Smith discusses the utilitarianism of Jeremy Bentham and why it so alarmed the defenders of natural rights. In my last four essays , I discussed the ideas of Thomas Hodgskin. No discussion of Hodgskin would be complete without considering his great classic, The Natural and Artificial Right of Property Contrasted But in order to understand and appreciate this book, we need to know something about the doctrine that Hodgskin was criticizing, namely, the utilitarianism of Jeremy Bentham I shall therefore devote this essay to Bentham and then resume my discussion of Hodgskin in the next essay. Natural-rights theory was the revolutionary doctrine of the seventeenth and eighteenth centuries, being used to justify resistance to unjust laws and revolution against tyrannical governments.
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The subject of Judicial Procedure was a very favourite one with the Author, and one to which he was continually in the habit of recurring for more than thirty years. The consequence was, an immense mass of MSS. Very many of the Chapters were written over and over again, each of them varying in some particulars: and all of them were more or less in an unfinished state. In preparing these MSS. The arrangement, I am fully aware, is not so logical as it ought to have been, or as it would have been, if the Author had lived to finish the Work.
The difficulty was occasioned by this circumstance. In some Chapters, which in strictness ought to have followed others, allusions were made to the contents of those others, as if they were already known to the reader, and therefore they would not have been so readily understood, unless they had been made to follow, without making greater alterations in the text than I felt myself justified in doing.
The plan pursued with respect to those Chapters which treated of the same topic, has been to incorporate the separate matter of each into one, and cancel the rest. Although much has been done in this way, and also in cancelling other repetitions, yet I fear some still remain, which should have been omitted. If this be found to be the case, the only apology I can offer is, that in a task of this responsible nature, I considered I should be erring on the safer side by retaining too much, rather than too little.
By far the greater portion of the Work was written between the years and , both inclusive. Parts of the Introduction and the first Chapter were written so long ago as , and may be distinguished by the style. In order fully to appreciate the merits of the arrangements here proposed, reference must be made to all that concerns the Judicial Establishments and the Minister of Justice, in the Constitutional Code. In the Autumn of , the Author visited Paris for the benefit of his health.
On his return, he was detained at Boulogne by a contrary wind for nearly a fortnight, and there at the end of that time this Sketch was written. It was the first thing written by the Author for nearly three months, during which his indisposition continued. The paper on Account Taking Judicatories was intended by the Author to be attached to the Procedure Code; although it partly belongs to the Constitutional Code. Two very instructive communications follow, on judicial matters in the East Indies.
One is from Sir Alexander Johnston, the distinguished Chief-Justice of the Island of Ceylon; the other from a highly valued friend of the Author, who is now in India; I have not therefore been able to ask his permission to publish his name.
Of the present publication, the particular object is the preserving the country from being saddled by institutions, which under the profession, sincere or insincere, of contributing to the formation of an appropriate code of procedure, will have the effect rather of retarding, or even preventing it, and, at the same time, adding to expense, by which no fruit in the shape of benefit will be produced.
A Procedure Code, fit to be invested with the form of law, could not be prepared otherwise than by and with reference to the codes of law, penal and non-penal, to which it has for its object and purpose the giving execution and effect. The present production, instead of following, precedes both these codes. If applicable in other respects, it will not be found on that account inapplicable to its intended purpose. With regard to prospect of success, the sense of the public mind may as well be taken by this uncompleted and provisional publication, as by a completed work.
The characteristic features, and fundamental principles—all will be seen brought to view: only in respect of matters of detail, will there be anything to add, to defalcate, or to substitute. As of the plan here proposed, with its supposed features of aptitude, so of the system at present in force, with its supposed features of inaptitude. On this occasion I shall be found I hope to have rendered sufficiently apparent the complete inaptitude of the established system with reference to its professed purpose; and thence the absolute and indispensible necessity of a code, entirely new, from beginning to end.
This, supposing it done, will be no small thing done. What is more, here is much which, in the character of a proposed code, all persons who feel inclined, may take in hand, and take for the subject of consideration and publication; and by this means, towards ultimate success so much advance will have been made.
It might perhaps not be a great deal too much to say of it, that in its present state, it might form a warrant for the appointment of a Committee of the House of Commons, and the consideration of it, the subject-matter of a portion of the labours of such a committee; and while the committee was occupying itself in the requisite labour, on its several points including what regards the judiciary establishment, which is already in print, I shall, if alive, be occupied according to the measure of my ability, in making such amendments as I find a demand for.
The reason for this hurrying, is the fear of seeing real improvement obstructed, and even improbabilized, by the creation of new offices, with enormous salaries attached to them. Let me ask, how many centuries would it take to remove the already generally-acknowledged abuses, at the rate of progress at which the operation has been, and is performing, by the recent statutes?
No objection however to these; in the road to reform, every inch made is better than none. By procedure, is meant the course taken for the execution of the laws, viz.
Laws prescribing the course of procedure have on a former occasion been characterized by the term adjective laws, in contradistinction to those other laws, the execution of which they have in view, and which for this same purpose have been characterized by the correspondent opposite term, substantive laws. For in jurisprudence, the laws termed adjective, can no more exist without the laws termed substantive, than in grammar a noun termed adjective, can present a distinct idea without the help of a noun of the substantive class, conjoined with it.
As in fact every act by which a course of procedure is commenced has for its end or object, the bringing about the execution of some law of the substantive class, so, in point of utility, it may be said that the course of procedure ought to have in every instance, for its main and primary end at least, the accomplishment of the will manifested in the body of substantive laws.
For this is not only a use of it, but the only use for it. The ultimate utility of it will therefore depend altogether upon the utility of the substantive laws, the execution of which is in eachinstance endeavoured to be brought about: unless the substantive law be conformable to the greatest happiness of the community, the use made of the body of adjective laws on that occasion cannot be conformable to that same end.
But though this may with truth be given as the main and primary end of the course of procedure, it cannot however be given as the sole end; because in the pursuit of that same end, a variety of inconveniences are apt to occur, and indeed in a certain degree cannot several of them but occur—in every instance: hence result, as so many collateral or subordinate ends, the avoiding as far as possible the giving birth to those several inconveniences.
The code of procedure, then, is composed of the system or assemblage of adjective laws. Of the substantive branch of the law, the only defensible object or end in view, is the maximization of the happiness of the greatest number of the members of the community in question. Of the adjective branch of the law, the only defensible object, or say end in view, is the maximization of the execution and effect given to the substantive branch of the law.
The present proposed code is composed of an aggregate of arrangements, having the above for their object, or end in view. Of every extensive body of law, the end, mainly at least, if not exclusively, in view, has been the greatest happiness of those by whom the body of law in question was made. Consistently with the nature of man, and the preservation of his species, no other could any extensive body of law have had for its end in view.
For proof of this position, see the Constitutional Code. In a representative Democracy, if rightly constituted, the possessors of the constitutive or supreme authority are the aggregate body of the members fitted for self-government; and the possessors of the legislative authority are their delegates, and would represent their interests.
In the case of an Aristocracy, the interests of the members of the aristocracy, or the majority of them, would prevail; and in the case of a Monarchy, the interest of the monarch. In a mixed monarchy, composed of the monarch and the aristocracy, it would be the conjunct interest of the monarch and the members of that same aristocracy that is to say, of the majority of those who act on the theatre of legislation.
In the case of a mixed monarchy, composed of the monarch, the aristocracy and the delegates, or say deputies, of the people, the conjunct interests of those same three authorities.
Thus much as to substantive law. But in the case of adjective law, or say procedure law, to a greater or lesser extent the law has had for its authors, in proportions infinitely diversified, legislative authority in its several modification, and the judicial authority—in a word, the judges, who under the notion of interpreting, where, in fact, there was nothing to be interpreted—have been suffered, in effect, to legislate.
The consequence is, that in correspondent proportions, this branch of the law has had for its object, or end in view, the interest of this class of the functionaries concerned in the making of it. But more especially in the mode in which their remuneration has commonly been allotted to them, is their interest in a state of diametrical opposition to the interest of those for whose benefit the laws are everywhere professed to have been made.
By the author of these pages, no share in that profit was ever aimed at, or desired, nor at present could by possibility be received: his interest is therefore in the state of the greatest possible harmony with what he has made his duty; and accordingly, wheresoever it may have happened to him to have erred, the error will have had a deficiency not in moral, but in active and intellectual aptitude for its cause.
Among the arguments employed, and which, since some recent occurrences, have been made use of, for stopping the progress of improvement and securing against diminution the addition made every year to the number of those who, by and for the benefit of lawyers, are punished for not knowing what they have been carefully kept under an impossibility of knowing, one is—You cannot provide for everything; therefore you ought not to provide for anything more than what has been provided for already.
To understand the force and value of this argument—the aptitude, moral and intellectual, of those by whom it has been employed—employ it to other branches of art and science.
Without going out of the field of legislation, apply it to substantive law. Apply it Edition: current; Page: [ 7 ] to medicine: you cannot cure all diseases—why give yourselves so much trouble in the endeavour to cure any more than you can already. For the enactment, or say establishment, of any law, or of any mass of the matter of law—of two species of power—the intellectual and the political—the concurrence, or say conjunction, is necessary: intellectual, that of the legislative draughtsman; political, that of the legislator.
The political cannot, in the most improved state of society, be with propriety in hands other in number than a select few: in the least improved, it has everywhere been of necessity in the hands of a single person. But before it comes to be presented to the legislative assembly in the legislation chamber, there is another tribunal in which, with great advantage to the public, every question of law which is invested with a certain degree of importance may be introduced—and that is the public-opinion tribunal.
For the purpose of introducing into this tribunal a proposed law, the right of initiation appertains at once to every person who can find adequate inducement for giving exercise to it.
In the legislative assembly, proposed laws cannot without confusion be taken into consideration, and compared together, in any considerable numbers. But by the public-opinion tribunal, they may be subjected to this operation, in a number altogether unlimited.
To introduce, or attempt to introduce, into the legislative assembly, a mass of law of a new complexion, before the minds of men were to a certain degree prepared for the reception of it, would be lost labour, and a hopeless task. Not so the like attempt in relation to the public-opinion tribunal. Why set about drawing up a perfect body of laws—that is to say, one which to yourself you expect will appear so? Suppose the task of drawing it up accomplished, can you seriously expect to see it, in that place, put to use?
Answer: No. But, to a person who has leisure, and who has the means of living while the work is going on, that consideration is no sufficient reason for declining the task. In the present instance, the work must of necessity be the work of many years—say six, eight, ten years. Now, suppose it a settled rule that no such work shall be begun to be drawn up till a probability of its being immediately taken into consideration in the legislative assembly and ultimately adopted has presented itself,—what is the consequence?
Answer: That the necessary time in question—the six, eight, ten years—will be lost; the public for that whole length of time deprived of the receipt and enjoyment of this all-comprehensive instrument of felicity. But what follows? From misery, whatever be the shape of it, a change to tranquillity is innovation. From war, whencesoever it comes, change to peace is innovation.
War, misery, wickedness in every shape—are they then to be perpetuated? Whoever takes in hand these pages, will do well, in the first place, to lay out of his mind everything that belongs to the existing system, baptized the technical.
He will see there, when the time comes, nothing but confusion—a purposely and most elaborately organized system of confusion. Of itself, it accordingly explains nothing: explanation it requires itself throughout, so far from being capable of affording it.
In the here proposed system, styled the natural, he will see the course prescribed by common experience and common sense. The purpose being to give execution and effect to a system of arrangements and ordinances, by elicitation made of the truth of facts, the question will always be, whether this or that one of the arrangements made, or supposed made supposed only in the case of the unwritten law, has application to the individual case in question.
For arriving at the truth, the natural course, it will be seen, is the same in all cases. Under the technical system, the course pursued is different, according to the various judicatories employed, with their different portions of the field of law logical or geographical assigned to them, or occupied by them, with corresponding different sets of powers and duties—common law, equity law, civil law, penal law, ecclesiastical law, admiralty law, general sessions law, petty sessions law, and so on—all differing so widely from one another, while pretending to be directed to one and the same object,—the discovery of truth in regard to facts, by means of evidence.
All of them good, it is impossible they should be; all bad, it is altogether possible they should be, and will accordingly be seen to be; all unapt—relation had to such their professed and falsely pretended purpose; all good,—relation had to their non-professed, but disguised, and endeavoured-to-be-concealed, purpose;—viz.
Expense of litiscontestation, defrayed as far as possible by the public. Cases of necessity excepted, attendance Edition: current; Page: [ 8 ] of parties in their own case, not less universal and punctual than that of third persons in the character of witnesses.
With ample precaution against abuse, necessary expense of evidence, and professional assistance, provided by the public, for those who are not themselves in a condition to defray it. For the verity of whatever statement is made on a judicial occasion, or actually or eventually for a judicial purpose, effectual provision will be made,—and that the same in all cases,—by appropriate punishment, and without the intervention of any useless ceremony.
When the whole body of the Law has for its object the greatest happiness of the greatest number, the whole of the adjective branch taken together may be said to have two specific ends: the one positive, maximizing the execution and effect given to the substantive branch; the other negative, minimizing the evil, the hardship, in various shapes necessary to the accomplishment of the main specified end.
Between these two-pursuits the conflict is all pervading and perpetual. Whatsoever arrangement is taken for the attainment of the one end, it can scarcely avoid being in a greater or less degree obstructive to the attainment of the other end.
In this way the judicial establishment how well and faithfully soever the duties of it may be performed may be made the instrument of oppression, and even of depredation. No intellectual aptitude—no active aptitude—no appropriate knowledge or judgment on the part of the judge—can render him completely secure against so deplorable a result. No otherwise than through the medium of such information as comes in his way, or is obtainable by him, can he ever act, or forbear to act.
If that information is false, and by means of its falsity deceptive, a wrong judgment is on his part unavoidable. On this occasion, as on every other, the grand security of securities is publicity: —exposure—the completest exposure of the whole system of procedure—whatever is done by anybody, being done before the eyes of the universal public.
Jeremy Bentham’s Attack on Natural Rights
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