Front Page Titles (by Subject) CHAPTER II.: CONSIDERANDA. - The Works of Jeremy Bentham, vol. 3
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CHAPTER II.: CONSIDERANDA. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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Subjects of consideration on the present occasion are the following:—Pleasures and pains—happiness and unhappiness—good and evil—ends and means—rules and principles—axioms of pathology, physical, and mental—or say psychological—observation and experiment. Of these, many are mutually correlative,—all are intimately connected with, and give and receive explanation to and from each other.
Happiness is a word employed to denote the sum of the pleasures experienced during that quantity of time which is under consideration, deduction made or not made of the quantity of pain experienced during that same quantity of time.
Unhappiness is a word employed to denote the sum of pains experienced during the quantity of time which is under consideration, deduction made or not made of the quantity of pleasure experienced during that same quantity of time.
Good is a word employed to denote either pleasure, or exemption from pain—and the cause efficient, and more or less effective, of either.
Evil is a word employed to denote either pain or loss of pleasure, or a cause efficient, and more or less effective, of either.
In regard to good and evil, consider—
I. Their condition or import as to existence and non-existence.
Their existential character, or say character or mode of designation in regard to existence, or say logical character:—this is either positive or negative.
Positive good, is that which assumes not the existence of evil, and which accordingly might have place if there were no such thing as evil.
Negative good, is that which is constituted by the non-existence of evil on the occasion in question.
Positive evil, is that which assumes not the existence of good, and which accordingly might have place, if there were no such thing as good.
II. In regard to each, their quality.
By good, understand either pleasure, or the absence—or say, on the occasion in question, the non-existence—of pain. Pleasure is positive good; absence of pain—negative good.
By evil, understand either pain, or the absence—or say, on the occasion in question, the non-existence—of pleasure. Pain is positive evil; absence of pleasure—if arising from loss—negative evil.
III. Their relation in respect of causality.
Understand by good, either actual pleasure, or absence of pain, or anything considered as the cause of pleasure, or the absence of pain.
Understand by evil, either actual pain, or absence of pleasure, or anything considered as the cause of pain or of the absence of pleasure.
IV. Their quantity, in respect of—1. Intensity; 2. Deration; 3. Extent.
V. Their productiveness—or say fecundity—1. Direct; 2. Inverse.
VI. Part taken by human action in the production of them.
1. Wish, or say desire; 2. Direction to action in consequence—or say, in pursuance of such wish.
End is a word employed to denote a good, the prospect of eventually experiencing which, operates as a motive tending to produce at the hands of any sensitive being, some good which is an object of human desire and hope.
Means is a word employed to denote any substance, state of things, or matter, considered as contributing to the attainment of the good, which on that same occasion is regarded as an end.
Pleasures and exemptions from pains, with their respective correlatives, happiness and exemption from unhappiness, are the ultimate ends of action.
As between good and evil, good alone is an ultimate end of the action of a sensitive being.
Good and evil, both are means in their nature capable of being made conducive to the attainment of the ultimate end—the net maximum of happiness; and accordingly by men in general, and by men in the situation of legislators in particular, are employed in that view, and for that purpose.
Of good or evil, one and the same portion is capable of acting, on one and the same occasion, in the character of an end, and in that of a means:—of a means in relation to some antecedent end or state of things—of an end in relation to some eventually subsequent state of things.
Remedy, in all its shapes, is an instrument having for its use the exclusion of wrong in all its several shapes—or say, the exclusion of maleficence in all its several shapes.
Of remedy in every shape, the application made is attended with and productive of burthen.
The application of remedy, instead of excluding wrong, is productive of wrong, if and in so far as it is productive of burthen outweighing the benefit.
In this way may effects and causes be seen linked together, as it were, in a chain composed of links in indefinite number, and, taken in the aggregate, of correspondent length.
So much for the matter of good, being that the production of which is, or at least ought to be the object, or say end in view, of everything which passes under the denomination of law—or a law:—and so much for good and evil,—both of them employed as means, and the only means employable, for the attainment of that end.
But what is a law, and what are laws themselves? Before this is explained, must be brought to view that species of matter which on each occasion is occupied in passing judgment on the aptitude of the law in question, considered as a means employed in and for the attainment of that end. To this purpose comes the need of the ideas, expression to which is given by the two mutually and intimately connected words rule and principle.
Correspondent to every rule you may have a principle: correspondent to every principle you may have a rule.
Of these two, a rule is the object which requires first to be taken into consideration and presented to view. Why? Because it is only by means of a rule that any moving force can be applied to the active faculty, or any guide to the intellectual—any mandate can be issued—any instruction given.
A rule is a proposition—an entire proposition: a principle is but a term: True it is, that by a principle instruction may be conveyed. Conveyed? Yes: but how? No otherwise than through the medium of a proposition—the corresponding proposition—the proposition which it has the effect of presenting to the mind. Of presenting? Yes: and we may add, and of bringing back; for only in so far as the rule has been at the time in question, or some anterior time present to the mind, can any instruction, any clear idea be presented to the mind by a principle.
A principle, therefore, is as it were an abridgment of the corresponding rule;—in the compass of a single term, it serves to convey for some particular present use, to a mind already in possession of the rule, the essence of it: it is to the rule, what the essential oil is to the plant from which it is distilled.
So it does but answer this purpose, its uses are great and indisputable.
1. It saves words, and thereby time.
2. By consisting of nothing more than a single term, and that term a noun-substantive, it presents an object which, by an apt assortment of other words, is upon occasion capable of being made up into another proposition.
So, it is true, may a rule—but only in a form comparatively embarrassing and inconvenient. This will appear by taking in hand any sentence in which a principle has place, and instead of the principle employing the corresponding rule.
Upon occasion, into any one sentence principles in any number may be inserted: and the greater the number, the stronger will be the impression of the embarrassment saved by the substitution of the principles to the rules.
A principle, as above, is no more than a single term; but that term may as well be composite, a compound of two or more words, as single. Of these words one must be a noun-substantive; the other may be either a noun-adjective or a participle; including under the appellation of a noun-adjective, a noun-substantive employed in that character, in the mode which is so happily in use in the English language, and which gives it, in comparison with every language in which this mode is not in use, a most eminently and incontestably useful advantage.
By an axiom is meant a sort of rule, of which by certain properties, the combination of which is peculiar to it, the usefulness is pre-eminent in comparison with other rules. These properties are—
As to axioms, the axioms that belong to this subject are axioms of mental pathology. The facts they are enunciative of, are facts enunciative of certain sensations, as being produced by certain events or states of things operating as their efficient causes.
By a reason for any act, is conveyed the idea of its supposed addition, actual or probable, to the greatest happiness. This effect may be produced either—1. Immediately; 2. Through an intervening chain of any number of links.
A law is a word employed in three different senses, which require to be distinguished: but in each of them it imports that the will to which it gives expression either emanates from the supreme authority in the state, or has that same authority for its support.
In one sense it denotes an entire command,—the whole matter of a command. Call this the integral sense, and the sort of law a complete law.
In the second sense it contains no more than a portion of a command; and the matter of the command may be to an indefinite extent voluminous, containing laws of the first-mentioned sort in any number: in this sense it has for its synonym the word enactment: call the law in this sense a fractional or incomplete law.
In the third sense it designates the aggregate body of the enactive paragraphs to which it happens to have received the token of their being expressive of the will of the person or persons invested with the supreme authority in the political state, or of some person who acts in this behalf, under, and by virtue of that same authority.
By power of classification a species of legislative power is exercised. Thus when an enactment to any effect has been framed, if by any proposition bearing the form of a command or a rule, enlargement or retrenchment is applied to the genus, or say class of objects which contribute to constitute the subject-matter of the command;—by this means, in a sort of indirect way, by and with the help of the other words which enter into the composition of the enactment, is produced the effect of a different enactment: one of the classes of which that same subject-matter is composed receives thereby contraction or enlargement, and a fresh classification is made thereby.
Note here—in the giving existence to an enactment, three distinguishable parts are capable of being taken—or say, functions are capable of being performed; viz. the institutive, the constitutive, and the consummative; and this whether by one and the same authority, or by so many different authorities: by exercise given to the power of classification in any instance, a different consummation as it were is given to the several enactments, in the matter of which, the generic words in question are any of them contained.
Of this same function—of this same power, exercise is made by any functionary, or set of functionaries, belonging to a department other than, and thence inferior to, the legislative; for in no other way can classes be filled up by individuals, and reality given to general ideas. Call this power, power of location, or say locative power. But what difference there is between this case and the preceding consists in this: in the former case, by no other authority than the legislative can the power be exercised—the effect produced: in the latter case it is produced in virtue of a general authorization given by the legislative authority, and by that authority is never produced, unless it be in consequence of some extraordinary occurrence.
So much for particular laws, and small masses of particular laws. Now for the divisions of the all-comprehensive aggregate in which they are all of them at all times comprised.
The Pannomion may be considered as composed of two branches—the effective and the constitutive.*
In the effective branch may be considered as contained the portion of the matter which is more immediately occupied in giving direction to the conduct of the members of the community of all classes.
The constitutive is occupied in determining who those persons in particular are, by whom the powers belonging to the effective branch shall be exercised.
Considered with relation to its connexion with good and evil employed in the character of punishment and reward for the purpose of giving direction to human conduct, the Pannomion is distinguished and divided into two branches—the directive and the sanctionative.
By the directive part, indication is given of the course which it is the desire of the law-giver that upon the occasion in question the subject-citizens should pursue.
By the sanctionative part, information is given to them of the inducement which they will find for the pursuing of those same courses.
The matter of which this inducement is composed, is either the matter of good as above, or the matter of evil. Where and in so far as it is of the matter of good, remunerative is the name that may be given to the law: where and in so far as it is the matter of evil, penal is the name commonly given to the law—punitive, a name that may be given to it.
These two branches of a law are addressed to different descriptions of persons;—the directive to persons at large—the sanctionative to the members of the official establishment.
By the sanctionative, provision is made of the inducement, to which the legislator trusts for the compliance he seeks and expects to find on the part of those to whom the directive branch of the law is addressed. This inducement is the eventual expectation of either good or evil in the mind of those to whom the directive branch of the law is addressed:—if it be good, the law in that branch of it is syled a remunerative law: if evil a penal law.
The persons to whom a remunerative law is addressed are those functionaries belonging to the administrative department, by whom disposal is made of the money, or whatever else the matter of good employed consists of, directing them eventually to bestow the article in question on the person in question in the event of his having complied with the directive law in question, and thereby rendered the service desired at his hands.
The persons to whom a penal law is addressed, are the official persons belonging to the judiciary department, presided over and directed by the judges.
Of the matter to which it may be convenient to give insertion in the civil code, and to which accordingly insertion is given in it, there are two different sorts: one of which may be styled the directive as above—the other the expositive.
To the directive belongs that sort of matter, of which, under that name, mention has been already made—the directive, without the addition of the sanctionative, and in particular the punitive.
Not that, without the addition of the sanctionative, the directive could in general without absurdity be trusted to. Of a correspondent eventual punishment, including, where applicable, satisfaction, to be administered in case of non compliance, the existence must all along thereby be assumed. But in relation to punishment, this is the whole of that which naturally here finds its place:—in the penal code will be inserted all denunciation of extra punishment, together with what belongs to the mode in which the application made of the matter of punishment is brought about;—leaving to the civil code, the direction of the mode in which satisfaction, and in particular that branch of it which consists in the allotment of compensation for wrong, shall be administered.
The expositive matter belongs in common to, constitutes and forms part and parcel of, the directive part of the matter of the civil code, and the penal code.
Among the words and locutions, of which exposition is given in it, may be seen this or that word, in the exposition of which a prodigious quantity of matter is employed.
Take, for instance, the word title or the word right, when employed as synonymous with and equivalent to it. Exposition of it is alike necessary to the completion of any enactment belonging either to the civil or the penal code.
Take, in the first place, the civil. The principal part of it is occupied in the declaration of to what person or persons each subject-matter of property, each object of general desire, shall belong, in such sort as to be styled his or their own—who he is or they are, to whom it belongs—or say, who have title to it. Now, then, be the subject-matter what it may—who is it that has title to it? Who but he in whose favour some one in the list of completely collative events or states of things has place; no event or state of things having, with relation to that same title, an ablative effect, having at the same time place in the disfavour of that same individual.
So much for the portion in question—the portion of the matter of the civil code.
But not less necessary is reference made in the penal code to that same matter.
Take, for instance, in offences severally considered, offences affecting property,—the offence of theft. To the conveying of an accurate conception of the nature of this offence, mention of title is indispensable. Why? Answer: Because, when it is under the persuasion of his having a title to the thing in question, where it is under this persuasion that the man took it,—by no one will he be regarded as having committed the offence thus denominated: thence so it is, that in any well-adapted definition of this offence, averment of the non-existence of any such persuasion must be contained.
Not that in the idea of the offence it is necessary that the idea of any portion of that same matter in particular—the idea, for example, of any one collative event more than another—should have place.
Merely expositive, and mixed: of the one sort or the other will be found to be every particle of the matter which will with most convenience be aggregated to the matter of the civil code.
Constitutive of the mixed matter will be—1. Matter of general concernment; 2. Matter of particular concernment.
[* ]It may also be considered as divided into substantive and adjective. The substantive branch of the law has for its business the giving direction and effect to human conduct;—the adjective has for its business the giving execution and effect to substantive law.