Front Page Titles (by Subject) CHAPTER VI.: SHAM DISTINCTIONS—( ad judicium. ) - The Works of Jeremy Bentham, vol. 2
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CHAPTER VI.: SHAM DISTINCTIONS—( ad judicium. ) - 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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SHAM DISTINCTIONS—(ad judicium.)
Exposition.—Of the device here in view, the nature may be explained by the following direction for the use of it:—
When any existing state of things has too much evil in it to be defensible in toto, or proposals for amendment are too plainly necessary to be rejectible in toto, the evil and the good being nominally distinguished from each other by two corresponding and opposite terms, eulogistic and dyslogistic, but in such sort that, to the nominal line of distinction thus drawn, there corresponds not any determinate real difference,—declare your approbation of the good by its eulogistic name, and thus reserve to yourself the advantage of opposing it without reproach by its dyslogistic name, and so vice versa declare your disapprobation of the evil, &c.
Exposure.—Example 1: Liberty and Licentiousness of the Press.—Take for example the case of the Press.
The press (including under this denomination every instrument employed or employable for the purpose of giving diffusion to the matter of human discourse by visible signs)—the press has two distinguishable uses,—viz. moral and political: moral, consisting in whatsoever check it may be capable of opposing to misconduct in private life—political, in whatsoever check it may be capable of opposing to misconduct in public life, that is, on the part of public men—men actually employed, or aspiring to be employed, in any situation in the public service: opposing viz. by pointing on the persons to whom such misconduct is respectively imputable, a portion more or less considerable of disapprobation and consequent ill-will on the part of the public at large—a portion more or less considerable according to the nature of the case.
If to such misconduct there be no such check at all opposed, as that which it is the nature of the press to apply, the consequence is, that of such misconduct, whatsoever is not included in the prohibitions and eventual punishment provided by law, will range uncontrouled: in which case, so far as concerns the political effect of such exemption from controul, the result is power uncontroulable, arbitrary despotism, in the hands whatsoever they are, in which the powers and functions of government happen to be reposed: and, moreover, in the instance of such misconduct as is included in that system of prohibition and eventual punishment, the controul will be without effect, in so far as by delay, vexation, and expense, natural or factitious, the individual who would be led to call for the application, is prevented from making such demand.
At the same time, on the other hand, the use of the press cannot be altogether free, but that on pretence of giving indication of misconduct that has actually taken place, supposed misconduct that never did actually take place, will to this or that individual be imputed.
In so far as the imputation thus conveyed happens to be false, the effects of the liberty in question will, so far as concerns any individual person thus unjustly accused, be of the evil cast, and by whomsoever they are understood so to be, the dyslogistic appellation licentiousness will naturally be applied.
Here then comes the dilemma—the two evils between which a choice must absolutely be made. Leave to the press its perfect liberty; along with the just imputations, which alone are the useful ones, will come, and in an unlimited proportion, unjust imputations, from which, in so far as they are unjust, evil is liable to arise.
But to him whose wish it really is that good morals and good government should prevail, the choice need not be so difficult as at first sight it may seem to be.
Let all just imputations be buried in utter silence,—what you are sure of is, that misconduct in every part of the field of action, moral and political, private and public, will range without controul—free from all that sort of controul which can be applied by the press, and not by anything else.
On the other hand, let all unjust imputations find, through this channel, an unobstructed course,—still, of the evil—the personal suffering threatened by such infliction—there is neither certainty, nor in general any near approach to it. Open to accusation, that same channel is not less open to defence.* He, therefore, who has truth on his side, will have on his side all that advantage which it is in the nature of truth to give.
That advantage,—is it an inconsiderable one? On the contrary supposition is founded, whatsoever is done in the reception and collection of judicial evidence—whatsoever is intended by the exercise of judicial authority, by the administration of whatsoever goes by the name of justice.
Meantime, if any arrangements there be, by which the door may be shut against unjust imputations, without incurring to an equal amount that sort of evil which is liable to result from the exclusion of just ones, so much the better.
But unless and until such arrangements shall have been devised and carried into effect, the tendency and effect of all restrictions having for their object the abridging of the liberty of the press, cannot but be evil on the whole.
To shut the door against such imputations as are either unjust or useless, leaving it at the same time open to such as are at the same time just and useful, would require a precise, a determinate, a correct and complete definition of the appellative, whatsoever it be, by which the abuse—the improper use—the supposed preponderantly pernicious use—of the press, is endeavoured to be brought to view.
To establish this definition, belongs to those, and to those alone, in whose hands the supreme power of the state is vested.
Of this appellative, no such definition has ever yet been given—of this appellative no such definition can reasonably be expected at the hands of any person so situated, since, by the establishing of such definition, their power would be curtailed, their interest prejudiced.
While this necessary definition remains unestablished, there remains with them the faculty of giving continuance and increase to the several points of abuse and misgovernment by which their interest in its several shapes is advanced.
Till that definition is given, the licentiousness of the press is every disclosure by which any abuse, from the practice of which they draw any advantage, is brought to light, and exposed to shame:—whatsoever disclosure it is, or is supposed to be, their interest to prevent.
The liberty of the press is such disclosure, and such only, from which no such inconvenience is apprehended.
No such definition can be given but at their expense:—at the expense of their arbitrary power—of their power of misconduct in the exercise of the functions of government,—at the expense of their power of misgovernment—of their power of sacrificing the public interest to their own private interest.
Should that line have ever been drawn, then it is that licentiousness may be opposed without opposing liberty: while that line remains undrawn, opposing licentiousness is opposing liberty.
Thus much being understood, in what consists the device here in question? It consists in employing the sham approbation given to the species of liberty here in question under the name of liberty, as a mask or cloak to the real opposition given to it under the name of licentiousness.
It is in the licentiousness of the press that the judge pretends to see the downfall of that government, the corruption of which he is upholding by inflicting on all within his reach those punishments which by his predecessors have been provided for the suppression of all disclosures by means of which the abuses which he profits by might be checked.
Example 2:—Reform, temperate and intemperate.—For the designation of the species or degree of political reform, which, by him who speaks of it, is meant to be represented as excessive or pernicious, the language affords no such single-worded appellative as in the case of liberty:—the liberty of the press. For making the nominal and pretended real distinction, and marking out on the object of avowed reprobation the pernicious or excessive species or degree, recourse must therefore be had to epithets or adjuncts: such, for instance, as violent, intemperate, outrageous, theoretical, speculative, and so forth.
If, with the benefit of the subterfuge afforded by any of these dyslogistic epithets, a man indulges himself in the practice of reprobating reform in terms thus vague and comprehensive, and without designating by any more particular and determinate word, the species or degree of reform to which he means to confine his reprobation, or the specific objections he may have to urge, you may in general venture to conclude it is not to any determinate species or degree that his real disapprobation and intended opposition confines itself, but that it extends itself to every species or degree of reform which, according to his expectation, would be efficient; that is, by which any of the existing abuses would find a corrective.
For, between all abuses whatsoever, there exists that connexion—between all persons who see each of them any one abuse in which an advantage results to himself, there exists in point of interest that close and sufficiently understood connexion, of which intimation has been given already. To no one abuse can correction be administered, without endangering the existence of every other.
If, then, with this inward determination not to suffer, so far as depends upon himself, the adoption of any reform which he is able to prevent, it should seem to him necessary or advisable to put on for a cover, the profession or appearance of a desire to contribute to such reform,—in pursuance of the device or fallacy here in question, he will represent that which goes by the name of reform as distinguishable into two species; one of them a fit subject for approbation, the other for disapprobation. That which he thus professes to have marked for approbation, he will accordingly, for the expression of such approbation, characterize by some adjunct of the eulogistic cast—such as moderate, for example, or temperate, or practical, or practicable.
To the other of these nominally distinct species, he will at the same time attach some adjunct of the dyslogistic cast—such as violent, intemperate, extravagant, outrageous, theoretical, speculative, and so forth.
Thus, then, in profession and to appearance, there are, in his conception of the matter, two distinct and opposite species of reform—to one of which his approbation, to the other his disapprobation, is attached. But the species to which his approbation is attached is an empty species,—a species in which no individual is, or is intended to be, contained.
The species to which his disapprobation is attached, is, on the contrary, a crowded species, a receptacle in which the whole contents of the genus—of the genus reform—are intended to be included.
[* ]If it by accident be not so, this constitutes a different and distinct evil, for which is required a different and distinct remedy.