The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface to the First Edition
• Preface to the Second Edition
• Lecture I: The Relation Between Law and Public Opinion
• Lecture II: Characteristics of Law-making Opinion In England
• Lecture III: Democracy and Legislation
• Lecture IV: The Three Main Currents of Public Opinion
• I.: The Period of Old Toryism Or Legislative Quiescence (1800–1830) 1
• II.: The Period of Benthamism Or Individualism (1825–1870) 3
• III.: Period of Collectivism (1865–1900) 5
• Lecture V: The Period of Old Toryism Or Legislative Quiescence (1800–1830)
• (a): State of Opinion (1760–1830)
• (b): Absence of Changes In the Law
• (c): Why Considerable Changes Took Place During the Period of Quiescence
• (d): Close of the Period of Quiescence
• Lecture VI: The Period of Benthamism Or Individualism 1
• (a): Benthamite Ideas As to the Reform of the Law
• (b): the Acceptance of Benthamism
• (c): the Trend and Tendency of Benthamite Legislation
• Lecture VII: The Growth of Collectivism
• Tory Philanthropy and the Factory Movement
• Changed Attitude of the Working Classes
• Modification In Economic and Social Beliefs
• Characteristics of Modern Commerce
• Introduction of Household Suffrage, 1868–1884
• Lecture VIII: The Period of Collectivism
• (a): Principles of Collectivism
• (b): Trend of Collectivist Legislation
• Lecture IX: The Debt of Collectivism to Benthamism
• Lecture X: Counter-currents and Cross-currents of Legislative Opinion
• A.: the Course of Legislative Opinion
• B.: the Actual Course of Ecclesiastical Legislation
• Lecture XI: Judicial Legislation
• I.: The Special Characteristics of Judicial Legislation In Relation to Public Opinion
• II.: The Effect of Judge-made Law On Parliamentary Legislation
• Lecture XII: Relation Between Legislative Opinion and General Public Opinion
• I.: As to Analogous Changes of Opinion In Different Spheres and Also In the Lives of Individuals.
• II.: As to the Dependence of Legislative Opinion On the General Tendencies of English Thought.
• Appendix
• Note I.: The Right of Association
• Note II.: The Ecclesiastical Commission
• Note III.: University Tests
• Note IV.: Judge-made Law
• Note V.: Proposed Collectivist Legislation of 1905 *
• Introduction to the Second Edition

LECTURE IX

The Debt of Collectivism to Benthamism

the patent opposition between the individualistic liberalism of 1830 and the democratic socialism of 1905 conceals the heavy debt owed by English collectivists to the utilitarian reformers. From Benthamism the socialists of to-day have inherited a legislative dogma, a legislative instrument, and a legislative tendency.

The dogma is the celebrated principle of utility.

In 17761 Bentham published his Fragment on Government. The shrewdness or the selfishness of Wedderburn2 at once scented the revolutionary tendency of utilitarian reform.

“This principle of utility,” he said, “is a dangerous principle.” On this dictum Bentham has thus commented:

In 1905 we are less surprised at Bentham’s retort, which betrays a youthful philosopher’s enthusiastic faith in a favourite doctrine, than at Wedderburn’s alarm, which seems to savour of needless panic. What is there, we ask, in the greatest happiness principle—a truism now accepted by conservatives no less than by democrats—that could disturb the equanimity of a shrewd man of the world well started on the path to high office? Yet Wedderburn, from his own point of view, formed a just estimate of the principle of utility. It was a principle big with revolution; it involved the abolition of every office or institution which could not be defended on the ground of calculable benefit to the public; it struck at the root of all the abuses, such as highly-paid sinecures, which in 1776 abounded in every branch of the civil and of the ecclesiastical establishment; it aimed a deadly blow, not only at the optimism of Blackstone, but also at the historical conservatism of Burke. It went, indeed, much farther than this, for, as in any State the poor and the needy always constitute the majority of the nation, the favourite dogma of Benthamism pointed to the conclusion—utterly foreign to the English statesmanship of the eighteenth century—that the whole aim of legislation should be to promote the happiness, not of the nobility or the gentry, or even of shopkeepers, but of artisans and other wage-earners.

The legislative instrument was the active use of parliamentary sovereignty.4

The omnipotence of Parliament, which Bentham learned from Blackstone, might well, considered as an abstract doctrine, command the acquiescent admiration of the commentator. But the omnipotence of Parliament—turned into a reality, and directed by bold reformers towards the removal of all actual or apparent abuses—might well alarm, not only adventurers who found in public life a lucrative as well as an honourable profession, but also statesmen, such as Pitt or Wilberforce, uninfluenced by any sinister interest. Parliamentary sovereignty, in short, taught as a theory by Blackstone and treated as a reality by Bentham, was an instrument well adapted for the establishment of democratic despotism.

The legislative tendency was the constant extension and improvement of the mechanism of government.

The guides of English legislation during the era of individualism, by whatever party name they were known, accepted the fundamental ideas of Benthamism. The ultimate end, therefore, of these men was to promote legislation in accordance with the principle of utility;5 but their immediate and practical object was the extension of individual liberty as the proper means for ensuring the greatest happiness of the greatest number. Their policy, however, was at every turn thwarted by the opposition or inertness of classes biassed by some sinister interest. Hence sincere believers in laissez faire found that for the attainment of their ends the improvement and the strengthening of governmental machinery was an absolute necessity. In this work they were seconded by practical men who, though utterly indifferent to any political theory, saw the need of administrative changes suited to meet the multifarious and complex requirements of a modern and industrial community. The formation of an effective police force for London (1829)—the rigorous and scientific administration of the Poor Law (1834) under the control of the central government—the creation of authorities for the enforcement of laws to promote the public health and the increasing application of a new system of centralisation,6 the invention of Bentham himself7 —were favoured by Benthamites and promoted utilitarian reforms; but they were measures which in fact limited the area of individual freedom.

In 1830 the despotic8 or authoritative element latent in utilitarianism was not noted by the statesmen of any party. The reformers of the day placed for the most part implicit faith in the dogma of laissez faire, and failed to perceive that there is in truth no necessary logical connection between it and that “greatest happiness principle,” which may, with equal sincerity, be adopted either by believers in individual freedom, or by the advocates of paternal government. To the Liberals of 1830 the energy and freedom of individuals seemed so clearly the source from which must spring the cure of the diseases which afflicted English society, that they could hardly imagine the possibility of a conflict between the true interest of the community and the universal as well as equal liberty of individual citizens.9 The Tories of the day, on the other hand, were so impressed with the hostility of the utilitarian school to institutions (e.g. the Crown or the Church), the strength whereof depended on tradition, that they were blind to the authoritative aspect of Benthamism. And, oddly enough, the tendency of Benthamite teaching to extend the sphere of State intervention was increased by another characteristic which conciliated Whigs and moderate Liberals—that is, by the unlimited scorn entertained by every Benthamite for the social contract and for natural rights. This contempt was indeed a guarantee against sympathy with Jacobinical principles, but it deprived individual liberty of one of its safeguards. For the doctrine of innate rights, logically unsound though it be, places in theory a limit upon the despotism of the majority. This doctrine is no doubt a very feeble barrier against the inroads of popular tyranny; the Declaration of the Rights of Man did not save from death one among the thousands of innocent citizens dragged before the Revolutionary Tribunal; the American Declaration of Independence, with its proclamation of the inalienable rights of man, did not deliver a single negro from slavery. But these celebrated documents were after all a formal acknowledgment that sovereign power cannot convert might into right. They have assuredly affected public opinion. In France the Declaration of the Rights of Man has kept alive the conviction that a National Legislature ought not to possess unlimited authority. Some articles in the Constitution of the United States, inspired by the sentiment of the Declaration of Independence, have supported individual freedom; one of them has gone far to make the faith that the obligation of contracts is sacred, a part of the public morality of the American people, and does at this moment place a real obstacle in the way of socialistic legislation. The Liberals then of 1830 were themselves zealots for individual freedom, but they entertained beliefs which, though the men who held them knew it not, might well, under altered social conditions, foster the despotic authority of a democratic State. The effect actually produced by a system of thought does not depend on the intention of its originators; ideas which have once obtained general acceptance work out their own logical result under the control mainly of events. Somewhere between 1868 and 1900 three changes took place which brought into prominence the authoritative side of Benthamite liberalism. Faith in laissez faire suffered an eclipse; hence the principle of utility became an argument in favour, not of individual freedom, but of the absolutism of the State. Parliament under the progress of democracy became the representative, not of the middle classes, but of the whole body of householders; parliamentary sovereignty, therefore, came to mean, in the last resort, the unrestricted power of the wage-earners. English administrative mechanism was reformed and strengthened. The machinery was thus provided for the practical extension of the activity of the State; but, in accordance with the profound Spanish proverb, “the more there is of the more the less there is of the less,” the greater the intervention of the Government the less becomes the freedom of each individual citizen. Benthamites, it was then seen, had forged the arms most needed by socialists. Thus English collectivists have inherited from their utilitarian predecessors a legislative doctrine, a legislative instrument, and a legislative tendency pre-eminently suited for the carrying out of socialistic experiments.

[1. ]In the same year was published Adam Smith’s Wealth of Nations.

[2. ]Afterwards Lord Chancellor, under the title of Baron Loughborough, and created in 1801 Earl of Rosslyn.

[3. ]Bentham, Principles of Morals and Legislation, ch. i. p. 5 (n).

[4. ]See p. 118, ante.

[5. ]See p. 98, ante.

[6. ]The English Government, even during the supremacy of reactionary toryism, did not attempt to build up a stronger administrative system. “The revolutionary movements of 1795 and of 1815–1820 were combated, not by departmental action, but by Parliamentary legislation. The suspension of the Habeas Corpus Act, the passing of the Libel Act, and of the ‘Six Acts’ of 1819, were severely coercive measures; but they contain no evidence of any attempt to give a continental character to administration. In so far as individual liberty was destroyed, it was destroyed by, and in pursuance of, Acts of Parliament.”—Redlich and Hirst, Local Government in England, ii. p. 240.

On the other hand, there has been built up since 1832 a whole scheme of administrative machinery. “The net result of the legislative activity which has characterised, though with different degrees of intensity, the period since 1832, has been the building up piecemeal of an administrative machine of great complexity, which stands in as constant need of repair, renewal, reconstruction, and adaptation to new requirements as the plant of a modern factory. The legislation required for this purpose is enough, and more than enough, to absorb the whole legislative time of the House of Commons; and the problem of finding the requisite time for this class of legislation increases in difficulty every year, and taxes to the utmost, if it does not baffle, the ingenuity of those who are responsible for the arrangement of Parliamentary business.”—Ilbert, Legislative Methods, pp. 212, 213. See generally Redlich and Hirst, i. pp. 1–216.

[7. ]“He [Bentham] attempts to solve anew the problem of the relations between local and central government. In his system the Legislator is omnipotent. His local ‘field of service’ is the State, his logical ‘field of service’ is the field of human action. . . . But the central Parliament and its organ, the Ministry, always preserve a supervisory control over local administration. Here, then, is formulated the principle, novel to the historic constitution of England, that there is no province or function of public administration in which a central government in its administrative as well as its legislative capacity is not entitled to interfere. The new principle of ‘inspectability’ is expressed on the one hand by the supervisory control of the Ministry, on the other by the subordination of the Local Headman. The Minister at the top controls the Headman at the bottom of the official ladder. The light at the centre radiates to the very circumference of the State. In the next chapter it will be shown how potent a force this new idea of central administrative control proved in the reformation of English local government.”—Redlich and Hirst, i. pp. 95, 96; compare pp. 89, 106–108.

[8. ]The true ground of Herbert Spencer’s attack on utilitarianism is that the utilitarians, in the pursuit of the greatest happiness for the greatest number, often sacrificed the freedom of individuals to the real or supposed benefit of the State, i.e. of the majority of the citizens. See The Man v. The State, and Social Statics.

[9. ]Benthamites, indeed, differed among themselves more deeply than they probably perceived, as to the relative importance of the principle of utility and the principle of non-interference with each man’s freedom. Nominally, indeed, every utilitarian regarded utility as the standard by which to test the character or expediency of any course of action (see Mill, On Liberty, p. 24). But John Mill was so convinced of the value to be attached to individual spontaneity that he, in fact, treated the promotion of freedom as the test of utility; other utilitarians, e.g. Chadwick, were practically prepared to curtail individual freedom for the sake of attaining any object of immediate and obvious usefulness, e.g. good sanitary administration.