 Welcome to George H. Smith's Excursions into Libertarian Thought, a production of Libertarianism.org and the Cato Institute, narrated by James Foster. Thomas Hodgskin vs. Jeremy Bentham In my last essay, I discussed how Jeremy Bentham repudiated natural rights in favor of a doctrine known as legal positivism, according to which government is the sole source and creator of rights. The legislator, according to Bentham, should use the utilitarian standard of the greatest happiness for the greatest number when assessing the desirability of particular laws. In the natural and artificial right of property contrast at 1832, Thomas Hodgskin attacked the artificial property rights defended by Jeremy Bentham and his followers while defending the natural property rights of John Locke and his followers. In so far as government is concerned with promoting the public good, it can do so only by respecting the natural rights of individuals. There is no other viable standard. Thus did Hodgskin seek to preserve the traditional form of classic liberalism against the destructive innovations of Bentham. Legislators typically believe they are blessed with the moral authority to decree what is just or unjust and with the wisdom to determine what is good for society as a whole. Such beliefs, Hodgskin alleges, are errant humbug. On the contrary, society can exist and prosper without the lawmaker and consequently without the tax-gatherer. The natural and artificial right of property contrasted was written in 1829 as a series of eight letters to Lord Brahm addressed to him as Hodgskin says without permission and then published in 1832 with some verbal alterations. The targeting of Lord Brahm who became Lord Chancellor in 1830 was significant for several reasons. First, Brahm was highly sympathetic to Benthamite utilitarianism though Bentham seems to have disliked him personally. Second, Brahm was well known as an advocate of liberal causes. Third, Brahm had been appointed to spearhead a committee whose purpose was to recommend changes in the English legal system that would render it more efficient and equitable. Thus in criticizing Brahm, Hodgskin was addressing not a conservative Tory but a liberal reformer whose views were in some ways similar to his own. Hodgskin's real target however was not a single person but the theory of Benthamite utilitarianism according to which legislators should promote the greatest happiness for the greatest number of people. Hodgkin criticizes the notion that significant improvements can be affected through the piecemeal reform of existing laws. This would do little if anything to further the cause of liberty and it might even make things worse. Most legislators are lawyers who know virtually nothing about social and economic laws so in amending old laws they typically generate new problems. The more they botch and mend the more numerous are the holes. Knowing nothing of natural principles they seem to fancy that society, the most glorious part of creation if individual man be the noblest of animals, derives its life and strength only from them. They regard it as a baby whom they must dandel and foster into healthy existence but while they are scheming how to breed and clothe their pretty fondling low it has become a giant whom they can only control as far as he consents to wear their fetters. Before the lawmaker attempts to mend society with legal tinkering he should first understand the nature of social order. But this is not what the legislator wants to hear so he acts before he understands. The legislator ignorant of the true nature of social order grubs forward under the influence of his passions and animal instincts like the mole and is quite as blind. The Benthamite theory according to Hodgkin hands to government a blank check to pass any legislation whatever provided legislators believe or profess to believe that such legislation promotes social utility. Contrary to traditional liberalism which viewed government at best as a necessary evil the utilitarians viewed government as a potentially beneficent power that can be used to promote the greatest happiness for the greatest number. Monsieur Bentham and James Mill both being eager to exercise the power of legislation represented as a beneficent deity which curbs our naturally evil passions and desires they adopting the doctrine of the priests that the desires and passions of man are naturally evil which checks ambition sees justice done and encourages virtue delightful characteristics which have the single fault of being contradicted by every page of history. Hodgkin is highly skeptical to say the least about the Benthamite theory of government. The first priority of legislators is to promote their own interests not the public good and the Benthamites merely provide them with a convenient rationale to do this. To me this Benthamite system appears as mischievous as it is absurd. The doctrines according to well with the practice of lawgivers they cut to securely all the Gordian knots of legislation not to be readily adopted by all those who however discontented with a distribution of power in which no share falls to them are anxious to become the tutelary guardians of the happiness of mankind. They lift legislation beyond our reach and secure it from censure. Man having naturally no rights may be experimented upon imprisoned expatriated or even exterminated as the legislator pleases. Life and property being his gift he may resume them at pleasure and hence he never classes the executions and wholesale slaughters he continually commands with murder nor the forcible appropriation of property he sanctions under the name of taxes, tithes, etc. with larceny or highway robbery. Filmer's doctrine of the divine right of kings was rational benevolence compared to the monstrous assertion that all right is factitious and only exists by the will of the lawmaker. Hodgkin pinpoints the chief weakness of the utilitarian agenda namely that the greatest happiness for the greatest number cannot be measured or calculated. It is a vague and ultimately meaningless standard and this is why it is so beloved by legislators who can never be called to account for their actions. There is no doubt that the faculties of individuals admirably adapted to secure their own preservation are not competent to measure the happiness of nations. Hodgkin continues. Admitting therefore that the legislator ought to look at the general good the impossibility that any individual can ascertain that which will promote it leads directly to the conclusion that there ought to be no legislation. If the greatest happiness principle be the only suitable that justifies lawmaking and if that principle be suitable only to omniscience, man having no means of measuring it there can be no justification of all Mr. Bentham's nicely adapted contrivances which he calls civil and penal laws. In opposition to rights established by government decree Hodgkin defends the natural right of property. After quoting lengthy passages from John Locke's Second Treaties of Government and after presenting his own version of Lockean rights Hodgkin goes on to say I took on a right of property on the right of individuals to have and to own for their own separate and selfish use and enjoyments the produce of their own industry with power freely to dispose of the whole of that in the manner most agreeable to themselves as essential to the welfare and even to the continued existence of society. Thomas Hodgkin's analysis of legislation anticipates the modern economic school known as Public Choice Theory which seeks to understand political behavior as stemming from the pursuit of self-interest by those in government. As Hodgkin puts it, let us look closer at who is the legislator and what is his object in making laws. Just as Adam Smith had posited self-interest as an explanatory principle in economics Mr. Thomas Hodgkin extends this method to the realm of politics. The impulse of self-interest in politics as in economics is everywhere operative. It is naive to suppose that lawmakers do not act from the same motives as other men. Although positive law is frequently defended as necessary to maintain property rights, in fact it is designed to enable those in government to maintain and expand their own power. When we inquire, casting aside all theories and suppositions into the end kept in view by legislators or examine any existing laws, we find that the first and chief object proposed is to preserve the unconstrained dominion of law over the minds and bodies of mankind. It may be simplicity in me, but I protest that I see no anxiety to preserve the natural right of property, but a great deal to enforce obedience to the legislator. No misery indeed is deemed too high a price to pay for his supremacy and for the quiet submission of the people. To attain this end many individuals and even nations have been extirpated, perish the people but let the law live has ever been the maxim of the masters of mankind. Cost what it may we are continually told the dominion of the law, not the natural right of property must be upheld. Government is essentially an exploitative institution. Law is the mechanism by which those in government who produce nothing expropriate the property of others. Our leaders invent nothing but new taxes and conquer nothing but the pockets of their subjects. Laws are made by those who expropriate wealth that has been created by others. Laws being made by others than the laborer and being always intended to preserve the power of those who make them, their great chief aim for many ages was and still is to enable those who are not laborers to appropriate wealth to themselves. In other words, the great object of law and of government has been and is to establish and protect a violation of that natural right of property they are described in theory as being intended to guarantee. This chief purpose and principle of legislation is the parent crime from which continually flow all the theft and fraud, all the vanity and chicanery which torment mankind worse than pestilence and famine. Given this viewpoint it is not surprising that Hodgkin views taxes as the parent theft from which flow all other thefts. Taxes forcibly transfer wealth from producers to non-productive legislators who justify their expropriation under cover of law. Yet Hodgkin believes that the ultimate purpose of lawmakers is not wealth per se but the maintenance and exercise of power over others. Those who make laws, he says, appropriate wealth in order to secure power. Taxes then are a necessary means for the maintenance of political power and law first and foremost must enforce compulsory taxation. One of the first objects then of the law subordinate to the great principle of preserving its unconstrained dominion over our minds and bodies is to bestow a sufficient revenue on the government who can describe the disgusting servility with which all classes submit to be fleeced by the demands of the tax-gatherer on all sorts of false pretenses when his demands cannot be fraudulently evaded who is acquainted with all the restrictions placed on honest and praiseworthy enterprise the penalties inflicted on upright and honourable exertions what pen is equal to the task of accurately describing all the vexations and the continual misery heaped on all the industrious classes of the community under the pretext that it is necessary to raise a revenue for the government. Taxes have inflicted more suffering on humanity than even natural disasters. The legislator has inflicted on mankind for ages the miseries of revenue laws greater than those of pestilence and famine and sometimes producing both these calamities revenue laws meet us at every turn they embitter our meals and disturb our sleep they excite dishonesty and check enterprise they impede division of labour and create division of interest they so strife and enmity among townsmen and brethren and they frequently lead to murders not the less atrocious because they are committed in battle with smugglers or consummated on the gallows the preservation of government it is said must be purchased at whatever sacrifice and it is impossible to enumerate the vexatious statutes and cruel penalties by which its preservation is sought to be attained government as such produces nothing and all its revenues are exacted by violating the natural right of property this I put down as the first point aimed at by all laws there is much more to the natural and artificial right of property contrasted than I have here indicated but this overview should give some idea of its basic themes this remarkable book though virtually unknown even among libertarians deserves far more attention than it has hitherto received