Econlib

The Library

Other Sites

Front Page arrow Titles (by Subject) arrow SECTION VIII.: EXISTING LAW. - The Works of Jeremy Bentham, vol. 2

Return to Title Page for The Works of Jeremy Bentham, vol. 2

Search this Title:

Also in the Library:

Subject Area: Economics
Subject Area: Political Theory
Subject Area: Law
Topic: Property

SECTION VIII.: EXISTING LAW. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.

Part of: The Works of Jeremy Bentham, 11 vols.

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.


SECTION VIII.

EXISTING LAW.

Can anything of harshness be imputed to the proposed measure? Not when viewed by itself, we have seen already. View it, then, in comparison: turn to existing law. No exclusion of the father here as there on pretence of the ponderosity of inheritances: no exclusion of the half-blood, as if the son of my father or my mother were a stranger to me: no exclusion of all children but the first born, as if the first born only lived upon food, and all others upon air: no exclusion of the better half of the species, as if the tender sex had no need of sustenance. The feelings of individuals—sole elements of public happiness—these, and these only, are the considerations that have here been exclusively consulted, and their suggestions undeviatingly adhered to;—human feelings, the only true standards of right and wrong in the business of legislation, not lawyers’ quibbles, nor reasons of other times, that have vanished with the times.

Pursue the comparison yet farther: on the one hand, no harshness at all, as we have seen; on the other, a harshness which is incurable. The proposed law, taking nature for its guide, leads expectation by a silken string: the existing law, pursuing the ghosts of departed reasons, thwarts expectation at every step, and can never cease to do so. It does so, because it is in the speechless shape of common law; and it would do so still, even though words were given to it, and it were converted into statute law. Reasons rooted in utility, are so many anchors by which a law fastens itself into the memory: lawyers’ quibbles are a rope of sand, which neither has tenacity of its own, nor can give stability to anything else. Rules and quibbles together, the impression they make upon the mind is that of the wind upon the waves; and when incidents spring up to call them into action, the sensation produced is the sensation of a thunder-stroke.