Of the Influence of Time and Place in Matters of Legislation

Jeremy Bentham

Chapter 5

Influence of Time.

Section 1

§1. Retrospective View.

Would the best possible laws, at the present period, have been the best possible laws in times past?

On this occasion, we must once more bring to view the distinction between matters of fact and the matter of right, or rather of expediency; between what his taken place, and what ought to have taken place. That in rude ages the tenor of the laws has always been very different from what would be the standard of perfection for the present age, is not to be disputed. That it could not but have been so without a miracle, is also pretty clear. But were the imperfect laws which obtained then better for that time than the most perfect which We can imagine now would have been for the same time? The affirmative is what seems to have been insinuated, but, as it should seem, without sufficient cause.

There are two classes of people, from whom this notion seems to have gained countenance; the one consisting of those who, from indolence or timidity, or less pardonable motives, have found it convenient to set their faces against every proposal that savours of improvement or reformation. To people of this description, it must have seemed the happiest contrivance imaginable, if from the very excellence of a system of laws they could raise an argument, and that a conclusive one, against its fitness. Such an argument, when sifted to the bottom, will indeed be found to be a contradiction in terms: but how few are they by whom such arguments can be sifted to the bottom? If they can get such an argument to apply to the laws of past times, the next step is to transfer it to the present. Get such an argument to pass muster in the first case, in which there is but little reason in it, and perhaps you may get it received in the other case, in which there is no reason in it at all.

The other class of people are those who have a system to defend, which, without some such expedient, would be indefensible. This is the case with the votaries of all those absurd and false religions which have descended into the details of legislation. Viewed by the light of polished reason, the defects of our code are too glaring to be dissembled. Say, then, that from causes peculiar to that age, it could not have been better. That to invest it with the authority of law in present times, would appear to be a measure equally ridiculous and destructive in any country, in which the defects of it are not veiled by the thickest prejudice, is not to be denied. That this pretended emanation of divine wisdom would be found worse than the worst of those systems of law which are in force in polished nations, is scarcely to be disputed with any prospect of success. What is to be done? There is but one thing; which is, to take the blame off the shoulders of the legislator, and lay it upon the people. Say they were stupid, stubborn, prejudiced, intractable: this will put you at your ease. You may then acknowledge, and acknowledge with safety, that in a certain sense the laws were bad; and this will entitle you to maintain, that in another sense they are good: they were bad in theory, but they were good, the best possible, in practice: they were bad in appearance, but they were the best possible in effect.

The plea is plausible enough while it keeps to generals; and as there is no other, it must be made the most of. Distress of argument forced it from minds engrossed by prejudice; and it may pass, as any thing else would pass, upon those who are prejudiced the same way. But come to particulars, the illusion vanishes. Take what nation you will; give them what character you please: where could have been the advantage that injuries should have been left without redress; that men should be teazed and perplexed by a chain of minute and frivolous obligations; that punishments, perhaps of the severest kind, should be heaped on them for acts from which no mischievous consequences can be traced; that when the act, which is forbidden, happens to be of the number of those that are pernicious, no account should be taken of the various grounds of justification, aggravation, extenuation, and exemption, which are pertinent to the case; that punishments should be inflicted without measure and without choice; that no enumeration should be given of the grounds of right, nor any complete set of principles established for the decision of claims to property; that the business of judicial procedure should be abandoned to arbitrary discretion; and that, where power of any other sort is given, no care should be taken to shape it to its end, by the necessary apparatus of obligations, qualifications, and exceptions?

If there be any ground for denying the truth of the position, that the laws which are the best for a civilized, would have also been the best for a rude age in any case, it is in the case of that part of the law which concerns punishments, and that part of it which concerns the laws in principium. In a very rude age, it is possible that punishments, in point of quantity, might require to be somewhat greater than it is necessary they should be in a civilized one. In a rude age, the religious sanction has commonly given but little assistance to the political: the force of the former, though much greater in a rude than a civilized age, being diverted into other channels; hence one reason why the quantum of punishment provided by the political sanction may require to be somewhat greater in the former period than in the latter. In a rude age, the moral sanction has less force than in a civilized one: hence another reason for adding something to the magnitude of the punishment provided by the political sanction. In a rude period of society, the people are not yet broken in to the habit of spontaneously lending their assistance to the laws: hence a third reason. The differences, however, that may be occasioned by these circumstances, can at the utmost be but very slight; especially if the maxim laid down in a former chapter be true, that even in a civilized age the whole complement of punishment that is judged necessary, must be taken from the political sanction, and that the auxiliary sanctions alone cannot safely be depended upon for any part of it.

If an intelligent Mahometan be to be found, press him upon the absurdity of the laws of Mahomet; drive him to his last shift: he will say, ``True: considered with regard to their application to the purposes of the present life, they are indeed not altogether what they might have been, if made now: but consider the time, consider the state of the people, the state of knowledge at that time. Such laws as a man might make now would not have been understood: they were excellent for the time; they were excellent for the people: better laws than those, the people would never have received. Such laws as a man might make now, either could not then have been expressed, or would not have been understood.''

To this argument there is a short answer: the words that Mahomet made use of we know: to those words the same ideas, or ideas that were the same to all material purposes, were annexed then, that are annexed now; so at least we must suppose, in as far as we pretend to understand them. Give me the words of the Koran; give me the ideas that belong to them; I ask no more out of them, and them alone, I undertake to produce you a code, which shall contain a hundred times the useful matter there is in that, without any of those absurdities, the existence of which, upon comparison made with the ideas of utility we have at present, you cannot but acknowledge.

But, better laws, though they could have been written at that time, and would have been understood, would not have been received; for the people were an ignorant, prejudiced, and headstrong people. This argument may also be demolished without much difficulty.

Ignorant, prejudiced, and stubborn as they were, did not your prophet tear from them their dearest, their most sacred prejudices? Were they not polytheists, and did he not make them unitarians? Did he not search out with the severest diligence the crimes and vicious propensities they were most addicted to? Throughout the whole of his system and of his proceedings, is any want of firmness, any of audacity, discernible? If not, there is but, one want, to which the imperfection of his system can any longer be attributed, the want of wisdom; the want of wisdom on the part of a man, who, you say, was taught by God himself; the want of a share of wisdom equal to what maybe found at present in a man of the most ordinary level.

My people will not endure even the most necessary restraints; I have therefore laid them under a vast multitude that are of no use. Such logic may pass upon some minds; bat they must first of all have been prepared by a pretty ample dose of prejudices.

The energy of character necessary to enable a man to lead mankind, to influence as well the intellectual faculties as the affections; the character to which we have given the name of enthusiasm, is made up of a determined active courage, and a rambling imagination. No coward, no man even of selfish prudence, was ever a founder of a new system of legislation. Nemo unquam vir magnus sine aliquo afflatu divino fuit, says Cicero: the plain truth of this, as far as it is true, is, that the energy of the head, in the degree in which it is necessary to constitute a legislator, I mean always an enterprising innovating legislator, is always accompanied with a more than common degree of energy in the heart.

It is not to considerations of personal prudence that the imperfections of the laws of Mahomet must be attributed: he attempted every thing that his genius had discovered. The defects in his work arose from want of knowledge: if he had known better, he would have done better. This conclusion, if true, completely overturns the foundations of the Mahometan religion: hence he has neglected nothing that could enable him to elude it; and the universal ignorance of its professors is partly the result of the contrivance of the legislator to prevent the detection of his imposture.

It is a saying attributed to Solon, that the laws he had given to the Athenians were not such as were the best in themselves, but the best they were capable of receiving. In this there was doubtless somewhat of truth, especially when applied to that turbulent and jealous people; and the saying would hold good, in the greatest degree, in regard to the constitutional branch of their laws; but that, it was strictly true, one may venture without much hesitation to deny.

There could not have been a more convenient maxim for saving the credit of a legislator; and those who have had a legislator to defend, have not failed to make the most of it. But there are few maxims, perhaps, that have been carried so much beyond the mark: and it has been frequently cited in cases where it has not only been erroneous in itself, but not altogether innocent in its consequences.

Whatever Athenian arrogance may pretend, it will not easily gain credit with a discerning mind, that at so early a period of society the best of all possible laws should have presented themselves to view. It will not be believed, that among a people whose character disqualified them from receiving any better laws than those which Solon gave them, there should have existed a man, who in his own mind had carried that most difficult of sciences to so high a pitch of perfection, that it will never be possible for any other man to carry it higher.

This sort of apology, what degree of truth soever there may have been in it, in the instance in which it has been made, has since been much abused; and it has been employed to gain a reputation of wisdom and expediency for many a mischievous and many a foolish law. The law, such as it is, lies before you; yet foolish as you may think it, the lawgiver may, for aught that you know, have been the wisest of mankind. But such as the author is, such are his works. Since, then, the lawgiver is wise, the law itself may perhaps be a wise one too, how foolish soever it may appear to you; it may have had its use, though you and I don't see it. Let the law, then, stay where it is; to abolish it, is dangerous: a mischief may ensue, which we are not able to foresee. Such is the circle in which many a man who, insensible to the force of truth, has nothing to guide him but the prejudice he has conceived in favour of antiquity, scruples not to run. If any one has a mind to see how far the legislator was entitled to the benefit of this plea, let him consider in what channel the prejudices of the people are likely to have run, and in what points they are likely to have imposed a coercion upon the legislator. It is natural enough they should have opposed any important violent change he might have been inclined to make in the article of religion; and yet we have seen religions overthrown by the legislator, and others set up in their stead. It is natural enough they should oppose the investing men with new powers, or making a new distribution of the old; and yet in this way, too, we have seen great changes made by legislators, with little or no opposition on the part of the people. It is natural enough they should oppose any wishes he might form, or might be suspected to entertain, of subjecting them to new and irksome restraints or obligations; although among the most necessary restraints and obligations, we shall find some of the most irksome. But a supposition, that is not by any means a natural one, is, that by dint of menaces and clamour they should have forced him to fetter their own freedom, by a heap of idle, trifling, and ridiculous obligations and restraints. When a code, amidst all its redundancies, defective, and regulations of the most obvious use and necessity are looked for in it in vain, it is not a mere ipse dixit that will warrant us to give credit for utility to institutions, in which not the least trace of utility is discernible.

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