Front Page Titles (by Subject) CHAPTER X.: OF THE DRAWING UP OF LAWS. - The Works of Jeremy Bentham, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER X.: OF THE DRAWING UP OF LAWS. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF THE DRAWING UP OF LAWS.
We proceed to consider the motions as compositions destined to become laws, and be presented to the examination of the assembly. In this respect it is desirable that they should possess that form which will allow them to be discussed in detail, and amended.
Regulation cannot prescribe perfection in style; but there are certain defects which it may prevent, certain conditions which it may impose, because every one may be subjected to them. The four following points may be prescribed:—
1. Brevity in the articles.
2. Simplicity in the propositions.
3. The pure expression of will.
4. The complete exhibition of all the clauses which the law ought to contain.
If these conditions are observed, whatever may be the extent of a motion, it will be of a manageable and ductile form; it will be easy to consider it in all its parts, and to amend it.
1. Brevity in the articles.—What is meant by an article is, so much matter as it is intended to put to the vote at one time. The longer the articles are, the more difficult is it to understand the whole together, and distinctly to see all the parts. But is it sufficient to recommend brevity? No: the force of a law ought to be given to this precept, by declaring that no project of a law, containing more than one hundred words for example, should be received, unless it were divided into numbered paragraphs, no one of which should exceed the above measure. This expedient, altogether singular as it may at first appear, is however the only one of absolute efficacy.* When it is necessary to present a long train of ideas, it is proper to assist the understanding by brevity of style. Each separate sentence forms a resting-place for the mind.
The paragraphs in a law ought to be numbered. There is no means more convenient and short for citation and reference.
Acts of parliament are exceedingly defective in this respect. The divisions into sections, and the numbers which designate them in the current editions, are not authentic. In the parchment original, the text of the law—the whole act, is of a single piece, without distinction of paragraphs, without punctuation, without figures. The word section is not even met with there, nor anything which corresponds with it. How, then, is indication made of the termination of one article and the commencement of another? Always by repeating the same formula, the same introductory clause,—and it is further enacted by the authority aforesaid, or some other phrase to the same effect.
This is a species of algebra, but of an opposite character. In algebra, one letter supplies the place of a line of words; in this, a line of words very imperfectly supplies the place of a single figure: I say very imperfectly, for these words serve for the purpose of division, but they are of no use for the purpose of reference. Is it wished to amend or repeal one section in an act? As it is impossible to point out this section by a numerical reference, one is obliged to do it by circumlocutions, which produce repetitions and obscurity. It is partly from this cause that acts of parliament are unintelligible compositions to all those who have not made them the object of long study.†
The first acts of parliament were passed at a period in which punctuation was not yet in use—in which the Arabian figures were not known. Besides, the statutes in their state of primitive simplicity and imperfection, were so short and so few in number, that the want of division could not produce any sensible inconvenience. These things have remained upon the same footing, partly from negligence and routine, but much more so from a secret interest on the part of the lawyers, who have found their advantage in this obscurity of the legal text, and who oppose to every reform the bugbear of innovation. Our forefathers lived for ages without the knowledge of commas, stops, and figures: why should they be adopted now? The argument amounts to this—Our forefathers lived upon acorns and mast; corn is therefore a useless luxury.
2. Simplicity in the propositions.—This is the principal point: the rule prescribed above respecting brevity, is established essentially on account of this.
Every article ought to be reduced to a pure and simple proposition; or at least, an article ought never to include two complete and independent propositions, of such nature that the same individual may approve one and reject the other.
Clearness would be carried to the highest point, if each article presented a complete sense, without reference to any other; but in a composition which has many parts, this species of perfection is impossible. The idea even of arrangement excludes that of independence.
A mathematical proposition is demonstrated by reference to propositions previously demonstrated; and in every series of reasoning, the links are multiplied in proportion as they are removed from the first step.
Among conjunctions, there are some which afford a mischievous facility for binding together an indefinite number of sentences into one. Of this kind are, in French, d’autant que, considerant que; in English, whereas; in Latin, quandoquidem. The introduction of these phrases is a principal fault in the style of the laws: by means of them, a mass of confusion is created; objects which it is most desirable to keep apart, being thus without reason, oftentimes coupled together.
But if the propositions ought not to be independent one of another, they need not be made complex.
A complex proposition in matters of law, is one which includes two propositions, one of which may be approved, and the other disapproved.
The following question, proposed to the Notables in 1788, may serve as an example: it referred to the composition of the States-General:—Ought certain qualifications to be required of the electors and the persons eligible? By the form of this phrase, two distinct propositions are presented, as if they formed only a single one.
Ought certain qualifications to be required of the electors?—
Ought certain qualifications to be required of the eligible?—
These are two questions, so distinct that each ought to be decided by different considerations, which may perhaps lead to a negative with regard to one, and an affirmative answer as to the other. But by uniting them in this manner, the mind is led into error: it is led to consider them as so connected together, that it is proper to give to them one common answer, either in the negative or affirmative.*
Suppose that a proposition, which is presented as a single one, really consists of two propositions—that you approve the one, that you disapprove the other: if it remain undivided, whatever may be the decision, one proposition will be passed in opposition to your will;—if it be divided, you are free to choose—you can vote against the one without voting against the other; and this, which may happen to one individual, may happen to the whole assembly.
By means of complex propositions, an assembly free from all exterior constraint, may cease to be free by a species of internal constraint: a good law may be used as an instrument to compel the passing of a bad one.
Conjunctions may arise, in which an assembly may be compelled to sacrifice its most important rights. A certain law may be proposed to it, not only good in itself, but even necessary to its own preservation, or the preservation of the state; and to this law may be joined another, by which it may be deprived of some of its essential prerogatives. What can it do? It is obliged to submit. It is in the situation of the patriarch, who, pressed with hunger, sold his birthright for a mess of pottage.
This Machiavelism, it may be said, is a gratuitous supposition—a pure fiction. But it is not: history furnishes numerous examples of it. In the ancient republics, the initiative of the laws belonged exclusively to a senate: the people had no other alternative than that of approving or rejecting the whole together; the liberty of choice was not left to them;—their chiefs made them purchase a desired law, a necessary law, at the price of some other law unfavourable to their interests.
3. Another principle of composition: Employ only a pure and simple declaration of will, without intermixing therewith, reasons, opinions, or fancies, distinct from that same will.
To assign the reasons for a law is a separate operation, which ought never to be confounded with the law itself. If it be desirable to instruct the people, it may be done in a preamble, or in a commentary which accompanies the law; but an imperative law ought only to contain the simple expression of the will of the legislator. Intended to serve as a rule of conduct, it cannot be too simple, too clear, too free from dispute. If reasons and opinions are intermingled with it, all those are ranged against the law, who do not apapprove the reasons or opinions which it expresses: instead of becoming stronger, it becomes more feeble; an instrument of attack is prepared for its adversaries, and it is delivered up to their disputes.
A single epithet is sometimes sufficient to alter the simple expression of the will. The same effect may result from the use of a term which implies blame or approbation, when it would have been proper to employ a neutral term—heretic, for example, instead of dissenter—innovation instead of change—usury instead of illegal interest.
These eulogistic or dyslogistic terms produce all the inconveniences which we have developed above: they include complex propositions; they not merely state a fact, upon which all the world may be agreed, but also an opinion, which may be received by one party, and rejected by another.
Let us give an example:—“It is decreed that no heretic shall be allowed to sit in this assembly.”
First proposition: “It is decreed that no man who is not of the established religion of the state, shall be admitted to sit in this assembly.”
Second preposition: “This assembly declares, that all those who profess any other religious opinions, merit the odious denomination of heretics.”
Here are two propositions altogether distinct and foreign to one another. The one declares a resolution relative to a fact;—the other declares the state of the opinions and affections of those who vote. The same individual might adopt the first, and reject the second.
Thus to unite into one proposition, two different things, is to commit a species of falsification, and to destroy the freedom of voting, from which no benefit can result.
Hence, from inserting in the body of a law, opinions or reasons foreign to the law, the measure may be exposed to rejection, although conformable to the general wish of the assembly.
This may happen, because, although they may be agreed upon the measure, the voters may differ much with regard to the reasons which lead them to adopt it; and if the reasons which are assigned, are opposed to the opinions of the majority, they will experience a very natural and just repugnance to profess opinions which they do not hold. To require them to pass such a law is, in fact, to exact a false declaration, and make them tell a lie in the law.
Let us imagine the following proposition:—“Considering that there is no God, all penal laws relative to the divinity are abolished.”
Even should all the members of the assembly be unanimous in favour of the abolition of these penal laws, there might not perhaps be found a single one who would not be shocked by this declaration of atheism, and who would not rather choose to reject the measure altogether, than to obtain it at this price.
It would seem that in a free assembly each proposer of a motion ought to observe this rule, if it were only as a measure of prudence, since an accessary of this nature can only tend to expose the principal motion to be rejected.
But the spirit of party does not reason thus. The more clearly a motion includes any clause offensive to its antagonists, the more clearly it proves the strength of those who cause it to pass: their triumph increases with the mortification of their antagonists.
We will give an example of this petty war of parties; we shall seek it in a remote period, although it would be easy to find specimens nearer to our own times; we shall see a motion produced in this spirit of hostility, applied in an opposite direction by the insertion of motives and opinions which presented it under an aspect altogether new.*
“A motion was made, and the question being proposed, that it be an instruction to the said committee that (in order to restore in some measure the trade of this kingdom) they do consider of the proper means to take off the duties upon soap and candles (which are so very burthensome to the manufacturers, as well as the poor in general.”)
The intention of the two phrases included in the parentheses is clear. The opposition wished to throw odium upon these two taxes, without considering that similar means might be applied to all the taxes without distinction.
The two clauses were first excluded by two very proper amendments. But this triumph was not enough: the ministerial party, wishing to throw out the motion by appearing to amend it, caused the following clause to be inserted:—
Taxes “granted and made a security for several large sums of money advanced for the service of the public, upon parliamentary credit, the greater part of the surplus whereof belong to the sinking fund, appropriated to the discharging the national debt.”
It need scarcely be added, that the motion thus altered, no longer agreeable to the one party or to the other, was thrown out by common consent.
4. A bill ought to contain a complete exhibition of all the clauses that the law ought to contain.
This has reference to certain terms which are liable to be exchanged for terms of the same kind: for example, one quantity for another quantity, one number for another number, one portion of time for another portion of time, &c. The imprisonment shall be [for a year.] The fine shall be [one tenth part of the parties’ income.] The reward shall be [twenty pounds sterling.]†
In the projects of bills which were presented to the British parliament, the custom was to leave these points in blank between two crotchets thus: The imprisonment shall be [NA;] the fine shall be [NA.]
The points thus left in blank were those respecting which there is great latitude of choice. The author of the bill has no determinate reason for the choice of one term rather than another. The first debate turns rather upon the principle of the measure, without regard to these points. They are determined in committee upon the motion of some member. The journals of the House of Commons present many examples of cases in which it has been unwilling to receive bills, because the author, instead of leaving these blanks, had filled them up.
It was said, that liberty was thus better secured; so long as no term is fixed, there is greater latitude of choice.
I cannot perceive the force of this reason. Liberty exists upon this point as well as upon every other part of the bill. It is lawful to propose the smallest number in place of the greatest, one place instead of any other place, one quantity instead of any other quantity, and so of the rest.
On the other hand, the discussion cannot but be improved, when it has a determinate foundation upon all points. It is necessary at last that the blank should be filled up—that some one should propose a term; and who is better able to do this, than the author of the motion?—from whom can we expect greater knowledge of the subject?* If no one be obliged to think about the matter, is it not to be feared that these blanks will be filled up with indiscreet precipitation, as details of trifling importance.
This custom of leaving blanks most probably arose from the prudence of the framers of the laws. “If,” they may have said, “the term be left blank, the ideas of nobody will be hurt; but if a specific term be offered, which of course will not please everybody, the loss of a number of votes is risked upon this point alone.” This train of reasoning is not unfounded; since nothing is more common in political assemblies, than that want of candour which fixes upon the first objectionable matter of detail, which might easily be remedied, and converts it into a radical objection to the measure in which it appears.†
[* ]The longest paragraphs in the Code Napoleon do not exceed one hundred words, and there are very few of that length.
[† ]See General View of a Complete Code of Legislation, Chap. XXXIII. Of the style of the Laws.
[* ]This sophism corresponds with that which in the logic of Aristotle is designated by the words—“Secundum plures interrogationes, ut unam—are honey and gall sweet?” This is a jeu d’esprit for perplexing children, but it is often employed in legislation for deceiving men.
[* ]Journals of the House of Commons, Vol. XXI. p. 235, 24th February 1728.
[† ]These exchangeable terms may be called congeneric competitors.
[* ]These blanks are now always filled up in a type of a character different from that of the other parts of the bill.—Ed.
[† ]For the other rules relative to the drawing up of laws, see also General View of a Code of Laws, Chap, XXXIII. Of the style of the Laws.