Front Page Titles (by Subject) CHAPTER II.: REGARD TO BE PAID TO SUBSISTING INSTITUTIONS. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER II.: REGARD TO BE PAID TO SUBSISTING INSTITUTIONS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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REGARD TO BE PAID TO SUBSISTING INSTITUTIONS.
Looking over the examples above given, we shall find reason for dividing them into two classes: the first class, consisting of those which are physical, in which the influence of the circumstance operating as a ground of variation is insurmountable: the other, consisting of those which are moral, in which that influence is not necessarily and absolutely insurmountable, however difficult, inexpedient, or unsafe, it may be to act in opposition to it.
To the first class belong the circumstances of climate and the texture of the earth, in as far as the condition of things exterior to man is determined by them.
To the other class belong the circumstances of government, religion, and manners, including the several primary circumstances, through the intervention of which these secondary ones display their efficacy.
But it may be said, that the articles of climate and texture of the earth, but particularly the former, have a certain influence over the articles of government, manners, and religion: and since it will be impossible to change the one, it will be impossible to alter the other. Hence, these physical circumstances may be found opposing insurmountable obstacles to a certain kind of legislation.
The influence of these physical circumstances is incontestible: but are they necessarily pernicious? are they not subject to the art of the legislator? The whole of history proves, that there is no circumstance connected with climate or texture of the earth incompatible with the happiness of man; and that, wherever men can live, there they may possess a government, a religion, and manners, that will render them happy. The world has been a field of change: Egypt no longer worships the goddess Isis, and India may cast off its devotion to Bramah: Italy has nourished the most warlike of people; and the effeminacy of the modern Italians cannot therefore be considered the effect of their climate: Greece has been once covered with republics, and there is therefore no reason to believe it doomed to be for ever the habitation of slaves.
Mahomet impressed upon the peaceful tribes of Arabia a warlike enthusiasm, overturning, with a handful of fanatics, the laws, the religion, the customs, the inveterate prejudices of a multitude of people. Could we suppose this extraordinary man possessing the same power of will, endowed with more knowledge and more genius, would it be too much to say, that he might have bestowed on these nations, laws more consonant with their happiness, and less hostile to the human race?
If this example be not deemed conclusive, we may turn to the example of Peter the Great. What he has not done in point of legislation, is not to be attributed to the effects of climate: this did not set the bounds to his success; he accomplished all that he designed, and if his mind had been embued with a perfect system of legislation, he would have found greater facility in its establishment, than in establishing an imperfect one. The greatest obstacles with which he met, arose from his own faults.
But there are yet more delicate and more important questions, which turn upon the suitability of the changes, and the manner of their accomplishment.
Take the form of government in the country to be regulated, and compare it with that of the standard country in any point whatsoever: that of the former is, in the point in question, either exactly upon a par with the latter, or superior to it, or inferior. That it should be superior, is scarce consistent with the supposition; for then the law of the standard country is not in that point what it is supposed to be, the best imaginable. If the former be inferior, then comes in the question, Which is likely to be the greater evil? the evil depending upon such inferiority, or the evil, if any, which might be produced by the measures requisite to remove the other? the evil of the disease, or the evil of the remedy? This question is complicated, and includes many others; the evil of the remedy is, perhaps, likely to be but temporary; while the evil of the disease, and thence the benefit of the remedy, is likely to be perpetual. Here, then, comes in another question: What portion of present comfort is it worth while to sacrifice for the sake of any, and what, chance of future benefit? and the magnitude of each being given, for what length of time is it worth while to sacrifice a present comfort of the given magnitude, to a given chance of succeeding benefit?
That, in many instances, it must be extremely difficult to ascertain, to which of these cases the expediency of a given law belongs, and that to arrive at entire certainty may be absolutely impossible, is not to be denied: but the use of breaking down the question into these subordinate questions, is not the less undeniable. It is always something to see where the difficulty lies, although it should be insuperable; and to point out the only means by which the best solution can be given, although that solution should not be so satisfactory as could be wished. It is something to get certain principles, leaving facts in the uncertainty that belongs to them. By showing the real uncertainty of the most conclusive arguments that can be offered on the subject, it will prevent us from giving to less conclusive arguments, more than their due weight: it will enable us to unravel the web of sophistry, and to humble the pride of declamation: it will be of service, in as far as the caution that accompanies a salutary doubt, is preferable to the rashness that may be the result of misconception. Such sort of instruction, indeed, brings little thanks to him who gives it: to be in doubt is to be unsatisfied; to be unsatisfied is to be uneasy. People in general had rather be decided, and in the wrong, than in the right and undecided. Declamation has here, then, as on many other topics, the advantage over argument; and a man’s chance of persuasion will be in proportion, rather to the energy of his expressions than to the justness of his views.
That even in regard to forms of government, there should be many points that are indifferent, may easily be conceived. The same may happen with respect to religion, as with respect to every thing that concerns the temporal interests of society.
It is still more evident, that the case may easily be the same with regard to manners. It may even happen, that the law which prevails in the country to be regulated, shall be better for that country than it would be in the standard country: while the law that obtains with relation to the same point in the standard country, is better for that country than it would be in the country to be regulated.
Thus, suppose that in the standard code it were found advisable that, in such part as relates to procedure, an institution somewhat similar to that at present in force in England, with relation to juries, should have place: it might happen, that in Bengal, such a plan could not in any part of it be adopted with any advantage, or that, if it could, yet, in several points, a variety of additions, defalcations, or alterations, would require to be made. Why? Because in England, in certain causes, the requisite degree of impartiality and intrepidity taken together, might with better reason be expected from juries than in a judge: whereas in Bengal, in the same causes, the same degree of those qualities taken together, might with better reason be expected from a judge than from a jury, at least if constituted in precisely the same way as in the former case. This difference, however, would depend in good measure upon a certain inferiority which at present there appears to be in Bengal, with respect to the form of government on the one hand, and the national manners on the other: insomuch, that were the time ever to come, when such inferiority should disappear, the reasons for the difference between the institutions would become less forcible, and perhaps vanish altogether. At present, it has been said, the passion of avarice has implanted among the inhabitants of English race in Bengal, two evil propensities: a propensity to practise extortion, to the prejudice of the subjected Asiatics; and a propensity to practice peculation, to the prejudice of the public revenue. Hence arises a sort of tacit convention and combination on the part of every man, to support, assist, and protect every other in the practice of the like enormities. A jury, then, if taken at hazard from the body of English inhabitants, would never convict a man of either of those offences, how manifest soever were his guilt. But a judge not having any such concerns with the natives, as could lead to the practice of extortion, nor being invested with any such trust as could give room to peculation; having the eyes of mankind fixed upon every part of his conduct, and being raised by his rank and fortune above the level of ordinary society, would have strong motives to restrain him from engaging, and no adequate motives to induce him to engage, in any such combination. So long, then, as such a state of manners continues, you must either have no laws against extortion or peculation, or no juries, or juries de medietate, composed partly of English and partly of Asiatics, if a mixture of that sort can by any set of expedients be made practicable, and eligible upon the whole. Whether the facts be as here suggested, I pretend not to inquire. I state them merely in the way of supposition, to answer the purpose of a feigned case, for which purpose their truth is altogether immaterial: it is sufficient if they have such a colour of truth as not to appear absolutely improbable.
If this be allowed, it is then not a case utterly improbable that the standard of perfection in matters of law may with regard to certain points be different in different countries, for a time at least, even where the influence of physical grounds of variation is out of the question. The case may be the same with regard to religion politically considered; but is more particularly apt to be so with regard to those ordinary and continually repeated points of behaviour, which come under the head of manners and way of life. It may be better, that in Bengal at least, among people of Asiatic race, the husbands should be disposed to expect that their wives should keep confined, and that the women should be disposed to submit to such confinement: while, in England, it may be better that the husband should not be disposed to entertain any such expectation, nor the wife to comply with it. If that be the case, there will be no reason why, by any news laws, we should seek to make an alteration in these ancient manners.
I state this again hypothetically as before. Montesquieu seems to be decided in the affirmative. “Those who read,” says he,* “of the treacheries, assassinations, poisonings, and all sorts of enormities, which the liberty of the female sex is the occasion of at Goa, and in the other settlements of the Portuguese in the Indies, where religion allows but of one wife, comparing them at the same time with the innocence and purity of manners that characterize the same sex in Turkey, Persia, the Mogul Empire, China, and Japan, will be satisfied that it is oftentimes as necessary to separate women from men, when a man has but one of them, as when he has a number.”
How the case may have stood among the Portuguese, I cannot say: but the English have also their settlements in that country; and English wives have at least as much liberty as could possibly have been enjoyed by Portuguese; yet who ever heard of any such abominations, as Montesquieu has been speaking of, among the former? If this example had occurred to Montesquieu, he would not have attributed these things to the influence of climate; and a more general view of his subject would perhaps have rendered him less dogmatic.
Thus much must be allowed at any rate, that, in order to judge of the regard that ought to be paid to subsisting institutions, these institutions must be examined. In making such an examination, there are two questions which are constantly to be kept in view: what are the present institutions relative to the point in question? and how far the expediency of giving them continuance, follows from their existence? These two questions, distinct as they are, are very often confounded. But the more these points are in danger of being confounded, the greater is the care that ought to be taken to keep them distinct: in the first place, in one’s own mind; in the next place, in the language made use of to express them. Unfortunately, nothing has been more common among writers than to confound them. Indeed, it is almost next to impossible so to turn the phrase in each case as to keep them separate: all that one can do, is to give warning of the distinction once for all. This source of misapprehension could not but occur in the course of the examples given in the last preceding chapter; but being now noticed, it is to be hoped it will be removed. I there gave them as circumstances, the influence of which required to be attended to; without meaning to determine, whether it were advisable to give way to it without reserve. There being such and such laws already subsisting, it deserves consideration, how far a new set of laws, inconsistent with them, ought to be established: there being such and such a religion and state of manners already prevailing, to which the new laws would be repugnant, it deserves consideration, how far the establishment of such laws is to be wished for. This was a question I meant, in many cases, merely to bring to view, without deciding upon it.
To show how natural it is to fall into this confusion, I will quote an instance out of Montesquieu; which, however, is but one out of a thousand. “When a country,” says he,* “is so circumstanced, that the climate of itself produces more inhabitants than the country can support, it is idle to make laws in the view of promoting population.” Here, then, he lays down a rule; immediately on the back of it, he produces three examples, for the purpose, one should naturally suppose, of justifying the rule. If the rule which he has given is conformable to his sentiments, one should think that the examples he gives of what has been done, in conformity to that rule, are so too. But in the instances I am about to mention, one can hardly imagine this to have been the case. “In China and Tonquin, a father is permitted to expose his new-born children. In China and Tonquin, again, the father is permitted to sell his daughters, though at a marriageable age. In Formosa, a woman, before she is five and thirty, is not permitted to bear children, though able and willing to support them: it being the duty of the priestess to search all women under that age who are suspected of the crime of pregnancy, and if guilty, to force an abortion, by stamping on their bodies.” How immense the distance between the policy of the rule, and the policy of the several laws which are brought to view, as if they were so many applications of the rule! Judging from the rule itself, it is folly, by turning a pleasure into a task, to render the lives of the present race uncomfortable, for the sake of giving birth to contingent beings, who would be produced without it. Judging from the first example, it is right to permit a parent to take away life from a being, who cannot suffer from the apprehension of the loss of it; and to whom, if he retained it, it would only be a burthen. Judging from the second example, it is right to permit a parent to consign his daughter, in whom education has moderated the bitterness of such a change, to the arms of a man, whom it is uncertain whether she will like. Judging from the third, a stranger is permitted or required to invade the peace of a family, to violate the person of a woman, and endanger her life, by a most cruel outrage, and all without a motive.
It is difficult to form a clear idea of what Montesquieu intended: he appears to have confounded the question of fact with the question of fitness. He has laid down a maxim, and has cited three customs, which have only a very distant connection with it; and yet he seems to have placed them all upon the same level.
[* ]Liv. xvi. ch. 11.
[* ]Chap. xvi. liv. 23.