Lecture VI: The Period of Benthamism or Individualism

Lecture VI.Individualism as regards legislation is popularly, and not without reason, connected with the name and the principles of Bentham. The name of one man, it is true, can never adequately summarise a whole school of thought, but from 1825 onwards the teaching of Bentham exercised so potent an influence that to him is fairly ascribed that thorough-going though gradual amendment of the law of England which was one of the main results of the Reform Act.

Bentham’s genius and position were fully understood by his contemporaries.

“The age of law reform and the age of Jeremy Bentham are one and the same. He is the father of the most important of all the branches of reform, the leading and ruling department of human improvement. provement. No one before him had ever seriously thought of exposing the defects in our English system of jurisprudence. All former students had confined themselves to learn its principles—to make themselves masters of its eminently technical and artificial rules; and all former writers had but expounded the doctrines handed down from age to age. . . . He it was who first made the mighty step of trying the whole provisions of our jurisprudence by the test of expediency, fearlessly examining how far each part was connected with the rest; and with a yet more undaunted courage, inquiring how far even its most consistent and symmetrical arrangements were framed according to the principle which should pervade a code of laws—their adaptation to the circumstances of society, to the wants of men, and to the promotion of human happiness.

“Not only was he thus eminently original among the lawyers and the legal philosophers of his own country; he might be said to be the first legal philosopher that had appeared in the world.”

These are the words of Brougham, published in 1838; they strike the right note. Bentham was primarily neither a utilitarian moralist nor a philanthropist: he was a legal philosopher and a reformer of the law. The object of his lifelong labours was to remodel the law of England in accordance with utilitarian principles. These labours were crowned by extraordinary success, though the success was most manifest after the end of Bentham’s life. This is Bentham’s title to fame. His life cannot here be told, but it is well to insist upon the circumstances or conditions which favoured his success as a law reformer.

Both the date and the length of Bentham’s life are important.

He was born in 1748, two years after the failure of the last attempt to restore the Stuarts; he died immediately before the passing of the Reform Act, 1832. The eighty-four years of his life thus span over the period which divides the last endeavour to establish in England the real supremacy of the Crown from the commencement in England of modern democratic government. This era stretched indeed beyond the limits of the eighteenth century, but though Bentham lived till the first third of the nineteenth century had nearly come to an end, he was in spirit entirely a child of the eighteenth century, and in England was the best representative of the humanitarianism and enlightenment of that age. Length of days was no small aid in the performance of his life’s work. Bentham, like Voltaire, ultimately owed much of his authority to the many years for which he was able to press his doctrines upon the world. Iteration and reiteration are a great force; when employed by a teacher of genius they may become an irresistible power. For well nigh sixty years, that is to say to two generations, Bentham preached the necessity, and explained the principles, of law reform. He began his career as an unknown youth whose ideas were scouted by men of the world as dangerous paradoxes: he ended it as a revered teacher who numbered among his disciples lawyers and statesmen of eminence, and had won over to his leading ideas the most sensible and influential of English reformers.

Bentham was the son of a wealthy London attorney.

He thus formed one of that body of tradesmen, merchants, and professional men who, as the “middle class,” had at the beginning of the nineteenth century long exercised great influence in public life, and at the moment of his death were about to become the true sovereign of England. And Bentham, though distinguished among his fellows by his genius, his enlightenment, and his zeal for the public good, belonged, to a far greater extent than he or his opponents perceived, in spirit no less than in position, to the middle classes. He shared their best ideals. When he taught that the aim of law as of life was to promote the greatest happiness of the greatest number, he meant by happiness no far-fetched conception of well-being, but that combination of an honest and industrious life with the enjoyment of modest wealth and material comfort, which is felt to be an object of desire by an ordinary Englishman. He spoke the language of his countrymen, and the men of the middle class whom he addressed understood his meaning. The character and the wealth of Bentham’s father are circumstances not to be overlooked. The elder Bentham recognised his son’s extraordinary gifts and set his heart on seeing him rise to the position of Mansfield or of Eldon. This commonplace ambition was the torment of Jeremy’s youth, but it had one good effect. It induced or compelled Bentham to study with care the actual law of England; he was saved from being one of those jurists who know a little of every law but their own. His father’s wealth even more profoundly affected Bentham’s career. He never had to rely upon fees for his support. At his father’s death he became possessed of ample means. Thus he was able to follow, as he did follow through life, the bent of his own genius.

His genius was of the rarest quality.

In Bentham’s intellect were united talents seldom found in combination; a jurist’s capacity for the grasp of general principles and the acumen of a natural born logician were blended with the resourcefulness of a mechanical inventor. In studying Bentham’s intellectual character we are reminded that, if he was the follower of Hobbes and of Locke, he was the contemporary of Arkwright and of Watt. How near Bentham’s turn of mind lay to that of men renowned for mechanical inventions may be seen from a transaction which has perplexed and sometimes amused his admirers. He devoted trouble, money, thought, and time to the creation of the “Panopticon” or “Inspection-house,”—that is, a model prison so planned that from one point in the building could be seen all that was going on in every other portion of the establishment. Of the mixed ingenuity and weakness of Bentham’s plan nothing need here be said; the point to be noticed is the light which the scheme throws on the nature of Bentham’s intellect. The Panopticon was a mechanical contrivance from which, if rightly used, he, after the manner of ingenious projectors, expected untold benefits for mankind; “morals reformed, health preserved, industry invigorated, instruction diffused, public burdens lightened, economy seated as it were upon a rock, the Gordian knot of the poor-law not cut but untied—all by a simple idea in architecture!” He was in truth created to be the inventor and patentee of legal reforms. It is in this inventiveness that he differs from and excels his best known disciples. Austin may have equalled him in the capacity for analysing legal conceptions, James Mill may have surpassed him in metaphysical subtlety, John Mill had acquired under a course of elaborate training a more complete philosophical equipment, and was endowed by nature with wider sympathies than Bentham; but neither Austin, nor James Mill, nor John Mill, possessed any touch of Bentham’s inventive genius, nor in fact made any suggestion, which was at once original and valuable, for the amendment of the law of England.

The course of Bentham’s life was, however, finally determined, neither by the opportuneness of circumstances, nor by the possession of wealth, nor even by the peculiarity of his intellectual gifts, but by the nature and the development of his moral character.

In early manhood he was “converted”—I use the term deliberately, as it better gives my meaning than does any other expression—to an unshakeable faith in that form of utilitarianism which places the object of life in the promotion of “the greatest happiness of the greatest number.” When about twenty years of age he found this formula in a pamphlet of Priestley’s and accepted it as the guide of his life.

“It was by that pamphlet and this phrase in it,” writes Bentham, “that my principles on the subject of morality, public and private, were determined. It was from that pamphlet and that page of it that I drew the phrase, the words and import of which have been so widely diffused over the civilised world. At the sight of it, I cried out as it were in an inward ecstasy, like Archimedes on the discovery of the fundamental principle of hydrostatics, Εὕρηκα. Little did I think of the corrections which within a few years on a closer scrutiny I found myself under the necessity of applying to it.” With this combine the following expressions taken from Bentham’s note-books.

“Would you appear actuated by generous passion? be so.—You need then but show yourself as you are.”

“I would have the dearest friend I have to know, that his interests, if they come in competition with those of the public, are as nothing to me. Thus I will serve my friends—thus would I be served by them.”

“Has a man talents? he owes them to his country in every way in which they can be serviceable.”

This creed, however, which we should now term the enthusiasm of humanity, need not have impelled Bentham to labour at the reform of the law. That his passion for the furtherance of human happiness took this particular form, arose from his becoming possessed by the two convictions that legislation was the most important of human pursuits, and that Jeremy Bentham was born with a genius for legislation.

“ ‘Have I,’ he asked, ‘a genius for anything? What can I produce?’ That was the first inquiry he made of himself. Then came another. ‘What of all earthly pursuits is the most important?’ ‘Legislation,’ was the answer Helvetius gave. ‘Have I a genius for legislation?’ Again and again was the question put to himself. He turned it over in his thoughts; he sought every symptom he could discover in his natural disposition or acquired habits. ‘And have I indeed a genius for legislation?’ I gave myself the answer, fearfully and tremblingly, ‘Yes.’ ”

Of these convictions the first was shared by the best thinkers of the eighteenth century, and contained an immense amount of relative truth; the need of the time was the reform of the institutions of Europe. The second was absolutely true, and its truth has been recognised by the wisest men of the generations which have followed Bentham; he was in very truth the first and greatest of legal philosophers.

My objects in this lecture are, first, to sketch in the merest outline the ideas of Benthamism or individualism, in so far as when applied by practical statesmen they have affected the growth of English law; next to explain and describe the general acceptance of Benthamism as the dominant legislative opinion of a particular era; and, lastly, to illustrate by examples the general trend of Benthamite or individualistic legislation.