Front Page Titles (by Subject) CHAPTER VII.: PRACTICAL GENERAL RULES. - The Works of Jeremy Bentham, vol. 2
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CHAPTER VII.: PRACTICAL GENERAL RULES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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PRACTICAL GENERAL RULES.
Rules as to minimization of evil.
On each occasion, have constant regard for all the several ends of justice; that is to say, minimize the sum, or the balance of evil, composed of the evils opposite, respectively to these ends.
Of the several elements of value as applied to pleasures and pains, thence to good and evil, magnitude—the compound of intensity and duration—being the most apparent, be careful not to overlook those, which when the good or evil in question is distant, are most liable to be overlooked or undervalued—namely, propinquity and probability.
In like manner, in the case of any maleficent act or practice, whether on the part of persons at large, or on the part of judicial functionaries, forget not to take into account the evil of the second order,—to wit, the second order, composed of the danger, and the alarm, the publicly diffusive evil; any more than the evil of the first order—composed of the single-seated, and the domestically diffusive evil.
Rules as to irreparable evil.
As to irreparable evil. It may be such either—1. absolutely, or, 2. relatively: absolutely, to wit, in its own nature, relation had to the nature of man in general; relatively, to wit, relation had to the condition of the particular individual or individuals concerned. Death is so, in its own nature: pecuniary evil—pecuniary loss—is, in its own nature, in a greater degree more easily reparable, than evil in any other shape. Evil of a comparatively inconsiderable amount may be irreparable, relation had to the individual or individuals concerned.
Evil which, whether absolutely or relatively considered, is irreparable in itself, may also, relatively considered, not be irreparable in the way of equivalent.
Death is the only shape in which evil, on the part of the immediate sufferer, is certainly and invariably irreparable.
In the way, and by means of compensation, there is no evil to which it may not happen to be, in the instance of the individual in question, reparable in the way of equivalent.
Relation had to the individual in question, an evil is reparable, and exactly repaired, when, after having sustained the evil and received the compensation, it would be a matter of indifference whether to receive the like evil, coupled with the like compensation, or not.
What is manifest is—that to no person, other than the individual himself, can it be known whether, in his instance, between an evil sustained, and a benefit received on account of it, any compensation have place or not.
Considered with a view to its irreparability, the evil which an individual is liable to suffer is susceptible of the same division and distinction, as the sorts of offences to which an individual stands exposed: in the evil which is the result of the offence, may be seen the sole reason, or rational cause, for the endeavour, on the part of the legislator, to exclude or minimize it.
In this case, to minimize evil, have more especial care to exclude all such as is irreparable.
Irreparable evil may be produced—1. For want of a judicial mandate; 2. By a judicial mandate.
The sides liable to be affected by it are—1. The pursuer’s; 2. The defendant’s side of the suit.
Causes or sources, from which irreparable evil is mostly liable to flow, are—
1. Deperition, or ultimate non-forthcomingness, of the means of execution.
2. Deperition, or ultimate non-forthcomingness, of the means of proof, or say, sources of evidence.
Deperition, or ultimate non-forthcomingness, of means of proof, includes, if complete, deperition of the means of execution; to wit, in favour of that side, to the interest of which, in case of the proof, the execution would have been subservient.
Of a failure of the means of rommunication, deperition, or ultimate non-forthcomingness, as well of means of proof as of means of execution, may be the result.
By execution, understand as well reciprocal, as direct: direct, it is called, in the case where the object of it is to render to the pursuer the service demanded by him; reciprocal, where it has for object the rendering to a defendant compensation for, or security against, vexation and expense produced by the pursuit.
When there are two antagonizing lots of evil, considered as liable to be produced, the one on the pursuer’s side of the suit—the other on the defendant’s—two evils, both irreparable, or the evil on one side reparable, on the other side irreparable, forget not to take into account the magnitude and value of each. On this occasion, let not the imagination be deluded by the impressiveness of the idea attached to the word irreparable. Loss, though certainly irreparable to the amount of a shilling, will not be to be guarded against with so much anxiety, as a loss, though perhaps reparable, to the amount of a pound.
In a wrong-imputing, yet not penal, private suit, the irreparable evil to be guarded against is, deperition of the means of compensation, or other means of satisfaction, for the wrong execution in respect of the service demanded by the pursuer’s, at the charge of the defendant’s, side.
In a purely public penal suit, the irreparable evil requiring to be guarded against, for the sake of the pursuer’s side, is the impunity of the defendant, in the case of his having been, in the shape in question, a delinquent.
In every sort of suit, the irreparable evils requiring to be guarded against, for the sake of the defendant’s side, are—1. On erroneous, or inadequate grounds, conviction, and consequent burthen of compensation, or punishment, or both, imposed upon the defendant: he in truth, not having been guilty, not having committed the wrong imputed to him, or any other similar to it. 2. The evil composed of the vexation and expense to which, by means of the suit, he may be subjected—the evil correspondent, and opposite to, the collateral ends of justice.
Rules for the guidance of the judge in the exercise of his ulterior powers.
On each occasion, the direct and first care and endeavour of the judge, will be the fulfilment of the direct ends of justice; to wit, by taking such course, or doing that which in each individual instance shall be most conducive to the fulfilment of the direct ends of justice, positive and negative; further, to wit, the causing to be rendered when, and in so far as due, the service demanded by the pursuer.
His next care will be the fulfilment of the collateral ends of justice; to wit, by minimizing, on each occasion, the quantity of evil in its several shapes, delay, expense, and vexation at large, at the charge of the several classes of persons, in relation to whom his powers will have to be exercised.
When, and in so far as, the collateral ends of justice on the one part are seen to antagonize with the direct ends of justice on the other, it will be his care to pursue that course, by the taking of which, the balance on the side of good is greatest upon the whole.
On each individual occasion, as a security for the maximization of the aggregate of good, and the minimization of the aggregate of evil, he will settle in his own mind, and make public declaration of, the reasons by the consideration of which his conduct has been determined; which reasons will consist in the allegation of so many items in the account of evil, on both sides: magnitude, propinquity, certainty, or say probability, and extent,—being in relation to each head of good and evil, taken into the account.
Proportioned to the clearness with which those reasons are conceived, will be his own assurance and satisfaction of the conformity of his proceedings with the ends and dictates of justice: proportioned to the clearness with which they are expressed, will be the satisfaction afforded to the superordinate authorities to whom he is responsible.
For these purposes the constitutional code, on the principles of which this procedure code has been grounded, gives to his legal power a latitude, to which in general there are no fixed limits; and, at the same time, maximizing according to its utmost endeavours, the efficacy of the checks provided for preventing such his powers from being employed to any sinister purpose.
With a view to the collateral ends of justice, the following are among the cautions which he will have to observe:—
The applicant having been received, in the character of pursuer, or pursuer’s proxy, and in support of the application, his evidence, appropriate or simply indicative, or both, elicited—the judge will not, in relation to any other person of whatever description (a proposed defendant, proposed witness, if any, or proposed co-pursuer, if any,) perform any operation liable to be productive of vexation or expense, unless in his view of the matter, taking such evidence for correct, a probability has place, that at the charge of the proposed defendant, the service demanded, or some other, more or less analogous to it, is due.
To the minimization of avoidable delay, he will have especial regard. Of delay, every moment beyond what is necessary to the direct ends is detrimental to the direct ends, as well as to the collateral ends, of justice. To the direct ends, by the intermediate eventual decease of the pursuer, by chance of deperition of sources of evidence on both sides; and in case of personal evidence, not already in writing, danger of diminution of clearness, correctness, and completeness, by faultiness of recollection. To the collateral ends,—to the prejudice of the pursuer’s side, in so far as in the right, by and in proportion to the vexation attached to the non-possession of the service due—and incidentally by and in proportion to the expense, the need of which may have been produced by intervening accident; to the prejudice of the defendant’s side, if in the wrong, in the greatest number of individual cases, it will not be; since the longer it continues, the longer he remains exempted from the service sought to be exacted at his charge.
But in so far as he is in the right, he stands exposed by it, equally with the pursuer, to sufferance, to the prejudice of the direct ends of justice, by deperition and deterioration of evidence, as above: and proportioned to his assurance of his being in the right, is the vexation he experiences from the apprehension of being ultimately regarded as being in the wrong, and on that account unduly subjected to the service, which though not due, is demanded at his charge.
But, of two or more applications made at the same time, no one is there which may not of necessity be made to suffer delay by the just demands made by others, in an indefinite number, upon the judge’s time.
What may also happen is, that by deferring that which in the natural order of inquiry would be the next judicial operation to be performed, advantage may be produced, preponderating over the disadvantage, to any or all the ends of justice. As often as this is the case, the judge will accordingly defer, to some future time indicated, the performance of such next judicial service: but for reason, and justification, he will bring to view the particular incident or incidents by which exception has appeared to be made to the general rule.
In Buonaparte’s civil code, the parties being in the judicatory of the justice of the peace, admitted into the presence of each other and the judge,—great is the anxiety expressed to prevent confusion on the occasion of such altercation as may naturally be expected: and on that account, for the prevention of that inconvenience, no person other than the judge is authorized to put a question to any other. In this anxiety, no cause for disapprobation can assuredly be found, especially when the character of the people he had to deal with is considered.
In English judicature, all cause for any such anxiety is effectually excluded: not existing in the presence of the judge, parties cannot quarrel or annoy each other in the presence of the judge. Saving the sparingly exercised right of the judge to put questions, to no party on either side is any question put by any sort of person but an advocate: nor, unless between advocate and advocate, or in an extraordinary case, in guarded terms, between advocate and judge, can altercation in any shape have place.
Among the cares of the judge, will in like manner be the minimization of the number of persons, of whatever description, operated upon by the exercise of his power; as also, in the instance of each such person, the number and vexatiousness of the operations imposed upon them respectively.
Accordingly, between the individual by whom, in each instance, the compliance necessary to the reddition of the service in question is to be produced, he will avoid interposing without necessity any intermediate hand. The reasons are—
1. By every such intermediate hand, so interposed, is produced a chance of delay, and a chance of ultimate failure.
2. By every such intermediate hand, so interposed, is produced vexation, if no compensation, or no more than inadequate compensation, be accorded: and in so far as compensation is accorded, expense.
Middle-agency-sparing, is the name given to this rule.
Of the application capable of being made of the middle-agency-sparing rule, examples are as follows:—
1. As per Constitutional Code, Chap. XII. Judiciary collectively. Giving to each immediate judge, once in possession of a suit, the faculty of operating for the purpose of it, in the territory of any and every other immediate judge; instead of an address from the judge of the originating judicatory, to the judge of the territory in which such several operations have to be performed; for though, for various purposes, notice of what is done may be requisite for the information of the judge in whose territory the operation is to be performed; so is it also, at the same time, for every needful purpose, sufficient.
By deferring the operation till after an answer from the judge in question had been received, or time for the reception of it elapsed, proportionable delay would be produced, and that without need or use.
When, for the purpose of justice, at the charge of any person, whether in the situation of defendant, or any other, the transfer of any subject-matter of property is to be made, let not the co-operation or consent of such person be made necessary to the validity of such transfer. If, at the hands of the person in question, disclosure of any matter of fact relative to such property be necessary, it will be exacted accordingly; but to no effect for which such disclosure may be requisite, can concurrence in any way, in the act of transfer, be needful or of use.
Inflexible regulations, none.
For minimizing evil, the main caution is, in no case, on no occasion, to lay down inflexible rules (in particular, inflexible rules as to quantity)—rules of which on any occasion the effect may be to prevent the minimization of evil in the individual case calling for decision at the hands of the judge.
The pretence in this case is, the avoiding to place arbitrary power in the hands of the judge. But the good thus sought is illusory. In the hands of a judge, power, in whatsoever degree arbitrary, is no otherwise an evil, than in so far as its effect is to produce evil in a tangible shape—to wit, human suffering—in the breasts of individuals. But where an inflexible rule, as to the quantity of anything, is laid down, the chances against its not producing evil in excess, are as infinity to one.
Against abuse of power, the only effectual, or efficient security, is composed of responsibility: substantial, punitional, and dislocational responsibility, legal and moral.
For the prevention of the abuse of power, on the part of judges, the appropriate place is accordingly, not so much in the procedure code as in the constitutional code.
For exemplification of the evil certain of being produced by inflexible rules in regard to quantity, take the three capital objects—matter of satisfaction, matter of punishment, and length of time.
First, as to the quantity of the matter of compensation, or other means of satisfaction. If there be a case in which, of the compensation thus inflexibly fixed, the quantity be deficient—in such sort deficient, as to be inferior to the profit obtainable by the wrong—it operates, by the amount of the difference, as an inducement to commit the wrong, instead of operating as a means of repression for the prevention of it.
So likewise in the case of punishment. If in the case of any crime, the punishment is, all things taken together, clearly inferior to the profit obtainable in the individual instance in question, by means of the crime, the effect of the so-called punishment is to operate by the amount of the difference, not as a repressive bond, for the prevention, but as an incentive and encouragement towards the commission of the crime. To one offence (by which in the individual case in question, the delinquent has gained £100,) let £10 and no more have been the sum fixed on, the obligation of paying which, constitutes the sole punishment imposed. The effect of the law is, to operate as a bounty upon the commission of the prohibited act—of the act thus inexpertly prohibited—as a county to the amount of £90, subject to the deduction of the expense, and the equivalent for the vexation in other shapes, attached to the situation of defendant, in these cases.
In the article of satisfaction and punishment, provision against improvidence in this shape belongs obviously to the field of penal law, not directly to the field of judicial procedure. Of improvidence in this shape, the marks are in a particular degree conspicuous in Buonaparte’s codes.
Now as to the fixation of length of time: length of time, allotted for the performance of various sorts of operations. In general, the pretence, or expected good, is avoidance of delay: but in general, besides the production of the opposite evil, precipitation, and thence the evil correspondent and opposite to the direct ends of justice, it has for its effect increase of delay, or increase of expense and vexation, or all three.
A year was the maximum to which Frederick the Great of Prussia fixed the greatest length of a suit at law in his dominions: not small was the service he was regarded by himself and by many another well-wisher to justice, as having by this exploit rendered to justice. What was the consequence? In the first place, wheresoever the quantity of business necessary to the avoidance of the evil opposite to the direct ends of justice (positive and negative) could not be performed within that time—production of the evil correspondent and opposite to the direct ends of justice. In the case of a to a certain degree complicated mercantile account, for example; in the case of the death or insolvency of a large capitalist, having extensive dealings with foreign states, this could not but be frequently exemplified; and in any case, by the expatriation of a single witness, if a necessary one, the same impossibility of rendering justice within the so allotted compass of time would be produced.
Of a rule thus improvidently all-comprehensive, delay, the very evil sought to be thus remedied, would naturally be not uncommonly among the fruits. This being the length allotted to the sittings, a judge to whose sinister interest delay showed itself favourable, would avail himself of the ordinance, to run on to the full length of it. This, he would say, is what the ordinance requires. Well, to this ordinance I have paid unquestionable obedience.
Under the English system, generally speaking, fixed lengths of time are allotted for every operation; lengths of time without any the smallest regard to the quantity of time necessary to the ends of justice—the different quantities demanded by different distances between place and place—the differences in respect of the degree of complication in the causes—the abodes of parties and necessary witnesses; in a word, not any the smallest regard is, in any part of the system of fixation, paid to the circumstances, nor therefore to the interest or feelings, of any of the individuals concerned.
In so far as the time is rendered unsusceptible of enlargement, here, in many instances to a certainty, is evil to a vast amount necessitated—evil, in that shape in which it is correspondent and opposite to the direct ends of justice. In so far as it is susceptible of being enlarged, here is a quantity more or less considerable, added to the fixed quantity of delay, vexation, and expense; for application must be made to the judicatory—application for the additional quantity of time. In support of the application, evidence must be produced—application with fees to solicitors, advocates, subordinate judicial officers, and perhaps judges—evidence carefully manufactured into the most unapt, delusive, and expensive shape.
Thus goes on the game of leap-frog, between strictness and liberality—each being in this, as on every other occasion, covered by a thick coating of well-paid and self-applied applause.
In English practice, whenever you see or hear the word strictness, expect to see injustice: you will seldom be disappointed.
Of the judicatories self-styled Equity courts, dilatoriness is, to the knowledge of everybody, the characteristic and most glaring cardinal vice. But could any unpaid eye endure to look into it, precipitation might be seen carried to a no less high degree of perfection: precipitation, by which in an extensive class of cases, the production of the evils correspondent and opposite to the direct ends of justice is habitually and with certainty secured.
Even at the commencement of every suit, in this kind of judicatory, the time allotted is, in most instances—considering the work that is to be done by it, and the lengths of necessary journeys—too short to admit of the work being done: for remedy, on payment of £1: 7s. to Judges and Co., two several additions may be made, by the half of which, it is rendered in most cases too long. A temptation is in every case held out to purchase a third length of delay: but under this indulgence lies a trap, in which the comparatively inexperienced law-practitioners are frequently caught, and this in such sort as to produce, to the dismay of their respective and unsuspecting clients, the evil correspondent and opposite to the direct end of justice;—the client loses his cause, because, willingly or unwillingly, his lawyers have been deceived.
Substitution to inflexible rules.
Of the several rules laid down in this code, there is not one that is meant to be regarded as inflexible: no one is there, from which, in case of necessity, the judge may not depart. But as often as he thus departs, the constituted authorities (the public-opinion tribunal included) will be looking to him for the reason—the specific reason or reasons, by the contemplation of which, such departure shall have been produced; and as often as he does this, without the assignment of any specific reason, he will be considered as having violated his official duty.
Every such reason, will consist in an indication of the evil which, in the individual case in question, would result from compliance with the rule: and with a proof, that by the aberration, either no evil in any shape has been produced, or none but what has been out weighed by concomitant good.
So in regard to exceptions. In many instances where a rule is laid down, in the terms of it, reservation is made of exceptions, and a string of exceptions is thereupon subjoined. To every such rule, the judge is at liberty to add an exception; but for every such exception, an appropriate and sufficient reason will be looked for at his hands.
Which side is most likely to be in the right?
Antecedently to the view presented by the inquiry into the particular fact of the individual case, the general presumption arising out of the several relative situations will be in favour of the pursuer’s, which is as much as to say, in disfavour of the defendant’s side.
The general reason is, that without some ground of assurance and belief in respect of the correctness of his judgment, it is not likely that a person would engage in, or would subject himself to the vexation and expense attached to, the character of pursuer, even in case of success,—together with the still more ample eventual quantity in case of ill success. Thus on the score of mere self-regarding interest, particularly when the force of the additional restriction, applicable by sympathetic affection is added—a moral power which, how weak soever in comparison with self-regarding affection, should not in this, any more than any other case, be left altogether out of the account.
At the same time, the greater the success with which the endeavour to attain the ends of justice, direct and collateral, is crowned, the less will be the difference produced in that respect between the two correlative situations. The less the vexation and expense attached to the situation, the less effective will be the restraints, the tendency of which is, to prevent a person from embarking in it.
In so far as the present proposed code is rightly directed to those exclusively legitimate ends, strong is the contrast it will be seen to form with the English system of procedure, not to speak of others less renowned for a supposed regard for the ends of justice.