Of the Influence of Time and Place in Matters of Legislation

Jeremy Bentham

Chapter 5

Influence of Time.

Section 2

§2. Prospective View.

Will the best possible laws, at the present period, be the best possible laws in all time to come?

Before a period be put to this chapter, it may naturally be expected that some notice should be taken of the immutability, which many have been so fond of attributing to certain laws, or pretended laws; as also of the much-talked-of distinction between mala in se and mala prohibita, with reference to actions; a distinction which seems analogous to the former.

How mighty in every branch of science, and in the moral branch in particular, how mighty and how universal is the force of words! How many questions, even of those of which one would least expect it, would, if examined with attention, be found to turn upon nothing else! Who would have thought it? Even the question concerning the immutability of certain laws, is of the number! The same act which ought to be forbidden in one age and country, ought it to be forbidden in every other? Yes, and No: yes, if, in pronouncing the word act, we have in view a large and general class of acts: no if a narrow and particular one. The plain truth of the matter is this: there are certain acts which admit of laws, which, if worded in a certain manner, may stand good, and be equally applicable to all places and times; while there are other acts for which no such laws can be devised. Under the former predicament come those acts, of which the name is included in a single word; such as murder, theft, adultery, perjury, and the like. Let no one commit murder; let no one commit theft; let no one commit adultery; let no one commit perjury; and so on. Upon this plan, we might make a variety of laws, of which the expediency might without impropriety be termed universal and immutable.

But laws, while the expression of them is, confined to terms so loose and so extensive, will never be found precise and clear enough for use. The act thus vaguely described must, before it can be thoroughly understood and perfectly distinguished, be broken down into species: the law relating to it must, accordingly, be broken down into a multitude of laws: the phrase, pure as it stands now, must be transformed into others, in which provisions of an expository, limitative, or exceptive nature, will be necessary. Now, among these qualifying provisions, will in every case be some, the effect of which is to except out of the general prohibition certain cases, in which the act is either commanded or allowed by some other branch of the code of law. Now, of these qualifying provisions, some, it will be found, ought, in point of expediency, to be different in one country from what they are in another; different in the same country at one time from what they are at another: and this is the secret history of the universality and immutability of these universal and immutable laws.

The notion concerning the essential distinction between mala in se, and mala prohibita, is a sort of counterpart and consequence of the former. Mala in se are the offences that are forbidden by the laws that are immutable: mala prohibita, such as are prohibited by laws that are not immutable.

The common notion of this distinction (as far as a distinction which has no clearness in it is capable of an explanation) seems to be this. Mala in se, which I suppose is put instead of mala per se, are acts which are evil of themselves; that is, although there be no political law by which they stand prohibited: mala prohibita are such acts as are indeed evil, but would not have been so, had it not been for the law by which they stand prohibited.

The foundation of this distinction is none the clearest: but to throw some little matter of light upon all this darkness, the following observations may be of use:---

If any act can with propriety be termed pernicious, it must be so in virtue of some events which are its consequences: this has been clearly shown already; therefore no act can, strictly speaking, be mala in se, in itself pernicious; nor even of, or by itself, any farther than the words of or by may be understood to exclude the influence of certain laws. Now, then, as to mala prohibita. Why is it that any act is prohibited, if prohibited with good cause? Because the events, which are its consequences, are pernicious, if the law is a good one. The distinction between mala in se and mala prohibita, therefore, appears but verbal. If the consequences are otherwise than pernicious, the law, and whatever punishment it is sanctioned by, are groundless, and thence improper.

Again, the distinction pretends to suppose abstraction to be made of subsisting political laws; but, in truth, no such abstraction is ever made. The cases in which the taking the goods of another is theft, depend upon the laws; and a similar observation may be made with regard to other acts, considered as mala in se: even killing becomes murder, only in the absence of any ground of extenuation or justification allowed by the law. On the other hand, the evil of acts termed mala prohibita, does not arise from the prohibitory law itself, but is the result of that cluster of laws, by which the negative or positive act, directed to be done or omitted, is applied to beneficial purpose.

The evil, however, of an act which becomes mischievous, in consequence of the establishment of certain laws, is not less real than that of an act mala in se. The evil of such an act may, indeed, far exceed the evil even of an act of murder. Let such an act be the non-payment of taxes: let the deficiency rise to a certain amount. an enemy breaks in, and among the consequences of the irruption are many thousand homicides, which, if they have not the name, have the effect of murder.

Were I to choose to what I would (most truly and readily) attribute these magnificent prerogatives of universality and immutability, it should rather be to certain grounds of law, than to the laws themselves: to the principles upon which they should be founded: to the subordinate reasons deducible from those principles, and to the best plan upon which they can be put together: to the considerations by which it is expedient the legislator should suffer himself to be governed, rather than to any laws which it is expedient he should make for the government of those who stand committed to his care.

On this ground, then, a man engaged in a design like that which is the object of this work, might lay claim to the attributes of universality and eternity for the rectitude of his doctrines, with as little arrogance as he could claim for them the most confined and temporary expediency, provided that in the execution of his plan, he has boldness and strength of mind enough to set apart all along whatsoever is peculiar to particular times and places, and to raise his contemplation to that elevated point from which the whole map of human interests and situations lies expanded to his view.

The rules concerning the cases that are respectively meet and unmeet for punishment and for reward; the rules concerning the proportion proper to be observed between offences and punishments, between acts of merit and reward; the rules concerning the properties to be wished for in a lot of punishment and reward; the principles on which the division of offences has its foundation; the principles on which the various methods of attacking offences by indirect or far-fetched means: all these, if they are just and proper now, would at any time have been so, and will be so every where, and to the end of time. They will hold good, so long as pleasure is pleasure, and pain is pain; so long as steel wounds, fire burns, water seeks a level, bread nourishes, inanition destroys; so long as the tooth of the slanderer keeps its venom; so long as difference of sex attracts; so long as neighbour needs the help of neighbour; so long as men. derive credit or fortune from their ancestors, or feel an affection for their children.

The author of a work entitled ``Public Happiness'', has maintained that the condition of man has gone on progressively ameliorating from the commencement of time; and Dr. Priestley has expressed his expectation that man will ultimately attain a degree of happiness and knowledge which far surpasses our present conceptions. These glorious expectations remind us of the golden age of poetry: they have, however, this advantage; the happiness of which they speak is to come, and we are not discouraged by vain regrets for what is past.

We may hope, then, that in future time improvements will be made, among other things, in the practice of legislation. But we must only consider that the laws have reached the maximum of their perfection, and that men have obtained the maximum of their happiness, inasmuch as it depends upon the laws, when great crimes shall be known only by the laws which prohibit them: when the catalogue of prohibited acts shall no longer contain actions the evil of which is imaginary: when the rights and duties of the different classes of men shall be so well defined in the civil code, that there shall be no suits arising upon points of law: when the system of procedure shall be so simplified, that the disputes which from time to time may arise upon questions of fact, shall be terminated without any other expense or delay than is absolutely necessary: when the courts of justice, though always open, shall be rarely resorted to: when nations, having laid aside their arms and disbanded their armies by mutual agreement, and not from mutual weakness, shall only pay almost imperceptible taxes: when commerce shall be free, so that what may be done by many, shall not be restricted exclusively to a small number; and when oppressive taxes, prohibitions, and bounties, shall not prevent its natural development: when perfect liberty shall be allowed to those branches of trade which require liberty, and positive encouragements shall be granted to those which require it: when, from the perfection of constitutional law, the rights and duties of public officers shall have been so well distributed, and the dispositions of the people to submit and to resist so well tempered, that the prosperity resulting from the preceding causes shall be beyond the danger of revolutions: and, in conclusion, when the law, which should be the rule of human actions, shall be concise, intelligible, without ambiguity, and in the hands of every one.

But to what will the happiness arising from all this amount? It may be described as the absence of a certain quantity of evil. It will arise from the absence of a part of the different evils to which human nature is subject. The increase of happiness which will hence result, is doubtless sufficiently great to excite the zeal of all virtuous minds in this career of perfection which is open to us; but there is nothing in it unknown or mysterious, and which cannot be perfectly understood.

Every thing beyond this is chimerical. Perfect happiness belongs to the imaginary regions of philosophy, and must be classed with the universal elixir and the philosopher's stone. In the age of greatest perfection, fire will burn, tempests will rage, man will be subject to infirmity, to accidents, and to death. It maybe possible to diminish the influence of, but not to destroy, the sad and mischievous passions. The unequal gifts of nature and of fortune will always create jealousies: there will always be opposition of interests; and, consequently, rivalries and hatred. Pleasures will be purchased by pains; enjoyments by privations. Painful labour, daily subjection, a condition nearly allied to indigence, will always be the lot of numbers. Among the higher as well as the lower classes, there will be desires which cannot be satisfied; inclinations which must be subdued: reciprocal security can only be established by the forcible renunciation by each one, of every thing which might wound the legitimate rights of others. If we suppose, therefore, the most reasonable laws, constraint will be their basis: but the most salutary constraint in its distant effect is always an evil, is always painful in its immediate operation.

The limits of perfectibility are not so easily assigned in some other points: it is not possible to say precisely how far the human mind may go in the regions of poetry, in the different branches of literature, in the fine arts, as painting, music, &c. It is, however, probable that the sources of novelty will be exhausted; and that, if the instruments of pleasure become more exquisite, taste will become proportionably severe.

This faithful picture, the result of facts, is more worthy of regard than the deceptive exaggerations which excite our hopes for a moment, and then precipitate us into discouragement, as if we had deceived ourselves in hoping for happiness. Let us seek only for what is attainable: it presents a career sufficiently vast for genius; sufficiently difficult for the exercise of the greatest virtues. We shall never make this world the abode of perfect happiness: when we shall have accomplished all that can be done, this paradise will yet be, according to the Asiatic idea, only a garden; but this garden will be a most delightful abode, compared with the savage forest in which men have so long wandered.

This discussion has been necessary in order to show, that scarcely at present have just ideas been formed of perfection in matters of government. Until the grand principle of utility had been exhibited; until it had been separated from the two false principles with which it had been unceasingly confounded; until, by the aid of this principle, the end to be pursued, and the means to be employed, had been recognised; until, so to speak, all the legislative apparatus had been provided, and all the fundamental truths had been arranged, it was impossible to form any precise notion of a perfect system of legislation. But if at length these different objects have been accomplished, the idea of its perfection is no longer a chimera: it is, so to speak, presented to him who knows how to appreciate it: he may trace the whole of its horizon; and though no one now living may be permitted to enter into this land of promise, yet he who shall contemplate it in its vastness and its beauty may rejoice, as did Moses, when on the verge of the desert, from the mountain top, he saw the length and the breadth of that good land in to which he was not permitted to enter and take possession.

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