethicists who go around telling people what they ought or ought not to do (Bentham Deontology, 206–7). Bentham himself had sometimes used this very language, something critics were quick to point out. Nonetheless, Bentham in the Deontology was trying to follow his own advice. The topics he took up are more in the form of an advice column than a lecture on duty. He was helping people see which course of action is in their best interests in areas for which the law has not seen fit to prescribe rules.

The broadsides against religion continued in Deontology, without the qualification that he was only talking about natural religion. “Religion is misapplied – how can it be otherwise? – in proportion as it is applied to any part of the field of morals” (Bentham Deontology, 166). While the religious claim that God is benevolent, the God they describe is not. Bentham was thus very consciously stripping the consequentialist tradition of its theological underpinnings. He was aware that in doing so he raised the question of what would motivate human beings to act for the good of all when their own interests were in conflict. Bentham’s solution to this problem was human legislation in two forms. The first and most prominent is governmental legislation: where additional incentives were needed human law could provide them. It is in the area of individual ethics, however, that the objections we have focused on in this book are found. There is no question about whether to have a law permitting us to hang innocent people (we should not), the problem is what to do in individual cases where hanging an innocent person (who is thought to be guilty) might produce better consequences than the available alternatives, despite the illegality of the act. Granting that the law may say that I should not commit perjury, what if I am confident my perjury will not be discovered and that it will be in my interests? Perhaps it will even be in the interest of all who are affected. What is the ethical thing to do?

It is at this point that Bentham shifted the question and introduced the legislative perspective in a second, indirect way: the act of giving out praise and blame becomes a form of legislation. Human legislators are, by their position, forced to take on a legislative point of view. Since the legislator will implement general rules, the legislator must take into account problems of insufficient motivation, biased interpretation, and faulty enforcement. Given Bentham’s view of human motivation, we will do whatever we think is in our interests, “oughts” notwithstanding. Nonetheless, since there are many issues where the law cannot reach, our natural desire for praise and esteem can be harnessed as a powerful motivator. We will be told that perjury is always wrong because truth-telling in court is so valuable and important. If I am caught out in my lie, I can expect to be condemned for it. But that need not mean I actually did anything wrong. In Bentham’s view, calling something wrong is just another sort of act that one does for one’s own benefit (since every action is so motivated). We praise things we want other people to do and condemn things we want other people not to do. As with Hume, Bentham thought we are more effective in influencing the behavior of others if we frame our praises and condemnations as if they were general rules that applied to us as well. The nature of effective praising and blaming pushes us to make general statements about what everyone must do and to then use our praise and blame as the enforcement of those rules. This, in a sense, pushes us as individuals toward taking on the legislative point of view in a way that is not counterfactual. When I make general public statements about what should be praised or blamed, I am acting in a legislative capacity, and when I apply those principles to specific cases I affirm the rule and enforce its sanctions (praise or blame).

This interpretation of Bentham is borne out in many places, but one is in his treatment of religion. Throughout, he treated religious praise and blame as the self-interested actions of religious people. Since he thought religious duties were onerous, hypocrisy was perfectly rational. I can gain favor with God by getting other people to obey him while avoiding costly obedience whenever I can. What is interesting is that Bentham’s objection was not really to hypocrisy, but to the fact that a powerful tool was being used in a way that diminishes rather than increases human happiness. All moral speech will lead to precisely the phenomenon of sometimes condemning as wrong actions that, in the specific case, actually increased utility. Utilitarians must condemn these utility-maximizing acts because of the utility of people thinking there is a general rule that outweighs it.

Schultz argues that these indirect strategies for motivating compliance with utility are crucial to Bentham’s response to the objection that his egoism prevents him from taking utility as a true normative principle. The “obvious answer is that it is of course possible for people to find their best interest in serving the interest of all, just as Bentham himself did” (Reference SchultzSchultz 2017, 105). Laws and moral opinions can shape us to make this eventuality more likely. In any case, Bentham thought a system relying on both legal and moral sanctions would be more effective than one that simply urged us to be altruistically disinterested because the former worked with our dominant motive.

For our purposes, what is important is to juxtapose these alternative forms of human legislation alongside Bentham’s conspicuous silence on the sorts of counterexamples that those before and after him had wrestled with extensively. I have reconstructed how Bentham could answer the question involving a case where perjury appears to be utility-maximizing. Bentham explained the reasons why both law and social norms would inflict punishment in this type of case even though the action is utility-maximizing. He also explained why we might educate people so that their consciences would also inflict pain on them if they committed perjury in such a case. All of this is true, yet it is striking that Bentham himself did not spend time addressing questions like this one, questions where the difference between a situated perspective and a legislative perspective would be central to determining what is right and wrong in a particular case. Given how extraordinarily voluminous Bentham’s writings were, it seems unlikely that his lack of interest in these questions is because he never had time to write about them.

The following are plausible reasons for Bentham’s silence on this issue. First, Bentham, like Paley, was calculating. Bentham gave considerable thought to how his words (and even his body after his death) might be deployed to maximize happiness (Reference SchultzSchultz 2017, 62–6, 69–72). Bentham strategically withheld some works from publication and published others anonymously so that they would detract less from the plausibility of his overall theory. The works cited above that show the depths of his animosity toward religion were not published in his lifetime under his name, and several were omitted from his collected works by his editors after his death because of their controversial nature. Bentham wanted to see utilitarianism adopted as the principle to guide legislation and it would have only made it more difficult to bring that about if he had highlighted the ways in which utilitarianism would justify individuals breaking moral rules that were widely endorsed in his day. It was better to simply set those topics aside. Second, having extracted God from his theory, Bentham likely saw counterfactual questions as pointless. Given that there is no God who is legislating a system of rules based on utility, why spend time speculating about what God would have legislated when one can instead make practical proposals about what sorts of laws and moral norms should be adopted, laws and norms that would have beneficial effects? The second reason is probably more fundamental than the first. Although Bentham was strategic about which of his works he published, he clearly had no qualms about writing things in his unpublished work that would have been incredibly controversial. One can, after all, find defenses of animal rights and homosexuality in his writings. But those controversial opinions were geared toward actual legislative questions: what the laws or norms of our society should be.


In Paley and Bentham, we see two contemporaries charting two very different paths forward for consequentialist thinking. Paley’s view was religious and built rule-based deliberation into the foundations of moral deliberation. Bentham’s view was secular and viewed rules instrumentally. Paley’s strategy won over more adherents in his day, but as the discipline of philosophy turned in an increasingly secular direction, Bentham’s approach became the more important one for tracing the future history of this line of thought. Perhaps the last important proponent of Paley’s style of consequentialism was John Austin. In Lecture II of The Province of Jurisprudence Determined, Austin argued that divine laws are different from human laws in having God as their author and that God can legislate by directly revealing his law or through other means. Austin wrote of these laws of God that are not directly revealed:

These laws are binding upon us (who have access to the truths of Revelation), in so far as the revealed law has left our duties undetermined. For, though his express declarations are the clearest evidence of his will, we must look for many of the duties, which God has imposed upon us, to the marks or signs of his pleasure which are styled the light of nature. Paley and other divines have proved beyond a doubt, that it was not the purpose of Revelation to disclose the whole of those duties.

(Austin, 39)

Austin’s religious views lent themselves toward Unitarianism, something that distinguished him from his sometime friend John Stuart Mill (Reference MorisonMorison 1982, 36–8). While Austin had ties to the Bentham camp, his decision to situate himself alongside Paley is noteworthy. He adopted the older view of a literal divine lawgiver whose will can be known apart from special revelation.

Austin rejected appeals to a moral sense (Austin, 40–1). He instead argued that “God designs the happiness of all his sentient creatures” and that God intends that we promote that happiness (Austin, 41). After arguing that we assess utility by looking at the tendencies of acts, Austin stated

if the tendencies of actions be the index to the will of God, it follows that most of his commands are general or universal. The useful acts which he enjoins, and the pernicious acts which he prohibits, he enjoins or prohibits, for the most part, not singly, but by classes: not by commands which are particular, or directed to insulated cases; but by laws or rules which are general, and commonly inflexible.

(Austin, 43)

Austin’s work, published in 1832, shows that while Paley continued to have disciples for another generation, his influence was decreasing. By contrast, Austin’s counterpart, John Stuart Mill, pursued a strategy closer to Bentham’s. It is the line of thought leading from Bentham to Mill and Sidgwick that would come to be known as the paradigmatic utilitarian position. Bentham’s successors, however, had to grapple directly with the implications of the secular break. We will see in the next chapter that they talked more explicitly about the implications for individual moral action if we think of moral expression as a kind of legislation. Rather than ignoring the individual level problem in order to focus on genuinely legislative situations, Mill and Sidgwick tried to work out a theory of right and wrong from the perspective of the individual who has accepted utilitarianism to be correct. They both grappled with the differences between deliberation about right and wrong from the legislative perspective and that of the situated perspective of a given individual. In exposing the implications of Bentham’s thought, they would set in place the conditions for the twentieth-century debates about act- and rule-consequentialism.


1 For a book-length account of the importance of secularism to Bentham’s philosophical project, see Reference CrimminsCrimmins 1990.

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  • The Great Divide
  • Alex Tuckness, Iowa State University
  • Book: Morality as Legislation
  • Online publication: 29 July 2021
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  • The Great Divide
  • Alex Tuckness, Iowa State University
  • Book: Morality as Legislation
  • Online publication: 29 July 2021
  • Chapter DOI:
Available formats