These assertions in behalf of Bentham may be left, without fear for the result, in the hands of those who are competent to judge of them. There are now even in the highest seats of justice, men to whom the claims made for him will not appear extravagant. Principle after principle of those propounded by him is moreover making its way by infiltration into the understandings most shut against his influence, and driving nonsense and prejudice from one corner of them to another. The reform of the laws of any country according to his principles, can only be gradual, and may be long ere it is accomplished; but the work is in process, and both parliament and the judges are every year doing something, and often something not inconsiderable, towards the forwarding of it.
It seems proper here to take notice of an accusation sometimes made both against Bentham and against the principle of codification -- as if they required one uniform suit of ready-made laws for all times and all states of society. The doctrine of codification, as the word imports, relates to the form only of the laws, not their substance; it does not concern itself with what the laws should be, but declares that whatever they are, they ought to be systematically arranged, and fixed down to a determinate form of words. To the accusation, so far as it affects Bentham, one of the essays in the collection of his works (then for the first time published in English) is a complete answer: that 'On the Influence of Time and Place in Matters of Legislation'. It may there be seen that the different exigencies of different nations with respect to law, occupied his attention as systematically as any other portion of the wants which render laws necessary: with the limitations, it is true, which were set to all his speculations by the imperfections of his theory of human nature. For, taking, as we have seen, next to no account of national character and the causes which form and maintain it, he was precluded from considering, except to a very limited extent, the laws of a country as an instrument of national culture: one of their most important aspects, and in which they must of course vary according to the degree and kind of culture already attained; as a tutor gives his pupil different lessons according to the process already made in his education.
The same laws would not have suited our wild ancestors, accustomed to rude independence, and a people of Asiatics bowed down by military despotism: the slave needs to be trained to govern himself, the savage to submit to the government of others.
The same laws will not suit the English, who distrust everything which emanates from general principles, and the French, who distrust whatever does not so emanate. Very different institutions are needed to train to the perfection of their nature, or to constitute into a united nation and social polity, an essentially subjective people like the Germans, and an essentially objective people like those of Northern and Central Italy. the one affectionate and dreamy, the other passionate and worldly. the one truthful and loyal, the other calculating and suspicious; the one not practical enough, the other overmuch; the one wanting individuality, the other fellow-feeling; the one failing for want of exacting enough for itself, the other for want of conceding enough to others. Bentham was little accustomed to look at institutions in their relation to these topics. The effects of this oversight must of course be perceptible throughout his speculations, but we do not think the errors into which it led him very material in the greater part of civil and penal law: it is in the department of constitutional legislation that they were fundamental.
The Benthamic theory of government has made so much noise in the world of late years; it has held such a conspicuous place among Radical philosophies, and Radical modes of thinking have participated so much more largely than any others in its spirit, that many worthy persons imagine there is no other Radical philosophy extant. Leaving such people to discover their mistake as they may, we shall expend a few words in attempting to discriminate between the truth and error of this celebrated theory.
There are three great questions in government. First, to what authority is it for the good of the people that they should be subject? Secondly, how are they to be induced to obey that authority? The answers to these two questions vary indefinitely, according to the degree and kind of civilization and cultivation already attained by a people, and their peculiar aptitudes for receiving more. Comes next a third question, not liable to so much variation, namely, by what means are the abuses of this authority to be checked? This third question is the only one of the three to which Bentham seriously applies himself, and he gives it the only answer it admits of Responsibility:
responsibility to persons whose interest, whose obvious and recognizable interest, accords with the end in view -- good government. This being granted, it is next to be asked, in what body of persons this identity of interest with good government, that is, with the interest of the whole community, is to be found? In nothing less, says Bentham, than the numerical majority: nor, say we, even in the numerical majority itself; of no portion of the community less than all, will the interest coincide, at all times and in all respects, with the interest of all. But since power given to all, by a representative government, is in fact given to a majority; we are obliged to fall back upon the first of our three questions, namely, under what authority is it for the good of the people that they be placed? And if to this the answer be, under that of a majority among themselves, Bentham's system cannot be questioned. This one assumption being made, his 'Constitutional Code' is admirable.
