Extract from Principles of the civil code in Theory of Legislation, trans R Hildreth, 8th edn, London, 1894.
According to Jeremy Bentham’s Theory of Legislation utilitarianism is an ethical foundation which determines that morality and legislation should be organised so as to provide the greatest happiness for the greatest number.
Bentham stressed that actions should be measured according to the contribution they made to the general happiness of society.
Bentham’s theory of social usefulness was taken up by John Stuart Mill and became a major element in the liberal conception of state policy objectives and reform.
In the first half of the nineteenth century, the doctrine of utilitarianism was practically applied to the shaping of various reforms including the framing of the New Poor Law and Edwin Chadwicks sanitary reform.
Extract from Principles of the civil code in Theory of Legislation, trans R Hildreth, 8th edn, London, 1894
The only object of government ought to be the greatest possible happiness of the community.
The happiness of an individual is increased in proportion as his sufferings are lighter and fewer, and his enjoyments greater and more numerous. The care of his enjoyments ought to be left almost entirely to the individual. The principal function of government is to guard against pains.
It fulfils this object by creating rights, which it confers upon individuals: rights of personal security, rights of protection for honour, rights of property, rights of receiving aid in case of need. To these rights correspond offences of different kinds. The law cannot create rights except by creating corresponding obligations. It cannot create rights and obligations without creating offences. It cannot command nor forbid without restraining the liberty of individuals.
It appears, then, that the citizen cannot acquire rights except by sacrificing a part of his liberty. But even under a bad government there is no proportion between the acquisition and the sacrifice. Government approaches to perfection in proportion as the sacrifice is less and the acquisition more.
In the distribution of rights and obligations, the legislator, as we have said, should have for his end the happiness of society. Investigating more distinctly in what that happiness consists, we shall find four subordinate ends
The more perfect enjoyment is in all these respects, the greater is the sum of social happiness: and especially of that happiness which depends upon the laws.
We may hence conclude that all the functions of law may be referred to these four heads:- To provide subsistence; to produce abundance; to favour equality, to maintain security.
Some persons may be astonished to find that Liberty is not ranked among the principal objects of law. But a clear idea of liberty will lead us to regard it as a branch of security. Personal liberty is security against a certain kind of injuries which affect the person. As to what is called political liberty, it is another branch of security, – security against injuries from the ministers of government. What concerns this object belongs not to civil, but to constitutional law.
These four objects of law are very distinct in idea, but they are much less so in practice. The same law may advance several of them; because they are often united. That law, for example, which favours security, favours, at the same time, subsistence and abundance.
But there are circumstances in which it is impossible to unite these objects. It will sometimes happen that a measure suggested by one of these principles will be condemned by another. Equality, for example, might require a distribution of property which would be incompatible with security.
When this contradiction exists between two of these ends, it is necessary to find some means of deciding the pre-eminence; otherwise these principles, instead of guiding us in our researches, will only serve to augment the confusion.
At the first glance we see subsistence and security arising together to the same level; abundance and equality are manifestly of inferior importance. In fact, without security, equality could not last a day; without subsistence, abundance could not exist at all. The two first objects are life itself; the two latter, the ornaments of life.
In legislation, the most important object is security. Though no laws were made directly for subsistence, it might easily be imagined that no one would neglect it. But unless the laws are made directly for security, it would be quite useless to make them for subsistence. You may order production; you may command cultivation; and you will have done nothing. But assure to the cultivator the fruits of his industry, and perhaps in that alone you will have done enough
Equality ought not to be favoured except in the cases in which it does not interfere with security; in which it does not thwart the expectations which the law itself has produced, in which it does not derange the order already established.
If all property were equally divided, at fixed periods, the sure and certain consequence would be, that presently there would be no property to divide. All would shortly be destroyed. Those whom it was intended to favour, would not suffer less from the division than those at whose expense it was made. If the lot of the industrious was not better than the lot of the idle, there would be no longer any motives for industry..
What can the law do for subsistence? Nothing directly. All it can do is to create motives, that is, punishments or rewards, by the force of which men may be led to provide subsistence for themselves. But nature herself has created these motives, and has given them a sufficient energy. Before the idea of laws existed, needs and enjoyments had done in that respect all that the best concerted laws could do. Need, armed with pains of all kinds, even death itself, commanded labour, excited courage, inspired foresight, developed all the faculties of man. Enjoyment, the inseparable companion of every need satisfied, formed an inexhaustible fund of rewards for those who surmounted obstacles and fulfilled the end of nature. The force of the physical sanction being sufficient, the employment of the political sanction would be superfluous
But the laws provide for subsistence indirectly, by protecting men while they labour, and by making them sure of the fruits of their labour. Security for the labourer, security for the fruits of labour; such is the benefit of laws; and it is an inestimable benefit.
Shall laws be made directing individuals not to confine themselves to mere subsistence, but to seek abundance? No! That would be a very superfluous employment of artificial means, where natural means suffice. The attraction of pleasure; the succession of wants; the active desire of increasing happiness will procure unceasingly, under the reign of security, new efforts towards new acquisitions. Wants, enjoyments, those universal agents of society, having begun with gathering the first sheaf of corn, proceed little by little, to build magazines of abundance, always increasing but never filled. Desires extend with means. The horizon elevates itself as we advance; and each new want, attended on the one hand by pain, on the other by pleasure, becomes a new principle of action. Opulence, which is only a comparative term, does not arrest this movement once begun. On the contrary, the greater our means, the greater the scale on which we labour; the greater is the recompense, and, consequently, the greater also the force of motive which animates to labour.
Now what is the wealth of society, if not the sum of all individual wealth? And what more is necessary than the force of these natural motives, to carry wealth, by successive movements, to the highest possible point?
We come now to the principal object of law, – the care of security. That inestimable good, the distinctive index of civilization, is entirely the work of law. Without law there is no security; and, consequently, no abundance, and not even a certainty of subsistence; and the only equality which can exist in such a state of things is an equality of misery..
To form a precise idea of the extent which ought to be given to the principle of security, we must consider that man is not like the animals, limited to the present, whether as respects suffering or enjoyment; but that he is susceptible of pains and pleasures by anticipation; and that it is not enough to secure him from actual loss, but it is necessary also to guarantee him, as far as possible, against future loss. It is necessary to prolong the idea of his security through all the perspective which his imagination is capable of measuring.
This presentment, which has so marked an influence upon the fate of man, is called expectation. It is hence that we have the power of forming a general plan of conduct; it is hence that the successive instants which compose the duration of life are not like isolated and independent points, but become continuous parts of a whole. Expectation is a chain which unites our present existence to our future existence, and which passes beyond us to the generation which is to follow. The sensibility of man extends through all the links of this chain.
The principle of security extends to the maintenance of all these expectations; it requires that events, so far as they depend upon laws, should conform to the expectations which law itself has created.
Every attack upon this sentiment produces a distinct and special evil, which may be called a pain of disappointment..
The better to understand the advantages of law, let us endeavour to form a clear idea of property. We shall see that there is no such thing as natural property, and that it is entirely the work of law.
Property is nothing but a basis of expectation; the expectation of deriving certain advantages from a thing which we are said to possess, in consequence of the relation in which we stand towards it.
Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.
As regards property, security consists in receiving no check, no shock, no derangement to the expectation founded on the laws, of enjoying such and such a portion of good. The legislator owes the greatest respect to this expectation which he has himself produced. When he does not contradict it, he does what is essential to the happiness of society; when he disturbs it, he always produces a proportionate sum of evil..
In consulting the grand principle of security, what ought the legislator to decree respecting the mass of property already existing?
He ought to maintain the distribution as it is actually established. It is this which, under the name of justice, is regarded as his first duty. This is a general and simple rule, which applies itself to all states; and which adapts itself to all places, even those of the most opposite character
When security and equality are in conflict, it will not do to hesitate a moment. Equality must yield. The first is the foundation of life; subsistence, abundance, happiness everything depends upon it. Equality produces only a certain portion of good. Besides, whatever we may do, it will never be perfect; it may exist a day; but the revolutions of the morrow will overturn it. The establishment of perfect equality is a chimera; all we can do is to diminish inequality.
If violent causes, such as a revolution of government, a division, or a conquest, should bring about an overturn of property, it would be a great calamity, but it would be transitory, it would diminish; it would repair itself in time. Industry is a vigourous plant which resists many amputations, and through which a nutritious sap begins to circulate with the first rays of returning summer. But if property should be overturned with the direct intention of establishing an equality of possessions, the evil would be irreparable. No more security, no more industry, no more abundance! Society would return to the savage state whence it emerged
Is it necessary that between these two rivals, Security and Equality, there should be an opposition, an eternal war? To a certain point they are incompatible: but with a little patience and address they may, in a great measure, be reconciled.
The only mediator between these contrary interests is time. Do you wish to follow the counsels of equality without contravening those of security? await the natural epoch which puts an end to hopes and fears, the epoch of death.
When property by the death of the proprietor ceases to have an owner, the law can interfere in its distribution, either by limiting in certain respects the testamentary power, in order to prevent too great an accumulation of wealth in the hands of an individual; or by regulating the succession in favour of equality in cases where the deceased has left no consort, nor relation in the direct line, and has made no will. The question then relates to new acquirers who have formed no expectations; and equality may do what is best for all without disappointing any
It is worthy of remark that, in a nation prosperous in its agriculture, its manufactures, and its commerce, there is a continual progress towards equality. If the laws do nothing to combat it, if they do not maintain certain monopolies, if they put no shackles upon industry and trade, if they do not permit entails, we see great properties divided little by little, without effort, without revolution, without shock, and a much greater number of men coming to participate in the moderate favours of fortune. This is the natural result of the opposite habits which are formed in opulence and in poverty. The first, prodigal and vain, wishes only to enjoy without labour; the second, accustomed to obscurity and privations, finds pleasures even in labour and economy. Thence the change which has been made in Europe by the progress of arts and commerce, in spite of legal obstacles. We are at no great distance from those ages of feudality, when the world was divided into two classes: a few great proprietors, who were everything, and a multitude of serfs, who were nothing. These pyramidal heights have disappeared or have fallen; and from their ruins industrious men have formed those new establishments, the greater number of which attests the comparative happiness of modern civilization. Thus we may conclude that Security, while preserving its place as the supreme principle, leads indirectly to Equality; while equality, if taken as the basis of the social arrangement, will destroy both itself and security at the same time.
Ought we to reckon among those wants of the state which ought to be provided for by forced contributions, the care of the indigent?.
In the highest state of social prosperity, the great mass of citizens will have no resource except their daily industry; and consequently will be always near indigence, always ready to be thrown into a state of destitution, by accidents, such as revolutions or commerce, natural calamities, and especially sickness. Infancy has no means of subsisting by its own strength; the feebleness of old age is equally destitute..
There are only two means, independently of the laws, of making head against these evils, viz., savings and voluntary contributions
The resource of savings is insufficient. 1st, it evidently is so for those who do not gain enough to subsist upon; 2nd, it is equally so for those who gain a mere subsistence. As to the third class, which embraces all not included in the first two, savings are not naturally insufficient, but they become so through the deficiency of human prudence.
Let us now pass to the other resource voluntary contributions. That, too, has many imperfections.
1st. Its uncertainty. It will experience daily vicissitudes, like the fortune and the liberality of the individuals on whom it depends. Is it insufficient? Such junctures are marked by misery and death. It is superabundant? It will offer a reward to idleness and profusion.
2nd. The inequality of the burden. This supply for the wants of the poor is levied entirely at the expense of the more humane and the more virtuous, often without any proportion to their means; while the avaricious calumniate the poor, to cover their refusal with a varnish of system and of reason. Such an arrangement is a favour granted to selfishness, and a punishment to humanity, that first of virtues.
3rd. The inconveniences of the distribution. If these contributions are abandoned to chance, as in the case of alms asked on the highway; if they are left to be paid, as occasion occurs, without any person intermediate between him who gives and him who asks, the uncertainty as to the sufficiency of these gifts is aggravated by another uncertainty. How appreciate in a multitude of cases the degree of want and of need?
In the division of voluntary contributions, the lot of the honest and virtuous poor is seldom equal to that of the imprudent and obstreperous beggar.
It seems to me, after these observations, that we may lay it down as a general principle that the legislator ought to establish a regular contribution for the wants of indigence, it being understood that those only are to be regarded as indigent who are in want of what is absolutely necessary. From this definition of the indigent, it follows that their title as indigent is stronger than the title of the proprietor of superfluities as proprietor. For the pain of death, which would presently fall upon the starving poor, would be always a more serious evil than the pain of disappointment which falls upon the rich when a portion of his superfluity is taken from him.
In the amount of the legal contribution we ought not to go beyond what is simply necessary. To go beyond that would be taxing industry for the support of idleness. Those establishments which furnish more than is absolutely necessary are not good, except so far as they are supported at the expense of individuals, for individuals can make a discrimination in the distribution of these aids, and apply them to specific classes.
The details of the manner of assessing this contribution, and distributing its produce, belong to political economy, as also the inquiry into the means of encouraging a spirit of economy and foresight in the lower classes of society.