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 the strong 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 correct his 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.
V.ENGLISH LAW
The practical value of Bentham's method is perhaps best illustrated by his Rationale of Evidence.The composition of the papers ultimately put together by J.S.Mill had occupied Bentham from 1802to 1812.The changed style is significant.Nobody could write more pointedly,or with happier illustrations,than Bentham in his earlier years.He afterwards came to think that a didactic treatise should sacrifice every other virtue to fulness and precision.To make a sentence precise,every qualifying clause must be somehow forced into the original formula.Still more characteristic is his application of what he calls the 'substantive-preferring principle.'(61)He would rather say,'I give extension to an object,'than 'I extend an object.'Where a substantive is employed,the idea is 'stationed upon a rock';if only a verb,the idea is 'like a leaf floating on a stream.'A verb,he said,(62)'slips through your fingers like an eel.'The principle corresponds to his 'metaphysics.'