II.: The right aim of legislation is the carrying out of the principle of utility, or, in other words, the proper end of

This principle, obtained as we have seen from Priestley, is the formula with which popular memory has most closely connected the name of Bentham.

With the objections to which the principle of utility is open, either as a standard or as a source of morality, any person at all interested in ethical discussions is now well acquainted. In these lectures we are concerned with the utilitarian dogma as an axiom not of morals but of legislation, and one may with confidence assert that the principle of utility is far more easily applicable to law than to morals, and this for at least two reasons:—

First, Legislation deals with numbers and with whole classes of men; morality deals with individuals. Now it is obviously easier to determine what are the things which as a general rule constitute, or rather promote, the happiness or well-being of a large number of persons, or of a State, than to form even a conjecture as to what may constitute the happiness of an individual. To ensure the happiness of a single man or woman even for a day is a task impossible of achievement; for the problem wherein may lie the happiness of one human being is, though narrow, so infinitely complex that it admits not of solution. To determine, on the other hand, the general conditions which conduce to the prosperity of the millions who make up a State is a comparatively simple matter. Let it be noted, also, that whilst ethical maxims may aim at directly benefiting or ensuring the welfare of individuals, a law never attempts more than the production of a state of things favourable to the welfare of the citizens of a State. When it is said, in accordance with Benthamite phraseology, that a good law is a law productive of the greatest happiness of the greatest number, what is meant is not that a law really makes men happy, but that it favours the existence of the conditions under which it is likely that the persons subject to it may prosper, and obtain the happiness open to human beings. But here we come across another distinction.

Secondly, Law is concerned primarily with external actions, and is only in a very secondary and indirect manner concerned with motives. Morality, on the other hand, is primarily concerned with motives and feelings, and only secondarily and indirectly with actions. But it is far easier to maintain that the principle of utility is the proper standard or criterion of right action than that it supplies the foundation, or, at any rate, the whole of the foundation, on which rests the conviction that one feeling or motive is right and another wrong.

However this may be, the generality and the externality of law are the circumstances which enable us to test the goodness or the badness, the wisdom or the folly, of a given law by the criterion of utility. Indeed, if once the meaning of this standard be understood, it is hard to see how any one can deny its applicability, without involving himself in something like absurdity or self-contradiction. How can it be maintained that a law which on the whole increases human happiness is a bad law, or that a law which on the whole diminishes it is a good law? But if these questions supply their own answer, the principle of utility is admitted to be a good test, as far as it goes, of the character of a law; and half the plausibilities by which during the age of Blackstone the anomalies or absurdities of English law were defended turn out, when submitted to Bentham’s criterion, to be nothing better than hollow fallacies.

Ideas of happiness, it has been objected, vary in different ages, in different countries, and among different classes or races; a legislator therefore gains no real guidance from the dogma that laws should aim at promoting the greatest happiness of the greatest number.

To this objection, which assumes many different forms, there exist at least two answers.

The first is that, even if the variability of men’s conceptions of happiness be admitted, the concession proves no more than that the application of the principle of utility is conditioned by the ideas of human welfare which prevail at a given time in a given country. Nor, in truth, is there any reason why a convinced utilitarian should refuse to accept this conclusion. It embodies a principle of practical importance. In legislating for any country we must take into account the habits, the feelings, or the prejudices, of its inhabitants, and allow for their ideas of what constitutes happiness. Freedom of testamentary disposition is a right or a privilege which few Englishmen desire to surrender. The compulsory division into more or less equal shares of a deceased person’s property among his heirs is a fundamental principle of the law of France, and one which receives the approval of the French people. But testamentary freedom and the equal division of a deceased person’s property are at bottom inconsistent institutions. Must we therefore say that one or other of them is bad—i.e., is opposed to the principle of utility? Surely not. The reply both of good sense and of sound logic is that the law supporting testamentary freedom may be a good law for Englishmen, and the law supporting the equal division of a dead man’s property may be a good law for Frenchmen. Each law may promote the happiness of the people among whom it exists; the reason is that Englishmen and Frenchmen form in this matter different conceptions of happiness.

The second reply is that, as regards the conditions of public prosperity, the citizens of civilised states have, in modern times, reached a large amount of agreement. Who can seriously doubt—whatever be the idle contentions of paradox-mongers—that a plentiful supply of cheap food, efficient legal protection against violence or fraud, and the freedom of all classes from excessive labour conduce to the public welfare? What man out of Bedlam ever dreamed that a country was the happier for the constant recurrence of pestilence, famine, and war; but who then can deny that laws which promote the cultivation of the soil, ensure the public health, keep the country at peace, and avert invasion, are, as far as they go, good laws? To all these and similar questions the inhabitants of every country which enjoys European civilisation will give one and the same reply. Their general agreement, indeed, goes much further than this. Nowhere is it doubted by men of average intelligence that the reintroduction of torture or the re-establishment of slavery would be the gravest of calamities. We all have learned by this time that every kind of punishment which causes more pain than it averts is an evil. We all admit that the due and regular administration of justice, the promotion of education, the opening of various careers to the majority of the people, the extension of the innocent enjoyments of life among all classes, promote human happiness, and that laws which confer these benefits are good laws. In matters of legislation, in short, subtle refinements as to the nature of happiness are misplaced. The homely saying, that you ought not to weigh butcher’s meat in diamond scales, has a practical weight which is overlooked by paradoxical thinkers. Laws deal with very ordinary matters, and deal with them in a rough and ready manner. The character therefore of a law may well be tested by the rough criterion embodied in the doctrine of utility.

There exists, however, a good reason for examining with care an objection to which it is easy to supply conclusive answers. Bentham and his disciples have displayed a tendency to underestimate the diversity between human beings. Hence they have too easily supposed that the ideas of happiness prevailing at a given time throughout the civilised countries of Europe were entirely uniform; and have fallen into the further error of assuming that the same notion of happiness prevails in all countries, and has more or less prevailed in all ages. This supposition facilitates legislation, but, like all assumptions which are not strictly true, has led both to speculative and to practical mistakes. The weakness of the Benthamites as legislators has been, not their devotion to the principle of utility, but their feeling that laws which in the nineteenth century promoted the happiness of Englishmen must, with rare exceptions, promote at all times the happiness of the inhabitants of all countries.

The foundation then of legislative utilitarianism is the combination of two convictions. The one is the belief that the end of human existence is the attainment of happiness, or in other words, faith in the principle of utility; the other is the assurance that legislation is a science and that the aim of laws is the promotion of human happiness. Neither of these convictions entertained separately will make a man a legislative utilitarian.

A person may be a strict utilitarian and hold that the attainment of happiness is the true end and object of existence, yet if he does not believe that law may do much to produce human happiness, or fails to perceive that law is a science, he will hardly concern himself with the systematic reform of the law. A man, again, who believes that good legislation is conducive to human prosperity, will hardly be a successful law reformer if he does not grasp the connection between legislation and the principle of utility.

Samuel Johnson was in morals a thorough-going utilitarian, but he never displayed the remotest interest in the amendment of the laws of England. His nature was conservative, his turn of character, no less than his religious convictions, made him consider as slight the influence of laws on the happiness of mankind.

Paley stands in spirit nearer to Bentham. His theology and his moral philosophy are avowedly utilitarian. His writings betray a keen interest in legal problems. He possessed the intellect of an enlightened lawyer. But he probably did not believe that law could be treated as a science; he either had not grasped, or did not care to work out, the idea that the laws of England might be systematically remodelled so as to promote the greatest happiness of the greatest number of Englishmen. His philosophy, utilitarian though it was, is, in so far as he applied it to law, an ingenious defence of things as they stood in 1786. He is neither an innovator nor a reformer, but like Blackstone an apologist.

A man, on the other hand, may have a fervent belief that the laws of a country are radically wrong and may be prepared to advocate their change even at the cost of violence. If, however, he is guided by some idea of abstract right, as a thing independent of utility, he may, like Rousseau, popularise ideas which kindle a revolution, but he will hardly become a systematic law reformer. He is not possessed of any definite criterion by which to test the merits or defects of a law; he may perceive that things are wrong; he cannot perceive, as Bentham and his disciples saw, or thought they saw, a definite principle by the application whereof bad laws might in every case be either got rid of or amended. For utilitarianism in the field of legislation, whatever the speculative objections—and they are not small—which lie against it in the sphere of ethics, has one saving virtue. It directs a legislator’s attention to the consequences of any proposed enactment. An innovator who recommends or denounces a law or institution, because of its conformity or opposition to the law of nature or the moral instincts of mankind, is under the greatest temptation to make his own feelings the test of expediency, and is certainly less inclined than a Benthamite, to weigh the actual or probable effects of legislation; and if it be objected that zealots for the law of nature have often advocated or carried out beneficial changes, the best reply is, that the law of nature has often been a name for the dictates of obvious expediency. The privileges, for example, of the nobles under the Ancien Régime were in 1789 palpably opposed to the welfare of the French people. Bentham would have said that they were opposed to the principle of utility. A French reformer would have alleged that they were opposed to the law of nature. But this difference of language was at bottom little more than a different way of describing one and the same fact, viz., that the welfare of France required the establishment of equal civil rights among Frenchmen. Towards the close, indeed, of the eighteenth century, appeals to the doctrine of utility, and appeals to the law of nature were often in reality, though not in words, appeals to one and the same principle. The failure to perceive this led to some strange results. Bentham sometimes came into conflict with men who in reality shared his principles. He dissected with merciless severity the patent fallacies contained in the American Declaration of Independence, with its enumeration as self-evident truths of the dogmas that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are to be found the right to life, liberty, and the pursuit of happiness. To Bentham all these abstract statements of innate rights were as hateful as to Burke; they presented themselves to his mind as a mere “hodge-podge of confusion and absurdity.” But the American Declaration of Independence did, nevertheless, though in a form open to every logical objection, embody that faith in laissez faire which was in practice the most potent and vital principle of Benthamite reform.