The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER II.

ENDS AND MEANS.

Enactive. Instructional.

Art. 1. Of this constitution, the all-comprehensive object, or end in view, is, from first to last, the greatest happiness of the greatest number; namely, of the individuals, of whom, the political community, or state, of which it is the constitution, is composed; strict regard being all along had to what is due to every other—as to which, see Ch. vii. Legislator’s Inaugural Declaration.

Correspondent fundamental principle: the greatest happiness principle.

Correspondent all-comprehensive and all-directing rule—Maximize happiness.

Enactive. Instructional.

Art. 2. Means employed, two—aptitude maximized: expense minimized.

Correspondent principles—1. The official-aptitude-maximization principle. 2. The expense-minimization principle.

Correspondent rules. Rule 1. Maximize appropriate official aptitude.

Rule 2. Minimize official expense.

For the manner in which these rules second one another, see Ch. ix. Ministers collectively. Section 15, Remuneration. Section 16, Locable who. Section 17, Located how.

Expositive.

Art. 3. Included in the matter of expenditure is the matter of punishment, as well as the matter of reward.

Expositive.

Art. 4. The matter of punishment is evil applied to a particular purpose.

Expositive.

Art. 5. The matter of evil is composed of pain and loss of pleasure.

Expositive.

Art. 6. The matter of reward is the matter of good applied to a particular purpose.

Expositive.

Art. 7. The matter of good is composed of pleasure and exemption from pain.

Enactive. Instructional.

Art. 8. Consistently with the greatest happiness principle, evil cannot be employed otherwise than as a means: as a means of producing, in the character of punishment, or otherwise, more than equivalent pleasure, or excluding more than equivalent pain, or producing the one, as well as excluding the other.

Enactive. Instructional.

Art. 9. Employed in the character of punishment, it cannot, according to the greatest happiness principle, be employed otherwise than as an instrument of coercion: coercion, by fear of future punishment in case of future delinquency: coercion, for the production, as above, of more than equivalent good.

Instructional.

Art. 10. According to this same principle, pleasure is at once an end and a means: as an end, aimed at on every occasion: as a means, employed on particular occasions, to wit, when the matter of it is employed as a matter of reward.

Enactive. Instructional.

Art. 11. Employed as the matter of reward, the matter of good cannot, according to the greatest happiness principle, be employed otherwise than as an instrument of inducement.

Instructional.

Art. 12. Of the matter of reward necessary to be employed as an instrument, or say a means, of government, it is but in small proportion that it can be obtained, otherwise than by the help of evil employed in the way of punishment, and otherways as a means: witness, taxation: hence, under the greatest happiness principle, the necessity of minimizing expenditure, in the case of reward, as well as in the case of punishment.

Instructional.

Art. 13. To render the conduct of rulers conducive to the maximization of happiness, it is not less necessary to employ, in their case, the instrument of coercion, than in the case of rulees. But, the instrument of coercion being composed of the matter of evil, and the instrument of inducement of the matter of good—rulers are by the unalterable constitution of human nature, disposed to maximize the application of the matter of good to themselves, of the matter of evil to rulees.

Instructional.

Art. 14. Appropriate aptitude may be considered as having place in the case of rulees, as well as in the case of rulers: in both cases, according to the greatest happiness principle, it is aptitude for the maximization of happiness. But, in the case of rulers, it has a more particular signification: it is aptitude for the maximization of happiness in a particular way; namely, by a system of operations performed on rulees.

Expositive.

Art. 15. Of appropriate official aptitude, elements, or say, branches, three—moral intellectual, and active; of intellectual, again, two—cognitional and judicial: knowledge and judgment.

Ratiocinative. Enactive. Instructional.

Art. 16. Rules for maximization of appropriate moral aptitude.

Rule I. The sovereign power give to those, whose interest it is that happiness be maximized.

Rule II. Of the possessors of subordinate power, maximize the responsibility—namely, as towards the aforesaid possessors of the sovereign power.

Note that, only by expectation of eventual evil (punishment included) can responsibility be established: neither by expectation of eventual good, nor by the possession of good (reward included) can it be established.*

Ratiocinative. Enactive. Instructional.

Art. 17. For official aptitude, cognitional, judicial, and active, joined to minimization of expense, principles employed are three.

Principle I. Probation, or say public-examination principle.

Principle II. Pecuniary-competition principle.

Principle III. Responsible-location principle—location of subordinate by effectually responsible superordinate.

Inseparable is the connexion between all three principles. See Ch. ix. Ministers collectively. Section 15, Remuneration. Section 16, Locable who. Section 17, Located how. Ch. xii. Judiciary. Section 28, Locable who.

Enactive. Instructional.

Art. 18. For the functions exercised by the several functionaries, in the exercise of their several powers, and the fulfilment of their respective trusts, see the indication given in the chapters headed by the denomination of the several classes of functionaries: as per table of chapters and sections hereunto annexed.

Enactive. Instructional.

Art. 19. In relation to every official situation, a recapitulatory indication will be found given, of the securities herein provided for the maximization of appropriate aptitude, in all its above-mentioned branches, on the part of the functionary, by whom it is filled. See, in the several chapters, the several sections entituled Securities for appropriate aptitude.

Expositive.

Art. 20. Considered in respect of its immediate effects, responsibility is distinguishable into punitional, satisfactional, and dislocational; in respect of its source, into legal and moral,—legal, produced by the legal sanction; moral, by the moral sanction, as applied by the public-opinion tribunal, as per Ch. v. Constitutive. Section 4, Public-Opinion Tribunal—its Composition. Of the satisfactional mode, the only generally applicable submode is the pecuniarily-compensational—say, for shortness, the compensational.

Instructional.

Art. 21. Compensational responsibility has the effect of punitional, in the ratio of the sum parted with, to the remainder left. By it, wounds inflicted by the wrong are curable: it is on this account, preferable, as far as it goes, to simply punitional, by which, though employed for the hope of preventing greater future evil, pain is the only effect produced with certainty.

Expositive. Instructional.

Art. 22. Legal responsibility is distinguishable into judicial and administrational: judicial, where, in the shape of punishment, the effect is produced by the judicial authority, on the ground of moral inaptitude; administrational, where, by superordinate authority, dislocation is applied on the ground of inaptitude, intellectual or active, pure of moral. By dislocational, evil from the like inaptitude on the part of the dislocatee is prevented with certainty; of punishment, except in the singular case of physically disabilitative punishment in the instance of the individual offender, the preventive effect is clouded in uncertainty.

Instructional.

Art. 23. To pecuniary compensation, pecuniary responsibility to a corresponding extent is necessary. But, beyond that extent, in proportion to its extent, obstruction is afforded by it to its own efficiency, as well as to that of punitional and dislocational. In other words, up to the amount of his debts, a man’s responsibility to the purpose of his being made to afford compensation in a pecuniary shape is, indeed, in the direct ratio of his opulence; but, when a man’s opulence exceeds the amount of his debts, this effective responsibility is rather in the inverse than in the direct ratio of it: this, even under a system, legislative and judicial, which has for its end the maximization of the happiness of the maximum number; much more, under a system by which, to the happiness of the ruling one, in conjunction with that of the ruling and otherwise influential few, that of the subject-many, is, in intention and effect, constantly sacrificed. In the monarch, in whose situation opulential responsibility is maximized, effective responsibility, punitional, satisfactional, and dislocational, is nihilized.

Instructional.

Art. 24. As to moral responsibility, imperfect as it is, this species of security against misconduct is the more necessary to be brought to view, inasmuch as, in monarchies in general, were it not for this, there would be no responsibility at all: and, in other words, the monarch would be altogether without motives for compliance with the laws, even with those of his own making, which are, at all times, all such as, and no other than such as it is agreeable to him to make. It is by this source of restraint alone that the English form of government—a mixture, composed of monarchico-aristocratical despotism, with a spice of anarchy—has been preserved from passing through the condition of France, Russia, and Austria, into that of Spain and Portugal. Even without the assistance of a posse of his own creatures, acting under the name of a parliament, he may kill any person he pleases, violate any woman he pleases; take to himself or destroy anything he pleases. Every person who resists him, while in any such way occupied, is, by law, killable, and every person who so much as tells of it, is punishable. Yet, without the form of an act of parliament, he does nothing of all this. Why? Because, by the power of the Public-Opinion Tribunal, though he could not be either punished or effectually resisted, he might be and would be, more or less annoyed.

[* ][Responsibility.] Partly with, partly without design, the ideas, attached to the word responsibility, and its conjugate responsible, have come to us enveloped in a thick cloud: and from this cloud has flowed, it will soon be seen, practical evil—evil in the shape of waste, depredation, and corruption, covering the whole field of government. In a word, by it has been promoted, and in no small degree, the success of those designs, by which, instead of being, as it ought to be, minimized, official expense has, under so many governments, though under no other in so high a degree as under the English, been maximized. The time for the employment of this important word having here arrived, the operation of clearing it from the delusion of which it has been made the instrument, could not any longer be delayed.

The laws being, by the supposition, apt—(for on no other supposition can they be either made or continued)—the object of the legislator must, on every occasion, be—to maximize compliance with them: to maximize it on the part of all persons, and in particular, as on the present occasion, on the part of all functionaries. To maximize complianes with the laws, is, in other words, to maximize the execution and effect given to them. But, at the hands of no person, can any such execution and effect be depended upon, except in so far as, to this purpose the quality called responsibility has on his part place: responsibility, and that responsibility effective.

For the creation and preservation of this effective responsibility, punishment, it will be seen,—punishment (by means of the fear of it) is the only instrument which, as in other, so in official situations, can be employed. For engaging a man to take upon himself the obligations attached to the situation, reward, in some shape or other, is indeed an instrument, and, generally speaking, the only apt instrument that can be employed: but, to the purpose of ensuring the regular and apt fulfilment of those same obligations, punishment is the only instrument which, the nature of man being such as it is, can be made applicable with effect.

Say then for shortness,

1. For constituting effective responsibility, punitional responsibility is indispensable.

2. By reward—by remuneration—no effective responsibility can be constituted. Remuneratory responsibility may be spoken of, but can neither be realized, nor so much as conceived.

Give a man the matter of reward, and afterwards, in case of misconduct on his part, take it away again, thus, it is true, may responsibility, and in a proportionable degree, be effected. But it is by the taking it away, not by the giving it, that the effect is produced: and the taking it away is not reward but punishment. Suppose money taken from him, the same quantity of money would have had the same effect on him, had he had it from any other quarter under any other name, instead of having it from the legislator, under the name of reward.

To functionaries, however, as to other persons, reward is more acceptable than punishment. Accordingly, while, for the establishment of this same effective responsibility, they have, in the instance of other persons, employed punishment, and that in no small abundance,—with correspondent abundance, for the production of the same desirable effect, in their own instance they have everywhere employed reward. With this instrument thus employed, not only have they represented themselves as having, in their own instance, established responsibility—responsibility under that very name, and that responsibility effective—but the degree of its efficiency they have represented as rising in exact proportion to the quantity of the acceptable matter thus employed. In no imaginable shape have they omitted thus to employ it: but the matter of opulence being the only sort of acceptable matter capable of being applied, on every occasion and to every person, let pecuniary, or, the degree considered, let opulential, be the name of the sort of responsibility thus professed to be established.

Seldom has profession been more hollow. The pretended species of responsibility thus described—it is not in the nature of it to be effective.

Not that for the speaking of it as such, a pretence is wanting; a pretence—nor that an unplausible one: a pretence not only for the employing of this acceptable matter, but for maximizing it: for maximizing it in quantity and value—maximizing it in all imaginable shapes—pretence is always ready at hand. That where punishment is employed, its degree of certainty being given, the efficiency of it—to wit, to the purpose of effective responsibility—will be as its magnitude, cannot but be admitted. Well then (says the distributer of good things) if this is true of punishment, is it not so of reward? Answer. Not it indeed. When, towards the production of effective responsibility, anything is done by means of the matter of reward, it is not by rewarding that the effect is produced, but by punishing:—not by anything that has been given to a man, but by that, whatever it be, which is taken from him; and, as to his having on a former occasion received it under the name of reward, that, as above shown, makes not, to this purpose, any the smallest difference.

True it is—the more you give to a man the more there is that, upon occasion, you can take from him again; provided always that, at the time in question, you find him in possession of it, and that you can manage so as to get at it. But, whether to effective responsibility any very advantageous addition can be made by giving a man money for no more than a chance, more or less considerable, of being able to get that same money, or a part of it, back again from him,—may be left to be imagined.

By no quantity of the matter of reward, be it ever so great, can any the smallest addition be ever made to the degree of effective responsibility producible without it—producible by punishment alone. By punishment without reward, you can make a man suffer as much pain as man’s nature is capable of suffering; and, by all the matter of reward you can give him or take from him, you cannot make him suffer any more.

What is more—by the pretended responsibility produced by the gift of money—effective responsibility, so far from being increased, is, as has been seen, diminished; diminished, and that in a degree proportionate to the opulence produced by the money.

The short reason is—that as the opulence increases, the value and efficiency of any quantity of punishment professed, or even endeavoured, to be employed in the production of punitional responsibility, is diminished: diminished, because, as opulence increases, so does the facilities of obtaining accessaries before and after the fact—of obtaining accomplices and supporters.

As in the shape of opulence, thus is it with the matter of reward in all its several other shapes: power, factitious dignity, reputation, ease in so far as compatible with the enjoyment of power—in an official situation, ease at the expense of duty, and vengeance at the expense of justice. The more in all these shapes taken together a man has of it, the more is his effective responsibility—his responsibility to the effect of his being made to suffer in proportion to his misconduct, diminished.