Front Page Titles (by Subject) LEADING PRINCIPLES OF A CONSTITUTIONAL CODE, FOR ANY STATE. - The Works of Jeremy Bentham, vol. 2
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LEADING PRINCIPLES OF A CONSTITUTIONAL CODE, FOR ANY STATE. - 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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LEADING PRINCIPLES OF A CONSTITUTIONAL CODE, FOR ANY STATE.
(first published in the pamphleteer, no. 44, 1823.)
CONSTITUTIONAL CODE, &c. &c.
ENDS AIMED AT.
1.This Constitution has for its general end in view, the greatest happiness of the greatest number;* namely, of the members of this political state: in other words, the promoting or advancement of their interests. By the universal interest, understand the aggregate of those same interests. This is the all-comprehensive end, to the accomplishment of which, the several arrangements contained in the ensuing code are all of them directed.
2. Government cannot be exercised without coercion; nor coercion, without producing unhappiness. Of the happiness produced by government, the net amount will be—what remains of the happiness, deduction made of the unhappiness.
3. Of the unhappiness thus produced, is composed, in the account of happiness, the expense of government. Of the happiness produced by government, the gross amount being given, the net amount will be inversely as this expense.
4. Of the members of this, as of other states in general, the great majority will naturally, at each given point of time, be composed of the several persons who, having been born in some part or other of the territory belonging to the state, have all along remained inhabitants of it. But, to these, for the purpose of benefit, of burden, or of both, will be to be added sundry other classes of persons, of whom designation is made in an appropriate part of the ensuing code.
5. Immediately specific, and jointly all-comprehensive, ends of this constitution are—subsistence, abundance, security, and equality; each maximized, in so far as is compatible with the maximization of the rest.
6. I. As to Subsistence.† This speaks for itself.
7. II. As to Abundance. This is an instrument of felicity on two accounts: on its own account, and as an instrument of security for subsistence. In this latter character, its usefulness may be still greater to those who possess it not, than to those who possess it.
8. III. As to Security.‡ This is for good, or against evil. Security for good is—either for the matter of subsistence, or for the matter of abundance.
9. Security against evil, is either against evil from calamity,* or against evil from hostility.
10. By calamity, understand human suffering, in the case in which, by its magnitude and indeterminateness in respect to extent, it stands distinguished from, and above, the quantity ordinarily produced by one and the same cause.
11. By evil from calamity, understand evil from purely physical agency: by evil from hostility, evil from human agency. But, by purely physical agency, no evil is producible, which may not, from human agency, receive its commencement or its increase.
12. Of calamity, the principal sources are—inundation, conflagration, collapsion, explosion, pestilence, and famine.
13. The evil-doers, against whose hostility, that is to say, against whose evil agency, security is requisite, are either external or internal. By the external, understand those adversaries who are commonly called enemies.
14. Internal adversaries, against whose evil agency security is requisite, are the unofficial and the official.
15. By the unofficial adversaries, understand those evil-doers who are ordinarily termed offenders, criminals, malefactors. These are resistible, everywhere resisted, and mostly with success.
16. The official are those evil-doers whose means of evil-doing are derived from the share they respectively possess in the aggregate of the powers of government. Among these, those of the highest grade, and in so far as supported by those of the highest, those of every inferior grade, are everywhere irresistible.
17. To provide, in favour of the rest of the community, security against evil in all its shapes, at the hands of the above-mentioned internal, and, so long as they continue in such their situation, irresistible adversaries,—is the appropriate business of the constitutional branch of law, and accordingly of this code.
18. As in difficulty so in importance, this part of the business of law far surpasses every other. Of the danger to which an assemblage of individuals stand exposed, the magnitude will be in the joint ratio of the intensity of the evil in question on the part of each, the duration of it, the propinquity of it, the probability of it; and, on the part of all, the extent of it; the extent, as measured by the number of those who stand exposed to it. Measuring it in every one of these dimensions,—taking into account every one of these elements of value in both cases,—minute will be seen to be the danger to which the other members of the community stand exposed at the hands of those their resistible, in comparison with that to which they stand exposed at the hands of these their irresistible, adversaries. In the first case, it has place on no other than an individual scale; in the other, on a national scale.
19. Inferior even is the danger to which they stand exposed at the hands of foreign and declared enemies, in comparison with that to which they stand exposed at the hands of their everywhere professed protectors. Foreign enemies, in the event of their obtaining the object of their hostility, withdraw most commonly from whatever territory they invade, leaving the inhabitants thenceforward unmolested. At the worst, they keep possession of it: and in that case, from the external and resistible, become the internal and irresistible adversaries, such as those above mentioned.
20. On the texture of the constitutional branch of law, will depend that of every other. For on this branch of law depends, in all its branches, the relative and appropriate aptitude of those functionaries, on whose will depends, at all times, the texture of every other branch of law. If, in the framing of this branch of law, the greatest happiness of the greatest number is taken for the end in view, and that object pursued with corresponding success, so will it be in the framing of those other branches: if not, not.
21. IV. Lastly, as to Equality. In the instances of subsistence, abundance, and security, the title of the object to the appellation of an instrument of felicity, is stamped, as it were, upon the face of it—designated by the very name. Not so in the case of equality.
22. In the idea of equality, that of distribution is implied. Distribution is either of benefits or of burdens: under one or other of these names, may every possible subject-matter of the operation be comprised. Benefits are distributed by collation made of the instruments of felicity—burdens by the ablation of them, or by the imposition of positive hardship.
23. I. In proportion as equality is departed from, inequality has place: and in proportion as inequality has place, evil has place. First, as to inequality,—in the case where it is in the collation made of those same instruments that it has place. In this case, it is pregnant with two distinguishable evils: the one may be styled the domestic or civil; the other, the national or constitutional.
24. The domestic evil is that which has place in so far as the subject-matter of the distribution is the matter of wealth—matter of subsistence and abundance. It has place in this way:—The more remote from equality are the shares possessed by the individuals in question, in the mass of the instruments of felicity,—the less is the sum of the felicity produced by the sum of those same shares.
25. The national or constitutional evil is that which has place, in so far as the subject-matter of the distribution is power. It has place in this way:—The greater the quantity of power possessed, the greater the facility and the incitement to the abuse of it. In a direct way, this position applies only to power. But, between power and wealth such is the connexion, that each is an instrument for the acquisition of the other: in this way, therefore, the position applies to wealth likewise.
26. Of inequality as applied to both subjects,—and of the evil with which, in both the above shapes, it is pregnant,—the case of monarchy may serve for exemplification: for exemplification, and thereby for proof.
27. Of the maximum of inequality, every monarchy affords an example. Of the matter of wealth, to the monarch is allotted a mass as great as suffices for the subsistence of from 10,000 to 100,000 of the individuals from whom, amongst others, after being produced by their labour, it is extorted. Yet does it still remain matter of doubt, whether the quantity of felicity thus produced in the breast of that one, be greater than that which has place in the breast of one of those same labourers taken on an average,—has place, or at least would have had, but for the extortion thus committed.
28. What is certain is—that the quantity of felicity habitually experienced by a gloomy, or ill-tempered, or gouty, or otherwise habitually diseased monarch, is not so great as that habitually experienced by an habitually cheerful, and good-tempered, and healthy, labourer.
29. True it is, that if, per contra, by a monarch maintained at an expense such as the above, good is, by means of that same expense, produced in greater quantity than by a commonwealth chief whose maintenance will not be a hundredth part of the monarch’s;—true it is, that on this supposition, the excess of expense, vast as it is, may be not ill-bestowed. But, by whomsoever the existence of any such excess of good is asserted, upon him does it rest to prove or probabilize it.
30. If, in the case of those whose share in the instruments of felicity is greatest, the excess of felicity itself is, on an average, so small,—and, in some individuals out of the small number belonging to this class, the non-existence of any such excess certain—still less and less will be the probable amount of the excess of felicity, in the case of those whose share in the instruments of felicity is less and less. And thus it is, that as, in a pure monarchy, the distribution made of the external instruments of felicity is in the highest degree—so, in a pure aristocracy, is it in the next highest degree—unfavourable to the maximization of felicity itself.
31. Hence, throughout the whole population of a state, the less the inequality is between individual and individual, in respect of the share possessed by them in the aggregate mass or stock, of the instruments of felicity,—the greater is the aggregate mass of felicity itself: provided always, that by nothing that is done towards the removal of the inequality, any shock be given to security,—security, namely, in respect of the several subjects of possession above mentioned.
More shortly thus:—
32. The less unequal the distribution of the external instruments of felicity is—the greater, so as security be unshaken, will be the sum of felicity itself.
33. On the occasion of the distribution made of a mass of burdens, delinquency either is, or is not, in question: is not—as where it is for defraying the expense of government that the burdens are imposed.
34. A burden imposed on the occasion of delinquency, is imposed either for the purpose of its operating in the way of punishment, or for the purpose of conferring a correspondent benefit on some other person or persons, in compensation for damage sustained—sustained, namely, in consequence of the delinquency.
35. Correspondent to the evil produced by inequality in the case of collation, is the evil produced by it in the case of ablation,—ablation made of a mass of the external instruments of felicity in any shape, and in particular in the shape of wealth. Other circumstances the same,—the smaller the mass a man possesses of the instruments of felicity in this shape, the greater is the loss of felicity produced in his instance by the ablation of any given mass of them. By the ablation of fifty pounds, more felicity will be abstracted from the breast of a man who has but one hundred pounds for his whole property, than from the breast of one who has two hundred pounds; much more would it, if, instead of the hundred pounds, he had but that same fifty pounds.
36. II. So much for felicity, considered as the product of government. Now as to infelicity, considered as the expense by means of which that same felicity is produced. Maximization was the object in regard to the desired product: minimization is the object in regard to the expense. Now as to the elements of that same expense.
37. The expense is evil—evil produced either for the exclusion of greater evil, or for the production of more than equivalent good: it may be distinguished into punishment and hardship.
38. Punishment is evil, produced under the notion of its being a direct instrument, or efficient cause, of some good thereby desired and intended to be produced.
39. Hardship is evil, produced as a collateral result of some operation employed for the exclusion of evil, or for the production of good: a collateral result, not an efficient cause.
40. In respect of its shape, expense employed by government, as above, is either non-pecuniary or pecuniary.
41. The non-pecuniary expense of government is hardship at large: the principal modification of it is that produced by forced personal service: and, of forced personal service, that produced by forced military service.
42. As to the matter of expense, in no shape can it ever be procurable by government, in anything like sufficient quantity, without hardship, or punishment, or the fear of it, or both.
43. Whatever is done by government is done—partly by means of the matter of punishment, or the fear of it, partly by means of the matter of reward, or the hope of it.
44. The matter of reward is a portion of the matter of good, considered as employed in the production of felicity in the breast of some individual, in consideration of some act done or supposed to be done by him, or about to be done by him.
45. The matter of reward is not, in any sufficient quantity, procurable by government without expense—expense, as above, in the shape of hardship and punishment.
46. Accordingly, on no occasion, and for no purpose, is good producible by government, but through evil, as above.
47. Hence, in so far as may be without detriment to the net amount of good produced, the maximization of national felicity requires that factitious reward (reward applied by the hand of government, at the expense of the community) be in every shape minimized, as well as the matter of punishment.
PRINCIPAL MEANS EMPLOYED FOR THE ATTAINMENT OF THE ABOVE ENDS.
1. These means are comprisable, all of them, in one expression: maximization of appropriate official aptitude on the part of rulers.
2. Of this aptitude, three branches are distinguishable: 1. Appropriate moral aptitude; 2. Appropriate intellectual aptitude; 3. Appropriate active aptitude.
3. Of appropriate intellectual aptitude there are two distinguishable branches: 1. Appropriate knowledge; 2. Appropriate judgment.
4. By appropriate moral aptitude, understand—disposition to contribute, on all occasions and in all ways, to the greatest happiness of the greatest number; in other words, to the promoting or advancement of the universal interest.
5. If appropriate moral aptitude be to a certain degree deficient,—the consequence is, that by abundance of appropriate aptitude in those other shapes, the aggregate of appropriate aptitude will naturally, instead of being increased, be diminished. If hostile to the interests of the greatest number,—the more able the functionary, the more mischievous.
6. To the different branches of appropriate official aptitude, apply correspondently different means. Expressed in the shortest manner, indication may be given of them by the following rules.
7. I. Means applying to appropriate moral aptitude:—
Rule 1. In the hands of those of whose happiness the universal happiness is composed, keep at all times the choice of those agents, by whose operations that happiness is to be promoted.*
8. Rule 2. In the hands of each such agent, minimize the power of doing evil.
9. Rule 3. Leave, at the same time, as little diminished as may be, the power of doing good.
10. Rule 4. Minimize the quantity of public money at his disposal.
11. Rule 5. Minimize the time during which it remains at his disposal.
12. Rule 6. Minimize the number of hands through which it passes in its way to the hand by which it is received in payment.
13. Rule 7. Extra-reward give none, without proportionable extra-service—extra-service proved, and that by evidence not less conclusive than that which is required to be given of delinquency, with a view to punishment.
14. Rule 8. Maximize each man’s responsibility with respect to the power and the money with which he is entrusted.
15. Rule 9. Means by which such responsibility is maximized, are—1. Constant dislocability; 2. Eventual punibility.†
16. Rule 10. By the several means above mentioned,—so order matters, that, in the instance of each such agent, the course prescribed by his particular interest shall on each occasion coincide, as completely as may be, with that prescribed by his duty: which is as much as to say, with that prescribed by his share in the universal interest.
II. Means applying to appropriate intellectual and active aptitude:—
17. Rule 1. For appropriate intellectual and active aptitude,—establish, throughout the whole field of official duty, appropriate preliminary tests and securities. For these, see the code itself.
18. Rule 2. Maximize, throughout, the efficiency of these same tests and securities.
19. Rule 3. Minimize, in the instance of each office, the pecuniary inducements for the acceptance of it.
20. Follow the observations on which Rule 3 is grounded.
I. The less the money required by a man for subjecting himself to the obligations attached to the office, the stronger the proof afforded by him of his relish for the occupations.
21. Still stronger, and in a proportionable degree, will be the proof,—if, instead of receiving, he is content to give.
22. Every penny,—added to whatsoever remuneration is, as above, sufficient,—adds strength to predatory appetites, and to the means of gratifying them.
23. A throne,—seat of the most extravagantly fed,—is so, everywhere, of the most invariably insatiable, appetites.
24. As to the means, applying, as above, to appropriate moral aptitude,—there is not one of them, of which an exemplification may not be seen, in the constitution of the Anglo-American United States.
25. Under that constitution, in so far as depends on government,—has uncontrovertibly been, and continues to be,—enjoyed, a greater quantity of happiness, in proportion to population, than in any other political community, in these or any other times.
26. By that one example is excluded, and for ever, all ground for any such apprehension, real or pretended, as that of inaptitude, on the part of the people at large, as to the making choice of their own agents, for conducting the business of government.
27. Nowhere else has such universal satisfaction been manifested: satisfaction with the form of the government—satisfaction with the mode in which, satisfaction with the hands by which, the business of it has been carried on. No other political community is there, or has there ever been,—in which, by so large a proportion of the population, so large a part has been constantly taken in the conduct and examination of the affairs of government;—no other, in which the part so taken has been so perfectly unproductive of disorder and suffering in every shape.
28. No other constitution is there, or has there been, under which, in anything like so small a degree (slave-purchasing and pertinaciously slave-holding States always excepted,) the interest and happiness of the many have been sacrificed to those of the ruling and influential few;—no other, under which what yet remains of that sinister sacrifice, will, with so little difficulty, and sooner or later with such perfect certainty, be abolished.
29. Thus much as to the all-comprehensive end of government, in so far as the government is good. As to the several abovementioned specific ends,—the means for compassing them would not here have been in their place. The description of them will be found to be in great measure different, according to the differences between the respective ends: they will form the subject-matter—in the first place, of the constitutional—in the next place, of the penal and non-penal, codes.
[* ]If the nature of the case admitted the possibility of any such result, the endeavour of this constitution would be—on each occasion, to maximize the felicity of every one of the individuals, of whose interests the universal interest is composed; on which supposition, the greatest happiness of all, not of the greatest number only, would be the end aimed at.
[† ]By subsistence—or say matter of subsistence—may be understood everything, the non-possession of which would be productive of positive physical suffering:—that, and nothing more. In so far as distinct from, and not comprehended in, the corresponding branch of security, namely, security for subsistence—subsistence itself must be understood as being, in the field of time, limited to a single instant—any instant taken at pleasure.
[‡ ]In the words good and evil, apt additaments being employed, may be seen two appellatives, which,—opposite as are the sensations and other objects which they are employed to designate,—are, as to no small part of their extent, interconvertible: by ablation of good, evil is produced; by ablation of evil, good. But, on some occasions, the one is the more convenient appellative; on others, the other; on others again, both. Infinite, and in no small degree perhaps irremoveable, are the ambiguity and obscurity produced at every turn by the imperfections of language: language, that almost exclusively applicable, though so deplorably inadequate, instrument of human converse.
[* ]The giving execution and effect to precautionary arrangements, taken with a view to calamity, belongs to one branch of that part of the business of the executive department, which in the ensuing code is styled the preventive service: the giving the like support to such precautionary arrangements as are taken with a view to hostility at the hands of the unofficial and resistible class of adversaries, belongs to the other branch of that same service.
[* ]To this arrangement, no objection, wearing the face of a rational one, could ever be made, other than that of impracticability—an objection formed by the assertion, that, consistently with internal peace and security, no such arrangement can have place. But, in the case of the Anglo-American United States, the groundlessness of this objection has been completely demonstrated by experience—demonstrated by the very first experiment ever made; while, to the purpose of all such persons as had a new constitution to make, this same arangement, even on the supposition that the experiments made of it had, in a considerable number, all of them failed, might still have remained the only eligible one: for, as will be seen below, the above-mentioned constitution is one, which, bating irresistible force from without, affords a reasonable promise of everlasting endurance; whereas every other form of government contains, in the very essence of it, the seeds of its own dissolution—a dissolution which, sooner or later, cannot but have place.
[† ]Namely, immediately or unimmediately, at the hands of those by whom the responsible agents in question were chosen; as is the case in the Anglo-American United States. Say—dislocability, immediately: punibility, unimmediately; namely, by the hands of other agents.