Bentham and Bureaucracy by L. J. Hume

By L. J. Hume

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But logic did not always prevail. It was clear that Montesquieu and Catherine had solid grounds for believing that in practice laws would have to be adapted to existing customs and that customs might change independently of the laws. It was unlikely that customs could always be explained away as the products of law, in the way that Helvetius proposed to explain them. So the relationship between law and customs remained an awkward, undigested element in the eighteenth-century theory of the state's legal foundations.

People were asking regularly of any policy or arrangement 'what purpose does it serve' or 'how well does it serve that purpose', or they were seeking regularly to justify policies and arrangements on the ground that they best served some defined purpose. This utilitarian mode of thinking and arguing came to be widely employed and widely accepted. But it too had to be filled out, and the notion of utility had to be given some definite content, before it could be of much help in fixing the scope and content of the sovereign's laws.

At the same time they were expected to help maximize the impact of the law on the subject, by reducing or eliminating the possibilities of misunderstanding and evasion of the law5s provisions. It was understood, however, that the style and the arrangement of the law could not alone ensure its maximum impact. In order to be an effective instrument of social control it had to include what Beccaria called the 'tangible motives5 of reward and punishment,81 and theorists strove with some success to translate and extend Hobbes5s simple recommendations into more detailed and more general principles.

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