Henry Craik, ed. English Prose. 1916. Vol. IV. Eighteenth Century
The Point at which Resistance becomes a Duty incapable of Definition
By Jeremy Bentham (17481832)
From A Fragment on Government
AFTER all these pains taken to inculcate unreserved submission, would any one have expected to see our author himself (Blackstone) among the most eager to excite men to disobedience? and that, perhaps, upon the most frivolous pretences? in short, upon any pretence whatsoever? Such, however, upon looking back a little, we shall find him. I say, amongst the most eager; for other men, at least the most enlightened advocates for liberty, are content with leaving it to subjects to resist, for their own sakes, on the footing of permission: this will not content our author, but he must be forcing it upon them as a point of duty.
Tis in a passage antecedent to the digression we are examining, but in the same section, that, speaking of the pretended law of nature, and of the law of revelation, No human laws, he says, should be suffered to contradict these. The expression is remarkable. It is not, that no human laws should contradict them, but that no human laws should be suffered to contradict them. He then proceeds to give us an example. This example, one might think, would be such as should have the effect of softening the dangerous tendency of the rule: on the contrary, it is such as cannot but enhance it; and in the application of it to the rule, the substance of the latter is again repeated in still more explicit and energetic terms. Nay, says he, speaking of the act he instances, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.
The propriety of this dangerous maxim, so far as the divine law is concerned, is what I must refer to a future occasion for more particular consideration. As to the law of nature, if (as I trust it will appear) it be nothing but a phrase; if there be no other medium for proving any act to be an offence against it, than the mischievous tendency of such act; if there be no other medium for proving a law of the state to be contrary to it, than the inexpediency of such law, unless the bare unfounded disapprobation of any one who thinks of it be called a proof; if a test for distinguishing such laws as would be contrary to the law of nature from such as, without being contrary to it, are simply inexpedient, be that which neither our author, nor any man else, so much as pretended ever to give; if, in a word, there be scarce any law whatever but what those who have not liked it have found, on some account or another, to be repugnant to some text of Scripture; I see no remedy but that the natural tendency of such doctrine is to impel a man, by the force of conscience, to rise up in arms against any law whatever that he happens not to like. What sort of government it is that can consist with such a disposition, I must leave to our author to inform us.
It is the principle of utility, accurately apprehended and steadily applied, that affords the only clue to guide a man through these straits. It is for that, if any, and for that alone, to furnish a decision which neither party shall dare in theory to disavow. It is something to reconcile men even in theory. They are, at least, something nearer to an effectual union, than when at variance as well in respect to theory as to practice.
In speaking of the supposed contract between king and people, I have already had occasion to give the description, and, it appears to me, the only general description that can be given, of that juncture at which, and not before, resistance to government becomes commendable; or, in other words, reconcilable to just notions, whether legal or not, at least of moral, and, if there be any difference, religious duty. What was there said was spoken, at the time, with reference to that particular branch of government which was then in question; the branch that in this country is administered by the king. But if it was just, as applied to that branch of government, and in this country, it could only be for the same reason that it is so when applied to the whole of government, and that in any country whatsoever. It is then, we may say, and not till then, allowable to, if not incumbent on, every man, as well on the score of duty as of interest, to enter into measures of resistance; when, according to the best calculation he is able to make, the probable mischiefs of resistance (speaking with respect to the community in general) appear less to him than the probable mischiefs of submission. This, then, is to him, that is, to each man in particular, the juncture for resistance.
A natural question here isby what sign shall this juncture be known? By what common signal, alike conspicuous and perceptible to all? A question which is readily enough started, but to which, I hope, it will be almost as readily perceived that it is impossible to find an answer. Common sign for such a purpose, I, for my part know of none, he must be more than a prophet, I think, that can show us one. For that which shall serve as a particular sign to each particular person, I have already given onehis own internal persuasion of a balance of utility on the side of resistance.
Unless such a sign, then, which I think impossible, can be shown, the field, if one may say so, of the supreme governors authority, though not infinite, must unavoidably, I think, unless where limited by express convention, be allowed to be indefinite. Nor can I see any narrower or other bounds to it, under this constitution, or under any other yet freer constitution, if there be one, than under the most despotic. Before the juncture I have been describing were arrived, resistance, even in a country like this, would come too soon: were the juncture arrived already, the time for resistance would be come already, under such a government even as any one should call despotic.
In regard to a government that is free, and one that is despotic, wherein is it, then, that the difference consists? Is it that those persons in whose hands that power is lodged which is acknowledged to be supreme, have less power in the one than in the other, when it is from custom that they derive it? By no means. It is not that the power of one, any more than of the other, has any certain bounds to it. The distinction turns upon circumstances of a very different complexionon the manner in which the whole mass of power, which, taken together, is supreme, is, in a free state, distributed among the several ranks of persons that are sharers in it; on the source from whence their titles to it are successively derivedon the frequent and easy changes of condition between governors and governed; whereby the interests of the one class are more or less indistinguishably blended with those of the otheron the responsibility of the governors; or the right which a subject has of having the reasons publicly assigned and canvassed of every act of power that is exerted over himon the liberty of the press, or the security with which every man, be he of the one class or the other, may make known his complaints and remonstrances to the whole communityon the liberty of public association; or the security with which malcontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them.
True, then, it may be, that, owing to this last circumstance in particular, in a state thus circumstanced, the road to a revolution, if a revolution be necessary, is to appearance shorter; certainly more smooth and easy. More likelihood, certainly, there is of its being such a revolution as shall be the work of a number, and in which therefore the interests of a number are likely to be consulted. Grant then, that by reason of these facilitating circumstances, the juncture itself may arrive sooner, and upon less provocation, under what is called a free government, than under what is called an absolute one; grant thisyet, till it be arrived, resistance is as much too soon under one of them as under the other.
Let us avow then, in short, steadily but calmly, what our author hazards with anxiety and agitation, that the authority of the supreme body cannot, unless where limited by express convention, be said to have any assignable, any certain bounds. That to say there is any act they cannot do; to speak of anything of theirs as being illegal, as being void; to speak of their exceeding their authority (whatever be the phrase), their power, their rightis, however common, an abuse of language.
The legislature cannot do it! The legislature cannot make a law to this effect! Why cannot? What is there that should hinder them? Why not this, as well as so many other laws murmured at, perhaps as inexpedient, yet submitted to without any question of the right? With men of the same party, with men whose affections are already listed against the law in question, any thing will go down: any rubbish is good that will add fuel to the flame. But with regard to an impartial bystander, it is plain that it is not denying the right of the legislature, their authority, their power, or whatever be the wordit is not denying that they can do what is in questionit is not that, I say, or any discourse verging that way, that can tend to give him the smallest satisfaction.
Grant even the proposition in general:What are we the nearer? Grant that there are certain bounds to the authority of the legislature:Of what use is it to say so, when these bounds are what nobody has ever attempted to mark out to any useful purpose; that is, in any such manner whereby it might be known beforehand what description a law must be of to fall within, and what to fall beyond them? Grant that there are things which the legislator cannot do; grant that there are laws which exceed the power of the legislature to establish: what rule does this sort of discourse furnish us for determining whether any one that is in question is, or is not of the number? As far as I can discover, none. Either the discourse goes on in the confusion it began; either all rests in vague assertions, and no intelligible argument at all is offered; or, if any, such arguments as are drawn from the principle of utility; arguments which, in whatever variety of words expressed, come at last to neither more nor less than this; that the tendency of the law is, to a greater or a less degree, pernicious. If this then be the result of the argument, why not come home to it at once? Why turn aside into a wilderness of sophistry, when the path of plain reason is straight before us.
What practical inferences those who maintain this language mean should be deduced from it is not altogether clear; nor, perhaps, does everyone mean the same. Some who speak of a law as being void (for to this expression, not to travel through the whole list, I shall confine myself) would persuade us to look upon the authors of it as having thereby forfeited, as the phrase is, their whole power; as well that of giving force to the particular law in question, as to any other. These are they who, had they arrived at the same practical conclusion through the principle of utility, would have spoken of the law as being to such a degree pernicious, as that, were the bulk of the community to see it in its true light, the probable mischief of resisting it would be less than the probable mischief of submitting to it. These point, in the first instance, at hostile opposition.