Front Page Titles (by Subject) APPENDIX. LOGICAL ARRANGEMENTS, OR INSTRUMENTS OF INVENTION AND DISCOVERY - The Works of Jeremy Bentham, vol. 3
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APPENDIX. LOGICAL ARRANGEMENTS, OR INSTRUMENTS OF INVENTION AND DISCOVERY - 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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Logical arrangements, which have served as so many nova organa, or instruments of invention or discovery to Jeremy Bentham, in the composition of his several works.
To enable himself to take a commanding view (says Bolingbroke) of the field of law and legislation, there are two principal vantage grounds, on which it is necessary for a man to mount, viz. history and metaphysics.
The observation is Lord Bolingbroke’s, and it has been quoted from him by Hume, or some other author of the first eminence.
To that one of the two vantage grounds which is offered by history, the road is smooth and flowery;—and of those who have ascended to it, and taken post upon it, there has been no want.
To that which belongs to the region of metaphysics, the road is rugged, and full of thorns. Few are they who have attempted to gain this height; and of those few, still fewer who have succeeded in reaching it, and placing themselves in any such station as hath afforded them any clear and extensive view of the regions stretched out at their feet.
In the following sketch, an enumeration is given of the several monticules which, in the course of his travels on the vantage ground of metaphysics—to call it by the name given to it by Bolingbroke—or, as some would say, of logic—were descried by the mind of the author, and on which, from time to time, it has taken its station, for the purpose of the surveys it has, for different purposes, had occasion to take of that extensive field which is occupied below, in common by ethics or morals, law, and legislation.
If their position merely be regarded—the post they occupy in the intellectual regions—these objects may, according to the figure of speech employed by Bolingbroke, be considered merely as so many stations or resting-places in that more arduous one of his two vantage grounds.
If the purposes and uses to which they have been applied be the object of regard, there will be a convenience in changing the figure, and considering them, with Lord Bacon, as so many engines or instruments, by the aid of which the different works that have been undertaken have been either accomplished, or at least laboured at and attempted.
In most instances, the instrument thus employed by the author was constructed by himself alone,—no part having been borrowed from any other hand;—in other instances, the instrument was found by him, in part at least, ready made; but either enlarged by himself, or applied to uses to which it had not been observed by him to have been applied by any one else. As often as the hand from which he thus received it could be determined and recollected, mention has been made of it.
New ideas derived from Logic.
I. Division of entities into real and fictitious; or say, division of nouns-substantive into names of real entities, and names of fictitious entities:—
By the division and distinction thus brought to view, great is the light thrown upon the whole field of logic, and thereby over the whole field of art and science, more especially the psychical, and thence the ethical or moral branch of science.
It is for want of a clear conception of this distinction that many an empty name is considered as the representative of a correspondent reality:—in a word, that mere fictions are in abundance regarded as realities.
D’Alembert is the author in whose works* the notion of this distinction was first observed by me;—être fictif is the expression employed by him for the designation of the sort of object, for the designation of which the appellation fictitious entity has ever since been employed.
In speaking of the faculties of the mind, the same distinction will also be found occasionally brought to view in the philosophical works of Voltaire.
By attention to this distinction it is, that I was enabled to discover and bring to view, in the case of a numerous class of words, their incapacity of being expounded by a definition in the ordinary form, viz. the form per genus et differentiam, which form of definition it has, with how little success and benefit soever hitherto, perhaps universally been the practice to bestow upon them; and at the same time to bring to view the only instructive and useful exposition of which the words of this class are susceptible, viz. the exposition by paraphrasis—the only form of exposition by which the import attached to them is capable of being fixed, and at the same time placed in a clear and determinate point of view.
See, in particular, the class of political, including legal, fictitious entities,† in respect to which, by indication of the relation which the import of the word in question bears in common to the fundamental ideas of pain and pleasure, a distinct and fixed meaning is thus given to a numerous tribe of words, of which, till that time, the meaning had been floating in the clouds, and blown about by every blast of doctrine:—words to the which, in the mind of many a writer, no assignable ideas, no fixed, no real import, had been annexed.
II. Division of entities, real and fictitious together, into physical and psychical:—
By means of this arrangement, considerable has been the light thrown upon the field of psychical entities, and the origin and formation of language: the connexion between the nomenclature of psychical and that of physical entities has been clearly pointed out. There is no name of a psychical entity, which is not also the name of a physical entity, in which capacity alone it must have continued to have been employed, long before it was transferred to the field of psychical entities, and made to serve in the character of a name of a psychical, and that most commonly a fictitious entity.
III. Relations between the import of the word happiness, and that of the words pleasure and pain:—
Sole positive element of happiness, alias felicity, alias well-being—pleasures, and those determinate ones: sole negative element of happiness, exemption from pains, and those equally determinate ones.
Determinate import thereby given to the word utility, a word necessarily employed for conciseness sake, in lieu of a phrase more or less protracted, in which the presence of pleasures and the absence of pains would be brought to view.
An action may be considered and spoken of as useful, as conducive to general utility, in proportion to the value of any pleasures which it is its tendency to produce, or of any pains which it is its tendency to avert.
Whether there ever were a time at which the word happiness failed of presenting to my mind the character of an aggregate, or compound, of which pleasures, and the exemption from corresponding pains, were the sole elements, is more than at present I can recollect. The satisfaction I remember to have experienced at the observation of this interpretation, as given to it in the first place by Helvetius,‡ and afterward by Hartley,∥ affords some presumption of its being at the first of these times new to me. But perhaps the cause of that satisfaction was not the novelty of the notion in relation to my own conceptions, but the circumstance of seeing the confirmation given to them in these works.
IV. Elements or dimensions of value in regard to pleasures and pains:—
It was from Beccaria’s little treatise on crimes and punishments that I drew, as I well remember, the first hint of this principle, by which the precision and clearness and incontestableness of mathematical calculation are introduced for the first time into the field of morals—a field to which in its own nature they are applicable with a propriety no less incontestable, and when once brought to view, manifest, than that of physics, including its most elevated quarter, the field of mathematics.
The elements or dimensions of value, in regard to pleasures and pains, are—1. Intensity; 2. Duration: these belong to it whether considered as past or as future; and of these two taken together, its magnitude is composed. To these come to be added, but in the case only in which it is considered as not yet past—3. The certainty or probability of its arrival; 4. Its proximity, propinquity, or remoteness.
Thus far it is considered as confined to the breast of a single individual: if considered as seated, or capable of being seated, in a number of different breasts, it is then considered as existing under a fifth dimension, viz. Extent,—which extent has for its measure the number of the individuals who are considered as being thus affected;—the greater that number, the more extensive it is; the less, the less extensive.
Two other conceivable elements of value remain still to be ascribed to it, viz. 6. Fecundity; 7. Purity. Of these elements, neither, it is true, can be considered as belonging to the value of a pleasure or a pain when considered by itself: in both instances, it is considered inasmuch as it is capable of being accompanied or followed by sensations of the same or a different kind. If by sensations of the same kind, i. e. if, being a pain, by a pain—or being a pleasure, by a pleasure, it be considered as accompanied or followed, it may, in proportion to the number of such concomitant or consequent sensations, be termed fruitful or unfruitful, prolific or unprolific:—if by sensations of an opposite kind, it may, in proportion to the number of such concomitant or consequent sensations, be termed impure, in proportion to the number of those which it escapes or fails being accompanied with, pure.
For bringing to view in a concise form these elements, seven in number, the following memoriter verses, awkward as verses of that class naturally are, may for the present serve:—
Less awkward verses I cannot but suppose may one day be found, and substituted to these with advantage, by some person who is more in use to dress up language in the garb of poetry.
V. Extension of the use made of the word matter, from the field of physics to the whole field of psychics, or psychology, including ethics and politics:—
1. In the higher, or more general quarter of them; viz. in the phrases matter of good, matter of evil.
2. In the department of law in general, and of penal law in particular,—matter of satisfaction or compensation, matter of punishment, matter of reward; matter of punishment being neither more nor less than the matter of evil applied to a particular purpose;—matter of reward, the matter of good applied to one particular purpose;—matter of satisfaction, the matter of good applied to another particular purpose.
3. In political economy—matter of wealth and its modifications; viz. the matter of subsistence, and the matter of opulence or abundance; each of these being neither more nor less than so many modifications of the matter of wealth; and in so far as, through the medium of exchange, interconvertibility as between them has place, with no other difference than what corresponds to the difference in the purposes to which that common matter comes to be applied.
Correctness, completeness, and consistency of the views taken of these large portions of the field of thought and action,—conciseness in the sketches made or to be made of them:—such are the desirable effects which this locution presented itself as capable of contributing in large proportion to the production of.
By this means, for the first time, were brought to view several analogies, which have been found of great use in practice;—a clearer, as well as a more comprehensive view of all these objects, having thereby been given, than in the nature of the case could, or can have been given by any other means.
The matter of good, as to one-half of it—one of the two modifications of which it is composed—viz. the negative—being the same thing as the matter of evil; one and the same object—viz. pain—having by its presence the effect of evil, by its absence or removal the effect of good;—the matter of good being, in its positive modification, composed of pleasures, and their respective causes—in its negative modification, or form of exemptions, i. e. exemptions from pain, and their respective causes.
In like manner, the matter of evil being as to one-half of it—as to one of the two portions of which it is composed, viz. the negative—the same thing as the matter of good; one and the same object—viz. pleasure—having by its presence the effect of good, by its absence, when considered as the result of loss, the effect of evil: the matter of evil being, in its positive form, composed of pains, and their respective causes—in its negative form, of losses corresponding to the different species of pleasures capable of being acquired and possessed, or lost, and their respective causes.
From this correspondency and interconvertibility, a practical result—in the hands of whosoever is able and willing to turn the observation to advantage—is the prevention of excess and waste in the application of both these portions.
A position which by this means is placed in the clearest and strongest point of view, is—that by whatsoever is done in any shape, in and by the exercise of the powers of government, is so much certain evil done, that good may come.
Though the matter of reward, and the matter of satisfaction (viz. for injuries sustained) are in themselves so much of the matter of good, yet it is only by coercion, and that in a quantity proportioned to the extent to which that coercion is applied, that the matter of good thus applied can be extracted.
That when, on the score of and in compensation for injury sustained, the matter of good is, in the character of matter of satisfaction, extracted from the author of the injury, it operates, in and by the whole amount of it, in the character of punishment, on the person from whom it is extracted: and whatsoever may be the quantity of punishment inflicted in this shape, in that same proportion is the demand for punishment satisfied; and whatsoever may be the amount of it in this shape, by so much less is the demand, if any, that remains for it in any other.
Operating in any such way as to produce, on the part of the party operated upon, an act or course of conduct adverse in any way upon the whole to the interest of the community in question—ex gr. a particular class or district or other division of the political state, the whole of the political state in question, or mankind at large—the matter of good and evil becomes the matter of corruption.
It may be either the matter of good or the matter of evil: but it is the matter of good that most frequently presents itself in that character.
The breast in which the matter of corruption is thus operating may be that of any individual at large; but the case which affords the most frequent occasion for speaking of the matter of good, as operating in this character, is that in which the person thus operated upon is regarded as occupying the situation of a trustee—of a trustee, whatsoever be the party regarded, as the correspondent principal, or, as the English lawyers say, using remnants of an obsolete jargon borrowed from France, cestuy que trust; whether another individual, or assemblage of determinate individuals, a subordinate community, composed of an assemblage of individuals, individually indeterminate, or the whole political state.
To operate in the character of matter of corruption, the matter of good and evil requires not to be actually applied by this or that hand in the character of a corrupting hand. Of itself, and without any such application, the matter of good and evil, especially in the form of good, keeps operating, in so far as, being at the disposal of any individual, or assemblage or division of individuals, the interest of such parties is adverse to the interest of a greater number of individuals.
In every political state, in the shape of the matter of wealth, a quantity, more or less considerable, of the matter of good and evil lies, and a still greater quantity is expected to be at the disposal of the several persons in whose hands the business of the administrative department is lodged. In every state, in so far as in these same hands the disposal of it is left free, it is in the power of these trustees of the public so to dispose of it in favour of other trustees of the public in the other departments of government—viz. the legislative and the judicial—as well as to those belonging to that same department, the administrative—as to cause them to be subservient to the particular interest of these depositaries of the public stock, at the expense of the public at large.
Accordingly, in proportion to the quantity of this matter being or expected to be at the disposal of these hands, and the facility with which it is capable of being applied to this sinister purpose, will be the force with which, in the character of the matter of corruption, the matter of good and evil will be operating—operating upon all persons, according to the degree in which, partly by situation, partly by disposition, they stand exposed to its sinister influence.
VI. Good and evil of the first, second, and third orders, i. e. Effects similar or opposite, producible in society by the operation of one and the same act at different stages of its progress:—effects in some cases homogeneous with reference to each other, in other cases heterogeneous, are produced in the way of good and evil by the influence of one and the same act in the course of its progress in and through society.
1. In the case of delinquency,—effects in the way of good and evil producible by an offence.
In the first stage comes a portion of the matter of good; viz. the advantage, whether in the shape of pleasure or of exemption from pain, the prospect of which was, in the character of a motive or inducement, the cause of the commission of the pernicious act.
At the next stage comes, in some cases, an effect of an opposite nature—a portion of the matter of evil; viz. if the pernicious act be of the number of those by which a determinate suffering is produced in the breast of an assignable individual or individuals;—here we have one portion of the matter of evil—call this portion the evil of the first order.
An ulterior, and in every respect perfectly distinct lot of evil, produced in some cases from the same cause, has been termed the evil of the second order. It consists partly of the alarm produced in other breasts by the apprehension of finding themselves among the sufferers from other pernicious acts, that appear likely to be produced by the individual offence in question, in the event of its having been found in its issue favourable to the offender.
Of the mass of evil capable of being produced by an act of delinquency, or at any rate by a multitude of acts of delinquency of the same nature, that portion which comes in at the third and last stage of its progress, is of a sort which, under any tolerably well-established government, is rarely, to any considerable extent, exemplified. It is that which has place, in so far as such being the effects of the alarm produced by the apprehension of continually recurring repetitions of the species of injury in question, the mischief has, from the passive and sensitive faculties of the persons thus threatened, extended itself to their active faculties, compelling them, as it were, to render themselves, by their own inactivity, instruments of their own ruin.
In that modification of delinquency and injury which is composed of acts of the predatory class, may be seen the clearest and strongest exemplification of this case.
In Asia and Africa, many are the instances in which spots, which though situated within the demesne of regular governments, and at one time kept accordingly in regular cultivation, have successively been to such a degree infested by the predatory incursions of neighbouring tribes, as to have at length been abandoned by their inhabitants, and left in a state of perfect desolation.
Under any European government instances are scarcely to be met with where, in its progress over the community, the evil produced by private delinquency has made so great an advance as to have arrived at this third stage.
Unfortunately, of evil, which having been the result of the misconduct of the rulers themselves, has extended itself so far as to make its appearance in the character of an evil of the third order, examples are by no means rare.
2. In the case of public punishment, i. e. of evil purposely produced by the powers of government, to the end that it may operate in the way of punishment,—in the first place comes a portion of the matter of evil. But as among the last effects of an act of delinquency was the operating upon the active faculties of the persons in question, in such sort as to restrain and prevent them from doing that good to themselves and others which otherwise they would have done; so of a lot of evil produced for the purpose of punishment, the earliest effect is of the nature of good, consisting in this, viz. that they who otherwise would, in the shape in question, have done evil to others, are, by the experience or apprehension of the like evil to themselves, restrained, and so thus prevented from doing it.
3. In the case of public reward—i. e. of a portion of the matter of good administered at the expense of government, and thence at the expense of the community, to the end that, in the character of matter of reward, it may have the effect of giving birth to public service, which in some shape or other is regarded as more than equivalent in value to the expense in the shape of the matter of reward. In the first place comes the evil necessarily attendant on the coercive measures employed for the extraction of this precious matter. But in the next place comes the good—i. e. the pleasures—which whether the application made of the matter be well or ill contrived, is necessarily produced on the receipt of this precious matter;—in which good we see the good which is of the first order, and applies itself to the passive, and to no other than the passive, faculties of the persons to which it applies itself.
Effects of the first order, evil as above: effect of the second order, good,—and that of the first order as above, pleasure enjoyed by the individual by whom the matter of reward in question has actually been received. Effect of the third order, good, and good of the second order,—pleasure expectation, with the consequent proportionable alacrity in the breasts of all those to whom, from observation made of the cause for which, and manner in which, the matter of reward has been bestowed in this instance, it may happen to deduce an expectation of obtaining for themselves from the like service, similar reward in return for similar service. Effect of the fourth order, good, and that good of the third order, active service performed accordingly: and here, in the last stage, we see the application of the precious matter, invigorating and exciting the active faculty, as in the case of delinquency at the same stage we see the active faculty debilitated, and perhaps paralyzed and struck motionless.
Extensive and important are the practical inferences that present themselves as following from this theory.
In the case of evil, the evil of the first order is next to nothing in comparison with the evil of the second order—not to speak of a stage of evil so unfrequently exemplified as the evil of the third order.
Of the four classes into which the whole mass of delinquency may be divided,—viz. offences against persons individually assignable—offences against a man’s own welfare—offences prejudicial to a particular class of persons—offences prejudicial to the whole community at large,—in the second of these classes, viz. offences against a man’s self, the principal element of the evil of the second order, viz. the alarm, is altogether wanting.
VII. Springs of actions,—appetites—desires—motives—interests.
Explanation of these psychical fictitious entities of the pathematic class, by that connexion which is common to them with pleasures and pains in the several shapes of which they are susceptible.*
VIII. Sanctions or sources of obligation and inducement, five in number, viz.—
1. The physical sanction.
2. The moral or popular sanction.
3. The political, including the legal sanction.
4. The religious sanction.
5. The sanction of sympathy, limited in its application to a particular class of cases.
In so far as the word sanction is employed, what is thereby brought to view is, not the species of pleasure or pain by the prospect of which the influence on human will is exercised, and the effect produced, but only the source whence the pleasure and pain in question is expected to flow.
1. In the case of the physical sanction, the source or root of the pleasure or pain is in the pre-established nature of things, and not in human agency.
Thus, in respect of intoxicating liquors, in respect of the pain resulting from the drinking of them when pursued to excess, the tendency of the force of the physical sanction tends in a certain degree to restrain a man from giving into such excess.†
2. In the case of the moral or popular sanction, the source or root of the pleasure or pain regarded as eventually about to have place, is in the good or ill offices of mankind at large; that is, of such of its members to whom the knowledge of the incident or transaction in question may happen to come—viz. in the degree of estimation in which, on the occasion in question, the agent is regarded as likely to be held—or in other words, in the opinion, good or bad, favourable or unfavourable, likely to be entertained in relation to him: thence in the mental sensations, pleasant or unpleasant, of which the idea of the act is likely to be productive in his mind:—thence in the good or ill offices;—in the case of good, commonly expressed likewise by the word services.
Popular.—For the employing of the word popular, as the designation of the sort of sanction here in question, what (it may be asked) is the ground or warrant? Answer: In this consideration, viz. that the people at large, without distinction of persons, are the persons at whose hands the good and evil in question are respectively expected: the good and evil,—viz. of the good, whatsoever may be the result of the good offices which the people at large, freely and without coercion, may on the consideration in question respectively feel themselves especially disposed to render:—of the evil, whatsoever may be the result of such evil offices as the same persons are under, and by this and the several other sanctions left free to render to the persons on whose conduct the force of the sanction here in question is considered as applying itself.
Moral.—For the employing of the word moral on this same occasion, and to this same purpose, what is the ground or warrant? Answer: In this consideration,—viz. that for the performance of such acts, positive and negative together, as though not sanctioned by the political sanction, nor on the occasion in question by all persons considered as sanctioned by the political sanction, and yet at the same time are considered as obligatory, the moral sanction, or the sanction of morality, is the term by which the source of the obligation seems commonly to have been designated.
3. In the case of the political, including the legal sanction, the source or root of the pleasure or pain regarded as eventually about to have place, is in the good or ill offices of that portion of mankind in whose hands, in the political state in question, the powers of government are lodged, and who in consequence have at their disposal an unlimited proportion of the matter of good and of the matter of evil, capable of being employed and applied at pleasure in the character of matter of reward and matter of punishment.
The case, and the only case, in which the adjunct legal is applicable to the sort of sanction here in question, is that in which, under the authority of the legislative department of government, the matter of good and evil is disposed of, and applied in the express and declared view of operating in the character or matter of reward, or matter of punishment, thereby giving or endeavouring to give direction to those to whom application is actually made of the matter itself, or the prospect and expectation of it.
In this department, it is principally to the avowed purpose of giving to men’s conduct in the character of subjects, that direction by which they are made to abstain from such acts, principally positive acts, as are treated on the footing of offences, principally in consideration of the mischief of which they are regarded as productive, or threatening to be productive, that the matter of good and evil is applied, and that accordingly principally in the shape of matter of punishment. But in so far as, in the shape of matter of wealth or any other shape, it is applied; although it be not declaredly in the character of reward or in that of punishment, that application is made of it by persons invested with the powers belonging to the administrative department of government, the matter of good and evil operates not less in this than in the other case;—the matter of good and evil is capable of being made to operate in the character of a sanction, in such sort as to give to men’s conduct, in the character of subjects, such direction as, whether in the pursuit of those public ends which in that department of government are avowedly the objects of pursuit, or in pursuit of the personal or other private ends of those in whose hands the public powers in question are reposed.
In this case, in so far as the ends in pursuit of which the matter of good and evil is administered are of the personal or other private and therefore sinister ends just mentioned, it is in the character of matter of corruption that it operates:—but how ill soever the design and effect is, with which it is thus made to operate towards the giving to men’s conduct the direction so endeavoured to be given, the effect of which it is productive is not the less the same, as where, being in the character and under the name of a sanction, it is avowedly employed to the giving to men’s conduct the sort of direction above mentioned as endeavoured to be given to it when employed in the name and character of matter of punishment or matter of reward.
By the Treasury Board, under the direction of the First Commissioner, suppose an office given or promised to be given to a Member of Parliament, for the purpose of engaging him on all occasions to give his vote according to the direction prescribed by that member of the administration department:—the sanction, by the force of which the direction in question is thus given to the conduct of the functionary in question, cannot with propriety be termed the legal sanction; but to its being termed the political sanction, no objection seems capable of being made.
4. In the case of the religious sanction, the source or root of the pleasure or pain regarded as eventually about to have place, is in the good or ill offices of an almighty, but to man an invisible being: in whichsoever state of existence, whether the present or the future, considered as about to be rendered.
5. Lastly, In the case of the sanction of sympathy, or sympathetic sanction, the occasion on which any pleasure or pain appertaining to this sanction is capable of being experienced is, when of some act which the person in question has it in contemplation to exercise, a consequence about to result is pleasure or pain, in any shape, as the case may be, in the breast of some other person in whose well-being the person in question experiences an interest, produced by the force of the sympathetic affection. In this case, in the joint proportion to the force with which this affection operates in his breast, added to the magnitude of the pleasure or pain which is regarded by him as about to result to the object of this his affection, in the event of his exercising the act in question, is the force with which, by this sanction, he is urged to exercise, or to forbear to exercise, such act—to exercise it in so far as it appears likely to be productive of pleasure, or an equivalent good; to forbear exercising it in so far as it appears likely to be productive of pain, or an equivalent evil, appears likely to be the result of it.
In this case, the pleasure or pain, by the idea and contemplation of which human conduct is operated upon and liable to be determined, being the immediate result of the conduct of the person in question, produced, and regarded as about to be eventually produced, without the intervention of any exterior will—of any will exterior to his own—it follows that, when considered in this point of view, this sanction falls within the description of the physical sanction. But between these two cases the difference seemed considerable enough to indicate the propriety of representing the conduct in question as being in the two cases the result of two different sanctions:—so great is the difference between self-regarding and sympathetic affection—between the case where the pleasure or pain by the consideration of which a man’s conduct is determined is his own purely and immediately, and the case when it is his own no otherwise than in consequence of a correspondent pleasure or pain being regarded as experienced or about to be experienced, by another person—between the case where the pleasure or the pain is his own purely and directly, and the case in which it comes to him no otherwise than as it were by reflection, and through the medium of a portion of pleasure or pain of a different nature, regarded as having place in another breast.
Taken in the aggregate, the four preceding sanctions may, with reference and in contradistinction to this sanction—to the sympathetic sanction—be termed purely self-regarding ones.
The influence of the sympathetic sanction—i. e. of the pleasures and pains belonging to this sanction—corresponds to, and is coextensive with, that of all the purely self-regarding ones. A person dear to me, presents himself to my conception as suffering or eventually about to be made to suffer pain: by the love I bear to him, I am impelled to do what may be in my power towards relieving or exempting him from it. That pain may be a pain inflicted by the power of any one of those four sanctions, or an evil composed of so many distinguishable pains inflicted by the powers of every one of them.
Take, for example, the habit of drunkenness. By that habit it may happen to the same man to be subjected to bodily suffering in a great variety of forms, all comprehended under the general denomination of ill health:—here we have the pain of the physical sanction. It may happen to him to be exposed to public shame, and by that means to sink in the esteem of his friends and his acquaintances:—here we have the pain of the popular or moral sanction. It may happen to him to lose some office, more or less lucrative or honourable, of which he is in possession or expectation:—here we have the pain of the political sanction. Either for the scandal of the exposure, or for some injuries done to individuals, or other excesses committed in some paroxysms produced by intoxication, it may happen to him to be subjected to punishment at the hands of the law:—here we have the pain of the legal branch of the political sanction. It may happen to him to be tormented with apprehension of punishment about to be administered to him by the hands of the Almighty in a life to come:—here we have the pain of the religious sanction.
That, in comparison with the several other moral forces to which the name of sanction has here been given, the force here termed the sympathetic sanction is in general very weak, is not to be denied: but, for the omitting it from the list of sanctions, this weakness, were it greater than it is, would not afford any sufficient warrant. Of itself, i. e. without assistance from any of the other sanctions, it is every now and then seen productive of very considerable effects. It is to the force of this sanction that the principle of utility (understand of general utility) stands indebted for whatsoever reception it meets with, other than that which it may happen to any other articles in the list of sanctions to be instrumental in procuring for it. Under the guidance of the principle of utility it operates in alliance with the several other sanctions: under the same guidance it may not unfrequently be seen operating in opposition to them, and checking them in those sinister courses of maleficence into which, in opposition to the dictates of general utility, they are all of them more or less apt to be led by the political sanction, whether under its own guidance, or under the guidance of the religious sanction. Equally steady and efficient in its action with any of those self-regarding sanctions it cannot be said to be; but a force, howsoever weak and unsteady, is still not the less a force: and were it not for the operation of this sanction, no small portion of the good, physical and moral, which has place in human affairs, would be an effect without a cause.
In exact proportion to the efficiency of this principle would be the error committed by him who, on the occasion of any calculation made of the result of the moral forces on the sum or balance of which an effect depends, the production or prevention of which had become the object of human endeavour, should leave out of his calculation the operation of this cause.
Origin of the Theory of the Five Sanctions.
In speaking of law, viz. the internal law of any political state (internal, I say, in contradistinction to international), Blackstone, by whom it is, by an appellative not very appropriate, termed municipal, after Puffendorf and others, divides it into four parts, one of which he terms the sanction, or sanctionative part. The sanction or sanctions of law is accordingly an expression of not unfrequent occurrence. So likewise the sanction or sanctions of religion: and accordingly this or that portion is spoken of as being confirmed by, or having received, the sanction of law or the sanction of religion. But as to that which, as above, is here termed the popular or moral sanction, I have no recollection, general or particular, of ever having seen it employed. To the sanction termed political, and employed in contradistinction to the legal sanction, viz. in so far as the whole of anything stands distinguished from a part of it, the same observation may also be extended.
In fine, so may it to the physical and the sympathetic: for, in relation to all these several sources of action, two things have, as above, and it is hoped not unsatisfactorily, been shown,—viz. that they are each of them distinct from all the rest, and that they are all of them what they are here termed sources of action; viz. motives, or sets of motives, derived in each of these five instances from so many different sources: to which may be added, that each of them is, according to circumstances, susceptible of such a degree of force as may prove sufficient, perhaps even the weakest of them, to enable it to overpower any one or more of the rest, i. e. to give determination to human conduct, even while all those others are operating in opposition to it.*
IX. Conditions requisite for the accomplishment of any object, in so far as depends upon human means:—
Qualifications, both of them necessary, and together sufficient, on the part of the agent or agents in question, for the due accomplishment of any object whatsoever, and in particular for the due discharge of every political obligation, and thence for the due execution of every public trust,—appropriate will, and appropriate power.
Power is either power ab extra, or power ab intra. Power ab extra is correspondent to, and its efficiency proportionate to the extent and degree of compliance on the part of those over whom it is considered as being said to be exercised. Power ab intra will be in proportion to the degree of relative or appropriate knowledge, and the degree of appropriate active talent, on the part of him by whom the exercise of it comes to be made.
In so far as operation or co-operation towards the accomplishment of the object is considered as matter of duty or moral obligation, to possess the appropriate will or inclination is to possess the virtue of probity—relative probity: and when put in contrast and contradistinction with this requisite state of the will, appropriate knowledge has been termed intelligence.
Wisdom, probity, and power,—of these three, on attending Blackstone’s lectures, and afterwards reading them when in print, under the name of Commentaries on the Laws of England, I observed the concurrent existence laid down by him as conditions necessary to, and at the same time sufficient to insure, in any given political community, the existence of good government.
With reference to government in the highest stations,—and in these alone, are these conditions and qualifications brought to view by Blackstone,—neither by him is anything done to show the relation borne to each other, as above, by these associated fictitious entities, or towards satisfying the reader that the division thus exhibited is of the exhaustive kind.
With the help of such amendments as seemed requisite, the enumeration and division appeared to me capable of being, with equal propriety and utility, applied in the political line to all subordinate stations; in the next place, to the accomplishment of any object whatsoever in the ascending or more comprehensive line.
X. Obligation and Right:—
Explanation of these moral, including political, fictitious entities, and of their relation to one another, by showing how they are constituted by the expectation of eventual good and evil, i. e. of pleasures and pains, or both, as the case may be, to be administered by the force of one or more of the five sanctions, as above; viz. the physical, the popular, or moral; the political, including the legal; the religious, and the sympathetic.
Of either the word obligation or the word right, if regarded as flowing from any other source, the sound is mere sound, without import or notion by which real existence in any shape is attributed to the things thus signified, or no better than an effusion of ipse dixitism.
XI. Proper Ends of the distributive branch of law:—
Ends or purposes, the fulfilment or accomplishment of which this branch of law ought to have for its principal objects,—security, subsistence, abundance, and equality.
In the mention made of security, a tacit but necessary reference is made to the several classes of injuries against individuals other than the man himself, to which every individual stands exposed. Security is security against mischief—against evil from whatever quarter it may happen to it to come, and against whatsoever of a man’s possessions, or vulnerable part of a man’s frame, it may happen to it to be directed or to strike.
On this occasion the great difficulty consists in tracing the lines of distinction by which these several factitious entities are separated from each other. Subsistence and abundance have one and the same matter—the matter of wealth: of security, that same matter is itself a main instrument and means whereby all other instruments of security may be obtained.
In the case both of subsistence and abundance, over the relation they bear to security there is some obscurity. Security has several branches—as many branches as there are distinguishable objects exposed to deterioration or destruction; and in the list of these objects are comprised that matter, the matter of wealth, which is common to subsistence and abundance—security against mischief to human life, person, reputation, property (i. e. the matter of wealth, considered as lodged in the hands of the individuals, or assemblages of individuals in question) and condition in life. Security is again divisible into as many branches as there are different sorts of offences, or pernicious acts, by which, pro tanto, security is destroyed or endangered.
All these objects are, with relation to each other, so many antagonizing forces. In some instances, by the measure by which one is attained, so are one or more of the others: in other instances, one cannot be attained, or endeavoured to be attained, but by the relinquishment, or, pro tanto, the sacrifice of one or more of the others.
Equality, in particular, finds in each of the other three a rival and an antagonist—and in security and subsistence, rivals and antagonists, of which the claims are of a superior order, and to which, on pain of universal destruction, in which itself will be involved, it must be obliged to yield. In a word, it is not equality itself, but only a tendency towards equality, after all the others are provided for, that, on the part of the ruling and other members of the community, is the proper object of endeavour.
At the same time, in proportion as the subject is inquired into, it will be found that in all good systems of law, and even in all systems, the very worst not excepted, more or less regard is paid to equality; that in the aggregate of the body of laws in every state, all these others are constantly aimed at, are the objects of constant care, solicitude, and active operation; and that in fact the laws have no other objects or ends in view, but which, short as it is, are comprehended in this list; and that in all bodies of law, the great and constant difficulty is on each occasion, in so far as the competition has place, to decide to which of them the greatest portion of favour is due,—for which, in preference to the rest, provision is to be made.
These things considered, of the ends or objects of the distributive branch of the law, how with propriety could any list, more or less ample, differently composed, have been given?
XII. Formation of an uniform and mutually correspondent set of terms, for the several modifications of which the creation, extinction, and transfer of subjects of possession, whether considered as sources of benefit or as sources of burthen, are susceptible:—and thence of a mutually connected and correspondent cluster of offences, consisting of the several possible modes of dealing as above with such subjects of possession, in the case in which they are considered as wrongful, and as such prohibited by statute law, or considered and treated as prohibited by judiciary alias judge-made law.
1. Collation; 2. Ablation. In the case, and at the point of time, at which the subject-matter is for the first time brought into existence, collation has place without ablation: if it be already in existence, then collation and ablation have place together, and of their union translation is the result: in so far as ablation has place without collation, then not translation, but extinction, is the result.
Performed in favour of the collator himself, collation is self-collation:—if regarded as wrongful, it is wrongful self-collation; or in one word, usurpation is the name by which it has been, and at any time may be, designated.
Performed by the ablator himself, ablation is abdication:—if by the laws regarded or treated as wrongful,—wrongful abdication is accordingly the name by which it may be designated.
XIII. Division of offences,—by which is meant all such acts as on the score of their reputed mischievousness are fit or have been or are likely to be regarded as fit to be,—viz. by the application of punishment—converted into offences,—from the consideration of the person or persons, with reference to whom, in the first instance, they are regarded as being or likely to be mischievous, into offences against others—i. e. regarded as prejudicial to others, and offences against a man’s self—i. e. regarded as prejudicial to a man’s self.
Division of offences regarded as prejudicial to others, into offences against assignable individuals, alias private offences—offences against the unassignable individuals belonging to this or that class, or this or that local district, alias semi-public offences—and offences against the unassignable individuals of whom is composed the population of the whole political state.
From the distinction thus brought to view have been deduced diverse conclusions of no inconsiderable importance with reference to practice:—offences so far as the mischief, if any, which they have for their result is confined to the author of the offence, are no fit objects of controul by punishment and penal laws.
Of the offence which in this case is regarded as mischievous—the mischief, if any, being by the supposition confined to the offender himself—the consequence is, that no sooner is it felt,—viz. by him the offender,—than by the whole amount of it, it operates upon him in the character of so much punishment.
Division of offences into positive and negative; or rather observation made, that in the nature of the case, for every offence committed by a positive act, there is room for a correspondent offence committed by a negative act. The case of a positive offence, that where the mischief of the offence, as above, has for its cause a positive act—an act of commission: the case of a negative offence, that in which the mischief has for its cause a negative act—an act of omission: an act which consists in a man’s omitting to do that which it was in his power to do towards the prevention of a mischief, which for want of such positive and preventive act on his part, either actually did take place, or at any rate would have taken place, but for some preventive obstacle, in the application of which he had not any share.
The principle of division here brought to view, extends itself over the whole field of delinquency—be the positive act what it may—the opposite negative act is alike conceivable—is alike capable of being exemplified. If in the case of the positive act any mischief seem to flow, the correspondent negative act can never be altogether unproductive of the like consequence.
As to the difference between the mischief of the one and of the other, it consists altogether of the mischief of the second order; for as to the mischief of the first order, if it have place in both cases, it is exactly the same in both cases. But in the case of the negative offence, the mischief of the second order—the alarm and the danger—is next to nothing. On the part of the offender, all endeavours to prevent the mischief, which in the instance in question was actually produced, were wanting. True; but it follows not that he will at any time employ any exertions in the endeavour to produce a similar mischief.
In respect of punishment, cases there are in which, under the laws perhaps of all civilized nations, the negative act is put exactly upon the same footing as the positive act. In these cases, for example, viz. when one person having another in his power, keeps him without sustenance till he dies—by a mother or nurse, a new-born child—a jailor, one or more of his prisoners. In respect of punishment, the negative course of conduct, of which in these cases loss of life is the result, is commonly put upon a footing little if any thing different from that which has place where the mischief has for its cause a positive act. So in case of a design hostile to the person or power of the sovereign, or this or that member of the sovereignty in a state, the negative offence, which in the case of a person by whom the existence of the design is known, is committed by omission to give information of it to the competent authorities, is commonly punished, not perhaps with exactly the same punishment as that which is appointed for him by whom an active part is taken in that same design, but yet with some other punishment which does not fall much short of it.
Wheresoever the obligation, considered as imposed by the law, is of a positive nature the only sort of offence which the nature of the case renders possible is of the negative kind: and in this whole class of cases, the concomitancy of the two forms of delinquency fails. The sort of offence commissible by non-payment of taxes may serve by way of example. But in every other case, little has been the notice as yet taken of it.
XIV. Ends of Political Economy:—
These are the same as those of the distributive branch of law. Wherein, then, lies the difference? Answer: In so far as political economy is the object, so it is, that to two of those objects, viz. subsistence and abundance, a more particular and direct attention is paid, than either to security or to equality.
By distributive law, is declared what on as many occasions as shall happen to have been taken into view, shall be each man’s own. By political economy, is endeavoured to be ascertained how far, and for what particular purposes, chiefly for the general purposes of abundance and subsistence (i. e. security for subsistence), the use which otherwise under distributive law each man might make of his own, shall, for the more effectual fulfilment of these several ends, be directed and restricted.
XV. Limits applied to the quantity and productions of Industry, by the quantity of the necessary instruments of production which at the place in question—at the time in question, are in existence.
These instruments are—
1. The aggregate mass of existing capital.
2. The aggregate mass of capacity for labour.
That no end can be successfully pursued to any point beyond the productive power of the aggregate mass of means of all sorts necessary to the pursuit and attainment of it, is a self-evident, not to say an identical proposition: any proposition inconsistent with it would be a contradiction in terms.
Yet from this theoretical aphorism, follow divers practical inferences, which though they will scarcely be found to admit of denial, have found great difficulty in obtaining assent.*
EQUITY DISPATCH COURT PROPOSAL;
(originally published in 1830.)
Question. By whom is it necessary, or may be of use, that cognizance should be taken of the proposed Law Reform system in general; and these pages in particular?
Answer. By the persons here following:—
1. Equity suitors, desirous of the relief promised by it.
2. Persons at large, desirous of seeing law reform at large.
3. In particular, persons at large, desirous of seeing established the system of local judicatories, with a view to which the institution of the Dispatch Court, with the system of procedure for the application of it, is proposed as a measure of experiment.
4. More particularly still, members of Parliament, desirous of seeing produced these same results, or any of them.
[* ]Melanges de Literature et de Philosophie.
[† ]Obligation—right—power—privilege, &c.
[‡ ]In his book De L’Esprit.
[∥ ]In his Treatise on Man, or rather the Abridgment of it.
[* ]For a full explanation of these elements or dimensions, see Introduction to Morals and Legislation, Vol. I. p. 15. Chap. IV., Value of a lot of pleasure or pain, how to be measured.
[* ]See Table of Springs of Action, Vol. I. pp. 193-219.
[† ]In respect of the pleasure produced by the drinking of the liquors in question, when not carried to any such degree as to produce sensible ill effects, may it not be said, and without impropriety, that in the case of a person to whom such potations are productive of agreeable sensations, it is by the force of the physical sensation that he is invited or excited to such acts?
[* ]The list of sanctions was afterwards enlarged by Bentham, see Note. Introduction to Morals and Legislation, Vol. I. p. 14.
[* ]The last sheet of the MSS. from which the foregoing sketches are taken, is dated 21st Oct. 1814, Ford Abbey: at the foot of this sheet there is a pencil mark Go on, but no traces have been found of the subject having been resumed.