Principles of the Civil Code

Jeremy Bentham

Part 2

Chapter 5

Of Rights Respecting Services---Means of Acquiring Them

After things, it remains to distribute services: a kind of property sometimes confounded with things---sometimes presenting itself under a distinct form.

How many kinds of services are there? As many as there are ways in which man may be useful to man either by procuring good for him, or by preserving him from evil.

In the exchange of services which constitutes social intercourse, some are free, some are forced. Those which are required by the law, constitute rights and obligations. I have a right to the services of another; he is in a state of obligation with regard to me: these two terms are correlative.

In their origin, all services must have been free: it is only by degrees that the laws have intervened to convert the more important into positive rights. It is thus that the institution of marriage has converted into legal obligations the connexion which formerly was voluntary between the husband and wife, between the father and the children. The law in the same manner has converted into an obligation, in certain states, the support of the poor, a duty which still remains amongst most nations in undefined liberty. These political duties are, with respect to duties purely social, the same as particular inclosures in a vast common, in which a certain kind of cultivation is tended with precautions which insure its success. The same plant might grow in the common, and even be protected by certain conventions; but it would always be subject to more hazards, than in this particular boundary traced by the law, and guaranteed by the public force.

Still, whatever the legislator may do, there are a great number of services upon which he has no hold: he cannot direct them, because it is not possible to define them, and even because constraint would change their nature, and convert them into evils. For the punishment of their violation, such an apparatus of research and of punishments would be required, as would spread terror through society. Besides, the law does not know the real obstacles which prevent their being rendered: it cannot put into activity hidden forces; it can not create that energy, that superabundance of zeal, which surmounts difficulties, and goes a thousand times farther than commands.

The imperfection of the law upon this point is corrected by a species of supplemental law; that is to say, by the moral or social code---a code which is not written---which consists altogether in opinion, in manners, customs---and which begins where the legislative code ends. The duties which it prescribes---the services it imposes, under the names of equity, patriotism, courage, humanity, generosity, honour, disinterestedness, do not directly borrow the assistance of the law, but derive their strength from other sanctions which lend their punishments and rewards. As the duties of this secondary code do not bear the impress of the law, their discharge has more eclât---is more meritorious; this surplus in honour happily compensate for their deficiency in real strength. After this digression respecting morals, let us return to legislation.

The kind of services which occupy the most prominent place consists in the disposal of property of one kind or another.

The kind of property which acts the greatest part in civilized society is money, the almost universal representative standard. It is thus that the consideration of services often leads back into that of things.

There are cases in which it is necessary to require the service for the advantage of him who commands it: such is the case of master with relation to the servant.

There are some cases in which it is necessary to require the service for the advantage of him who obeys: such is the case of the guardian and ward. These two correlative states are the foundation of all others. The rights which belong to them are the elements of which all the other states are composed.

The father ought to be, in certain respects, the guardian---in others, the master of the child. The husband ought to be, in certain respects, the guardian---in others, the master of the wife.

These conditions are capable of a definite and indefinite duration, and form domestic society. The rights which it is proper should belong to them will be treated of separately. The public services of the magistrate and the citizen constitute other classes of obligations, the establishment of which belong to the constitutional code. But besides these constant relations, there are some transitory and occasional relations in which the law may require the services of an individual in favour of another

The means of acquiring these services, or, in other words, the causes which determine the legislator to create these obligations, may be referred to three heads: 1. Superior need. 2. Former service. 3. Agreement or Contract. Let us consider these heads in detail.

1. Superior Need;

That is to say, need of receiving the service, superior to the inconvenience of rendering it.

Every individual has for his constant occupation the care of his own welfare---an occupation no less legitimate than necessary: for suppose that it were possible to reverse this principle, and to give to the love of others a superiority over self-love, the results of this arrangement would be most ridiculous and disastrous. There are, however, many occasions, in which it is possible to make considerable addition to the happiness of others, by a slight and almost imperceptible sacrifice of one's own. To do, in certain circumstances, what depends upon us for preventing the evil ready to fall upon another, is a service which the law may require; and the omission of this---in the cases in which the law has exacted it, would be a kind of offence which might be called a negative offence, in order to distinguish it from a positive offence, which consists in being one's self the instrumental cause of an evil.

But to employ one's efforts, however light they may be, may be an evil: to be constrained to employ them is certainly one, for all constraint is an evil. Hence, in order to exact from you some service in favour of me, the evil of not receiving it ought to be so great and the evil of rendering it so small, that no one ought to fear to undergo the one, for the prevention of the other: there is no means of fixing the precise limits. Reference must be made to the circumstances of the parties interested, by leaving to the judge the care of pronouncing upon the cases of individuals as they present themselves.

The good Samaritan, by assisting the wounded traveller, saved his life. It was a noble action, a trait of virtue; we may say more, it was a moral duty. Ought it to have been made a political duty?---ought an action of this kind to be commanded by a general law? No; not, at least, unless tempered by exceptions more or less vague. It would be proper, for example, to establish a dispensation in this case in favour of a surgeon attending upon many wounded persons in extreme danger---or of an officer going to his post to repel the enemy---or of the father of a family going to the assistance of one of his children in danger.

This principle of superior need is the foundation of many obligations. The duties required of a father towards his children may be burthensome to him; but this evil is nothing, in comparison of the evil which would result from their neglect. The duty of defending the state may be still more burthensome; but if the state were not defended, it would not exist. When the taxes are not paid, the government is dissolved. When public functions are not discharged, the course is open for all kinds of misfortunes and all kinds of crimes.

It must be understood that the obligation of rendering the service falls upon a certain individual, in consequence of his particular situation, which gives him, more than any other one, the power or the inclination of discharging it. It is thus that a guardian for orphans is chosen from among their relations or friends, to whom this duty will be less burthensome than to a stranger.

2. Former Service---

Service rendered, in consideration of which there is required of him who received the benefit, an indemnity, an equivalent, in favour of him who has supported the burthen.

Here the object is more simple: it is only necessary to value a benefit already received, in order to assign an indemnification. Less latitude need be left to the discretion of the judge.

A surgeon has given his assistance to a sick person who had lost all feeling, and who was not in a condition to send for him. A depositary has employed his labour, or has made pecuniary advances necessary for the preservation of the deposit, without being required so to do. A man has exposed himself during a fire, to save valuable property, or to rescue persons in danger. The property of an individual has been thrown into the sea, to lighten the vessel and preserve the rest of the cargo. In all these cases, and in a thousand others which might be imagined, the laws ought to secure an indemnification as the price of the service.

This title is founded upon the best of reasons: Grant the indemnification; he who has supplied it will still be a gainer: refuse it, and you leave him who has rendered the service a loser.

This regulation would be less for the advantage of him who receives the indemnification, than for those who may stand in need of services: it would be a promise made beforehand, to every man who may have the opportunity of rendering a service burthensome to himself, for the purpose of preventing any opposition between his personal interest and his benevolence. Who shall say how many evils would be prevented by such a precaution? In how many cases has not prudence arrested the legitimate desires of benevolence? Would it not be wisdom on the part of the legislator, as much as possible to reconcile them? Ingratitude, it is said was punished at Athens as a species of fraud which obstructed the communication of benefits, by weakening this kind of credit. I do not propose to punish, but to prevent it in many cases. If the man to whom you have rendered a service is ungrateful, it is of no consequence. the law, which does not reckon upon virtues, secures you an indemnity, and on essential occasions will make the indemnity rise to a reward.

Reward! this is the true means of obtaining services: in comparison with this, punishment is a feeble instrument. In order properly to punish the omission of a service, it is proper to be sure that the individual had the power of rendering it---that he had not an excuse for not rendering it. All this requires a difficult and doubtful procedure: besides, as it acts by means of the fear of punishment, that only will be done which is absolutely necessary for avoiding the punishment. But the hope of reward animates the hidden powers, triumphs over real obstacles, and gives birth to prodigies of zeal and ardour, in cases in which threats would have only produced repugnance and dejection.

In arranging the interest of the two parties, three precautions should be observed: first, to prevent a hypocritical generosity from converting itself into tyranny, and requiring the price of a service that would not have been received, if it had not been believed to be disinterested: the second is, not to allow a mercenary zeal to snatch a reward for services that might have been rendered by the party to himself, or obtained at a less expense: the third is, not to allow a man to be overwhelmed by a crowd of assistants, who can only be fully indemnified by exchanging for a loss all the advantage of the service.

It is easily understood that former service forms a justifying base to many classes of obligations. It is upon this that the rights of parents over their children are founded: when, in the order of nature, the strength of adult age succeeds to the weakness of early years, the necessity of receiving ceases, the duty of restitution begins. It is upon this that the rights of wives, during the period of the union, is equally founded, when time has effaced the attractions which were its first moving causes.

Establishments at the public expense for those who have served the state, repose upon the same principle. Reward for past services, is an instrument for creating future services.

3. Agreement or Contract;

That is to say, the making a promise between two or more persons, upon the understanding that it is regarded as legally binding.

All that has been said relative to consent in the disposal of property, applies to consent in the disposal of services: The same reasons for sanctioning this disposal as for sanctioning the other---the same fundamental axiom---every alienation of service implies advantage: no one will bind himself except from a motive of utility.

The same reasons which annul consent in the one case, annul it in the other---undue concealment, fraud, coercion, subornation, erroneous supposition of legal obligation, erroneous supposition of value, interdiction, infancy, madness, pernicious tendency of the execution of the contract without fault of the contracting parties.

We shall not dwell upon the following causes which produce the dissolution of a contract:---1. Accomplishment; 2. Compensation; 3. Express or tacit remission; 4. Lapse of time; 5. Physical impossibility; 6. Intervention of a superior inconvenience. In all these cases, the reason which had sanctioned the service no longer exists; but the two last bear only on the literal or specific accomplishment, and may leave occasion for an Indemnity. If, in a reciprocal contract, one of the parties alone have performed his part, or if he have only done more than the other, compensation becomes necessary for the restoration of an equilibrium.

An exhibition of principles only, is here attempted, without attending to the details: arrangements must necessarily vary, to correspond with the diversity of circumstances. At a11 times, if a small number of rules are well understood, particular arrangements will not create much difficulty, and may be all directed by the same spirit. The following rules appear sufficiently simple, to allow their developments to be passed by:---

  1. Avoid producing the pain of disappointment.
  2. When a portion of this evil is inevitable, diminish it as much as possible, by dividing a loss among the parties interested, in proportion to their property.
  3. Observe, in the distribution, to throw 1he greater part of the loss upon him who ought, by his attention, to have prevented the evil, in such manner as to punish his negligence.
  4. Avoid especially the production of an accidental injury greater than the evil of the disappointment.

General Observation.

We have laid the foundation of the whole theory of obligations in utility: we have supported the whole of this vast edifice upon three principles: Superior Need, Former Service, Agreement or Contract. Who would believe that to arrive at notions so simple, and even so familiar, it has been necessary to open a new route? Consult the masters of the science---Grotius, Puffendorf, Burlamqui, Vattel, even Montesquieu himself, Locke, Rousseau, and the crowd of commentators: do they wish to ascend to the principle of obligations? They speak of a natural right, of a law anterior to man, of the divine law, of conscience, of a social contract, of a tacit contract, &c. &c. I know that these terms are not incompatible with the true principle; because there is not one of them that may not be brought, by explanations more or less long, to signify some good or some evil. But this oblique and winding method announces uncertainty and embarrassment, and does not put an end to disputes.

They have not seen that a contract, speaking rigorously, is no reason in itself, and that it requires a foundation---a first and independent reason. A contract serves to prove the existence of the mutual advantage of the parties contracting. It is this reason of utility which gives it force: it is by this that the cases may be distinguished in which it ought to be confirmed, from those in which it ought to be annulled. If a contract constituted a reason in itself, it would always have the same effect; if its pernicious tendency render it void, it is then its useful tendency which renders it valid.

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