[Last time, when we discussed Bentham’s analysis of the appeal to authority, and when it’s fallacious, we pointed out that he reserved a special place for scientists, engineers and the like in the hierarchy of sources he might trust. They practice in areas that rely on “direct and specific evidence,” not on ancient authorities[1]; they prosper to the extent that their new insights, discoveries, etc. prove to be correct; so they are potentially a good source of credible opinion, so long as they testify in their areas of competence.[2]

On the other hand, Bentham had a much dimmer view of lawyers and legal opinions. These, he said, were especially doubtful as authorities because the interests of lawyers are really opposed to the “universal interest” of the people[3], and legal opinions, especially those given by advocates, “are peculiarly liable to be tinged with falsity by operation of sinister interest.”[4]

That’s strong language, even for 200 years ago, but he supports it with a bill of particulars that I thought we should explore for a bit. So I asked Phil if he would reopen the Bentham file one more time this month to do that job, and he agreed, but with qualifications. As you may have noticed, there always are qualifications. Nevertheless, here’s his take on Bentham’s critique of lawyers.]

And I’m glad to do the job, but first we need some context. We use that word – context – a lot these days, don’t we? Bentham was a Utilitarian; he believed the job of legislators, and Government in general, was to “foster the greatest happiness of the greatest number”[5] of people. All new legislation, he thought, should be evaluated by that standard. Anyone who rejected that notion was “an enemy to the community.”[6]

So if you are Jeremy Bentham, or one of his followers, and serve in a legislature of some sort, you necessarily spend a lot of time analyzing proposed laws and how they might work. You focus on specifics; you want to know who a law is supposed to help and who it might affect negatively; or more generally, you want to analyze consequences, intended or unintended. Debate that speeds the process along is good; debate techniques that block or impede the analysis are bad, because they cloud the mind. At least, that’s my understanding of Bentham’s approach.

If there are legal objections to a proposed course of action, the analyst should focus on specifics, not on glittering generalities. Legislators, even lawyers, have to have reasons to support their conclusions, and lawyers, for sure, are uniquely qualified to find them, if they exist. “On every such point, [the lawyer’s] habits and experience afford him facilities not possessed by [anyone] else for finding relevant and specific arguments, when the nature of the case affords any….”[7] If no such arguments are forthcoming, that “amounts to a virtual confession of their non-existence.”[8]

So this is Bentham’s real objection; he’s not opposed to legal opinions per se; he just doesn’t like the ones that start with “Trust me, I’m a lawyer and know about this kind of thing;” and end right there. He wants to see some explanation. If a lawyer has a basket of reasons to support his position, Bentham is willing to sort through them to see what he thinks. If none are forthcoming, then Bentham assumes the worst.

And the worst is pretty bad. “In the case of every other body of men,” says Bentham, “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.”[9] This is also true of lawyers, except that lawyers’ interests, for the most part, are aligned against those of the common man [or woman]. For example:

  • Litigation is time-consuming and expensive. “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 .…”[10] Lawyers benefit from the delay, vexation and expense of law suits; ordinary people do not. [11] So lawyers have an interest in opposing any efforts to simplify or expedite litigation.
  • Ordinary people benefit if the law is clear; they understand their rights, and also the things that they should not do. They benefit if the law is “not only discoverable, but actually present to” their minds.[12] “Such knowledge, which it is in every man’s interest to possess to the greatest, it is the lawyer’s interest that he possess it to the narrowest extent possible.”[13] If people are unclear on the law, they will make mistakes and end up in court. That’s good for lawyers – more business for them – but bad for clients. So lawyers have an interest in opposing any efforts to clarify or recodify the law.
  • The lawyer’s job is to represent his or her client, and to make the best possible arguments on the client’s behalf. The lawyer doesn’t have to agree with the arguments; he just needs a reasonable basis for making them. So, in a sense the lawyer can misrepresent his own opinion as to the law, when it is in the client’s interest to do so. This custom, or habit in Bentham’s terminology, is “almost peculiar … in comparison with” what other people do[14], and is well known to the public.
  • Given all of the above, it’s “not unreasonable” to simply disregard general opinions given by lawyers in opposition to legal reform on the grounds that they may be motivated by self-interest [or possibly, by the interest of a client]. [15]

Now, for those of you who followed our earlier Bentham dissertations, you may detect a bit of a contradiction here. Bentham also said, in discussing the fallacies of danger, that one cannot simply discard an idea, or proposal, simply because the person offering it has a bad motive. You can’t do that “[i] because motives are hidden in the human breast, and [ii] because, if the measure is beneficial, it would be absurd to reject it on account of the motives of its author.”[16] So why reject a legal opinion simply because it’s provided by a lawyer? That’s not proof that it’s automatically false.

True enough, but while the opinion isn’t automatically false just because it’s rendered by a lawyer, it’s not automatically true, either. And, what bugs Bentham, I think, is that in our hypothetical situation the opinion isn’t useful. It says, in essence, “I looked at this, it’s OK [or it’s not OK], and trust me, I’m a lawyer.” No reasons are given, and there’s really nothing for a good Utilitarian to evaluate.

So Bentham chooses to ignore the thing on the theory that it probably was motivated by the lawyer’s self-interest, it could be dangerously wrong, and there’s no evidence, other than a bald assertion, that it might be correct.

That’s my view of it, anyway; perhaps there are some Bentham scholars out there who have a different opinion; if so, I’d like to hear from them.

[Yes, that’s quite a conundrum, isn’t it? What do you do with an opinion of counsel that says “It’s OK” and nothing more? I’ve seen major financial transactions go forward on nothing more than that, but in those cases the opinion-giving firm was involved from the get-go in structuring the deal, and really put its reputation – and malpractice insurance – on the line with its imprimatur. But those were special situations, I guess.

And, of course, I did work for the Government at one time or another, and in those days in-house clients preferred to avoid opinion letters; they liked simple initials on a coordination sheet, so they could do what they wanted to do, without restrictions, and had somebody to hide behind – i.e., the lawyer – if major problems developed. At first it’s always easy to be an agency counsel; just say yes and go home early; and then the trouble starts.

Anyway, I think Bentham’s 200 year old critique of lawyers is interesting. I’m not saying, of course, that it’s as true now as it might have been back then. But I wonder, what do our readers think? Is lawyer self-interest as obvious and pervasive today as Bentham thought it was in his time? The practice of law certainly is remunerative for some, but would you want a lawyer as a friend?

Apologies to Larry for that comment.]

[1] See Bentham & Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (Hunt, 1824, Nabu Reprint, circa 2010) at p. 51. Hereafter the book will be cited as Political Fallacies at __. Nabu reprints are basically photocopies of the original, so page citations necessarily will be to the original.  “In mechanics, in astronomy, in mathematics, in the new-born science of chemistry,- no one has at this time of day either effrontery or folly enough to avow, or so much as to insinuate, that the most desirable state of these branches of useful knowledge, the most rational and eligible course, is to substitute decision of the ground of authority, to decision on the ground of direct and specific evidence.”

[2] See Political Fallacies at p. 44: “Neither is there any fallacy in making reference to the opinion of this or that professional person, in a case to such a degree professional or scientific, with relation to the hearers or readers, that the forming [of] a correct judgment on such relevant and specific arguments as belong to it, is beyond their competence. In matters touching medical science, chemistry, astronomy, the mechanical arts, the various branches of the art of war [etc.] no other course could be pursued.”

[3] See Political Fallacies at p. 57.

[4] See Political Fallacies at p. 57.

[5] See Political Fallacies at p. 46.

[6] Id.

[7] See Political Fallacies at p. 61-62

[8] Id.

[9] See Political Fallacies at p. 61

[10] See Political Fallacies at p. 58-59

[11] See Political Fallacies at p. 58: “The opinions of lawyers in a question of legislation, particularly of such lawyers who are or have been practicing advocates, 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. in so far as his profit is proportioned to it; factitious expense and delay, in so far as inseparable from the profit-yielding part of the expense.”

[12] See Political Fallacies at p. 58

[13] See Political Fallacies at p. 58

[14] See note 15.

[15] See Political Fallacies at p. 60: “His professional and personal interest being adverse to that of the public, from a lawyer’s declaration that the tendency of a proposed law relative to procedure [etc.] is pernicious, the contrary inference may not unreasonably be drawn.” See also Political Fallacies at p. 60-61: “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.”

[16] See Political Fallacies at Imputation of Bad Motive, p. 133.