Bentham’s "Theory of Legislation"

Review of:
Theory of Legislation (by Jeremy Bentham)

Mr Hildreth’s translation of Dumont's translation of Bentham's great work, is satisfactory as a proof of the interest which the work itself still excites. Mr. Mill has observed that Coleridge and Bentham represent, in this country and in the present generation, the two lines of thought between which speculation continually oscillates, and that, in order to understand fully the course of opinion for the last fifty years, it would be necessary to reach a point of view from which the principles of each could be contemplated in an easy and natural manner.

We should doubt whether this remark did not attach too much importance to Coleridge, and whether it was not rather for want of a more conspicuous writer on that side, than on account of his inherent power, that Mr. Mill attached so much importance to his writings. In one qualification of a great writer he certainly failed. He left behind him no one great book, and his disciples are compelled to elicit his doctrines, by laborious examinations and comparisons, from a vast mass of disjecta membra, instead of being able to point to any single work as a standard exposition of his characteristic views.

The same observation applies, to some extent, to Bentham. Many, if not most, of his books are more or less fragmentary and unfinished, for he was both laborious and idle. He seems to have delighted in pondering over a subject, and laying out any amount of labour in inventing schemes and classifications about it, but the task of throwing what he had thus thought out, into a shape in which it might become acceptable to the rest of the world, was barely tolerable to him. Hence, with the exception of a few minor works, like the fragment on Government, and the tract on Usury, such of his books as were not manipulated by Dumont, still remain in their original chaos. Elaborate works, such as the Rationale of Judicial Evidence, are left in a state so disorderly and vexatious, that they remind the reader of houses which have fallen into ruin without having been ever inhabited—the speculation of an unlucky builder. The scaffolding is not removed. The walls have never been painted or papered, and in many places the rafters and joists have not even been concealed by plaster.

The work which M. Dumont cleaned, washed, and translated into French, and which Mr. Hildreth has retranslated into English, is the great exception to this. It represents Bentham's cardinal doctrines in a manner at once complete and authentic, and it applies them, with precision and detail, to the most important of the subjects to which they relate. Its general drift may be thus summed up. The test of the morality of all actions is their tendency to produce pain or pleasure. A benevolent legislator will make his laws with a view to the promotion of pleasure and the diminution of pain, and careful analysis shows that no other object for laws can be distinctly enounced and avowed, which will command the assent of any considerable body of men, sufficiently well instructed to understand their own interests and to know their own strength.

Having laid this foundation, with a power of thought and a humorous force of language which are considerably diminished by translation, Bentham proceeds to analyse pleasure and pain. There are fifteen kinds of pleasure—namely, pleasures of—1, The Senses; 2, Riches; 3, Address, i.e. skill; 4, Friendship; 5, Reputation; 6, Power; 7, Piety; 8, Benevolence; 9, Malevolence; 10, Intelligence; 11, Memory; 12, Imagination; 13, Hope; 14, Association; 15, Comfort. There are eleven sorts of pain, which for the most part are the converse of the fifteen pleasures. These pains and pleasures are connected with particular actions, so as to constitute rewards or punishments in four ways — namely, physically, the pain of a cut or burn; morally, the pain of being blamed; politically, the pain of being imprisoned; religiously, the pain of fearing future punishments. Thus we get four sanctions — the physical, the moral or popular, the political, and the religious. This is the groundwork both of morality and legislation, which differ from each other, 'not by their centre, but by their circumference.'

Legislation, however, has in fact been much misunderstood, and laws have been continually made upon false principles. In a chapter which was afterwards expanded into the well-known volume on Fallacies, Bentham exposes these false assumptions, with that air of crushing self-confidence which was one of his most characteristic gifts, and which, it must be owned, was often very well founded.

He next proceeds to describe the principles of a civil and criminal code. The object of the legislator is to produce the happiness of society, and this happiness may be divided into four principal heads— subsistence, abundance, equality, and security. The discussion of this subject is admirable. As for subsistence and abundance, they can be favoured by the legislator only indirectly, that is to say, by securing to every one the fruits of his labour, or the property which he actually possesses under the existing state of things; but equality is a substantial advantage.

Bentham's account of it is one of the most characteristic parts of his book. Almost all the common speculations on this subject run at once into declamation. They are all amplifications of the commonplaces that men are 'born equal,' or are 'equal in the sight of God.' Bentham has the merit of reducing what has been generally used as a mere rhetorical falsehood, to almost mathematical precision. Wealth (taken in the widest sense) produces happiness, but not in the direct ratio of its amount. It is so much subdivided, or so much accumulated, as to be almost worthless to its possessors.

From this principle he proves, by a sort of maximum and minimum problem, that equality ought to be favoured, and kept in sight, in laws which affect the distribution of property. This end, however, is always to be subordinated to the principle that the existing state of things is taken as the starting-point, and that the maintenance of individual security in that state of things, is the principal object of the legislator. Equality, therefore, can be favoured only by degrees —by regulating successions, preventing monopoly, and the like. As for security itself, it is provided for simply by the protection of person and property, and by abstaining from invasions of them which are not productive of some benefit greater than the suffering which they produce.

Such being the general objects of the legislator, how is he to attain them? He must, in the first place, remember that he will have to make laws in, and for, a state of things already existing, and that the popularity of his laws, their goodness in relation to the nation for which they are made, will depend principally upon the degree in which they respect or disappoint the expectations already formed by those whom they are to affect. When people speak of a law as tyrannical or unjust, they usually mean that it needlessly disregards their natural expectations, either by being inconsistent, capricious, or founded on some other principle than that of general utility.

This, again, is a most characteristic chapter. According to the view taken of law and morals by Bentham and his school, the proper meaning of injustice is partial application of the law, be that what it may. If, for instance, there were a law that the seventh sons of seventh sons should be put to death, it would be unjust to spare one of them. The world at large, it may be objected, would say that the law itself was unjust. Bentham would reply — By saying so, they would really mean nothing more than that the law was calculated to inflict great needless suffering, and also to disappoint that expectation of security which would be as natural in those who suffered by it as in others. The power of law over people's expectations and plans of life, and the inclination of mankind to judge of the character of the law by the way in which this power is exercised, are no doubt matters of the highest importance in legislation, and Bentham deserves great credit for having been the first writer to invest them with anything approaching to a fair share of prominence.

Having thus described in general the task of the legislator, by describing, his object, the means at his disposal, and the conditions under which those means must be used, Bentham comes to the particular measures which are to be taken. He observes, in the first place, that the legislator, like the physician, has before him only a choice of evils. Laws, from their very nature, must always be applications of force. Where there is no force, there can be no sanction; where there is no sanction, there can be no law. Thus every law is a restraint, and a threat of future suffering, and, in each aspect, is an evil justifiable only because it prevents a greater evil.

One great object, therefore—perhaps the great object—of the legislator, ought to be to minimise, not only the number of his laws, but the number of occasions on which it will be necessary to put them in force; and the surest way of doing this is to make them conformable to the natural expectations of men. Thus the reason why the law should give the father's property, on his death, to his children, is because they have always been led to expect it and would be disappointed if they had it not. As Bentham observes, 'The legislator is not the master of the dispositions of the human heart, he is only their interpreter and minister.'

He goes with great minuteness into the effects of this principle on the transfer of property by consent or by distribution after death, and on the different great relations of life—master and servant, guardian and ward, father and child, husband and wife. It would lead us too far to describe even the leading points of his views on these subjects.

A single illustration will be sufficient. What, he inquires, is the peremptory decisive reason why the legislator should enforce contracts? He replies: 'Because men are the best judges of their own interests, and therefore it may be assumed that contracts are usually advantageous to each of the contracting parties.' If it be objected that the law is seldom called upon to enforce a contract unless the contract has become disadvantageous to one of the parties, Bentham's answer is, that not to enforce it would be to inflict on the party who seeks to enforce it the pain of the disappointment of a natural expectation, and also to diminish the security of all other contracting parties, which, taken together, is a greater evil than that of making the defendant stand to a bad bargain. No one can appreciate the importance of this way of treating the subject who has not had some experience of the endless confusion and trouble which arise from the attempt to explain the law of contracts on any other footing, and to assign the cases in which a contract is 'void in itself.' Bentham was perfectly justified in saying that, after a great deal of vague talk, two things only remain positive rales —the will of such and such a legislator, and the principle of general utility.

The principles of the Penal Code are hardly so interesting, and are neither so original nor so profound, as those of the Civil Code. Bentham's leading remark is, that civil and criminal law ought not to be considered as different departments of one subject, but rather as different views of the same set of actions—the difference consisting in the purpose for which they are classified, which is in one case the apportionment of punishment, in the other the enforcement of general rules in particular cases. The doctrine that the sanction is of the essence of law, and that it is this which distinguishes between law and morals, no doubt leads to the conclusion that, in a certain sense, all laws are criminal or penal. They all involve, somewhere or other, and under some circumstances or other, the application of force.

Perhaps the most remarkable part of Bentham's explanation of the principles of the Penal Code, is to be found in his account of the satisfactions or compensations which the criminal law ought to afford to those who are injured by crimes. They are of several kinds—pecuniary satisfaction, restitution in kind, 'attestatory' satisfaction (such, for instance, as a public record of the falsehood of a libel), satisfaction in point of honour, vindictive satisfaction, and, lastly, subsidiary satisfaction at the public expense. This he advocated in the cases of physical calamities like a flood or a fire, invasions, judicial errors, and violent crimes which ought to have been prevented—riots, for instance. Systems of private assurance he thought might be more fit for other crimes, as, for instance, thefts and frauds. He insisted much on the importance of attestatory and honorary satisfactions, and has a singular chapter on the good and evil of duelling. It is characteristic of Bentham's enthusiasm about law, which he regarded with something of that affection which an inventor feels for a patent machine, that he seems to have overlooked, or at all events underrated, the danger of making people nervous and fidgety about their reputation by greatly extending the security which the law as it stands gives to it.

These are a few of the salient points of one of the most influential of modern books. If any one would take the trouble of reading it, with an early edition of Blackstone on one side, and a late edition of Stephen's Commentaries on the other, he would be able to satisfy himself that it has met with a degree of success which perhaps no other book ever gained in this country. When to this it is added that the Code Napoleon, and the Penal and Civil Codes, by which 130 millions of people are governed in the East Indies, are founded upon it, no more need be said as to the results which it has produced. It has, of course, been severely criticised. In a violent pamphlet an eminent French writer, speaking of the inaptitude of the English for metaphysical speculation, expressed his opinion that 'Bentham's metaphysical nullity' had been exposed by Jouffroy in his Cours du Droit Naturel. This exposure, it seemed to be supposed, reduced Bentham to the level of a man of great practical sagacity, destitute of any philosophical conception of the bases on which his practice rested. It may be interesting to take this opportunity of shortly examining the justice of this observation.

Jouffroy's Cours du Droit Naturel consists of reports of the lectures delivered by him at the Sorbonne between 1830 and 1842. They were unfortunately interrupted by his death in, or shortly before, the latter year, and the world was thus deprived of the opportunity of seeing how he would have dealt with the great practical difficulties which have generally proved insuperable to thinkers of his school.

His book is most instructive and delightful, and deserves a more extended notice than we can at present afford to it, but the points at issue between him and Bentham may be very shortly stated. His own theory was that there are three modes in which human actions are determined. There is the instinctive or passionate, in which the passion itself immediately seeks its own gratification; the reflective, in which we act from a calculation as to our own interests; and lastly, the moral, in which we act without passion and from purely rational motives. This rational motive consists in an immediate perception of the final object of the universe at large, and of ourselves as parts of it, and of a harmony or discord, as the case may be, between this end and the proposed action. This perception is the ultimate explanation of morality, for 'the end of a being is the good of that being.' Pleasure and pain are 'phenomena subordinated to good and evil,' and they arise from the accidental fact that we happen to be sensitive as well as active beings. This conception or idea of good is, however, the privilege of a few. 'Though reason shows itself very early in man, no one would venture to maintain that it rises immediately to this high conception of order, which is the moral law; nay, more, every one knows that in many men this high conception of the moral law never throws itself into a precise shape.'

He adds elsewhere, 'There is, moreover, a profound agreement, proved by experience to exist, between obedience to the law of duty and our interest well understood;' and farther on he observes that obedience to the moral law produces a pleasure, and disobedience to it a pain, 'the keenest that human sensibility can experience.' Having laid down his own principles, of which these form a part, in two lectures on the 'moral facts of human nature,' he proceeds to refute various systems conflicting with his own, and amongst the rest that of Bentham.

He begins by observing that Bentham was a legislator, and not a metaphysician. He admits elsewhere that legislation is, and ought to be, generally speaking, governed by the principle of utility, and the two remarks put together seem to prove that Bentham had firmly grasped so much at least of metaphysics as related immediately to his own subject. The question between him and Jouffroy thus reduces itself to a comparatively small point—namely, whether he was right or wrong in denying the truth of Jouffroy's opinion, that the highest mode of the determination of human actions is, when they are determined by a conception of universal order.

It seems very harsh criticism to say that this disagreement in itself shows metaphysical nullity. That the form into which Bentham threw his denial of such doctrines was rough and contemptuous, and perhaps even rude, is true; but the denial itself is the cardinal doctrine of what is certainly the most successful, if it is not the most popular, of all metaphysical schools. Jouffroy himself admits that many people cannot perceive his transcendental rule of morality, and it would be very easy to state objections to it, which have been raised a thousand times, and have never received a satisfactory answer. We prefer, however, to confine ourselves to his criticisms on Bentham.

His first objection is that Bentham's system is purely selfish, and that, as the interests of men in any existing state of society are inconsistent, the selfish principle, carried out, would lead to anarchy. It is perfectly true that Bentham has not given sufficient prominence to the distinction between the two questions— 'What is the meaning of morality?' and 'Why should I, A. B., be moral?' But he has recognised that distinction.

His theory is, that morality means nothing else than acting with a reference to the greatest happiness of the greatest number, and that there are four classes of reasons which dispose men so to act— namely, regard for the natural consequences of their conduct, respect for the opinions of others, fear of the law, and the love or fear of God. To this Jouffroy says, 'Then the rule of general utility which you put forward is a lie, for personal utility is still the real rule.' This is like saying, 'Thou shalt do no murder' is a lie, because people are hanged if they do commit murder. The fact that there are sanctions for morality, that there are reasons why people should be moral, is the very thing that gives morality its importance.

It is almost wearisome to find that Jouffroy adds that, inasmuch as, according to Bentham, individual interest is the ultimate rule of conduct, a man would have the right to rob if he thought that, all things considered, he would get more pleasure than pain by the robbery. Any system becomes absurd when words are applied to it which it does not recognise. In Bentham's system, the word 'right' means a power secured by law, and no doubt every one has secured to him by law the power of doing whatever he can, subject to the consequences.

A man has the power of forming a design to rob, subject to the religious sanction—that is, subject to the evil consequences of offending God, who knows the heart; he has the power of putting it into execution, subject to the popular and legal sanctions —that is, to the risk of infamy, plus the risk of being immediately stopped, apprehended, or even killed by way of prevention, and of being severely punished in case of success. That all men have, in this sense and under these restrictions, a right to do all things, follows from the fact that they are voluntary agents.

Let us take an illustration. Has a man a right to marry two wives at once? Certainly not in England in the present day, because he would be considered infamous, would be punished by the law, and would, according to our notions of religion, sin against God. Had Jacob a right to marry Leah and Rachel at once? Yes; for he was subject to no infamy, no punishment, and, according to the views of his time and country, he committed no sin. Suppose the Englishman in the present day cares for no consequences here or hereafter, and determines to take them all? No doubt he has a right to do so, for the consequences are the only things which can prevent him; and if in fact they do not prevent him, all that the rest of the world can do is to inflict them, and to admit the fact that they were inflicted and were ineffectual. To blame Bentham's system because it leaves people the power of doing wrong, i subject to the consequences of wrong-doing, is to blame it for being a legislative system at all. How can men influence each other's conduct, except by appealing to their hopes and fears?

Jouffroy's objection, however, does not stop here.

He not only says that Bentham's system gives every man a right to rob, but he goes on to say that there is no legitimate way of substituting the rule of the general interest for the rule of the interest of individuals; and he rather harshly says, 'Cette substitution n'est qu'un mensonge.'. . . 'Elle est impossible, et la regie d'interét genéral est en conséquence un principe de l'égoisme et n'en peut sortir.' This criticism appears to assume that the proposition which Bentham wishes to prove is, that if all men were, at a given moment, to begin to pursue each his own greatest happiness, the result would be the greatest happiness of the greatest number. This, of course, depends upon the state of things with which you begin. The greatest happiness of Abraham Lincoln at this moment would involve the destruction of Jefferson Davis; and in no state of things that the world has ever yet known were the happiness of each and the happiness of all proximately coincident.

Bentham certainly never makes any such assertion as that which Jouffroy appears to ascribe to him. His fundamental assumption is that the legislator whom he addresses wishes, for whatever reason, to promote the happiness of the people for whom he legislates. He asserts that, as a fact, every individual does seek his own happiness on all occasions, and the object of his book is to show how, upon this assumption, and with this datum, the result of a maximum of happiness is to be produced. If he had been asked why the legislator should care about the happiness of the people, he would no doubt have said that he will care for it according to the force which the physical, the moral, and the religious sanctions exercise on his mind. Whether he cares for his object more or less, this is the way by which he must attain it. These assertions are perfectly simple. No one can misunderstand them, and it is universally admitted that Bentham argued as consistently as possible on his own principles, though his disciples, Austin and Mr. Mill—to whom, perhaps, Mr. Bain should be added—have enlarged and explained some of his principles in a valuable manner.

The real exception which M. Jouffroy has to take to them is, that Bentham did not hold the transcendental theory of duty. In this, as we have already observed, he may have been right or wrong, but it is hard measure to describe his dissent from a very disputable theory as 'metaphysical nullity.'

It is difficult to add anything to so dry a controversy as that into which the dispute between Jouffroy and Bentham thus finally resolves itself. There are, however, one or two collateral observations which are often neglected, and of which Jouffroy's writings remind us. He complains, in his criticism on Hobbes, that Hobbes attaches to the words 'right' and 'duty' meanings entirely different from those which men usually attach to them. The complaint shows a point of view, on the part of the critic, so entirely different from that of the author, as to raise a strong presumption against the justice of the criticism. Bentham, and others of his way of thinking, would say that such words as 'right,' 'duty,' 'law,' 'nature,'and the like, are used in a more confused and indefinite manner than any others, and that the very first step towards any satisfactory kind of moral speculation is to reduce them to a definite meaning. These meanings must, of course, differ in different systems, and it is by those differences that the systems are distinguished from each other.

Jouffroy himself was not very happy in his use of words, or rather' in his remarks upon them. He says, for instance, 'Le bien, l’utile, le bonheur, trois idées que la raison ne tarde pas à tirer du spectacle de notre nature, et qui sont parfaitement distinctes dans toutes les langues.' In fact, 'Le bien' cannot be translated into English, and it is not even natural French. 'The good' or 'the well' is not sense. Adjectives and adverbs want substantives and verbs to complete them. The fact that transcendentalists of all ages and nations are obliged to distort their own language, before they can express what they assert to be the fundamental idea of all, is not unimportant. 'Happiness' is a substantive, which can be understood, but 'the highest good' is an expression which leaves a blank. The highest good what? The highest good health, the highest good fortune, are, at all events, good grammar, but the highest good, by itself, is not.

No doubt there will always be a class of people to whom Bentham's reputation in England will be a proof that we are a grovelling, low-minded race who cannot soar—who have, as a French critic said, hands and feet, but no wings. A candid observer will put a different construction on the fact. The great recommendation of Bentham, and men like him, to Englishmen in general, even to those who care most for abstract inquiries, is that they do give the one great pledge of truth. They solve real problems, and, till somebody else can solve them better, their power will not be shaken in this country.

Jouffroy died before he came to the practical application of his transcendentalism, but the real objection to such theories is that they never stand the test of practice. Try, for instance, to regulate the law of marriage on transcendental principles. Does the transcendental moral law permit of divorce, or not, and in what cases? When transcendentalism is brought to bear upon such a subject, it always comes to a futile conclusion. It is written in my inmost heart, says one such theorist, that divorce is an iniquity. And it is written in mine, says another, that it is a primaeval, natural, imprescriptible right of man. For undisputed points of morals you can always set up a transcendental authority. It is in uncertain cases that an authority is wanted, and then it is not to be had.

Bentham, on the other hand, may be right or wrong, but the world at large can always judge which it is. What was written in Kant's heart no one can tell, but whether Bentham estimated the consequences of the liberty of divorce rightly, is a question on which every one can judge for himself. These practical questions are the only real tests of the value of theories. The falling of an apple is a very little thing, but before you can explain it you must know the arrangement of the solar system, and the most magnificent accounts of that system which fail to explain it, fail to do what is required of them.

Saturday Review, September 10, 1864.