ANARCHICAL FALLACIES JEREMY BENTHAM PDF

He focused on monetary expansion as a means of helping to create full employment. He was also aware of the relevance of forced saving, propensity to consume , the saving-investment relationship, and other matters that form the content of modern income and employment analysis. His monetary view was close to the fundamental concepts employed in his model of utilitarian decision making. His work is considered to be an early precursor of modern welfare economics. He was concerned with maxima and minima of pleasures and pains; and they set a precedent for the future employment of the maximisation principle in the economics of the consumer, the firm and the search for an optimum in welfare economics. After he learned more about American law and realised that most of it was state-based, he promptly wrote to the governors of every single state with the same offer.

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Of the present publication, the particular object is the preserving the country from being saddled by institutions, which under the profession, sincere or insincere, of contributing to the formation of an appropriate code of procedure, will have the effect rather of retarding, or even preventing it, and, at the same time, adding to expense, by which no fruit in the shape of benefit will be produced.

A Procedure Code, fit to be invested with the form of law, could not be prepared otherwise than by and with reference to the codes of law, penal and non-penal, to which it has for its object and purpose the giving execution and effect. The present production, instead of following, precedes both these codes. If applicable in other respects, it will not be found on that account inapplicable to its intended purpose.

With regard to prospect of success, the sense of the public mind may as well be taken by this uncompleted and provisional publication, as by a completed work. The characteristic features, and fundamental principles—all will be seen brought to view: only in respect of matters of detail, will there be anything to add, to defalcate, or to substitute. As of the plan here proposed, with its supposed features of aptitude, so of the system at present in force, with its supposed features of inaptitude.

On this occasion I shall be found I hope to have rendered sufficiently apparent the complete inaptitude of the established system with reference to its professed purpose; and thence the absolute and indispensible necessity of a code, entirely new, from beginning to end.

This, supposing it done, will be no small thing done. What is more, here is much which, in the character of a proposed code, all persons who feel inclined, may take in hand, and take for the subject of consideration and publication; and by this means, towards ultimate success so much advance will have been made. It might perhaps not be a great deal too much to say of it, that in its present state, it might form a warrant for the appointment of a Committee of the House of Commons, and the consideration of it, the subject-matter of a portion of the labours of such a committee; and while the committee was occupying itself in the requisite labour, on its several points including what regards the judiciary establishment, which is already in print, I shall, if alive, be occupied according to the measure of my ability, in making such amendments as I find a demand for.

The reason for this hurrying, is the fear of seeing real improvement obstructed, and even improbabilized, by the creation of new offices, with enormous salaries attached to them. Let me ask, how many centuries would it take to remove the already generally-acknowledged abuses, at the rate of progress at which the operation has been, and is performing, by the recent statutes? No objection however to these; in the road to reform, every inch made is better than none.

By procedure, is meant the course taken for the execution of the laws, viz. Laws prescribing the course of procedure have on a former occasion been characterized by the term adjective laws, in contradistinction to those other laws, the execution of which they have in view, and which for this same purpose have been characterized by the correspondent opposite term, substantive laws. Edition: current; Page: [6] For in jurisprudence, the laws termed adjective, can no more exist without the laws termed substantive, than in grammar a noun termed adjective, can present a distinct idea without the help of a noun of the substantive class, conjoined with it.

As in fact every act by which a course of procedure is commenced has for its end or object, the bringing about the execution of some law of the substantive class, so, in point of utility, it may be said that the course of procedure ought to have in every instance, for its main and primary end at least, the accomplishment of the will manifested in the body of substantive laws.

For this is not only a use of it, but the only use for it. The ultimate utility of it will therefore depend altogether upon the utility of the substantive laws, the execution of which is in eachinstance endeavoured to be brought about: unless the substantive law be conformable to the greatest happiness of the community, the use made of the body of adjective laws on that occasion cannot be conformable to that same end.

But though this may with truth be given as the main and primary end of the course of procedure, it cannot however be given as the sole end; because in the pursuit of that same end, a variety of inconveniences are apt to occur, and indeed in a certain degree cannot several of them but occur—in every instance: hence result, as so many collateral or subordinate ends, the avoiding as far as possible the giving birth to those several inconveniences.

The code of procedure, then, is composed of the system or assemblage of adjective laws. Of the substantive branch of the law, the only defensible object or end in view, is the maximization of the happiness of the greatest number of the members of the community in question.

Of the adjective branch of the law, the only defensible object, or say end in view, is the maximization of the execution and effect given to the substantive branch of the law.

The present proposed code is composed of an aggregate of arrangements, having the above for their object, or end in view. Of every extensive body of law, the end, mainly at least, if not exclusively, in view, has been the greatest happiness of those by whom the body of law in question was made. Consistently with the nature of man, and the preservation of his species, no other could any extensive body of law have had for its end in view.

For proof of this position, see the Constitutional Code. In a representative Democracy, if rightly constituted, the possessors of the constitutive or supreme authority are the aggregate body of the members fitted for self-government; and the possessors of the legislative authority are their delegates, and would represent their interests. In the case of an Aristocracy, the interests of the members of the aristocracy, or the majority of them, would prevail; and in the case of a Monarchy, the interest of the monarch.

In a mixed monarchy, composed of the monarch and the aristocracy, it would be the conjunct interest of the monarch and the members of that same aristocracy that is to say, of the majority of those who act on the theatre of legislation. In the case of a mixed monarchy, composed of the monarch, the aristocracy and the delegates, or say deputies, of the people, the conjunct interests of those same three authorities.

Thus much as to substantive law. But in the case of adjective law, or say procedure law, to a greater or lesser extent the law has had for its authors, in proportions infinitely diversified, legislative authority in its several modification, and the judicial authority—in a word, the judges, who under the notion of interpreting, where, in fact, there was nothing to be interpreted—have been suffered, in effect, to legislate.

The consequence is, that in correspondent proportions, this branch of the law has had for its object, or end in view, the interest of this class of the functionaries concerned in the making of it. But more especially in the mode in which their remuneration has commonly been allotted to them, is their interest in a state of diametrical opposition to the interest of those for whose benefit the laws are everywhere professed to have been made.

By the author of these pages, no share in that profit was ever aimed at, or desired, nor at present could by possibility be received: his interest is therefore in the state of the greatest possible harmony with what he has made his duty; and accordingly, wheresoever it may have happened to him to have erred, the error will have had a deficiency not in moral, but in active and intellectual aptitude for its cause.

Among the arguments employed, and which, since some recent occurrences, have been made use of, for stopping the progress of improvement and securing against diminution the addition made every year to the number of those who, by and for the benefit of lawyers, are punished for not knowing what they have been carefully kept under an impossibility of knowing, one is—You cannot provide for everything; therefore you ought not to provide for anything more than what has been provided for already.

To understand the force and value of this argument—the aptitude, moral and intellectual, of those by whom it has been employed—employ it to other branches of art and science. Without going out of the field of legislation, apply it to substantive law. Apply it Edition: current; Page: [7] to medicine: you cannot cure all diseases—why give yourselves so much trouble in the endeavour to cure any more than you can already.

For the enactment, or say establishment, of any law, or of any mass of the matter of law—of two species of power—the intellectual and the political—the concurrence, or say conjunction, is necessary: intellectual, that of the legislative draughtsman; political, that of the legislator.

The political cannot, in the most improved state of society, be with propriety in hands other in number than a select few: in the least improved, it has everywhere been of necessity in the hands of a single person.

But before it comes to be presented to the legislative assembly in the legislation chamber, there is another tribunal in which, with great advantage to the public, every question of law which is invested with a certain degree of importance may be introduced—and that is the public-opinion tribunal. For the purpose of introducing into this tribunal a proposed law, the right of initiation appertains at once to every person who can find adequate inducement for giving exercise to it.

In the legislative assembly, proposed laws cannot without confusion be taken into consideration, and compared together, in any considerable numbers.

But by the public-opinion tribunal, they may be subjected to this operation, in a number altogether unlimited. To introduce, or attempt to introduce, into the legislative assembly, a mass of law of a new complexion, before the minds of men were to a certain degree prepared for the reception of it, would be lost labour, and a hopeless task.

Not so the like attempt in relation to the public-opinion tribunal. Why set about drawing up a perfect body of laws—that is to say, one which to yourself you expect will appear so? Suppose the task of drawing it up accomplished, can you seriously expect to see it, in that place, put to use? Answer: No. But, to a person who has leisure, and who has the means of living while the work is going on, that consideration is no sufficient reason for declining the task.

In the present instance, the work must of necessity be the work of many years—say six, eight, ten years. Now, suppose it a settled rule that no such work shall be begun to be drawn up till a probability of its being immediately taken into consideration in the legislative assembly and ultimately adopted has presented itself,—what is the consequence?

Answer: That the necessary time in question—the six, eight, ten years—will be lost; the public for that whole length of time deprived of the receipt and enjoyment of this all-comprehensive instrument of felicity. But what follows? From misery, whatever be the shape of it, a change to tranquillity is innovation. From war, whencesoever it comes, change to peace is innovation.

War, misery, wickedness in every shape—are they then to be perpetuated? Whoever takes in hand these pages, will do well, in the first place, to lay out of his mind everything that belongs to the existing system, baptized the technical. He will see there, when the time comes, nothing but confusion—a purposely and most elaborately organized system of confusion. Of itself, it accordingly explains nothing: explanation it requires itself throughout, so far from being capable of affording it. In the here proposed system, styled the natural, he will see the course prescribed by common experience and common sense.

The purpose being to give execution and effect to a system of arrangements and ordinances, by elicitation made of the truth of facts, the question will always be, whether this or that one of the arrangements made, or supposed made supposed only in the case of the unwritten law, has application to the individual case in question.

For arriving at the truth, the natural course, it will be seen, is the same in all cases. Under the technical system, the course pursued is different, according to the various judicatories employed, with their different portions of the field of law logical or geographical assigned to them, or occupied by them, with corresponding different sets of powers and duties—common law, equity law, civil law, penal law, ecclesiastical law, admiralty law, general sessions law, petty sessions law, and so on—all differing so widely from one another, while pretending to be directed to one and the same object,—the discovery of truth in regard to facts, by means of evidence.

All of them good, it is impossible they should be; all bad, it is altogether possible they should be, and will accordingly be seen to be; all unapt—relation had to such their professed and falsely pretended purpose; all good,—relation had to their non-professed, but disguised, and endeavoured-to-be-concealed, purpose;—viz.

Of the proposed system, these are the leading features:— 1. Expense of litiscontestation, defrayed as far as possible by the public. Cases of necessity excepted, attendance Edition: current; Page: [8] of parties in their own case, not less universal and punctual than that of third persons in the character of witnesses.

With ample precaution against abuse, necessary expense of evidence, and professional assistance, provided by the public, for those who are not themselves in a condition to defray it.

For the verity of whatever statement is made on a judicial occasion, or actually or eventually for a judicial purpose, effectual provision will be made,—and that the same in all cases,—by appropriate punishment, and without the intervention of any useless ceremony.

When the whole body of the Law has for its object the greatest happiness of the greatest number, the whole of the adjective branch taken together may be said to have two specific ends: the one positive, maximizing the execution and effect given to the substantive branch; the other negative, minimizing the evil, the hardship, in various shapes necessary to the accomplishment of the main specified end.

Between these two-pursuits the conflict is all pervading and perpetual. Whatsoever arrangement is taken for the attainment of the one end, it can scarcely avoid being in a greater or less degree obstructive to the attainment of the other end. In this way the judicial establishment how well and faithfully soever the duties of it may be performed may be made the instrument of oppression, and even of depredation. No intellectual aptitude—no active aptitude—no appropriate knowledge or judgment on the part of the judge—can render him completely secure against so deplorable a result.

No otherwise than through the medium of such information as comes in his way, or is obtainable by him, can he ever act, or forbear to act. If that information is false, and by means of its falsity deceptive, a wrong judgment is on his part unavoidable. On this occasion, as on every other, the grand security of securities is publicity:—exposure—the completest exposure of the whole system of procedure—whatever is done by anybody, being done before the eyes of the universal public. By this means, appropriate moral aptitude may be maximized—appropriate intellectual aptitude may be maximized—appropriate active aptitude may be maximized.

The greater the tutelary influence exercised over the judge by the public eye, the more intense will be the attention on each occasion bestowed by him, in the endeavour to obtain adequate knowledge, and give maturity and correctness to his judgment, as well as quickness to the exercise given on this occasion to his active faculties. Still, however, against deception by false assertions and false evidence in other shapes, the soundest judgment can never be secure.

What remains, then, is, to provide what security can, without preponderate hardship be provided against falsity uttered by an individual coming in the character of a pursuer, with the view to subject to a hardship, a defendant on whose part no wrong has had place. Of the necessity of making arrangements of this sort—of the difficulty that attaches upon the endeavour—no adequate conception can ever have been formed by those whose thoughts have been confined within the bounds of the field, occupied by the arrangements taken with this view in any body of law that has ever been in force.

In every such body of law, the expense and vexation, attached without distinction to the operation of legal pursuit in every case, tend with a force proportioned to the aggregate force of the complicated mass of hardship, to the prevention of ungrounded and ill-grounded suits.

Such is its tendency, and such to a prodigious extent is its effect, independently of all intention and desire on the part of those by whom the system was framed, or those by whom application is made of the powers established by it.

To the production of this thus far salutary result, not only is no such endeavour or desire necessary, but in spite of their most strenuous endeavours to the contrary, it could not be prevented from taking place. At the same time, while without, and to an even universally-indefinite extent against any such intention, this mass of hardship is in this shape productive of good effects; in another shape it is to an unmeasurable extent productive of evil effects.

It is an instrument Edition: current; Page: [9] put into the hands of the oppressor—of every oppressor who is rich and wicked enough to purchase the use of it, at the hands of those who, according to the intention of those by whom it was made, continue to reap the profit—an instrument, by which, under the yoke of one-tenth of the population, nine-tenths are kept in an oppressed state, and but for the salutary, though scarce perceptible influence of the public-opinion tribunal, would be kept in a state of the most abject slavery.

That, on the part of rulers, the evil is everywhere the result—not of oversight, or deficiency in intellectual aptitude, but of purposed intention and endeavour—is matter of demonstration. For everywhere not only are the obstacles in question left in full force, without any endeavour to remove or lessen them, but addition, and to a vast amount, is made to their force—made, too, by instruments of their own manufacture—made by them, with the manifestly-resulting effect, and thence with this unquestionable purpose, namely—the creation of law-taxes and law-fees: law-taxes imposed by the rulers for the increase of their own excessive opulence; law-fees, which in their legislative capacity they suffer their colleagues and instruments to exact for the increase of their own exorbitant wealth, thus amassed by the application of oppression to the purpose of depredation.

Thus, then, the endeavours of the philanthropist in the law may be expressed by this one problem: how to unite the maximization of redress for the injured in the character of pursuers, with the minimization of hardship on the innocent in the character of defendants. These being the ends, the means may be stated as follows:— 1. In case of an unjust demand, for the prevention of needless and unprofitable vexation and expense such as might otherwise be imposed on individuals in the situation of defendants, by individuals placing themselves in the situation of plaintiffs, a provision made, not only of eventual compensation but also of punishment, to be inflicted on those alone in whose instance the existence of blame, in one of two shapes, has been established.

These two shapes are—1. Evil consciousness; 2. Temerity or rashness.

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