Principles of the Civil Code

Jeremy Bentham

Part 1

Objects of the Civil Law.

Chapter 6

Propositions of Pathology on which the advantage of Equality is founded.

Pathology is a term used in medicine. It has not hitherto been employed in morals, but it is equally necessary there. When thus applied, moral pathology would consist in the knowledge of the feelings, affections, and passions, and their effects upon happiness. Legislation, which has hitherto been founded principally upon the quicksands of instinct and prejudice, ought at length to be placed upon the immoveable base of feelings and experience: a moral thermometer is required, which should exhibit every degree of happiness and suffering. The possession of such an instrument is a point of unattainable perfection; but it is right to contemplate it. A scrupulous examination of more or less, in point of pleasure or pain, may at first be esteemed a minute enterprise. It will be said that we must deal with generalities in human affairs, and be contented with a vague approximation. This is, however, the language of indifference or incapacity. The feelings of men are sufficiently regular to become the object of a science or an art; and till this is done, we can only grope our way by making irregular and undirected efforts. Medicine is founded upon the axioms of physical pathology: morals are the medicine of the soul: legislation is the practical branch; it ought therefore, to be founded upon the axioms of mental pathology.

In order to judge of the effect of a portion of wealth upon happiness, it must be considered in three different states:

General observation.---When the effect of a portion of wealth upon happiness is spoken of, it is always without reference to the sensibility of the particular individual, and the exterior circumstances in which he may be placed. Difference of character is inscrutable; and there are no two individuals whose circumstances are alike. If these two considerations were not laid on one side, it would be impossible to form a single general proposition: but though each of these propositions may be found false or inexact in each particular case, it will neither militate against their speculative correctness, nor their practical utility. It is sufficient,---1st, If they approach more nearly to the truth than any others which can be substituted for them; and, 2ndly If they may be employed by the legislator, as the foundation of his labours, with less inconvenience than any others.

I. We proceed to the examination of the first case we have to examine---the effect of a portion of wealth when it has always been possessed.

  1. Each portion of wealth is connected with a corresponding portion of happiness.
  2. Of two individuals, possessed of unequal fortunes, he who possesses the greatest wealth will possess the greatest happiness.
  3. The excess of happiness on the part of the most wealthy will not be so great as as the excess of his wealth.
  4. For the same reason, the greater the disproportion between the two masses of wealth, the less the probability that there exists an equally great disproportion between the masses of happiness.
  5. The more nearly the actual proportion approaches to equality, the greater will be the total mass of happiness.

What is here said of wealth, ought not to be limited to pecuniary wealth: the term is used with a more extended signification, and includes every thing which serves for subsistence and abundance. It is for abbreviation's sake that a portion of wealth is spoken of, instead of a portion of the matter of wealth.

We have said, each portion of wealth is connected with a corresponding portion of happiness: strictly speaking, it should have been, has a certain chance of being so connected. The efficacy of any cause of happiness is always precarious; in other words a cause of happiness may not produce its ordinary effect; nor the same effect upon every individual. It is here that it is necessary to apply what has been said with respect to a particular sensibility and character and the variety of circumstances in which they may be found.

The second proposition is derived from be first: of two individuals, he who possesses the most wealth will possess the greatest happiness, or chance of happiness. This is a truth proved by the experience of all the world. I charge the man who would doubt it to give what he possesses of superfluity to he first person who asks it of him. This superfluity, according to his system, is worth no more than the sand on which he treads: it is a burden, and nothing else. The manna of the desert became corrupt, when more was collected than could be consumed. If, in the same manner, wealth, after it had reached a certain amount, did not give an increased chance of happiness, no one would wish for more than this amount, and the desire of accumulation would have an ascertained boundary.

The third proposition will be less contested. Place on one side one thousand labourers, having enough to live upon, and a trifle to spare: place on the other side a king, or, that he may not be troubled with the cares of royalty, a well apportioned prince, he himself as rich as all these labourers together. It is probable that his happiness will be greater than the medium happiness of each of them, but not equal to the sum-total of all their little masses of happiness; or, what amounts to the same thing, his happiness will not be one thousand times greater than the medium happiness of a single one among them. If the mass of his happiness should be found ten times, or even five times greater, this would still be much. The man who is born in the lap of wealth, is not so sensible of the value of fortune, as he who is the artisan of his own fortune. It is the pleasure of acquiring, and not the satisfaction of possessing, which is productive of the greatest enjoyment. The first is a lively sensation, sharpened by desire and previous privations: the other is a feeble sentiment, formed by habit, unenlivened by contrast, and borrowing nothing from imagination.

II. We proceed to the examination of the second case---the effect of a portion of wealth when it first comes into the hands of a new possessor. Observe, it will be proper to consider this gain as unexpected, and to suppose that this increase of wealth is received suddenly, and, as it were, by chance.

  1. By repeated divisions, a portion of wealth may be reduced to so small an amount as not to produce any happiness for any one of its co-partakers. This would happen if the portion of each were less than the value of the smallest known coin; but it is not necessary, to carry the division to this extreme point, in order that the proposition may be true.
  2. Among co-partakers of equal fortunes, the more completely, in the distribution of a portion of wealth, this equality is allowed to remain, the greater will be the total mass of happiness.
  3. Among co-partakers of unequal fortunes, the more the distribution of a portion of wealth contributes to their equality, the greater will be the total mass of happiness.

III. We proceed to the examination of the third case---the effect of a portion of wealth when it leaves the hands of its possessor. it will be again necessary to consider this loss as unexpected; to suppose that it is unlooked for. A loss is almost always unexpected, because a man naturally hopes to keep what he possesses. This expectation is founded upon the ordinary course of things; for if we look at the whole mass of men, they not only keep what they have acquired, but still further increase its amount. The proof is in the difference between the primitive poverty of every country and its actual wealth.

  1. 1. The loss of a portion of wealth will produce a loss of happiness to each individual, more or less great, according to the proportion between the portion he loses and the portion he retains.

    Take away the fourth part of his fortune, and you take away the fourth part of his happiness; and so of the rest. {Note}

    But there are cases in which this proportion does not continue. If, in taking three-fourths of my fortune, you trench upon my physical wants, and in taking only the half you leave these wants untouched, the loss of happiness will not be simply the half, but the double, the quadruple, the ten-fold of what it is in the other case: one knows not where to stop.

  2. (This point being settled.) The greater the number of persons with equal fortunes, among whom a given loss is divided, the less considerable the loss which results from it to the total mass of happiness.
  3. A certain point being reached, a further division would render each share impalpable. ne loss occasioned to the mass of happiness becomes null.
  4. Among unequal fortunes, the loss of happiness produced by a loss of wealth, will be so much the less when the distribution of the loss is made in such manner as to cause them to approach most nearly to equality: (when considered without reference to the inconveniences attached to the violation of security.)

Governments, profiting by the progress of knowledge, have favoured, in many respects, the principles of equality in the distribution of losses. It is thus that they have encouraged the establishment of assurance offices. In these useful contracts, individuals assess their shares beforehand, in order to be prepared for all possible losses. The principle of assurance, founded upon the calculation of probabilities, is only the art of distributing losses among a great number of associates, so as to render them extremely light, and almost null.

The same intention has directed princes, when they have made compensation, at the expense of the state, to such of their subjects as have suffered from public calamities or the devastations of war. Nothing could have been more wise, or better intended in this respect, than the administration of Frederick the Great: this is one of the most admirable points of view under which we can contemplate the social art.

Some few attempts have been made to indemnify individuals for the losses caused by crimes on the part of malefactors. The examples of this kind are, however, still rare. It is an object which deserves the attention of legislators, since by this means the evil of offences directed against property may be reduced almost to nothing. But such a system would require to be regulated with great care, that it might not become hurtful. It ought not to fiavour indolence or imprudence which neglects precautions against crimes, because secure of obtaining an indemnification. The utility of the remedy would depend, therefore, upon the manner in which it was administered. But it is a culpable indifference which, rejects a salutary measure, in order to spare itself the trouble of separating it from its inconveniences.

The principles laid down above will equally serve for regulating the distribution of a loss among many persons charged with a common responsibility. If their respective contributions follow the quantity of their respective fortunes, their relative condition will be the same as before; but if it be desirable to seize this occasion to make them approach more nearly to equality, a different proportion must be adopted. To assess them all equally, without regard to the difference of their fortunes, would be a third plan, which would accord neither with equality nor security.

In order to make this subject more clear, I shall present a compound case, in which there are two individuals, one of whom seeks a profit at the expense of the other. We shall then determine the effect of a portion of wealth, which, in order to pass into the hands of one individual in the shape of gain, must come out of the hands of another individual in the shape of loss.

1 Prop. Among competitors of equal fortunes, if what is gained by one be lost by another, the distribution which will leave the greatest sum of happiness, is that which would favour the defendant to the exclusion of the plaintiff.

For, 1st, The sum lost, bearing a greater proportion to the reduced fortune than to the increased fortune, the diminution of happiness for the one will be greater than the increase of happiness to the other. In a word, equality would be violated by an opposite distribution. (See note upon Gaming: the case is exactly the same.)

2d, The loser experiences the pain of disappointed expectation: the other is simply in the condition of not having gained. But the negative evil of not having gained, is not equal to the positive evil of having lost. (If this were not the case, everyman would experience this evil with regard to every thing which he did not obtain, and the causes of evil being infinite, every one ought to find himself infinitely miserable).

3d, Mankind in general appear to be more sensible of grief than pleasure from an equal cause. For example a loss which would diminish the fortune of an individual by one quarter, would take more from his happiness than would probably be added by a gain which should double it.{Note}

2 Prop. Among unequal fortunes, if the loser is the poorest, the evil of the loss will be increased by this unequality.

3 Prop. If the loser is the richest, the evil caused by the attack upon security, will be in part compensated by the portion of good arising from the progress made towards equality.

By the assistance of these axioms, which have to a certain point the character and certainty of mathematical propositions, it will be possible at length to produce a regular and constant rule for indemnities and satisfactions. Legislators have often shown a disposition to follow the counsels of equality under the name of equity to which greater latitude has been conceded than to justice: but, this idea of equity, vague and ill developed, has rather seemed a matter of instinct than of calculation. It is only by much patience and order that a multitude of incoherent and confused sentiments can be reduced into rigorous propositions.

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