The doctrine of utility tells us how to regulate our conduct. It tells us what is a right action as well as what is good action. A good action is one which results in a maximum of pleasure—a definition which, incidentally, allows the infliction of pain if in the end a balance of pleasure is obtained, an idea which is the basis of the utilitarian theory of punishment. A right action is one which would produce a larger balance of pleasure or a lower balance of pain than any other action possible in the circumstances. All actions whatsoever must be good or bad. All actions to which there is an alternative must be right or wrong. It is always bad to produce more pain than pleasure. It is always wrong to choose that of two actions which produces less pleasure than might have been the case in the circumstances. Whether a bad action is right and a good action wrong depends, then, on the circumstances. A bad action, which produces more pain than pleasure, is nevertheless right if the only alternative produces still more pain.
Bentham enumerates fourteen simple pleasures—those of sense, wealth, skill, amity, good name, power, piety, benevolence, malevolence, memory, imagination, expectation, association and relief. According to him, simple pains are twelve : privation, sense, awkwardness, enmity, ill name, piety, benevolence, malevolence, imagination, expectation, memory and association. These pleasures and pains govern all our ideas and all our actions, whatever they may be. Before we approve or disapprove of any action, we, according to Bentham, take into account the tendency to promote any of the above pleasures or pains. From this tendency he derives "the greatest happiness principle." In the apportionment of lots of happiness, the principle to be applied, he says, is "each to count for one and no one for more than one." In other words, there should be absolute impartiality in the treatment of individuals.
According to Bentham, both pleasure and pain could be arithmetically calculated, or that they were subject to felicific calculus. Factors for evaluation of pleasure and pain are : intensity, duration, certainty or uncertainty, propinquity or remoteness, fecundity and purity. To these should be added the factor of extent when a number of persons were affected. This means that we cannot regard one pleasure as 'better* or 'higher' than another. Pleasures should be capable of being summed up in quantity or bulk. All this seems clearly absurd to us. But the practical object which Bentham had in view was to prevent well-intentioned people from prescribing for others what would constitute their 'real pleasures'. The Benthamite doctrine is undoubtedly narrow and psychologically false. Nevertheless, as Ivor Brown remarks, it "has an immense value because it denies the infallibility of the superior person who endeavours to foist his own morality or his own type of happiness upon others whom he
believes to be the pitiful dupes of ignorance."1 "Benthamism, shorn of its crudities, is simply humanism."1
The primary concern of Bentham was the good or welfare of the community. He believed that his principle of utility could be applied with advantage to all social questions, and particularly to constitutional, legislative and law reform. He had a living and practical interest in view, and was not merely concerned with barren speculative theory.3
At the time when Bentham appeared on the scene as a great reformer and thinker, the theory of natural rights and the pompous generalizations of Blackstone regarding the greatness of the English constitution and the English law held the field. Upon both of these Bentham poured his scorn, and exposed them to merciless criticism. Natural rights he described as "simple nonsense ; natural and imprescriptible rights rhetorical nonsense—nonsense upon stilts." For the theory of natural rights he substituted the principle of utility. Although Thomas Paine, the staunch advocate of natural rights, and Bentham differed violently in their philosophical outlook, both of them advocated many liberal measures in common. As Ivor Brown writes : "Two men can scarcely ever have moved towards the same destination by such very different roads."
Rejection of a Contract Theory of State
Brown, Ivor : English Political Theory, p. 96.
Ibid., p. 102.
Davidson, W. L. : Political Thought in England, p. 43.
Brown, Ivor, : op cit„ p. 102.
Fragment, Chap. I, Sec. XXXVI.
In his first work of any importance, the Fragment on Government, Bentham bitterly criticized Blackstone who praised the English law as a slow, natural growth in accordance with divine providence. "Bentham showed that it was a shameless tyranny, which worked only for the misery of the weak and poor, an elaborate mechanism for helping the educated and the powerful to keep down the ignorant and the oppressed."4 He further attacked Blackstone for basing political obligation upon an original social contract. He argued that there was no such contract in the past and that, even if there was one, it did not bind the present generation. Nor would such a contract, if regarded not as a historical fact but merely as a logical concept, explain any assertion of authority by government or any obligation of obedience on the part of any subject. Every form of a contract theory of the state is rejected by Bentham.5 Contract, consent, agreement furnish no basis for political rights and duties. The ultimate reason why men submit to the requirements of law and of government is, not that they or their ancestors have promised to do so, but that it is for their interest to do so. In Bentham's own well-
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known phrase, men obey the laws because "the probable mischiefs of obedience are less than the probable mischiefs of disobedience." Governments exist because they are believed to promote the happiness of those who live under them.
The recognition of this simple and all-pervading motive of human action, a calculated self-interest, renders superfluous the historical guesses and the dialectical fictions by which philosophers of the contract school explain the difference between the natural and the political or civil state of man. Discard all such rubbish, Bentham says, and look at the simple facts of the case. Consider any group of men living in more or less intercourse with one another. If in this group there is on the part of some of the members a habit of paying obedience to other members, whether one or more in number, the group altogether constitutes a political society. If there is in the group no such habit of obedience, the group is a natural society. That is all there is of it.
"The libraries of disquisition on the state of nature, with its iniquities or its blessedness according to the fancy of the writers ; on the devious and complex process through which men emerged from the natural into the political state ; and on the survival of rights and duties from the earlier in the latter condition : all these were banned to peremptory worthlessness by the Benthamite formula."* The essence of the state, according to Bentham, was merely a habit of obedience. Such a dogma surely left no room for the history or the mystery which played so large a part in the political theory of the conservatives and the reactionaries.
The Utilitarian Theory of State
The utilitarian explanation of the state is not only an explanation in terms of an unlimited end, but also in terms of the particular character of the state which differentiates it from man's other activities. A theory which maintains that the end of the state is the promotion of utility simply identifies the end of the state with the end of human life. Yet clearly the state has a particular part to play in human life. Bentham and the utilitarians tell us in what way the state is peculiar—it is the sole source of law, which is the most certain of the four 'sanctions', or overriding motives, which govern the lives of men. There are the physical sanction, which operates in the ordinary course of nature ; the moral sanction, which arises from the general feeling of society ; the religious sanction, which is applied by "the immediate hand of a superior invisible being, either in the present life or in a future" ; and the political sanction, which operates through government and the necessity for which is the explanation of the state.
6 Dunning, W. A. : A History of Political Theories (From Rousseau to Spencer), p. 217.
Thus the state, for Bentham, is primarily a law-making body, a group of persons organized for the promotion and maintenance of happiness, and acting through law to that end. A law, in Bentham's thought, is the expression of a will in the form of a command. Because law is the expression of a will, sovereignty can be predicated only of a being of which will can be predicated. Nature or reason or justice cannot be the supreme power in a state, because they cannot make law ; God and man are the only forms of existence possessing will; therefore law in any precise sense must emanate from one of them. And the great task cf law in the human world is to reconcile interests—"so to regulate tL?. motive of self-interest that it shall operate, even against its will, towards the production of the greatest happiness." This it does by attaching artificial pains, or punishments, to certain actions of a particular kind which would not be conducive to the general happiness. It cannot, and it ought not to try to, concern itself with all actions which would not be conducive to the general happiness. For law in its very nature is limited, and its nature shows the bounds which any true state must set to its actions. Law should take cognizance of and turn into offences only those bad, adult, other-regarding actions the punishment of which will increase the net balance of pleasure or decrease the net balance of pain. Morality, which like law aims at the production of happiness, must concern itself with such matters as with all self-regarding actions, but they are beyond the province of law. "Legislation and morals," as Bentham puts it, "have the same centre but not the same circumference."
Because law is command, it must be the command of a supreme authority. Indeed, it is only when such an authority is habitually obeyed that Bentham is prepared to admit the existence of civil society. His State, therefore, is a sovereign State. It is the hall-mark of a sovereign State that nothing it does, can be illegal. To speak of it as exceeding its authority is an abuse of language. This is true of the free state as well as of the most despotic of states, although a written constitution, he will admit, can limit governmental power.
With this doctrine and its exposition and corollaries Bentham set himself in direct antagonism to the predominant philosophy of the revolutionary and reforming parties of his day, with whom he was in many respects wholly sympathetic. Their confidence in written constitutions as guarantees of rational government, and in the simplification of legislation in every respect, he shared and applauded. But bills of rights, limitations upon the power to attend the constitution, and all other devices for restricting the supreme authority, he regarded as unsound in theory and worthless in practice. They rested largely for justification, he said, upon the idea that the distinction between free and despotic governments depended on the greater or less decree of power possessed by the supreme authority of the state. In fact, the ultimate sovereigns in all states possess
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precisely the same unlimited and undefined power. Whether any particular government is considered free or despotic depends on a variety of circumstances connected with the distribution and application of this power in its exercise.7
In spite of his penchant for an unlimited sovereign power, Bentham had a strong liking for democracy. His is a state in which all men have equal rights. All men have the right with all others to promote policy ; all must be equal before the law ; to ensure a greater equalization of property is one of the state's most urgent tasks. Not that he believes that men are equal by nature. Indeed, this is anothe- of those 'anarchic fallacies' on which he pours such a torrent of abuse. But his perception that inequalities are inevitable did not blind him to the fact that too great inequalities is an insuperable obstacle on the road to the greatest happiness. He recognized; and he was perfectly right in recognizing, that a society which is without gross inequalities of fortune is happier than one which is not.
There is one fundamental feature of Bentham's state which must be taken into cognizance. Though according to his principles the state can take far-reaching action so long as that will increase pleasure or decrease pain, though he himself passed "from an uncritical individualism to an uncritical collectivism," his state is nevertheless fundamentally a negative one. It has no integral relation with the moral life of the citizen. It seeks to change his behaviour : it cannot change him. It cannot help him to develop his character, ta bring out the best that is in him. For it is not the state that moulds the citizens, it is the citizens that mould the state.
Bentham never forgets that his state is a contrivance whereby man seeks to ensure happiness. It is not therefore a state which like Aristotle's, is prior to the individual. On the contrary, the individual is prior to it. He is endowed with reason, and is himself before ever he comes into the state, which thus in no sense can be regarded as more real than he is himself.
7 Fragment, Chap. IV, Sec. XXIV.
In short, Bentham's state is a trustee for the individual. It is a democratic state in full sense. He never considered the interests of the state superior to the interests of the individuals. That is why he, instead of extolling the English constitution, as his contemporaries had done, attacked it in right earnest. He pleaded for universal manhood suffrage, subject to the test of ability to read, annual parliaments, and vote by ballot. The object of all his proposals was "to secure the real and effective representation of the people" and to prevent political corruption. It is noteworthy that two out of these three proposals have since become law. The plea for annual parlia-
merits has been dropped, and is not likely to be revived. Bentham was eager that democracy should have its full sway. With this object he further recommended the equalizing of electoral districts, and the freedom of the press. He went still further and attacked the utility of the House of Lords and of monarchy on the ground that the interests of these institutions were not compatible with the interest of the people at large. He was convinced that a single-chambered legislature, renewable every year, was most in accord with the democratic principles. Bentham's faith lay in a republic, which he thought would be conducive to "both efficiency and economy and the supremacy of the people."
By means of his Constitutional Code, he hoped to better "this wicked world by covering it over with Republics." Neither monarchy nor limited monarchy, in his view, secures maximum happiness. "It is only when democracy rules that the interests of the governors and the governed become identical, for the greatest happiness of the greatest number is then the supreme end in view."8
The Purpose and Ends of Legislation
Bentham made his greatest contribution in the field of legislation. On the publication of his Principles of Morals and Legislation (1787), he became a sort of 'new Moses' of Legislation. . Statesmen from different parts of the world looked to him for practical guidance. He was particularly fitted to play the role of an ideal legislator in the Platonic sense ; for he was a man above parties and private interests, entirely devoted to the common well-being. The ends of legislation are, according to him, security, subsistence, abundance and equality. In simple language, the object is the good of the people. If laws are to be obeyed,,says Bentham, it is necessary that legislation should carry the people along with it. Unwilling obedience and general dissatisfaction mean ultimate revolution. He justified opposition to the state if that opposition would produce less pain than continued obedience. In that case, he says, it is the individual's "duty and interest" to "enter into measures of resistance". But this does no* mean that Bentham allowed the individual to resist the state ordi narily and frequently. He, in fact, always remained true to his theory that rights cannot be maintained against the state. He allowed the use of 'the right to resist' merely as a last resort and that too on the consideration of its utility. To avoid the chances of revolution, he advised the legislators that in order to secure cheerful obedience the reasons for legislation should be made plain and obvious to the people. By means of fear and reward people should be checked from pursuing their own selfish interests.
His Practical Reforms
8 Davidson, W. L. : op. cit., pp. 78-79.
The number of practical reforms which Bentham advocated are
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a legion. The principal among them, as summarized by Davidson, are : the reform of the corrupt and restricted parliamentary system ; a thorough-going municipal reform ; the humanization of the terribly cruel criminal law of the time ; the improvement of prisons and prison management; the abolition of imprisonment for debt; the elimination of the usury laws ; the repeal of religious test; the reform of the poor law ; the suppression of 'sturdy beggars'; the utilization of able-bodied paupers ; the training of pauper children ; the establishment of a vast scheme of national education ; the institution of 'frugality banks' (now known as savings banks) and friendly societies ; the following of a code for merchant shipping ; the protection of inventors ; the encouragement of local courts ; a comprehensive system of health legislation ; the creation of the public prosecutors and of advocates for the poor ; a thorough-going revision of hereditary rights; the supervision of scientific and philosophical foundation ; and the recall of public officials. It is needless to add that many of the reforms which Bentham ardently pleaded have since been incorporated into the laws of various lands.
Bentham's chief interest was in devising systems and methods of legislation that would surely conform to and serve this great end. His services to ethical and juristic science in connection with this work were of the utmost value. With sublime confidence in the infallibility of his judgment he formulated codes of international law, of constitutional law, of civil law, of criminal law, which, though failing of adoption by the denser-witted practical statesman of the day, embodied, nevertheless, principles and suggestions that have not failed of fruitfulness in later generations. He was eager "to see justice administered, and happiness secured to the deserving and the oppressed."9 With this object he criticized existing laws and the existing machinery for the execution of them. But he was never a more destructive critic. His object was primarily construction, and criticism was simply a means to this end.
Bentham realized that the laws of the day were in a chaotic condition and took upon himself the task of codifying them, but no encouragement was given to him in his own country. Encouragement came, however, from foreign lands, particulary from France and Russia. Applying his utilitarian principles to the laws of these countries, Bentham demonstrated how his theory would work in concrete instances.
9 Ibid., p. 92.
From the codification of laws Bentham turned his attention to the form in which laws were framed. He had no patience whatsoever with the unnecessary technicalities, redundancies, and obsolete phraseology fondly indulged in by framers of laws. Laws, he said, must be expressed in plain and short easily-followed sentences. They should be put within the easy reach of those who are held responsi-
ble for obeying them. Bentham seethingly criticized the mode of administering laws, which pressed most heavily on the poor. He condemned the dilatory methods of judges which involve unnecessary expenditure to the parties concerned, as also the miscarriage of justice arising from the technicalities of law. He had scant respect for the judge and heartily supported juries as a check on their despotism. "He insisted on individual responsibility in all judicial offices, and, as a corollary, advocated the propriety of only one judge to a tribunal ; plurality of judges trying a case meant weakened responsibility in each."
Likewise, Bentham was much interested in the theory of punishment and prison reforms. He held that the chief end of punishment was to prevent crime. It should not be merely vindictive. While recognizing the pleasure of revenge, Bentham held that it should be given a minor place in the award of punishment. Punishment should be exactly suited to the purpose. It should be neither more nor less. It should secure the good of the community. If capital punishment was necessary for the safety and security of society it was justifiable, otherwise not. Whether capital punishment was to be administered in cases other than murder, Bentham held, should be determined by considerations of utility, i. e., their effect upon the general good. The execution of justice should, as far as possible, be exhibted to the public eye so that prospective evil-doers seeing it would be frightened away from committing the crime.
On the whole, Bentham's emphasis is on the different theory of punishment. But this does not exclude the reformation of the criminal, which Bentham regards as "a part of the calculation of the balance of consequences in meting out punishment." He believed that a great many criminals and evil-doers were capable of improvement and that they could be restored to society as useful and self-respecting members. On the strength of this belief he advocated many principal reforms for the reformation of the criminal and for the teaching of industries while in confinement. He evolved a scheme known as 'Panopticon' for the systematic supervision of the daily life of the convicts. The prison buildings were to be arranged in such a fashion (semicircular) that the superintendent could have a view of all the cells from his residence. The scheme combined careful supervision and discipline with sympathy and improved environment. The criminals were to be taught not only useful trades but also to be given elementary education. Moral and religious training should be brought to bear upon them. On their discharge, criminals were to be provided with employment until they were able to regain the confidence of the public and stand on their own feet. Although many of these reforms did not come into beiDg in Bentham's day, the "vast reforms of prisons and penitentiaries that have taken