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CHAPTER III.: RULES RESPECTING THE METHOD OF TRANSPLANTING LAWS. - 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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RULES RESPECTING THE METHOD OF TRANSPLANTING LAWS.
Of the circumstances which make the laws that would be expedient in one country ineligible in another, some are grounded in nature, some in prejudice: some depend on the state and condition of objects that are extrinsic with regard to the mind of man, some on the state and condition of the mind of man itself. The establishment of such laws as, were it not for the influence of these circumstances, would be the best, is, in the first case, impossible; in the latter, in some instances, equally impossible: in others possible, but not worth the while, considering the hazard: in some, perhaps, neither impossible nor unworth the while, supposing the business to be planned with sagacity, and conducted with the utmost tenderness and circumspection.
When attempts have been made to transplant, without revision, the laws of one country into another, and the consequences of such attempts have proved pernicious, it has been partly, indeed, because the laws were bad there, but partly also because they would have been bad any where. They were bad in the soil that gave them birth: how should they be tolerable in another? In an immense heap of rubbish, there may have been some diamonds: without attempting a separation, dirt and diamonds have been shot down together. The law is every where an immense labyrinth: to traverse its recesses, would be a tax on indolence as well as a test of talents; the severest tax that can be imposed on the one, the severest test that the other can be exposed to. It is a work of labour: this labour they never have had the courage to engage in for their own selves; how should they ever for the sake of others?
Not that the laws of barbarous nations should therefore be eternal, while those of the most civilized demand a change.
Laws need not be of the wild and spontaneous growth of the country to which they are given: prejudice and the blindest custom must be humoured; but they need not be the sole arbiters and guides. He who attacks prejudice wantonly and without necessity, and he who suffers himself to be led blindfold a slave to it, equally miss the line of reason.
Legislators who, having freed themselves from the shackles of authority, have learnt to soar above the mists of prejudice, know as well how to make laws for one country as for another: all they need is to be possessed fully of the facts; to be informed of the local situation, the climate, the bodily constitution, the manners, the legal customs, the religion, of those with whom they have to deal. These are the data they require: possessed of these data, all places are alike. If they are more at home in their own country than elsewhere, it is only because the requisite stock of facts in the former situation is already possessed by them, without their being obliged to wait the time which, in a foreign country, it would require to seek them out.
The following rules, if given for the purpose of information, would be idle; but by way of memento, they may have their use. They are chiefly a recapitulation of the preceding disquisitions:
1. No law should be changed, no usage at present prevailing should be abolished, without special reason; unless some specific assignable benefit can be shown as likely to be the result of such a change.
2. The changing of a custom repugnant to our own manners and sentiments, to one which is conformable to them, for no other reason than such repugnancy or conformity, is not to be reputed as a benefit. The satisfaction is for one, or a small number; the pain is for all, or a great number: the first and sufficient reason. Besides, where shall these changes founded in caprice be stopped. If my taste is a sufficient reason for me, an opposite taste may be as sufficient a reason for another. The emperor who would proscribe one letter of the alphabet, should recollect that his successor may determine to restore it: Queen Elizabeth, who was so anxious about the dress of the clergy, should have remembered that it might as easily be altered in the following reign.*
3. In all matters of indifference, let the political sanction remain neuter, and let the authority of the moral sanction take its course.
The only difficulty lies in ascertaining what is, and what is not indifferent. Here the great use of a complete catalogue of pains and pleasures appears: it furnishes the only elements for the solution of this difficulty. If there result from an action, an evil, neither of the first nor second order, it belongs to the class of things indifferent.†
When it was sought to engage Frederic the Great in the question, which then agitated the town of Neufchatel, respecting the eternity of punishment, he replied, that if the Neufchatelans were pleased with being damned eternally, he did not wish to deprive them of the satisfaction.
4. The easiest innovation to introduce, is that which is effected merely by refusing to a coercive custom the sanction of the law; especially where the coercion imposed upon one party, is not attended with profit to another.
In Catholic countries, it is sufficient for the destruction of all that is injurious to liberty, in convents, &c. to refuse the sanction of the laws to monastic vows.
In India, the wife often resolved to burn herself upon the death of her husband: if the act were altogether voluntary, and she were persuaded she should find her account in it, it might be represented as tyrannical to oppose her; but such permission should not be granted till after she had undergone an examination, and the fact of her consent were indubitably ascertained.
5. The clear utility of the law will be as its abstract utility, deduction made of the dissatisfaction and other inconvenience occasioned by it. Hot-headed innovators, full of their own notions, only pay attention to abstract advantage. They reckon discontent for nothing: their impatience to enjoy, is the greatest obstacle to their success. This was the great error of Joseph II. The greater part of the changes he proposed were good abstractedly; but as he had not considered the dispositions of the people, he rendered his best designs abortive by his imprudence. How often are men the dupe of words! What is the public good, but the happiness and contentment of the public?
6. The value of dissatisfaction will be in the compound ratio of three things:
These are the bases of calculation, if we would operate with success: the smaller the number of the discontented, the greater the chance of success; but this is not a reason for employing less humanity in the manner of treating them. If only one person were rendered unhappy by the change, he would yet be worthy of the notice of the legislator, who ought at least to free his measures from insult and contempt, to create new hopes, to collect those which revive, and to publish amnesties for the past. Really useful changes possess a fund of reason, which will tend at all times to produce a conviction of their utility.
Every species of dissatisfaction should be relieved by its particular remedy. A pecuniary loss requires pecuniary compensation: a loss of power may be compensated either by an indemnity in money or in honour. Dissappointed expectation may be softened by those arrangements which open a new career to hope.
7. As a means of obviating dissatisfaction, indirect legislation should be preferred to direct; gentle means, to violent: example, instruction, and exhortation should precede, or follow, or, if possible, stand in the place of law.
Ought inoculation to have been established by law? No, without doubt. Even supposing it had been possible, the effect would have been dreadful: it would have carried alarm and dismay into a multitude of families. The practice, however, has become universal in England, from the force of example and public discussion alone.
Catherine II. was very skilful in the art of ruling minds. She did not make laws obliging the Russian nobility to enter the military service, which they disliked; but by determining all their ranks, by fixing all precedencies even among civilians, according to the grades in the army, she combated their indolence by their vanity; and the nobles of the most distant provinces sought to obtain the new distinctions, that they might not be superseded by those whom they had hitherto esteemed beneath them.
8. In choosing, among many laws, which shall be introduced first, select that which, being established, will facilitate the introduction of the others.
9. The slowness of its operation is, as far as it goes, an objection to a measure; but if this slowness may be a means of obviating a dissatisfaction, which expeditious measures would excite, the former may be preferable.
When the prejudices of the people are violent and obstinate, the legislator is in great danger of running into extremes. One extreme is, to take fire at the prejudice, and resolve upon its extirpation, without weighing the good and bad effects of such a measure in the balance of utility: the other is to suffer these prejudices to be made use of, as a pretext for that indolence and pusillanimity which would leave the evil without remedy.
These prejudices have generally some salvo for good government and good morals. It is the province of the legislator to find out this salvo, if there be one, and make use of it; and, in the mean time, if it be worth while, to try what instruction and other gentle means will do, towards getting the better of the prejudice.
It was in this manner, as has been observed by Rousscau,* that Francis I. overthrew the employment of seconds in duels: “Quant à ceux, dit il, qui aurant la lâcheté d’employer des seconds, &c.” He opposed honour to honour; and as the individuals fought to prove their courage, no one dared to call in those auxiliaries, whose assistance was thus marked as throwing a suspicion upon that courage itself.
But if nothing of the kind will do, and it be found impossible to untie the gordian knot, it must e’en be cut. The welfare of all must not be sacrificed to the obstinacy of a few, nor the happiness of ages to the quiet of a day.
Prejudices that appear unsurmountable at first view, may be got over with a little management.
Among the inhabitants of Hindostan, a man of a certain rank would think himself eternally dishonoured, were he obliged to make his appearance in a court of justice. What does that signify? Persons of that description are always rich: send a special commission to examine them, and make them pay the expense.
Among the Hindoos, persons of a certain rank would sooner submit to any inconvenience than take an oath. What does that signify? Persons of that description may as well be trusted upon their word, as others upon their oath. Do they say what is not true? It is as easy to punish them for simple falsehood, as to punish others for perjury. Do not Quakers among us depose upon their affirmation? and do not Peers, in certain cases, affirm upon their honour?
Neither Mahometans nor Gentoos can bear that any officer of justice, any more than any other person of the male sex, should visit the apartments, much less the persons, of their women. Justice, on this account, is not worth purchasing at such a price. What does that signify? Appoint women to the office.
An Englishwoman would cry out, and with equal justice, against the tyranny of subjecting her person to the brutal inquisitiveness of male examiners. How many Englishwomen, deriving protection against such treatment, from the odium which it would excite, return from Calais to Dover swaddled up with lace like Egyptian mummies? But is it absosolutely necessary, because female delicacy is not to be violated, that the public should be defrauded? that modesty should be turned into a cloak for avarice? Either the payment of a tax upon these luxuries ought not to be commanded, or the non-payment ought not to go unpunished.
Among the various castes or tribes of the Hindoos, there is one of which the members are called Decoits. To these Decoits, Brama has revealed, that it is proper they should steal every thing they can lay their hands on, and, if necessary, rob and murder every body that comes in their way. What is to be done with them? Are they, out of respect to their conscience, to be permitted to labour in this their vocation? No, verily; for if it was the pleasure of Brama that these people should apply their industry to robbery, it was also the pleasure of Brama that they should bear the consequences of the industry, that shall have been employed by honest men to save themselves from being robbed.
In another country in Asia, it is reported that there lived a tribe of people, from whom the word assassin has its name. If one of these were commanded by their chief (who found frequent occasion to issue such commands) to go and cut the throat of any one he named, obedience was sure to follow. The terror of this titled murderer spread far and near: kings were not safe upon their thrones. But at last a Tartar chief found means to apply the only remedy that probably occurred to him against such a public pestilence, possibly the only one it admitted of; and the whole race was exterminated by him.
Mr. Hastings, in considering how to deal with the Decoits, recommends a milder, yet not less effectual remedy: let the men and their families, says he, be made slaves: domestic slavery, considered as a punishment, has little severity in it (as Montesquieu already had observed) in a country where political freedom is unknown: as a preventive remedy, nothing could be more effectual.
Montesquieu* says, that in changing customs and manners, customs and manners only should be employed, not laws. Why? Because, says he, laws are the particular institutions of the legislator; customs and manners, those of the nation in general. The maxim itself has some truth in it: but the reason is good for nothing. For what act or what habit is it, that a law can be made against, and that might not be the act of the nation in general, were it not for the law? To understand what there is of truth in the maxim, and what are the true reasons of it, let us turn to his example: for without his examples, one should seldom know what to make of his rules.
Peter the Great made a law, obliging the Russians to cut off their beards, and wear their clothes short like Europeans; and to enforce it, he posted guards in the streets, to cut off the skirts of all such coats as should be found longer than the standard. The measure, says Montesquieu, was tyrannical: the change which he wanted to bring about, he should have effected, not by making a law, but by setting an example.
In the making of this law, his object was either to gratify his own taste merely, by putting the people into a dress he liked to see, instead of one he did not like to see; or it was to polish them, that is, to bring the national character as near as he could to the European, which he looked upon as better calculated to make them happy. The latter supposition is the more probable, as well as the more honourable; and it is that in which Montesquieu himself seems disposed to acquiesce. In the former supposition, the law being a coercive one, was improper; the punishment annexed to it, and the hardship produced by it, being groundless: and the law may well indeed be styled what Montesquieu styles it, tyrannical. On the other supposition, it was a measure of indirect legislation, levelled at all those mischievous points of behaviour, to which he imagined his subjects would be the less prone, were they to take the maxims of Europeans for their model. The proposed change being effected, he might then thus say to the people that were about him: Ye are Europeans: this is now a European country; see, every thing about you is European: look even at the common people; their countenances, their dresses are European: ye yourselves are European; behave yourselves, then, like Europeans: ye are European husbands; treat your wives, then, as European gentlemen treat theirs; ye are European landlords; treat your vassals, then as European gentlemen treat their tenants: ye are European gentlemen: think it, then, as great a disgrace for any of you to be seen drunk, as it is for an European gentleman: ye are European gentlemen; betake yourselves, then, to the profitable studies, the innocent and elegant amusements, of European gentlemen. Much more might he have added in the same strain.
Could he have effected the desired change of character, without effecting this change in dress? could he have effected the change in dress, merely by dressing himself as he wished to see his subjects dress, or by other means less coercive than this law? In either of these cases, the law and the hardship attendant upon it was not useless indeed, as Montesquieu calls it (inutile), but, however, needless. Was the benefit attendant upon the proposed change of manners, or rather of so much of that change as was owing solely to the change of dress, worth the purchasing at the expense of all that hardship? If not, the law was then unprofitable. Such is the slow and minute, but sure and satisfactory, method of estimating the tendency of a law upon the principle of utility.
In all such matters, the cautious statesman will avoid the tone of peremptoriness and decision: his conclusions will always, in the first instance, be hypothetical. If such and such events are the likeliest to take place: But are they? This is a matter which ought to be stated as accompanied with the degree of uncertainty that belongs to it. Beware of those who, by the vehemence of their assertions, by the confidence of their predictions, make up for the weakness of their reasons.
Whatever degree of advantage the law in question was calculated to produce, the price paid for that benefit must be acknowledged to have been a high one: the observances prescribed being constant and habitual, the idea of compulsion would be incessantly before their eyes; and this compulsion could not but appear tyrannical, as it would seem to be imposed, either for no reason at all, or for a reason which would seem worse than none.
The British parliament, in 1745, made a law to compel the Scottish Highlanders to lay aside their national costume. The design of this law was political: the people were strongly attached to this ensign of distinction, and regarded with contempt the inhabitants of the Low country, who had long since adopted the English dress.
The Pretender, by exhibiting himself among them, dressed in the ancient costume, had charmed these mountaineers; and they followed his standard in crowds. After the rebellion was quelled, it was wished that this national garb, which recalled old ideas, and served as the signal of a party, should disappear: but this act, which incessantly called up the idea of restraint, was unsuccessful, and only served to recall what it was desired should be forgotten. After half a century of experience, its inutility and danger have been perceived, and this tyrannical law has been repealed; and England has no soldiers more faithful or more intrepid than these mountaineers, whose energy would most probably have been destroyed, if their ancient customs had unfortunately been overcome by force.
The general result of these rules is, that the legislator, in producing great changes, ought to be calm, collected, and temperate in well-doing: he ought to fear to enkindle the passions, and to excite an opposition which may irritate even himself. If it is possible, he ought never to drive his enemies to despair; but, surrounding his labours with a triple rampart of confidence, enjoyment, and hope, to spare, to conciliate, to provide for all interests; indemnifying those that lose, and making an alliance, so to speak, with time, the true auxiliary of all useful changes, the chemist which amalgamates contraries, dissolves obstacles, and unites discordant parties. When he possesses real strength, it is not necessary that he should exert it, that it may be perceived: while it is only half discovered, he is sure of success: every one knows his own interest consists in joining as speedily as possible with the strongest party; and none will join in useless resistance, unless their self-love has been wounded.
[* ]Dr Hunter used to relate the anecdote of a surgeon, who having to operate on a fractured hand, and having cut off four fingers, afterwards cut off the fifth, which was uninjured. Hunter asked his reason for so doing. “Because,” said he, “if this little finger had been left, it would have looked ridiculous.” This anecdote may serve as an apologue for many operators in legislation.
[† ]Introduction to Morals and Legislation, ch. xii. [Consequences of a Mischievous Act.]
[* ]Lettre a D’Alembert sur les Spectacles.
[* ]Esprit des Lois.