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sometimes done, to consider the convulsive trembling, which often occurs in connection with mere ebriosity or liquorappetite, as delirium tremens, and to regard it as proof of a mental disease already existing in the inebriate. For the criminalist, it is only important to inquire,' whether the condition of the inebriate carries in itself the signs of a true mental disease, which is characterized by an absence of the consciousness of the actor, or whether the phenomena are only the consequences of corporeal suffering, without the consciousness of the actor being thereby affected. In the first case only is the disease a ground of exculpation, and in the second it relieves from responsibility precisely in the same manner as other bodily affections may do,” when they exert an influence upon the mental activity, so long as this influence falls short of that degree of strength, in which the consciousness of the actor is entirely destroyed.
* See also Heinroth, System of Psychological Medicine, p. 263; Clarus, Contributions, p. 142. * Jarcke, in Hitzig's Journal, No. 23, p. 37.
ART. III.-BENTHAM’S THEORY OF LEGISLATION.
Theory of Legislation; by JEREMY BENTHAM. Translated from the French of ETIENNE DUMONT, by R. Hildreth. In two volumes 12mo, Boston: Weeks, Jordan & Co. 1840.
In an article published some time since (vol. xx, p. 332,) under the head of the “Greatest-Happiness-Principle,” we took occasion to express our opinion of the celebrated author of the theory of legislation, in his threefold character of a philosopher, an exposer of existing abuses, and a legislative reformer. In the work before us, he appears in the first and last of these characters, but chiefly in the last. The principle of utility, as it is called, is laid down and practically applied as the basis of legislation. The theory of legislation is considered under three divisions, namely: principles of legislation,-principles of the civil code,-and principles of the penal code. The principles of the civil code are treated of in three parts, 1, objects of the civil law; 2, distribution of property; and, 3, rights and obligations attached to certain private conditions. The principles of the penal code are examined in four parts, 1, of offences; 2, political remedies against the evil of offences; 3, of punishments; and, 4, indirect means of preventing offences. This treatise was compiled and arranged from Bentham's manuscripts, by Dumont, who performed the part of a sort of literary accoucheur to his distinguished friend, by rendering his works into French, and ushering them into the world. The principles of legislation, which are first treated of, and which make the foundation of the civil and the penal codes, are all embraced in the one general principle of utility, or the greatest happiness of the greatest number. In the article above alluded to, we have already expressed our opinion regarding the truth and value of this principle as a principle of action; and have stated it as our belief, that the greatest happiness of the greatest number ought not to be considered as the ultimate end and object of human government and laws. In the same article, we also mentioned the remarkable fact, that Bentham himself, towards the close of his life, repudiated the greatest-happiness-principle, as wanting in that clearness and correctness, which had originally recommended it to his notice and adoption. The reasons for this change of opinion are given at length in the first volume of the Deontology, which was compiled and published after Bentham's decease, by his English editor, Bowring. How far this change of opinion, on the part of the author, would have induced him to modify the principles which he originally founded upon it, it is impossible for us now to say; but the fact must be considered at least to render their value somewhat doubtful. Agreeing as we do with Bentham, in his last opinion, we shall not undertake to criticise the work before us, any further than simply to show from it, what it was, which, in the mind of the author, constituted the greatest happiness of the greatest number, Lor, in other words, to give a definition of the principle of utility.
It is clear, that the truth of the principle, which makes the greatest happiness of the greatest number the governing principle of action, must depend upon the idea we have of happiness; and we can scarcely doubt, that a great majority of our readers will have little difficulty in coming to a just conclusion, when they are informed that Bentham regarded happiness as synonymous with the mere personal gratification of the individual, independent of all considerations of right or duty. The following extracts from the principles of legislation will show that we are not mistaken in this matter.
“I am a partisan of the principle of utility when I measure my approbation or disapprobation of a public or private act by its tendency to produce pleasure or pain; when I employ the words just, unjust, moral, immoral, good, bad, simply as collective terms including the ideas of certain pains or pleasures; it being always understood that I use the words pain and pleasure in their ordinary signification, without inventing any arbitrary definition for the sake of excluding certain pleasures or denying the existence of certain pains. In this matter we want no refinement, no metaphysics. It is not necessary to consult Plato, nor Aristotle. Pain and pleasure are what every body feels to be such—the peasant and the prince, the unlearned as well as the philosopher.
He who adopts the principle of utility, esteems virtue to be a good only on account of the pleasures which result from it; he regards vice as an evil only because of the pains which it produces. Moral good is good only by its tendency to produce physical good. Moral evil is evil only by its tendency to produce physical evil; but when I say physical, I mean the pains and pleasures of the soul as well as the pains and pleasures of sense. I have in view man, such as he is, in his actual constitution.”
“This principle [the ascetic] is exactly the rival, the antagonist of that which we have just been examining. Those who follow it have a horror of pleasures. Every thing which gratifies the senses, in their view, is odious and criminal. They found morality upon privations, and virtue upon the renouncement of, one's self. In one word, the reverse of the partisans of utility, they approve every thing which tends to diminish enjoyment, they blame every thing which tends to augment it.”
“The philosophical party never reproved pleasures in the mass, but only those which it called gross and sensual, while it exalted the pleasures of sentiment and the understanding. It was rather a preference for the one class, than a total exclusion of the other.”
“Every one makes himself the judge of his own utility; such is the fact, and such it ought to be ; otherwise man would not be a rational agent. He who is not a judge of what is agreeable to him, is less than a child ; he is an idiot.”
Among pleasures, Bentham enumerates,
“Pleasures of Sense. Those which can be immediately referred to our organs independently of all associations, viz. the pleasures of taste, of smell, of sight, of hearing, of touch, especially the blessing of health, that happy flow of spirits, that perception of an easy and unburdensome existence, which cannot be referred to any of the senses in particular, but which appertains to all the vital functions; finally the pleasures of novelly, those which we experience when new objects are applied to our senses. They do not form a separate class, but they play so conspicuous a part, that it is necessary to mention them expressly.”
“Pleasures of Power. Those which a man experiences who perceives in himself the means of disposing others to serve him
through their hopes or their fears; that is, by the fear of some evil, or the hope of some good which he can do them.”
“Pleasures of Malevolence. They result from the sight or the thought of pain endured by those beings who do not love us, whether men or animals. They may also be called pleasures of the irascible passions, of antipathy, or of the anti-social af. fections.”
Among pains are enumerated,
“Pains of Malevolence. These are the pains we experience at reflecting on the happiness of those we hate. They may also be called pains of antipathy, pains of the anti-social af. fections.”
The following extracts are equally clear.
“The whole system of morals, the whole system of legislation, rests upon a single basis, and that basis is, the knowledge of pains and pleasures. It is the only foundation of clear ideas upon those subjects. When we speak of vices and virtues, of actions innocent or criminal, of a system remuneratory or penal, what is it that we speak of 2 Of pains and pleasures, and of nothing else. A reason in morals or politics, which cannot be translated by the simple words pain or pleasure, is an obscure and sophistical reason, from which nothing can be concluded.
You wish for example, to study the subject of offences, that great object which directs all legislation. This study, at bottom, will be nothing but a comparison, a calculation, of pains and pleasures. You consider the criminality or the evil of certain actions,—that is, the pains which result from them to such and such individuals; the motive of the delinquent, that is, the expectation of pleasure, which led him to commit the action in question ; the advantage of the offence,—that is, the acquisition of pleasure which has resulted from it; the legal punishment which ought to be inflicted,—that is, what pain the guilty person ought to undergo. It thus appears that the theory of pains and pleasures is the sole foundation of all knowledge upon the subject of legislation.”