Sir Henry Maine. [From The Nation 21.522 (1 July 1875): 9.] ⁴⁵

—In his recent Rede Lecture, of which we spoke lately, Sir Henry Maine refers to what he calls “the famous ‘ greatest happiness ’ principle of Bentham” as one of the “maxims of public policy and private conduct” likely to be revised and corrected by what he terms a new method of enquiry. Before discussing this point, it maybe well to note that Bentham himself says: “Priestley was the first (unless it was Beccaria) who taught my lips to pronounce this sacred truth: that the greatest happiness of the greatest number is the foundation of morals and legislation” (‘Works,’ vol. x., p. 142). The credit of being the first to formulate this doctrine seems to belong to Beccaria. In the introduction to his ‘ Treatise on Crimes and Punishments ’ (Dei Delitti e delle Pene), first published in 1704, he says: “If we turn to history we shall see that laws, which are or ought to be the covenants of free men, have been for the most part only the instrument of the passions of some few individuals, or have arisen from a fortuitous and transient necessity, and that they have by no means been dictated by a cool investigator of human nature who had concentrated in a single point the actions of a multitude of men, and considered them from this point of view, namely, the greatest happiness divided among the greatest number (lamassima felicità divisa net maggior numero).” This “greatest happiness” principle, says Sir Henry Maine, “has great imperfections, unless some supplementary qualifying principles be discovered, and for these qualifications I look to some new application of comparative methods to customs, ideas, and motives.” No doubt the wording of this motto of a great and influential school of practical legislation and morality needs to be explicated and explained in a manner quite different from that in which the critics of the school have done it. For these have drawn for the most part their understanding of the principle from the mere wording of it, without consulting the writings of which this motto is more properly to be regarded as the title or summary name. Yet it is far from clear, when we consult these writings, how the principle, as unfolded by them, could be supplemented by any qualifying principle of the sort which Sir Henry Maine suggests. It is true indeed that in what is the real difficulty of the principle in application—namely, in making a true determination of the objective happiness or true well-being of any people for whom a legislator has to make and improve laws—there is involved the consideration of many historical facts, historical products, in the form of existing “customs, ideas, and motives.” That Sir Henry Maine should have supposed the consideration of these to be anything supplementary to the principle, and not rather already and essentially demanded by it, is surprising; for he cannot be supposed to have derived his whole knowledge of the principle, like most sentimental critics of it, from the words of its name. He must have known that in Bentham’s writings, and in those of his immediate followers, a most detailed and laborious discussion of existing laws and usages is made an essential part of criticism on them, and of devices for reforming them. A more thorough knowledge of human nature, and of the force of customs, ideas, and motives, than Bentham possessed, are no doubt requisites for the wisest legislation; yet this can hardly be of the nature of supplementary principles.

—It should not be supposed that the greatest-happiness principle is anything more than the highest practical guide or test, wherever it is applicable, or that it has anything to do with the explanation of the historical development of law. It is not a theoretical principle. No one really acquainted with its meaning and use can suppose it intended for an explanation of the historical phases of laws and morals; for in fact it has had altogether too little to do with the growth of laws. It is, as Beccaria says, the principle which legislators ought to have observed, and is in great measure opposed to what they have really done. Nor again is this principle regarded by its advocates as an exclusive motive principle or sanction, except with the legislator as such, or with the influential citizen who has the power to mould opinions and customs or the secondary morals of society, and to bring to bear in true directions the various more immediate sanctions of laws and morals. To such as these, the guides and benefactors of society, the principle should be an all-inclusive motive principle, or the highest sanction, and cannot in this relation be the selfish principle it is commonly charged with being. Its real place in ethical and legal writings is as the practical principle of all true legislation, including under this the reformation of current moralities through the sanctions of opinion. The advocates of the principle also hold, however, that it is the true foundation of primary morals, as well as of the laws which legislation and opinion can and ought to make; but in this relation the principle can only be a theoretical one, or a summary statement of the rules themselves of human morality, since the primary morals, whether wholly instinctive or a mixed inheritance half-instinctive and half-traditional in a race, like language, are obviously not the devices of legislators and moralists, though such leaders have always had to do with applying various requisite sanctions to the fundamental laws of conscience. Yet the principle of “the greatest happiness for the greater number” is in this form of its enunciation essentially a practical principle or rule of duty for the legal and moral reformers and guides of mankind. As the fundamental theoretical principle of all human morality, or as the principle which has guided nature in the production of moral instincts and universal traditions of law, its statement should be modified; for in this relation it is the principle whereby the greatest numbers of the most prosperous individuals have been produced in races having the social nature of man. In this, its Darwinian form, it is, however, just as obnoxious as in the Benthamite or Beecarian form to believers in an absolute morality, who, on their principles, are bound to regard the conduct of the worker-bees of a hive as morally reprehensible, even from a reflective philosophical bee’s point of view, when they kill their brothers, the drones, at the end of the season; although this apiarian custom conduces to produce the greater number of prosperous communities of the hive.