Social Control and the Legal Panoptic Paradigm 169

necessary to investigate more closely both the Panopticon, and the concept
created by Foucault to interpret it – that is, panopticism.

Between Foucault and Bentham: The Emergence of the Panoptic Paradigm

As explained by Brunon-Ernst, there are four Panopticons clearly enounced and

identified in Bentham’s work: the prison-Panopticon,26 the pauper-Panopticon,27
the chrestomathic-Panopticon28 and the constitutional-Panopticon.29 In order
to speak of a ‘legal Panopticon’ or panoptic paradigm (the distinction will be
explained later),30 one must reconstruct Bentham’s thought, and elaborate a
conceptual analysis that links it to Foucault’s panopticism on the one hand and
Bentham’s Panopticon on the other. More precisely, what is under discussion is
the common conceptual area between panopticism and Bentham’s theory of law.
Therefore, in order to elaborate the new concept of ‘legal panoptic paradigm’, it
is necessary to define the theoretical context in which such a relationship can
be envisaged, to find and analyse the characteristics of the Panopticon, and to
enquire whether they are congruent with important elements in Bentham’s
theory of law.
It can be stated that the Panopticon originates as ‘a simple idea in architecture’31
or ‘the Idea of a New Principle of Construction’.32 In the field of law, what would
correspond to this idea in architecture? Would it be a plan for the judicial or law
courts? What would be the best architecture for a legal Panopticon? Can one
even speak of a legal Panopticon?
Bentham’s theory of language should be examined if one is to understand
what is at issue within the Panopticon. Bentham identifies two uses of language
which involve a relation either to oneself or to others, or, more precisely, which
indicate ‘the mind to which, on any occasion, application is made of these
signs’.33 The first is called the intransitive or solitary use; the second is called the
transitive or social use. The distinction between these two uses is fundamental
for Bentham, and allows us to understand why control of language is so

26
Bentham, Panopticon; or the Inspection-House, pp. 37–172.
27
Bentham, Writings on the Poor Laws, vol. 1.
28
Bentham, Chrestomathia, trans. and ed. J.-P. Cléro.
29
Bentham, Constitutional Code.
30
For the difference between ‘Panopticon’ and ‘panopticism’, see Chapter 1, pp. 21–36.
For the difference between ‘panoptic’ and ‘panoptical’, see the Epilogue, pp. 186–7.
31
According to Bentham himself; see Panopticon; or the Inspection-House, p. 39.
32
Title of his work on Panopticon; or the Inspection-House, in ibid.
33
Bentham, Essay on Logic, p. 228.
170 Beyond Foucault

important to ensure domination within the Panopticon: ‘By its transitive use,
the collection of these signs is only the vehicle of thought; by its intransitive
use, it is an instrument employed in the creation and fixation of thought
itself.’34 This quotation is the key to my understanding. Transitive, primitive
and original use corresponds to the social function of language: through it
the social function of language as the communication of thought is ensured,35
whereas intransitive use ensures the formation of thought itself. Unlike other
thinkers of his time, Bentham considers that transitive use is secondary to the
intransitive, which is also a component of his originality. Prevailing opinion
among his contemporaries considered language as a support, more or less
distorting, of thought.36 With the intransitive function of language, Bentham
insists on the strategic place played by language in the birth and shaping of
ideas. He explains that all faculties need language, and that language, therefore,
is defined as the source and the regulatory principle of thought. Hence, writing
as a collection of visible signs plays a most significant role: it fixes ideas.
So, Bentham offers direct access to the minds of inmates by controlling the
conditions within which language is used by panoptic prisoners, paupers and
pupils. He wants to control the constitution of ideas within the minds of the
Panopticon’s inmates, and the spreading of corrupt ideas among them. Likewise,
the chrestomathic-Panopticon can be read as an educational program designed
to act upon the minds of children. By establishing the different properties37
of language, Bentham allows the linguistic tools that influence behaviour and
agency to be understood.
Lastly, language – thanks to the theory of fictions – can be the expression
of object relative to my body or external to it.38 Body becomes in this way a
common referent to all acts of language. Thus if Bentham wants to gain full
control over persons in his Panopticon, he must control bodies. Within
Bentham’s Panopticon, control over bodies takes the following forms. Inmates
are deprived of their bodies on entering the Panopticon. Indeed, inmates cannot
go where they want, or whenever they wish, and, in addition, all their movements
are restricted to a space defined by the institution. The cell is the most obvious
symbol of this, but there is also an obligation to work in restricted areas and at
specified times. Another example is the requirement that walking be restricted

Ibid., p. 228.
34

Ibid., p. 229.
35

36
J. Skorupski, English-Language Philosophy 1750 to 1945 (History of Western
Philosophy) (Oxford: Oxford University Press, 1993).
37
Bentham, Rationale of Judicial Evidence, p. 304, pp. 310–11.
38
C.K. Ogden, Bentham’s Theory of Fictions (Paterson, NJ: Littlefield, Adams, and Co.,
1959), p. 144.
 Social Control and the Legal Panoptic Paradigm 171

to a defined space. The architecture serves to organise space for the inmates, and
thus to circumscribe their activities. This is not only true in the prison- and the
pauper-Panopticons, but also in the constitutional-Panopticons. All the offices
are organised to maximise their efficacy; their places in the space are defined
by the building’s one goal: maximising the work-strength of the functionaries’
bodies. Even if the constitutional-Panopticon is not based on deprivation of
liberty, it is based on confinement of bodies in order to improve productivity.
So, the panoptic institutions can be characterised by control over bodies as well
as by control of the time and space within which bodies move.39
If Bentham wants to avoid moral evil within the Panopticon by controlling
minds and thoughts, he also wants to avoid physical evil such as illness and
filth. This is part of the rationale for control over bodies. As Brunon-Ernst has
argued,40 this was an improvement when compared with what was happening
elsewhere during Bentham’s time. Safety is therefore a primary concern for
Bentham. Bodies must be safe.
Control over bodies is also in accord with the general aim of language
which consists in the classification and categorisation of reality. Within the
Panopticon, it takes the form of the organisation of space, and of the times and
places within which inmates can communicate with each other. The physical and
practical control over bodies also has a more metaphoric dimension, through the
definition of the narrow and theoretical limits of discourse. For example, certain
words can be used, but in order to limit violence, written discourse prevails over
oral discourse. It is another means of fixing specific ideas, and of diminishing the
extent of the criticisms that inmates can formulate. The conditions and modes
of the enunciation of discourse are also controlled: minds cannot express what

39
The ultimate control over bodies is the mark imposed on them. The mark is a sign
of the body’s belonging to the Panopticon. The individual is reduced to a marked body, to
a possession of the institution. But the body is covered by clothes, and by specific clothes
according to the type of the person, especially in the pauper-Panopticon. After being naked –
that is, cleared of social attributes – bodies are marked – that is, stamped by an indelible sign
of the individual’s belonging to the rest of the society – and finally, they are re-covered by the
Panopticon’s attribute – that is, specific clothes according to the specific types to which the
inmates belong. The device of categorising people both within and outside of the Panopticon
creates an ‘invisible chain’ (Laval, ‘La chaîne invisible’, pp. 24–43), which provides a
permanent reminder of the individual’s belonging to the Panopticon, even for a short time.
The Panopticon is not the whole society; but society can always see the signs of a previous
connection with the Panopticon. The issue then is the identification and classification of
people into categories. This might be seen as a clue to understanding the place and role of the
Panopticon within society as a whole. Foucault invites us to think so: see Foucault, Surveiller
et punir, pp. 207–9.
40
Brunon-Ernst, Le Panoptique des pauvres, pp. 71–88. See also Chapter 5, pp. 133–5.
172 Beyond Foucault

they want through their own words, the physical act of speaking is controlled.
The link between mind and body, practice and theory, is thus revealed. In the
end, what is at issue is not only control over bodies, but control over the space
of bodies, in other words, over agency. Furthermore, the main theoretical
place of writings has been emphasised, and it is significant that the use of the
written medium, in the form of registers, is used to store and to keep a record
of the events of the inmates’ lives. Bodily movements, bodily infections, bodily
punishments and the feeding of bodies are all consigned, and fixed in a database.
Therefore, it can be claimed that in the Panopticon, language and control
are linked. There can be no control without language, and language ensures
control. This is only possible thanks to the conception of language elaborated by
Bentham in his linguistic theory – what is called his theory of fictions.
Foucault is particularly clear on the devices at work within the Panopticon.
First he describes the modalities of normalising sanction:

[Disciplines] must also increase the particular utility of each element of the
multiplicity, but by means that are the most rapid and the least costly, that is to
say, by using the multiplicity itself as an instrument of this growth. Hence, in
order to extract from bodies the maximum time and force, the use of those overall
methods known as time-tables, collective training, exercises, total and detailed
surveillance.41

The Panopticon will control as many areas of human activity as are in existence.
The Panopticon refines theoretically and practically the theory of fictions, by
focusing on bodies and language, and the different forms they can take through
human activities. The description above leads Foucault to claim that the
Panopticon is

… a type of location of bodies in space, of distribution of individuals in relation

to one another, of hierarchical organization, of disposition of centres and
channels of power, of definition of the instruments and modes of intervention
of power ….42

Indeed, the body appears at the centre of the panoptic endeavour.

I have focused on three points: the architectural idea, the control over mind
through language, and the control over bodies organised by the institution of

Foucault, Discipline and Punish, p. 221.

41

Ibid., p. 206.
42
 Social Control and the Legal Panoptic Paradigm 173

the Panopticon. I have also alluded to the surveillance through the collection of
data. The strong link between language and control is thus reasserted.
At this stage, a legal Panopticon, or as might be called, a practical legal
Panopticon, can be envisaged – a closed court-house with the defendants locked
in; a peculiar architecture facilitating control of each stage of the lawsuits; every
proceeding compiled in a book; the figure of the judge perhaps reinforced by
the architecture; all the actors in this panoptic court of justice identified by
marks and/or clothing: all these elements created to reinforce the power of the
law in practice through the judge. But it is essential to note that none of these
elements are to be found in Bentham’s legal theory particularly in Limits. Strictly
speaking, there is no legal Panopticon.43 However, the way Bentham elaborates
his legal theory is a response to a potential legal Panopticon. This chapter has
identified panoptic language as a tool of domination, whereas the foundations
of the theory of law are freed from the domination of language elaborated by
the elite. Foucault clearly missed this reversal in perspective from the panoptic
utopia to the theory of law.
So, there is no legal Panopticon in Bentham’s overall legal theory. However,
there is a figurative space of control in Bentham’s theory that needs to be
accounted for in terms other than ‘legal Panopticon’. There is no architectural
concept in Bentham’s theory of law, but there is an elaboration of a concept
of law which authorises us to speak of legal control. Does it correspond to
the distinction between Panopticon and panopticism? The Panopticon is
an architectural idea, permanent control taking the form of uninterrupted
surveillance, and panopticism is the power of permanent control acting upon
individuals through punishment and compensation using norms. Following
the distinction established by Brunon-Ernst,44 I consider the Panopticon as
belonging to Bentham, and panopticism as Foucault’s conceptual construction
which extracts certain characteristics of the Panopticon in order to exemplify
aspects of (Foucaultian) theory. Then the panoptic paradigm can only be
thought of as a conceptual development of Foucault’s panopticism, because it
is not attached to a peculiar interpretation of Bentham’s Panopticon – it merely
tries to reframe the complexity of devices at work in the Panopticon from a
conceptual/theoretical point of view.
Therefore the most useful distinction should not be between Panopticon and
panopticism, but between Panopticon and the panoptic paradigm, which, as
previously shown, may take several forms. From my point of view, I may indeed
establish the distinction between a practical system of organisation (Panopticon)
43
Although Bentham does consider a judicial use of his pauper-Panopticon, for
example. See Brunon-Ernst, Panoptique des pauvres.
44
See Chapter 1, pp. 21–36.
174 Beyond Foucault

and an abstract and theoretical principle expressing the control exercised by a

certain power over individuals (the panoptic paradigm). It would then be possible
to speak of a ‘legal panoptic paradigm’, an interpretative principle of Bentham’s
legal theory, which takes into account the place of language and of control in law.

Legal Panoptic Paradigm: Law as a System of Social Control

The previous two sections have explained Bentham’s overall argument with
regard to the elaboration of a positive legal theory, which would be cleared of
the ruling few’s domination, and of fallacious fictions, thanks to his concept of
a law and his theory of fictions. I have pointed out the different modalities of
control in the Panopticon and discovered a legal panoptic paradigm at work in
Bentham’s general theory, following the concepts delineated by Brunon-Ernst.
What consequences can be drawn from these statements? First, the force of a
law establishes the link between law and agency by defining devices of influence.
Secondly, the legislator is the source of a law; nonetheless, the study of the tools
at his disposal to dictate action needs to be investigated. This will lead us to
question the place of the principle of utility, so it is necessary to understand
how the legislator can ensure the performance of his will when utility works as
a normative principle. But through the use of the principle of utility as a norm
to ensure the performance of the legislator’s will, the confrontation of multiple
interests and the role of punishment are at issue.
By indicating what is obligatory, forbidden or permitted, the main role of
a law is to be a guide to agency. But Bentham’s concern is not just to express
what behaviour is or is not legal. Laws are not merely devices which express the
sovereign’s preferences concerning a course of action taken by his subjects: they
point out his positive intention to act upon their behaviour. Here Bentham’s
thought is closer to Foucault’s project, in that it envisages laws from a positive,
norm-producing perspective.45 Bentham refers to the ‘force’ of a law with
regard to ‘the motives it relies on for enabling it to produce the effect it aims
at’.46 Motivation thus becomes an essential aspect of a law. Bentham conceives
of law as a system of social control. Even if a law can use chains, walls and so
on to exercise control, these methods are not in keeping with Bentham’s ideas.
Bentham’s mode of control is centred on people – that is, subjects. The way they
influence the control they have upon themselves determines the course of their
actions. They can do this by using rules which they have to follow. These rules do

Especially in Foucault, Naissance de la biopolitique.

45

Bentham, Of Laws, p. 1.
46
 Social Control and the Legal Panoptic Paradigm 175

not prevent people from moving around – as opposed to the impact of walls or
chains – but they should be considered as delineating the kind of behaviour the
sovereign expects of his subjects.
But how can these laws exercise control? Bentham’s answer is quite simple:
one must use the leverage of motivation, whether or not it pre-exists. Of course,
the source of motivation can only be found in sanctions.47 According to Lyons,
restrictive laws are guides for action, thanks to orders and prohibitions.48 But
what about permissive and non-obligatory laws? Contrary to Raz, I have
contended elsewhere that Bentham explicitly refers to the possibility of non-
obligatory laws and examines precisely their uses.49 The core issue arising from
these laws is the role of sanctions. In what way could non-obligatory laws –
permitting a particular action or refraining from performing a particular action
– be supported or reinforced by sanctions? It is in this context that Bentham’s
refusal to refer to sanction in his definition of a law makes sense. Indeed, insofar
as a sovereign establishes general control over his subjects’ behaviour and
actions, a non-obligatory law is supported by the following logical implication –
freedom created by such a law is supported by the corresponding prohibition to
interfere with this freedom. This protection exists through ‘corroborative’ laws,
whether it is explicit or not. Therefore non-obligatory laws are supported by
sanctions which do not have any effect on the subjects of these laws, but rather
on individuals being the subject of corresponding corroborative laws. Bentham
claims this when he considers the existence of non-obligatory laws.50
If one can speak of law as a system of social control, in particular it is because
Bentham tries to formulate the dynamics of influence: a law is designed to act
upon behaviour. Now, there are two sorts of influence – the first acts on the
understanding (being a passive faculty) and the second on the will (being an
active faculty).51 So, when Bentham examines influence of will upon will, he
wants to establish the possibility of influencing action. This constitutes a marked
difference between Foucault and Bentham, since for Foucault ‘… without any

47
Bentham, Limits, p. 43, and Works, vol. 11, p. 2, Bentham, Fragment, pp. 461–73.
48
Lyons, In the Interest of the Governed, p. 107ff.
49
M. Bozzo-Rey, ‘Le principe d’utilité dans la philosophie politique et juridique de
Jeremy Bentham’, and Bentham, Limits, pp. 117-121 and pp. 252-254. In The Concept of a
Legal System, Joseph Raz goes further when he claims Bentham’s definition of a law excludes
the possibilities of non-obligatory laws (p. 59). However, when Bentham defines a law as ‘a
volition … concerning the conduct to be observed in a certain case by a certain person or class
of persons’, he refers both to obligatory and non-obligatory aspects of the will.
50
Bentham, Limits, pp. 129-130 and p. 140.
51
Bentham, Introduction, p. 145.
176 Beyond Foucault

physical instrument other than architecture and geometry, [the Panopticon]

acts directly on individuals; it gives “power of mind over mind”’.52
Bentham’s concept of control is enabled at the epistemological level. This
is how the logic of the will should be understood as a tool for the science of
legislation. Then the whole of Bentham’s theory of law – his typology of laws
and logic of the will are both implied by his definition of a law – is particularly
consistent when the conditions and modalities of control need to be discerned.
Thanks to the logic of the will, the legislator has a mighty tool at his disposal
with which to rationalise the elaboration of a complete system of laws by means
of the study of logical relations between laws, especially their compatibility and
incompatibility. But the legislator can also use another tool to rationalise agency
of people: the principle of utility. Bentham explains: ‘Nature has placed mankind
under the governance of two sovereign masters, pain and pleasure. It is for them
alone to point out what we ought to do, as well as to determine what we shall
do.’53 As a consequence, all human beings will try to maximise their pleasure
and minimise their pain. Both pleasure and pain are real entities, perceptible
impressions.54 These are psychological data with which Bentham intends to give
an account of human conduct. For the present purpose, the distinction between
intentions and motives needs to be considered. The classification of motives
made by Bentham corresponds to his classification of pleasures and pains.55
The confrontation between individual and community is at the core of
Bentham’s thought, and can take the form of the conflict between individual
and general interest on the one hand, and between short- – and long- – term
interest on the other. It is the combination of these several interests that
legitimates the role of the legislator, and the place laws must take in political
society. Thus Bentham recognises the conflict that his theory might cause,
but believes it possible to resolve it, by assigning to the legislator the task of
creating an artificial harmony of interests. This harmony is based on a rationalist
conception of the principle of utility as applied on a political and legal level. His
theory of punishment correspondingly reinforces this position.
From the distinction previously made between a normative and a descriptive
principle of utility, we can move on to some conclusions with regard to the
legislator’s project. The combination of these two meanings can be formulated
as follows. The legislator must write his project from a normative principle,
fixing the end he has in view, whereas use of the descriptive principle gives him

52
Foucault, Discipline and Punish, p. 206.
53
Bentham, Introduction, p. 11.
54
Ibid., p. 6.
55
Ibid., pp. 103–24.
 Social Control and the Legal Panoptic Paradigm 177

the basis of conceiving the means to reach this end. To achieve this, man as he is
has to be considered in society as it ought to be.
Since the principle of utility – as giving the end of legislation – is
presupposed, Bentham wants to write a ‘practical manual’56 for the legislator if
he wants to reach this end, describing the means he has at his disposal and how
he can use them. Bentham uses an image:

A body of laws is a vast and complicated piece of mechanism, of which no part

can be fully explained without the rest. To understand the functions of a balance-
wheel you must take to pieces the whole watch: to understand the nature of a law
you must take to pieces the whole code.57

Then, in order to establish a complete code of laws, it is necessary to know

precisely what materials to use. Indeed, Bentham claims explicitly that ‘[t]he
business of government is to promote the happiness of the society, by punishing
and rewarding’.58 In acting upon individual interests, the legislator has to create
an artificial harmony of interests. He has to act upon the motives of agency, that
is, pleasure and pain. Now,

[t]wo other senses of the term motive need also to be distinguished. Motive refers
necessarily to action. It is a pleasure, pain, or other event, that prompts to action.
Motive then, in one sense of the word, must be previous to such event. But, for a
man to be governed by any motive, he must in every case look beyond that event
which is called his action; he must look to the consequences of it: and it is only
in this way that the idea of pleasure, of pain, or of any other event, can give birth
to it. He must look, therefore, in every case, to some event posterior to the act in
contemplation: an event which as yet exists not, but stands only in prospect.59

The quotation above reveals that Bentham’s theory of punishment proceeds

from his theory of motives – it acts upon the possible event of pain being the
consequence of an act.60
But Bentham considers that a conflict, between what an individual wishes
and how he must act to comply with the principle of utility, may arise. Therefore,
punishment becomes the means to oblige people to act in a certain way in their
own interest, whereas they would not act like this naturally. In other words, it
56
Harrison, p. 113.
57
Bentham, Introduction, p. 299n.
58
Ibid., p. 74.
59
Ibid., p. 98.
60
Ibid., pp. 98–9.
178 Beyond Foucault

is a matter of creating an artificial motive – created by the law, itself created by

a legislator – acting upon an individual’s interest. So, from Bentham’s point of
view, punishment is not justified from the point of view of an individual in terms
of his own true interest, but because the individual has an interest in avoiding
punishment.
Punishment promotes the greatest happiness of the greatest number by
deterring someone from performing some acts.61 Indeed, punishment is a short-
term evil. Punishment – which relies on the fear of pain – is one of the tools
in the hands of the legislator. Pleasure is the instrument used by law to get
power. Punishment is an evil that prevents evil caused by mischief at a minimum
expense: ‘whatever the mischief be, which it is proposed to prevent, to prevent it
at as cheap a rate as possible’.62
Finally, punishment has to be proportional to the offence, in order not to
cause more evil than necessary.
Combining the logic of the will and the theory of punishment within his
utilitarian legislation, Bentham provides greater certainty in the theory of
agency. He clears the law of uncertainty created by common law and the judge’s
interpretation thereof. Every man knows in advance what will be the punishment
concerning the performance or non-performance of an action. Then, the aim of
the legislator is to reduce the field of possible actions, without reducing that of
all potential outcomes. In the Panopticon, the field of possible actions is clearly
narrowed for inmates. It seems that these issues find their answers in the problem
of duty to obey the law, or the foundations of legal obligation.
The legal panoptic paradigm seems to have sealed the lot of individuals: if
there is indeed a legal panoptic paradigm, encompassing society as a whole,
then how does one enter it, and how or why does one leave it? This is a real
issue in the general structure of Bentham’s thought, linked to the possibility of
constructing it as a consistent philosophical system. Facing this issue also leads
us deeper into complicated issues of legal theory, related to the problem of the
foundations of legal obligation. If law is conceived as the expression of the will of
a sovereign, aiming to act upon the behaviour of his subjects, why do individuals
decide to obey the law and act according to law? In other words, what is clearly
at issue is the place of the legal panoptic paradigm in Bentham’s thought. Do the
Panopticon and a legal panoptic paradigm imply a prima facie duty to obey the
law? Attempting to answer this question would probably lead us into the study
of the relationship between obedience and moral obligation to follow the law, or
to a close examination of the practical reasoning that every individual performs

Ibid., p. 158.
61

Ibid., p. 165.
62
 Social Control and the Legal Panoptic Paradigm 179

before deciding whether to obey the law or not – in other words, whether or not
he or she recognises the obligatory strength of the law. Entering into a debate on
the foundations of legal obligation implies then that the status of permissive and
non-obligatory laws should be carefully examined: is the existence of these laws
inconsistent? So what is at issue is identification of the mode of enforcement of
the law, that is, in what way is the control exercised by the law complete? In other
words, the modalities of Bentham’s practical reasoning, if it still exists, must now
be closely examined. From my point of view, this is how Bentham goes beyond
Foucault’s panopticism by fleshing out a legal panoptic paradigm.

Bentham’s Response to a Legal Panoptic Paradigm:

Practical Meta-reasoning

Is it right to differentiate between the Panopticon and the legal panoptic

paradigm? It seems that there is complete control by the legislator over the will
and agency of the people. Utility seems to be an unquestionable and unique
norm within a society. The legislator seems to be powerful, and to ensure his
domination through the law. Has Bentham cleared the law as a whole of any
domination by means of language, to recreate a new domination by means of
laws? Is there really a legal panoptic paradigm, or just a legal application of the
Panopticon? Is there a panoptic society in Bentham’s thought?
To answer these questions, one may first register that control is not domination,
that influence is not power, and that the legislator is not a transcendent being.
It is true that law is a system of social control, but law is also the result of human
activities, and, in this respect, it has the capacity to be amended. Traditionally,
domination implies a static and one-way relation; now Bentham conceives the
public sphere as a space of dynamic processes between governors and governed.63
Most of all, Bentham not only considers the point of view of rulers, but also of
subjects. The utility criterion is not only a tool to design laws, but also a tool to
decide to obey the law. Furthermore, I will argue that Bentham’s legal theory
entails a more complex practical reasoning. This will lead to a new reading of the
Panopticon and the legal panoptic paradigm.
Indeed, from the Fragment on Government to Limits, Bentham considers the
disposition to obey as the foundation of political society. This means that it is
not only the legislator’s point of view which is taken into account when it comes
to the duty to obey the law. One must consider the individual point of view, and

63
For further analysis, see G. Postema, Bentham and the Common Law Tradition
(Oxford: Clarendon Law Series, 1986), pp. 237–62.