Front Page Titles (by Subject) CHAPTER IV.: IMPERFECTIONS PRIMARY. - The Works of Jeremy Bentham, vol. 3
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CHAPTER IV.: IMPERFECTIONS PRIMARY. - 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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Of all the several vices spoken of under the head of imperfections of the first order, the cardinal vice is Uncognoscibility.
Dependent on and proportioned to the notoriety, and hence to the cognoscibility of the rule of action, are whatsoever good effects can have been expected from it:—notoriety, reference, viz. being had to the individual occasion on which, in order to be productive of the good effects looked for, it is necessary that an act of the sort of those which stand commanded by it should be performed:—and the converse, in the case of acts prohibited or permitted.
It is only in proportion as it is thus notorious, that a law can be productive of any the smallest particle of good effect. But of bad effect, without any such notoriety, it is capable of being productive in no inconsiderable degree. Such is the case with it, when in a case of penal law, non-observance has for its effect punishment—and when in the case of law non-penal, non-observance has for its effect burthen or inconvenience in some other shape.
On the part of the mass of law in question, notoriety;—on the part of him who in some way or other is concerned in point of interest to be apprized of it, cognition;—depends partly upon external circumstances, such as the operations, if any, that are performed for the purpose of giving it notoriety,—partly upon internal circumstances—circumstances constitutive of its internal or intrinsic aptitude for being notified.
Uncognoscibility on the part of a mass of legal matter is a quality which may be referable either to a state of things extrinsic and foreign to the law itself, or to the nature and constitution of the law itself.
In so far as it has its origin in a state of things extrinsic to the law itself, it may be termed uncognoscibility ab extra;—in so far as it has its origin in the nature and contexture, the matter, or the form of the law itself, it may be termed uncognoscibility ab intra.
In so far as the imperfection comes under the denomination of uncognoscibility ab extra, it is the result of want of promulgation:—deficiency or inappositeness in respect of the operations necessary to convey it to, and fix it in the minds of the several persons, who on one account or another are in point of interest concerned to be acquainted with its existence and contents.
Uncognoscibility ab intra may have its origin either in the form of the mass of law in question, or in the matter. In so far as it has its origin in the form of the law, it has its origin in one or other of the imperfections of the first order,—viz. ambiguity, obscurity, or overbulkiness.
Overbulkiness may to this purpose be distinguished into absolute and relative,—relation being had to the persons concerned in point of interest in being acquainted with it.
Overbulkiness on the part of a mass of law is absolute, in so far as it cannot be reduced by the mere process of distribution, in which division is necessarily included.
When overbulkiness is relative only, it is capable of being reduced more or less by the mere process of distribution as above;—viz. by taking the whole mass and distributing it among the different persons (viz. individuals or sorts of persons) who are concerned in point of interest in different parts of it:—breaking it down into so many distinct portions as there are sorts of persons, each of whom is concerned with one part only.
Whatsoever portion of legal matter has no existence but in the form of unwritten law, has not, properly speaking, any existence. For it is only in virtue of certain determinate words to which it has been consigned, and of which the expression of it is composed, that a portion of law can be said, properly speaking, to have any existence. Without such words, without such text or tenor, as the phrase is, belonging to it, whatsoever is given as and for a portion of legal matter, exists only by fiction—is a mere figment of the imagination;—and whatsoever has no existence, is effectually and absolutely uncognoscible.
Though on the subject in question there exist not any portion of the real matter of law, a man may be punished, as day by day men are punished, as for disobedience to, or non-compliance with, such law:—but it is not by any such act of power or punishment that a real law can be brought into existence. Punishment is the act of a judge, or any other person who has power to do evil to the party said to be punished: a law is the work of none but a legislator.
In so far as it is in respect of its matter that a mass of law is uncognoscible, it is for want of visible reason—of reason either apparent on the face of it, or made known along with it,—or by apt expression annexed to the text or tenor of it.
In this case, so far as regards the matter as above, the intrinsic uncognoscibility on the part of the mass of law will not, it is evident, be absolute and entire;—it is not to every man, and at all times, that an acquaintance with the nature of its contents, and at the same time with the fact of its existence, will be impossible.
But by indication of the reason, if so it be that it have a reason, such an instrument of fixation will be provided, such an anchor for fastening it in the mind, as cannot by possibility be given to it by any other means.
Ambiguity and Obscurity.
Between ambiguity and obscurity the connexion is close, and almost undistinguishably intimate.
A locution is ambiguous when two significations are presented to view in such manner, that though it be clear to the reader that one of the two was meant by the author to be regarded as his,—yet which of the two it is remains a matter of doubt.
Its etymology considered, by the word ambiguity, if taken strictly, an intimation is conveyed, that of the rival significations in question the number is but two. In the nature of the case, however, as certified by experience, to the possible number of these candidates there are no certain limits. But forasmuch as, for the purpose of comparison, these rival significations may, be they ever so numerous, be taken up, and held in contemplation by pairs, and as the etymology of the word comparison imports, it is only when held up together in pairs, and not in any greater number, that of the points of agreement and difference amongst a number of objects—say accordingly between object and object—any such conception as shall be at once distinct, correct, and complete, can generally, if at all, be formed;—on these considerations, be the number of these rival significations ever so extensive, the terms ambiguous and ambiguity may still be employed in speaking of them.
Obscurity may be resolved into ambiguity, or at least the relation of the one imperfection to the other manifested, by considering the mind, as tossed about, as it were, in case of obscurity amongst a number of rival significations altogether indeterminate and even infinite. For, that in the mind of the author in question, be he who he may (he being in his right mind), no meaning whatsoever was at the time of penning the discourse in question present, cannot seriously be supposed. Some meaning or other, then, he cannot but be supposed to have had;—and therefore, till some determinate meanings in a limited number present themselves to the conception, it will remain wandering in infinite intellectual space, the field, abode, and station of an infinite host of meanings.
Sometimes one single determinate meaning will have presented itself—and still, whether that be the author’s real meaning may remain matter of doubt. This case will be apt to present itself as belonging to the head of obscurity:—if considered as a case of ambiguity, the doubt must be considered as having place between the determinate signification on the one hand, and an infinite number of indeterminate ones on the other.
In a discourse of this sort, when an instance of ambiguity presents itself, the state of dubitation may be either merely temporary, or ultimate and definitive. And so in regard to the case of obscurity.
In the case when it is temporary, a distinction may be made between the case where, by a view of the context, it is corrected without examination, and the case where to the solution of it examination is necessary:—in the first case it may be distinguished by the appellation of momentary—in the other, of permanent.
Of any the slightest and most evanescent degree of ambiguity, even though incapable of being productive of any permanent doubt, the effect upon the mental feelings is unpleasant: it produces upon the mind of the reader a sort of sensation, attended with uneasiness to the mental faculty called taste—an uneasiness which seeks vent by stigmatizing the discourse with the imputation of clumsiness or inelegance.
This sort of inconvenience, such as it is, is one that accompanies the imperfection in question, whatsoever be the species and character of the discourse which is the seat of it.
If, though not definitive, the ambiguity be permanent,—to the slight and evanescent uneasiness produced by the inelegance of the discourse, considered in a general point of view as a discourse, is added the more serious uneasiness, the anxiety which depends upon the nature and character of the particular species of discourse here in question,—the anxiety produced by the consideration of the effects of which it may be productive,—which, in the character of a portion of law, it may have upon the interest of the reader, or of some individual, or aggregate of individuals, whose interest has been bound up with his own by the tie of sympathy.
If the imperfection be not only permanent but definitive, the consequence is, that he is thereby subjected, not merely to the apprehension, but to the danger of some operation more or less prejudicial to his interest (as above explained* ) at the hands of the law: in penale, to some punishment, or else to some privation to which he considers himself as under a prudential obligation of submitting, lest he should subject himself to such punishment: and so in civile, in non-penale, in regard to burthen, an inconvenience in the shape of loss, or any other shape.
When the ambiguity is but of the momentary or evanescent kind, take any individual instance by itself,—the utmost evil—the utmost uneasiness producible by it, will in general be a quantity altogether impalpable, too minute to have any claim to regard. But when repeated and multiplied to the degree in which, in the composition of an entire statute, it is capable of being multiplied—of a statute of that figure and bulk which in the English statute-book is so frequently exemplified, even this slight species of imperfection is not incapable of being swollen into a serious inconvenience. Lay upon a man’s shoulders a burthen of a certain weight,—it may be composed of an impalpable powder, yet the pressure of it will not be the less grievous.
In regard to ambiguity, distinctions productive of practical use may be derived from the consideration of the modifications of which the source or seat of the disease is susceptible.
1. This seat may be in a single term, in a single word,—say in termino—in vocabulo.
2. It may extend itself over a whole phrase, or collection, or series of words, more or less numerous, taken by itself,—say in propositione, or in contextu.
3. Its seat may be, not in any single word or phrase, but in any single word or phrase considered with reference to two others; in which case, the seat of the ambiguity is a compound seat—its elementary parts, the three words or phrases taken together,—in situ, or ex malâ collocatione.
Thus, in the case of a phrase capable of producing the effect of a limitative clause, placed between the other clauses, it may,—how clear soever in itself,—and, moreover, how clear soever each of those two other clauses may be,—be productive of ambiguity, in respect of the doubt to which of the two it was intended to apply itself: temporarily, permanently, or definitively at least, such will be the effect of any such interposed clause, if consistently with apparent common sense, it be in its nature applicable as well to the one of them as to the other.
Of the modes of ambiguity hitherto above brought to view, every discourse, whatsoever be the subject and object of it, is susceptible. To an ulterior mode of ambiguity, discourse, in so far as it possesses the force of law, is liable. This is that which is so apt to have place, when it has happened to the same subject to have been taken in hand by laws of different dates: the question in this case being, this portion of law, in the instrument of earlier date, is it, or is it not, to be considered as superseded by this other portion of law contained in the instrument of more recent date?
To a doubt of this nature, it is only by accident that any interpretation whatever can be afforded by the maxim, Leges priores posterioribus abroguntur. The justness of the maxim is above dispute if, on the part of the legislator of posterior time, there existed any such desire as that of abrogating the provision made by the legislator of anterior time, abrogated it is, and must be deemed to be. But any such desire,—had it really any existence in his mind? A desire to any such effect,—was it really his desire? In that part lies the difficulty. The legislator of earlier time prescribes such or such a mode of doing the thing in question; the legislator of later time prescribes another mode a little different. The option between the two modes,—is it to be considered as left or taken away? and if left, to whom left?
As in the case of ambiguity and obscurity, so in the case of overbulkiness: the most serious part of the evil, the intensely afflictive, and at the same time all-grasping evil, is resolvable into, and coincides with that of uncognoscibility, viz. the chance which, in the character of a cause, the property in question has, in the instance of this or that individual person, of being productive of that effect, with its disastrous consequences.
The condition in life of the individual in question is a circumstance by which the efficiency of this cause will, it is evident, be subjected to modification, and that upon a longextended scale.
The man of law is the sort of person on whose faculties, considering the case in the abstract, the species of burthen ought to be found pressing with the severest pressure: in the shape of law, the burthen that presses upon him being the aggregate of all the several burthens that are to be seen or felt pressing upon any other shoulders.
But this being a sort of burthen which, in that profession, presses not upon any man’s shoulders any further than in consideration of a more than equal retribution it has been his desire and his pleasure to submit them to it; the consequence is, that when the burthen is the most bulky, the suffering produced by it is, in mathematical language, a negative quantity,—in plain language, real suffering there is none, but more or less enjoyment in its place.
It is to this simple circumstance that the body of the law, taken in its totality, is obviously indebted for its present bulkiness. Such as it is, it is the handiwork of the man of law. While to every other class of men it is, according to circumstances, an instrument of pressure, affliction, ruin, death,—to him, and in proportion as to other men it is productive of these evils, it is an instrument of aggrandisement, of opulence, and power.
No wonder if in every country, and in every age, down to the present moment, the whole force of his faculties have been bent, not to the alleviation of this burthen, but to the working it up to, and keeping it up in a state of the most mountainous bulk, and thence of the most consummate uncognoscibility that, under the spur of mighty interest, human ingenuity on the one part could devise, human nature and stupidity on the other part submit to and endure.
It is not merely by its immediate operation, and in the simple ratio of the magnitude of the mass, that bulkiness on the part of a mass of law tends to produce, and so unhappily does become productive of, uncognoscibility. The more there is of the mass, be it what it may, the more there is of that matter of which ambiguity and obscurity are capable of being found the attributes. Moreover, by the same causes by which his exertions have been engaged in endowing this his work with the most enormous degree of bulkiness possible, by the same causes have they been directed to the object of giving existence, perpetuity, and increase, always in the utmost possible degree, to those other vices.
Though of two bodies of law, each professing to be complete, what may easily enough happen is, that not the greater, but the lesser should, taken in its totality, be more ambiguous and obscure, yet nevertheless sure it is, that the greater the bulk of any such mass, the greater, more perfect, and exquisite, is the degree of ambiguity and obscurity which it will be in man’s power to plant in it.
Accordingly, not only in the article of bulkiness, but, under favour of it, in the intimately connected articles of ambiguity and obscurity, there will in the field of law be occasion to witness, under favour of such causes as are not to be matched elsewhere, such effects as are alike incapable of being matched elsewhere.
Bulkiness on the part of the body of the laws may be distinguished into absolute and relative.
Absolutely considered, a body of laws may be said to be inconveniently bulky, when, taking the whole of it in the aggregate, it is considered as pressing in an inconvenient degree upon the faculties of the whole body of the members of the community taken in the aggregate.
Relatively considered, this or that part of the body of the laws may be said to be bulky in an inconvenient degree with relation to this or that part of the whole body of the members of the community considered as loaded with it, when, although if to each one were presented the whole portion with which on one account or other he is concerned,—and thence concerned to be acquainted with,—and no more, the case might be, that the pressure of such portion might not be so great as to be inconvenient to him; yet the case being, that in addition to that portion with which he is concerned, such person is burthened with a quantity of matter, and that to a vast amount, with which he is not concerned,—hence it is, that in a relative sense, the whole aggregate of the body of the laws is, with relation to the whole body, composed of all the members of the community taken together, in a highly inconvenient degree bulky and oppressive.
From this theoretical distinction between bulkiness in an absolute, and bulkiness in a relative sense, results a practical expedient, such as in the character of a corrective remedy will be found of sufficient efficacy to reduce, in the instance of each individual, the amount of the matter pressing upon his shoulders, so as to make it no longer, in the instance of any one individual, a source of considerable sensible inconvenience.
The principle or rule of division, or distribution, is the name by which this practical expedient may from henceforward be distinguished; and the method to be pursued in applying it throughout to the best advantage, will be the subject of consideration in a succeeding Chapter.*
[* ]See the head of Uncognoscibility.
[* ]Chapter VI. § 2.