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of happiness must comprehend the happiness of the greatest number; that is, it includes on the one hand intensity and quantity of happiness, and on the other the largest number of persons among whom it is shared. (In the latter portion of his life and work Bentham recognised that the famous formula “the greatest happiness of the greatest number" was deficient in exactness and clearness, and therefore curtailed it to the simpler form “the greatest happiness.”) The legislator, like everyone else, must incessantly be actuated by the desire to “maximise" happiness; and in seeking to influence conduct, he will impose “sanctions”—divisible into physical, political, moral or popular, and religious—that is, he will attach pains or pleasures to given classes of actions. To be affected by a sanction is tantamount to being under an “obligation.” To determine what modes of action will conduce to the desired object, and what motives or springs of action are best calculated to bring them about, Bentham drew up tables of motives, which appear extraordinarily exhaustive, but betray a somewhat mechanical psychology; and despite their elaborate classification some of the highest and most powerful springs of action are omitted, such as “conscience,” “moral duty,” “sense of honour,” “principle,” etc. He sets forth the measure of pleasure and pain, considers the different kinds, classifies them; he shows how different persons vary in their sensibility to them, and gives a list of thirty-two “circumstances influencing sensibility.” He points out that the “sanctions” will not, of course, possess a uniformly operative force, but will act differently in different cases. The nature of “intention " depends on the consequences contemplated. Motives, modifiable by the imposition of “sanctions,” are not in themselves bad, and are either “internal,” namely anticipated pleasure or pain, or “external,” that is the event producing the anticipation. Thus the character of conduct is determined not by “motives,” but by the nature of the “consequences.” The fundamental doctrine of jurisprudence is, then, equally applicable to the sphere of ethics. The relation between jurisprudence and ethics is well known to be a vexed question. Bentham attempts to distinguish them in this manner: “Where legal rewards and punishments cease to interfere with human actions, there precepts of morality come in with their influences. . In a word, deontology or private ethics may be considered the science by which happiness is created out of motives extralegislational, while jurisprudence is the science by which law is applied to the production of felicity.” ". We need not here inquire into the logical cogency of this distinction.
(ii) POLITICS AND GOVERNMENT
Bentham's views and speculations on politics and the work of government are of a less exhaustive character than those on jurisprudence, but they are none the less of considerable interest and importance in the history of political science. He discussed questions of free trade and colonial expansion, and presented luminous schemes for parliamentary reform. He went to the very foundations, and made a vigorous attack on the oft-proclaimed “wisdom of our ancestors ” and the constantly vaunted “matchless constitution.” Brought up a tory, he soon became a radical; his critical temperament and penetrating vigilance eminently fitted him to be always in the opposition. Here, as everywhere, he introduces his touchstone of utility, maintains that it is the indispensable criterion of political virtue, and that the paramount aim—indeed the indefeasible obligation—of the statesman is to secure and minister to the general happiness of the community. He assails the fiction of a compact between king and people. Montesquieu's and Blackstone's ideal form of constitution, embodying a blend of monarchical, aristocratic, and democratic elements, which are represented by king, lords, and commons, was weighed in Bentham's balance of “utility" and found to be wanting in many respects.” He thoroughly detested the abstract “rights of man’’ theory, which he regarded as a “hodge-podge" of fallacies. But he was also opposed to Burke's romantic deification of the British constitution. In his eyes both Paine and Burke were alike sophists, the one spinning out logical, the other sentimental, sophistries. In his consideration of constitutional government he scarcely pays heed to the questions as to what authority the people should be subject to and how their obedience should be secured; he is, rather, especially concerned with the means available for preventing abuses of power. He is in favour of individualism, but not to the extent of Jacobin absolutism, which is antagonistic to his empirical method." The less government the better.” The individual citizen is to be allowed to seek his own pleasures, and live his own life according to his lights—the intervention of government being necessary only to protect him from molestation or suffering, by instituting rights and obligations, and definitely promulgating them in legislative enactments. “Security" is the first indispensable condition of happiness, “equality" being only secondary. His “laissez-nous faire” principle, pithily interpreted by him by the words “be quiet,” “ was opposed to all such restrictions on the free activity of a subject as were not essential for securing similar liberty on the part of fellow-citizens; so that, conformably to this doctrine, all legislative limitations and interference, not manifestly justifiable on some clear utilitarian ground, should be removed. Indeed, the drift of his argument in his Manual of Political Economy “is to the effect that almost all legislation is improper, and that industry needs only freedom and security. In case of difference of views as to the policy to be pursued, the majority of the nation should exercise control, and the predominating public opinion will indicate the direction that may legitimately—in fact must necessarily—be taken. The existence of such majority and the fulfilment of its wishes will constitute the only guarantee that its interests, and on the whole the interests of the community at large, are identical with those of the governing authority. (Here Bentham did not fully recognise the corrective effect of a standing opposition.) In large states, of course, the rule of the majority will take the form of representative government. The people will elect “morally apt agents” to represent them, and not those who are animated by “sinister interests,” and who consider the welfare of their class rather than that of the entire nation. These “agents,” as members of the legislature, are to be merely “deputies,” and not “representatives” in the ordinary sense of the term, and are to be ever subject to the vigilant control of the public. They are not to be re-eligible until after a certain interval has elapsed. This political system will dispense alike with king, house of peers, established church. Universal suffrage, annual parliaments, and vote by ballot will obtain; and women, equally with men, will exercise the rights of franchise.” The officials in all departments of state are to be appointed only on the results of open competitive examinations, and then are to be constantly inspected and their accounts checked by the public. Bentham strongly advocates the principle of “responsibility”; but in association with this he urges his rule, “minimise confidence.” ” Thus, in a democratic community, the greatest happiness of the greatest number will be the maxim and unvarying guide of all public activity.
* Deontology, vol. i., chap. ii, p. 27. *Cf. his Fragment on Government, referred to supra.
* As to his attitude to the French Revolution, see supra, chap. i, sub ann. 1789–1790.
* With regard to the growing feeling against government interference, see the previous chapter, sect. (ii) ad fin.
* Works, vol. x, p. 440. * Vol. iii, pp. 33 seq.
(iii) CIVIL LAW
In the sphere of civil law Bentham is indebted to Hume for his criticism of the prevailing contractual conception, and of the theory of the right of property. The Commentaries of Blackstone appeared before the work of Bentham; but the former was only an expositor of the law as it was and relied on erudition, the latter was a critic, a censor, pointing out what the law ought to be, and relied on forcible ratiocination rather than mere learning. The purpose of civil law, Bentham holds, is to secure a clear definition of rights and obligations, and to fix specifically their reciprocal relationships. He regards legislation as a science, not based on a priori dogmas, but an empirical inductive science, founded on obvious indisputable facts perceptible in human nature, and embracing therefore a body of conclusions, which are the natural and necessary outcome of those facts. The complicated, inharmonious character of existing English law, due to a precarious haphazard development, was unsuited to the needs of the time. Partial modification or amendment would scarcely suffice. To effect a real legislative improvement it was necessary to bring about an almost entire transformation, wellnigh a reconstruction de novo. In carrying out this work, the eye of the of utility, and every provision he makes must be calculated to promote the greatest happiness of the community at large, by preparing the way for the establishment of such conditions as will, probably, favour the prosperity of subjects and produce all the happiness possible to human beings. A comprehensive scientific synthesis is facilitated, as law is concerned with external actions and contemplated consequences, rather than with motives and inward feelings which constitute the special subject - matter Bentham mercilessly assailed the all-pervading technicalities, the antiquated methods, and the traditional procedure. For him “technical "meant “fee-gathering.” The sinister association of “Judge and Co.” had tacitly come into being; and the object of judges, advocates, attorneys, and officials was to prolong and multiply suits, and to complicate the proceedings in order to fleece litigants. The greater part of “writs of error” amounted to little more than “shams,” or devices for delay, by which the Chief Justice reaped a rich harvest of fees.” The Court of Chancery was, in this respect, the supreme offender; and under Lord Eldon, who was in the eyes of Bentham the very incarnation of obscurantism and hostility to reform, equity had become transformed into “an instrument of fraud and extortion.” ” Bentham's severe censure was not unjustified. Others, usually more moderate in tone and expression, gave vent to very strong animadversions in regard to that court. Thus Romilly described it as a “disgrace to a civilised nation,” “ and Erskine said that if there was a hell, the Court of Chancery was hell." Bentham enumerates some twenty contrivances adopted by the courts, which tended to produce delays and injustice—and fees. He describes the elaborate and confusing steps to be taken before /a hearing could be secured; the long, inconvenient journeys of litigants; the chicaneries involved in the rules as to the giving of notice; the frequent nullification of all that had been done owing to some technical flaw; the concealment of the substance of the proceedings from the public on account of the jargon Latin and law-French that interlarded them; the conflict of jurisdictions; the opposition between law and equity; the capricious fabrication of new “pleas” and new technical regulations; the complicated obscure provisions respecting “special pleading,” and so on. “Judge-made" law—which is as bad as priest-made religion—had wrought havoc in English jurisprudence. Legal fictions amount to nothing more than lies; the leave obtained to resort to them is simply a “mendacity licence.” A system of rules had been elaborated for excluding evidence, so that many matters were not admitted that were material and relevant." Bentham observes that merely to suspect evidence
of ethics. * Works, vol. iii, p. 463. * Vol. ix, p. 62.