Front Page Titles (by Subject) INTRODUCTION. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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INTRODUCTION. - 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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In all sciences, there are some branches which have been cultivated more slowly than others, because they have required a longer train of observations, and more profound reflection. Thus, in mathematics, one part is called transcendental, or sublime, because, so to speak, it is a new science, beyond the ordinary science.
The same distinction might, at a certain point, be applied to legislation. Some actions are hurtful: what ought to be done to prevent them? The first reply which presents itself to all the world is—Prohibit such actions; punish them. This method of combating offences is the most simple, and the first adopted; and every other method of attaining the same end is a refinement in art, and, so to speak, its transcendental part.
This part consists in providing a train of legislative proceedings for the prevention of offences, by acting principally upon the inclinations of individuals, for the purpose of diverting them from evil, and impressing on them the direction most useful to themselves and others.
The first method of combating offences, by punishments, constitutes direct legislation.
The second method of combating them, by means which prevent them, constitutes what may be called the indirect branch of legislation.
Thus the sovereign acts directly against offences, when he prohibits each one separately, under pain of special punishment: he acts indirectly, when he takes precautions to prevent them.
In direct legislation, the evil is attacked in front: in indirect legislation, it is attacked by oblique methods. In the first case, the legislator declares open war with the enemy: he hoists his signals, he pursues, he fights hand to hand with him, and mounts his batteries in his presence, in open day. In the second case, he does not announce his designs: he opens his mines, he consults his spies; he seeks to prevent hostile designs, and to keep in alliance with himself those who might have secret intentions hostile to him.
Political speculators have perceived all this; but in speaking of this second branch of legislation, they have not clearly expressed their ideas: the former has long since been reduced to system; the second has never been analyzed: no one has thought of treating it methodically, of classifying it,—in a word, of considering it as a whole. It is still a new subject.
Writers who have formed political romances tolerate direct legislation: it is the last resource to which they apply, and of which they never speak with a very lively interest. On the contrary, when they speak of the means of preventing offences—of rendering men better—of improving their manners—their imagination kindles, their hopes brighten, they believe that they are about to effect a great work, and that the condition of the human race is about to receive a new form. This arises from the habit of thinking every thing magnificent in proportion as it is unknown, and because upon such vague subjects the imagination has greater scope than upon those which have long been submitted to the yoke of analysis. Major e longinquo reverentiâ. This saying is equally applicable to thoughts and persons. A detailed examination will reduce all these undefined hopes to their just dimensions of what is possible; but if we lose some fictitious treasures, we shall be well indemnified by ascertaining the real extent of our resources.
In order clearly to ascertain what belongs to these two branches, it is necessary to begin by forming a just idea of direct legislation.
We should proceed in the following manner:—
1. To determine what acts ought to be considered as crimes.
2. To describe each crime: as murder, theft, peculation, &c.
3. To exhibit the reasons for attributing to these acts the quality of crimes—reasons which ought to be deduced from a single principle, and consequently which should agree among themselves.
4. To set apart a sufficient punishment for each crime.
5. To exhibit the reasons which serve to justify this punishment.
This penal system, if it were the best possible, would be defective in many respects:
1. It would require that the evil had existed, before the remedy could be applied. The remedy consists in the application of punishment; and punishment can only be inflicted after the crime is committed. Each fresh instance of the infliction of punishment is another proof of its inefficiency, and allows a certain degree of danger and alarm to subsist.
2. The punishment itself is an evil, although necessary for the prevention of a greater evil. Penal justice, throughout the whole course of its operation, can only be a train of evils—evils in the threats and constraint of the law—evils in the pursuit of the accused, before the innocent can be distinguished from the guilty—evils in the infliction of judicial sentences—evils in the inevitable consequences which reverberate upon the innocent.
3. In short, the penal system has not sufficient hold upon many mischievous acts which escape from justice—sometimes from their frequency, sometimes from the facility with which they are concealed—sometimes from the difficulty of defining them—sometimes from a wrong direction in public opinion, which screens them. Penal law can only act within certain limits, and its power only extends to palpable acts, susceptible of manifest proofs.
This imperfection of the penal system has induced a search after new expedients for supplying what is wanting. These expedients have for their object the prevention of crimes,—sometimes by taking away even the knowledge of evil—sometimes by taking away the power or the will to do evil.
The most numerous class of these means is connected with the art of directing the inclinations, by weakening the seductive motives which excite to evil, and by fortifying the tutelary motives which excite to good.
Indirect methods, then, are those which, without having the characters of punishment, act either physically or morally upon the man, in order to dispose him to obey the laws—to remove from him temptations to crimes, and govern him by his inclinations and his knowledge.
These indirect methods have not only great advantage in point of gentleness; they also often succeed when direct methods fail. All modern historians have remarked how much the abuses of the Roman Catholic Church have been diminished since the establishment of Protestantism. What popes and councils could not effect by their decrees, a happy rivalry has effected without trouble: they have feared to give occasion of scandal, which should become a subject for triumph to their enemies. Hence, this indirect method, the free competition of religions, has had greater force in restraining and reforming them, than all their positive laws.
We may take another example from political economy. It has been considered desirable that the prices of merchandise, and especially that the interest of money, should be low. High prices, it is true, are only an evil, by comparison with the good of which they hinder the enjoyment; but such as it is, there has been a reason for seeking to diminish them. In what manner has it been attempted? a multitude of regulations have been established—a fixed rate—a legal interest; and what has happened? The regulations have been eluded—punishments have been increased—and the evil, instead of being diminished, has increased also. There is no efficacy but in an indirect method, of which few governments have had the wisdom to make use. To leave a free course for the competition of all merchants, of all capitalists—to trust, instead of making war upon them—to allow them to supplant each other—to invite the buyers to themselves by the most advantageous offers:—such is the method. Free competition is equivalent to a reward granted to those who furnish the best goods at the lowest price. It offers an immediate and natural reward, which a crowd of rivals flatter themselves that they shall obtain, and acts with greater efficacy than a distant punishment, from which each one may hope to escape.
Before entering upon an exhibition of these indirect methods, I ought to acknowledge that the manner of their classification is a little arbitrary, so that several might be ranged under different heads. In order invariably to distinguish them from each other, an exceedingly subtle and fatiguing metaphysical analysis would be required. It is sufficient for the object in view, if all the indirect methods may be placed under one or other of these heads, and if the attention of the legislator be awakened to the principal sources from which they may be drawn.
I only add one preliminary remark, but it is an essential one. In the variety of measures about to be exhibited, there is not one that can be recommended as suitable to each government in particular, and still less to all in general. The special advantage of each measure, considered by itself, will be indicated under its title, but each may have relative inconveniences, which it is impossible to determine, without a knowledge of particular circumstances. It ought, therefore, to be well understood, that the object in view is, not to propose the adoption of any given measure, but solely to exhibit it to the view, and recommend it to the attention, of those who may be able to judge of its fitness.