We do not want to refer to them now,except as illustrations of errors.We may remark how difficult it was to count before the present notation was invented;but when it has once been invented,we may learn to use it without troubling our heads about our ancestors'clumsy contrivances for doing without it.This leads to the real shortcoming.There is a point at which the historical view becomes important --the point,namely,where it is essential to remember that man is not a ready-made article,but the product of a long and still continuing 'evolution.'Bentham's attack (in the Fragment)upon the 'social contract'is significant.He was,no doubt,perfectly right in saying that an imaginary contract could add no force to the ultimate grounds for the social union.Nobody would now accept the fiction in that stage.And yet the 'social contract'may be taken to recognise a fact;namely,that the underlying instincts upon which society alternately rests correspond to an order of reasons from those which determine more superficial relations.Society is undoubtedly useful,and its utility may be regarded as its ground.But the utility of society means much more than the utility of a railway company or a club,which postulates as existing a whole series of already established institutions.To Bentham an 'utility'appeared to be a kind of permanent and ultimate entity which is the same at all periods --it corresponds to a psychological currency of constant value.To show,therefore,that the social contract recognises 'utility'is to show that the whole organism is constructed just as any particular part is constructed.Man comes first and 'society'afterwards.I have already noticed how this applies to his statements about the utility of a law;how his argument assumes an already constituted society,and seems to overlook the difference between the organic law upon which all order essentially depends,and some particular modification or corollary which may be superinduced.We now have to notice the political version of the same method.The 'law,'according to Bentham,is a rule enforced by a 'sanction.'The imposer of the rule in the phrase which Hobbes had made famous is the 'sovereign.'Hobbes was a favourite author,indeed,of the later Utilitarians,though Bentham does not appear to have studied him.The relation is one of natural affinity.When in the Constitutional Code Bentham transfers the 'sovereignty'from the king to the 'people,'(107)he shows the exact difference between his doctrine and that of the Leviathan.Both thinkers are absolutists in principle,though Hobbes gives to a monarch the power which Bentham gives to a democracy.The attributes remain though their subject is altered.The 'sovereign,'in fact,is the keystone of the whole Utilitarian system.He represents the ultimate source of all authority,and supplies the motive for all obedience.As Hobbes put it,he is a kind of mortal God.
Mill's criticism of Bentham suggests the consequences.There are,he says,(108)three great questions:What government is for the good of the people?How are they to be induced to obey it?How is it to be made responsible?The third question,he says,is the only one seriously considered.by Bentham;and Bentham's answer,we have seen,leads to that 'tyranny of the majority'which was Mill's great stumbling-block.Why,then,does Bentham omit the other questions?or rather,how would he answer them?for he certainly assumes an answer.People,in the first place,are 'induced to obey'by the sanctions.
They don't rob that they may not go to prison.That is a sufficient answer at a given moment.It assumes,indeed,that the law will be obeyed.The policeman,the gaoler,and the judge will do what the sovereign --whether despot or legislature --orders them to do.The jurist may naturally take this for granted.He does not go 'behind the law.'That is the law which the sovereign has declared to be the law.In that sense,the sovereign is omnipotent.He can,as a fact,threaten evildoers with the gallows;and the jurist simply takes the fact for granted,and assumes that the coercion is an ultimate fact.No doubt it is ultimate for the individual subject.The immediate restraint is the policeman,and we need not ask upon what does the policeman depend.
If,however,we persist in asking,we come to the historical problems which Bentham simply omits.The law itself,in fact,ultimately rests upon 'custom,'--upon the whole system of instincts,beliefs,and passions which induce people to obey government,and are,so to speak,the substance out of which loyalty and respect for the law is framed.These,again,are the product of an indefinitely long elaboration,which Bentham takes for granted.He assumes as perfectly natural and obvious that a number of men should meet,as the Americans or frenchmen met,and create a constitution.That the possibility of such a proceeding involves centuries of previous training does not occur to him.It is assumed that the constitution can be made out of hand,and this assumption is of the highest importance,not only historically but for immediate practice.Mill assumes too easily that Bentham has secured responsibility.
Bentham assumes that an institution will work as it is intended to work --perhaps the commonest error of constitution-mongers.If the people use the instruments which he provides,they have a legal method for enforcing obedience.