De la doctrine qui fonde la morale et la législation sur le principe de l’utilité, ou sur l’intérêt

CHAP. 9: > Of the doctrine that founds morality and legislation on the principle of utility, or on well-understood interest.

When one reduces the science of legislation to the simple observation of facts, one perceives immediately that it can be neither the deduction of a certain number of maxims, nor the consequences of a primitive convention, nor the expression of the general will, nor the result of certain religious dogmas; one is obliged to set aside all the systems and the books that contain them, and to see only men, and the things in the midst of which they are placed. A justly celebrated jurisconsult [54], joining to a very philosophical mind the knowledge of the laws of his country, has in effect set aside all the systems that had been made before him, and has sought to introduce a new method into the study of this science; he has judged laws and human actions by the good and evil that result from them; he has admitted only a single principle of reasoning: that of the utility of the greater number. Before examining this doctrine, it will not be without utility to examine how the author was led to it.

The moral sciences, as I have previously remarked, were for a long time only collections of precepts or advice addressed by theologians or by philosophers, sometimes to governments, sometimes to nations. It has resulted from this way of viewing them that, when, instead of giving advice or precepts, writers have set about exposing how things happen, they have been considered as having created the facts they had observed. They have then been approved or condemned, according to whether these facts were found to be in conformity with or contrary to the systems that had been adopted in advance.

There are few works, for example, that have met with more violent adversaries than the book De l'Esprit by Helvétius. Why? It is not because it contains a certain number of errors; it is because the author believed he saw that human actions are generally approved by those they profit, and condemned by those to whom they are baneful; that individuals, corporations, peoples, and the entire human race always honor men in proportion to the good they imagine having received from them; that friendship, esprit de corps, patriotism, humanity, designate qualities that we esteem more or less, according to how immediately they apply to us; that we prefer an individual devoted to our personal interests to an individual devoted to the interests of a body of which we are a part; that we prefer an individual devoted to a body of which we are members to one who is devoted to the interests of the nation to which we belong; finally, that we prefer a man devoted to our fatherland to a man who devotes himself to the general interests of humanity.

In Helvétius's opinion, these observations apply to our sentiments of hatred as to our sentiments of benevolence: according to him, a man who was the enemy of the entire human race would inspire in us less hatred or antipathy than one who was the particular enemy of our nation; the latter would inspire less in us than one who was the enemy of a body of which we were a part; and finally, this last would inspire less in us than one whose hatred was directed specially at our person; our aversion for bad actions or for sentiments of malevolence thus acquires intensity as these actions and sentiments become individualized and draw closer to us.That these are the general dispositions of men is a fact that can hardly be doubted. Would it be good if the human race were organized so as to judge or feel differently? This is a question on which opinions may be divided, but which would be debated in vain, since it is not in our power to change the nature of man. I will observe, however, that if the force with which we feel an injury were not in proportion to the personal danger we run, we would have difficulty preserving ourselves; and that if acts that harm all of humanity caused us suffering equal to that of acts that attack us directly, we would be the most miserable of beings, since we would be ceaselessly tormented by evils we would have no means of warding off. The same observation can be made about benefits as about injuries: if those of which we are personally the object did not inspire in us more gratitude than those that are spread over all of humanity, it is probable that we would feel few preferences, and that we would cause others to feel few: it is then that egoism would show itself in all its power. Be that as it may, we must not lose sight of the fact that it is not in our power to change the nature of things: all we can do is observe what they are in order to make the best of them.

It follows from the preceding observations that if an individual confers a benefit upon another, he may inspire in him more or less gratitude; but if this benefit has come about only at the expense of a more or less large number of persons—of a corporation, for example—the hatred produced on one side will, by the number of persons, exceed the gratitude that was produced on the other. If the benefit was spread over a corporation, and if it was exercised at the expense of a people, the proportion of benevolence and malevolence produced may remain the same as in the preceding case; but it is probable, however, that the sum of malevolence will prevail. Finally, if the benefit was spread over a nation, and if it was exercised at the expense of all of humanity, the sum of evil, and consequently of hatred, will prevail over the sum of good and of gratitude. These sentiments of love or hatred, of gratitude or vengeance, can exist, however, only insofar as all the individuals affected for good and for ill clearly see the cause that has affected them.

But the sentiment of hatred produced by the evil that results from an action is not concentrated on the immediate author of that action; it spreads to all those who profit from it or who show gratitude for it. Let a general, for example, betray, in favor of the enemy, the nation that employs him; the hatred he will inspire in the people he has betrayed will at first fall only upon him, and it will not even spread further if no one has incited him to treason, and if, instead of rewarding him for it, the enemy himself has punished him for it, whether by his contempt or otherwise. But if the treason has been rewarded, even honored, by the people who have profited from it, it is upon them that the hatred it has produced will spread: they will be considered its author. Let a minister, for the particular greatness of his country, become the scourge of other nations; he may die laden with riches and honors, but let no one think for that reason that the sentiments of hatred and vengeance he has kindled will perish with him; they will pass to the nation that has profited from the calamities of others, and as nations do not die, it will sooner or later be their victim. It is thus that the nations Rome had so long oppressed reacted against the Roman people, and made them pay for the triumphs they had decreed to their generals.

By applying these ideas to morality and legislation, one arrives at the idea that, to judge actions or laws, one must judge the effects they produce, not relative to an individual, a body, a government, or a nation, but relative to the entire human race; if the evil that results from them exceeds the good, the sentiment of hatred they will produce will be stronger or more persistent than the contrary sentiment that will be their consequence. The individuals they favor will have to struggle, to maintain them, against the very sentiment that carries the human race toward its growth and prosperity; and as this sentiment is indestructible, and as it acts constantly, it will end by triumphing and by destroying the races that have placed an obstacle in its way. Hence the system that founds laws on the greatest utility, or on well-understood interest. When they are founded on this principle, it is clear that they must produce the most good and the least evil possible, and that, consequently, the forces proper to them must exceed those that tend to destroy them.

But must the man who studies or expounds a science proceed in the same manner as an assembly that gives laws to a people? The power of the former is limited to showing what things are and what they produce, to seeking the truth relative to a certain order of facts, and to expounding the result of these inquiries in the most methodical order. When he has developed or formed the science, it is for those in whom force resides to make use of it; his mission consists in spreading light, in illuminating the various paths that nations can travel; but he has nothing to prescribe to anyone. If, when the truth has been expounded, the force that carries the human race toward its development and its well-being is not sufficient to determine peoples to follow the best path, science has no reproach to make to itself; it can do no more.

Governments do not proceed in the same manner; they do not have to make known the various systems of laws that have existed, the causes that have produced them, and the consequences that have been or will be their result. They limit themselves to forbidding or punishing what they know to be bad, to commanding or rewarding what they know to be good; to determining the procedures, or to tracing the rules most proper to lead to the discovery of a certain order of truths, and to ensuring the execution of their commands and their prohibitions. They profit from the enlightenment spread by science, but they do not propagate it: they put into practice the rules it has discovered. The results at which they arrive may be the same as those toward which scholars tend, but the former arrive at them more immediately than the latter.

The human race tending by its own nature toward its prosperity, one cannot say that the man who studies legislation and who seeks to enlighten others on the good and bad consequences that laws produce is imagining a system; for it is not creating a system to show what things are and what they engender. The system consists in establishing a principle from which to derive a science; in making a moral precept the rule that must guide us in the investigation of facts. This is a methodological error into which Mr. Bentham has fallen: I say a methodological error, for who could think of contesting the principle that serves as the basis for his doctrines [55]?

"Public happiness," says this illustrious jurisconsult, "ought to be the object of the legislator: general utility ought to be the principle of reasoning in legislation." It is not a general fact that the learned author affirms; it is a duty that he establishes; and I have already said that the object of science is to expound facts, but that scholars have nothing to prescribe to anyone, at least not in their capacity as scholars. Rules, duties can emerge from the exposition of facts; they can be consequences of it; and it is only then that they are incontestable. But if one begins a scientific work with what ought to be its conclusion; if, instead of expounding to men what is, one begins by declaring to them what they must do, one runs a great risk either of not being heard, or of raising a multitude of prejudices against oneself. Show nations that such a fact exists, and that it produces such a consequence; if the observation carries with it a character of evidence, one has no objection to fear, no incredulity to overcome. But say to such a man, to a sultan, to his minister, or even to their slaves: "Public happiness ought to be the object of the legislator: general utility ought to be the principle of reasoning in legislation"; it is quite possible that, in all good faith, they will ask you: Why? And where then to find the reason for the duty, if one does not wish to resort to the book of Mohammed? I have supposed that the question could be asked by a sultan, by his minister, or by their slaves; but would I have made an absurd supposition if, instead of putting this question in their mouths, I had supposed it in the minds of most European kings, ministers, and subjects [56]?

Public happiness, general utility, is not a goal that is particular to the science of legislation. All sciences, all arts have or propose a similar result; they differ only in the kind of good or utility that is proper to them. Medicine and chemistry, for example, tend toward diverse ends; but both have for their result public happiness or general utility. The object of legislation is not to make known all the facts that produce good or evil, to expound all the pleasures and all the pains of which man is susceptible, and to assign all their causes. If such were the object of this science, it should leave nothing to be said on any other; it should expound even the most minute procedures of the arts, without excepting that which consists in giving our foods their final preparation. Thus, even admitting that one proceeds regularly when one makes a moral axiom the foundation of a science, this axiom would be too general here, since it would be equally suitable for all sciences, and even for all arts.

In making these observations, I am far from failing to recognize the immense services that Mr. Bentham has rendered to the science of legislation; but these services do not consist in having established a new principle. They consist in having indicated the surest means of calculating the good and bad consequences that result from a law or an action, and in having made a happy application of his method to several branches of legislation. Before him, all those who had written on legislation had generally admitted that public happiness or general utility ought to be the result of laws; but none had sought to analyze the elements of which the public good is composed, none had remained faithful to this principle. It has seemed to be believed, however, that he was the first who had imagined the system of utility, because he made it a duty to consult it exclusively, instead of walking in the footsteps of his predecessors. He was given little credit for his method; but he was reproached for his fundamental principle, which some people considered a dangerous novelty.

In making the principle of utility the foundation of the science, Mr. Bentham only followed the example his predecessors had given him; he differed from them only in that he never wished to depart from this principle, or to recognize others. In writing his book De la République, Plato proposed only to describe the form of government under which men would enjoy the greatest possible sum of happiness. Aristotle had no other object in his Treatise on Politics; it is even with this that he begins his work, and he returns several times to the same idea. It is evident, according to him, that all governments that have for their goal the utility of the citizens are good and conform to justice, in the proper and absolute sense, and that all those that tend only to the particular advantage of the men who govern are on a false path [57]. Cicero did not reason on any other principle than the philosophers of Greece: he admits, like them, that the common utility of the citizens must be the goal of legislation [58].

Have modern writers admitted an opposite principle? Have they claimed that the legislator or the moralist ought to propose something other than general utility? One would be disposed to believe so, when one limits oneself to consulting a few passages from their writings; but when one investigates what their thought was, one sees that they adopted the same opinion as Aristotle. The word utility has two meanings: one restricted, and the other very broad; in the restricted sense, it signifies an immediate and somewhat material advantage; in the broad sense, it designates present and future advantages, of whatever nature they may be, and whatever persons may profit from them. Taking the word in the restricted sense, Grotius says that utility must not always be consulted; but he is not of the same opinion when he takes this word in its broadest acceptation. He then finds, in the utility of all citizens, the origin of civil law and of human societies; and it is in the utility of all nations that he finds the origin of the law of nations [59].

Wolff, one of the men who has written the most on what is called natural right, judges human actions only by the influence they exert on men: he finds them good if they have for their result the perfection of the species, bad if they tend to deteriorate it: which is nothing but the principle of utility presented in other terms [60].

Burlamaqui begins his treatise on natural law in these terms:

"We intend, in this work, to investigate what are the rules that reason alone prescribes to men, to lead them surely to the goal they ought to propose for themselves, and which they all in fact propose for themselves, I mean to true and solid happiness."

But among those who have written on the principles of laws, there is none who has shown himself more constant to the principle of utility than Guillaume Pestel. His work, entitled Fundamenta jurisprudentiæ naturalis, is divided into two parts. In the first, the author examines what can make life happy; in the second, he investigates what are the natural laws that lead to happiness.

In the first section of his book, the author observes that there exist two sorts of pleasures: true or salutary pleasures, and false or deceptive pleasures; the former are those that are not followed by regrets or that do not engender any pain; the latter are those that are followed by fatal consequences. Pestel gives the name of good to any cause productive of true pleasure; he gives the name of evil to any cause of false pleasure: happiness, he says, is the state of the man who, without being exempt from all pains, nevertheless has the certainty of always enjoying true pleasures; the desire for happiness is innate in man: all men are carried toward it as toward a common fountain.

This author is so far from condemning man's tendency toward happiness that he considers this tendency as the very expression of the will of the Supreme Being. The will and the ends of God, he says, are known by his works; God has made the desire for happiness inherent in the nature of man; he has not, therefore, willed that the pursuit of happiness be contrary to this mother nature. Voluntas et fines Dei ex operibus divinis cognoscuntur. Naturæ humanæ Deus insevit appetitum felicitatis, ergo noluit ut ejus adeptio eidem naturæ repugnaret [61].

Aristotle had said that, since the good is the common end of all sciences and all arts, the most important and most powerful of all, the social art, must have for its result the greatest of all goods, that is, justice, which is itself nothing but common utility [62]. It is likewise in common utility that Pestel sees justice [63].

How then have men been found who could believe that the principle of utility was a modern discovery particular to one writer? This principle, in practice, is as old as the world; in theory, it is as old as the most ancient writers. But when one has stated the principle that public happiness must be the object of the legislator, one has not advanced the science of legislation any more than one would advance medicine by saying that the healing of the sick must be the object of physicians. That is very true, but it teaches nothing to anyone [64].All peoples tend naturally to establish what they believe to be useful for them; they tend equally to repel what they suppose to be baneful to them. These are two facts that scholars may have observed, but which they have not created, and which they could not destroy. These two facts being recognized, what remains for a man to do who wishes to make a science advance? Does he need to recommend to the human race that it seek what is advantageous to it, and avoid what is baneful to it? Is it necessary to make a duty of what is in it an indestructible tendency? To tell it that it ought to attach itself to what is useful to it, and only to what is useful to it? But the human race does nothing else; if it does not always succeed in doing what is most advantageous to it, it is not because the desire does not exist, or because the tendency is not strong enough; it is because enlightenment or means are lacking; it is never knowingly and voluntarily that peoples follow a false path. One can sometimes be carried away by bad habits to do what one knows to be baneful, or not to do what one knows to be useful; but, when that happens, the vices are not of long duration; they pass with the generations that have been infected by them, and which impress contrary habits upon the generations that follow them.

The science of legislation can therefore be limited, like all the others, to clearly expounding what things are and what they produce; it needs neither to impose duties, nor even to trace rules of conduct. I will say more, it does not need principles, unless one designates by this word general facts that produce others. Rules, maxims, or what are called principles, belong to art; they serve as a guide to the jurisconsult, the magistrate, or even to him who is charged with drafting the laws; but facts, and facts alone, are the domain of science; scholars expound them and show their connection; the rules then emerge from them on their own. If one proceeds in the contrary direction; if one begins by positing a principle that is not a fact, in order to bring one's observations back to it, then one creates a system, one finds oneself reduced to founding everything on a duty, without having a basis upon which this duty rests.

If the duty one makes the basis of one's reasonings is not a perfectly clear and universally admitted idea, by what means can one convince the persons who do not adopt it? If I say to a minister or to an assembly: public happiness ought to be your object; general utility ought to be the principle of your reasonings in legislation, we will be able to reason together, if they recognize that such is in effect their duty. But if they do not admit the principle, if they claim that their duty is to consult either their personal interests, or those of their king, or those of a caste, or those of the ministers of a creed; if they think, like Rousseau, that they owe nothing to those to whom they have promised nothing, how can we come to an understanding? Will it be necessary to demonstrate to them that the interest they place before public happiness, or before general utility, requires that they consult this utility exclusively? One will thus find oneself reduced to going back to another principle; it will then be necessary to admit that the interest of the ministers, or that of the king, or that of the nobles, or that of the priests, ought to be the object of the legislator; it will then be necessary to demonstrate that this interest requires that general utility be the principle of reasoning; a demonstration that will not be easy, if the individuals whose interest must first be consulted have not founded it in advance on general utility [65].

It must be observed, moreover, that men believe themselves, in general, to be subject to more than one duty; when one makes a single one the rule of all their conduct, one suddenly raises against oneself a multitude of sentiments and prejudices; for them to be disposed to admit this principle without restriction, it would be necessary for them to see immediately that their other duties, far from being exceptions to the principle, are but consequences of it, and if they saw that, they would know all that one proposes to teach them. It is for having thus let themselves be prejudiced by a word, and for not having seen that the principle of utility can exclude nothing that is useful, that writers have been led to attack this principle, and to seek another foundation for the moral sciences. Recourse has been had sometimes to the moral sentiment, sometimes to justice, sometimes to the religious sentiment, for lack of having understood the word utility in its full extent.

Facts, when they are well established, speak to all consciences, and are not subject to any objection; one does not need to rest them on any principle subject to controversy; they are sustained by a force of their own. He who expounds them and demonstrates their connection requires no one's faith; everyone can see what he has seen. One can doubtless err in expounding facts, or in following their connection; one can be deceived by a false testimony; one can attribute an effect to a cause that is not its own; but this is a disadvantage that is common to all sciences, without excepting the most exact: there is no mathematician who cannot make a false calculation. The error, in such a case, belongs to the man; it does not belong to the method.

One cannot attack the principle of utility without immediately falling into contradiction with oneself, or without being afflicted with madness; it is therefore on the method that my remarks bear, and not on the principle itself. The question here is not to know whether this principle is true or false, whether it is useful or dangerous for the human race; it is to know what is the surest means of making the moral sciences advance, or of making this same principle triumph in the most extended sense.

In saying that Mr. Bentham has founded the science of legislation on a duty imposed on scholars or on legislators, I am far from having wished to imply that he has not consulted the facts. His works are, on the contrary, filled with just observations; and if it sometimes happens that I am not in agreement with him, it is only when he has not been faithful enough to his principle, for lack of having sufficiently observed the facts.