CHAPTER VI

BENTHAM'S DOCTRINE

I. FIRST PRINCIPLES

Bentham's position is in one respect unique. There have been many

greater thinkers; but there has been hardly any one whose abstract

theory has become in the same degree the platform of an active political

party. To accept the philosophy was to be also pledged to practical

applications of Utilitarianism. What, then, was the revelation made to

the Benthamites, and to what did it owe its influence? The central

doctrine is expressed in Bentham's famous formula: the test of right and

wrong is the 'greatest happiness of the greatest number.' There was

nothing new in this assertion. It only expresses the fact that Bentham

accepted one of the two alternatives which have commended themselves to

conflicting schools ever since ethical speculation was erected into a

separate department of thought. Moreover, the side which Bentham took

was, we may say, the winning side. The ordinary morality of the time was

Utilitarian in substance. Hutcheson had invented the sacred phrase: and

Hume had based his moral system upon 'utility.'[355] Bentham had

learned much from Helvetius the French freethinker, and had been

anticipated by Paley the English divine. The writings in which Bentham

deals explicitly with the general principles of Ethics would hardly

entitle him to a higher position than that of a disciple of Hume without

Hume's subtlety; or of Paley without Paley's singular gift of

exposition. Why, then, did Bentham's message come upon his disciples

with the force and freshness of a new revelation? Our answer must be in

general terms that Bentham founded not a doctrine but a method: and that

the doctrine which came to him simply as a general principle was in his

hands a potent instrument applied with most fruitful results to

questions of immediate practical interest.

Beyond the general principle of utility, therefore, we have to consider

the 'organon' constructed by him to give effect to a general principle

too vague to be applied in detail. The fullest account of this is

contained in the _Introduction to the Principles of Morals and

Legislation_. This work unfortunately is a fragment, but it gives his

doctrine vigorously and decisively, without losing itself in the minute

details which become wearisome in his later writings. Bentham intended

it as an introduction to a penal code; and his investigation sent him

back to more general problems. He found it necessary to settle the

relations of the penal code to the whole body of law; and to settle

these he had to consider the principles which underlie legislation in

general. He had thus, he says, to 'create a new science,' and then to

elaborate one department of the science. The 'introduction' would

contain prolegomena not only for the penal code but for the other

departments of inquiry which he intended to exhaust.[356] He had to lay

down primary truths which should be to this science what the axioms are

to mathematical sciences.[357] These truths therefore belong to the

sphere of conduct in general, and include his ethical theory.

'Nature has placed mankind' (that is his opening phrase) 'under the

governance of two sovereign masters, pain and pleasure. It is for them

alone to point out what we ought to do, as well as to determine what we

shall do.' There is the unassailable basis. It had been laid down as

unequivocally by Locke,[358] and had been embodied in the brilliant

couplets of Pope's _Essay on Man_.[359] At the head of the curious table

of universal knowledge, given in the _Chrestomathia_, we have Eudaemonics

as an all-comprehensive name of which every art is a branch.[360]

Eudaemonics, as an art, corresponds to the science 'ontology.' It covers

the whole sphere of human thought. It means knowledge in general as

related to conduct. Its first principle, again, requires no more proof

than the primary axioms of arithmetic or geometry. Once understood, it

is by the same act of the mind seen to be true. Some people, indeed, do

not see it. Bentham rather ignores than answers some of their arguments.

But his mode of treating opponents indicates his own position.

'Happiness,' it is often said, is too vague a word to be the keystone of

an ethical system; it varies from man to man: or it is 'subjective,'

and therefore gives no absolute or independent ground for morality. A

morality of 'eudaemonism' must be an 'empirical' morality, and we can

never extort from it that 'categorical imperative,' without which we

have instead of a true morality a simple system of 'expediency.' From

Bentham's point of view the criticism must be retorted. He regards

'happiness' as precisely the least equivocal of words; and 'happiness'

itself as therefore affording the one safe clue to all the intricate

problems of human conduct. The authors of the _Federalist_, for example,

had said that justice was the 'end of government.' 'Why not happiness?'

asks Bentham. 'What happiness is every man knows, because what pleasure

is, every man knows, and what pain is, every man knows. But what justice

is--this is what on every occasion is the subject-matter of

dispute.'[361] That phrase gives his view in a nutshell. Justice is the

means, not the end. That is just which produces a maximum of happiness.

Omit all reference to Happiness, and Justice becomes a meaningless word

prescribing equality, but not telling us equality of what. Happiness, on

the other hand, has a substantial and independent meaning from which the

meaning of justice can be deduced. It has therefore a logical priority:

and to attempt to ignore this is the way to all the labyrinths of

hopeless confusion by which legislation has been made a chaos. Bentham's

position is indicated by his early conflict with Blackstone, not a very

powerful representative of the opposite principle. Blackstone, in fact,

had tried to base his defence of that eminently empirical product, the

British Constitution, upon some show of a philosophical groundwork. He

had used the vague conception of a 'social contract,' frequently invoked

for the same purpose at the revolution of 1688, and to eke out his

arguments applied the ancient commonplaces about monarchy, aristocracy,

and democracy. He thus tried to invest the constitution with the

sanctity derived from this mysterious 'contract,' while appealing also

to tradition or the incarnate 'wisdom of our ancestors,' as shown by

their judicious mixture of the three forms. Bentham had an easy task,

though he performed it with remarkable vigour, in exposing the weakness

of this heterogeneous aggregate. Look closely, and this fictitious

contract can impose no new obligation: for the obligation itself rests

upon Utility. Why not appeal to Utility at once? I am bound to obey, not

because my great-grandfather may be regarded as having made a bargain,

which he did not really make, with the great-grandfather of George III.;

but simply because rebellion does more harm than good. The forms of

government are abstractions, not names of realities, and their 'mixture'

is a pure figment. King, Lords, and Commons are not really incarnations

of power, wisdom, and goodness. Their combination forms a system the

merits of which must in the last resort be judged by its working. 'It is

the principle of utility, accurately apprehended and steadily applied,

that affords the only clew to guide a man through these streights.'[362]

So much in fact Bentham might learn from Hume; and to defend upon any

other ground the congeries of traditional arrangements which passed for

the British Constitution was obviously absurd. It was in this warfare

against the shifting and ambiguous doctrines of Blackstone that Bentham

first showed the superiority of his own method: for, as between the two,

Bentham's position is at least the most coherent and intelligible.

Blackstone, however, represents little more than a bit of rhetoric

embodying fragments of inconsistent theories. The _Morals and

Legislation_ opens by briefly and contemptuously setting aside more

philosophical opponents of Utilitarianism. The 'ascetic' principle, for

example, is the formal contradiction of the principle of Utility, for it

professedly declares pleasure to be evil. Could it be consistently

carried out it would turn earth into hell. But in fact it is at bottom

an illegitimate corollary from the very principle which it ostensibly

denies. It professes to condemn pleasure in general; it really means

that certain pleasures can only be bought at an excessive cost of pain.

Other theories are contrivances for avoiding the appeal 'to any external

standard'; and in substance, therefore, they make the opinion of the

individual theorist an ultimate and sufficient reason. Adam Smith by his

doctrine of 'sympathy' makes the sentiment of approval itself the

ultimate standard. My feeling echoes yours, and reciprocally; each

cannot derive authority from the other. Another man (Hutcheson) invents

a thing made on purpose to tell him what is right and what is wrong and

calls it a 'moral sense.' Beattie substitutes 'common' for 'moral'

sense, and his doctrine is attractive because every man supposes himself

to possess common sense. Others, like Price, appeal to the

Understanding, or, like Clarke, to the 'Fitness of Things,' or they

invent such phrases as 'Law of Nature,' or 'Right Reason' or 'Natural

Justice,' or what you please. Each really means that whatever he says

is infallibly true and self-evident. Wollaston discovers that the only

wrong thing is telling a lie; or that when you kill your father, it is a

way of saying that he is not your father, and the same method is

applicable to any conduct which he happens to dislike. The 'fairest and

openest of them all' is the man who says, 'I am of the number of the

Elect'; God tells the Elect what is right: therefore if you want to know

what is right, you have only to come to me.[363] Bentham is writing here

in his pithiest style. His criticism is of course of the rough and ready

order; but I think that in a fashion he manages to hit the nail pretty

well on the head.

His main point, at any rate, is clear. He argues briefly that the

alternative systems are illusory because they refer to no 'external

standard.' His opponents, not he, really make morality arbitrary. This,

whatever the ultimate truth, is in fact the essential core of all the

Utilitarian doctrine descended from or related to Benthamism. Benthamism

aims at converting morality into a science. Science, according to him,

must rest upon facts. It must apply to real things, and to things which

have definite relations and a common measure. Now, if anything be real,

pains and pleasures are real. The expectation of pain or pleasure

determines conduct; and, if so, it must be the sole determinant of

conduct. The attempt to conceal or evade this truth is the fatal source

of all equivocation and confusion. Try the experiment. Introduce a

'moral sense.' What is its relation to the desire for happiness? If the

dictates of the moral sense be treated as ultimate, an absolutely

arbitrary element is introduced; and we have one of the 'innate ideas'

exploded by Locke, a belief summarily intruded into the system without

definite relations to any other beliefs: a dogmatic assertion which

refuses to be tested or to be correlated with other dogmas; a reduction

therefore of the whole system to chaos. It is at best an instinctive

belief which requires to be justified and corrected by reference to some

other criterion. Or resolve morality into 'reason,' that is, into some

purely logical truth, and it then remains in the air--a mere nonentity

until experience has supplied some material upon which it can work. Deny

the principle of utility, in short, as he says in a vigorous

passage,[364] and you are involved in a hopeless circle. Sooner or later

you appeal to an arbitrary and despotic principle and find that you have

substituted words for thoughts.

The only escape from this circle is the frank admission that happiness

is, in fact, the sole aim of man. There are, of course, different kinds

of happiness as there are different kinds of physical forces. But the

motives to action are, like the physical forces, commensurable. Two

courses of conduct can always be compared in respect of the happiness

produced, as two motions of a body can be compared in respect of the

energy expended. If, then, we take the moral judgment to be simply a

judgment of amounts of happiness, the whole theory can be systematised,

and its various theorems ranged under a single axiom or consistent set

of axioms. Pain and pleasure give the real value of actions; they are

the currency with a definite standard into which every general rule may

be translated. There is always a common measure applicable in every

formula for the estimation of conduct. If you admit your Moral Sense,

you profess to settle values by some standard which has no definite

relation to the standard which in fact governs the normal transactions.

But any such double standard, in which the two measures are absolutely

incommensurable, leads straight to chaos. Or, if again you appeal to

reason in the abstract, you are attempting to settle an account by pure

arithmetic without reference to the units upon which your operation is

performed. Two pounds and two pounds will make four pounds whatever a

pound may be; but till I know what it is, the result is nugatory.

Somewhere I must come upon a basis of fact, if my whole construction is

to stand.

This is the fundamental position implied in Bentham's doctrine. The

moral judgment is simply one case of the judgment of happiness. Bentham

is so much convinced of this that to him there appeared to be in reality

no other theory. What passed for theories were mere combinations of

words. Having said this, we know where to lay the foundations of the new

science. It deals with a vast complicity of facts: it requires

'investigations as severe as mathematical ones, but beyond all

comparison more intricate and extensive.'[365] Still it deals with

facts, and with facts which have a common measure, and can, therefore,

be presented as a coherent system. To present this system, or so much of

it as is required for purposes of legislation, is therefore his next

task. The partial execution is the chief substance of the

_Introduction_. Right and wrong conduct, we may now take for granted,

mean simply those classes of conduct which are conducive to or opposed

to happiness; or, in the sacred formula, to act rightly means to promote

the greatest happiness of the greatest number. The legislator, like

every one else, acts rightly in so far as he is guided by the principle

(to use one of the phrases coined by Bentham) of 'maximising' happiness.

He seeks to affect conduct; and conduct can be affected only by annexing

pains or pleasures to given classes of actions. Hence we have a vitally

important part of his doctrine--the theory of 'sanctions.' Pains and

pleasures as annexed to action are called 'sanctions.' There are

'physical or natural,' 'political, 'moral or popular,' and 'religious'

sanctions. The 'physical' sanctions are such pleasures and pains as

follow a given course of conduct independently of the interference of

any other human or supernatural being; the 'political' those which are

annexed by the action of the legislator; the 'moral or popular' those

which are annexed by other individuals not acting in a corporate

capacity; and the 'religious' those which are annexed by a 'superior

invisible being,' or, as he says elsewhere,[366] 'such as are capable of

being expected at the hands of an invisible Ruler of the Universe.' The

three last sanctions, he remarks, 'operate through the first.' The

'magistrate' or 'men at large' can only operate, and God is supposed

only to operate, 'through the powers of nature,' that is, by applying

some of the pains and pleasures which may also be natural sanctions. A

man is burnt: if by his own imprudence, that is a 'physical' sanction;

if by the magistrate, it is a 'political' sanction; if by some neglect

of his neighbours, due to their dislike of his 'moral character,' a

'moral' sanction; if by the immediate act of God or by distraction

caused by dread of God's displeasure, it is a 'religious' sanction. Of

these, as Bentham characteristically observes[367] in a later writing

the political is much stronger than the 'moral' or 'religious.' Many men

fear the loss of character or the 'wrath of Heaven,' but all men fear

the scourge and the gallows.[368] He admits, however, that the religious

sanction and the additional sanction of 'benevolence' have the advantage

of not requiring that the offender should be found out.[369] But in any

case, the 'natural' and religious sanctions are beyond the legislator's

power. His problem, therefore, is simply this: what sanctions ought he

to annex to conduct, or remembering that 'ought' means simply 'conducive

to happiness,' what political sanctions will increase happiness?

To answer this fully will be to give a complete system of legislation;

but in order to answer it we require a whole logical and psychological

apparatus. Bentham shows this apparatus at work, but does not expound

its origin in any separate treatise. Enough information, however, is

given as to his method in the curious collection of the fragments

connected with the _Chrestomathia_. A logical method upon which he

constantly insisted is that of 'bipartition,'[370] called also the

'dichotomous' or 'bifurcate' method, and exemplified by the so-called

'Porphyrian Tree.' The principle is, of course, simple. Take any genus:

divide it into two classes, one of which has and the other has not a

certain mark. The two classes must be mutually exclusive and together

exhaustive. Repeat the operation upon each of the classes and continue

the process as long as desired.[371] At every step you thus have a

complete enumeration of all the species, varieties, and so on, each of

which excludes all the others. No mere logic, indeed, can secure the

accuracy and still less the utility of the procedure. The differences

may be in themselves ambiguous or irrelevant. If I classify plants as

'trees' and 'not trees,' the logical form is satisfied: but I have still

to ask whether 'tree' conveys a determinate meaning, and whether the

distinction corresponds to a difference of any importance. A perfect

classification, however, could always be stated in this form. Each

species, that is, can be marked by the presence or absence of a given

difference, whether we are dealing with classes of plants or actions:

and Bentham aims at that consummation though he admits that centuries

may be required for the construction of an accurate classification in

ethical speculations.[372] He exaggerates the efficiency of his method,

and overlooks the tendency of tacit assumptions to smuggle themselves

into what affects to be a mere enumeration of classes. But in any case,

no one could labour more industriously to get every object of his

thought arranged and labelled and put into the right pigeon-hole of his

mental museum. To codify[373] is to classify, and Bentham might be

defined as a codifying animal.

Things thus present themselves to Bentham's mind as already prepared to

fit into pigeon-holes. This is a characteristic point, and it appears in

what we must call his metaphysical system. 'Metaphysics,' indeed,

according to him, is simply 'a sprig,' and that a small one, of the

'branch termed Logic.'[374] It is merely the explanation of certain

general terms such as 'existence,' 'necessity,' and so forth.[375] Under

this would apparently fall the explanation of 'reality' which leads to a

doctrine upon which he often insists, and which is most implicitly given

in the fragment called _Ontology_. He there distinguishes 'real' from

'fictitious entities,' a distinction which, as he tells us,[376] he

first learned from d'Alembert's phrase _Etres fictifs_ and which he

applies in his _Morals and Legislation_. 'Real entities,' according to

him,[377] are 'individual perceptions,' 'impressions,' and 'ideas.' In

this, of course, he is following Hume, though he applies the Johnsonian

argument to Berkeley's immaterialism.[378] A 'fictitious entity' is a

name which does note 'raise up in the mind any correspondent

images.'[379] Such names owe their existence to the necessities of

language. Without employing such fictions, however, 'the language of man

could not have risen above the language of brutes';[380] and he

emphatically distinguishes them from 'unreal' or 'fabulous entities.' A

'fictitious entity' is not a 'nonentity.'[381] He includes among such

entities all Aristotle's 'predicaments' except the first:

'substance.'[382] Quantity, quality, relation, time, place are all

'physical fictitious entities.' This is apparently equivalent to saying

that the only 'physical entities' are concrete things--sticks, stones,

bodies, and so forth--the 'reality' of which he takes for granted in the

ordinary common sense meaning. It is also perfectly true that things are

really related, have quantity and quality, and are in time and space.

But we cannot really conceive the quality or relation apart from the

concrete things so qualified and related. We are forced by language to

use substantives which in their nature have only the sense of

adjectives. He does not suppose that a body is not really square or

round; but he thinks it a fiction to speak of squareness or roundness or

space in general as something existing apart from matter and, in some

sense, alongside of matter.

This doctrine, which brings us within sight of metaphysical problems

beyond our immediate purpose, becomes important to his moral

speculation. His special example of a 'fictitious entity' in politics is

'obligation.'[383] Obligations, rights, and similar words are

'fictitious entities.' Obligation in particular implies a metaphor. The

statement that a man is 'obliged' to perform an act means simply that he

will suffer pain if he does not perform it. The use of the word

obligation, as a noun substantive, introduces the 'fictitious entity'

which represents nothing really separable from the pain or pleasure.

Here, therefore, we have the ground of the doctrine already noticed.

'Pains and pleasures' are real.[384] 'Their existence,' he says,[385]

'is matter of universal and constant experience.' But other various

names referring to these: emotion, inclination, vice, virtue, etc., are

only 'psychological entities.' 'Take away pleasures and pains, not only

happiness but justice and duty and obligation and virtue--all of which

have been so elaborately held up to view as independent of them--are so

many empty sounds.'[386] The ultimate facts, then, are pains and

pleasures. They are the substantives of which these other words are

properly the adjectives. A pain or a pleasure may exist by itself, that

is without being virtuous or vicious: but virtue and vice can only exist

in so far as pain and pleasure exists.

This analysis of 'obligation' is a characteristic doctrine of the

Utilitarian school. We are under an 'obligation' so far as we are

affected by a 'sanction.' It appeared to Bentham so obvious as to need

no demonstration, only an exposition of the emptiness of any verbal

contradiction. Such metaphysical basis as he needed is simply the

attempt to express the corresponding conception of reality which, in his

opinion, only requires to be expressed to carry conviction.

NOTES:

[355] See note under Bentham's life, _ante_, p. 178.

[356] Preface to _Morals and Legislation_.

[357] _Works_, i. ('Morals and Legislation'), ii. _n._

[358] _Essay_, bk. ii. ch. xxi. Sec. 39-Sec. 44. The will, says Locke, is

determined by the 'uneasiness of desire.' What moves desire? Happiness,

and that alone. Happiness is pleasure, and misery pain. What produces

pleasure we call good; and what produces pain we call evil. Locke,

however, was not a consistent Utilitarian.

[359] Epistle iv., opening lines.

[360] _Works_, vii. 82.

[361] _Works_ ('Constitutional Code'), ix. 123.

[362] _Works_ ('Fragment'), i. 287.

[363] _Works_ ('Morals and Legislation'), i. 8-10. Mill quotes this

passage in his essay on Bentham in the first volume of his

_Dissertations_. This essay, excellent in itself must be specially

noticed as an exposition by an authoritative disciple.

[364] _Works_ ('Morals and Legislation'), i. 13.

[365] _Works_ ('Morals and Legislation'), i. v.

[366] _Works_ ('Evidence'), vi. 261.

[367] _Works_ ('Evidence'), vii. 116.

[368] _Ibid._ ('Morals and Legislation'), i. 14, etc.; _Ibid._ vi. 260.

In _Ibid._ ('Evidence') vii. 116, 'humanity,' and in 'Logical

Arrangements,' _Ibid._ ii. 290, 'sympathy' appears as a fifth sanction.

Another modification is suggested in _Ibid._ i. 14 _n._

[369] _Ibid._ ('Morals and Legislation'), i. 67.

[370] _Works_ ('Morals and Legislation'), i. 96 _n._

[371] See especially _Ibid._ viii. 104, etc.; 253, etc.; 289, etc.

[372] _Ibid._ viii. 106.

[373] 'Codify' was one of Bentham's successful neologisms.

[374] _Works_ ('Logic'), viii. 220.

[375] Here Bentham coincides with Horne Tooke, to whose 'discoveries' he

refers in the _Chrestomathia_ (_Works_, viii. 120, 185, 188).

[376] _Works_, iii. 286; viii. 119.

[377] _Ibid._ ('Ontology') viii. 196 _n._

[378] _Ibid._ viii, 197 _n._

[379] _Ibid._ viii. 263.

[380] _Works_ ('Ontology'), viii. 119.

[381] _Ibid._ viii. 198.

[382] _Ibid._ viii. 199.

[383] _Ibid._ viii. 206, 247.

[384] Helvetius adds to this that the only real pains and pleasures are

the physical, but Bentham does not follow him here. See Helvetius,

_OEuvres_ (1781), ii. 121, etc.

[385] _Works_, i. 211 ('Springs of Action').

[386] _Ibid._ i. 206.

II. SPRINGS OF ACTION

Our path is now clear. Pains and pleasures give us what mathematicians

call the 'independent variable.' Our units are (in Bentham's phrase)

'lots' of pain or pleasure. We have to interpret all the facts in terms

of pain or pleasure, and we shall have the materials for what has since

been called a 'felicific calculus.' To construct this with a view to

legislation is his immediate purpose. The theory will fall into two

parts: the 'pathological,' or an account of all the pains and pleasures

which are the primary data; and the 'dynamical,' or an account of the

various modes of conduct determined by expectations of pain and

pleasure. This gives the theory of 'springs of action,' considered in

themselves, and of 'motives,' that is, of the springs as influencing

conduct.[387] The 'pathology' contains, in the first place, a discussion

of the measure of pain and pleasure in general; secondly, a discussion

of the various species of pain and pleasure; and thirdly, a discussion

of the varying sensibilities of different individuals to pain and

pleasure.[388] Thus under the first head, we are told that the value of

a pleasure, considered by itself, depends upon its intensity, duration,

certainty, and propinquity; and, considered with regard to modes of

obtaining it, upon its fecundity (or tendency to produce other pains and

pleasures) and its purity (or freedom from admixture of other pains and

pleasures). The pain or pleasure is thus regarded as an entity which is

capable of being in some sense weighed and measured.[389] The next step

is to classify pains and pleasures, which though commensurable as

psychological forces, have obviously very different qualities. Bentham

gives the result of his classification without the analysis upon which

it depends. He assures us that he has obtained an 'exhaustive' list of

'simple pleasures.' It must be confessed that the list does not commend

itself either as exhaustive or as composed of 'simple pleasures.' He

does not explain the principle of his analysis because he says, it was

of 'too metaphysical a cast,'[390] but he thought it so important that

he published it, edited with considerable modifications by James Mill,

in 1817, as a _Table of the Springs of Action_.[391]

J. S. Mill remarks that this table should be studied by any one who

would understand Bentham's philosophy. Such a study would suggest some

unfavourable conclusions. Bentham seems to have made out his table

without the slightest reference to any previous psychologist. It is

simply constructed to meet the requirements of his legislative theories.

As psychology it would be clearly absurd, especially if taken as giving

the elementary or 'simple' feelings. No one can suppose, for example,

that the pleasures of 'wealth' or 'power' are 'simple' pleasures. The

classes therefore are not really distinct, and they are as far from

being exhaustive. All that can be said for the list is that it gives a

sufficiently long enumeration to call attention from his own point of

view to most of the ordinary pleasures and pains; and contains as much

psychology as he could really turn to account for his purpose.

The omissions with which his greatest disciple charges him are certainly

significant. We find, says Mill, no reference to 'Conscience,'

'Principle,' 'Moral Rectitude,' or 'Moral Duty' among the 'springs of

action,' unless among the synonyms of a 'love of reputation,' or in so

far as 'Conscience' and 'Principle' are sometimes synonymous with the

'religious' motive or the motive of 'sympathy.' So the sense of

'honour,' the love of beauty, and of order, of power (except in the

narrow sense of power over our fellows) and of action in general are all

omitted. We may conjecture what reply Bentham would have made to this

criticism. The omission of the love of beauty and aesthetic pleasures may

surprise us when we remember that Bentham loved music, if he cared

nothing for poetry. But he apparently regarded these as 'complex

pleasures,'[392] and therefore not admissible into his table, if it be

understood as an analysis into the simple pleasures alone. The pleasures

of action are deliberately omitted, for Bentham pointedly gives the

'pains' of labour as a class without corresponding pleasure; and this,

though indicative, I think, of a very serious error, is characteristic

rather of his method of analysis than of his real estimate of pleasure.

Nobody could have found more pleasure than Bentham in intellectual

labour, but he separated the pleasure from the labour. He therefore

thought 'labour,' as such, a pure evil, and classified the pleasure as a

pleasure of 'curiosity.' But the main criticism is more remarkable. Mill

certainly held himself to be a sound Utilitarian; and yet he seems to be

condemning Bentham for consistent Utilitarianism. Bentham, by admitting

the 'conscience' into his simple springs of action, would have fallen

into the very circle from which he was struggling to emerge. If, in

fact, the pleasures of conscience are simple pleasures, we have the

objectionable 'moral sense' intruded as an ultimate factor of human

nature. To get rid of that 'fictitious entity' is precisely Bentham's

aim. The moral judgment is to be precisely equivalent to the judgment:

'this or that kind of conduct increases or diminishes the sum of human

pains or pleasures.' Once allow that among the pains and pleasures

themselves is an ultimate conscience--a faculty not constructed out of

independent pains and pleasures--and the system becomes a vicious

circle. Conscience on any really Utilitarian scheme must be a

derivative, not an ultimate, faculty. If, as Mill seems to say, the

omission is a blunder, Bentham's Utilitarianism at least must be an

erroneous system.

We have now our list both of pains and pleasures and of the general

modes of variation by which their value is to be measured. We must also

allow for the varying sensibilities of different persons. Bentham

accordingly gives a list of thirty-two 'circumstances influencing

sensibility.'[393] Human beings differ in constitution, character,

education, sex, race, and so forth, and in their degrees of sensibility

to all the various classes of pains and pleasures; the consideration of

these varieties is of the highest utility for the purposes of the judge

and the legislator.[394] The 'sanctions' will operate differently in

different cases. A blow will have different effects upon the sick and

upon the healthy; the same fine imposed upon the rich and the poor will

cause very different pains; and a law which is beneficent in Europe may

be a scourge in America.

We have thus our 'pathology' or theory of the passive sensibilities of

man. We know what are the 'springs of action,' how they vary in general,

and how they vary from one man to another. We can therefore pass to the

dynamics.[395] We have described the machinery in rest, and can now

consider it in motion. We proceed as before by first considering action

in general: which leads to consideration of the 'intention' and the

'motive' implied by any conscious action: and hence of the relation of

these to the 'springs of action' as already described. The discussion is

minute and elaborate; and Bentham improves as he comes nearer to the

actual problems of legislation and further from the ostensible bases of

psychology. The analysis of conduct, and of the sanctions by which

conduct is modified, involves a view of morals and of the relations

between the spheres of morality and legislation which is of critical

importance for the whole Utilitarian creed. 'Moral laws' and a 'Positive

law' both affect human action. How do they differ? Bentham's treatment

of the problem shows, I think, a clearer appreciation of some

difficulties than might be inferred from his later utterances. In any

case, it brings into clear relief a moral doctrine which deeply affected

his successors.

NOTES:

[387] _Works_, i. 205; and Dumont's _Traites_ (1820), i. xxv, xxvi. The

word 'springs of action' perhaps comes from the marginal note to the

above-mentioned passage of Locke (bk. ii. chap. xxvi, Sec. 41, 42).

[388] _Morals and Legislation_, chaps. iv., v., vi.

[389] See 'Codification Proposal' (_Works_, iv. 540), where Bentham

takes money as representing pleasure, and shows how the present value

may be calculated like that of a sum put out to interest. The same

assumption is often made by Political Economists in regard to

'utilities.'

[390] _Works_ ('Morals and Legislation'), i. 17 _n._

[391] It is not worth while to consider this at length; but I give the

following conjectural account of the list as it appears in the _Morals

and Legislation_ above. In classifying pain or pleasures, Bentham is, I

think, following the clue suggested by his 'sanctions.' He is really

classifying according to their causes or the way in which they are

'annexed.' Thus pleasures may or may not be dependent upon other

persons, or if upon other persons, may be indirectly or directly caused

by their pleasures or pains. Pleasures not caused by persons correspond

to the 'physical sanction,' and are those (1) of the 'senses,' (2) of

wealth, _i.e._ caused by the possession of things, and (3) of 'skill,'

_i.e._ caused by our ability to use things. Pleasures caused by persons

indirectly correspond first to the 'popular or moral sanction,' and are

pleasures (4) of 'amity,' caused by the goodwill of individuals, and (5)

of a 'good name,' caused by the goodwill of people in general; secondly,

to 'political sanction,' namely (6) pleasures of 'power'; and thirdly,

to the 'religious sanction,' or (7) pleasures of 'piety.' All these are

'self-regarding pleasures.' The pleasures caused directly by the

pleasure of others are those (8) of 'benevolence,' and (9) of

malevolence. We then have what is really a cross division by classes of

'derivative' pleasures; these being due to (10) memory, (11)

imagination, (12) expectation, (13) association. To each class of

pleasures corresponds a class of pains, except that there are no pains

corresponding to the pleasures of wealth or power. We have, however, a

general class of pains of 'privation,' which might include pains of

poverty or weakness: and to these are opposed (14) pleasures of

'relief,' _i.e._ of the privation of pains. In the _Table_, as

separately published, Bentham modified this by dividing pleasures of

sense into three classes, the last of which includes the two first; by

substituting pleasures of 'curiosity' for pleasures of 'skill' by

suppressing pleasures of relief and pains of privation; and by adding,

as a class of 'pains' without corresponding pleasures, pains (1) of

labour, (2) of 'death, and bodily pains in general.' These changes seem

to have been introduced in the course of writing his _Introduction_,

where they are partly assumed. Another class is added to include all

classes of 'self-regarding pleasures or pains.' He is trying to give a

list of all 'synonyms' for various pains and pleasures, and has

therefore to admit classes corresponding to general names which include

other classes.

[392] _Works_ i. 210, where he speaks of pleasures of the 'ball-room,'

the 'theatre,' and the 'fine arts' as derivable from the 'simple and

elementary' pleasures.

[393] _Works_ ('Morals and Legislation'), i. 22 etc.

[394] _Ibid._ i. 33.

[395] _Morals and Legislation_, ch. vii. to xi.

III. THE SANCTIONS

Let us first take his definitions of the fundamental conceptions. All

action of reasonable beings implies the expectation of consequences. The

agent's 'intention' is defined by the consequences actually

contemplated. The cause of action is the hope of the consequent

pleasures or the dread of the consequent pains. This anticipated

pleasure or pain constitutes the 'internal motive' (a phrase used by

Bentham to exclude the 'external motive' or event which causes the

anticipation).[396] The motive, or 'internal motive,' is the

anticipation of pain to be avoided or pleasure to be gained. Actions are

good or bad simply and solely as they are on the whole 'productive of a

balance of pleasure or pain.' The problem of the legislator is how to

regulate actions so as to incline the balance to the right side. His

weapons are 'sanctions' which modify 'motives.' What motives, then,

should be strengthened or checked? Here we must be guided by a principle

which is, in fact, the logical result of the doctrines already laid

down. We are bound to apply our 'felicific calculus' with absolute

impartiality. We must therefore assign equal value to all motives. 'No

motives,' he says,[397] are 'constantly good or constantly bad.'

Pleasure is itself a good; pain itself an evil: nay, they are 'the only

good and the only evil.' This is true of every sort of pain and

pleasure, even of the pains and pleasures of illwill. The pleasures of

'malevolence' are placed in his 'table' by the side of pleasures of

'benevolence.' Hence it 'follows immediately and incontestably, that

there is no such thing as any sort of motive that is in itself a bad

one.' The doctrine is no doubt a logical deduction from Bentham's

assumptions, and he proceeds to illustrate its meaning. A 'motive'

corresponds to one of his 'springs of action.' He shows how every one of

the motives included in his table may lead either to good or to bad

consequences. The desire of wealth may lead me to kill a man's enemy or

to plough his field for him; the fear of God may prompt to fanaticism

or to charity; illwill may lead to malicious conduct or may take the

form of proper 'resentment,' as, for example, when I secure the

punishment of my father's murderer. Though one act, he says, is approved

and the other condemned, they spring from the same motive, namely,

illwill.[398] He admits, however, that some motives are more likely than

others to lead to 'useful' conduct; and thus arranges them in a certain

'order of pre-eminence.'[399] It is obvious that 'goodwill,' 'love of

reputation,' and the 'desire of amity' are more likely than others to

promote general happiness. 'The dictates of utility,' as he observes,

are simply the 'dictates of the most extensive and enlightened (that is,

_well advised_) benevolence.' It would, therefore, seem more appropriate

to call the 'motive' good; though no one doubts that when directed by an

erroneous judgment it may incidentally be mischievous.

The doctrine that morality depends upon 'consequences' and not upon

'motives' became a characteristic Utilitarian dogma, and I shall have to

return to the question. Meanwhile, it was both a natural and, I think,

in some senses, a correct view, when strictly confined to the province

of legislation. For reasons too obvious to expand, the legislator must

often be indifferent to the question of motives. He cannot know with

certainty what are a man's motives. He must enforce the law whatever may

be the motives for breaking it; and punish rebellion, for example, even

if he attributes it to misguided philanthropy. He can, in any case,

punish only such crimes as are found out; and must define crimes by

palpable 'external' marks. He must punish by such coarse means as the

gallows and the gaol: for his threats must appeal to the good and the

bad alike. He depends, therefore, upon 'external' sanctions, sanctions,

that is, which work mainly upon the fears of physical pain; and even if

his punishments affect the wicked alone, they clearly cannot reach the

wicked as wicked, nor in proportion to their wickedness. That is quite

enough to show why in positive law motives are noticed indirectly or not

at all. It shows also that the analogy between the positive and the

moral law is treacherous. The exclusion of motive justifiable in law may

take all meaning out of morality. The Utilitarians, as we shall see,

were too much disposed to overlook the difference, and attempt to apply

purely legal doctrine in the totally uncongenial sphere of ethical

speculation. To accept the legal classification of actions by their

external characteristics is, in fact, to beg the question in advance.

Any outward criterion must group together actions springing from

different 'motives' and therefore, as other moralists would say,

ethically different.

There is, however, another meaning in this doctrine which is more to the

purpose here. Bentham was aiming at a principle which, true or false, is

implied in all ethical systems based upon experience instead of pure

logic or _a priori_ 'intuitions.' Such systems must accept human nature

as a fact, and as the basis of a scientific theory. They do not aim at

creating angels but at developing the existing constitution of mankind.

So far as an action springs from one of the primitive or essential

instincts of mankind, it simply proves the agent to be human, not to be

vicious or virtuous, and therefore is no ground for any moral judgment.

If Bentham's analysis could be accepted, this would be true of his

'springs of action.' The natural appetites have not in themselves a

moral quality: they are simply necessary and original data in the

problem. The perplexity is introduced by Bentham's assumption that

conduct can be analysed so that the 'motive' is a separate entity which

can be regarded as the sole cause of a corresponding action. That

involves an irrelevant abstraction. There is no such thing as a single

'motive.' One of his cases is a mother who lets her child die for love

of 'ease.' We do not condemn her because she loves ease, which is a

motive common to all men and therefore unmoral, not immoral. But neither

do we condemn her merely for the bad consequences of a particular

action. We condemn her because she loves ease better than she loves her

child: that is, because her whole character is 'unnatural' or

ill-balanced, not on account of a particular element taken by itself.

Morality is concerned with concrete human beings, and not with 'motives'

running about by themselves. Bentham's meaning, if we make the necessary

correction, would thus be expressed by saying that we don't blame a man

because he has the 'natural' passions, but because they are somehow

wrongly proportioned or the man himself wrongly constituted. Passions

which may make a man vicious may also be essential to the highest

virtue. That is quite true; but the passion is not a separate agent,

only one constituent of the character.

Bentham admits this in his own fashion. If 'motives' cannot be properly

called good or bad, is there, he asks, nothing good or bad in the man

who on a given occasion obeys a certain motive? 'Yes, certainly,' he

replies, 'his disposition.'[400] The disposition, he adds, is a

'fictitious entity, and designed for the convenience of discourse in

order to express what there is supposed to be permanent in a man's frame

of mind.' By 'fictitious,' as we have seen, he means not 'unreal' but

simply not tangible, weighable, or measurable--like sticks and stones,

or like pains and pleasures. 'Fictitious' as they may be, therefore, the

fiction enables us to express real truths, and to state facts which are

of the highest importance to the moralist and the legislator. Bentham

discusses some cases of casuistry in order to show the relation between

the tendency of an action and the intention and motives of the agent.

Ravaillac murders a good king; Ravaillac's son enables his father to

escape punishment, or conveys poison to his father to enable him to

avoid torture by suicide.[401] What is the inference as to the son's

disposition in either case? The solution (as he substantially and, I

think, rightly suggests) will have to be reached by considering whether

the facts indicate that the son's disposition was mischievous or

otherwise; whether it indicates political disloyalty or filial

affection, and so forth, and in what proportions. The most interesting

case perhaps is that of religious persecution, where the religious

motive is taken to be good, and the action to which it leads is yet

admitted to be mischievous. The problem is often puzzling, but we are

virtually making an inference as to the goodness or badness of the

'disposition' implied by the given action under all the supposed

circumstances. This gives what Bentham calls the 'meritoriousness'[402]

of the disposition. The 'intention' is caused by the 'motive.' The

'disposition' is the 'sum of the intentions'; that is to say, it

expresses the agent's sensibility to various classes of motives; and the

merit therefore will be in proportion to the total goodness or badness

of the disposition thus indicated. The question of merit leads to

interesting moral problems. Bentham, however, observes that he is not

here speaking from the point of view of the moralist but of the

legislator. Still, as a legislator he has to consider what is the

'depravity' of disposition indicated by different kinds of conduct. This

consideration is of great importance. The 'disposition' includes

sensibility to what he calls 'tutelary motives'--motives, that is, which

deter a man from such conduct as generally produces mischievous

consequences. No motive can be invariably, though some, especially the

motive of goodwill, and in a minor degree those of 'amity' and a 'love

of reputation,' are generally, on the right side. The legislator has to

reinforce these 'tutelary motives' by 'artificial tutelary motives,' and

mainly by appealing to the 'love of ease,' that is, by making

mischievous conduct more difficult, and to 'self-preservation,' that is,

by making it more dangerous.[403] He has therefore to measure the force

by which these motives will be opposed; or, in other words, the

'strength of the temptation.' Now the more depraved a man's disposition,

the weaker the temptation which will seduce him to crime. Consequently

if an act shows depravity, it will require a stronger counter-motive or

a more severe punishment, as the disposition indicated is more

mischievous. An act, for example, which implies deliberation proves a

greater insensibility to these social motives which, as Bentham

remarks,[404] determine the 'general tenor of a man's life,' however

depraved he may be. The legislator is guided solely by 'utility,' or

aims at maximising happiness without reference to its quality. Still, so

far as action implies disposition, he has to consider the depravity as a

source of mischief. The legislator who looks solely at the moral quality

implied is wrong; and, if guided solely by his sympathies, has no

measure for the amount of punishment to be inflicted. These

considerations will enable us to see what is the proper measure of

resentment.[405]

The doctrine of the neutrality or 'unmorality' of motive is thus

sufficiently clear. Bentham's whole aim is to urge that the criterion of

morality is given by the consequences of actions. To say the conduct is

good or bad is to say in other words that it produces a balance of

pleasure or pain. To make the criterion independent, or escape the

vicious circle, we must admit the pleasures and pains to be in

themselves neutral; to have, that is, the same value, if equally strong,

whatever their source. In our final balance-sheet we must set down pains

of illwill and of goodwill, of sense and of intellect with absolute

impartiality, and compare them simply in respect of intensity. We must

not admit a 'conscience' or 'moral sense' which would be autocratic;

nor, indeed, allow moral to have any meaning as applied to the separate

passions. But it is quite consistent with this to admit that some

motives, goodwill in particular, generally tend to bring out the

desirable result, that is, a balance of pleasure for the greatest

number. The pains and pleasures are the ultimate facts, and the

'disposition' is a 'fictitious entity' or a name for the sum of

sensibilities. It represents the fact that some men are more inclined

than others to increase the total of good or bad.

NOTES:

[396] _Works_ ('Morals and Legislation'), i. 46.

[397] _Ibid._ i. 48.

[398] _Works_ ('Morals and Legislation'), i. 56.

[399] _Ibid._ i. 56.

[400] _Works_ ('Morals and Legislation'), i. 60.

[401] _Ibid._ i. 62.

[402] _Ibid._ i. 65.

[403] These are the two classes of 'springs of action' omitted in the

_Table_.

[404] _Works_ ('Morals and Legislation'), i. 68.

[405] Here Bentham lays down the rule that punishment should rise with

the strength of the temptation, a theory which leads to some curious

casuistical problems. He does not fully discuss, and I cannot here

consider, them. I will only note that it may conceivably be necessary to

increase the severity of punishment, instead of removing the temptation

or strengthening the preventive action. If so, the law becomes immoral

in the sense of punishing more severely as the crime has more moral

excuse. This was often true of the old criminal law, which punished

offences cruelly because it had no effective system of police. Bentham

would of course have agreed that the principle in this case was a bad

one.

IV. CRIMINAL LAW

We have now, after a long analysis, reached the point at which the

principles can be applied to penal law. The legislator has to discourage

certain classes of conduct by annexing 'tutelary motives.' The classes

to be suppressed are of course those which diminish happiness. Pursuing

the same method, and applying results already reached, we must in the

first place consider how the 'mischief of an act' is to be

measured.[406] Acts are mischievous as their 'consequences' are

mischievous; and the consequences may be 'primary' or 'secondary.'

Robbery causes pain to the loser of the money. That is a primary evil.

It alarms the holders of money; it suggests the facility of robbery to

others; and it weakens the 'tutelary motive' of respect for property.

These are secondary evils. The 'secondary' evil may be at times the most

important. The non-payment of a tax may do no appreciable harm in a

particular case. But its secondary effects in injuring the whole

political fabric may be disastrous and fruitful beyond calculation.

Bentham proceeds to show carefully how the 'intentions' and 'motives' of

the evildoer are of the greatest importance, especially in determining

these secondary consequences, and must therefore be taken into account

by the legislator. A homicide may cause the same primary evil, whether

accidental or malignant; but accidental homicide may cause no alarm,

whereas the intentional and malignant homicide may cause any quantity of

alarm and shock to the general sense of security. In this way,

therefore, the legislator has again indirectly to take into account the

moral quality which is itself dependent upon utility.

I must, however, pass lightly over a very clear and interesting

discussion to reach a further point of primary importance to the

Utilitarian theory, as to the distinction between the moral and legal

spheres.[407] Bentham has now 'made an analysis of evil.' He has, that

is, classified the mischiefs produced by conduct, measured simply by

their effect upon pleasures or pains, independently of any consideration

as to virtue and vice. The next problem is: what conduct should be

criminal?--a subject which is virtually discussed in two chapters (xv.

and xix.) 'on cases unmeet for punishment' and on 'the limits between

Private Ethics and the act of legislation.' We must, of course, follow

the one clue to the labyrinth. We must count all the 'lots' of pain and

pleasure indifferently. It is clear, on the one hand, that the pains

suffered by criminals are far less than the pains which would be

suffered were no such sanctions applied. On the other hand, all

punishment is an evil, because punishment means pain, and it is

therefore only to be inflicted when it excludes greater pain. It must,

therefore, not be inflicted when it is 'groundless,' 'inefficacious,'

'unprofitable,' or 'needless.' 'Needless' includes all the cases in

which the end may be attained 'as effectually at a cheaper rate.'[408]

This applies to all 'dissemination of pernicious principles'; for in

this case reason and not force is the appropriate remedy. The sword

inflicts more pain, and is less efficient than the pen. The argument

raises the wider question, What are the true limits of legislative

interference? Bentham, in his last chapter, endeavours to answer this

problem. 'Private ethics,' he says, and 'legislation' aim at the same

end, namely, happiness, and the 'acts with which they are conversant are

_in great measure_ the same.' Why, then, should they have different

spheres? Simply because the acts 'are not _perfectly and throughout_ the

same.'[409] How, then, are we to draw the line? By following the

invariable clue of 'utility.' We simply have to apply an analysis to

determine the cases in which punishment does more harm than good. He

insists especially upon the cases in which punishment is 'unprofitable';

upon such offences as drunkenness and sexual immorality, where the law

could only be enforced by a mischievous or impossible system of minute

supervision, and such offences as ingratitude or rudeness, where the

definition is so vague that the judge could not safely be entrusted with

the power to punish.'[410] He endeavours to give a rather more precise

distinction by subdividing 'ethics in general' into three classes. Duty

may be to oneself, that is 'prudence'; or to one's neighbour negatively,

that is 'probity'; or to one's neighbour positively, that is

'benevolence.'[411] Duties of the first class must be left chiefly to

the individual, because he is the best judge of his own interest. Duties

of the third class again are generally too vague to be enforced by the

legislator, though a man ought perhaps to be punished for failing to

help as well as for actually injuring. The second department of ethics,

that of 'probity,' is the main field for legislative activity.[412] As a

general principle, 'private ethics' teach a man how to pursue his own

happiness, and the art of legislation how to pursue the greatest

happiness of the community. It must be noticed, for the point is one of

importance, that Bentham's purely empirical method draws no definite

line. It implies that no definite line can be drawn. It does not suggest

that any kind of conduct whatever is outside the proper province of

legislator except in so far as the legislative machinery may happen to

be inadequate or inappropriate.

Our analysis has now been carried so far that we can proceed to consider

the principles by which we should be guided in punishing. What are the

desirable properties of a 'lot of punishment'? This occupies two

interesting chapters. Chapter xvi., 'on the proportion between

punishments and offences,' gives twelve rules. The punishment, he urges,

must outweigh the profit of the offence; it must be such as to make a

man prefer a less offence to a greater--simple theft, for example, to

violent robbery; it must be such that the punishment must be adaptable

to the varying sensibility of the offender; it must be greater in

'value' as it falls short of certainty; and, when the offence indicates

a habit, it must outweigh not only the profit of the particular offence,

but of the undetected offences. In chapter xvii. Bentham considers the

properties which fit a punishment to fulfil these conditions. Eleven

properties are given. The punishment must be (1) 'variable,' that is,

capable of adjustment to particular cases; and (2) equable, or

inflicting equal pain by equal sentences. Thus the 'proportion' between

punishment and crimes of a given class can be secured. In order that the

punishments of different classes of crime may be proportional, the

punishments should (3) be commensurable. To make punishments efficacious

they should be (4) 'characteristical' or impressive to the imagination;

and that they may not be excessive they should be (5) exemplary or

likely to impress others, and (6) frugal. To secure minor ends they

should be (7) reformatory; (8) disabling, _i.e._ from future offences;

and (9) compensatory to the sufferer. Finally, to avoid collateral

disadvantages they should be (10) popular, and (11) remittable. A

twelfth property, simplicity, was added in Dumont's redaction. Dumont

calls attention here to the value of Bentham's method.[413] Montesquieu

and Beccaria had spoken in general terms of the desirable qualities of

punishment. They had spoken of 'proportionality,' for example, but

without that precise or definite meaning which appears in Bentham's

Calculus. In fact, Bentham's statement, compared to the vaguer

utterances of his predecessors, but still more when compared to the

haphazard brutalities and inconsistencies of English criminal law,

gives the best impression of the value of his method.

Bentham's next step is an elaborate classification of offences, worked

out by a further application of his bifurcatory method.[414] This would

form the groundwork of the projected code. I cannot, however, speak of

this classification, or of many interesting remarks contained in the

_Principles of Penal Law_, where some further details are considered. An

analysis scarcely does justice to Bentham, for it has to omit his

illustrations and his flashes of real vivacity. The mere dry logical

framework is not appetising. I have gone so far in order to illustrate

the characteristic of Bentham's teaching. It was not the bare appeal to

utility, but the attempt to follow the clue of utility systematically

and unflinchingly into every part of the subject. This one doctrine

gives the touchstone by which every proposed measure is to be tested;

and which will give to his system not such unity as arises from the

development of an abstract logical principle, but such as is introduced

into the physical sciences when we are able to range all the

indefinitely complex phenomena which arise under some simple law of

force. If Bentham's aim could have been achieved, 'utility' would have

been in legislative theories what gravitation is in astronomical

theories. All human conduct being ruled by pain and pleasure, we could

compare all motives and actions, and trace out the consequences of any

given law. I shall have hereafter to consider how this conception worked

in different minds and was applied to different problems: what were the

tenable results to which it led, and what were the errors caused by the

implied oversight of some essential considerations.

Certain weaknesses are almost too obvious to be specified. He claimed to

be constructing a science, comparable to the physical sciences. The

attempt was obviously chimerical if we are to take it seriously. The

makeshift doctrine which he substitutes for psychology would be a

sufficient proof of the incapacity for his task. He had probably not

read such writers as Hartley or Condillac, who might have suggested some

ostensibly systematic theory. If he had little psychology he had not

even a conception of 'sociology.' The 'felicific calculus' is enough to

show the inadequacy of his method. The purpose is to enable us to

calculate the effects of a proposed law. You propose to send robbers to

the gallows or the gaol. You must, says Bentham, reckon up all the evils

prevented: the suffering to the robbed, and to those who expect to be

robbed, on the one hand; and, on the other, the evils caused, the

suffering to the robber, and to the tax-payer who keeps the constable;

then strike your balance and make your law if the evils prevented exceed

the evils caused. Some such calculation is demanded by plain common

sense. It points to the line of inquiry desirable. But can it be

adequate? To estimate the utility of a law we must take into account all

its 'effects.' What are the 'effects' of a law against robbery? They are

all that is implied in the security of property. They correspond to the

difference between England in the eighteenth century and England in the

time of Hengist and Horsa; between a country where the supremacy of law

is established, and a country still under the rule of the strong hand.

Bentham's method may be applicable at a given moment, when the social

structure is already consolidated and uniform. It would represent the

practical arguments for establishing the police-force demanded by

Colquhoun, and show the disadvantages of the old constables and

watchmen. Bentham, that is, gives an admirable method for settling

details of administrative and legislative machinery, and dealing with

particular cases when once the main principles of law and order are

established. Those principles, too, may depend upon 'utility,' but

utility must be taken in a wider sense when we have to deal with the

fundamental questions. We must consider the 'utility' of the whole

organisation, not the fitness of separate details. Finally, if Bentham

is weak in psychology and in sociology, he is clearly not satisfactory

in ethics. Morality is, according to him, on the same plane with law.

The difference is not in the sphere to which they apply, or in the end

to which they are directed; but solely in the 'sanction.' The legislator

uses threats of physical suffering; the moralist threats of 'popular'

disapproval. Either 'sanction' may be most applicable to a given case;

but the question is merely between different means to the same end under

varying conditions. This implies the 'external' character of Bentham's

morality, and explains his insistence upon the neutrality of motives. He

takes the average man to be a compound of certain instincts, and merely

seeks to regulate their action by supplying 'artificial tutelary

motives.' The 'man' is given; the play of his instincts, separately

neutral, makes his conduct more or less favourable to general happiness;

and the moralist and the legislator have both to correct his deviations

by supplying appropriate 'sanctions.' Bentham, therefore, is inclined to

ignore the intrinsic character of morality, or the dependence of a man's

morality upon the essential structure of his nature. He thinks of the

superficial play of forces, not of their intimate constitution. The man

is not to be changed in either case; only his circumstances. Such

defects no doubt diminish the value of Bentham's work. Yet, after all,

in his own sphere they are trifles. He did very well without philosophy.

However imperfect his system might be considered as a science or an

ultimate explanation of society and human nature, it was very much to

the point as an expression of downright common sense. Dumont's eulogy

seems to be fully deserved, when we contrast Bentham's theory of

punishment with the theories (if they deserve the name) of contemporary

legislators. His method involved a thoroughgoing examination of the

whole body of laws, and a resolution to apply a searching test to every

law. If that test was not so unequivocal or ultimate as he fancied, it

yet implied the constant application of such considerations as must

always carry weight, and, perhaps, be always the dominant

considerations, with the actual legislator or jurist. What is the use of

you? is a question which may fairly be put to every institution and to

every law; and it concerns legislators to find some answer, even though

the meaning of the word 'use' is not so clear as we could wish.

NOTES:

[406] _Morals and Legislation_, ch. xii.

[407] _Morals and Legislation_, ch. xiv. (a chapter inserted from

Dumont's _Traites_).

[408] _Works_ ('Morals and Legislation'), i. p. 86.

[409] _Ibid._ i. 144.

[410] _Ibid._ i. 145.

[411] _Works_ ('Morals and Legislation'), i. 143.

[412] _Ibid._ i. 147-48.

[413] _Works_ ('Morals and Legislation'), i 406 _n._

[414] _Works_ ('Morals and Legislation'), i. 96 _n._

V. ENGLISH LAW

The practical value of Bentham's method is perhaps best illustrated by

his _Rationale of Evidence_. The composition of the papers ultimately

put together by J. S. Mill had occupied Bentham from 1802 to 1812. The

changed style is significant. Nobody could write more pointedly, or with

happier illustrations, than Bentham in his earlier years. He afterwards

came to think that a didactic treatise should sacrifice every other

virtue to fulness and precision. To make a sentence precise, every

qualifying clause must be somehow forced into the original formula.

Still more characteristic is his application of what he calls the

'substantive-preferring principle.'[415] He would rather say, 'I give

extension to an object,' than 'I extend an object.' Where a substantive

is employed, the idea is 'stationed upon a rock'; if only a verb, the

idea is 'like a leaf floating on a stream.' A verb, he said,[416] 'slips

through your fingers like an eel.' The principle corresponds to his

'metaphysics.' The universe of thought is made up of a number of

separate 'entities' corresponding to nouns-substantive, and when these

bundles are distinctly isolated by appropriate nouns, the process of

arranging and codifying according to the simple relations indicated by

the copula is greatly facilitated. The ideal language would resemble

algebra, in which symbols, each representing a given numerical value,

are connected by the smallest possible number of symbols of operation,

+, -, =, and so forth. To set two such statements side by side, or to

modify them by inserting different constants, is then a comparatively

easy process, capable of being regulated by simple general rules.

Bentham's style becomes tiresome, and was often improperly called

obscure. It requires attention, but the meaning is never doubtful--and

to the end we have frequent flashes of the old vivacity.

The _Rationale of Evidence_, as Mill remarks,[417] is 'one of the

richest in matter of all Bentham's productions.' It contains, too, many

passages in Bentham's earlier style, judiciously preserved by his young

editor; indeed, so many that I am tempted even to call the book amusing.

In spite of the wearisome effort to say everything, and to force

language into the mould presented by his theory, Bentham attracts us by

his obvious sincerity. The arguments may be unsatisfactory, but they are

genuine arguments. They represent conviction; they are given because

they have convinced; and no reader can deny that they really tend to

convince. We may complain that there are too many words, and that the

sentences are cumbrous; but the substance is always to the point. The

main purpose may be very briefly indicated. Bentham begins by general

considerations upon evidence, in which he and his youthful editor

indicate their general adherence to the doctrines of Hume.[418] This

leads to an application of the methods expounded in the 'Introduction,'

in order to show how the various motives or 'springs of action' and the

'sanctions' based upon them may affect the trustworthiness of evidence.

Any motive whatever may incidentally cause 'mendacity.' The second book,

therefore, considers what securities may be taken for 'securing

trustworthiness.' We have, for example, a discussion of the value of

oaths (he thinks them valueless), of the advantages and disadvantages of

reducing evidence to writing, of interrogating witnesses, and of the

publicity or privacy of evidence. Book iii. deals with the 'extraction

of evidence.' We have to compare the relative advantages of oral and

written evidence, the rules for cross-examining witnesses and for taking

evidence as to their character. Book iv. deals with 'pre-appointed

evidence,' the cases, that is, in which events are recorded at the time

of occurrence with a view to their subsequent use as evidence. We have

under this head to consider the formalities which should be required in

regard to contracts and wills; and the mode of recording judicial and

other official decisions and registering births, deaths, and marriages.

In Books v. and vi. we consider two kinds of evidence which is in one

way or other of inferior cogency, namely, 'circumstantial evidence,' in

which the evidence if accepted still leaves room for a process of more

or less doubtful inference; and 'makeshift evidence,' such evidence as

must sometimes be accepted for want of the best, of which the most

conspicuous instance is 'hearsay evidence.' Book vii. deals with the

'authentication' of evidence. Book viii. is a consideration of the

'technical' system, that namely which was accepted by English lawyers;

and finally Book ix. deals with a special point, namely, the exclusion

of evidence. Bentham announces at starting[419] that he shall establish

'one theorem' and consider two problems. The problems are: 'what

securities can be taken for the truth of evidence?' and 'what rules can

be given for estimating the value of evidence?' The 'theorem' is that no

evidence should be excluded with the professed intention of obtaining a

right decision; though some must be excluded to avoid expense, vexation,

and delay. This, therefore, as his most distinct moral, is fully treated

in the last book.

Had Bentham confined himself to a pithy statement of his leading

doctrines, and confirmed them by a few typical cases, he would have been

more effective in a literary sense. His passion for 'codification,' for

tabulating and arranging facts in all their complexity, and for applying

his doctrine at full length to every case that he can imagine, makes him

terribly prolix. On the other hand, this process no doubt strengthened

his own conviction and the conviction of his disciples as to the value

of his process. Follow this clue of utility throughout the whole

labyrinth, see what a clear answer it offers at every point, and you

cannot doubt that you are in possession of the true compass for such a

navigation. Indeed, it seems to be indisputable that Bentham's arguments

are the really relevant and important arguments. How can we decide any

of the points which come up for discussion? Should a witness be

cross-examined? Should his evidence be recorded? Should a wife be

allowed to give evidence against her husband? or the defendant to give

evidence about his own case? These and innumerable other points can only

be decided by reference to what Bentham understood by 'utility.' This or

that arrangement is 'useful' because it enables us to get quickly and

easily at the evidence, to take effective securities for its

truthfulness, to estimate its relevance and importance, to leave the

decision to the most qualified persons, and so forth. These points,

again, can only be decided by a careful appeal to experience, and by

endeavouring to understand the ordinary play of 'motives' and

'sanctions.' What generally makes a man lie, and how is lying to be made

unpleasant? By rigorously fixing our minds at every point on such

issues, we find that many questions admit of very plain answers, and are

surprised to discover what a mass of obscurity has been dispelled. It

is, however, true that although the value of the method can hardly be

denied unless we deny the value of all experience and common sense, we

may dispute the degree in which it confirms the general principle. Every

step seems to Bentham to reflect additional light upon his primary

axiom. Yet it is possible to hold that witnesses should be encouraged to

speak the truth, and that experience may help us to discover the best

means to that end without, therefore, admitting the unique validity of

the 'greatest happiness' principle. That principle, so far as true, may

be itself a deduction from some higher principle; and no philosopher of

any school would deny that 'utility' should be in some way consulted by

the legislator.

The book illustrates the next critical point in Bentham's system--the

transition from law to politics. He was writing the book at the period

when the failure of the Panopticon was calling his attention to the

wickedness of George III. and Lord Eldon, and when the English demand

for parliamentary reform was reviving and supplying him with a

sympathetic audience. Now, in examining the theory of evidence upon the

plan described, Bentham found himself at every stage in conflict with

the existing system, or rather the existing chaos of unintelligible

rules. English lawyers, he discovered, had worked out a system of rules

for excluding evidence. Sometimes the cause was pure indolence. 'This

man, were I to hear him,' says the English judge, 'would come out with a

parcel of lies. It would be a plague to hear him: I have heard enough

already; shut the door in his face.'[420] But, as Bentham shows with

elaborate detail, a reason for suspecting evidence is not a reason for

excluding it. A convicted perjurer gives evidence, and has a pecuniary

interest in the result. That is excellent ground for caution; but the

fact that the man makes a certain statement may still be a help to the

ascertainment of truth. Why should that help be rejected? Bentham

scarcely admits of any exception to the general rule of taking any

evidence you can get--one exception being the rather curious one of

confession to a Catholic priest; secrecy in such cases is on the whole,

he thinks, useful. He exposes the confusion implied in an exclusion of

evidence because it is not fully trustworthy, which is equivalent to

working in the dark because a partial light may deceive. But this is

only a part of a whole system of arbitrary, inconsistent, and technical

rules worked out by the ingenuity of lawyers. Besides the direct injury

they gave endless opportunity for skilful manoeuvring to exclude or

admit evidence by adopting different forms of procedure. Rules had been

made by judges as they were wanted and precedents established of

contradictory tendency and uncertain application. Bentham contrasts the

simplicity of the rules deducible from 'utility' with the amazing

complexity of the traditional code of technical rules. Under the

'natural' system, that of utility, you have to deal with a quarrel

between your servants or children. You send at once for the disputants,

confront them, take any relevant evidence, and make up your mind as to

the rights of the dispute. In certain cases this 'natural' procedure has

been retained, as, for example, in courts-martial, where rapid decision

was necessary. Had the technical system prevailed, the country would

have been ruined in six weeks.[421] But the exposure of the technical

system requires an elaborate display of intricate methods involving at

every step vexation, delay, and injustice. Bentham reckons up nineteen

separate devices employed by the courts. He describes the elaborate

processes which had to be gone through before a hearing could be

obtained; the distance of courts from the litigants; the bandying of

cases from court to court; the chicaneries about giving notice; the

frequent nullification of all that had been done on account of some

technical flaw; the unintelligible jargon of Latin and Law-French which

veiled the proceedings from the public; the elaborate mysteries of

'special pleading'; the conflict of jurisdictions, and the manufacture

of new 'pleas' and new technical rules; the 'entanglement of

jurisdictions,' and especially the distinction between law and equity,

which had made confusion doubly confounded. English law had become a

mere jungle of unintelligible distinctions, contradictions, and cumbrous

methods through which no man could find his way without the guidance of

the initiated, and in which a long purse and unscrupulous trickery gave

the advantage over the poor to the rich, and to the knave over the

honest man. One fruitful source of all these evils was the 'judge-made'

law, which Bentham henceforth never ceased to denounce. His ideal was a

distinct code which, when change was required, should be changed by an

avowed and intelligible process. The chaos which had grown up was the

natural result of the gradual development of a traditional body of law,

in which new cases were met under cover of applying precedents from

previous decisions, with the help of reference to the vague body of

unwritten or 'common law,' and of legal fictions permitting some

non-natural interpretation of the old formulae. It is the judges, he had

already said in 1792,[422] 'that make the common law. Do you know how

they make it? Just as a man makes laws for his dog. When your dog does

anything you want to break him of, you wait till he does it and then

beat him. This is the way you make laws for your dog, and this is the

way the judges make laws for you and me.' The 'tyranny of judge-made

law' is 'the most all-comprehensive, most grinding, and most crying of

all grievances,'[423] and is scarcely less bad than 'priest-made

religion.'[424] Legal fictions, according to him, are simply lies. The

permission to use them is a 'mendacity licence.' In 'Rome-bred law ...

fiction' is a 'wart which here and there disfigures the face of justice.

In English law fiction is a syphilis which runs into every vein and

carries into every part of the system the principle of rottenness.'[425]

The evils denounced by Bentham were monstrous. The completeness of the

exposure was his great merit; and his reputation has suffered, as we are

told on competent authority, by the very efficiency of his attack. The

worst evils are so much things of the past, that we forget the extent

of the evil and the merits of its assailant. Bentham's diagnosis of the

evil explains his later attitude. He attributes all the abuses to

consciously corrupt motives even where a sufficient explanation can be

found in the human stupidity and honest incapacity to look outside of

traditional ways of thought. He admits, indeed, the personal purity of

English judges. No English judge had ever received a bribe within living

memory.[426] But this, he urges, is only because the judges find it more

profitable as well as safer to carry out a radically corrupt system. A

synonym for 'technical' is 'fee-gathering.' Lawyers of all classes had a

common interest in multiplying suits and complicating procedure: and

thus a tacit partnership had grown up which he describes as 'Judge and

Co.' He gives statistics showing that in the year 1797 five hundred and

forty-three out of five hundred and fifty 'writs of error' were 'shams,'

or simply vexatious contrivances for delay, and brought a profit to the

Chief Justice of over L1400.[427] Lord Eldon was always before him as

the typical representative of obstruction and obscurantism. In his

_Indications respecting Lord Eldon_ (1825) he goes into details which it

must have required some courage to publish. Under Eldon, he says,

'equity has become an instrument of fraud and extortion.'[428] He

details the proceedings by which Eldon obtained the sanction of

parliament for a system of fee-taking, which he had admitted to be

illegal, and which had been denounced by an eminent solicitor as leading

to gross corruption. Bentham intimates that the Masters in Chancery were

'swindlers,'[429] and that Eldon was knowingly the protector and sharer

of their profits. Romilly, who had called the Court of Chancery 'a

disgrace to a civilised nation,' had said that Eldon was the cause of

many of the abuses, and could have reformed most of the others. Erskine

had declared that if there was a hell, the Court of Chancery was

hell.[430] Eldon, as Bentham himself thought, was worse than Jeffreys.

Eldon's victims had died a lingering death, and the persecutor had made

money out of their sufferings. Jeffreys was openly brutal; while Eldon

covered his tyranny under the 'most accomplished indifference.'[431]

Yet Eldon was but the head of a band. Judges, barristers, and solicitors

were alike. The most hopeless of reforms would be to raise a

'thorough-paced English lawyer' to the moral level of an average

man.[432] To attack legal abuses was to attack a class combined under

its chiefs, capable of hoodwinking parliament and suppressing open

criticism. The slave-traders whom Wilberforce attacked were

comparatively a powerless excrescence. The legal profession was in the

closest relations to the monarchy, the aristocracy, and the whole

privileged and wealthy class. They were welded into a solid 'ring.' The

king, and his ministers who distributed places and pensions; the

borough-mongers who sold votes for power; the clergy who looked for

bishoprics; the monied men who aspired to rank and power, were all parts

of a league. It was easy enough to talk of law reform. Romilly had

proposed and even carried a 'reformatiuncle' or two;[433] but to achieve

a serious success required not victory in a skirmish or two, not the

exposure of some abuse too palpable to be openly defended even by an

Eldon, but a prolonged war against an organised army fortified and

entrenched in the very heart of the country.