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(A): Benthamite Ideas as to the Reform of the Law - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) 
Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).
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Benthamite Ideas as to the Reform of the Law
Bentham considered exclusively as a reformer of the law of England achieved two ends.
He determined, in the first place, the principles on which reform should be based.
He determined, in the second place, the method, i.e. the mode of legislation, by which, in England, reform should be carried out.
As to the Principles14 of Law Reform. The ideas which underlie the Benthamite or individualistic scheme of reform may conveniently be summarised under three leading principles and two corollaries.
Legislation is a Science.
English law, as it existed at the end of the eighteenth century, had in truth developed almost haphazard, as the result of customs or modes of thought which had prevailed at different periods. The laws actually in existence had certainly not been enacted with a view to any one guiding principle. They had, indeed, for the most part never been “enacted” (in the strict sense of that word) at all. They were, as they still indeed to a great extent are, the result of judicial legislation built up in the course of deciding particular cases. English law had in fact grown, rather than been made, and the language used by Paley with regard to the constitution might, with the change of one word, be applied to the whole law of England.
The [law] of England, like that of most countries in Europe, hath grown out of occasion and emergency; from the fluctuating policy of different ages; from the contentions, successes, interests, and opportunities of different orders and parties of men in the community. It resembles one of those old mansions, which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs suited to the taste, fortune, or conveniency of its successive proprietors. In such a building we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the beholder than the accommodation of the inhabitant.15
But Bentham saw clearly several facts which Paley failed to recognise. The revered mansion was not only antiquated, but in many respects so unsuited to the requirements of the times, that it was to its numerous inhabitants the cause not only of discomfort but even of misery. In order to amend the fabric of the law we must, he insisted, lay down a plan grounded on fixed principles; in many instances not amendment but reconstruction was a necessity; and even gradual improvements, if they were to attain their object, must be made in accordance with fixed rules of art. Legislation, in short, he proclaimed is a science based on the characteristics of human nature, and the art of law-making, if it is to be successful, must be the application of legislative principles. Of these ideas Bentham was not the discoverer but the teacher; he may be described as the prophet who forced the faith in scientific legislation upon the attention of a generation of Englishmen by whom its truth or importance was denied or forgotten.
The right aim of legislation is the carrying out of the principle of utility, or, in other words, the proper end of every law is the promotion of the greatest happiness of the greatest number.
This principle, obtained as we have seen from Priestley, is the formula with which popular memory has most closely connected the name of Bentham.
With the objections to which the principle of utility is open, either as a standard or as a source of morality, any person at all interested in ethical discussions is now well acquainted. In these lectures we are concerned with the utilitarian dogma as an axiom not of morals but of legislation, and one may with confidence assert that the principle of utility is far more easily applicable to law than to morals, and this for at least two reasons:
First. Legislation deals with numbers and with whole classes of men; morality deals with individuals. Now it is obviously easier to determine what are the things which as a general rule constitute, or rather promote, the happiness or well-being of a large number of persons, or of a State, than to form even a conjecture as to what may constitute the happiness of an individual. To ensure the happiness of a single man or woman even for a day is a task impossible of achievement; for the problem wherein may lie the happiness of one human being is, though narrow, so infinitely complex that it admits not of solution. To determine, on the other hand, the general conditions which conduce to the prosperity of the millions who make up a State is a comparatively simple matter. Let it be noted, also, that whilst ethical maxims may aim at directly benefiting or ensuring the welfare of individuals, a law never attempts more than the production of a state of things favourable to the welfare of the citizens of a State. When it is said, in accordance with Benthamite phraseology, that a good law is a law productive of the greatest happiness of the greatest number, what is meant is not that a law really makes men happy, but that it favours the existence of the conditions under which it is likely that the persons subject to it may prosper, and obtain the happiness open to human beings. But here we come across another distinction.
Secondly. Law is concerned primarily with external actions, and is only in a very secondary and indirect manner concerned with motives. Morality, on the other hand, is primarily concerned with motives and feelings, and only secondarily and indirectly with actions. But it is far easier to maintain that the principle of utility is the proper standard or criterion of right action than that it supplies the foundation, or, at any rate, the whole of the foundation, on which rests the conviction that one feeling or motive is right and another wrong.
However this may be, the generality and the externality of law are the circumstances which enable us to test the goodness or the badness, the wisdom or the folly, of a given law by the criterion of utility. Indeed, if once the meaning of this standard be understood, it is hard to see how any one can deny its applicability, without involving himself in something like absurdity or self-contradiction. How can it be maintained that a law which on the whole increases human happiness is a bad law, or that a law which on the whole diminishes it is a good law? But if these questions supply their own answer, the principle of utility is admitted to be a good test, as far as it goes, of the character of a law; and half the plausibilities by which during the age of Blackstone the anomalies or absurdities of English law were defended turn out, when submitted to Bentham’s criterion, to be nothing better than hollow fallacies.
Ideas of happiness, it has been objected, vary in different ages, in different countries, and among different classes or races; a legislator therefore gains no real guidance from the dogma that laws should aim at promoting the greatest happiness of the greatest number.
To this objection, which assumes many different forms, there exist at least two answers.
The first is that, even if the variability of men’s conceptions of happiness be admitted, the concession proves no more than that the application of the principle of utility is conditioned by the ideas of human welfare which prevail at a given time in a given country. Nor, in truth, is there any reason why a convinced utilitarian should refuse to accept this conclusion. It embodies a principle of practical importance. In legislating for any country we must take into account the habits, the feelings, or the prejudices, of its inhabitants, and allow for their ideas of what constitutes happiness. Freedom of testamentary disposition is a right or a privilege which few Englishmen desire to surrender. The compulsory division into more or less equal shares of a deceased person’s property among his heirs is a fundamental principle of the law of France, and one which receives the approval of the French people. But testamentary freedom and the equal division of a deceased person’s property are at bottom inconsistent institutions. Must we therefore say that one or other of them is bad—i.e. is opposed to the principle of utility? Surely not. The reply both of good sense and of sound logic is that the law supporting testamentary freedom may be a good law for Englishmen, and the law supporting the equal division of a dead man’s property may be a good law for Frenchmen. Each law may promote the happiness of the people among whom it exists; the reason is that Englishmen and Frenchmen form in this matter different conceptions of happiness.
The second reply is that, as regards the conditions of public prosperity, the citizens of civilised states have, in modern times, reached a large amount of agreement. Who can seriously doubt—whatever be the idle contentions of paradox-mongers—that a plentiful supply of cheap food, efficient legal protection against violence or fraud, and the freedom of all classes from excessive labour conduce to the public welfare? What man out of Bedlam ever dreamed that a country was the happier for the constant recurrence of pestilence, famine, and war; but who then can deny that laws which promote the cultivation of the soil, ensure the public health, keep the country at peace, and avert invasion, are, as far as they go, good laws? To all these and similar questions the inhabitants of every country which enjoys European civilisation will give one and the same reply. Their general agreement, indeed, goes much further than this. Nowhere is it doubted by men of average intelligence that the reintroduction of torture or the re-establishment of slavery would be the gravest of calamities. We all have learned by this time that every kind of punishment which causes more pain than it averts is an evil. We all admit that the due and regular administration of justice, the promotion of education, the opening of various careers to the majority of the people, the extension of the innocent enjoyments of life among all classes, promote human happiness, and that laws which confer these benefits are good laws. In matters of legislation, in short, subtle refinements as to the nature of happiness are misplaced. The homely saying, that you ought not to weigh butcher’s meat in diamond scales, has a practical weight which is overlooked by paradoxical thinkers. Laws deal with very ordinary matters, and deal with them in a rough and ready manner. The character therefore of a law may well be tested by the rough criterion embodied in the doctrine of utility.
There exists, however, a good reason for examining with care an objection to which it is easy to supply conclusive answers. Bentham and his disciples have displayed a tendency to underestimate the diversity between human beings. Hence they have too easily supposed that the ideas of happiness prevailing at a given time throughout the civilised countries of Europe were entirely uniform; and have fallen into the further error of assuming that the same notion of happiness prevails in all countries, and has more or less prevailed in all ages. This supposition facilitates legislation, but, like all assumptions which are not strictly true, has led both to speculative and to practical mistakes. The weakness of the Benthamites as legislators has been, not their devotion to the principle of utility, but their feeling that laws which in the nineteenth century promoted the happiness of Englishmen must, with rare exceptions, promote at all times the happiness of the inhabitants of all countries.16
The foundation then of legislative utilitarianism is the combination of two convictions. The one is the belief that the end of human existence is the attainment of happiness,17 or in other words, faith in the principle of utility; the other is the assurance that legislation is a science and that the aim of laws is the promotion of human happiness. Neither of these convictions entertained separately will make a man a legislative utilitarian.
A person may be a strict utilitarian and hold that the attainment of happiness is the true end and object of existence, yet if he does not believe that law may do much to produce human happiness, or fails to perceive that law is a science, he will hardly concern himself with the systematic reform of the law. A man, again, who believes that good legislation is conducive to human prosperity, will hardly be a successful law reformer if he does not grasp the connection between legislation and the principle of utility.
Samuel Johnson was in morals a thorough-going utilitarian,18 but he never displayed the remotest interest in the amendment of the laws of England. His nature was conservative, his turn of character, no less than his religious convictions, made him consider as slight the influence of laws on the happiness of mankind.
Paley19 stands in spirit nearer to Bentham. His theology and his moral philosophy are avowedly utilitarian. His writings betray a keen interest in legal problems. He possessed the intellect of an enlightened lawyer. But he probably did not believe that law could be treated as a science; he either had not grasped, or did not care to work out, the idea that the laws of England might be systematically remodelled so as to promote the greatest happiness of the greatest number of Englishmen. His philosophy, utilitarian though it was, is, in so far as he applied it to law, an ingenious defence of things as they stood in 1786. He is neither an innovator nor a reformer, but like Blackstone an apologist.
A man, on the other hand, may have a fervent belief that the laws of a country are radically wrong and may be prepared to advocate their change even at the cost of violence. If, however, he is guided by some idea of abstract right,20 as a thing independent of utility, he may, like Rousseau, popularise ideas which kindle a revolution, but he will hardly become a systematic law reformer. He is not possessed of any definite criterion by which to test the merits or defects of a law; he may perceive that things are wrong; he cannot perceive, as Bentham and his disciples saw, or thought they saw, a definite principle by the application whereof bad laws might in every case be either got rid of or amended. For utilitarianism in the field of legislation, whatever the speculative objections—and they are not small—which lie against it in the sphere of ethics, has one saving virtue. It directs a legislator’s attention to the consequences of any proposed enactment. An innovator who recommends or denounces a law or institution, because of its conformity or opposition to the law of nature or the moral instincts of mankind, is under the greatest temptation to make his own feelings the test of expediency, and is certainly less inclined than a Benthamite, to weigh the actual or probable effects of legislation; and if it be objected that zealots for the law of nature have often advocated or carried out beneficial changes, the best reply is, that the law of nature has often been a name for the dictates of obvious expediency. The privileges, for example, of the nobles under the Ancien Régime were in 1789 palpably opposed to the welfare of the French people. Bentham would have said that they were opposed to the principle of utility. A French reformer would have alleged that they were opposed to the law of nature. But this difference of language was at bottom little more than a different way of describing one and the same fact, viz., that the welfare of France required the establishment of equal civil rights among Frenchmen. Towards the close, indeed, of the eighteenth century, appeals to the doctrine of utility, and appeals to the law of nature were often in reality, though not in words, appeals to one and the same principle. The failure to perceive this led to some strange results. Bentham sometimes came into conflict with men who in reality shared his principles. He dissected with merciless severity the patent fallacies contained in the American Declaration of Independence, with its enumeration as self-evident truths of the dogmas that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are to be found the right to life, liberty, and the pursuit of happiness. To Bentham all these abstract statements of innate rights were as hateful as to Burke; they presented themselves to his mind as a mere “hodge-podge of confusion and absurdity.”21 But the American Declaration of Independence did, nevertheless, though in a form open to every logical objection, embody that faith in laissez faire which was in practice the most potent and vital principle of Benthamite reform.
Every person is in the main and as a general rule the best judge of his own happiness. Hence legislation should aim at the removal of all those restrictions on the free action of an individual which are not necessary for securing the like freedom on the part of his neighbours.22
This dogma of laissez faire is not from a logical point of view an essential article of the utilitarian creed. A benevolent despot of high intelligence, while admitting that the proper end of scientific legislation is to promote the greatest happiness of the greatest number, might contend that the mass of his people, owing to ignorance and prejudice, did not understand their own interests, and might go on to maintain and act on the principle, that as his subjects were neither the best judges of the conditions which constituted happiness, nor understood the means by which these conditions were to be attained, it was his duty to enforce upon them laws which, though they might diminish individual liberty, were likely nevertheless to ensure the well-being of his people. This position is not in itself illogical;23 it was held by the benevolent despots of the eighteenth century, and would have commended itself to so acute a thinker as Voltaire, for we may assume with confidence that he would not have condemned a ruler who by severe legislation overthrew the reign of superstition or intolerance. But, though laissez faire is not an essential part of utilitarianism it was practically the most vital part of Bentham’s legislative doctrine, and in England gave to the movement for the reform of the law, both its power and its character. At the time when Bentham became the preacher of legislative utilitarianism the English people were proud of their freedom, and it was the fashion to assert, that under the English constitution no restraint, which was not requisite for the maintenance of public order, was placed on individual liberty. Bentham saw through this cant, and perceived the undeniable truth, that, under a system of ancient customs modified by haphazard legislation, unnumbered restraints were placed on the action of individuals, and restraints which were in no sense necessary for the safety and good order of the community at large, and he inferred at once that these restraints were evils. Consider for a moment but one fragment of the Benthamite dialogue between Mr. Justice Ashurst (whose charge sums up the platitudes of toryism) and Truth, the defender of human liberty.
Ashurst.The law of this country only lays such restraints on the actions of individuals as are necessary for the safety and good order of the community at large.
Truth. I sow corn: partridges eat it, and if I attempt to defend it against the partridges, I am fined or sent to gaol: all this, for fear a great man, who is above sowing corn, should be in want of partridges.
The trade I was born to is overstocked: hands are wanting in another. If I offer to work at that other, I may be sent to gaol for it. Why? Because I have not been working at it as an apprentice for seven years. What’s the consequence? That, as there is no work for me in my original trade, I must either come upon the parish or starve.
There is no employment for me in my own parish: there is abundance in the next. Yet if I offer to go there, I am driven away. Why? Because I might become unable to work one of these days, and so I must not work while I am able. I am thrown upon one parish now, for fear I should fall upon another, forty or fifty years hence. At this rate how is work ever to get done? If a man is not poor, he won’t work: and if he is poor, the laws won’t let him. How then is it that so much is done as is done? As pockets are picked—by stealth, and because the law is so wicked that it is only here and there that a man can be found wicked enough to think of executing it.
Pray, Mr. Justice, how is the community you speak of the better for any of these restraints? and where is the necessity of them? and how is safety strengthened or good order benefited by them?
But these are three out of this thousand: not one of them exists in France.24
Here we have Bentham’s denunciation of the needless restraints imposed in 1823 upon individual activity. It may be termed the eulogy of laissez faire, but laissez faire, be it noted, was with Bentham and his disciples a totally different thing from easy acquiescence in the existing conditions of life. It was a war-cry. It sounded the attack upon every restriction, not justifiable by some definite and assignable reason of utility, upon the freedom of human existence and the development of individual character. Bentham assaulted restraints imposed by definite laws. John Mill carried the war a step further, and, in his treatise On Liberty, denounced restraints on the action of individuals imposed by social habits or conventions. This struggle for personal liberty, which means much more than mere resistance to obvious oppression, such as could be guarded against by the Habeas Corpus Act, gave to early Benthamism its whole spirit and life as a militant creed.
From these three guiding principles of legislative utilitarianism—the scientific character of sound legislation, the principle of utility, faith in laissez faire—English individualists have in practice deduced the two corollaries, that the law ought to extend the sphere and enforce the obligation of contract, and that, as regards the possession of political power, every man ought to count for one and no man ought to count for more than one. Each of these ideas has been constantly entertained by men who have never reduced it to a formula or carried it out to its full logical result; each of these ideas has profoundly influenced modern legislation; each deserves separate attention.25
(i.) The Extension of the Sphere of Contract. Once admit that A, B, or C can each, as a rule, judge more correctly than can any one else of his own interest, and the conclusion naturally follows that, in the absence of force or fraud, A and B ought to be allowed to bind themselves to one another by any agreement which they each choose to make—i.e. which in the view of each of them promotes his own interest, or, in other words, is conducive to his own happiness.
From one point of view, indeed, a contract between A and B whereby, for example, A agrees to sell and B to buy a horse for £20, places a limit upon the freedom of each of them, since A comes under a legal compulsion to sell, and B comes under a legal compulsion to pay for the horse; but, if the matter be fairly considered, it is easily seen that freedom of contract is an extension of an individual’s power to do what he likes, i.e. of his freedom. As both A and B are at full liberty not to enter into a contract at all, it must be assumed that, at the moment of contracting, A wishes to have £20 instead of the horse, and B wishes to have the horse at the price of £20. For the law to give effect to the agreement by which this result is attained, as also to more complicated contractual engagements, is nothing else than an extension of each individual’s power to get what he wants.26
To these abstract grounds for extending contractual freedom add the consideration that the substitution of relations founded on contract for relations founded on status was for individualists generally,27 and especially for Benthamite liberals, the readiest mode of abolishing a whole body of antiquated institutions, which presented, during the eighteenth century, a serious obstacle to the harmonious development of society. Hence individualistic reformers opposed anything which shook the obligation of contracts, or, what at bottom is the same thing, limited the contractual freedom of individuals. It is no accident that Bentham very early in his career assailed the usury laws, or that freedom of trade in money, in goods, and in labour, has been the watchword of the statesmen who in their policy and their legislation have most closely followed the footsteps of Bentham. To individualism, again, is assuredly due that legalisation of divorce, which is itself a mere extension of the area of contractual freedom.
The very zeal, however, for freedom of contract, which is a note of individualism, raises questions which, on the principles of individualism, do not admit of an easy answer.
Ought a borrower to have the right to obtain a loan, which he urgently requires, by the promise to pay the most usurious interest? Ought a man, to take an extreme instance, to be allowed to make a contract binding himself to be the servant of his neighbour for life?28 To put the matter more generally, ought every person of full age, acting with his eyes open and not the victim of fraud, but who nevertheless is placed in a position in which from the pressure of his needs he can hardly make a fair bargain, to be capable of binding himself by a contract? If these and the like questions be answered in the affirmative an individual’s full contractual capacity is preserved, but he is in danger of parting, by the very contract which he is allowed to make, with all real freedom. If, on the other hand, these questions are answered in the negative, then many men and women are protected against certain forms of hardship or injustice, but contractual freedom is sacrificed and the validity of the belief which underlies individualistic legislation, that men are on the whole the best judges of their own interest, is in effect denied. The difficulty is in all these cases, and in others which might easily be imagined, the same; there is a perpetual danger that unlimited contractual capacity, which is looked upon as an extension of individual freedom, may yet be so used by some individual as to deprive him of the very freedom of which it is assumed to be the exercise. To the particular questions here raised by way of illustration the older Utilitarians, at any rate, would generally have answered that each man being as a rule the best judge of his own interest, his right to bind himself by contract should be left untouched, even though he might sometimes use the right so as to do himself an injury.
This difficulty of fixing the right limit to contractual freedom suggests a theoretical inquiry which always raises, as it did raise in the time of Bentham, a question or problem of great practical importance.
Is it desirable to fix a limit on the right, which, though in England it has not received a technical name, is known in foreign countries as the “right of association”29 —which is nothing else than the right of two or more citizens, X, Y, and Z, to combine together by agreement among themselves for the attainment of a common purpose?
This right has the peculiarity that it presents two different and even opposed aspects, according to the point of view from which it is regarded. It may, on the one hand, be looked upon as the mere extension of each citizen’s individual freedom—that is, of his right to manage his own affairs in his own way so long as he does not trench upon the legal rights of his neighbours, whence it apparently follows that whatever course of action X, or Y, or Z may each lawfully pursue when acting without agreement, that course of action X, Y, and Z may all of them lawfully pursue when acting together under an agreement; but the right of association may, on the other hand, be looked upon as a right to a very special character, in that the exercise thereof may under certain circumstances greatly restrict the freedom of individuals.30 That this is so is due to the fact, which has received far too little notice from English lawyers, that, whenever men act in concert for a common purpose, they tend to create a body which, from no fiction of law, but from the very nature of things, differs from the individuals of whom it is constituted. Esprit de corps is a real and a powerful sentiment which drives men to act either above, or, still more often, below the ordinary moral standard by which they themselves regulate their conduct as individuals. A body, moreover, created by combination—a natural corporation, if the expression may be allowed—whether a political league, a church, or a trade union, by its mere existence limits the freedom of its members, and constantly tends to limit the freedom of outsiders. Its combined power is created by some surrender of individual liberty on the part of each of its members, and a society may from this surrender acquire a strength far greater than could be exercised by the whole of its members acting separately; a disciplined regiment of a thousand men, acting under command, is a far more formidable assailant than a thousand men who, even though armed, act without discipline and combination. An association may in this way constantly acquire powers which curtail the freedom of outsiders. A private citizen has often found it impossible to disobey the commands of a political association or of a church. Hence the right of association has, even when considered from a merely speculative point of view, a paradoxical character. A right which seems a necessary extension of individual freedom may, it would seem, become fatal to the individual freedom which it seems to extend. And this speculative paradox leads to a practical question which has in England perplexed the whole combination law.
May X, Y, and Z lawfully bind themselves by agreement to act together for every purpose which it would be lawful for X, or Y, or Z to pursue if he were acting without concert with others?
If this question be answered in the affirmative then contractual freedom, and therefore individual liberty of action, receives what appears to be a legitimate extension, but thereupon from the very nature of things two results immediately ensue. The free action of X, or Y, or Z is, in virtue of the agreement into which they have entered, placed for the future under strict limits, and their concerted action may grievously interfere with the liberty of some third party, T. Thus if X, Y, and Z, being employers of labour, bind themselves never to employ a workman who has taken part in a strike, or, being workmen, bind themselves never to work with any man who is not a member of a trade union, then both the liberty of the individual X to manage his business or to do his work on such terms as he thinks fit is gone, and the liberty of T, who has been the leader of a strike, or, as the case may be, has refused to join a trade union, may be reduced to nothing, and he may be deprived of the means of earning an honest livelihood. If, on the other hand, the question before us be answered in the negative, and, in the interest of individual freedom, the law forbids X, Y, and Z to combine for purposes which they might each lawfully pursue if acting without concert, then the contractual power of X, Y, and Z, or, in other words, their liberty of action, suffers a serious curtailment.
What, on the principles of individualism, is the true reply to our problem?
To this inquiry Benthamites have never, it is submitted, given a perfectly consistent or satisfactory reply.
In truth they never fully realised the extent and the difficulty of the problems which, during the last fifty or sixty years, have been raised as to the limits which ought to be placed on the right of association. Individualists tacitly assumed that each man if left to himself would in the long run be sure to act for his own true interest, and that the general welfare was sufficiently secured if each man were left free to pursue his own happiness in his own way, either alone or in combination with his fellows. On the application, however, of this doctrine there existed much difference of opinion. Some Benthamites, such as Place, believed that trade unionism would disappear if only the laws against trade combinations were repealed; but, whilst the elder Benthamites were as a rule anxious to extend the right of association as a part of individual freedom, some of them were prepared to cut down rigorously the right of combination whenever it in fact menaced the right of each individual to manage his trade or dispose of his labour on such terms as he himself thought good. From this point of view the report produced by Nassau Senior, a typical economist of 1830, is important. A commission, of which he was the principal member,
recommend that a law should be passed clearly reciting the common law prohibitions of conspiracy and restraint of trade. The law should go on to forbid, under severe penalties, “all attempts or solicitations, combinations, subscriptions, and solicitations to combinations” to threaten masters, to persuade blacklegs, or even simply to ask workmen to join the union. Picketing, however peaceful, was to be comprehensively forbidden and ruthlessly punished. Employers or their assistants were to be authorised themselves to arrest men without summons or warrant, and hale them before any justice of the peace. The encouragement of combinations by masters was to be punished by heavy pecuniary penalties, to be recovered by any common informer. “This,” say the commissioners, “is as much as we should recommend in the first instance. But if it should be proved that the evil of the combination system cannot be subdued at a less price . . . we must recommend the experiment of confiscation”—confiscation, that is, of the funds “subscribed for purposes of combination and deposited in savings banks or otherwise.”31
But if in 1830 some individualists were prepared to cut down the right of combination as stringently as might be required for the absolute protection of each individual’s freedom of action, others have taken a different view.
Turn to the treatise, On Liberty.
“Thirdly,” writes Mill in 1859, “from this liberty of each individual follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.”32
Unless these words be understood in a very non-natural sense, the Benthamites of 1859, as represented by their most authoritative exponent, were apparently ready, with a view to securing the right of combination, to curtail the free action of individuals.
However this may be, the utilitarians, whether in 1830 or 1859, had not given sufficient attention to the difficulty of combining the contractual freedom of each individual when acting alone with that unlimited right of association which, from one point of view, is a main element of individual freedom.
This gap in the Benthamite creed is of untold importance. It is closely connected with the tendency of all individualists to neglect the social aspect of human nature. In the sphere of legislation, as elsewhere, confusion of thought has led, as it always will lead, to confusion of action.
(ii.) Every Man to count for one and no Man for more than one. This deduction from the axioms of utilitarianism forms the intellectual link between Benthamism and democracy.
The idea that each man ought to receive the same share of political power stands manifestly in close connection both with the assumption that the differences which divide man from man are insignificant in comparison with the characteristics which all men have in common, and with the conviction that every man is on the whole the best judge of his own interest. These conceptions, which receive their embodiment in the maxim that every man should count for one and no man for more than one, led Bentham (in later life33 at least) and most of his immediate disciples to the practical conclusion that the best form of government is a democracy. “Every man,” as they argued,
follows his own interest as he understands it, and the part of the community which has political power will use it for its own objects. The remedy is to transfer political power to the entire community. It is impossible that they should abuse it, for the interest which they will try to promote is the interest of all, and the interest of all is the proper end and object of all legislation.34
Nor, on strict utilitarian principles, was it to be expected than [sic] any other government than a democracy would legislate with a view to the happiness of the whole community; a true monarch would look to his own interest, an oligarchy would administer public affairs with a view to the interests not of all but of a part of the citizens, viz. of the oligarchy. Force, moreover, was added to these logical considerations by the actual condition of the European world, and especially of England. That the reformers of Bentham’s day were unfair and one-sided critics of English institutions is past denial, but it is equally certain that England did at the moment suffer greatly from the predominance of particular classes and from the influence of sinister interests. There was scarcely a department of the law, whether public or private, the state of which did not prove the truth of this assertion.35 The Benthamites, therefore, were as a rule democrats, and the English democrats36 of 1830 were as a rule Benthamites, yet for all this there was no necessary connection between Benthamism and the democratic creed.37 The doctrine, in short, that beneficial legislation was impossible38 under any form of government except a democracy, was no fundamental article of utilitarianism. It was in truth a practical conclusion drawn from the actual condition of the European world, but was capable of modification.
It might be modified by at least two considerations. A sound utilitarian might, in the first place, hold that, under a constitution which was not a democracy, power might be placed in the hands of a class so wide that the interests of that class would, in general, coincide with the interest of the whole people. Under such a condition of things there was no necessity for insisting upon the constitution being made strictly democratic. This was substantially the attitude of the philosophic Radicals with regard to the Reform Act of 1832. The Act, they believed, would transfer political supremacy to the middle classes, and the English middle classes they thought were so numerous and so varied in character as to share the feelings and, what to a utilitarian was of more consequence, pursue the true interest, of the majority of the nation; a Parliament elected by the ten-pound householders would study to promote the greatest happiness of the greatest number, i.e. of the whole community.
A sound utilitarian might in the second place doubt whether the citizens of a given country were sufficiently enlightened to understand their own interest, and entertaining this doubt might, with the utmost consistency, prefer for such a country the rule of an intelligent despot or of an intelligent minority to the rule of an unintelligent democracy.
As to the capacity of the people to recognise their own interest, there was among the Benthamites themselves a division of opinion.
The predominant belief of the school was represented by the democratic utilitarianism of James Mill.
In politics, an almost unbounded confidence in the efficacy of two things: representative government, and complete freedom of discussion. So complete was my father’s reliance on the influence of reason over the minds of mankind, whenever it is allowed to reach them, that he felt as if all would be gained if the whole population were taught to read, if all sorts of opinions were allowed to be addressed to them by word and in writing, and if by means of the suffrage they could nominate a legislature to give effect to the opinions they adopted. He thought that when the legislature no longer represented a class interest, it would aim at the general interest, honestly and with adequate wisdom; since the people would be sufficiently under the guidance of educated intelligence, to make in general a good choice of persons to represent them, and having done so, to leave to those whom they had chosen a liberal discretion. Accordingly aristocratic rule, the government of the Few in any of its shapes, being in his eyes the only thing which stood between mankind and an administration of their affairs by the best wisdom to be found among them, was the object of his sternest disapprobation, and a democratic suffrage the principal article of his political creed, not on the ground of liberty, rights of man, or any of the phrases, more or less significant, by which, up to that time, democracy had usually been defended, but as the most essential of “securities for good government.” In this, too, he held fast only to what he deemed essentials; he was comparatively indifferent to monarchical or republican forms—far more so than Bentham, to whom a king, in the character of “corruptor-general,” appeared necessarily very noxious.39
The other aspect of the relation between utilitarianism and democracy was represented by John Austin.
He attached much less importance than formerly to outward changes; unless accompanied by a better cultivation of the inward nature. He had a strong distaste for the general meanness of English life, the absence of enlarged thoughts and unselfish desires, the low objects on which the faculties of all classes of the English are intent. Even the kind of public interests which Englishmen care for, he held in very little esteem. He thought that there was more practical good government, and (which is true enough) infinitely more care for the education and mental improvement of all ranks of the people, under the Prussian monarchy, than under the English representative government; and he held, with the French Economistes, that the real security for good government is “un peuple éclairé,” which is not always the fruit of popular institutions, and which if it could be had without them, would do their work better than they. Though he approved of the Reform Bill, he predicted, what in fact occurred, that it would not produce the great immediate improvements in government which many expected from it. The men, he said, who could do these great things, did not exist in the country. There were many points of sympathy between him and me, both in the new opinions he had adopted and in the old ones which he retained. Like me, he never ceased to be an utilitarian, and with all his love of the Germans, and enjoyment of their literature, never became in the smallest degree reconciled to the innate-principle metaphysics. He cultivated more and more a kind of German religion, a religion of poetry and feeling with little, if anything, of positive dogma; while in politics (and here it was that I most differed with him) he acquired an indifference, bordering on contempt, for the progress of popular institutions; though he rejoiced in that of Socialism, as the most effectual means of compelling the powerful classes to educate the people, and to impress on them the only real means of permanently improving their material condition, a limitation of their numbers. Neither was he, at this time, fundamentally opposed to Socialism in itself as an ultimate result of improvement. He professed great disrespect for what he called “the universal principles of human nature of the political economists,” and insisted on the evidence which history and daily experience afford of the “extraordinary pliability of human nature” (a phrase which I have somewhere borrowed from him); nor did he think it possible to set any positive bounds to the moral capabilities which might unfold themselves in mankind, under an enlightened direction of social and educational influences. Whether he retained all these opinions to the end of life I know not. Certainly the modes of thinking of his later years, and especially of his last publication, were much more Tory in their general character than those which he held at this time.40
In this passage we have the explanation of the curious historical phenomenon that after the middle of the nineteenth century Austin, Bowring, W. R. Greg, Robert Lowe, and other rigid utilitarians adopted, without any fundamental change of principles, a peculiar type of conservatism. They felt that a Parliament constituted under the Reform Act of 1832 was more likely to legislate in accordance with utilitarian principles than would be any more democratic assembly. Their forecast of the future has been justified by subsequent events. A House of Commons representing the householders of the United Kingdom has shown far less inclination than did a House elected by the £10 householders to respect either the dogmas or the sentiment of Benthamism.
As to the Method of Law Reform. Bentham’s influence in setting before reformers an ideal to be attained by the amendment of the law has received general and due acknowledgment;41 his influence in determining the method, i.e. the legislative means, by which the amendment of the law might be best affected, deserves equal acknowledgment, but has received less notice.
To appreciate the effect of his authority in this matter we must bear in mind that laws are with us created and changed in two different ways—that is, either by Act of Parliament, or by judicial legislation arising from the action of the Courts in deciding the particular cases which come before them. Even at the present day the greater part and the most important of the laws by which Englishmen are governed are in reality judge-made law, and this was much more obviously the case at the beginning of the nineteenth century.42 When, therefore, in the latter part of the eighteenth century jurists and philanthropists perceived that the law of England stood in need of amendment and expansion, it was apparent that this end might conceivably be attained either by the free use of judicial authority or by the employment of parliamentary sovereignty. Two reformers arose of equal though of different genius. The one was Lord Mansfield, the other Bentham. The Chief-Justice adopted the judicial, the utilitarian philosopher advocated and adopted the parliamentary, method of legislation and reform.
Lord Mansfield,43 as Chief-Justice of England, presided over the King’s Bench for twenty-four years; he was not only in name but in reality the head of the English common law; he was a jurist of genius; he filled a position of unrivalled authority; he achieved as much in the way of reform as was achievable by the means at his disposal. Yet his labours, taken as a whole, were not crowned with success. In some of his innovations he distinctly failed—as notably in the endeavour to reduce within narrow limits the rule that a promise not under seal needed a consideration for its validity—and even where he was to a certain extent successful, successors, who did not inherit his spirit, limited the operation of the principles which he had introduced into the law. Lord Mansfield lived at least two centuries too late. If the body of English law was to be remodelled or amended the work could be done by Parliament, and by Parliament alone.
Bentham learned the lesson of Lord Mansfield’s career; he learned it the more easily because the element of fiction, which is an almost essential feature of judicial innovation, shocked his logical understanding, and was in his eyes little better than a fraud by which judges usurped authority, which, when they had wrongfully obtained it, they had not the intelligence to use with wisdom. The importance, moreover, which he attached to the publication of law increased his enthusiasm for codification, and an English code, it was clear, must be the work of Parliament. He determined or assumed that the law must be reformed, if at all, by parliamentary enactment. His determination, justified by the circumstances of the age, was decisive. It has been followed by every man, whether a utilitarian or not, who since Bentham’s time has wished to change systematically the law of the land.
But, if the legislature was the only body which possessed the power to carry through a utilitarian reformation of the law, it became before Bentham’s death apparent both to himself and his disciples—the philosophic Radicals—that the unreformed Parliament, just because it mainly represented the interests and feelings of landowners and merchants, would not sanction fundamental improvements in the law of England. Benthamism thus led to the demand for such a reform in the constitution of Parliament as should make it a fit instrument for carrying out Benthamite ideas.
[14. ]These principles, it should be remembered, are not so much the dogmas to be found in Bentham’s Works as ideas due in the main to Bentham, which were ultimately, though often in a very modified form, accepted by the reformers or legislators who practically applied utilitarian conceptions to the amendment of the law of England.
[15. ]Paley (“Of the Constitution”), Moral Philosophy, ii. (12th ed. 1799), pp. 193, 194.
[16. ]Bentham almost certainly held that laws against usury were always bad; yet strong reasons have been produced by Grote—a most zealous utilitarian—for the belief that in ancient Athens and Rome such laws were beneficial. Sir J. F. Stephen, though a pronounced utilitarian, appears to incline towards the opinion that laws placing a check on usury might occasionally be useful as a means of preventing fraud. See Stephen, Hist. iii. pp. 195, 196.
[17. ]See Principle No. 2, p. 98, ante.
[18. ]“Review of a Free Enquiry,” Johnson’s Works, viii. p. 37.
[19. ]“Virtue is, ‘the doing good to mankind, in obedience to the will of God, and for the sake of everlasting happiness.’[”]
[20. ]On the whole a priori systems of ethics will in general produce conservatism. “I suspect,” writes Paley, “that a system of morality, built upon instincts, will only find out reasons and excuses for opinions and practices already established—will seldom correct or reform either.”—Paley, Moral Philosophy, i. bk. i. ch. v.
[21. ]Bentham, x. p. 63. So he deplored the publication in France of the Declaration of Rights. “I am sorry,” he writes to Brissot, “you have undertaken to publish a Declaration of Rights. It is a metaphysical work—the ne plus ultra of metaphysics. It may have been a necessary evil, but it is nevertheless an evil. Political science is not far enough advanced for such a declaration.”—Cited Kent, English Radicals, p. 184. Compare Halévy, La Formation du Radicalisme Philosophique, ii. pp. 38–43, and pp. 47–51.
[22. ]See, e.g. Truth against Ashurst, Bentham, v. p. 234, and generally Mill, On Liberty, which is throughout a defence, though not at bottom quite a consistent one, of this principle.
[23. ]“Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one” (Mill, On Liberty, p. 23). This concession goes further than Mill seems to perceive. Its principle seems to apply to every case where a government is far more intelligent than the governed.
[24. ]Truth against Ashurst, Bentham, v. p. 234.
[25. ]See Sidgwick, Elements of Politics, ch. iv.
[26. ]A contractual incapacity, such, for example, as the incapacity of an infant to bind himself by a contract to pay for things which are not necessaries, may be a desirable protection, but it assuredly, as far as it goes, limits an infant’s power of obtaining luxuries on credit. The point is elementary, but it is worth insisting upon, since there is a constant tendency on the part both of theorists and of so-called practical men, to forget that protection invariably involves disability, i.e. limitations on the individual liberty of the protected person.
[27. ]Respect for the obligation of contracts is embodied in the Constitution of the United States. The revolutionary, no less than the Napoleonic legislation of France is systematically hostile to the existence of guilds, corporations, or associations which might in any way limit the freedom of contract between individuals. Compare Hauriou, Précis de Droit Administratif (5th ed.), p. 100; Pic, Traité Elémentaire de Législation Industrielle (2nd ed.), ss. 336–343.
[28. ]A contract of service for life is legal (Wallis v. Day (1837), 2 M. & W. 273). But though damages might be recovered for the breach of the contract, the specific performance thereof would not be enforced. Compare Macdonell, Law of Master and Servant, pp. 31, 197.
[29. ]See Appendix, Note I., Right of Association.
[30. ]And also may menace the authority of the State.
[31. ]Webb, History of Trade Unionism (1894), p. 125.
[32. ]Mill, On Liberty, p. 27. Compare pp. 157, 158, and 176–180.
[33. ]See Halévy, ii. pp. 34–51, as to Bentham’s want of sympathy with the democratic aspect of the Revolution.
[34. ]Maine, Popular Government, p. 83, and see pp. 82–86.
[35. ]Lect. V., ante. Compare Creevy Papers, edited by the Rt. Hon. Sir Herbert Maxwell, for illustrations of the worst side of English government between 1800 and 1832.
[36. ]Even if not Benthamites they were with rare exceptions imbued with individualism.
[37. ]Whether the precept that every one should count for one included women, was in 1830 a question outside the sphere of practical politics, but it divided the Benthamites. The language of Bentham himself was somewhat uncertain. James Mill condemned the government of women as decisively, if not as consistently, as in an earlier age did John Knox. John Mill was throughout his life the ardent advocate of the political equality of the sexes, but John Mill, though honestly basing all his political views on the principle of utility, entertained, though unconsciously, a sentiment in favour of equality which belongs to the school rather of Rousseau than of Bentham.
[38. ]James Mill’s Essay on Government aims apparently at establishing this conclusion, but a student who reads between the lines will see that James Mill in reality advocates the political supremacy of the middle class. See Government, pp. 31, 32.
[39. ]J. S. Mill, Autobiography, pp. 106, 107. It is arguable that many utilitarians were in their estimate of the “people” more influenced than they were aware of by the teaching of Rousseau, or rather by the prevalent sentiment to which this teaching gave expression.
[40. ]Mill, Autobiography, pp. 177, 178, 179. “This time” apparently means from about 1830 to 1840.
[41. ]See Maine, Ancient Law, pp. 78, 79.
[42. ]An intelligent reader of Blackstone’s Commentaries is astonished at the slightness of the reference made by the commentator to statutes. Contrast on this matter the first edition of the Commentaries, completed in 1765, with the last edition of Stephen’s Commentaries (based as they are on Blackstone’s work), edited by Mr. Jenks in 1903.
[43. ]For Lord Mansfield’s attempted reform by way of introduction of equitable principles into the common law, and the way in which the attempt was afterwards rendered abortive by Kenyon, see Ashburner, Principles of Equity, pp. 15, 16. [Editor’s note: This footnote was added in the second edition.]