The Role of Fictions in Law 
Hume, Adam Smith and Bentham 
Gorazd Korosec 
Law is the fundamental institution of every society and the very functioning of social life is dependent on its legitimacy. Therefore it should not be 
surprising that philosophers of law and moral and political theorists have 
always involved themselves in discussions about foundations and justification 
of law, its legitimacy, scope, form, its limits and obligationary force. And the 
notion of »fictions« plays a crucial role in these discussions: it is either used as 
an argument against theoretical opponents or its role in the normal functioning 
of law is considered in an analysis of legal theory and practice. 
We will take a look at the arguments of three theorists of law, living and 
working in an age when the transformation of legal theory from early modern 
natural law theories to modern utilitarian legal theories was taking place. 
Hume reformulated the natural law theory and rejected ideas of social contract 
which were built on natural law, Smith provided new criteria for a science of 
natural jurisprudence, and finally Bentham has accomplished this transforma-
tion with his critique of existing legal institutions and proposals for their 
general reconstruction on utilitarian grounds. 
All of them regard some of the central ideas of the natural law theory as 
inappropriate, as mere »fictions«, and to some extent we could say that their 
theories represent an attempt to come to terms with the »fictional« character of 
the natural law theories. The result of this attack on the »Activity« of natural 
law is somewhat paradoxical; all of them have to acknowledge that »fictions« 
play a necessary role in legal theory and practice, although they articulate this 
role in a different ways. We will therefore try to outline their respective 
theories of »fictions« and their role in legal and wider philosophical theory. 
In a sense, this critique of natural law and its »fictions« could also be under-
stood as inherent transformation or reformulation of the natural law theories. 
The fact is that some basic natural law assumptions find their way into, and 
survive, in the theories of their critics. There is some truth in what Schumpeter 
remarks somewhere, namely that Bentham's utilitarianism is just another theory 
Fil. vest. /Acta Phil., XV (2/1994), 151-149. 
152 Gorazd Korošec 
of natural law. And also it is true that many of the legislative efforts of 
utilitarian liberals consist of proposals to include in the body of law some basic 
natural law categories. This process has also been tenned Positivierung der 
Naturrects, positivisation of natural law. Our own contemporary ideas about 
human and an individual's rights are of course heirs of these natural law ideas 
too. We understand them as being self-evident and we feel no need to prove 
them, just as the natural law theorists, our ideological ancestors, understood 
them. 
So this inquiry into the criticism of the »fictional« character of natural law 
could help us to reflect upon our own understanding of political and legal 
theory and maybe even give some contribution to the open post-modern 
controversy. Discussion about »fictions« in political and social theory has 
indeed become fashionable. But still we have to be cautious in using this term. 
Even if we say that (political) authority »does not exist«, as Foucault did, and 
that it is a mere »fiction«, the question remains, why do those who understand 
authority as »fiction« attack or criticise it so strongly. 
Accusations of legal »fictions« are not new or a privilege of a time or the 
authors who we wish to examine. Ideas on which religious and political 
authorities have found their case for earthly obedience to the law and a 
particular organisation of power, government, society and religious life and 
sanctions, have all been considered as »fictions« on the part of their oppo-
nents. Scholastic ideas of natural law, which were reformulated classical 
Roman ideas of natural law, were regarded in a similar way by their adversar-
ies, early modern natural law theorists, such as Grotius. His ideas and those of 
his followers such as Hobbes, Selden, Pufendorf and Locke, have in turn 
exercised an important influence on social, political and legal theory during 
the following centuries, encouraging some of them, including Rousseau and 
Kant, to develop on this foundation theories of social contract, again to be 
recognised as »fictitious« by subsequent critics. I have examined some of 
these developments in my previous articles and this present one is intended as 
a continuation of this effort.1 
Apart from natural law theories, the main reference of authors which I wish to 
examine here is Common Law as existing established legal theory and prac-
tice. Although some influence of the natural law theory was in previous times 
' These articles were »Hobbes and the theory of social contract as the context for Kant's political 
philosophy«, Filozofski Vestnik2, Ljubljana 1992; »Kant, razsvetljenstvo in razvoj ter iztek 
teorije družbene pogodbe«, Filozofski Vestnikl, Ljubljana 1993; »Social Contract and Public 
Opinion-Two Political Concepts of the Enlightenment«, Filozofski Vestnikl, Ljubljana 1993 
and »Hugo Grotius in razvoj teorij naravnega prava«, Filozofski Vestni k / Acta Philosophica 
1, Ljubljana 1994. 
The Role of Fictions in Law 153 
present even in Common Law circles, exercised for example by Selden's 
friend, Chief Justice John Vaughan, and even young Sir Matthew Hale before 
the Restoration,2 Common Law was articulated, mainly in the works of Sir 
Edward Coke, Sir Matthew Hale and later Sir William Blackstone, as tradi-
tionalist, immemorial law, based on the reason of the centuries, expressed in 
his institution of case decisions and role of legal precedents as legal rules. It 
was interpreted as customary, unwritten law, expressing common rules and 
collective rationality, as opposed to statute law. Its nature was conventional 
and it was closely bound to legal practice. 
Some of these features of Common Law have already led Hobbes to involve 
himself in controversy with Common Law theorists, opposing them from his 
rationalist and positivist view of rational and written law. Latterly radicals 
have returned to natural law arguments to attack the Common Law tradition. 
Hume afterwards defended the basic premises of the Common law framework, 
Smith has provided new normative criteria for jurisprudential reform, and 
finally Bentham bitterly attacked Common Law as utterly »fictitious«, de-
manding statute law to take its place. 
We have outlined the basic developments in legal theory of that time and we 
can now turn to examining Hume's moral and political theory. 
Hume 
Hume's well-known scepticism allows him to clearly see the elements of 
»fiction« in the theories of his opponents and predecessors. He has rejected 
some of their »fictitious« ideas, but accepts others and in a sense has, as 
Buckle argues, grounded natural law theory on his new moral psychology.3 He 
does not deny the influences of, and links with, the natural theory and he even 
says that his theory of the origin of property is basically the same as that of 
Grotius.4 
He wanted to avoid some of the excesses of natural law rationalism and 
therefore regards rules of justice as conventions, justice itself being artificial, 
not natural virtue, therefore the product of development of legal and social 
institutions. He defends existing social institutions, because he regards them as 
2 These influences are examined in Richard Tuck, Natural Rights Theories, Cambridge Univer-
sity Press, Cambridge 1979, p. 111 sq. 
3 Stephen Buckle, Natural Law and the Theory of Property. Grotius to Hume, Oxford University 
Press, Oxford 1991, p. 295 sq. 
4 David Hume, Enquiry concerning the Principles of Morals, in Enquiries concerning Human 
Understanding and concerning the Principles of Morals, ed. L. A. Selby-Bigge, rev. P. H. 
Nidditch, Clarendon Press, Oxford 1975, p. 307 n. 
154 Gorazd Korošec 
being beneficial to all members of society and as a precondition for the 
improvement of arts and advancement of human relations. 
He also defends Common Law as a legal frame for existing social institutions 
and interactions of citizens, although, as we will see, he gives it a different 
philosophical explanation and justification from that of the mainstream Com-
mon Law theorists. His idea of rules of justice being the unintended result of 
human moral actions was extremely influential in the following centuries, 
being adopted by many important social theorists, including some contempo-
rary ones. Although this very idea could itself be regarded as »philosophical 
fiction«, it remains a fact that it is a very productive, fruitful and widely 
accepted »fiction«. 
Postema is therefore right to see Hume in the context of Common Law theory,5 
as a theorist who gave this theory a new expression. Hume also rules out ideas 
of the state of nature as being »fictitious«, because man's first condition is 
already social, he does the same with ideas of social contract as »fictions« of 
convening de novo, he defends legal precedents as sufficient reasons for new 
judicial decisions and he demands perfectly inflexible rules of justice in order 
to thwart sensible knave who regard only his own benefits, even if it could be 
achieved by transgression of the rules of justice. 
His argument against rationalist philosophers is founded on his basic insight 
that the role of reason in social and everyday life is strictly limited. Reason, 
according to Hume, cannot bring about the making of an agreement between 
people. Imagination must do the job and move us to action. And again, 
imagination is closely connected with »fiction«. These assertions about reason 
have of course developed against the background of Hume's theory of passions 
which direct human actions. This theory is developed in Hume's Treatise,6 the 
third book, where specifically Humean understanding of justice is also devel-
oped. 
Hume's aim in it is to answer the question, How could morality arise as a 
social, public and objective category from natural passion which is something 
private and subjective, and therefore how is the common world created out of 
private elements. But from the beginning he treats man in a social context and 
within the framework of social science, his approach is both psychological and 
social. 
5 Gerald J. Postema, Bentham and the Common Law Tradition, Clarendon Law Series, Oxford 
1986, p. 81 sq. 
'David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge, rev. P. H. Nidditch, 
Clarendon Press, Oxford 1978. 
The Role of Fictions in Law 155 
Therefore we can reject the arguments that his other important work on moral 
theory, namely the second Enquiry, represents a sharp break with his previous 
theory of passions. It is indeed a fact that his theory of passions is declared 
unnecessary and abandoned in Enquiry, but this work also treats reason and 
sentiment as passions, and the concept of sympathy, which now has a wider 
meaning, is connected here with artificial virtues, not just with passions. But 
apart from this, basic elements of Hume's moral theory remain the same, and 
he confirmed this by republishing a short version of the Treatise argument 
under the title A Dissertation of the Passions after Enquiry. 
For Hume, morality as a social category could only be accounted for in terms 
of an observer. We take someone's behaviour as a clue to his character, which 
is the real object of moral evaluation, based on the observer's sympathy. But 
we can also judge the character of a person with regard to the imagined effects 
of his actions, that which would become possible if actual external hindrances 
to his actions were removed. So we must produce habitual rules about connec-
tions between motives and behaviour. And when we judge we are, in order to 
communicate our evaluations, under the influence of actual spectators forced 
to approach the standpoint of an independent spectator. 
Moral approval or disapproval are the names for indirect passions of love or 
hatred, arisen in the observer of moral actions, and they are calm passions (as 
opposed to violent ones). 
Among the qualities subject to moral evaluation, those which are useful to 
others are termed artificial virtues and they are especially important because 
they include justice. And one of the most important questions in moral theory 
for Hume is the question of what are the motives for justice? The answer 
should explain the question of origin and the development of justice. 
To avoid circular justifications of justice which refer to the sense of duty, 
which already presupposes the existence of justice, Hume searches for further 
answers. He respectively rules out the ideas that this motive could be self-love, 
regard for public interest, benevolence towards mankind or benevolence to-
wards a particular person, as inappropriate, as »fictions«. The first is directly 
contrary to justice, the second, regard for public interest, is rejected, because 
there is no natural connection between justice and public interest, but only an 
artificial one, some acts of justice are only concern of two individuals, not 
public interest, and people in fact do not have public interest in mind while 
they consider their behaviour. Benevolence towards mankind does not exist, 
because we cannot sympathise with mankind in general. And the last idea, 
benevolence towards a particular person, is contrary to the main demand of 
justice, that it should be shown to friend and foe alike. 
156 Gorazd Korošec 
Because there is, therefore, no natural motive for justice, Hume concludes, 
»the sense of justice and injustice is not deriv'd from nature.«7 
Therefore justice is an artificial virtue. It »arises artificially, tho' necessarily 
from education, and human conventions.« While passions emerge from nature, 
society generates artificial virtues. 
Justice is necessary for social life and its origin is connected with the establish-
ment of property and stability of property, but it is not naturally relevant to 
man. It became such because of his particular circumstances: exchangeability 
and scarcity of external objects and qualities of the human mind, dominated by 
selfishness and limited generosity. 
Here again we come across »fictitious« ideas - philosophers have developed 
four »fictional« ideas that should illustrate the origin of justice. These are the 
idea of complete abundance in everything and the idea of the extreme gener-
osity and benevolence of human nature; the other two are the direct reversals 
of the former two - a shipwreck situation, where seizing the means of one's 
safety regardless of the property limitations is no longer a crime, and the idea 
of a society of ruffians, where justice is no longer of any use and only violence 
can guarantee self-preservation. The first two ideas represent »the poetical 
fiction of the golden age«, which can only serve the fanatic ideas of enthusi-
asts, whereas the latter two represent »the philosophical fiction of the state of 
nature«. And both are »an idle fiction«.8 
Hume has therefore affirmed his position on the conditions necessary for the 
development of justice by rejecting these ideas. He then proceeds with an 
argument that people's recognition that infringement and violation of someone 
else's property causes so much trouble, makes them abstain from such practice 
and redirect their interested passions, which may have previously led them to 
such acts of violence. Hume maintains that only passion or affection could 
control and counter-balance another passion. 
This led people to enter a convention about stability of property, and justice 
arises out of such conventions. But these conventions are not explicit, rather 
they consist of a great number of individual just actions, followed and imitated 
by similar ones by other people. Justice is therefore a slow growth, it is 
developed through the ages, it arises gradually, by slow progression. 
It is true that Hume oscillates a bit here between two different views on the 
establishment of conventions, contractual and evolutionary. Nevertheless, he 
still articulates his distinctive and innovative view about the origin of justice. 
7 Treatise, p. 483. 
8 Treatise, pp. 493-4. 
The Role of Fictions in Law 157 
The establishment of justice contains a certain paradox. Being an artificial 
virtue, justice has a strong, »natural« tendency towards public and private 
good in general, but need not be beneficial in every case (in contrast with 
natural virtues which are beneficial in any case) and could even be directly 
contrary to both public and private good in some individual cases. Hume 
explains this in the following example: 
»Judges take from a poor man to give to a rich; they bestow on the dissolute 
the labour of the industrious; and put into the hands of the vicious the means of 
harming both themselves and others. The whole scheme, however, of law and 
justice is advantageous to the society, and to every individual.«9 
If men were led only by their regard for public good, they would not adopt 
these rules and restrain themselves by them precisely because of this reason, 
because of their knowledge of particular nonbeneficial effects of justice. 
Although rules of justice are result of human rational designs and their moral 
actions, they are not their intended result, says Hume in a famous passage: 
»Those rules, by which property, right, and obligation are determin'd... have 
all of them a direct and evident tendency to public good, and the support of 
society. This last circumstance is remarkable upon two accounts. First, be-
cause tho' the cause of the establishment of these laws had been a regard for 
the public good, as much as the public good is their natural tendency, they 
wou'd still have been artificial, as being purposely contriv'd and directed to a 
certain end. Secondly, because, if men had been endow'd with such a strong 
regard for public good, they wou'd never have restrain'd themselves by these 
rules; so that the laws ofjustice arise from natural principles in a manner still 
more oblique and artificial. 'Tis self-love which is their real origin; and as the 
self-love of one person is naturally contrary to that of another, these several 
interested passions are oblig'd to adjust themselves after such a manner as to 
concur in some system of conduct and behaviour. This system, therefore, 
comprehending the interest of each individual, is of course advantageous to 
the public; tho' it be not intended for that purpose by the inventors.«-10 
Therefore self-interest of individuals gave rise to the development of the rules 
of justice, indeed in its »enlightened« form, as redirected self-interest, as 
redirected interested passions. Individuals have their own interests at heart, 
says Hume, but approbation of the rules of justice which they establish reaches 
far beyond their intentions. Out of pursuit of individual self-interest, public 
interest is achieved and maintained and Hume has thus establish congruence 
9 Treatise, p. 579. 
10 Treatise, pp. 528-9. 
158 Gorazd Korošec 
between public and private interest. Now he can say that »public utility is the 
sole origin of justice.«11 
Although this idea was first presented by Mandeville, Hume develops it at full 
length. The whole theory of Smith's »Invisible Hand« was already developed 
by Hume. 
But still more important is his idea of rules of justice being unintended 
consequences of human actions and design. This idea could be regarded as one 
of the great moves in the history of philosophy of law, as Haakonssen re-
marks.12 With it Hume avoids the dangers of excessive rationalism replacing 
traditional natural law with secular and empirical conception of fundamental 
law or rules of justice. 
But he did even more, as Haakonssen argues on, with his idea of the »unin-
tended consequence« phenomenon, he theoretically establishes and recognises 
a third category between natural and artificial phenomena as elements of the 
old distinction between nature and artifice, known at least from Hobbes on. He 
distinguishes between natural phenomena which should be explained in terms 
of efficient causes, and artificial phenomena, which can be explained in terms 
of final causes.13 
But the »unintended consequence« phenomena resembles both elements of the 
old distinction, natural and artificial phenomena, being unintended and having 
efficient causes, but still being the result of human rational action. He indeed 
may not have seen all of the consequences of his theoretical achievement, and 
this fact could be explained partly with regard to the circumstances in which 
he has to strongly defend his understanding of the artificiality of justice against 
his opponents and therefore some passages in his work sound rather rationalis-
tic and this in turn causes problems for the interpreters. 
However, he has successfully replaced the old idea of artifice which involved 
constructive reason, and has developed his own coherent evolutionary theory 
of justice. He presents the full theory of what Schumpeter would term an 
»automatic mechanism«, and Hayek would later, in his »return to Hume«, take 
his idea of »spontaneously developing social order« as a foundation of his 
" Treatise, p. 496. 
12 Knud Haakonssen, The Science of a Legislator. The Natural Jurisprudence of David Hume and 
Adam Smith, Cambridge University Press, Cambridge 1981, p. 20 sq. See also his article »The 
structure of Hume's political theory« in The Cambridge Companion to Hume, ed. David Fate 
Norton, Cambridge University Press, Cambridge 1993, pp. 182-221. 
13 This distinction was later taken from him by Kant, who used it in formulating his famous 
antinomies in Critique of Pure Reason. 
The Role of Fictions in Law 159 
counter-attack on constructivist rationalism. Hirschman in his most famous 
book14 also recognised Hume's great theoretical achievement. 
Although this idea of the »unintended consequences« of human actions can be 
regarded by its critics as »philosophical fiction« and some elements be ac-
cused of expressing »cynical reason« (as Sloterdijk would probably do), it 
remains one of the most convincing ideas about the functioning of society and 
an individual's moral life. 
Now let us examine Adam Smith's contribution to modern jurisprudence and 
moral theory. 
Adam Smith 
Adam Smith is deeply influenced by Hume's ideas and he develops his moral 
and legal theory on the foundations which Hume laid for them. He also makes 
wide use of Hume's idea of »unintended consequences« which has now been 
given the name of »Invisible Hand«. But apart from this, Smith tries to solve 
some of the difficulties of Hume's theory. Hume's sympathy mechanism could 
not explain how we could sympathise with those who benefit from the useful 
tendency of artificial virtues, including justice, because we could only 
sympathise with concrete individuals. This is the reason why Hume has 
abandoned the theory of sympathy and replaced it with fellow-feelings in 
Enquiry. The latter does not require a relation with concrete individuals. 
Smith's »situational propriety« can be seen as a solution to this Humean 
problem, and this enables him to connect theories of the origin of justice and 
its moral value, two theories which Hume developed independently. Hume's 
theory met problems in its attempt to answer the question regarding how the 
spread of just practice is possible. A question also remains, how is it possible 
to account for the moral value of justice, if accounting in terms of sympathy 
does not allow sympathy with »anonymous« individual, and accounting in 
terms of fellow-feeling is evidently too optimistic and rationalistic and couldn't 
be ascribed to ordinary men being rather philosopher's speculation. Smith has 
therefore succeed in finding elements of philosophical »fiction« even in Hume's 
sceptical moral theory. 
Smith like Hume, regards as »fictions« natural rights which are understood as 
man's property. But he even thinks that Hume's moral theory was a 
»philosopher's construction« which did not capture human morality as it is. 
14 Albert O. Hirschman, The Passions and the Interests. Political Arguments for Capitalism 
before its Triumph, Princeton University Press, Princeton, New Jersey 1977, p. 25 sq. 
160 Gorazd Korošec 
Smith regards man as a social being from the beginning and so his ideas take 
shape in a social context. Because we draw our ideas, for example our idea of 
personal beauty, from the appearance of others, our first moral criticisms are 
also exercised upon the conduct of other people.15 Others of course judge us in 
the same manner. Thus we became aware of ourselves as persons with a moral 
appearance, subjected to moral evaluation. This perception of other people's 
evaluations makes as conscious of our own mind. Smith concludes that with-
out society the human conscience could not be developed. 
The desire of agreement with others drives us to try to judge ourselves as we 
imagine others would. We have to act as spectators of ourselves, when we are 
at the same time agents. At this point Smith explains in a famous passage how 
a person in his moral evaluation of his own behaviour divides himself into two 
persons: 
»When I endeavour to examine my own conduct, when I endeavour to pass 
sentence upon it, and either to approve or condemn it, it is evident that, in all 
such cases, I divide myself as it were, into two persons; and that I, the 
examiner and judge, represents a different character from that other I, the 
person whose conduct is examined into and judged of. The first is the specta-
tor, whose sentiments with regard to my own conduct I endeavour to enter 
into, by placing myself in his situation, and by considering how it would 
appear to me, when seen from that particular point of view. The second is the 
agent, the person whom I properly call myself and of whose conduct, under 
the character of a spectator, I was endeavouring to form some opinion. The 
first is the judge; the second the person judged of.«16 
We try to judge our own behaviour by the same standard which we judge the 
behaviour of others by, that is the standard of its propriety. We naturally strive 
to bring our moral evaluations into agreement with that of others, and although 
perfect mutuality and agreement of sympathy is impossible and can only be 
imaginary (containing an element of »fiction«), moral sentiments can at least 
be brought in concord, which is enough to give us satisfaction. Therefore 
moral subjectivism is avoided and Smith maintains that in this way operations 
of mutual moral sympathy rather unintendedly produce common social and 
moral standards, sufficient for the functioning of society. So the mutual 
sympathy mechanism is an efficient cause that brings about common moral 
standards. 
But the question still remains as to how moral ideals emerge from this social 
15 Adam Smith, The Theory of Moral Sentiments (TMS), ed. D. D. Raphael and A. L. Macfie, 
Oxford University Press, Oxford 1976, III, I, §§ 4, 5. 
16 TMS, III, I, § 6. 
The Role of Fictions in Law 161 
moral propriety and how they gain independence from socially accepted 
standards. 
Smith answers this question with the following argument: propriety, with 
which we judge moral behaviour, is the aptness of action and its motive to its 
situation. Although the judgement of others of our own actions starts us to 
judge ourselves, we soon move from the question of whether others would find 
our behaviour proper, to the question of whether it is in fact proper and so we 
judge ourselves with a standard different from the opinion of others. But we 
could achieve this by not only taking the position of a spectator of ourselves. 
We must take the position of an impartial spectator, »a third person«, which is 
a moral ideal for both agent and spectator. Apart from social propriety, 
position of an impartial spectator enables us to see »absolute« propriety in 
given situation, and we use it to judge our own behaviour. 
In this way morality is internalised and man's conscience gains its indepen-
dence. When we are regulated by it, we can talk of our self-command, which 
for Smith is a meta-virtue, a foundation for all other virtues. 
So the relation between man's conscience and society reflects a relation be-
tween the actual and ideal, impartial spectator. It is the very disagreement 
between our evaluations of our own behaviour and evaluations of others, that 
make us search for an impartial point of view, equidistant from both former 
views. Smith maintains that seeking social approval in itself has a strong 
tendency of becoming a search for an impartial position. This search may 
indeed never be completely successful, but it is the search itself that matters, 
this search is common to all or at least to a majority and it makes social life 
possible. And this process also adjusts our behaviour to common standards, 
still leaving a place for the independence of moral judgement and actions. 
Smith emphasises the role of education in this process and also the limited 
usefulness of social customs - a socially and morally unacceptable practice 
cannot become a custom. 
Smith's science of morals therefore understand the general rules of morality as 
the unintended outcome of individual moral evaluations, and those rules, when 
internalised, create a sense of duty. Although this theory of obligation is based 
on the descriptive theory, it has great normative importance as well. 
We judge human actions from two different aspects: according to their motive 
or intention and according to their effect or proposed end. According to 
motives we judge the propriety of actions, according to effects we judge about 
their merit. Smith makes a contrast between the moral judgements of philoso-
phers and that of ordinary people. Philosophers mainly judge the effects, while 
common people judge both aspects of the moral actions. 
162 Gorazd Korošec 
But the two judgements are not on a par or a supplement to each other; the 
judgement in terms of motive of moral action is fundamental, and the other one 
is dependent upon it.17 
Of course moral evaluations of men in everyday life differ to some extent from 
Smith's ideal moral judgement which should primarily consider the motive 
and intentions of the moral agent, that is the propriety of action, but should 
also take into consideration the situation in which the action was performed, to 
judge from its situational propriety, and also consider its effects. 
Smith knows that our evaluation of motives is independent of the realisation of 
intended effects and that consequences of moral acts are dependent on fortune, 
but he also know that we can not have full knowledge of man's motives for his 
moral actions. This knowledge is only accessible to God and man's own 
conscience. So on the subject of penal law he remarks: 
»Sentiments, designs, affections, though it is from these that according to cool 
reason human actions derive their whole merit or demerit, are placed by the 
great Judge of hearts beyond the limits of every human jurisdiction ... That 
necessary rule of justice, therefore, that men in this life are liable to punish-
ment for their actions only, not for their designs and intentions, is founded 
upon this salutary and useful irregularity in human sentiments concerning 
merit and demerit, which at first sight appears so absurd and unaccount-
able.«™ 
From the same standpoint Smith, who claims, as we have seen, that situational 
propriety is the most important aspect of a moral action, could also point at 
Hume's »Philosopher's mistake«, his idea of moral judgement about human 
characters. It neglects the context and situation of every given moral action of 
the character in question and is therefore only a »speculative philosophical 
construction«. 
Smith therefore succeeds in building, on the theoretical grounds of Hume's 
moral theory, a fine dialectics of human social and moral life, successfully 
balancing between the normative, ideal and descriptive and explanative di-
mension of his theory. He explains connections, relations and contrasts be-
17 We know that Kant, who admired Smith's Theory of Moral Sentiments, has taken this 
distinction from Smith and used it in his Critique of Practical Reason, although he absolutely 
rejected moral judgements according to the effects of human actions and strictly held 
judgements according to motive as the only proper moral judgements. This has led him into 
certain serious difficulties, of which the most important is perhaps the fact that what he would 
call an »absolutely evil« action could also be performed with a nonpathological motive. This 
one-sidedness of Kant's moral theory was later criticised by Hegel. 
18 TMS, II, iii, 3, § 2. 
The Role of Fictions in Law 163 
tween ideal and common morality, as well as their origin and functioning. His 
whole theoretical building is based on a central idea of the »impartial specta-
tor« which, being an ideal entity, could indeed be regarded as »fiction«, but a 
»fiction«, necessary for the foundation of every philosophical system, and at 
the same time one of the most productive »fictions« for the explanation of 
human moral life and one of the greatest achievements in moral theory. 
And on this basis Smith could explain his views on jurisprudence and develop 
jurisprudential proposals in outline of »the art of a legislator«. But the course 
of our examination now leads us to Bentham and his role in the development 
and transformation of modern legal theory and his contribution to the theory of 
»fictions«. 
Bentham 
Although Bentham would deny this, Hume's reflections on justice and law 
have shaped his own and he silently follows him in posing the problems in 
legal theory. So in his early years Bentham, like Hume in his time, defends 
Common Law as a case law and its institution of judicial precedent, the 
principle that former law decisions are established as legal rules. He made the 
case for observing precedents as legal rules, that is for stare decisis, on the 
grounds that legal practice, organised this way, guarantees stability and secu-
rity of the rule of law.19 
But later in his career Bentham strongly and directly attacks the very practice 
of English Common Law. He accuses the whole legal system of being based 
on »fictions«, he even says that it is »doubly fictitious« and demands its 
replacement by written statute law. He proposes normative standards for law 
and demands it to be guided by the principle of utility. But it remains true that 
the motivation for this attack on Common Law originates in Bentham's specifi-
cally legal concerns and ideas about legal reform and the codification of law, 
because his general theory of »fictions« which he also developed, would allow 
him, as Postema rightly remarks, a much more sympathetic account of Com-
mon Law. 
While Hume's evolutionary view on the development of law was very close to 
the Common Law tradition, Bentham in a rationalistic manner understands 
law as a command, taking this view from Hobbes. In open contradiction to 
Hume he completely rejects the inflexibility of the rules of justice. But his 
" Such views are defended in Bentham's early manuscripts, deposited in University College, 
London Library. 
164 Gorazd Korošec 
emphasis on a normative character of legal theory, and his understanding of it 
as a science, to a certain extent connects him with Smith. 
One of the principal targets of Bentham's attack on Common Law was its 
retrospective, retroactive character. Common law is a collection of judge-
made laws, says Bentham, and »on each occasion, the rule to which a judge 
gives the force of law, is one which, on this very occasion, he makes out of his 
own head.«20 But judges succeed in making laws only if they can convince 
other judges and people that they are not doing so. People are therefore bound 
by laws which they could not have known and to which they could not have 
conformed their behaviour to before the judicial decision. With this ex post 
facto law making the basic virtue of law, the security the law should guarantee, 
is undermined. Therefore, according to Bentham, it is impossible to abide by 
the law. He concludes that this is not a law for a man living in a well organised 
society, but a law for beasts, a »Dog law«, as he calls it. 
» When your dog does anything you want to break him of you wait till he does 
it, and then beat him for it. This is the way you make laws for your dog: and 
this is the way the judges make law for you and me. They won't tell a man 
beforehand what it is he should not do... they lie by till he has done something 
which they say he should not have done, and then they hang him for it. «2] 
Men, because of their dignity as human beings, deserve to be ruled by Statute 
Law, says Bentham. Instead of rational obedience to the law, according to 
which citizens would freely censure the law by their own lights of rational 
reason while obeying punctually, English law is based on blind obedience and 
maintained through terror, and such law introduces tyranny and slavery in-
stead of securing liberty. Bentham's views become more comprehensible if we 
know that in the eighteenth century English penal law indeed became ex-
tremely restrictive and brutal and a wide range of criticism arose. 
The institution of legal precedent also didn't escape Bentham's bitter attack. He 
claims that it establishes a rule that every decision which judges make is 
justified, therefore that: 
»Whatever is, is right - (whatever is - that is to say, whatever, by men in the 
situation in question, has been done) - being tacitly assumed as a postulate, -
the rectitude of doing the same thing, on any and every subsequent occasion 
deemed a similar one, is stated and acted upon, as a necessary consequence. 
This is called following precedents.«22 
20 Jeremy Bentham, The Works of Jeremy Bentham. Published under the Superintendence of... 
John Bowring, 11 vols., Edinburgh 1838-43, V, p. 546. 
21 Works, V, p. 235. 
22 Jeremy Bentham,/} Comment on the Commentaries, in A Comment on the Commentaries and 
A Fragment on Government, eds. J. H. Burns and H. L. A. Hart, London 1977, p. 322. 
The Role of Fictions in Law 165 
Again Bentham was not alone in his opinions. So his contemporary, Jonathan 
Swift, one of the most important and popular writers of the age wrote: 
»It is a maxim among these lawyers that whatever had been done before may 
legally be done again, and therefore they take special care to record all the 
decisions (formerly) made against common justice and the general reason of 
mankind. They produce these, under the name of precedents, as authorities to 
justify the most iniquitous opinions, and the judges never fail of decreeing 
accordingly. «23 
Therefore in his opinions Bentham joined the English Opposition thinkers, 
among which Swift was one of the leading figures. But he also made serious 
remarks about the inflexibility of the Common Law legal rules and so he 
observes with anger: 
»One other capital imperfection /of Common Law is/ ... the unaccommo-
datingness of its rules. Every decision that is given is spun out of some vague 
maxim, conceived in general terms without exceptions, and without any regard 
to times and circumstances. ... Even when it aims at utility, which perhaps is 
now and then, it either falls short of the mark or overshoots it. A sort of 
testimony in recognition of this truth is contained in the magnificent and well-
known adage, fiat justitia ruat coelum.«24 
Common lawyers would therefore, according to Bentham, make and execute 
their decision even if, as a consequence, the sky would fall upon us. Common 
law is therefore incoherent, it represents no body of law and it is not real at all, 
but »doubly fictitious«, it is a no-law. 
So Bentham, who considered himself to be an Enlightenment critic, searches 
for a new model and foundations for law and proposes an outline of utilitarian 
legal positivism. His general theory of law is divided into the theory of laws, 
consisting of the formal criteria of general propositions of law and the utilitar-
ian theory of legislation, concerned with the content of law; and a theory of 
adjudication, consisting of constitutional theory and theory of judicial proce-
dure and an account of practical judgement. 
Bentham rejects the liberal theory of constitution with its ideas of division of 
powers and independence of judiciary, developed by Montesquieu. He thinks 
that such a system would paralyse officials and take all effective power from 
them, as well as lead to the irresponsibility of judges. He demands a strong 
central government subjected to the possibility of public criticism and judi-
ciary responsible to the body of the people, working under the conditions of 
23 Jonathan Swift, Gulliver's Travels, Bk. 4, ch. 5. 
24 Jeremy Bentham, Of Laws in General, ed H. L. A. Hart, London 1970, XV. 12 n. 1. 
166 Gorazd Korošec 
publicity. His view of democracy emphasises the role of the »public opinion 
tribunal« and elections, but he sees no need for the extended participation of 
people in the performance of the government, his concept of representation is 
rather Burkean. Public opinion should have a judicial function and judge the 
work of public officials and, if needed, demand their recall, and its main 
medium of expression must be the press. 
Bentham's project of legal reform is part of the European legal codification 
movement, although Bentham, in contrast with its other representatives, re-
jects the natural law theory. Defending his idea of an »art of legislation«, he 
says that: 
»With a good method, we go before events, instead of following them; we 
govern them instead of being their sport. A narrow-minded and timid legisla-
ture waits till particular evils have arisen, before it prepares a remedy; an 
enlightened legislature foresees and prevents them by general precautions. «25 
Events of course can not be individually foreseen, but they may be foreseen in 
their species, says Bentham. A good plan for the organisation of law will leave 
no terrae incognitae in the field of the law. To achieve this, the principle of 
utility must become our guidance and utility, not the regard of rules, a decision 
principle of judges in legal practice. 
But such utilitarian demands are not compatible with Bentham's views on legal 
positivism. In order to reconcile them, Bentham made a distinction between 
theories of law and adjudication, but in so doing he cannot avoid their conflict. 
His theory of adjudication undermines his general theory of law. 
The code of laws namely enjoys public confidence only so far as its laws are 
fixed. But if judges, who are allowed their flexible interpretation according to 
the utilitarian principle, change them at leisure, and the public become aware 
of discrepancies, Bentham's strategy fails. He wants to avoid the »paradox of 
inflexibility« of legal rules, but now he meets the »paradox of (their) flexibil-
ity«. In his view, officials are not bound to adhere strictly to the legal code, but 
this contradicts the demands of his general theory of law and undermines the 
legitimacy of the legal system. So the coherence of his legal theory is lost. 
Bentham's project cannot achieve the aims it set and is therefore fundamen-
tally mistaken. He also privatised justice and adjudication with his proposals 
that judges should only mediate between two private parties in individual 
cases, therefore losing sight of public interest as a basic concern of the law. 
All this is not surprising given his general views on human individual and his 
25 Jeremy Bentham, General view of a Complete Code of Laws, in Works, iii, p. 205. 
The Role of Fictions in Law 167 
relation to society. He wants to preserve the sovereignty of individual's ratio-
nal judgement and its role in social life, but at the same time deny, or overlook, 
the possibility of conflicts between the judgements of different individuals and 
individual interests. 
And so his contemporary, Adam Ferguson, rightly criticised such a view 
which loses sight of the »public spirit« of the people.26 Even Bentham's 
»public opinion tribunal« has no efficient means of expressing the demands 
which the government should follow. And in the same manner, Bentham 
unquestionably presupposes that the legal system should be based on consent, 
but this could, as we have seen, easily fail to be realised in practice. 
He fails to see that the role of the law is to provide a matrix and forum for 
constant debate and forging of consensus. Because legal justice is never likely 
to match ideal justice, it must be open to challenge and reformulation. 
But still Sir Henry Maine was right when he attributes to Bentham and Hobbes 
a fundamental achievement of a divorce of law from traditionally history, a 
divorce which is distinctive for the emergence of modern societies in which 
traditional history is replaced by notions of sovereignty and (statutory) Law.27 
In contrast, analytical legal theorists and advocates of legal positivism which 
Bentham initiated, are not justified in pointing at the incompatibility of norma-
tive grounds of Bentham's legal theory and his legal positivism. As Postema 
argues, there is no internal incoherence in using normative grounds for an 
analysis of law, and this is what Bentham is doing. Analytical jurisprudence in 
its understanding of language mistakenly assumes that legal concepts could be 
purified of their everyday meaning and overlooks the dependence of their 
meaning on our »legal sensibility«. 
Bentham also developed his general theory of »fictions«28 in which he first 
wanted to completely rule out »fictions« and »fictitious« terms, only leaving 
room for real terms with existing referents, that is the thing to which a term 
refers, but later he recognises that »fictions« play a necessary role in every 
theory as well as in everyday thinking. 
Bentham, as we have seen, attacked the whole existing legal theory and 
practice as »fictitious« and delineates proposals for their complete reform. But 
his main »fictions« remain the idea of one and unquestionable social utility 
and the idea that private utility could be treated separately from its social 
context. 
26 Adam Ferguson, An Essay on the History of Civil Society, ed. D. Forbes, Edinburgh 1966, pp. 
165-6, 263-4. 
27 Sir Henry Maine, Lectures on the Early History of Institutions, London 1875, pp. 396-7. 
28 See C. K. Ogden, Bentham's Theory of Fictions, Kegan Paul, London 1932. 
168 Gorazd Korošec 
Bentham's legal theory was extremely influential and gave rise to the develop-
ment of legal positivism, but perhaps it was even too successful in so far as 
Hayek must later return to Hume's position in his political and moral theory. 
Conclusion 
We have come to the end of our examination of the development of theories of 
»fiction« from Hume to Bentham and conceptualizations of the role of »fic-
tions« in legal theory. Given that legal theory is the cornerstone of common 
interpretation of social reality and that reality itself is discursively structured, 
that its perception is dependent upon our everyday legal, political and social 
concepts, we can recall Lacan's famous saying that the truth (itself) has the 
structure of fiction. We have seen how Hume and Smith have attempted to 
reveal the »true« functioning of society with their theories of »unintended 
consequences« of human actions, and how Bentham tried to give legal con-
cepts their »true« form, that is the form they should have. However, the truth 
is, as we all well know, never complete. 
Their respective theories of »fiction« were also successful. Some »fictions« 
which they criticised have successfully been replaced, others were misinter-
preted as such by them and have remained firmly in place. All three of these 
authors have criticised modern (abstract) ideas of natural law and we have 
much to learn from their ideas if, as Hayek suggests, we removed some of their 
rationalistic edge. 
Basic elements of their doctrines are still present today and their examination 
can help us to understand current political, social and moral theories and 
contribute to open post-modern debate. Our examination can teach us that our 
fundamental ideas and concepts which we use to orientate ourselves in social, 
moral and political life, are but »fictions«, but at the same time necessary 
fictions, without which we would lose every possible compass. But they are 
not fixed in time or unchangeable, they are not even solid or absolutely 
reliable, but open to critical examination and necessary adjustment. Whether 
cynicism of this post-modern era has unjustly and shamelessly made a virtue 
out of opportunistic adaptation to such altered and changeable circumstances, 
or whether these new circumstances bring about the possibilities of human 
emancipation and improvement and are benevolent and beneficent, remains an 
open question.