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a truth that in England more instances happen of thefts, robberies, and other crimes of indigence (murder out of question) than in any other country in Europe. The question is, how comes this? The answer is, a mixture of false humanity, timidity, and indifference in the ruling powers. From an almost total neglect of a prejudice against those expedients for enforcing penal ordinances and magnifying the effect of them, which common sense grounded on experience has dictated to most other nations.—Then paint the mixture of timidity, disdain, pride, and meanness that prevails at present among statesmen.” "
(v) BENTHAM'S AIM AND METHOD
It will already have been perceived that in all Bentham's inquiries and expositions his unvarying aim is to get at the real —to disengage what is concrete and cognisable by actual experience from the a priori assumptions and fictions of theoreticians, and the prejudices and superstitions of traditionalists. He was ever disposed to ask the why, the wherefore, the whither of every rule, of every institution, of everything. His spirit was preeminently a questioning spirit; he was, as John Stuart Mill says, “the great questioner of things established.” ” Independent, selfreliant, vigorous, indefatigable, dauntless, he was admirably fitted to overhaul the entire system of social, political, legal, and judicial organisation, weigh every portion of it in his consistent balance, point out the inherent fallacies, show how they were radically detrimental to the true object and interest of a civilised community, and suggest at great length measures of reform. Thus he would do away with the inconsistencies and vagaries of judge-made law, build up a more appropriate system/ atic law, simplify it, codify it and so make it public and intelligible to all. He was an arch-innovator, not only as regards essentials, but also in respect of details. In every subject he took up—and what did he not deal with?—he poured forth an amazing multiplicity of details, which by their novelty, freshness, coherence, abundance inspired opponents with awe and wonder, and frequently silenced would-be adversaries. His method constituted a formidable and an invaluable instru* From MSS. at University College, London, No. 67 (Penal Code). Quoted ment of investigation. By means of his dichotomous classification, which he aims at making “natural” rather than “technical,” together with his method of exhaustion — which had been adopted so effectively by that other critic and innovator, Socrates —he analysed out every complicated institution into its constituent elements, separated truth from error, realities from mere abstractions, the useful and expedient from the useless and noxious accretions. His interminable divisions and subdivisions pursued and penetrated the venerable pretence of accepted generalities, exposed their real significance, and showed that phrases and catchwords, no matter how long they may have been sanctified, did not necessarily enshrine truth and wisdom. He demanded something more than mere opinion as a foundation for a social and legislative edifice; and, what is more, he wanted to know what was the ultimate basis of that opinion itself. Facts ~ were to him more precious and sacred than all the ingenious speculations of all the philosophers; and his main facts, as he held, were to be readily apprehended by observing the manifestations of human nature. Such facts demonstrated the universal desire for pleasures and aversion from pain, and consequently the r applicability of the utilitarian test—a test that showed up the evils and deficiencies of prevailing rules, devices, theories, fictions, technicalities, traditions, practices, institutions, systems. Thus his conclusions—both those issuing from his destructive criticism and those arrived at in his constructive work—are ostensibly referable to this fundamental principle of utility; but in the main they may well be accepted by us without any formal adherence on our part to “utilitarianism,” for they proceed from common sense, a priceless treasure that is acceptable to all schools of social philosophy. The superiority of Bentham's method to that of even eminent writers like Montesquieu is apparent. His views and generalisations are reinforced by a rich fund of illustration. But, unlike Montesquieu, he does not give a superfluity of extraneous facts and anecdotes, which, in the case of the French writer, sometimes conceal the underlying principles instead of fortifying them and shedding light on them. Occasionally the classification of Montesquieu's material appears scarcely relevant; for he allows himself to set forth a special heading or section, avowedly enunciating a principle, for the sole purpose of introducing a singular story. Again, Bentham sifts and weighs his facts with
by Halévy, La formation du radicalisme philosophique, vol. i. p. 128. * Dissertations and Discussions (London, 1867), vol. i. p. 332.
greater care and discrimination, and estimates with greater accuracy their material relevance and value. On the other hand, a statement or figure seen in a book would seem to the author of Esprit des lois to be sufficient and at times even final. Whether such accepted “facts" originate from the west or from the east, from his own country or from the kingdom of Bantam, appears to matter little; whether the statements possess intrinsic probability—as, for example, the report that in some countries there are ten women to one man — remains not infrequently unquestioned. Voltaire deplored this conspicuous defect of his countryman: “Est-il possible qu'un homme sérieux daigne nous parler si souvent des lois de Bantam, de Macassar, de Borneo, d'Achem; qu'il répète tant de contes de voyageurs, ou plutót d’hommes errants, qui ont débité tant de fables, qui ont pris d’abus pour des lois, qui sans sortir du comptoir d'un marchand hollandais, ont pénétré dans les palais de tant de princes de l'Asie?” The questioning temperament, the independent spirit, the level-headed nature, the scientific attitude, the passion for logical exactitude of Bentham would not let him brook such things. He was able, equally with the best, to launch forth aphorism and epigram; but he disdained to make use of stylistic decoration as a substitute for cogent reasoning based on examined facts. He even endeavoured to give a mathematical rigour to his argument by selecting, defining, and consistently adhering to a special terminology, by his constant regard for the exigencies of syllogistic reasoning, and by making use of his “moral arithmetic” and “felicific calculus.” He was throughout bent on attaining objectivity and precision, setting forth reality, avoiding metaphysical vagueness, casuistic plausibility, gushing sentimentality; he worshipped at the shrine of logic and, though a markedly humane man, spurned the blandishments of “humanitarianism.”
And so he devoted himself to the experimental method, applying a species of Newtonianism to the realms of morals, politics, and law, and endeavouring to transform those subjects from the confusion and prolixity into which they had fallen into the order and systematic coherence of exact verifiable sciences. In such a large task it were impossible for anyone to succeed completely, and to avoid prejudices and errors of one kind or another. Bentham set store by the analytic method to an undue extent, and paid little or no regard to conceptions of historical evolution. History he must have considered, after the manner of Voltaire, to be nothing more than a record of the follies and crimes of mankind. He failed to take into account the notion of organic development as applied to the nature and growth of institutions, and looked with even less esteem on the work of historians than on the productions of previous thinkers. Therefore he was but too prone to deny or disregard facts that did not come within his own experience; and he refused to recognise truths that happened to be inconsistent with his essential doctrines. Had he adopted a comparative point of view, and taken into account the products of other ages, nations, workers, had he possessed a more intimate knowledge of his fellow-creatures, he would have been able to steer clear of those prejudices and mistakes. Nevertheless, by dint of iteration and reiteration—an additional weapon of his wielded with drastic effect—his criticism and teaching in course of time acquired irresistible force, and ultimately achieved a signal triumph.
BENTHAM's VIEWS ON PENAL LAW
“THE object of this part is to describe offences, to classify them, and to point out the circumstances by which they are aggravated or extenuated. It is a treatise upon diseases, which of necessity precedes the inquiry as to cures.” An offence is, in reference to an established legal system, whatever is prohibited by the legislator, whether for good or for bad reasons. In reference to the principle of utility, it is an act which ought to be forbidden by reason of some evil that it produces or tends to produce. (Bentham uses the word in the latter sense.) Offences are divisible according to the classes of persons injured: private, reflective (against oneself), semi-public (affecting a part of the community, or particular district), public." Each of these may be divided according to the object, condition, or relationship injured." Other classifications are: complex, simple; principal, accessory; positive, negative (i.e. negligence); real, imaginary (i.e. acts which produce no real evil, but which prejudice, mistake, and the ascetic principle have made offences; they vary with time and place, e.g. heresy, sorcery, etc.)." A further division may be made according as the offence is directed against the person, property, reputation, or condition.” The enormity of the evil inflicted (evil of the first order) depends on the amount of physical pain, terror, disgrace, irreparable * The brief analysis here presented is based on Principes du code pénal in Dumont's Traités de legislation, 3 vols. (Paris, 1802) (trans. by R. Hildreth [London, 1891]), on Principles of Penal Law in Bowring's edition of Bentham's Works, vol. i., pp. 365-580—edited from Dumont's Treatise and the original MSS. of Bentham—and on other writings relating to criminal law. Bowring's classification is arranged thus: Part I, Political remedies for the evil of offences; Part II, Rationale of punishment; Part III, Indirect methods of preventing crimes. (A new translation of the Traités, by C. M. Atkinson, was published in 1914 [Oxford University Press].) * Cf. Introduction to Morals and Legislation, in Works (Ed. Bowring), vol. i.
* Treatise on Legislation (Ed. Dumont), Principles of the Penal Code, Part I,