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PREAMBLE. - 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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“The Representatives of the French people, constituted in National Assembly, considering that ignorance, forgetfulness, or contempt of the Rights of Man, are the only causes of public calamities, and of the corruption of governments, have resolved to set forth in a solemn declaration, the natural, unalienable, and sacred rights of man, in order that this declaration, constantly presented to all the members of the body social, may recall to mind, without ceasing, their rights and their duties; to the end, that the acts of the legislative power, and those of the executive power, being capable at every instant of comparison with the end of every political institution, they may be more respected, and also that the demands of the citizens hereafter, founded upon simple and incontestable principles, may always tend to the maintenance of the constitution and to the happiness of all.”
“In consequence, the National Assembly acknowledges and declares, in the presence and under the auspices of the Supreme Being, the following Rights of the Man and the Citizen.”—
From this preamble we may collect the following positions:—
1. That the declaration in question ought to include a declaration of all the powers which it is designed should thereafter subsist in the State; the limits of each power precisely laid down, and every one completely distinguished from the other.
2. That the articles by which this is to be done, ought not to be loose and scattered, but closely connected into a whole, and the connexion all along made visible.
3. That the declaration of the rights of man, in a state preceding that of political society, ought to form a part of the composition in question, and constitute the first part of it.
4. That in point of fact, a clear idea of all these stands already imprinted in the minds of every man.
5. That, therefore, the object of such a draught is not, in any part of such a draught, to teach the people anything new.
6. But that the object of such a declaration is to declare the accession of the Assembly, as such, to the principles as understood and embraced, as well by themselves in their individual capacity, as by all other individuals in the State.
7. That the use of this solemn adoption and recognition is, that the principles recognised may serve as a standard by which the propriety of the several particular laws that are afterwards to be enacted in consequence, may be tried.
8. That by the conformity of these laws to this standard, the fidelity of the legislators to their trust is also to be tried.
9. That accordingly, if any law should hereafter be enacted, between which, and any of those fundamental articles, any want of conformity in any point can be pointed out, such want of conformity will be a conclusive proof of two things: 1. Of the impropriety of such law; 2. Of error or criminality on the part of the authors and adopters of that law.
It concerns me to see so respectable an Assembly hold out expectations, which, according to my conception, cannot in the nature of things be fulfilled.
An enterprise of this sort, instead of preceding the formation of a complete body of laws, supposes such a work to be already existing in every particular except that of its obligatory force.
No laws are ever to receive the sanction of the Assembly that shall be contrary in any point to these principles. What does this suppose? It supposes the several articles of detail that require to be enacted, to have been drawn up, to have been passed in review, to have been confronted with these fundamental articles, and to have been found in no respect repugnant to them. In a word, to be sufficiently assured that the several laws of detail will bear this trying comparison, one thing is necessary: the comparison must have been made.
To know the several laws which the exigencies of mankind call for, a view of all these several exigencies must be obtained. But to obtain this view, there is but one possible means, which is, to take a view of the laws that have already been framed, and of the exigencies which have given birth to them.
To frame a composition which shall in any tolerable degree answer this requisition, two endowments, it is evident, are absolutely necessary:—an acquaintance with the law as it is, and the perspicuity and genius of the metaphysician: and these endowments must unite in the same person.
I can conceive but four purposes which a discourse, of the kind proposed under the name of a Declaration of Rights, can be intended to answer:—the setting bounds to the authority of the crown;—the setting bounds to the authority of the supreme legislative power, that of the National Assembly;—the serving as a general guide or set of instructions to the National Assembly itself, in the task of executing their function in detail, by the establishment of particular laws;—and the affording a satisfaction to the people.
These four purposes seem, if I apprehend right, to be all of them avowed by the same or different advocates for this measure.
Of the fourth and last of these purposes I shall say nothing: it is a question merely local—dependent upon the humour of the spot and of the day, of which no one at a distance can be a judge. Of the fitness of the end, there can be but one opinion: the only question is about the fitness of the means.
In the three other points of view, the expediency of the measure is more than I can perceive.
The description of the persons, of whose rights it is to contain the declaration, is remarkable. Who are they? The French nation? No; not they only, but all citizens, and all men. By citizens, it seems we are to understand men engaged in political society: by men, persons not yet engaged in political society—persons as yet in a state of nature.
The word men, as opposed to citizens, I had rather not have seen. In this sense, a declaration of the rights of men is a declaration of the rights which human creatures, it is supposed, would possess, were they in a state in which the French nation certainly are not, nor perhaps any other; certainly no other into whose hands this declaration could ever come.
This instrument is the more worthy of attention, especially of the attention of a foreigner, inasmuch as the rights which it is to declare are the rights which it is supposed belong to the members of every nation in the globe. As a member of a nation which with relation to the French comes under the name of a foreign one, I feel the stronger call to examine this declaration, inasmuch as in this instrument I am invited to read a list of rights which belong as much to me as to the people for whose more particular use it has been framed.
The word men, I observe to be all along coupled in the language of the Assembly itself, with the word citizen. I lay it, therefore, out of the question, and consider the declaration in the same light in which it is viewed by M. Turgot, as that of a declaration of the rights of all men in a state of citizenship or political society.
I proceed, then, to consider it in the three points of view above announced:—
1. Can it be of use for the purpose of setting bounds to the power of the crown? No; for that is to be the particular object of the Constitutional Code itself, from which this preliminary part is detached in advance.
2. Can it be of use for the purpose of setting bounds to the power of the several legislative bodies established or to be established? I answer, No.
(1.) Not of any subordinate ones: for of their authority, the natural and necessary limit is that of the supreme legislature, the National Assembly.
(2.) Not of the National Assembly itself:—Why? 1. Such limitation is unnecessary. It is proposed, and very wisely and honestly, to call in the body of the people, and give it as much power and influence as in its nature it is capable of: by enabling it to declare its sentiments whenever it thinks proper, whether immediately, or through the channel of the subordinate assemblies. Is a law enacted or proposed in the National Assembly, which happens not to be agreeable to the body of the people? It will be equally censured by them, whether it be conceived, or not, to bear marks of a repugnancy to this declaration of rights. Is a law disagreeable to them? They will hardly think themselves precluded from expressing their disapprobation, by the circumstance of its not being to be convicted of repugnancy to that instrument; and though it should be repugnant to that instrument, they will see little need to resort to that instrument for the ground of their repugnancy; they will find a much nearer ground in some particular real or imaginary inconvenience.
In short, when you have made such provision, that the supreme legislature can never carry any point against the general and persevering opinion of the people, what would you have more? What use in their attempting to bind themselves by a set of phrases of their own contrivance? The people’s pleasure: that is the only check to which no other can add anything, and which no other can supersede.
In regard to the rights thus declared, mention will either be made of the exceptions and modifications that may be made to them by the laws themselves, or there will not. In the former case, the observance of the declaration will be impracticable; nor can the law in its details stir a step without flying in the face of it. In the other case, it fails thereby altogether of its only object, the setting limits to the exercise of the legislative power. Suppose a declaration to this effect:—no man’s liberty shall be abridged in any point. This, it is evident, would be an useless extravagance, which must be contradicted by every law that came to be made. Suppose it to say—no man’s liberty shall be abridged, but in such points as it shall be abridged in, by the law. This, we see, is saying nothing: it leaves the law just as free and unfettered as it found it.
Between these two rocks lies the only choice which an instrument destined to this purpose can have. Is an instrument of this sort produced? We shall see it striking against one or other of them in every line. The first is what the framers will most guard against, in proportion to their reach of thought, and to their knowledge in this line: when they hit against the other, it will be by accident and unawares.
Lastly, it cannot with any good effect answer the only remaining intention, viz. that of a check to restrain as well as to guide the legislature itself, in the penning of the laws of detail that are to follow.
The mistake has its source in the current logic, and in the want of attention to the distinction between what is first in the order of demonstration, and what is first in the order of invention. Principles, it is said, ought to precede consequences; and the first being established, the others will follow of course. What are the principles here meant? General propositions, and those of the widest extent. What by consequences? Particular propositions, included under those general ones.
That this order is favourable to demonstration, if by demonstration be meant personal debate and argumentation, is true enough. Why? Because, if you can once get a man to admit the general proposition, he cannot, without incurring the reproach of inconsistency, reject a particular proposition that is included in it.
But, that this order is not the order of conception, of investigation, of invention, is equally undeniable. In this order, particular propositions always precede general ones. The assent to the latter is preceded by and grounded on the assent to the former.
If we prove the consequences from the principle, it is only from the consequences that we learn the principle.
Apply this to laws. The first business, according to the plan I am combating, is to find and declare the principles: the laws of a fundamental nature: that done, it is by their means that we shall be enabled to find the proper laws of detail. I say, no: it is only in proportion as we have formed and compared with one another the laws of detail, that our fundamental laws will be exact and fit for service. Is a general proposition true? It is because all the particular propositions that are included under it are true. How, then, are we to satisfy ourselves of the truth of the general one? By having under our eye all the included particular ones. What, then, is the order of investigation by which true general propositions are formed? We take a number of less extensive—of particular propositions; find some points in which they agree, and from the observation of these points form a more extensive one, a general one, in which they are all included. In this way, we proceed upon sure grounds, and understand ourselves as we go: in the opposite way, we proceed at random, and danger attends every step.
No law is good which does not add more to the general mass of felicity than it takes from it. No law ought to be made that does not add more to the general mass of felicity than it takes from it. No law can be made that does not take something from liberty; those excepted which take away, in the whole or in part those laws which take from liberty. Propositions to the first effect I see are true without any exception: propositions to the latter effect I see are not true till after the particular propositions intimated by the exceptions are taken out of it. These propositions I have attained a full satisfaction of the truth of. How? By the habit I have been in for a course of years, of taking any law at pleasure, and observing that the particular proposition relative to that law was always conformable to the fact announced by the general one.
So in the other example. I discerned in the first instance, in a faint way, that two classes would serve to comprehend all laws: laws which take from liberty in their immediate operation, and laws which in the same way destroy, in part or in the whole, the operation of the former. The perception was at first obscure, owing to the difficulty of ascertaining what constituted in every case a law, and of tracing out its operation. By repeated trials, I came at last to be able to show of any law which offered itself, that it came under one or other of those classes.
What follows? That the proper order is—first to digest the laws of detail, and when they are settled and found to be fit for use, then, and not till then, to select and frame in terminis, by abstraction, such propositions as may be capable of being given without self-contradiction as fundamental laws.
What is the source of this premature anxiety to establish fundamental laws? It is the old conceit of being wiser than all posterity—wiser than those who will have had more experience,—the old desire of ruling over posterity—the old recipe for enabling the dead to chain down the living. In the case of a specific law, the absurdity of such a notion is pretty well recognised, yet there the absurdity is much less than here. Of a particular law, the nature may be fully comprehended—the consequences foreseen: of a general law, this is the less likely to be the case, the greater the degree in which it possesses the quality of a general one. By a law of which you are fully master, and see clearly to the extent of, you will not attempt to bind succeeding legislators: the law you pitch upon in preference for this purpose, is one which you are unable to see to the end of.
Ought no such general propositions, then, to be ever framed till after the establishment of a complete code? I do not mean to assert this; on the contrary, in morals as in physics, nothing is to be done without them. The more they are framed and tried, the better: only, when framed, they ought to be well tried before they are ushered abroad into the world in the character of laws. In that character they ought not to be exhibited till after they have been confronted with all the particular laws to which the force of them is to apply. But if the intention be to chain down the legislator, these will be all the laws without exception which are looked upon as proper to be inserted in the code. For the interdiction meant to be put upon him is unlimited: he is never to establish any law which shall disagree with the pattern cut out for him—which shall ever trench upon such and such rights.
Such indigested and premature establishments betoken two things:—the weakness of the understanding, and the violence of the passions: the weakness of the understanding, in not seeing the insuperable incongruities which have been above stated—the violence of the passions, which betake themselves to such weapons for subduing opposition at any rate, and giving to the will of every man who embraces the proposition imported by the article in question, a weight beyond what is its just and intrinsic due. In vain would man seek to cover his weakness by positive and assuming language: the expression of one opinion, the expression of one will, is the utmost that any proposition can amount to. Ought and ought not, can and can not, shall and shall not, all put together, can never amount to anything more. “No law ought to be made, which will lessen upon the whole the mass of general felicity.” When I, a legislator or private citizen, say this, what is the simple matter of fact that is expressed? This, and this only, that a sentiment of dissatisfaction is excited in my breast by any such law. So again—“No law shall be made, which will lessen upon the whole the mass of general felicity.” What does this signify? That the sentiment of dissatisfaction in me is so strong as to have given birth to a determined will that no such law should ever pass, and that determination so strong as to have produced a resolution on my part to oppose myself, as far as depends on me, to the passing of it, should it ever be attempted—a determination which is the more likely to meet with success, in proportion to the influence, which in the character of legislator or any other, my mind happens to possess over the minds of others.
“No law can be made which will do as above. What does this signify? The same will as before, only wrapped up in an absurd and insidious disguise. My will is here so strong, that, as a means of seeing it crowned with success, I use my influence with the persons concerned to persuade them to consider a law which, at the same time, I suppose to be made, in the same point of view as if it were not made; and consequently, to pay no more obedience to it than if it were the command of an unauthorized individual. To compass this design, I make the absurd choice of a term expressive in its original and proper import of a physical impossibility, in order to represent as impossible the very event of the occurrence of which I am apprehensive:—occupied with the contrary persuasion, I raise my voice to the people—tell them the thing is impossible; and they are to have the goodness to believe me, and act in consequence.
A law to the effect in question is a violation of the natural and indefeasible rights of man. What does this signify? That my resolution of using my utmost influence in opposition to such a law is wound up to such a pitch, that should any law be ever enacted, which in my eyes appears to come up to that description, my determination is, to behave to the persons concerned in its enactment, as any man would behave towards those who had been guilty of a notorious and violent infraction of his rights. If necessary, I would corporally oppose them—if necessary, in short, I would endeavour to kill them; just as, to save my own life, I would endeavour to kill any one who was endeavouring to kill me.
These several contrivances for giving to an increase in vehemence, the effect of an increase in strength of argument, may be styled bawling upon paper: it proceeds from the same temper and the same sort of distress as produces bawling with the voice.
That they should be such efficacious recipes is much to be regretted; that they will always be but too much so, is much to be apprehended; but that they will be less and less so, as intelligence spreads and reason matures, is devoutly to be wished, and not unreasonably to be hoped for.
As passions are contagious, and the bulk of men are more guided by the opinions and pretended opinions of others than by their own, a large share of confidence, with a little share of argument, will he apt to go farther than all the argument in the world without confidence: and hence it is, that modes of expression like these, which owe the influence they unhappily possess to the confidence they display, have met with such general reception. That they should fall into discredit, is, if the reasons above given have any force, devoutly to be wished: and for the accomplishing this good end, there cannot be any method so effectual—or rather, there cannot be any other method, than that of unmasking them in the manner here attempted.
The phrases can and can not, are employed in this way with greater and more pernicious effect, inasmuch as, over and above physical and moral impossibility, they are made use of with much less impropriety and violence to denote legal impossibility. In the language of the law, speaking in the character of the law, they are used in this way without ambiguity or inconvenience. “Such a magistrate cannot do so and so,” that is, he has no power to do so and so. If he issue a command to such an effect, it is no more to be obeyed than if it issued from any private person. But when the same expression is applied to the very power which is acknowledged to be supreme, and not limited by any specific institution, clouds of ambiguity and confusion roll on in a torrent almost impossible to be withstood. Shuffled backwards and forwards amidst these three species of impossibility—physical, legal, and moral—the mind can find no resting-place: it loses its footing altogether, and becomes an easy prey to the violence which wields these arms.
The expedient is the more powerful, inasmuch as, where it does not succeed so far as to gain a man and carry him over to that side, it will perplex him and prevent his finding his way to the other: it will leave him neutral, though it should fail of making him a friend.
It is the better calculated to produce this effect, inasmuch as nothing can tend more powerfully to draw a man altogether out of the track of reason and out of sight of utility, the only just standard for trying all sorts of moral questions. Of a positive assertion thus irrational, the natural effect, where it fails of producing irrational acquiescence, is to produce equally irrational denial, by which no light is thrown upon the subject, nor any opening pointed out through which light may come. I say, the law cannot do so and so: you say, it can. When we have said thus much on each side, it is to no purpose to say more; there we are completely at a stand: argument such as this can go no further on either side,—or neither yields,—or passion triumphs alone—the stronger sweeping the weaker away.
Change the language, and instead of cannot, put ought not,—the case is widely different. The moderate expression of opinion and will intimated by this phrase, leads naturally to the inquiry after a reason:—and this reason, if there be any at bottom that deserves the name, is always a proposition of fact relative to the question of utility. Such a law ought not to be established, because it is not consistent with the general welfare—its tendency is not to add to the general stock of happiness. I say, it ought not to be established; that is, I do not approve of its being established: the emotion excited in my mind by the idea of its establishment, is not that of satisfaction, but the contrary. How happens this? Because the production of inconvenience, more than equivalent to any advantage that will ensue, presents itself to my conception in the character of a probable event. Now the question is put, as every political and moral question ought to be, upon the issue of fact; and manking are directed into the only true track of investigation which can afford instruction or hope of rational argument, the track of experiment and observation. Agreement, to be sure, is not even then made certain:—for certainty belongs not to human affairs. But the track, which of all others bids fairest for leading to agreement, is pointed out: a clue for bringing back the travellers, in case of doubt or difficulty, is presented; and, at any rate, they are not struck motionless at the first step.
Nothing would be more unjust or more foreign to my design, than taking occasion, from anything that has been said, to throw particular blame upon particular persons: reproach which strikes everybody, hurts nobody; and common error, where it does not, according to the maxim of English law, produce common right, is productive at least of common exculpation.