The Philosophical Theory of the State

by Bernard Bosanquet

[1] Professor Holland in Encycl. Brit., art.; Bentham.”

[2] Bentham, Principles of Legislation, p. 48.

Pain being the ultimate evil, it is clear why, on Bentham’s principles, every law is an evil. For every law, for him, is contrary to liberty; and every infraction of liberty is followed by a natural sentiment of pain. [1] Against those who would deny the proposition that every law is contrary to liberty he brings a charge of perversion of language, in that they restrict liberty to the right of doing what is not injurious to others. They give the term, that is to say, a partly positive implication. For him then liberty has the simplest and apparently widest meaning, [2] which includes liberty to do evil, and is defined, we must suppose, purely as the absence of restraint. And he therefore has no doubt whatever that the citizen can acquire rights only by sacrificing part of his liberty. And in this there is an appearance of truth, if we forget that in saying that a part of one’s liberty is sacrificed it is implied that one had, to begin with, a certain area of liberty, of which a portion is abandoned to save the rest. But the idea of any such antecedent liberty is just such a fiction as Bentham himself delighted to expose. It is true, however, that some degree of restraint on what we can now easily imagine ourselves free to do, is involved in political society. The point on which we have to fix our attention, for the purposes of social theory, is the remarkable representation of this state of things under the figure, as it were, of an amount of general liberty, {58} which is increased by subtraction, or which can only attain its maximum by the conversion of a certain edge or border of it, so to speak, into constraint. This border of constraint is implied to be capable of a minimum, such as to condition a maximum of liberty, or possible individual initiative; a relation which, being at first sight contradictory, demands further analysis. For it would appear that if the sacrifice of some liberty is to be instrumental to the increase of the whole amount, that whole can hardly be a homogeneous given quantity, like, for instance, a piece of land; for such a one must surely be diminished by the subtraction of any part of it. It must, one would infer, be something which has a complex nature like that of a living plant, such that certain restrictions or negations which are essential to its prosperity are dictated by its individual characteristics (which must be positive), and express the same principle with them; and therefore are wholly relative to the positive type and phase of the plant to be cultivated. Only in some such sense can it be intelligible how constraint is instrumental to effective self-assertion.

[1] Bentham, Principles of Legislation, p. 94.

[2] It is not really the widest, as will appear in the sequel.

But if this is so, the restrictive influences of law and government, which are the measure of the constraint imposed, cannot be alien to the human nature which they restrict, and ought not to be set down as in their own nature antagonistic to liberty or to the making the most of the human self. The root of the difficulty obviously lies in assuming that the pressure of the claims of “others” in society is a mere general curtailment of the liberty of the “one,” while acknowledging, not {59} contrary to fact, but contrary to the hypothesis of that curtailment, that the one, so far from surrendering some of his capacity for life through his fellowship with others, acquires and extends that capacity wholly in and through such fellowship. On the above assumption the terms of the paradox of self-government become irreconcilable, and government is made an evil of which it is impossible to explain how it ministers to the self which stands for the good. So long as to every individual, taken as the true self, the restraint enforced by the impact of others is alien and a diminution of the self, this result is inevitable.

It is instructive, therefore, to note Bentham’s uncompromising hostility to all the theories of philosophical jurists. The common point of all their theories, from Hobbes and Grotius to Montesquieu and Rousseau, not to mention Kant and his successors, has lain in the fact that their authors divined under the forms of power and command, exercised by some over others, a substantive and general element of positive human nature, which they attempted to drag to light by one analogy after another. But neither Montesquieu’s “eternal relations,” nor the “Social Contract,” nor “General Will,” nor “Natural Rights” of other thinkers find favour in Bentham’s eyes. One and all they are to him fiction and fallacy. He can understand nothing in law but the character of a command; he can see no positive relation of it to human nature beyond the degree in which it dispenses with the pain of restraint while increasing the pleasure of liberty.

To describe the magnificent success which {60} attended the use of this rule of thumb in the practical work of reform does not fall within our immediate subject. Our purpose was merely to illustrate the paradox implied in the conception of self-government, by pointing out how fundamentally hostile to one another Bentham took its constituent elements to be.

3. The same point may be further insisted on by examining the main ideas of Mill’s “Liberty,” without by any means professing to give a full account of Mill’s opinions on the relation of individuals to society. What indeed is instructive in his position, for our immediate purpose, is that, having so deep a sense, as he has, of social solidarity, he nevertheless treats the central life of the individual as something to be carefully fenced round against the impact of social forces.

i. Mill’s idea of Individuality is plainly biassed by the Benthamite tradition that law is an evil. It is to be remembered that Anarchism of a speculative kind, the inevitable complement of a hide-bound Conservatism, was current in the beginning of this century, as in Godwin and Shelley. Thus we find concentrated in a few pages of the “Liberty” [1] all those ideas on the nature of Individuality, Originality, and Eccentricity, which are most opposed to the teaching derived by later generations in England from the revival of philosophy and criticism. It is worth while, after reading Mill’s observations upon the relation of individuality to the Calvinistic theory of life, [2] to turn to the estimate expressed by Mark Pattison [3] of the force of individual character generated by {61} the rule of Calvin at Geneva. That the individuality, or genius, the fulness of life and completeness of development which Mill so justly appreciates, is not nourished and evoked by the varied play of relations and obligations in society, but lies in a sort of inner self, to be cherished by enclosing it, as it were, in an impervious globe, is a notion which neither modern logic [4] nor modern art criticism will admit. In the same way, the connection of originality and eccentricity, on which Mill insists, appears to us to-day to be a fallacious track of thought; and in general, in all these matters, we tend to accept the principle that, in order to go beyond a point of progress, it is necessary to have reached it; and in order to destroy a law, it is necessary to have fulfilled it. Here, however, is the heart of the point on which we are insisting. If individuality and originality mean or depend upon the absence of law and of obligation; if eccentricity is the type of the fully developed self, and if the community, penetrated by a sense of universal relations, is therefore a prey to monotony and uniformity, then it needs no further words to show that law is a curtailment of human nature, the necessity of which remains inexplicable, so that self-government is a contradiction in terms.