If we consider the relation of Ethics to Politics from a Utilitarian point of view, the question, what rules of conduct for the governed should be fixed by legislators and applied by judges, will be determined by the same kind of forecast of consequences as will be used in settling all questions of private morality: we shall endeavour to estimate and balance against each other the effects of such rules on the general happiness. In so far, however, as we divide the Utilitarian theory of private conduct from that of legislation, and ask which is prior, the answer would seem to be different in respect of different parts of the legal code.
1. To a great extent the rules laid down in a utilitarian code of law will be such as any man sincerely desirous of promoting the general happiness would generally endeavour to observe, even if they were not legally binding. Of this kind is the rule of not inflicting any bodily harm or gratuitous annoyance on any one, except in self-defence or as retribution for wrong; the rule of not interfering with another's pursuit of the means of happiness, or with his enjoyment of wealth acquired by his own labour or the free consent of others; the rule of fulfilling all engagements freely entered into with any one,---at any rate unless the fulfilment were harmful to others, or much more harmful to oneself than beneficial to him, or unless there were good grounds for supposing that the other party would not perform his share of a bilateral contract---; and the rule of supporting one's children while helpless, and one's parents if decrepit, and of educating one's children suitably to their future life. As regards such rules as these, Utilitarian Ethics seems independent of Politics, and naturally prior to it; we first consider what conduct is right for private individuals, and then to how much of this they can advantageously be compelled by legal penalties.
2. There are other rules again which it is clearly for the general happiness to observe, if only their observance is enforced on others; e.g. abstinence from personal retaliation of injuries, and a more general and unhesitating fulfilment of contracts than would perhaps be expedient if they were not legally enforced.
3. But again, in the complete determination of the mutual claims of members of society to services and forbearances, there are many points on which the utilitarian theory of right private conduct apart from law would lead to a considerable variety of conclusions, from the great difference in the force of the relevant considerations under different circumstances; while at the same time uniformity is either indispensable, to prevent disputes and disappointments, or at least highly desirable, in order to maintain effectively such rules of conduct as are generally---though not universally---expedient. Under this head would come the exacter definition of the limits of appropriation,---e.g. as regards property in literary compositions and technical inventions,---and a large part of the law of inheritance, and of the law regulating the family relations. In such cases, in so far as they are capable of being theoretically determined, Utilitarian Ethics seems to blend with Utilitarian Politics in a rather complicated way; since we cannot determine the right conduct for a private individual in any particular case, without first considering what rule (if any) it would be on the whole expedient to maintain, in the society of which he is a member, by legal penalties, as well as by the weaker and less definite sanctions of moral opinion. This problem, moreover, in any concrete case is necessarily further complicated by the consideration of the delicate mutual relations of Positive Law and Positive Morality---as we may call the actual moral opinions generally held in a given society at a given time. For on the one hand it is dangerous in legislation to advance beyond Positive Morality, by prohibiting actions (or inactions) that are generally approved or tolerated; on the other hand, up to the point at which this danger becomes serious, legislation is a most effective instrument for modifying or intensifying public opinion, in the direction in which it is desirable that it should progress. Leaving this difficult question of social dynamics, we may say that normally in a well-organised society the most important and indispensable rules of social behaviour will be legally enforced and the less important left to be maintained by Positive Morality. Law will constitute, as it were, the skeleton of social order, clothed upon by the flesh and blood of Morality.