Jeremy Bentham on rule by “disinterested experts” or "the fallacy of authority" (1824)

Date: 23 April, 2020

Commentary

The English legal and political theorist Jeremy Bentham (1748–1832) published a Handbook of Political Fallacies in 1824 in which he painstakingly categorized the different types of "fallacies" politicians used to deceive the public.[1] By "fallacy" he meant the lies and deceptions governments used to hoodwink and confuse the people in order to allow them (the politicians) to rule more effectively. He stated:

By the name of fallacy, it is common to designate any argument employed, or topic suggested, for the purpose, or with a probability, of producing the effect of deception,—of causing some erroneous opinion to be entertained by any person to whose mind such argument may have been presented. https://oll.libertyfund.org/titles/1921#Bentham_0872-02_5035[2]

Bentham compiled this comprehensive analysis of "fallacies" in order to show how those in government deceived the people in order to win office, to stay in office (the "ins"), to keep their opponents out of office (the "outs"), to give favors to their friends and allies, or to expand their powers. By making people aware of these techniques of persuasion and deception Bentham hoped to arouse in them anger that this was happening to them, how it was being done and for what purposes, and to inspire in the people a desire to end these practices. Thus he intended the book to be literally "a handbook" for reformers who wanted to begin liberalizing the British state. This was part of the program of extensive reform he, James Mill, and the other Benthamites organised in the 1820s and 1830s in England.[3] This resulted, in the first instance, in the passage of the First Reform Act of 1832 which opened up the franchise in England to the middle class for the first time, and once the middle class had the vote, they then used it effectively to abolish the extensive tariffs which "protected" British agriculture from competition, namely the abolition of the Corn Laws in 1846 which ushered in a period of free trade which lasted until the First World War.

In addition to inspiring a radical liberal movement for reform in England Bentham's book also inspired the French political economist Frédéric Bastiat to attempt something similar in the field of economics. The first version of Bentham's Handbook of Political Fallacies appeared in French early in the 19th century and it had an important impact on the thinking of Frédéric Bastiat who produced his own examination of "economic fallacies" (or "sophisms" as he called them) in the mid and late 1840s.[4]

Bentham thought that the British Parliament was so corrupt that he could fill an entire book with carefully articulated definitions and categories of lying, deception, intimidation, and obfuscation used by politicians and bureaucrats to hoodwink the public into accepting taxes, regulations, and payments to favoured groups. In this marvelous passage he compares the Parliament to a casino, where the politicians were the gamblers, and the property of the citizens was the stakes being played for:

Parliament (is) a sort of gaming-house; members on the two sides of each house the players; the property of the people—such portion of it as on any pretence may be found capable of being extracted from them—the stakes played for. Insincerity in all its shapes, disingenuousness, lying, hypocrisy, fallacy, the instruments employed by the players on both sides for obtaining advantages in the game: on each occasion—in respect of the side on which he ranks himself—what course will be most for the advantage of the universal interest, a question never looked at, never taken into account: on which side is the prospect of personal advantage in its several shapes—this the only question really taken into consideration … https://oll.libertyfund.org/titles/1921#Bentham_0872-02_5100

"Disingenuousness, lying, hypocrisy, (and) fallacy" were the tactics used by the players in this political game in order to win each round of the game. Those who were "the ins" (i.e., those who were already in office) had a temporary advantage in the game; those who were "the outs" (those aspiring to be in office next) could only hope their turn would soon come. In Bentham's cynical though realistic view, "the universal interest (was) a question never looked at, never taken into account" by the players. Instead of the "universal interest" being looked after, it were the "sinister interests" as he called them of the politically favored and powerful which were furthered by the British state.[5]

Bentham's style is very cumbersome and often hard to follow, but in essence he thought there were four main kinds of "fallacy" used by politicians to deceive the public: the fallacies of authority, danger, delay, and confusion. In his words he stated that there were:

First, fallacies of authority (including laudatory personalities;) the subject-matter of which is authority in various shapes—and the immediate object, to repress, on the ground of the weight of such authority, all exercise of the reasoning faculty.

Secondly, fallacies of danger (including vituperative personalities;) the subject-matter of which is the suggestion of danger in various shapes—and the object, to repress altogether, on the ground of such danger, the discussion proposed to be entered on.

Thirdly, fallacies of delay; the subject-matter of which is an assigning of reasons for delay in various shapes—and the object, to postpone such discussion, with a view of eluding it altogether.

Fourthly, fallacies of confusion; the subject-matter of which consists chiefly of vague and indefinite generalities—while the object is to produce, when discussion can no longer be avoided, such confusion in the minds of the hearers as to incapacitate them for forming a correct judgment on the question proposed for deliberation…. https://oll.libertyfund.org/titles/1921#Bentham_0872-02_5069

In 1820s Britain the people Bentham had in mind who used these fallacies for their own benefit were senior politicians, military leaders, lawyers, and the clergy. (See below for Bentham's devastating critique of self-interested lawyers who get into government.) The men (they were always men at this time) were supposedly "experts" in their respective fields, in other words, they were "authorities" whose opinions had to be respected; that the nation faced all sorts of "dangers" or threats (both foreign, e.g. the threat of invasion by the French; and domestic, e.g. the rise of "dangerous classes" to power such as the socialists and other representatives of the uneducated working class) which meant that the advice of these authorities had to be respected and acted upon immediately; that the government had to act immediately to avoid these dangers because to "delay" taking action would mean the problem would get worse, but on the other hand, a more detailed and comprehensive discussion of the problems had to be "delayed" because alternative solutions to the problems might "confuse" the people and make them question the "authorities"; and that "confusion" could be sown among the people in order to make the government and their advisors look like the only group who had a coherent and well-thought out plan of action which had to be followed for the safety of the people.

It is somewhat of an irony that during the course of the 19th century "Benthamite" inspired bureaucrats who had infiltrated the British government posed as experts in making utilitarian calculations to ensure that government polices would adhere to the "greatest happiness principle." As long as the Benthamite bureaucratic reformers believed in lassie-faire the policy recommendations they made to the government were in favour of deregulation and more liberty, but gradually their views changed as the century wore on and they became believers in the policies of "new liberalism", namely that governments could actively promote the people's welfare by intervening and regulating more and more in the economy. Public hygiene, certainly at the municipal level, became one of the lynchpins of the new "welfare states" which began to emerge at this time along with unemployment insurance and safety in the work place. The radical liberal individualist Herbert Spencer gave an early warning of this looming problem in the chapter on “Sanitary Supervision” in his 1851 book Social Statics, which will the subject of a future post.[6]

In the 20th century the kinds of expert "authority" which the state drew upon to justify its expanding activity ranged further and more widely than it had in the 19th. In the First World War it was military and business leaders in the munitions, food, and transport industries (in England, Germany, as well as America). During the Great Depression it was business leaders who had cut their teeth on advising the government during WW1.[7] Post-WW2 it was Keynesian economists who worked in the universities and think tanks. In the early 21st century the experts who advised governments were now "modelers" and were drawn from the disciplines of climate science and now epidemiology. Bentham would not at all be surprised to learn that unfailingly these "expert advisors" advised the government to intervene more and more in the economy and people's lives by expanding its power. He would shake his head and say that this is the nature of the beast which he was warning people about in 1824. This is how he might have applied his theory to the the current circumstances.

It would appear that the first two of Betham's "fallacies" - the fallacy of authority and the fallacy of danger - have definitely been used by politicians and that the two others may not have been deliberately used but resulted from incompetence or bureaucratic inertia.

Concerning the fallacy of authority, politicians have used certain figures of authority who are said to have expertise in matters of public health and epidemiology to frame the debate about what policies to pursue in such a way as to promote their own interests and powers. Contrary or differing views of others (such as economists or moral philosophers) have been neglected or denied a public platform. Thus, the public's attention has been directed to a small range of policy options which the political authorities prefer to implement, which not surprisingly lead to the growth of government power.

Concerning the fallacy of danger, the predictions these authorities make, based upon their "scientific models", are often worst case scenarios which serve to exaggerate the danger faced by society. This is done to induce fear in ordinary people to the point where they will abide by the very costly and onerous conditions which are placed on their lives, economic activity, and social behaviour.

Concerning the fallacy of delay (refusing to recognise the seriousness of the outbreak, not allowing approval of private alternatives to state sanctioned texts) and the fallacy of confusion (issuing contradictory information about the use of face masks, social distancing, attending school), these seem not to have been used deliberately by politicians for their own ends but were the result of incompetence on the part of politicians and the bureaucratic inertia of the massive health bureaucracies which have responsibility in these areas.

Bentham's book is a very rich mine of information and arguments about how politicians manipulate voters and distort power to suit their own and their supporters' ends and I thus recombine it to our readers. What follows are some longer extracts from his book to illustrate the above points.

Selections from "Handbook of Political Fallacies" (1824)[8]

By the name of fallacy, it is common to designate any argument employed, or topic suggested, for the purpose, or with a probability, of producing the effect of deception,—of causing some erroneous opinion to be entertained by any person to whose mind such argument may have been presented.

…

First, fallacies of authority (including laudatory personalities;) the subject-matter of which is authority in various shapes—and the immediate object, to repress, on the ground of the weight of such authority, all exercise of the reasoning faculty.

Secondly, fallacies of danger (including vituperative personalities;) the subject-matter of which is the suggestion of danger in various shapes—and the object, to repress altogether, on the ground of such danger, the discussion proposed to be entered on.

Thirdly, fallacies of delay; the subject-matter of which is an assigning of reasons for delay in various shapes—and the object, to postpone such discussion, with a view of eluding it altogether.

Fourthly, fallacies of confusion; the subject-matter of which consists chiefly of vague and indefinite generalities—while the object is to produce, when discussion can no longer be avoided, such confusion in the minds of the hearers as to incapacitate them for forming a correct judgment on the question proposed for deliberation. https://oll.libertyfund.org/titles/1921#Bentham_0872-02_5069
…

Parliament (is) a sort of gaming-house; members on the two sides of each house the players; the property of the people—such portion of it as on any pretence may be found capable of being extracted from them—the stakes played for. Insincerity in all its shapes, disingenuousness, lying, hypocrisy, fallacy, the instruments employed by the players on both sides for obtaining advantages in the game: on each occasion—in respect of the side on which he ranks himself—what course will be most for the advantage of the universal interest, a question never looked at, never taken into account: on which side is the prospect of personal advantage in its several shapes—this the only question really taken into consideration:** according to the answer given to this question in his own mind, a man takes the one or the other of the two sides—the side of those in office, if there be room or near prospect of room for him: the side of those by whom office is but in expectancy, if the future contingent presents a more encouraging prospect than the immediately present. https://oll.libertyfund.org/titles/1921#Bentham_0872-02_5100

To all these distinguished persons—to the self-appointed professor and teacher of political profligacy, to his admiring editor, to their common and sympathizing friend, the bigotry-ridden preacher of hollow and common-place morality—parliamentary reform we see in an equal degree, and that an extreme one, an object of abhorrence. How should it be otherwise? By parliamentary reform, the prey, the perpetually renascent prey, the fruit and object of the game, would have been snatched out of their hands. Official pay in no case more than what is sufficient for the security of adequate service—no sinecures, no pensions, for hiring flatterers and pampering parasites:—no plundering in any shape or for any purpose:—amidst the cries of No theory! No theory! the example of America a lesson, the practice of America transferred to Britain.

…

PART I.: FALLACIES OF AUTHORITY
https://oll.libertyfund.org/titles/1921#lf0872-02_label_720

With reference to any measures having for their object the greatest happiness of the greatest number, the course pursued by the adversaries of such measures has commonly been, in the first instance, to endeavour to repress altogether the exercise of the reasoning faculty, by adducing authority in various shapes as conclusive upon the subject of the measure proposed.

But before any clear view can be given of [388] the deception liable to be produced by the abuse of the species of argument here in question, it will be necessary to bring to view the distinction between the proper and the improper use of it.

In the ensuing analysis of Authority, one distinction ought to be borne in mind;—it is the distinction between what may be termed a question of opinion, or quid faciendum; and what may be termed a question of fact, or quid factum. Since it will frequently happen, that whilst the authority of a person in respect to a question of fact is entitled to more or less regard, it is not so entitled in respect of a question of opinion.

…

Examples of descriptions of persons whose declared opinions upon a question of legislation are peculiarly liable to be tinged with falsity by the action of sinister interest.[9]
https://oll.libertyfund.org/titles/1921#lf0872-02_head_329

1.: Lawyers; oppositeness of their interest to the universal interest.

The opinions of lawyers in a question of legislation, particularly of such lawyers as are or have been practising advocates, are peculiarly liable to be tinged with falsity by the operation of sinister interest. To the interest of the community at large, that of every advocate is in a state of such direct and constant opposition (especially in civil matters,) that the above assertion requires an apology to redeem it from the appearance of trifling: the apology consists in the extensively prevailing propensity to overlook and turn aside from a fact so entitled to notice. It is the people's interest, that delay, vexation, and expense of procedure, should be as small as possible:—it is the advocate's, that they should be as great as possible; viz. expense, in so far as his profit is proportioned to it—factitious vexation and delay, in so far as inseparable from the profit-yielding part of the expense.

As to uncertainty in the law, it is the people's interest that each man's security against wrong should be as complete as possible; that all his rights should be known to him; that all acts, which in the case of his doing them will be treated as offences, may be known to him as such, together with their eventual punishment, that he may avoid committing them, and that others may, in as few instances as possible, suffer either from the wrong, or from the expensive and vexatious remedy. Hence it is their interest, that as to all these matters the rule of action, in so far as it applies to each man, should at all times be not only discoverable, but actually present to his mind. Such knowledge, which it is every man's interest to possess to the greatest, it is the lawyer's interest that he possess it to the narrowest, extent, possible. It is every man's interest to keep out of lawyers' hands as much as possible—it is the lawyer's interest to get him in as often, and keep him in as long, as possible,—and thence, that any written expression of the words necessary to keep non-lawyers out of his hand may as long as possible be prevented from coming into existence; and when in existence, may as long as possible be kept from being present to his mind,—and when presented, from staying there.

It is the lawyer's interest, therefore, that people should continually suffer for the non-observance of laws, which, so far from having received efficient promulgation, have never yet found any authoritative expression in words. This is the perfection of oppression: yet, propose that access to knowledge of the laws be afforded by means of a code, lawyers, one and all, will join in declaring it impossible. To any effect, as occasion occurs, a judge will forge a rule of law: to that same effect, in any determinate form of words, propose to make a law, that same judge will declare it impossible. It is the judge's interest that on every occasion his declared opinion be taken for the standard of right and wrong—that whatever he declares right or wrong be universally received as such, how contrary soever such declaration be to truth and utility, or to his own declaration at other times:—hence, that within the whole field of law, men's opinions of right and wrong should be as contradictory, unsettled, and thence as obsequious to him as possible; in particular, that the same conduct which to others would occasion shame and punishment, should, to him and his, occasion honour and reward; that on condition of telling a lie, it should be in his power to do what he pleases, the injustice and falsehood being regarded with complacency and reverence; that as often as by falsehood, money, or advantage in any other shape can be produced to him, it should be regarded as proper for him to employ reward or punishment, or both, for the procurement of such falsehood.

Consistently with men's abstaining from violences, by which the person and property of him and his would be alarmingly endangered, it is his interest that intellectual as well as moral depravation should be as intense and extensive as possible; that transgressions cognizable by him [396] should be as numerous as possible; that injuries and other transgressions committed by him should be reverenced as acts of virtue; that the suffering produced by such injuries should be placed, not to his account, but to the immutable nature of things, or to the wrongdoer, who, but for the encouragement from him, would not have become such. His professional and personal interest being thus adverse to that of the public, from a lawyer's declaration that the tendency of a proposed law relative to procedure, &c. is pernicious, the contrary inference may not unreasonably be drawn.

From those habits of misrepresenting their own opinion (i. e. of insincerity) which are almost peculiar to this in comparison with other classes, one presumption is, that he does not entertain the opinion thus declared;—another, that if he does, he has been deceived into it by sinister interest, and the authority of co-professional men, in like manner deceivers or deceived: in other words, it is the result of interest-begotten prejudice. In the case of every other body of men, it is generally expected that their conduct and language will be for the most part directed by their own interest, that is, by their own view of it. In the case of the lawyer, the ground of this persuasion, so far from being weaker, is stronger than in any other case. His evidence being thus interested evidence, according to his own rules his declaration of opinion on the subject here pointed out would not be so much as hearable. It is true, were those rules consistently observed, judicature would be useless, and society dissolved: accordingly they are not so observed, but observed or broken pretty much at pleasure; but they are not the less among the number of those rules, the excellence and inviolability of which the lawyer is never tired of trumpeting.

But on any point such as those in question, nothing could be more unreasonable, nothing more inconsistent with what has been said above, than to refuse him a hearing. On every such point, his habits and experience afford him facilities not possessed by any one else, for finding relevant and specific arguments, when the nature of the case affords any; but the surer he is of being able to find such arguments, if any such are to be found, the stronger the reason for treating his naked declaration of opinion as unworthy of all regard: accompanied by specific arguments, it is useless; destitute of them, it amounts to a virtual confession of their non-existence.

So matters stand on the question, what ought to be law?

On the question what the law is, so long as the rule of action is kept in the state of common, alias unwritten, alias imaginary law, authority, though next to nothing, is everything. The question is, what on a given occasion A (the judge) is likely to think: wait till your fortune has been spent in the inquiry, and you will know; but forasmuch as it is naturally a man's wish to be able to give a guess what the result will eventually be, before he has spent his fortune, in the view if possible to avoid spending his fortune, and getting nothing in return for it, he applies, through the medium of B (an attorney,) for an opinion to C (a counsel), who, considering what D (a former judge) has, on a subject supposed to be more or less analogous to the one in question, said or been supposed to say, deduces therefrom his guess as to what, when the time comes, judge A, he thinks, will say, and gives it you. A shorter way would be, to put the question at once to A; but, for obvious reasons, this is not permitted.

On many cases, again, as well-grounded a guess might be had of an astrologer for five shillings, as of a counsel for twice or thrice as many guineas, but that the lawyer considers the astrologer as a smuggler, and puts him down.

But Packwood's opinion on the goodness of his own razors would be a safer guide for judging of their goodness, than a judge's opinion on the goodness of a proposed law: it is Packwood's interest that his razors be as good as possible;—the judge's, that the law be as bad, yet thought to be as good, as possible. It would not be the judge's interest that his commodity should be thus bad, if, as in the case of Packwood, the customer had other shops to go to; but in this case, even when there are two shops to go to, the shops being in confederacy, the commodity is equally bad in both; and the worse the commodity, the better it is said to be. In the case of the judge's commodity, no experience suffices to undeceive men; the bad quality of it is referred to any cause but the true one.

 

Endnotes