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This chapter ties together all the threads of the book to construct a general Acceptance Test for fictions. I begin by discussing the nature of the desired Acceptance Test in terms of the width of the discretion it should contain, and of the fundamental policy it should reflect. I then discuss the motives for fictions, concluding that the Acceptance Test should not take motive into account. There follows an analysis of previous findings as to specific fictions, in light of the Effect and Nature Classifications. The Classifications are used to separate desirable from undesirable fictions. The roles of justice and conservatism are considered. I argue that existing fictions should be treated more leniently than new fictions. This distinction finds expression in two sub-tests of the Acceptance Test: the Retention Test and Creation Test. Finally, the Acceptance Test is presented as the combination of the Retention Test and Creation Test in one flowchart.
Barrell concludes by arguing that the utilitarians’ conscription into an ahistorical Enlightenment is doubly misconceived, first, because they opposed only the crudest forms of historical enquiry, and, second, because the eighteenth-century Enlightenments were neither systematically ahistorical nor neatly superseded by Romantic, organic, and historicist ideas. If, therefore, these new historical perspectives were both products and unruly offshoots of Enlightenment, then the utilitarians’ intellectual history assumes a more fluid shape. This new shape, Barrell suggests, may force us to rethink the utilitarians’ place within the intellectual history of the nineteenth century; the history of historical writing; and the history of philosophy.
This chapter examines contemporary responses to utilitarianism as a political tradition, and, contrary to accepted wisdom, argues that Bentham’s theory of utility was circumstantially and thus historically relative. It asks why Bentham has been perceived as both an ahistorical and an antihistorical thinker, despite his engagement with the ‘Enlightened’ historicisms of the eighteenth century: with Montesquieu, Barrington, Kames, and others. While he denied that history possessed an independent value that could determine or even effectively structure politics, we should not mistake these arguments for an unwillingness to contemplate politics historically, or to make occasionally significant concessions to time and place. Bentham’s point, rather, was that historical truths were categorically distinct from philosophical ones, and that sciences historiques observed the past while sciences philosophiques appraised it. The chapter also addresses Bentham’s overlooked work as a ‘historiographer’ who performed recognisably historical tasks, including the examination of evidence and the passing of historical judgements
This first comprehensive account of the utilitarians' historical thought intellectually resituates their conceptions of philosophy and politics, at a time when the past acquired new significances as both a means and object of study. Drawing on published and unpublished writings - and set against the intellectual backdrops of Scottish philosophical history, German and French historicism, romanticism, positivism, and the rise of social science and scientific history - Callum Barrell recovers the depth with which Jeremy Bentham, James Mill, George Grote, and John Stuart Mill thought about history as a site of philosophy and politics. He argues that the utilitarians, contrary to their reputations as ahistorical and even antihistorical thinkers, developed complex frameworks in which to learn from and negotiate the past, inviting us to rethink the foundations of their ideas, as well as their place in - and relationship to - nineteenth-century philosophy and political thought.
Postema argues that – contrary to the received opinion – we may view contemporary, post-Hartian British legal positivism or, more broadly, post-Hartian British jurisprudence, as having developed naturally from the legal philosophies put forward by Matthew Hale and Thomas Hobbes in the seventeenth century, which in turn were part of an earlier and philosophically more ambitious, pre-positivist tradition, the thetic tradition, dating back to Jean Bodin, Marsilius of Padua and, ultimately, to Thomas Aquinas. Postema explains that if we do, we will see that instead of being a quirky ancestor of the British positivist tradition, Bentham appears as the high point of the thetic tradition, which came to an end when Austin decisively disengaged British jurisprudence from Bentham’s legal philosophy. We see, then, Postema continues, that Austin’s jurisprudence changed the direction of British jurisprudence decisively from the thetic tradition to a positivist approach to the study of jurisprudence, one that continues to this day and sees jurisprudence as separable from moral philosophy and metaphysics, as well as history, social theory and comparative studies.
Schofield explains that Bentham made a fundamental distinction between expository jurisprudence, which concerns the law as it is, and censorial jurisprudence, which concerns the law as it ought to be, and between local and universal expository jurisprudence, and that he took the subject matter of universal expository jurisprudence to be terms (or concepts) such as ‘obligation’, ‘right’ and ‘validity’ that are common to all legal systems. He points out that Bentham introduced a method for analysing or clarifying such terms, namely, the method of paraphrasis, and argues, contrary to Hart, that Bentham was neither a substantive nor a methodological legal positivist. Bentham’s utilitarianism, characterised by its naturalistic basis and its claim to govern every aspect of human action, led him to conceive of value judgements as a form of empirical statement; hence the idea of a conceptual separation of fact and value, as required by substantive legal positivism, would have made no sense to him. Moreover, Bentham would not have accepted the methodological view that expository jurisprudence is a value-neutral enterprise, since it was undertaken just for its utility-promoting value.
The relationship between language(s) and economics is a complex one. While it has been commonly held that linguistic homogeneity favors economic prosperity, a counter-argument suggests that multilingual capabilities may remove impediments to such prosperity: economic advantages may flow from bridging linguistic divides. Languages in contact are rarely of equal status, however, and some “small” varieties are particularly threatened today – most often, of course, by English. In a renewed and ecologically based attention to at-risk languages, the matter of rights has become central. After all, sustained and broadly accepted arguments for inherent language rights could put both speakers and their interactions with other communities on a stronger footing. My thesis here is that any meaningful support for language rights must be firmly grounded in law. Currently, this is very rarely the case and, therefore, much of the discussion about rights is really about claims to rights.
John Stuart Mill, in his essays on Jeremy Bentham and Samuel Taylor Coleridge, observes that 'these two men', though 'they agreed in being closet-students'. Mill's account helps to bring out certain similarities in their projects. Both were crucial participants in a massive change in the understanding of representation that occurred within their lives and those of their Romantic contemporaries. The various different kinds of attention to representation, essayistic evaluation, the contribution of acceptance by an audience, and detailed analysis of the differences between one use of language and another, help to indicate the extent to which the Romantics restructured representation. Didacticism, conceived as the effort to promulgate particular beliefs in literary works, came to seem less like an unpleasant option and more like an unavailable one. While Bentham sought to evaluate individual actions in relation to systematic social action, Shelley repeatedly described poetry as lending 'systematic form' to social imagination.
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