Bentham’s Legacy – Quantification of Fact Finding

Jeremy Bentham, radical philosopher, was a source of many antic proposals. Perhaps his most antic proposal was to have himself stuffed, mounted, and displayed in the halls of University College of London, where he may still be observed during normal school hours. In ethical theory, Bentham advocated for an extreme ethical reductionism, known as utilitarianism. Bentham shared Edmund Burke’s opposition to the invocation of natural rights, but unlike Burke, Bentham was an ardent foe of the American Revolution.

Bentham was also a non-practicing lawyer who had an inexhaustible capacity for rationalistic revisions of legal practice. Among his revisionary schemes, Bentham proposed to reduce or translate qualitative beliefs to a numerical a scale, like a thermometer. Jeremy Bentham, 6 The Works of Jeremy Bentham; Rationale of Evidence, Rationale of Judicial Evidence at 225 (1843); 1 Rationale of Judicial Evidence Specially Applied to Judicial Practice at 76 (1827). The legal profession, that is lawyers who actually tried or judged cases, did think much of Bentham’s proposal:

“The notions of those who have proposed that mere moral probabilities or relations could ever be represented by numbers or space, and thus be subjected to arithmetical analysis, cannot but be regarded as visionary and chimerical.”

Thomas Starkie, A Practical Treatise of the Law of Evidence 225 (2d ed. 1833). Having graduated from St. John’s College, Cambridge University, as senior wrangler, Starkie was no slouch in mathematics, and he was an accomplished lawyer and judge later in life.

Starkie’s pronouncement upon Bentham’s proposal was, in the legal profession, a final judgment. The idea of having witnesses provide a decigrade or centigrade scale of belief in facts never caught on in the law. No evidentiary code or set of rules allows for, or requires, such quantification, but on the fringes, Bentham’s ideas still resonate with some observers who would require juries or judges to quantify their findings of fact:

“Consequently statistical ideas should be used in court and have already been used in the analysis of forensic data. But there are other areas to explore. Thus I do not think a jury should be required to decide guilty or innocent; they should provide their probability of guilt. The judge can then apply MEU [maximised expected utility] by incorporating society’s utility. Hutton could usefully have used some probability. A lawyer and I wrote a paper on the evidential worth of failure to produce evidence.”

Lindley, “Bayesian Thoughts,” Significance 73, 74-75 (June 2004). Some might say that Lindley was trash picking in the dustbin of legal history.

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