Smith discusses Thomas Hodgskin’s critique of utilitarianism and his contention that the primary concern of legislators is to preserve their own power.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

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 Contrasted (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. Insofar 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 classical 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 “arrant humbug.” On the contrary, “society can exist and prosper without the lawmaker, and consequently without the taxgatherer.”

The Natural and Artificial Right of Property Contrasted was written in 1829 as a series of eight letters to Lord Brougham (addressed to him, as Hodgskin says, “without permission”) and then published in 1832 with some “verbal alterations.” The targeting of Lord Brougham, who became Lord Chancellor in 1830, was significant for several reasons.

First, Brougham was highly sympathetic to Benthamite utilitarianism (though Bentham seems to have disliked him personally). Second, Brougham was known as an advocate of liberal causes. Third, Brougham 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 Brougham, 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.

Hodgskin criticizes the notion that significant improvements can be effected 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 dandle and foster into healthy existence; but while they are scheming how to breed and clothe their pretty fondling–lo! 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 Hodgskin, 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.

Messrs. Bentham and [James] Mill, both being eager to exercise the power of legislation, represent it 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.

Hodgskin 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 too well with the practice of lawgivers, they cut too 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.

Hodgskin 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.” Hodgskin 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, Hodgskin defends the natural right of property. After quoting lengthy passages from John Locke’s Second Treatise of Government, and after presenting his own version of Lockean rights, Hodgskin goes on to say:

I look 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 Hodgskin’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 Hodgskin 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, so Thomas Hodgskin extends this method to the realm of politics. The impulse of self‐​interest, in politics as in economics, is everywhere operative. It is naïve 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 Hodgskin views taxes as “the parent theft, from which flow all other thefts.” Taxes forcibly transfer wealth from producers to nonproductive legislators, who justify their expropriation under cover of law. Yet Hodgskin 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, so the 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 honorable 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 labor and create division of interest. They sow strife and enmity amongst 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.