1
Tracing the origins of Bentham’s political radicalism back to the French
Revolution and forward to James Mill has occupied scholars for at least a century. Key
dimensions of this radicalism included concrete proposals for legal reforms and criticisms
of efforts on the part of legislators to lock in their private interests at the people’s
expense. In this context, though, Bentham did not just defend the possibility of legal
innovation as a means to check the power of lawyers, judges, and corrupt politicians as a
whole, although he certainly did that. He also offered a distinctive criticism of rulers
who attempted to make their power unquestionable through the device of immutable law:
he argued that they asserted their own infallibility. The link between legal change,
fallibility, and political authority comprises an unexplored element of Bentham’s political
radicalism and of his legacy for the political theorists who followed him, notably John
Stuart Mill. Moreover, Bentham’s challenge to immutable law on grounds of fallibilism
has enduring relevance for democratic theorists investigating the tensions between
constitutionalism and democracy.
The language of fallibilism is familiar to utilitarian scholarship through the
writings of J.S. Mill, particularly in On Liberty, yet it is plausible that Mill derived the
notion from Bentham: indeed, H.L.A. Hart attributed the discussion of fallibility in On
Liberty to Bentham’s influence.
1
(Mill also identified as a major contribution of
Bentham’s legal thought the creation of a code that had “a perpetual provision for its own
emendation and improvement.”
2
) Although scholars, notably Skorupski and Ten,
3
have
subjected Mill’s use of fallibility to serious analytical scrutiny, Bentham’s use of the term
has received scant treatment. The primary cause of this lacuna is likely Hart’s
unequivocal dismissal of Bentham’s work in this area. In his introduction to his Essays
Convention