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principle of the law itself, which defines the mutual and reciprocal rights and duties of men, and the absolute duties of men.
What is called the System of Utility is supported by the great names of Hobbes, Bentham and Austin. But the system of Hobbes was different from that of Bentham, (based on the suggestions of Hume and Helvetius,) which was adopted by Austin. What Hobbes meant by utility was the utility of the individual ; what they meant by utility was the utility of the individual and the public. The system of individual utility consists in this, that every man has a right to everything that is useful for the satisfaction of his wants or his pleasures. The limitation of his right is the physical impossibility which may exist as to his acquisition of objects which he thus finds to be useful; and this physical impossibility will result either from the weakness and incompetency of his own nature, or the resistance occasioned by the fact that others are pursuing the same objects, and are better equipped for their attainment. From these premises Hobbes drew his celebrated and necessary paradox that the natural state of man is war, war by every man against every other man. It has been said that he simply consecrated the right of the strongest; but that is not true in the sense that it would generally be understood; for by a very metaphysical train of thought, difficult to follow and difficult to refute, he worked out government and a system of regular laws from the resistance which all men in a given society oppose to the acquisitions of any one particular individual.
There is a certain resemblance between his system and that of Kant, which we shall notice hereafter ; but there is this intrinsic difference, that the former speaks as if under conviction that it is mere physical force that keeps every man from getting everything that he finds useful for his wants or for his pleasures, while the latter admits the restraining force of moral sentiments. It was from his thus ignoring the moral sentiments that a moral taint was supposed to inhere in the writings of Hobbes, which has conferred on him the distinction of being perhaps the best abused man that ever
lived, unless it were Spinoza, and he and Spinoza incurred public odium in the self-same way. They both attempted to treat metaphysical questions with geometrical precision. Therefore it was that Hobbes discarded the moral sentiments as not being subject to any rigid and definite rule, not meaning to deny their existence. These writers were contemporaries, and their conceit was one of the conceits of the time. Hobbes has had many admirers, but probably not many disciples.
The ablest and most zealous advocate of the theory of utility as understood by Bentham, that has arisen since Bentham died, is John Austin, whose works are so well known that it is not necessary to dwell on them here. The theory is that both law and morals rest on the basis of utility, general utility, including what is most useful to the individual, to others whose happiness depends on his acts, to the community, and to the world at large. The greatest good to the greatest number is the maxim which should govern all men, and which should guide all legislation. It is only by discovering what is useful in this larger sense, that we ascertain what is right. No one appears to have been more thoroughly convinced of the infallible truth of this doctrine than Mr. Austin; no one has supported it by more powerful argument. He left indeed but little to be said on that side. And yet in one place, in speaking of this conception, he said, “There are also considerable difficulties with which it really is embarrassed." The difficulties are certainly great. It denies the existence of a moral sense, except in so far as it may have been generated by considerations of utility. The sense of justice, which, when subjectively considered, is called conscience, is therefore not in any manner inherent in our natures. There is a theory, which is sometimes contended for, that every man is provided at his birth with a conscience, which is capable of guiding him continually in the path of rectitude; whose compunctious visitings unerringly reproach him for every violation of duty. But this is matter rather of dogmatic assertion than of argument or proof. The more intelligent friends of the doctrine of a moral sense choose
less lofty but more tenable ground. They insist that men are born with a sense of justice, just as they are born with a sense of the beautiful. Particular individuals may be wanting in either of these faculties; either may be obscured by ignorance or design; but that they exist to some extent with the vast majority of mankind, of whatever creed, race, or degree of civilization, is proved by all the facts of history.
It must be conceded that the system of utility is opposed to common ideas of duty. Duty is usually considered as something absolute, unchangeable, superior to man and to all human vicissitudes. On the other hand, utility is considered as something which varies according to time and place. It would often, if not generally, be impossible to prove that a particular act will on the whole be useful. It may be useful as far as we can see, be useful perhaps to the present generation, and injurious to the generations to come. The problem as to whether a given act will be useful on the whole, whether its advantages or disadvantages will on the whole preponderate, must not unfrequently be extremely complex. Men usually perform their duties without any such exhausting calculations of chances. They even conceive that the most sublime virtue is that which disdains all considerations of utility. Themistocles told the Athenian people that he had formed a plan which would be of the greatest advantage to Athens, but that it could not be carried out if made public. They directed him to communicate it to Aristides, who was requested to give them his opinion on the scheme. Having heard the proposal, Aristides returned to the assembly, and acquainted the Athenians “that nothing could be more advantageous than the project of Themistocles, nor anything more unjust," upon which the Athenians would hear no more of the matter.
What embarrasses the question is, that by extending the principle of utility to the whole community and to the whole race, it is made to cover the ground occupied by philanthropy, humanity and all the virtues. It may in this manner be proved that morality is useful. Utility and morals, when considered in their most extensive sense, certainly coincide. This is one
of the harmonies of the moral world. But this does not prove that morals are nothing but rules of utility. They may be and are useful, and they may be nevertheless based in certain sentiments and tendencies of humanity which exist independently of considerations of utility. Architecture is useful, and yet it subserves other ends besides. It is possibly a case of the old sophism: Cum hoc, ergo propter hoc. The doctrine of Bentham, like that of fatalism, is capable of gaining a strong dominion over the mind, but it is received reluctantly, and is retained with difficulty, in the heart. Tried by a purely logical or intellectual standard, the question is beset with the greatest perplexity; and no one can dismiss it in a summary way, except in the case that he has thought but little about it. Probably most persons who read Bentham or Austin carefully will give to their system their assent; and the probability is that most of the same persons will in a short time insensibly relapse into their old pagan unbelief, and will do right, if they do right, with little or no regard to the doctrine of utility.
The System of Sociability as it has been called was regarded as the strictly orthodox system down to the last century, and commanded the suffrages of such men as Grotius, Puffendorf and Burlamaqui, all claiming to discover its origin in the treatise of Cicero, “ De Legibus.” It is based on the assumption that society is a universal fact in the history of humanity. It is a necessary fact. It is not pertinent to enquire how or why it exists; the truth is primary, and must be taken as a starting point in all questions concerning law. It is therefore from the conditions of each society as expressed in positive law or in customs that we are to deduce the rights of every member of the given community. We understand this to be stated as a practical test; for the writers on this subject have a great deal to say about morals, certain general principles of equity, or the divine will, to which the positive law ought, in all cases, to conform; but they do not attempt to define in any very precise manner what these principles are. It has been, indeed, objected that the advocates of this theory assert that all human rights flow
from a state of society, and that, in the absence of society an individual has no rights properly speaking; but this is clearly a misapprehension. The authors referred to do, indeed, lay great stress on the social state as limiting and fixing rights, as a criterion of their existence; but they admit that, back of all positive laws, there exists the Divine will, by which the laws themselves are to be tried. Thus Cicero, in the work above cited, says:
“Let us then once more examine, before we come to the consideration of particular laws, what is the power and nature of law in general; but when we come to refer everything to it, we occasionally make mistakes from the employment of incorrect language, and show ourselves ignorant of the force of those terms which we ought to employ in the definition of law. This, then, as it appears to me, has been the decision of the wisest philosophers—that law was neither a thing contrived by the genius of man, nor established by any decree of the people, but a certain external principle, which governs the entire universe, wisely commanding what is right and prohibiting what is wrong. Therefore they called that aboriginal and supreme law the mind of God, enjoining or forbidding each separate thing in accordance with reason. On which account it is that this law, which the gods have bestowed on the human race, is so justly applauded. For it is the reason and mind of a wise Being, equally able to urge us to good and to deter us from evil. From our childhood we have learned to call such phrases as this: ‘That a man appeals to justice and goes to law,' and many similar expressions, law; but, nevertheless, we should understand that these, and other similar commandments and prohibitions, have sufficient power to lead us on to virtuous actions and to call us away from vicious ones. Which power is not only far more ancient than any existence of states and peoples, but is coeval with God himself, who beholds and governs both heaven and earth. For it is impossible that the Divine mind can exist in a state devoid of reason; and Divine reason must necessarily be possessed of a power to determine what is virtuous and what is vicious. For because it was nowhere