Chapter 10

NOTES:[355]See note under Bentham's life,ante, p. 178.[356]Preface toMorals and Legislation.[357]Works, i. ('Morals and Legislation'), ii.n.[358]Essay, bk. ii. ch. xxi. § 39-§ 44. The will, says Locke, is determined by the 'uneasiness of desire.' What moves desire? Happiness, and that alone. Happiness is pleasure, and misery pain. What produces pleasure we call good; and what produces pain we call evil. Locke, however, was not a consistent Utilitarian.[359]Epistle iv., opening lines.[360]Works, vii. 82.[361]Works('Constitutional Code'), ix. 123.[362]Works('Fragment'), i. 287.[363]Works('Morals and Legislation'), i. 8-10. Mill quotes this passage in his essay on Bentham in the first volume of hisDissertations. This essay, excellent in itself must be specially noticed as an exposition by an authoritative disciple.[364]Works('Morals and Legislation'), i. 13.[365]Works('Morals and Legislation'), i. v.[366]Works('Evidence'), vi. 261.[367]Works('Evidence'), vii. 116.[368]Ibid.('Morals and Legislation'), i. 14, etc.;Ibid.vi. 260. InIbid.('Evidence') vii. 116, 'humanity,' and in 'Logical Arrangements,'Ibid.ii. 290, 'sympathy' appears as a fifth sanction. Another modification is suggested inIbid.i. 14n.[369]Ibid.('Morals and Legislation'), i. 67.[370]Works('Morals and Legislation'), i. 96n.[371]See especiallyIbid.viii. 104, etc.; 253, etc.; 289, etc.[372]Ibid.viii. 106.[373]'Codify' was one of Bentham's successful neologisms.[374]Works('Logic'), viii. 220.[375]Here Bentham coincides with Horne Tooke, to whose 'discoveries' he refers in theChrestomathia(Works, viii. 120, 185, 188).[376]Works, iii. 286; viii. 119.[377]Ibid.('Ontology') viii. 196n.[378]Ibid.viii, 197n.[379]Ibid.viii. 263.[380]Works('Ontology'), viii. 119.[381]Ibid.viii. 198.[382]Ibid.viii. 199.[383]Ibid.viii. 206, 247.[384]Helvétius adds to this that the only real pains and pleasures are the physical, but Bentham does not follow him here. See Helvétius,Œuvres(1781), ii. 121, etc.[385]Works, i. 211 ('Springs of Action').[386]Ibid.i. 206.

[355]See note under Bentham's life,ante, p. 178.

[356]Preface toMorals and Legislation.

[357]Works, i. ('Morals and Legislation'), ii.n.

[358]Essay, bk. ii. ch. xxi. § 39-§ 44. The will, says Locke, is determined by the 'uneasiness of desire.' What moves desire? Happiness, and that alone. Happiness is pleasure, and misery pain. What produces pleasure we call good; and what produces pain we call evil. Locke, however, was not a consistent Utilitarian.

[359]Epistle iv., opening lines.

[360]Works, vii. 82.

[361]Works('Constitutional Code'), ix. 123.

[362]Works('Fragment'), i. 287.

[363]Works('Morals and Legislation'), i. 8-10. Mill quotes this passage in his essay on Bentham in the first volume of hisDissertations. This essay, excellent in itself must be specially noticed as an exposition by an authoritative disciple.

[364]Works('Morals and Legislation'), i. 13.

[365]Works('Morals and Legislation'), i. v.

[366]Works('Evidence'), vi. 261.

[367]Works('Evidence'), vii. 116.

[368]Ibid.('Morals and Legislation'), i. 14, etc.;Ibid.vi. 260. InIbid.('Evidence') vii. 116, 'humanity,' and in 'Logical Arrangements,'Ibid.ii. 290, 'sympathy' appears as a fifth sanction. Another modification is suggested inIbid.i. 14n.

[369]Ibid.('Morals and Legislation'), i. 67.

[370]Works('Morals and Legislation'), i. 96n.

[371]See especiallyIbid.viii. 104, etc.; 253, etc.; 289, etc.

[372]Ibid.viii. 106.

[373]'Codify' was one of Bentham's successful neologisms.

[374]Works('Logic'), viii. 220.

[375]Here Bentham coincides with Horne Tooke, to whose 'discoveries' he refers in theChrestomathia(Works, viii. 120, 185, 188).

[376]Works, iii. 286; viii. 119.

[377]Ibid.('Ontology') viii. 196n.

[378]Ibid.viii, 197n.

[379]Ibid.viii. 263.

[380]Works('Ontology'), viii. 119.

[381]Ibid.viii. 198.

[382]Ibid.viii. 199.

[383]Ibid.viii. 206, 247.

[384]Helvétius adds to this that the only real pains and pleasures are the physical, but Bentham does not follow him here. See Helvétius,Œuvres(1781), ii. 121, etc.

[385]Works, i. 211 ('Springs of Action').

[386]Ibid.i. 206.

II.SPRINGS OF ACTION

Our path is now clear. Pains and pleasures give us what mathematicians call the 'independent variable.'Our units are (in Bentham's phrase) 'lots' of pain or pleasure. We have to interpret all the facts in terms of pain or pleasure, and we shall have the materials for what has since been called a 'felicific calculus.' To construct this with a view to legislation is his immediate purpose. The theory will fall into two parts: the 'pathological,' or an account of all the pains and pleasures which are the primary data; and the 'dynamical,' or an account of the various modes of conduct determined by expectations of pain and pleasure. This gives the theory of 'springs of action,' considered in themselves, and of 'motives,' that is, of the springs as influencing conduct.[387]The 'pathology' contains, in the first place, a discussion of the measure of pain and pleasure in general; secondly, a discussion of the various species of pain and pleasure; and thirdly, a discussion of the varying sensibilities of different individuals to pain and pleasure.[388]Thus under the first head, we are told that the value of a pleasure, considered by itself, depends upon its intensity, duration, certainty, and propinquity; and, considered with regard to modes of obtaining it, upon its fecundity (or tendency to produce other pains and pleasures) and its purity (or freedom from admixture of other pains and pleasures). The pain or pleasure is thus regarded as an entity which is capable of being in some sense weighed and measured.[389]The next step is to classify pains and pleasures, which though commensurable as psychological forces, have obviously very different qualities. Bentham gives the result of his classification without the analysis upon which it depends. He assures us that he has obtained an 'exhaustive' list of 'simple pleasures.' It must be confessed that the list does not commend itself either as exhaustive or as composed of 'simple pleasures.' He does not explain the principle of his analysis because he says, it was of 'too metaphysical a cast,'[390]but he thought it so important that he published it, edited with considerable modifications by James Mill, in 1817, as aTable of the Springs of Action.[391]

J. S. Mill remarks that this table should be studied by any one who would understand Bentham's philosophy. Such a study would suggest some unfavourable conclusions. Bentham seems to have made out his table without the slightest reference to any previous psychologist.It is simply constructed to meet the requirements of his legislative theories. As psychology it would be clearly absurd, especially if taken as giving the elementary or 'simple' feelings. No one can suppose, for example, that the pleasures of 'wealth' or 'power' are 'simple' pleasures. The classes therefore are not really distinct, and they are as far from being exhaustive. All that can be said for the list is that it gives a sufficiently long enumeration to call attention from his own point of view to most of the ordinary pleasures and pains; and contains as much psychology as he could really turn to account for his purpose.

The omissions with which his greatest disciple charges him are certainly significant. We find, says Mill, no reference to 'Conscience,' 'Principle,' 'Moral Rectitude,' or 'Moral Duty' among the 'springs of action,' unless among the synonyms of a 'love of reputation,' or in so far as 'Conscience' and 'Principle' are sometimes synonymous with the 'religious' motive or the motiveof 'sympathy.' So the sense of 'honour,' the love of beauty, and of order, of power (except in the narrow sense of power over our fellows) and of action in general are all omitted. We may conjecture what reply Bentham would have made to this criticism. The omission of the love of beauty and æsthetic pleasures may surprise us when we remember that Bentham loved music, if he cared nothing for poetry. But he apparently regarded these as 'complex pleasures,'[392]and therefore not admissible into his table, if it be understood as an analysis into the simple pleasures alone. The pleasures of action are deliberately omitted, for Bentham pointedly gives the 'pains' of labour as a class without corresponding pleasure; and this, though indicative, I think, of a very serious error, is characteristic rather of his method of analysis than of his real estimate of pleasure. Nobody could have found more pleasure than Bentham in intellectual labour, but he separated the pleasure from the labour. He therefore thought 'labour,' as such, a pure evil, and classified the pleasure as a pleasure of 'curiosity.' But the main criticism is more remarkable. Mill certainly held himself to be a sound Utilitarian; and yet he seems to be condemning Bentham for consistent Utilitarianism. Bentham, by admitting the 'conscience' into his simple springs of action, would have fallen into the very circle from which he was struggling to emerge. If, in fact, the pleasures of conscience are simple pleasures, we have the objectionable 'moral sense' intruded as an ultimate factor of humannature. To get rid of that 'fictitious entity' is precisely Bentham's aim. The moral judgment is to be precisely equivalent to the judgment: 'this or that kind of conduct increases or diminishes the sum of human pains or pleasures.' Once allow that among the pains and pleasures themselves is an ultimate conscience—a faculty not constructed out of independent pains and pleasures—and the system becomes a vicious circle. Conscience on any really Utilitarian scheme must be a derivative, not an ultimate, faculty. If, as Mill seems to say, the omission is a blunder, Bentham's Utilitarianism at least must be an erroneous system.

We have now our list both of pains and pleasures and of the general modes of variation by which their value is to be measured. We must also allow for the varying sensibilities of different persons. Bentham accordingly gives a list of thirty-two 'circumstances influencing sensibility.'[393]Human beings differ in constitution, character, education, sex, race, and so forth, and in their degrees of sensibility to all the various classes of pains and pleasures; the consideration of these varieties is of the highest utility for the purposes of the judge and the legislator.[394]The 'sanctions' will operate differently in different cases. A blow will have different effects upon the sick and upon the healthy; the same fine imposed upon the rich and the poor will cause very different pains; and a law which is beneficent in Europe may be a scourge in America.

We have thus our 'pathology' or theory of the passive sensibilities of man. We know what are the 'springs of action,' how they vary in general, and how they varyfrom one man to another. We can therefore pass to the dynamics.[395]We have described the machinery in rest, and can now consider it in motion. We proceed as before by first considering action in general: which leads to consideration of the 'intention' and the 'motive' implied by any conscious action: and hence of the relation of these to the 'springs of action' as already described. The discussion is minute and elaborate; and Bentham improves as he comes nearer to the actual problems of legislation and further from the ostensible bases of psychology. The analysis of conduct, and of the sanctions by which conduct is modified, involves a view of morals and of the relations between the spheres of morality and legislation which is of critical importance for the whole Utilitarian creed. 'Moral laws' and a 'Positive law' both affect human action. How do they differ? Bentham's treatment of the problem shows, I think, a clearer appreciation of some difficulties than might be inferred from his later utterances. In any case, it brings into clear relief a moral doctrine which deeply affected his successors.

NOTES:[387]Works, i. 205; and Dumont'sTraités(1820), i. xxv, xxvi. The word 'springs of action' perhaps comes from the marginal note to the above-mentioned passage of Locke (bk. ii. chap. xxvi, § 41, 42).[388]Morals and Legislation, chaps. iv., v., vi.[389]See 'Codification Proposal' (Works, iv. 540), where Bentham takes money as representing pleasure, and shows how the present value may be calculated like that of a sum put out to interest. The same assumption is often made by Political Economists in regard to 'utilities.'[390]Works('Morals and Legislation'), i. 17n.[391]It is not worth while to consider this at length; but I give the following conjectural account of the list as it appears in theMorals and Legislationabove. In classifying pain or pleasures, Bentham is, I think, following the clue suggested by his 'sanctions.' He is really classifying according to their causes or the way in which they are 'annexed.' Thus pleasures may or may not be dependent upon other persons, or if upon other persons, may be indirectly or directly caused by their pleasures or pains. Pleasures not caused by persons correspond to the 'physical sanction,' and are those (1) of the 'senses,' (2) of wealth,i.e.caused by the possession of things, and (3) of 'skill,'i.e.caused by our ability to use things. Pleasures caused by persons indirectly correspond first to the 'popular or moral sanction,' and are pleasures (4) of 'amity,' caused by the goodwill of individuals, and (5) of a 'good name,' caused by the goodwill of people in general; secondly, to 'political sanction,' namely (6) pleasures of 'power'; and thirdly, to the 'religious sanction,' or (7) pleasures of 'piety.' All these are 'self-regarding pleasures.' The pleasures caused directly by the pleasure of others are those (8) of 'benevolence,' and (9) of malevolence. We then have what is really a cross division by classes of 'derivative' pleasures; these being due to (10) memory, (11) imagination, (12) expectation, (13) association. To each class of pleasures corresponds a class of pains, except that there are no pains corresponding to the pleasures of wealth or power. We have, however, a general class of pains of 'privation,' which might include pains of poverty or weakness: and to these are opposed (14) pleasures of 'relief,'i.e.of the privation of pains. In theTable, as separately published, Bentham modified this by dividing pleasures of sense into three classes, the last of which includes the two first; by substituting pleasures of 'curiosity' for pleasures of 'skill' by suppressing pleasures of relief and pains of privation; and by adding, as a class of 'pains' without corresponding pleasures, pains (1) of labour, (2) of 'death, and bodily pains in general.' These changes seem to have been introduced in the course of writing hisIntroduction, where they are partly assumed. Another class is added to include all classes of 'self-regarding pleasures or pains.' He is trying to give a list of all 'synonyms' for various pains and pleasures, and has therefore to admit classes corresponding to general names which include other classes.[392]Worksi. 210, where he speaks of pleasures of the 'ball-room,' the 'theatre,' and the 'fine arts' as derivable from the 'simple and elementary' pleasures.[393]Works('Morals and Legislation'), i. 22 etc.[394]Ibid.i. 33.[395]Morals and Legislation, ch. vii. to xi.

[387]Works, i. 205; and Dumont'sTraités(1820), i. xxv, xxvi. The word 'springs of action' perhaps comes from the marginal note to the above-mentioned passage of Locke (bk. ii. chap. xxvi, § 41, 42).

[388]Morals and Legislation, chaps. iv., v., vi.

[389]See 'Codification Proposal' (Works, iv. 540), where Bentham takes money as representing pleasure, and shows how the present value may be calculated like that of a sum put out to interest. The same assumption is often made by Political Economists in regard to 'utilities.'

[390]Works('Morals and Legislation'), i. 17n.

[391]It is not worth while to consider this at length; but I give the following conjectural account of the list as it appears in theMorals and Legislationabove. In classifying pain or pleasures, Bentham is, I think, following the clue suggested by his 'sanctions.' He is really classifying according to their causes or the way in which they are 'annexed.' Thus pleasures may or may not be dependent upon other persons, or if upon other persons, may be indirectly or directly caused by their pleasures or pains. Pleasures not caused by persons correspond to the 'physical sanction,' and are those (1) of the 'senses,' (2) of wealth,i.e.caused by the possession of things, and (3) of 'skill,'i.e.caused by our ability to use things. Pleasures caused by persons indirectly correspond first to the 'popular or moral sanction,' and are pleasures (4) of 'amity,' caused by the goodwill of individuals, and (5) of a 'good name,' caused by the goodwill of people in general; secondly, to 'political sanction,' namely (6) pleasures of 'power'; and thirdly, to the 'religious sanction,' or (7) pleasures of 'piety.' All these are 'self-regarding pleasures.' The pleasures caused directly by the pleasure of others are those (8) of 'benevolence,' and (9) of malevolence. We then have what is really a cross division by classes of 'derivative' pleasures; these being due to (10) memory, (11) imagination, (12) expectation, (13) association. To each class of pleasures corresponds a class of pains, except that there are no pains corresponding to the pleasures of wealth or power. We have, however, a general class of pains of 'privation,' which might include pains of poverty or weakness: and to these are opposed (14) pleasures of 'relief,'i.e.of the privation of pains. In theTable, as separately published, Bentham modified this by dividing pleasures of sense into three classes, the last of which includes the two first; by substituting pleasures of 'curiosity' for pleasures of 'skill' by suppressing pleasures of relief and pains of privation; and by adding, as a class of 'pains' without corresponding pleasures, pains (1) of labour, (2) of 'death, and bodily pains in general.' These changes seem to have been introduced in the course of writing hisIntroduction, where they are partly assumed. Another class is added to include all classes of 'self-regarding pleasures or pains.' He is trying to give a list of all 'synonyms' for various pains and pleasures, and has therefore to admit classes corresponding to general names which include other classes.

[392]Worksi. 210, where he speaks of pleasures of the 'ball-room,' the 'theatre,' and the 'fine arts' as derivable from the 'simple and elementary' pleasures.

[393]Works('Morals and Legislation'), i. 22 etc.

[394]Ibid.i. 33.

[395]Morals and Legislation, ch. vii. to xi.

III.THE SANCTIONS

Let us first take his definitions of the fundamental conceptions. All action of reasonable beings implies the expectation of consequences. The agent's 'intention' is defined by the consequences actually contemplated. The cause of action is the hope of the consequent pleasures or the dread of the consequentpains. This anticipated pleasure or pain constitutes the 'internal motive' (a phrase used by Bentham to exclude the 'external motive' or event which causes the anticipation).[396]The motive, or 'internal motive,' is the anticipation of pain to be avoided or pleasure to be gained. Actions are good or bad simply and solely as they are on the whole 'productive of a balance of pleasure or pain.' The problem of the legislator is how to regulate actions so as to incline the balance to the right side. His weapons are 'sanctions' which modify 'motives.' What motives, then, should be strengthened or checked? Here we must be guided by a principle which is, in fact, the logical result of the doctrines already laid down. We are bound to apply our 'felicific calculus' with absolute impartiality. We must therefore assign equal value to all motives. 'No motives,' he says,[397]are 'constantly good or constantly bad.' Pleasure is itself a good; pain itself an evil: nay, they are 'the only good and the only evil.' This is true of every sort of pain and pleasure, even of the pains and pleasures of illwill. The pleasures of 'malevolence' are placed in his 'table' by the side of pleasures of 'benevolence.' Hence it 'follows immediately and incontestably, that there is no such thing as any sort of motive that is in itself a bad one.' The doctrine is no doubt a logical deduction from Bentham's assumptions, and he proceeds to illustrate its meaning. A 'motive' corresponds to one of his 'springs of action.' He shows how every one of the motives included in his table may lead either to good or to bad consequences. The desire of wealth may lead me to kill a man's enemy or to plough his field for him; thefear of God may prompt to fanaticism or to charity; illwill may lead to malicious conduct or may take the form of proper 'resentment,' as, for example, when I secure the punishment of my father's murderer. Though one act, he says, is approved and the other condemned, they spring from the same motive, namely, illwill.[398]He admits, however, that some motives are more likely than others to lead to 'useful' conduct; and thus arranges them in a certain 'order of pre-eminence.'[399]It is obvious that 'goodwill,' 'love of reputation,' and the 'desire of amity' are more likely than others to promote general happiness. 'The dictates of utility,' as he observes, are simply the 'dictates of the most extensive and enlightened (that is,well advised) benevolence.' It would, therefore, seem more appropriate to call the 'motive' good; though no one doubts that when directed by an erroneous judgment it may incidentally be mischievous.

The doctrine that morality depends upon 'consequences' and not upon 'motives' became a characteristic Utilitarian dogma, and I shall have to return to the question. Meanwhile, it was both a natural and, I think, in some senses, a correct view, when strictly confined to the province of legislation. For reasons too obvious to expand, the legislator must often be indifferent to the question of motives. He cannot know with certainty what are a man's motives. He must enforce the law whatever may be the motives for breaking it; and punish rebellion, for example, even if he attributes it to misguided philanthropy. He can, in any case, punish only such crimes as are found out; and must define crimes bypalpable 'external' marks. He must punish by such coarse means as the gallows and the gaol: for his threats must appeal to the good and the bad alike. He depends, therefore, upon 'external' sanctions, sanctions, that is, which work mainly upon the fears of physical pain; and even if his punishments affect the wicked alone, they clearly cannot reach the wicked as wicked, nor in proportion to their wickedness. That is quite enough to show why in positive law motives are noticed indirectly or not at all. It shows also that the analogy between the positive and the moral law is treacherous. The exclusion of motive justifiable in law may take all meaning out of morality. The Utilitarians, as we shall see, were too much disposed to overlook the difference, and attempt to apply purely legal doctrine in the totally uncongenial sphere of ethical speculation. To accept the legal classification of actions by their external characteristics is, in fact, to beg the question in advance. Any outward criterion must group together actions springing from different 'motives' and therefore, as other moralists would say, ethically different.

There is, however, another meaning in this doctrine which is more to the purpose here. Bentham was aiming at a principle which, true or false, is implied in all ethical systems based upon experience instead of pure logic ora priori'intuitions.' Such systems must accept human nature as a fact, and as the basis of a scientific theory. They do not aim at creating angels but at developing the existing constitution of mankind. So far as an action springs from one of the primitive or essential instincts of mankind, it simply proves the agent to be human, not to be vicious or virtuous, andtherefore is no ground for any moral judgment. If Bentham's analysis could be accepted, this would be true of his 'springs of action.' The natural appetites have not in themselves a moral quality: they are simply necessary and original data in the problem. The perplexity is introduced by Bentham's assumption that conduct can be analysed so that the 'motive' is a separate entity which can be regarded as the sole cause of a corresponding action. That involves an irrelevant abstraction. There is no such thing as a single 'motive.' One of his cases is a mother who lets her child die for love of 'ease.' We do not condemn her because she loves ease, which is a motive common to all men and therefore unmoral, not immoral. But neither do we condemn her merely for the bad consequences of a particular action. We condemn her because she loves ease better than she loves her child: that is, because her whole character is 'unnatural' or ill-balanced, not on account of a particular element taken by itself. Morality is concerned with concrete human beings, and not with 'motives' running about by themselves. Bentham's meaning, if we make the necessary correction, would thus be expressed by saying that we don't blame a man because he has the 'natural' passions, but because they are somehow wrongly proportioned or the man himself wrongly constituted. Passions which may make a man vicious may also be essential to the highest virtue. That is quite true; but the passion is not a separate agent, only one constituent of the character.

Bentham admits this in his own fashion. If 'motives' cannot be properly called good or bad, is there, he asks, nothing good or bad in the man who on a given occasionobeys a certain motive? 'Yes, certainly,' he replies, 'his disposition.'[400]The disposition, he adds, is a 'fictitious entity, and designed for the convenience of discourse in order to express what there is supposed to be permanent in a man's frame of mind.' By 'fictitious,' as we have seen, he means not 'unreal' but simply not tangible, weighable, or measurable—like sticks and stones, or like pains and pleasures. 'Fictitious' as they may be, therefore, the fiction enables us to express real truths, and to state facts which are of the highest importance to the moralist and the legislator. Bentham discusses some cases of casuistry in order to show the relation between the tendency of an action and the intention and motives of the agent. Ravaillac murders a good king; Ravaillac's son enables his father to escape punishment, or conveys poison to his father to enable him to avoid torture by suicide.[401]What is the inference as to the son's disposition in either case? The solution (as he substantially and, I think, rightly suggests) will have to be reached by considering whether the facts indicate that the son's disposition was mischievous or otherwise; whether it indicates political disloyalty or filial affection, and so forth, and in what proportions. The most interesting case perhaps is that of religious persecution, where the religious motive is taken to be good, and the action to which it leads is yet admitted to be mischievous. The problem is often puzzling, but we are virtually making an inference as to the goodness or badness of the 'disposition' implied by the given action under all the supposed circumstances. This gives what Bentham calls the 'meritoriousness'[402]of the disposition. The 'intention' iscaused by the 'motive.' The 'disposition' is the 'sum of the intentions'; that is to say, it expresses the agent's sensibility to various classes of motives; and the merit therefore will be in proportion to the total goodness or badness of the disposition thus indicated. The question of merit leads to interesting moral problems. Bentham, however, observes that he is not here speaking from the point of view of the moralist but of the legislator. Still, as a legislator he has to consider what is the 'depravity' of disposition indicated by different kinds of conduct. This consideration is of great importance. The 'disposition' includes sensibility to what he calls 'tutelary motives'—motives, that is, which deter a man from such conduct as generally produces mischievous consequences. No motive can be invariably, though some, especially the motive of goodwill, and in a minor degree those of 'amity' and a 'love of reputation,' are generally, on the right side. The legislator has to reinforce these 'tutelary motives' by 'artificial tutelary motives,' and mainly by appealing to the 'love of ease,' that is, by making mischievous conduct more difficult, and to 'self-preservation,' that is, by making it more dangerous.[403]He has therefore to measure the force by which these motives will be opposed; or, in other words, the 'strength of the temptation.' Now the more depraved a man's disposition, the weaker the temptation which will seduce him to crime. Consequently if an act shows depravity, it will require a stronger counter-motive or a more severe punishment, as the disposition indicated is more mischievous. An act, for example, which implies deliberation proves a greater insensibility to these socialmotives which, as Bentham remarks,[404]determine the 'general tenor of a man's life,' however depraved he may be. The legislator is guided solely by 'utility,' or aims at maximising happiness without reference to its quality. Still, so far as action implies disposition, he has to consider the depravity as a source of mischief. The legislator who looks solely at the moral quality implied is wrong; and, if guided solely by his sympathies, has no measure for the amount of punishment to be inflicted. These considerations will enable us to see what is the proper measure of resentment.[405]

The doctrine of the neutrality or 'unmorality' of motive is thus sufficiently clear. Bentham's whole aim is to urge that the criterion of morality is given by the consequences of actions. To say the conduct is good or bad is to say in other words that it produces a balance of pleasure or pain. To make the criterion independent, or escape the vicious circle, we must admit the pleasures and pains to be in themselves neutral; to have, that is, the same value, if equally strong, whatever their source. In our final balance-sheet we must set down pains of illwill and of goodwill, of sense and of intellect with absolute impartiality, and compare them simply in respectof intensity. We must not admit a 'conscience' or 'moral sense' which would be autocratic; nor, indeed, allow moral to have any meaning as applied to the separate passions. But it is quite consistent with this to admit that some motives, goodwill in particular, generally tend to bring out the desirable result, that is, a balance of pleasure for the greatest number. The pains and pleasures are the ultimate facts, and the 'disposition' is a 'fictitious entity' or a name for the sum of sensibilities. It represents the fact that some men are more inclined than others to increase the total of good or bad.

NOTES:[396]Works('Morals and Legislation'), i. 46.[397]Ibid.i. 48.[398]Works('Morals and Legislation'), i. 56.[399]Ibid.i. 56.[400]Works('Morals and Legislation'), i. 60.[401]Ibid.i. 62.[402]Ibid.i. 65.[403]These are the two classes of 'springs of action' omitted in theTable.[404]Works('Morals and Legislation'), i. 68.[405]Here Bentham lays down the rule that punishment should rise with the strength of the temptation, a theory which leads to some curious casuistical problems. He does not fully discuss, and I cannot here consider, them. I will only note that it may conceivably be necessary to increase the severity of punishment, instead of removing the temptation or strengthening the preventive action. If so, the law becomes immoral in the sense of punishing more severely as the crime has more moral excuse. This was often true of the old criminal law, which punished offences cruelly because it had no effective system of police. Bentham would of course have agreed that the principle in this case was a bad one.

[396]Works('Morals and Legislation'), i. 46.

[397]Ibid.i. 48.

[398]Works('Morals and Legislation'), i. 56.

[399]Ibid.i. 56.

[400]Works('Morals and Legislation'), i. 60.

[401]Ibid.i. 62.

[402]Ibid.i. 65.

[403]These are the two classes of 'springs of action' omitted in theTable.

[404]Works('Morals and Legislation'), i. 68.

[405]Here Bentham lays down the rule that punishment should rise with the strength of the temptation, a theory which leads to some curious casuistical problems. He does not fully discuss, and I cannot here consider, them. I will only note that it may conceivably be necessary to increase the severity of punishment, instead of removing the temptation or strengthening the preventive action. If so, the law becomes immoral in the sense of punishing more severely as the crime has more moral excuse. This was often true of the old criminal law, which punished offences cruelly because it had no effective system of police. Bentham would of course have agreed that the principle in this case was a bad one.

IV.CRIMINAL LAW

We have now, after a long analysis, reached the point at which the principles can be applied to penal law. The legislator has to discourage certain classes of conduct by annexing 'tutelary motives.' The classes to be suppressed are of course those which diminish happiness. Pursuing the same method, and applying results already reached, we must in the first place consider how the 'mischief of an act' is to be measured.[406]Acts are mischievous as their 'consequences' are mischievous; and the consequences may be 'primary' or 'secondary.' Robbery causes pain to the loser of the money. That is a primary evil. It alarms the holders of money; it suggests the facility of robbery to others; and it weakens the 'tutelary motive' of respect for property. These are secondary evils. The 'secondary' evil may be at times the most important. The non-payment of a tax may do noappreciable harm in a particular case. But its secondary effects in injuring the whole political fabric may be disastrous and fruitful beyond calculation. Bentham proceeds to show carefully how the 'intentions' and 'motives' of the evildoer are of the greatest importance, especially in determining these secondary consequences, and must therefore be taken into account by the legislator. A homicide may cause the same primary evil, whether accidental or malignant; but accidental homicide may cause no alarm, whereas the intentional and malignant homicide may cause any quantity of alarm and shock to the general sense of security. In this way, therefore, the legislator has again indirectly to take into account the moral quality which is itself dependent upon utility.

I must, however, pass lightly over a very clear and interesting discussion to reach a further point of primary importance to the Utilitarian theory, as to the distinction between the moral and legal spheres.[407]Bentham has now 'made an analysis of evil.' He has, that is, classified the mischiefs produced by conduct, measured simply by their effect upon pleasures or pains, independently of any consideration as to virtue and vice. The next problem is: what conduct should be criminal?—a subject which is virtually discussed in two chapters (xv. and xix.) 'on cases unmeet for punishment' and on 'the limits between Private Ethics and the act of legislation.' We must, of course, follow the one clue to the labyrinth. We must count all the 'lots' of pain and pleasure indifferently. It is clear, on the one hand, that the pains suffered by criminals are far less than the pains which would besuffered were no such sanctions applied. On the other hand, all punishment is an evil, because punishment means pain, and it is therefore only to be inflicted when it excludes greater pain. It must, therefore, not be inflicted when it is 'groundless,' 'inefficacious,' 'unprofitable,' or 'needless.' 'Needless' includes all the cases in which the end may be attained 'as effectually at a cheaper rate.'[408]This applies to all 'dissemination of pernicious principles'; for in this case reason and not force is the appropriate remedy. The sword inflicts more pain, and is less efficient than the pen. The argument raises the wider question, What are the true limits of legislative interference? Bentham, in his last chapter, endeavours to answer this problem. 'Private ethics,' he says, and 'legislation' aim at the same end, namely, happiness, and the 'acts with which they are conversant arein great measurethe same.' Why, then, should they have different spheres? Simply because the acts 'are notperfectly and throughoutthe same.'[409]How, then, are we to draw the line? By following the invariable clue of 'utility.' We simply have to apply an analysis to determine the cases in which punishment does more harm than good. He insists especially upon the cases in which punishment is 'unprofitable'; upon such offences as drunkenness and sexual immorality, where the law could only be enforced by a mischievous or impossible system of minute supervision, and such offences as ingratitude or rudeness, where the definition is so vague that the judge could not safely be entrusted with the power to punish.'[410]He endeavours to give a rather more precise distinction bysubdividing 'ethics in general' into three classes. Duty may be to oneself, that is 'prudence'; or to one's neighbour negatively, that is 'probity'; or to one's neighbour positively, that is 'benevolence.'[411]Duties of the first class must be left chiefly to the individual, because he is the best judge of his own interest. Duties of the third class again are generally too vague to be enforced by the legislator, though a man ought perhaps to be punished for failing to help as well as for actually injuring. The second department of ethics, that of 'probity,' is the main field for legislative activity.[412]As a general principle, 'private ethics' teach a man how to pursue his own happiness, and the art of legislation how to pursue the greatest happiness of the community. It must be noticed, for the point is one of importance, that Bentham's purely empirical method draws no definite line. It implies that no definite line can be drawn. It does not suggest that any kind of conduct whatever is outside the proper province of legislator except in so far as the legislative machinery may happen to be inadequate or inappropriate.

Our analysis has now been carried so far that we can proceed to consider the principles by which we should be guided in punishing. What are the desirable properties of a 'lot of punishment'? This occupies two interesting chapters. Chapter xvi., 'on the proportion between punishments and offences,' gives twelve rules. The punishment, he urges, must outweigh the profit of the offence; it must be such as to make a man prefer a less offence to a greater—simple theft, for example, to violent robbery; it must be such that the punishment must beadaptable to the varying sensibility of the offender; it must be greater in 'value' as it falls short of certainty; and, when the offence indicates a habit, it must outweigh not only the profit of the particular offence, but of the undetected offences. In chapter xvii. Bentham considers the properties which fit a punishment to fulfil these conditions. Eleven properties are given. The punishment must be (1) 'variable,' that is, capable of adjustment to particular cases; and (2) equable, or inflicting equal pain by equal sentences. Thus the 'proportion' between punishment and crimes of a given class can be secured. In order that the punishments of different classes of crime may be proportional, the punishments should (3) be commensurable. To make punishments efficacious they should be (4) 'characteristical' or impressive to the imagination; and that they may not be excessive they should be (5) exemplary or likely to impress others, and (6) frugal. To secure minor ends they should be (7) reformatory; (8) disabling,i.e.from future offences; and (9) compensatory to the sufferer. Finally, to avoid collateral disadvantages they should be (10) popular, and (11) remittable. A twelfth property, simplicity, was added in Dumont's redaction. Dumont calls attention here to the value of Bentham's method.[413]Montesquieu and Beccaria had spoken in general terms of the desirable qualities of punishment. They had spoken of 'proportionality,' for example, but without that precise or definite meaning which appears in Bentham's Calculus. In fact, Bentham's statement, compared to the vaguer utterances of his predecessors, but still more when compared to the haphazard brutalities and inconsistencies ofEnglish criminal law, gives the best impression of the value of his method.

Bentham's next step is an elaborate classification of offences, worked out by a further application of his bifurcatory method.[414]This would form the groundwork of the projected code. I cannot, however, speak of this classification, or of many interesting remarks contained in thePrinciples of Penal Law, where some further details are considered. An analysis scarcely does justice to Bentham, for it has to omit his illustrations and his flashes of real vivacity. The mere dry logical framework is not appetising. I have gone so far in order to illustrate the characteristic of Bentham's teaching. It was not the bare appeal to utility, but the attempt to follow the clue of utility systematically and unflinchingly into every part of the subject. This one doctrine gives the touchstone by which every proposed measure is to be tested; and which will give to his system not such unity as arises from the development of an abstract logical principle, but such as is introduced into the physical sciences when we are able to range all the indefinitely complex phenomena which arise under some simple law of force. If Bentham's aim could have been achieved, 'utility' would have been in legislative theories what gravitation is in astronomical theories. All human conduct being ruled by pain and pleasure, we could compare all motives and actions, and trace out the consequences of any given law. I shall have hereafter to consider how this conception worked in different minds and was applied to different problems: what were the tenable results to which it led, and whatwere the errors caused by the implied oversight of some essential considerations.

Certain weaknesses are almost too obvious to be specified. He claimed to be constructing a science, comparable to the physical sciences. The attempt was obviously chimerical if we are to take it seriously. The makeshift doctrine which he substitutes for psychology would be a sufficient proof of the incapacity for his task. He had probably not read such writers as Hartley or Condillac, who might have suggested some ostensibly systematic theory. If he had little psychology he had not even a conception of 'sociology.' The 'felicific calculus' is enough to show the inadequacy of his method. The purpose is to enable us to calculate the effects of a proposed law. You propose to send robbers to the gallows or the gaol. You must, says Bentham, reckon up all the evils prevented: the suffering to the robbed, and to those who expect to be robbed, on the one hand; and, on the other, the evils caused, the suffering to the robber, and to the tax-payer who keeps the constable; then strike your balance and make your law if the evils prevented exceed the evils caused. Some such calculation is demanded by plain common sense. It points to the line of inquiry desirable. But can it be adequate? To estimate the utility of a law we must take into account all its 'effects.' What are the 'effects' of a law against robbery? They are all that is implied in the security of property. They correspond to the difference between England in the eighteenth century and England in the time of Hengist and Horsa; between a country where the supremacy of law is established, and a country still under the rule of thestrong hand. Bentham's method may be applicable at a given moment, when the social structure is already consolidated and uniform. It would represent the practical arguments for establishing the police-force demanded by Colquhoun, and show the disadvantages of the old constables and watchmen. Bentham, that is, gives an admirable method for settling details of administrative and legislative machinery, and dealing with particular cases when once the main principles of law and order are established. Those principles, too, may depend upon 'utility,' but utility must be taken in a wider sense when we have to deal with the fundamental questions. We must consider the 'utility' of the whole organisation, not the fitness of separate details. Finally, if Bentham is weak in psychology and in sociology, he is clearly not satisfactory in ethics. Morality is, according to him, on the same plane with law. The difference is not in the sphere to which they apply, or in the end to which they are directed; but solely in the 'sanction.' The legislator uses threats of physical suffering; the moralist threats of 'popular' disapproval. Either 'sanction' may be most applicable to a given case; but the question is merely between different means to the same end under varying conditions. This implies the 'external' character of Bentham's morality, and explains his insistence upon the neutrality of motives. He takes the average man to be a compound of certain instincts, and merely seeks to regulate their action by supplying 'artificial tutelary motives.' The 'man' is given; the play of his instincts, separately neutral, makes his conduct more or less favourable to general happiness; and the moralist and the legislator have both to correcthis deviations by supplying appropriate 'sanctions.' Bentham, therefore, is inclined to ignore the intrinsic character of morality, or the dependence of a man's morality upon the essential structure of his nature. He thinks of the superficial play of forces, not of their intimate constitution. The man is not to be changed in either case; only his circumstances. Such defects no doubt diminish the value of Bentham's work. Yet, after all, in his own sphere they are trifles. He did very well without philosophy. However imperfect his system might be considered as a science or an ultimate explanation of society and human nature, it was very much to the point as an expression of downright common sense. Dumont's eulogy seems to be fully deserved, when we contrast Bentham's theory of punishment with the theories (if they deserve the name) of contemporary legislators. His method involved a thoroughgoing examination of the whole body of laws, and a resolution to apply a searching test to every law. If that test was not so unequivocal or ultimate as he fancied, it yet implied the constant application of such considerations as must always carry weight, and, perhaps, be always the dominant considerations, with the actual legislator or jurist. What is the use of you? is a question which may fairly be put to every institution and to every law; and it concerns legislators to find some answer, even though the meaning of the word 'use' is not so clear as we could wish.

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