HAMILTON, BURKE, BENTHAM

From Classics in Political Philosophy, by James Fieser

© 2008, updated 1/1/2026, CC BY-NC-ND 4.0

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CONTENTS

• Alexander Hamilton and James Madison: Federalism and Domestic Faction (from The Federalist Papers)

• Edmund Burke: Conservatism and Tradition (from Reflections on the Revolution in France)

• Jeremy Bentham: Utility and Government (from A Fragment on Government, The Principles of Morals and Legislation, Pannomial Fragment, Anarchical Fallacies, Panopticon)

 

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ALEXANDER HAMILTON AND JAMES MADISON: FEDERALISM AND DOMESTIC FACTION

 

In the late 1780s, the current United States Articles of Confederation proved too weak for the national government to tax, regulate commerce, and maintain order. This prompted the drafting of the new Constitution in 1787. To address objections to the expanded role of the Federal Government, particularly in New York which was a pivotal state, Alexander Hamilton, James Madison, and John Jay, wrote a series of 85 essays in 1787 and 1788 under the pseudonym "Publius", a Roman statesman associated with founding a republic. Hamilton tried to recruit other authors, but they refused. Readers spent months speculating about who Publius was. Their output was rapid, sometimes four per week, and Jay dropped out after authoring only five articles due to illness. The original 85 essays and eight additional ones were then published together in a collection titled The Federalist, or the New Constitution in 1788, and more recently have been referred to The Federalist Papers. The first edition sold poorly. Years later, when Hamilton and Madison became political enemies, they began disputing authorship of around 12 essays.

          Below are Essays 9 and 10, written by Hamilton and Madison respectively, with a brief introduction by Hamilton from Essay 1. Hamilton (1755-1804) was an assistant to George Washington during the American revolutionary war, a member of the Continental Congress under the Articles of Confederation, and became the Secretary of the Treasury under Washington's presidency after the ratification of the Constitution. Madison (1751-1836) was a member of Congress under the new Constitution, Secretary of State for Jefferson, and the fourth president of the United States. Both essays below maintain that a large confederated republic of small states (or a "union") will resist internal faction better than a disconnected group of small independent states. For that reason, they argue, the organization of American states under the proposed Constitution is superior to that under the Articles of Confederation. In Essay 9, Hamilton responds to three criticisms of the proposed Constitution. First, republics by their nature fluctuate between tyranny and anarchy. His response is that recent improvements in governing have made republicanism better. Second, Montesquieu held that confederations work only with small republics, not with large territories like the American states. Hamilton responds that it would work in America by reducing the size of just the larger states. Third, confederacies by definition do not interfere with states' internal operations, whereas the proposed Constitution does interfere. Hamilton responds that past confederacies have indeed interfered in states' internal operations. In Essay 10, the most famous of the Federalist Papers, Madison explores the causes and effects of factions, and how a large republic in America can prevent them. He defines "faction" as any group, majority or minority, driven by passion or interest in ways that violate the rights of others. He considers two remedies: removing the causes of faction, which would destroy liberty, or controlling its effects, which is the only viable option. Differing opinions and unequal property are inevitable. Because property is the main source of faction, governments will always be composed of people with clashing economic interests, and we cannot rely on enlightened leaders to rise above them. Madison continues that minority factions are easily checked by majority rule. The real problem, though, is majority factions. These can be restrained either by preventing a majority from sharing the same passion, or by preventing them from coordinating to act on it. Large republics accomplish this better than small democracies. Representation filters public views through elected officials who are more likely to discern the common good, and a larger population increases the chances of selecting capable representatives. A large territory also multiplies the number of competing interests, making it harder for an oppressive majority to form. Thus, the extended republic created by the Constitution offers the best safeguard against faction, since local passions may flare within individual states but cannot easily spread across the entire Union.

THE POSSIBILITY OF CHOOSING ONE'S GOVERNMENT (from The Federalist Papers, 1)

After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

          This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.

          Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

          It is not, however, my design to dwell upon observations of this nature. . . . I propose, in a series of papers, to discuss the following interesting particulars: [1] the utility of the union to your political prosperity the insufficiency of the present confederation to preserve that union the necessity of a government at least equally energetic with the one proposed, [2] to the attainment of this object the conformity of the proposed constitution to the true principles of republican government its analogy to your own state constitution and lastly, [3] the additional security which its adoption will afford to the preservation of that species of government, to liberty, and to property.

THE EFFICACY OF A REPUBLIC OF STATES (Federalist, 9)

Criticism 1: Republics Waver between Tyranny and Anarchy

A firm Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they, at the same time admonish us to lament that the vices of Government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated.

          From the disorders that disfigure the annals of those republics the advocates of despotism have drawn arguments, not only against the forms of republican government, but against the very principles of civil liberty. They have decried all free government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors.

Response: Advancements in Governing have Improved Republicanism

But it is not to be denied that the portraits they have sketched of Republican Government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of Government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of Courts composed of Judges holding their offices during good behavior; the representation of the people in the Legislature by Deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in its application to a single State, which shall be attended to in another place.

Criticism 2: Montesquieu Holds that Confederations work only in Small Republics

The utility of a Confederacy, as well to suppress faction and to guard the internal tranquility of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subject of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory [i.e., small size] for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, nor to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence.

          When Montesquieu recommends a small extent for Republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New-York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America.

Response: The Larger States could be Reduced in Size

Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author [i.e., Montesquieu] who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the size of the more considerable members of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested.

          So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism. "It is very probable," (says he),

that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a confederate republic.

          This form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.

          A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.

          If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.

          Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

          As this government is composed of small Republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.

I have thought it proper to quote at length these interesting passages [from Montesquieu], because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection.

Criticism 3: Confederacies by Definition do not Limit States' Internal Operations

A distinction, more subtle than accurate, has been raised between a confederacy and a consolidation of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown in the course of this investigation that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government.

Response: Past Confederacies Have Limited States' Internal Operations 

The definition of a confederate republic seems simply to be "an assemblage of societies," or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.

          In the Lycian Confederacy, which consisted of twenty-three cities or republics, the largest were entitled to three votes in the common council, those of the middle class to two, and the smallest to one. The common council had the appointment of all the judges and magistrates of the respective cities. This was certainly the most, delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: "Were I to give a model of an excellent Confederate Republic, it would be that of Lycia." Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory.

A FEDERAL UNION WILL AVOID FACTION (Federalist, 10)

The Need for Governments to Control Faction

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

Sources of Faction

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

          There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

          There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

          It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

          The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

Property the Main Cause of Faction

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

          No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

          It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

Controlling the Effects of Majority Faction

The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.

          If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

          By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

Large Republics control Majority Faction better than Small Democracies

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

          A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

Republics Defer to Elected Representatives

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

          The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations [of factions]. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

          In the first place, it is to be remarked that, however small the republic may be, the Representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

          In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages [i.e., votes] of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

          It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

Fewer Factions with Larger Republics because they have more Citizens and Territory than Smaller Democracies

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

          Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

          The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

          In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

Source: Alexander Hamilton, James Madison, The Federalist Papers (1788), 9 and 10.

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EDMUND BURKE: CONSERVATISM AND TRADITION

Born in Dublin, Ireland, Edmund Burke (1729–1797) was a member of the British Parliament and a noted author on philosophical and political subjects. Burke is often called the "father of modern conservatism" for his view that social change should not be abrupt and radical, but, instead, proceed slowly by preserving longstanding traditions. The selections below are from his most famous work, Reflections on the Revolution in France (1790), in which he condemns the French uprising for casting off traditional values that form the bedrock of society. Burke argues that society is harmed by advocating abstract concepts of liberty without considering concrete situations in which liberty is embedded in our actions, such as in the context of military discipline, taxation, religion, and social manners. Liberty should also be seen as "an inheritance from our forefathers," and any changes to society should take place "as if in the presence of canonized forefathers." Just as Burke rejects abstract notions of liberty, so too does he criticize abstract notions of natural rights as being much too simplistic for how complicated human society is. The rights we do have are midway between purely abstract speculation and practical concrete situations. For example, the right to medicine is less about an abstract right to health and more about the practical ways that we can supply medicine to those who need it. Religious institutions, he argues, should not be reformed through critiques by atheists since something more dangerous might ultimately take its place. We should instead embrace our established religious institutions. Burke recognizes that society is founded on a contract or partnership, but it is not a partnership of temporary interests. Rather, it is a partnership with the past and the future in a way that preserves the continuity of tradition over generations.

TWO APPROACHES TO LIBERTY: ABSTRACTION VS. ACTION (from Reflections on the Revolution in France)

Dangers of Abstract Liberty

I flatter myself that I love a manly, moral, regulated liberty as well as any gentleman of that society, be he who he will. And perhaps I have given as good proofs of my attachment to that cause, in the whole course of my public conduct. I think I envy liberty as little as they do to any other nation. But I cannot stand forward, and give praise or blame to anything which relates to human actions and human concerns on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind. Abstractedly speaking, government, as well as liberty, is good. Yet could I, in common sense, ten years ago, have felicitated France on her enjoyment of a government, (for she then had a government,) without inquiry what the nature of that government was, or how it was administered? Can I now congratulate the same nation upon its freedom? Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman who has escaped from the protecting restraint and wholesome darkness of his cell on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer who has broke prison upon the recovery of his natural rights? This would be to act over again the scene of the criminals condemned to the galleys, and their heroic deliverer, the metaphysic Knight of the Sorrowful Countenance.

Liberty in Action

When I see the spirit of liberty in action, I see a strong principle at work; and this, for a while, is all I can possibly know of it. The wild gas, the fixed air, is plainly broke loose: but we ought to suspend our judgment until the first effervescence is a little subsided, till the liquor is cleared, and until we see something deeper than the agitation of a troubled and frothy surface. I must be tolerably sure, before I venture publicly to congratulate men upon a blessing, that they have really received one. Flattery corrupts both the receiver and the giver; and adulation is not of more service to the people than to kings. I should therefore suspend my congratulations on the new liberty of France, until I was informed how it had been combined with government, with public force, with the discipline and obedience of armies, with the collection of an effective and well-distributed revenue, with morality and religion, with solidity and property, with peace and order, with civil and social manners. All these (in their way) are good things, too; and without them, liberty is not a benefit whilst it lasts, and is not likely to continue long. The effect of liberty to individuals is that they may do what they please: we ought to see what it will please them to do, before we risk congratulations, which may be soon turned into complaints. Prudence would dictate this in the case of separate, insulated, private men. But liberty, when men act in bodies, is power. Considerate people, before they declare themselves, will observe the use which is made of power,—and particularly of so trying a thing as new power in new persons, of whose principles, tempers, and dispositions they have little or no experience, and in situations where those who appear the most stirring in the scene may possibly not be the real movers. . . .

LIBERTIES AS AN INHERITANCE

British Liberty Preserves and Transmits its Inheritance from its Forefathers

The very idea of the fabrication of a new government is enough to fill us with disgust and horror. We wished at the period of the [English] Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers. Upon that body and stock of inheritance we have taken care not to inoculate [i.e., protect] any scion [i.e., twig] alien to the nature of the original plant. All the reformations we have hitherto made have proceeded upon the principle of reference to antiquity; and I hope, nay, I am persuaded, that all those which possibly may be made hereafter will be carefully formed upon analogical precedent, authority, and example.  Our oldest reformation is that of Magna Charta. . . . You will observe, that, from Magna Charta to the Declaration of Right, it has been the uniform policy of our Constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity—as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our Constitution preserves an unity in so great a diversity of its parts. We have an inheritable crown, an inheritable peerage, and a House of Commons and a people inheriting privileges, franchises, and liberties from a long line of ancestors.

Social Change Analogous to Natural Change

This policy appears to me to be the result of profound reflection—or rather the happy effect of following Nature, which is wisdom without reflection, and above it. A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors. Besides, the people of England well know that the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission, without at all excluding a principle of improvement. It leaves acquisition free; but it secures what it acquires. Whatever advantages are obtained by a state proceeding on these maxims are locked fast as in a sort of family settlement, grasped as in a kind of mortmain forever. By a constitutional policy working after the pattern of Nature, we receive, we hold, we transmit our government and our privileges, in the same manner in which we enjoy and transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of Providence, are handed down to us, and from us, in the same course and order. Our political system is placed in a just correspondence and symmetry with the order of the world, and with the mode of existence decreed to a permanent body composed of transitory parts—wherein, by the disposition of a stupendous wisdom, molding together the great mysterious incorporation of the human race, the whole, at one time, is never old or middle-aged or young, but, in a condition of unchangeable constancy, moves on through the varied tenor of perpetual decay, fall, renovation, and progression. Thus, by preserving the method of Nature in the conduct of the state, in what we improve we are never wholly new, in what we retain we are never wholly obsolete. By adhering in this manner and on those principles to our forefathers, we are guided, not by the superstition of antiquarians, but by the spirit of philosophic analogy. In this choice of inheritance we have given to our frame of polity the image of a relation in blood: binding up the Constitution of our country with our dearest domestic ties; adopting our fundamental laws into the bosom of our family affections; keeping inseparable, and cherishing with the warmth of all their combined and mutually reflected charities, our state, our hearths, our sepulchers, and our altars.

          Through the same plan of a conformity to Nature in our artificial institutions, and by calling in the aid of her unerring and powerful instincts to fortify the fallible and feeble contrivances of our reason, we have derived several other, and those no small benefits, from considering our liberties in the light of an inheritance. Always acting as if in the presence of canonized forefathers, the spirit of freedom, leading in itself to misrule and excess, is tempered with an awful gravity. This idea of a liberal descent inspires us with a sense of habitual native dignity, which prevents that upstart insolence almost inevitably adhering to and disgracing those who are the first acquirers of any distinction. By this means our liberty becomes a noble freedom. It carries an imposing and majestic aspect. It has a pedigree and illustrating ancestors. It has its bearings and its ensigns armorial. It has its gallery of portraits, its monumental inscriptions, its records, evidences, and titles. We procure reverence to our civil institutions on the principle upon which Nature teaches us to revere individual men: on account of their age, and on account of those from whom they are descended. All your sophisters cannot produce anything better adapted to preserve a rational and manly freedom than the course that we have pursued, who have chosen our nature rather than our speculations, our breasts rather than our inventions, for the great conservatories and magazines of our rights and privileges. . . .

REAL RIGHTS VS. ABSTRACT RIGHTS

Pretended Rights Destroy Real Rights

Far am I from denying in theory, full as far is my heart from withholding in practice, (if I were of power to give or to withhold,) the real rights of men. In denying their false claims of right, I do not mean to injure those which are real, and are such as their pretended rights would totally destroy. If civil society be made for the advantage of man, all the advantages for which it is made become his right. It is an institution of beneficence; and law itself is only beneficence acting by a rule. Men have a right to live by that rule; they have a right to justice, as between their fellows, whether their fellows are in politic function or in ordinary occupation. They have a right to the fruits of their industry, and to the means of making their industry fruitful. They have a right to the acquisitions of their parents, to the nourishment and improvement of their offspring, to instruction in life and to consolation in death. Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and he has a right to a fair portion of all which society, with all its combinations of skill and force, can do in his favor. In this partnership all men have equal rights; but not to equal things. He that has but five shillings in the partnership has as good a right to it as he that has five hundred pounds has to his larger proportion; but he has not a right to an equal dividend in the product of the joint stock. And as to the share of power, authority, and direction which each individual ought to have in the management of the state, that I must deny to be amongst the direct original rights of man in civil society; for I have in my contemplation the civil social man, and no other. It is a thing to be settled by convention.

          If civil society be the offspring of convention [i.e., contract], that convention must be its law. That convention must limit and modify all the descriptions of constitution which are formed under it. Every sort of legislative, judicial, or executory power are its creatures. They can have no being in any other state of things; and how can any man claim, under the conventions of civil society, rights which do not so much as suppose its existence—rights which are absolutely repugnant to it? One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause. By this each person has at once divested himself of the first fundamental right of uncovenanted man, that is, to judge for himself, and to assert his own cause. He abdicates all right to be his own governor. He inclusively, in a great measure, abandons the right of self-defense, the first law of Nature. Men cannot enjoy the rights of an uncivil and of a civil state together. That he may obtain justice, he gives up his right of determining what it is in points the most essential to him. That he may secure some liberty, he makes a surrender in trust of the whole of it.

          Government is not made in virtue of natural rights, which may and do exist in total independence of it—and exist in much greater clearness, and in a much greater degree of abstract perfection: but their abstract perfection is their practical defect. By having a right to everything they want everything. Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom. Among these wants is to be reckoned the want, out of civil society, of a sufficient restraint upon their passions. Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection. This can only be done by a power out of themselves, and not, in the exercise of its function, subject to that will and to those passions which it is its office to bridle and subdue. In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights. But as the liberties and the restrictions vary with times and circumstances, and admit of infinite modifications, they cannot be settled upon any abstract rule; and nothing is so foolish as to discuss them upon that principle.

Abstract Rights are too Simplistic

The moment you abate anything from the full rights of men each to govern himself, and suffer any artificial, positive limitation upon those rights, from that moment the whole organization of government becomes a consideration of convenience. This it is which makes the constitution of a state, and the due distribution of its powers, a matter of the most delicate and complicated skill. It requires a deep knowledge of human nature and human necessities, and of the things which facilitate or obstruct the various ends which are to be pursued by the mechanism of civil institutions. The state is to have recruits to its strength and remedies to its distempers. What is the use of discussing a man's abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician, rather than the professor of metaphysics.

          The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori. Nor is it a short experience that can instruct us in that practical science; because the real effects of moral causes are not always immediate, but that which in the first instance is prejudicial may be excellent in its remoter operation, and its excellence may arise even from the ill effects it produces in the beginning. The reverse also happens; and very plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions. In states there are often some obscure and almost latent causes, things which appear at first view of little moment, on which a very great part of its prosperity or adversity may most essentially depend. The science of government being, therefore, so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be, it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again without having models and patterns of approved utility before his eyes.

          These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are, by the laws of Nature, refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns, the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate; the objects of society are of the greatest possible complexity: and therefore no simple disposition or direction of power can be suitable either to man's nature or to the quality of his affairs. When I hear the simplicity of contrivance aimed at and boasted of in any new political constitutions, I am at no loss to decide that the artificers are grossly ignorant of their trade or totally negligent of their duty. The simple governments are fundamentally defective, to say no worse of them. If you were to contemplate society in but one point of view, all these simple modes of polity are infinitely captivating. In effect each would answer its single end much more perfectly than the more complex is able to attain all its complex purposes. But it is better that the whole, should be imperfectly and anomalously answered than that while some parts are provided for with great exactness, others might be totally neglected, or perhaps materially injured, by the over-care of a favorite member.

True Rights balance Social Interests

The pretended rights of these theorists are all extremes; and in proportion as they are metaphysically true, they are morally and politically false. The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good,—in compromises sometimes between good and evil, and sometimes between evil and evil. Political reason is a computing principle: adding, subtracting, multiplying, and dividing, morally, and not metaphysically or mathematically, true moral denominations.

          By these theorists the right of the people is almost always sophistically confounded with their power. The body of the community, whenever it can come to act, can meet with no effectual resistance; but till power and right are the same, the whole body of them has no right inconsistent with virtue, and the first of all virtues, prudence. Men have no right to what is not reasonable, and to what is not for their benefit; for though a pleasant writer said, "Liceat perire poetis," when one of them, in cold blood, is said to have leaped into the flames of a volcanic revolution, "ardentem frigidus Ætnam insiluit," I consider such a frolic rather as an unjustifiable poetic license than as one of the franchises of Parnassus; and whether he were poet, or divine, or politician, that chose to exercise this kind of right, I think that more wise, because more charitable, thoughts would urge me rather to save the man than to preserve his brazen slippers as the monuments of his folly. . . .

RELIGION THE BASIS OF CIVIL SOCIETY

Against Atheistic Critiques of Religion

We know, and, what is better, we feel inwardly, that religion is the basis of civil society, and the source of all good, and of all comfort. In England we are so convinced of this, that there is no rust of superstition, with which the accumulated absurdity of the human mind might have crusted it over in the course of ages, that ninety-nine in a hundred of the people of England would not prefer to impiety. We shall never be such fools as to call in an enemy to the substance of any system to remove its corruptions, to supply its defects, or to perfect its construction. If our religious tenets should ever want a further elucidation, we shall not call on Atheism to explain them. We shall not light up our temple from that unhallowed fire. It will be illuminated with other lights. It will be perfumed with other incense than the infectious stuff which is imported by the smugglers of adulterated metaphysics. If our ecclesiastical establishment should want a revision, it is not avarice or rapacity, public or private, that we shall employ for the audit or receipt or application of its consecrated revenue. Violently condemning neither the Greek nor the Armenian, nor, since heats are subsided, the Roman system of religion, we prefer the Protestant: not because we think it has less of the Christian religion in it, but because, in our judgment, it has more. We are Protestants, not from indifference, but from zeal.

          We know, and it is our pride to know, that man is by his constitution a religious animal; that atheism is against, not only our reason, but our instincts; and that it cannot prevail long. But if, in the moment of riot, and in a drunken delirium from the hot spirit drawn out of the alembic of hell, which in France is now so furiously boiling, we should uncover our nakedness, by throwing off that Christian religion which has hitherto been our boast and comfort, and one great source of civilization amongst us, and among many other nations, we are apprehensive (being well aware that the mind will not endure a void) that some uncouth, pernicious, and degrading superstition might take place of it.

          For that reason, before we take from our establishment the natural, human means of estimation, and give it up to contempt, as you have done, and in doing it have incurred the penalties you well deserve to suffer, we desire that some other may be presented to us in the place of it. We shall then form our judgment.

          On these ideas, instead of quarrelling with establishments, as some do, who have made a philosophy and a religion of their hostility to such institutions, we cleave closely to them. We are resolved to keep an established church, an established monarchy, an established aristocracy, and an established democracy, each in the degree it exists, and in no greater. I shall show you presently how much of each of these we possess.

Benefits of an Established Church

It has been the misfortune (not, as these gentlemen think it, the glory) of this age, that everything is to be discussed, as if the Constitution of our country were to be always a subject rather of altercation than enjoyment. For this reason, as well as for the satisfaction of those among you (if any such you have among you) who may wish to profit of examples, I venture to trouble you with a few thoughts upon each of these establishments. I do not think they were unwise in ancient Rome, who, when they wished to new-model their laws, sent commissioners to examine the best-constituted republics within their reach.

          First I beg leave to speak of our Church Establishment, which is the first of our prejudices,—not a prejudice destitute of reason, but involving in it profound and extensive wisdom. I speak of it first. It is first, and last, and midst in our minds. For, taking ground on that religious system of which we are now in possession, we continue to act on the early received and uniformly continued sense of mankind. That sense not only, like a wise architect, hath built up the august fabric of states, but, like a provident proprietor, to preserve the structure from profanation and ruin, as a sacred temple, purged from all the impurities of fraud and violence and injustice and tyranny, hath solemnly and forever consecrated the commonwealth, and all that officiate in it. This consecration is made, that all who administer in the government of men, in which they stand in the person of God Himself, should have high and worthy notions of their function and destination; that their hope should be full of immortality; that they should not look to the paltry pelf [i.e., wealth] of the moment, nor to the temporary and transient praise of the vulgar, but to a solid, permanent existence, in the permanent part of their nature, and to a permanent fame and glory, in the example they leave as a rich inheritance to the world.

          Such sublime principles ought to be infused into persons of exalted situations, and religious establishments provided that may continually revive and enforce them. Every sort of moral, every sort of civil, every sort of politic institution, aiding the rational and natural ties that connect the human understanding and affections to the divine, are not more than necessary, in order to build up that wonderful structure, Man,—whose prerogative it is, to be in a great degree a creature of his own making, and who, when made as he ought to be made, is destined to hold no trivial place in the creation. But whenever man is put over men, as the better nature ought ever to preside, in that case more particularly he should as nearly as possible be approximated to his perfection. . . .

IMPORTANCE OF TRADITION

Tradition brings Stability to Law and Education

But one of the first and most leading principles on which the commonwealth and the laws are consecrated is lest the temporary possessors and life-renters in it, unmindful of what they have received from their ancestors, or of what is due to their posterity, should act as if they were the entire masters; that they should not think it amongst their rights to cut off the entail or commit waste on the inheritance, by destroying at their pleasure the whole original fabric of their society: hazarding to leave to those who come after them a ruin instead of an habitation,—and teaching these successors as little to respect their contrivances as they had themselves respected the institutions of their forefathers. By this unprincipled facility of changing the state as often and as much and in as many ways as there are floating fancies or fashions, the whole chain and continuity of the commonwealth would be broken; no one generation could link with the other; men would become little better than the flies of a summer.

          And first of all, the science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns, as a heap of old exploded errors, would be no longer studied. Personal self-sufficiency and arrogance (the certain attendants upon all those who have never experienced a wisdom greater than their own) would usurp the tribunal. Of course no certain laws, establishing invariable grounds of hope and fear, would keep the actions of men in a certain course, or direct them to a certain end. Nothing stable in the modes of holding property or exercising function could form a solid ground on which any parent could speculate in the education of his offspring, or in a choice for their future establishment in the world. No principles would be early worked into the habits. As soon as the most able instructor had completed his laborious course of institution, instead of sending forth his pupil accomplished in a virtuous discipline fitted to procure him attention and respect in his place in society, he would find everything altered, and that he had turned out a poor creature to the contempt and derision of the world, ignorant of the true grounds of estimation. Who would insure a tender and delicate sense of honor to beat almost with the first pulses of the heart, when no man could know what would be the test of honor in a nation continually varying the standard of its coin? No part of life would retain its acquisitions. Barbarism with regard to science and literature, unskilfulness with regard to arts and manufactures, would infallibly succeed to the want of a steady education and settled principle; and thus the commonwealth itself would in a few generations crumble away, be disconnected into the dust and powder of individuality, and at length dispersed to all the winds of heaven.

Do not reform Government through subversion

To avoid, therefore, the evils of inconstancy and versatility, ten thousand times worse than those of obstinacy and the blindest prejudice, we have consecrated the state, that no man should approach to look into its defects or corruptions but with due caution; that he should never dream of beginning its reformation by its subversion; that he should approach to the faults of the state as to the wounds of a father, with pious awe and trembling solicitude. By this wise prejudice we are taught to look with horror on those children of their country who are prompt rashly to hack that aged parent in pieces and put him into the kettle of magicians, in hopes that by their poisonous weeds and wild incantations they may regenerate the paternal constitution and renovate their father's life.

Society as Partnership with the Past and Future

Society is, indeed, a contract. Subordinate contracts for objects of mere occasional interest may be dissolved at pleasure; but the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. Each contract of each particular state is but a clause in the great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures each in their appointed place. This law is not subject to the will of those who, by an obligation above them, and infinitely superior, are bound to submit their will to that law. The municipal corporations of that universal kingdom are not morally at liberty, at their pleasure, and on their speculations of a contingent improvement, wholly to separate and tear asunder the bands of their subordinate community, and to dissolve it into an unsocial, uncivil, unconnected chaos of elementary principles. It is the first and supreme necessity only—a necessity that is not chosen, but chooses, a necessity paramount to deliberation, that admits no discussion and demands no evidence—which alone can justify a resort to anarchy. This necessity is no exception to the rule; because this necessity itself is a part, too, of that moral and physical disposition of things to which man must be obedient by consent or force: but if that which is only submission to necessity should be made the object of choice, the law is broken, Nature is disobeyed, and the rebellious are outlawed, cast forth, and exiled, from this world of reason, and order, and peace, and virtue, and fruitful penitence, into the antagonist world of madness, discord, vice, confusion, and unavailing sorrow. . . .

Source: Edmund Burke, Reflections on the Revolution in France (1790)

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JEREMY BENTHAM: UTILITY AND GOVERNMENT

 

Born in London into a wealthy family line of attorneys, Jeremy Bentham (1742–1836) was a child prodigy and, though educated in law, he never practiced it. He instead devoted his life to writing on matters of political theory and governmental reform, typically composing most of the day. Much of his writing he never published, and, upon his death, he left 60,000 manuscript pages. A complete collection of his writings are now in progress and are estimated to be 85 volumes when complete. Bentham's political views were radical, and he was in contact with like-minded intellectuals in Britain. He died at age 84, and, as per his instructions, his body was mummified and put on display in the University College London. Unlike Montesquieu who advocated a complex system of balanced governmental powers, Bentham argued for a simpler one. For him, there is a single authority residing in the people, subordinate to which is an "omnicompetent" legislature that follows the principle of utility. The selections below are from five of his works.

          The first selection criticizes the U.S. Declaration of Independence. When the Declaration first appeared in 1776, the British government did not want to respond directly to it, and, instead, hired political writer John Lind to write a critique. Bentham, who at the time was a housemate with Lind, often helped him on writing projects. In this case, Bentham wrote an appendix to Lind's critique, in which Bentham takes aim at the Preamble to the Declaration. In the selections below, Bentham criticizes the notion of natural rights to life, liberty and pursuit of happiness. In the next selection, Bentham argues that laws should be based on the principle of utility, that is, the standard of right and wrong is the greatest happiness of the greatest number. Good laws are those which bring about happiness, and bad laws mischief. Bentham devised a procedure, now called the "utilitarian calculus," which enables one to judge the rightness of an action based on an analysis of the pleasure and pain that results, including how intense the pleasures and pains are, and how long they last.

          In addition to his utilitarian view of government, three other aspects of Bentham's political philosophy have been particularly influential. First is his rejection of natural law and advocacy of what is now called positive law. Only political laws are genuine, and so-called natural laws are pure fabrications of legal philosophers. William Blackstone, who defended natural law, argued that the only valid political laws are those based on natural law and divine law. Bentham criticizes this view on the grounds that it allows us to reject any political law that we found contrary to scripture or did not like. The second influential aspect of Bentham's political thought is his critique of an original social contract where people promise to obey the king, and the king promises to govern the people in a way that secures their happiness. The problem with this view, Bentham argues, is with the notion of a promise: the foundation of all promise-keeping is utility that is, the benefit or disbenefit that results from keeping one's promises. Thus, the King's "promise" to govern, and the subject's "promise" to obey, simply reduce to the utility of the King governing and the utility of the people obeying. Thus, according to Bentham, the so-called social contract, if there was one, would reduce to utility.

          The third influential aspect of Bentham's political thought is his critique of natural rights theory. All rights, he argues, are the creation of laws: without a foundation law creating a right, there is no right. This is precisely what we have with legal rights: they are product of laws made by governmental legislators. They are grounded in facts regarding the legislative process. None of this is the case, though, with so-called "natural rights". They are not founded by any law, and there are no facts that one can investigate to clarify the nature of those rights. While some theorists argue that natural rights are grounded in natural laws, Bentham argues that the concept of a natural law is a pure invention. Political revolutionaries rely on the concepts of natural laws and natural rights as a way of forcing governments to create new legal rights in support of their particular agenda. But, ultimately, these natural laws and natural rights have no substance, and are at best lies, and at worst harmful intrusions into a legitimate political system. In the final section Bentham explains a new plan for a penitentiary building in which the prisoners are under constant surveillance and thus is "a new mode of obtaining power of mind over mind."

AGAINST THE DECLARATION OF INDEPENDENCE (from A Short Review of the Declaration, 1776)

In examining this singular Declaration, I have hitherto confined myself to what are given as facts, and alleged against his Majesty and his Parliament, in support of the charge of tyranny and usurpation. Of the preamble I have taken little or no notice. The truth is, little or none does it deserve. The opinions of the modern Americans on Government, like those of their good ancestors on witchcraft, would be too ridiculous to deserve any notice, if like them too, contemptible and extravagant as they be, they had not led to the most serious evils.

          In this preamble however it is, that they attempt to establish a theory of Government; a theory, as absurd and visionary, as the system of conduct in defence of which it is established is nefarious. Here it is, that maxims are advanced in justification of their enterprises against the British Government. To these maxims, adduced for this purpose, it would be sufficient to say, that they are repugnant to the British Constitution. But beyond this they are subversive of every actual or imaginable kind of Government.

          They are about "to assume," as they tell us, "among the powers of the earth, that equal and separate station to which": they have lately discovered: "the laws of Nature, and of Nature's God entitle them." What difference these acute legislators suppose between the laws of Nature and of Nature's God, is more than I can take upon me to determine, or even to guess. If to what they now demand they were entitled by any law of God, they had only to produce that law, and all controversy was at an end. Instead of this, what do they produce? What they call sell-evident truths. "All men," they tell us, "are created equal." This rarity is a new discovery; now, for the first time, we learn, that a child, at the moment of his birth, has the same quantity of natural power as the parent, the same quantity of political power as the magistrate.

          The rights of "life, liberty, and the pursuit of happiness": by which, if they mean anything, they must mean the right to enjoy life, to enjoy liberty, and to pursue happiness: they " hold to be unalienable." This they "hold to be among truths self-evident." At the same time, to secure these rights, they are content that Governments should be instituted. They perceive not, or will not seem to perceive, that nothing which can be called Government ever was, or ever could be, in any instance, exercised, but at the expence of one or other of those rights. That, consequently, in as many instances as Government is ever exercised, some one or other of these rights, pretended to be unalienable, is actually alienated. . . .

          How this Declaration may strike others, I know not. To me, I own, it appears that it cannot fail: to use the words of a great Orator [i.e., Edmund Burke] — "of doing us Knight's service" [i.e., unintentionally doing a great service]. The mouth of faction, we may reasonably presume, will be closed; the eyes of those who saw not, or would not see, that the Americans were long since aspiring at independence, will be opened; the nation will unite as one man, and teach this rebellious people, that it is one thing for them to say, the connection, which bound them to us, is dissolved, another to dissolve it; that to accomplish their independence is not quite so easy as to declare it: that there is no peace with them, but the peace of the King: no war with them, but that war, which offended justice wages against criminals.: We too, I hope, shall acquiesce in the necessity of submitting to whatever burdens, of making whatever efforts may be necessary, to bring this ungrateful and rebellious people back to that allegiance they have long had it in contemplation to renounce, and have now at last so daringly renounced.

UTILITY THE STANDARD OF LAW (from A Fragment on Government, 1776)

Reformation in Morality (Preface)

The age we live in is a busy age; in which knowledge is rapidly advancing towards perfection. In the natural motives of world, in particular, everything teems with discovery and the present with improvement. The most distant and recondite regions of the earth traversed and explored—the all-vivifying and subtle element of the air so recently analyzed and made known to us,—are striking evidences, were all others wanting, of this pleasing truth.

          Correspondent to discovery and improvement in the natural world, is reformation in the moral; if that which seems a common notion be, indeed, a true one, that in the moral world there no longer remains any matter for discovery. Perhaps, however, this may not be the case: perhaps among such observations as would be best calculated to serve as grounds for reformation, are some which, being observations of matters of fact hitherto either incompletely noticed, or not at all would, when produced, appear capable of bearing the name of discoveries: with so little method and precision have the consequences of this fundamental axiom, it is the greatest happiness of the greatest number that is the measure of right and wrong, been as yet developed.

          Be this as it may, if there be room for making, and if there be use in publishing, discoveries in the natural world, surely there is not much less room for making, nor much less use in proposing, reformation in the moral. If it be a matter of importance and of use to us to be made acquainted with distant countries, surely it is not a matter of much less importance, nor of much less use to us, to be made better and better acquainted with the chief means of living happily in our own. If it be of importance and of use to us to know the principles of the element we breathe, surely it is not of much less importance nor of much less use to comprehend the principles, and endeavor at the improvement of those laws, by which alone we breathe it in security. If to this endeavor we should fancy any Author, especially any Author of great name, to be, and as far as could in such case be expected, to avow himself a determined and persevering enemy, what should we say of him? We should say that the interests of reformation, and through them the welfare of mankind, were inseparably connected with the downfall of his works: of a great part, at least, of the esteem and influence, which these works might under whatever title have acquired. . . .

The Expositor (What the Law Is) vs. the Censor (What the Law Ought to Be) (Preface)

There are two characters, one or other of which every man who finds anything to say on the subject of Law, may be said to take upon him;—that of the Expositor, and that of the Censor. To the province of the Expositor it belongs to explain to us what, as he supposes, the Law is: to that of the Censor, to observe to us what he thinks it ought to be. The former, therefore, is principally occupied in stating, or in inquiring after facts: the latter, in discussing reasons. The Expositor, keeping within his sphere, has no concern with any other faculties of the mind than the apprehension, the memory, and the judgment: the latter, in virtue of those sentiments of pleasure or displeasure which he finds occasion to annex to the objects under his review, holds some intercourse with the affections. That which is Law, is, in different countries, widely different: while that which ought to be, is in all countries to a great degree the same. The Expositor, therefore, is always the citizen of this or that particular country: the Censor is, or ought to be, the citizen of the world. To the Expositor it belongs to show what the Legislator and his underworkman the Judge have done already: to the Censor it belongs to suggest what the Legislator ought to do in future. To the Censor, in short, it belongs to teach that science, which, when by change of hands converted into an art, the Legislator practises.

Utility Distinguishes Good Laws from Bad Ones (Preface)

Now then, with respect to actions in general, there is no property in them that is calculated so readily to engage, and so firmly to fix the attention of an observer, as the tendency they may have to, or divergency (if one may so say) from, that which may be styled the common end of all of them. The end I mean is happiness: and this tendency in any act is what we style its utility: as this divergency is that to which we give the name of mischievousness. With respect then to such actions in particular as are among the objects of the Law, to point out to a man the utility of them or the mischievousness, is the only way to make him see clearly that property of them which every man is in search of; the only way, in short, to give him satisfaction.

          From utility then we may denominate a principle, that may serve to preside over and govern, as it were, such arrangement as shall be made of the several institutions or combinations of institutions that compose the matter of this science: and it is this principle, that by putting its stamp upon the several names given to those combinations, can alone render satisfactory and clear any arrangement that can be made of them.

          Governed in this manner by a principle that is recognized by all men, the same arrangement that would serve for the jurisprudence of anyone country, would serve with little variation for that of any other.

          Yet more. The mischievousness of a bad Law would be detected, at least the utility of it would be rendered suspicious, by the difficulty of finding a place for it in such an arrangement: while, on the other hand, a technical arrangement is a sink that with equal facility will swallow any garbage that is thrown into it.

          That this advantage may be possessed by a natural arrangement, is not difficult to conceive. Institutions would be characterized by it in the only universal way in which they can be characterized; by the nature of the several modes of conduct which, by prohibiting, they constitute offences.

          These offences would be collected into classes denominated by the various modes of their divergency from the common end; that is, as we have said, by their various forms and degrees of mischievousness: in a word, by those properties which are reasons for their being made offences: and whether any such mode of conduct possesses any such property is a question of experience. Now, a bad Law is that which prohibits a mode of conduct that is not mischievous. Thus would it be found impracticable to place the mode of conduct prohibited by a bad law under any denomination of offence, without asserting such a matter of fact as is contradicted by experience. Thus cultivated, in short, the soil of Jurisprudence would be found to repel in a manner every evil institution; like that country which refuses, we are told, to harbor anything venomous in its bosom. . . .

          Utility is that standard to which men in general (except in here and there an instance where they are deterred by prejudices of the religious class, or hurried away by the force of what is called sentiment or feeling). Utility, as we have said, is the standard to which they refer a Law or institution in judging of its title to approbation or disapprobation. Men of Law, corrupted by interests, or seduced by illusions, which it is not here our business to display, have deviated from it much more frequently, and with much less reserve. Hence it is that such reasons as pass with lawyers, and with no one else, have got the name of technical reasons; reasons peculiar to the art, peculiar to the profession. . . .

          Nor in this is there anything that need surprise us. The consequences of any law, or of any act which is made the object of a Law, the only consequences that men are at all interested in, what are they but pain and pleasure? By some such words then as pain and pleasure, they may be expressed: and pain and pleasure at least, are words which a man has no need, we may hope, to go to a lawyer to know the meaning of. In the synopsis then of that sort of arrangement which alone deserves the name of a natural one, terms such as these, terms which if they can be said to belong to any science, belong rather to Ethics than to Jurisprudence, even than to universal Jurisprudence, will engross the most commanding stations.

Against Natural Law as a Foundation of Human Law (Chapter 4)

          4.18. It is 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 [i.e., Blackstone] says, "should be suffered to contradict these [natural laws]." The expression Edition: current; Page: is remarkable. It is not, that no human laws should contradict them; but, that no human laws should be "suffered" [i.e., tolerated] to contradict them. He then proceeds to give us an example [i.e., murder "is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime."] This example, one might think, would be such as should have the effect of softening the dangerous tendency of the rule [i.e., because of the disutility of murder]. 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."

          4.19. 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 anyone 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 [i.e., Blackstone] to inform us.

          4.20. It is the principle of utility, accurately apprehended and steadily applied, that affords the only clue to guide a man through these straights. 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 of practice.

THE UTILITARIAN CALCULUS (from Principles of Morals and Legislation, 1789)

The Principle of Utility

1.1. Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think; every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words a man may pretend to abjure their empire: but in reality he will remain subject to it all the while. The principle of utility recognizes the subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.

          But enough of metaphor and declamation: it is not by such means that moral science is to be improved.

          1.2. The principle of utility is the foundation of the present work; it will be proper therefore at the outset to give an explicit and determinate account of what is meant by it. By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question; or, what is the same thing in other words, to promote or to oppose that happiness. I say of every action whatsoever; and therefore not only of every action of a private individual, but of every measure of government.

          1.3. By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness, (all this in the present case comes to the same thing) or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: if a particular individual, then the happiness of that individual.

          1.4. The interest of the community is one of the most general expressions that can occur in the phraseology of morals: no wonder that the meaning of it is often lost. When it has a meaning, it is this. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, what?— the sum of the interests of the several members who compose it.

          1.5. It is in vain to talk of the interest of the community, without understanding what is the interest of the individual. A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures: or, what comes to the same thing, to diminish the sum total of his pains.

          1.6. An action then may be said to be conformable to the principle of utility, or, for shortness' sake, to utility, (meaning with respect to the community at large) when the tendency it has to augment the happiness of the community is greater than any it has to diminish it.

          1.7. A measure of government (which is but a particular kind of action, performed by a particular person or persons) may be said to be conformable to or dictated by the principle of utility, when in like manner the tendency which it has to augment the happiness of the community is greater than any which it has to diminish it. . . .

Seven Factors

4.1. Pleasures then, and the avoidance of pains, are the ends which the legislator has in view: it behooves him therefore to understand their value. Pleasures and pains are the instruments he has to work with: it behooves him therefore to understand their force, which is again, in other words, their value.

          4.2. To a person considered by himself, the value of a pleasure or pain considered by itself, will be greater or less, according to the four following circumstances:

(1) Its intensity.

(2) Its duration.

(3) Its certainty or uncertainty.

(4) Its propinquity or remoteness.

          4.3. These are the circumstances which are to be considered in estimating a pleasure or a pain considered each of them by itself. But when the value of any pleasure or pain is considered for the purpose of estimating the tendency of any act by which it is produced, there are two other circumstances to be taken into the account; these are,

(5) Its fecundity, or the chance it has of being followed by, sensations of the same kind: that is, pleasures, if it be a pleasure: pains, if it be a pain.

(6) Its purity, or the chance it has of not being followed by, sensations of the opposite kind: that is, pains, if it be a pleasure: pleasures, if it be a pain.

          These two last, however, are in strictness scarcely to be deemed properties of the pleasure or the pain itself; they are not, therefore, in strictness to be taken into the account of the value of that pleasure or that pain. They are in strictness to be deemed properties only of the act, or other event, by which such pleasure or pain has been produced; and accordingly are only to be taken into the account of the tendency of such act or such event.

          4.4. To a number of persons, with reference to each of whom the value of a pleasure or a pain is considered, it will be greater or less, according to seven circumstances: to wit, the six preceding ones; viz.

(1) Its intensity.

(2) Its duration.

(3) Its certainty or uncertainty.

(4) Its propinquity or remoteness.

(5) Its fecundity [i.e., the production of similar sensations].

(6) Its purity.

And one other; to wit:

(7) Its extent; that is, the number of persons to whom it extends; or (in other words) who are affected by it.

Mnemonic Device for the Seven Factors (footnote added to 1823 edition)

Not long after the publication of the first edition, the following memoriter verses were framed, in the view of lodging more effectually, in the memory, these points, on which the whole fabric of morals and legislation may be seen to rest.

Intense, long, certain, speedy, fruitful, pure—

Such marks in pleasures and in pains endure.

Such pleasures seek if private be thy end:

If it be public, wide let them extend.

Such pains avoid, whichever be thy view:

If pains must come, let them extend to few.

Applying the Factors

4.5. To take an exact account then of the general tendency of any act, by which the interests of a community are affected, proceed as follows. Begin with any one person of those whose interests seem most immediately to be affected by it: and take an account,

          1. Of the value of each distinguishable pleasure which appears to be produced by it in the first instance.

          2. Of the value of each pain which appears to be produced by it in the first instance.

          3. Of the value of each pleasure which appears to be produced by it after the first. This constitutes the fecundity of the first pleasure and the impurity of the first pain.

          4. Of the value of each pain which appears to be produced by it after the first. This constitutes the fecundity of the first pain, and the impurity of the first pleasure.

          5. Sum up all the values of all the pleasures on the one side, and those of all the pains on the other. The balance, if it be on the side of pleasure, will give the good tendency of the act upon the whole, with respect to the interests of that individual person; if on the side of pain, the bad tendency of it upon the whole.

          6. Take an account of the number of persons whose interests appear to be concerned; and repeat the above process with respect to each. Sum up the numbers expressive of the degrees of good tendency, which the act has, with respect to each individual, in regard to whom the tendency of it is good upon the whole: do this again with respect to each individual, in regard to whom the tendency of it is good upon the whole: do this again with respect to each individual, in regard to whom the tendency of it is bad upon the whole. Take the balance; which, if on the side of pleasure, will give the general good tendency of the act, with respect to the total number or community of individuals concerned; if on the side of pain, the general evil tendency, with respect to the same community.

          4.6. It is not to be expected that this process should be strictly pursued previously to every moral judgment, or to every legislative or judicial operation. It may, however, be always kept in view: and as near as the process actually pursued on these occasions approaches to it, so near will such process approach to the character of an exact one.

          4.7. The same process is alike applicable to pleasure and pain, in whatever shape they appear: and by whatever denomination they are distinguished: to pleasure, whether it be called good (which is properly the cause or instrument of pleasure) or profit (which is distant pleasure, or the cause or instrument of distant pleasure,) or convenience, or advantage, benefit, emolument, happiness, and so forth: to pain, whether it be called evil, (which corresponds to good) or mischief, or inconvenience, or disadvantage, or loss, or unhappiness, and so forth.

          4.8. Nor is this a novel and unwarranted, any more than it is a useless theory. In all this there is nothing but what the practice of humankind, wheresoever they have a clear view of their own interest, is perfectly conformable to. An article of property, an estate in land, for instance, is valuable, on what account? On account of the pleasures of all kinds which it enables a man to produce, and what comes to the same thing the pains of all kinds which it enables him to avert. But the value of such an article of property is universally understood to rise or fall according to the length or shortness of the time which a man has in it: the certainty or uncertainty of its coming into possession: and the nearness or remoteness of the time at which, if at all, it is to come into possession. As to the intensity of the pleasures which a man may derive from it, this is never thought of, because it depends upon the use which each particular person may come to make of it; which cannot be estimated till the particular pleasures he may come to derive from it, or the particular pains he may come to exclude by means of it, are brought to view. For the same reason, neither does he think of the fecundity or purity of those pleasures.

AGAINST THE ORIGINAL CONTRACT (from A Fragment on Government)

The Assumed Binding Nature of Contracts

38. As to the fiction now before us [regarding the original contract], in the character of an argumentum ad hominem, coming when it did, and managed as it was, it succeeded to admiration.

          That compacts, by whomsoever entered into, ought to be kept;—that men are bound by compacts, are propositions which men, without knowing or inquiring why, were disposed universally to accede to. The observance of promises they had been accustomed to see pretty constantly enforced. They had been accustomed to see Kings, as well as others, behave themselves as if bound by them. This proposition, then, "that men are bound by compacts;" and this other, "that, if one party performs not his part, the other is released from his," being propositions which no man disputed, were propositions which no man had any call to prove. In theory they were assumed for axioms: and in practice they were observed as rules, If, on any occasion, it was thought proper to make a show of proving them, it was rather for form's sake than for anything else; and that, rather in the way of memento or instruction to acquiescing auditors, than in the way of proof against opponents. On such an occasion, the common-place retinue of phrases was at hand: Justice, Right Reason required it; the Law of Nature commanded it, and so forth: all which are but so many ways of intimating that a man is firmly persuaded of the truth of this or that moral proposition, though he either thinks he need not, or finds he can't, tell why. Men were too obviously and too generally interested in the observance of these rules, to entertain doubts concerning the force of any arguments they saw employed in their support. It is an old observation, how Interest smoothes the road to Faith.

          39. A compact, then, it was said, was made by the King and People: the terms of it were to this effect:—The People, on their part, promised to the King a general obedience: the King, on his part, promised to govern the People in such a particular manner always, as should be subservient to their happiness. I insist not on the words: I undertake only for the sense; as far as an imaginary engagement, so loosely and so variously worded by those who have imagined it, is capable of any decided signification. Assuming, then, as a general rule, that promises, when made, ought to be observed; and, as a point of fact, that a promise to this effect in particular had been made by the party in question, men were more ready to deem themselves qualified to judge when it was such a promise was broken, than to decide directly and avowedly on the delicate question, when it was that a King acted so far in opposition to the happiness of his People, that it were better no longer to obey him.

Problem Determining the King's Violation of his Promise

          40. It is manifest, on a very little consideration, that nothing was gained by this maneuver after all: no difficulty removed by it. It was still necessary, and that as much as ever, that the question men studied to avoid should be determined, in order to determine the question they thought to substitute in its room. It was still necessary to determine, whether the King in question, had, or had not, acted so far in opposition to the happiness of his people, that it were better no longer to obey him; in order to determine, whether the promise he was supposed to have made, had or had not been broken. For what was the supposed purport of this promise? It was no other than what has just been mentioned.

          41. Let it be said, that part at least of this promise was to govern in subservience to Law; that hereby a more precise rule was laid down for his conduct, by means of this supposal of a promise, than that other loose and general rule to govern in subservience to the happiness of his people: and that, by this means, it is the letter of the Law that forms the tenor of the rule.

          Now true it is, that the governing in opposition to Law, is one way of governing in opposition to the happiness of the people: the natural effect of such a contempt of the Law being, if not actually to destroy, at least to threaten with destruction, all those rights and privileges that are founded on it: rights and privileges on the enjoyment of which that happiness depends. But still it is not this that can be safely taken for the entire purport of the promise here in question: and that for several reasons. First, Because the most mischievous, and under certain constitutions the most feasible, method of governing in opposition to the happiness of the people, is, by setting the Law itself in opposition to their happiness. Second, Because it is a case very conceivable, that a King may, to a great degree, impair the happiness of his people without violating the letter of any single Law. Third, Because extraordinary occasions may now and then occur, in which the happiness of the people may be better promoted by acting, for the moment, in opposition to the Law, than in subservience to it. fourth, Because it is not any single violation of the Law, as such, that can properly be taken for a breach of his part of the contract, so as to be understood to have released the people from the obligation of performing theirs. For, to quit the fiction, and resume the language of plain truth, it is scarce ever any single violation of the Law that, by being submitted to, can produce so much mischief as shall surpass the probable mischief of resisting it. If every single instance whatever of such a violation were to be deemed an entire dissolution of the contract, a man who reflects at all would scarce find anywhere, I believe, under the sun, that Government which he could allow to subsist for twenty years together. It is plain, therefore, that to pass any sound decision upon the question which the inventors of this fiction substituted instead of the true one, the latter was still necessary to be decided. All they gained by their contrivance was, the convenience of deciding it obliquely, as it were, and by a side wind; that is, in a crude and hasty way, without any direct and steady examination.

Promise Keeping based on Utility

42. But, after all, for what reason is it, that men ought to keep their promises? The moment any intelligible reason is given, it is this: that it is for the advantage of society they should keep them; and if they do not, that as far as punishment will go, they should be made to keep them. It is for the advantage of the whole number that the promises of each individual should be kept: and, rather than they should not be kept, that such individuals as fail to keep them should be punished. If it be asked, how this appears? the answer is at hand:: Such is the benefit to gain, and mischief to avoid, by keeping them, as much more than compensates the mischief of so much punishment as is requisite to oblige men to it. Whether the dependence of benefit and mischief (that is, of pleasure and pain) upon men's conduct in this behalf, be as here stated, is a question of fact, to be decided, in the same manner that all other questions of fact are to be decided, by testimony, observation, and experience.

          43. This, then, and no other, being the reason why men should be made to keep their promises, viz. that it is for the advantage of society that they should, is a reason that may as well be given at once why Kings, on the one hand, in governing, should in general keep within established Laws, and (to speak universally) abstain from all such measures as tend to the unhappiness of their subjects: and, on the other hand, why subjects should obey Kings as long as they so conduct themselves, and no longer; why they should obey, in short, so long as the probable mischiefs of obedience are less than the probable mischiefs of resistance: why, in a word, taking the whole body together, it is their duty to obey just so long as it is their interest, and no longer. This being the case, what need of saying of the one, that he Promised so to govern; of the other, that they Promised so to obey, when the fact is otherwise?

          44. True it is, that, in this country, according to ancient forms, some sort of vague promise of good government is made by Kings at the ceremony of their coronation: and let the acclamations, perhaps given, perhaps not given, by chance persons out of the surrounding multitude, be construed into a promise of obedience on the part of the whole multitude: that whole multitude itself a small drop collected together by chance out of the ocean of the state: and let the two promises thus made be deemed to have formed a perfect compact:: not that either of them is declared to be the consideration of the other.

          45. Make the most of this concession: one experiment there is, by which every reflecting man may satisfy himself, I think beyond a doubt that it is the consideration of utility, and no other, that, secretly, perhaps, but unavoidably, has governed his judgment upon all these matters. The experiment is easy and decisive. It is but to reverse, in supposition, in the first place, the import of the particular promise thus feigned; in the next place, the effect in point of utility of the observance of promises in general. Suppose the King to promise that he would govern his subjects not according to Law; not in the view to promote their happiness:: would this be binding upon Him? Suppose the people to promise they would obey him at all events, let him govern as he will; let him govern to their destruction:: would this be binding upon them? Suppose the constant and universal effect of an observance of promises were to produce mischief, would it then be men's duty to observe them? would it then he right to make Laws, and apply punishment to oblige men to observe them?

Validity of Promise based on Utility, not on the Promise itself

          46. "No," (it may perhaps be replied); "but for this reason: among promises, some there are that, as everyone allows, are void: now these you have been supposing, are unquestionably of the number. A promise that is in itself void, cannot, it is true, create any obligation: But allow the promise to be valid, and it is the promise itself that creates the obligation, and nothing else." The fallacy of this argument it is easy to perceive. For what is it, then, that the promise depends on for its validity? what is it that being present makes its valid? what is it that being wanting makes it void? To acknowledge that any one promise may be void, is to acknowledge that if any other is binding, it is not merely because it is a promise. That circumstance, then, whatever it be, on which the validity of a promise depends; that circumstance, I say, and not the promise itself, must, it is plain, be the cause of the obligation which a promise is apt in general to carry with it.

          47. But farther. Allow, for argument's sake, what we have disproved: allow that the obligation of a promise is independent of every other: allow that a promise is binding proprid vi: Binding, then, on whom? On him certainly who makes it. Admit this: For what reason is the same individual promise to be binding on those who never made it? The King, fifty years ago, promised my Great-Grandfather to govern him according to Law: my Great-Grandfather, fifty years ago, promised the King to obey him according to Law. The King, just now, promised my neighbor to govern him according to Law: my neighbor, just now, promised the King to obey him according to Law. Be it so: What are these promises, all or any of them, to me? To make answer to this question, some other principle, it is manifest, must be resorted to, than that of the intrinsic obligation of promises upon those who make them.

          48. Now this other principle that still recurs upon us, what other can it be than the principle of Utility? The principle which furnishes us with that reason, which alone depends not upon any higher reason, but which is itself the sole and all sufficient reason for every point of practice whatsoever.

AGAINST NATURAL RIGHTS (from Pannomial Fragments)

Only Legal Rights are Grounded in Legislative Facts

The word right, is the name of a fictitious entity: one of those objects, the existence of which is feigned [i.e., pretended] for the purpose of discourse by a fiction so necessary, that without it human discourse could not be carried on.

          A man is said to have it, to hold it, to possess it, to acquire it, to lose it. It is thus spoken of as if it were a portion of matter such as a man may take into his hand, keep it for a time and let it go again. According to a phrase more common in law language than in ordinary language, a man is even spoken of as being invested with it. Vestment is clothing: invested with it makes it an article of clothing, and is as much as to say is clothed with it.

          To the substantive word are frequently prefixed, as adjuncts and attributives, not only the word political, but the word natural and the word moral: and thus rights are distinguished into natural, moral, and political.

          From this mode of speech, much confusion of ideas has been the result.

          The only one of the three cases in which the word right has any determinate and intelligible meaning is that in which it has the adjunct political attached to it: in this case, when a man is said to have a right (mentioning it), the existence of a certain matter of fact is asserted; namely, of a disposition on the part of those by whom the powers of government are exercised, to cause him, to possess and so far as depends upon them to have the faculty of enjoying, the benefit to which he has a right. If, then, the fact thus asserted be true, the case is, that amongst them they are prepared on occasion to render him this service: and to this service on the part of the subordinate functionaries to whose province the matter belongs, he has, if so it be, a right; the supreme functionaries being always prepared to do what depends upon them to cause this same service to be rendered by those same subordinate functionaries.

          Now, in the case of alleged natural rights, no such matter of fact has place—nor any matter of fact other than what would have place supposing no such natural right to have place. In this case, no functionaries have place—or if they have, no such disposition on their part, as above, has place; for if it have, it is the case of a political right, and not of a merely natural right. A man is never the better for having such natural right: admit that he has it, his condition is not in any respect different from what it would be if he had it not.

          If I say a man has a right to this coat or to this piece of land, meaning a right in the political sense of the word,—what I assert is a matter of fact; namely, the existence of the disposition in question as above.

          If I say a man has a natural right to the coat or the land—all that it can mean, if it mean anything and mean true, is that I am of opinion he ought to have a political right to it; that by the appropriate services rendered upon occasion to him by the appropriate functionaries of government, he ought to be protected and secured in the use of it: he ought to be so—that is to say, the idea of his being so is pleasing to me—the idea of the opposite result displeasing.

Ambiguity with the Word "Right" leads to the Invention of Natural Right

In the English language, an imperfection perhaps peculiar to that language, contributes to the keeping up of this confusion. In English, in speaking of a certain man and a certain coat, or a certain piece of land, I may say it is right he should have this coat or this piece of land. But in this case, beyond doubt, nothing more do I express than my satisfaction at the idea of his having this same coat or land.

          This imperfection does not extend itself to other languages. Take the French, for instance. A Frenchman will not say, "Il est droit que cet homme ait cet habit": what he will say is, "Il est juste que cet homme ait cet habit. Cet appartient de droit a cet homme."

          If the coat I have on is mine, I have a right by law to knock down, if I can, any man who by force should attempt to take it from me; and this right is what in any case it can scarcely be but that a man looks to when he says, I have a right to a constitution, to such or such an effect—or a right to have the powers of government arranged in such manner as to place me in such or such a condition in respect of actual right, actually established rights, political rights.

          To engage others to join with him in applying force for the purpose of putting things into a state in which he would actually be in possession of the right, of which he thus pretends to be in possession, is at bottom the real object and purpose of the confusion thus endeavoured to be introduced into men's ideas, by employing a word in a sense different from what it had been wont to be employed, and from thus causing men to accede in words to positions from which they dissent in judgment.

          This confusion has for its source the heat of argument. In the case of a political right, when the existence of it is admitted on all sides, all dispute ceases. But when so it is that a man has been contending for a political right which he either never has possessed, or having in his possession, is fearful of losing, he will not quietly be beaten out of his claim; but in default of the political right, or as a support to the political right, he asserts he has a natural right. This imaginary natural right is a sort of thread he clings by:—in the case in question, his having any efficient political right is a supposed matter of fact, the existence of the contrary of which is but too notorious and being so, is but too capable of being proved. Beaten out of this ground, he says he has a natural right—a right given him by that kind goddess and governess Nature whose legitimacy who shall dispute? And if he can manage so as to get you to admit the existence of this natural right, he has, under favor of this confusion, the hope of getting you to acknowledge the existence of the correspondent political right, and your assistance in enabling him to possess it. . . .

Natural Rights based on fabricated Natural Laws

It is the weakness of the understanding which has given birth to these pretended natural rights; it is the force of the passions which has led to their adoption, when, desirous of leading men to pursue a certain line of conduct which general utility does not furnish sufficient motives to induce them to pursue, or when, having such motives, a man knows not how to produce and develop them, yet wishes that there were laws to constrain men to pursue this conduct, or what comes to the same thing, that they would believe that there were such laws,—it has been found the shortest and easiest method to imagine laws to this effect.

          Behold the professors of natural law, of which they have dreamed—the legislating Grotii—the legislators of the human race: that which the Alexanders and the Tamerlanes endeavored to accomplish by traversing a part of the globe, the Grotii and the Puffendorffs would accomplish, each one sitting in his arm chair: that which the conqueror would effect with violence by his sword, the jurisconsult [i.e., legal expert] would effect without effort by his pen. Behold the goddess Nature!—the jurisconsult is her priest; his idlest trash is an oracle, and this oracle is a law.

          The jurisconsult in his arm-chair is an individual sufficiently peaceable: he lies,—he fabricates false laws in the simplicity of his heart;—desirous of doing something, ignorant how to do better, hoping to do well, he would not willingly injure any one. From his hands the instruments he employs have passed into hands of a far different temper.

          The invention was fortunate: it spared discussion—it saved research and reflection—it did not require even common sense—it spared all forbearance and toleration:—what the oath is on the part of the footpad who demands your purse, the rights of man have been in the mouth of the terrorist. . . .

Only Legal Rights Exist

Rights are, then, the fruits of the law, and of the law alone. There are no rights without law—no rights contrary to the law—no rights anterior to the law. Before the existence of laws there may be reasons for wishing that there were laws—and doubtless such reasons cannot be wanting, and those of the strongest kind;—but a reason for wishing that we possessed a right, does not constitute a right. To confound the existence of a reason for wishing that we possessed a right, with the existence of the right itself, is to confound the existence of a want with the means of relieving it. It is the same as if one should say, everybody is subject to hunger, therefore everybody has something to eat.

          There are no other than legal rights,—no natural rights—no rights of man, anterior or superior to those created by the laws. The assertion of such rights, absurd in logic, is pernicious in morals. A right without a law is an effect without a cause. We may feign a law, in order to speak of this fiction—in order to feign a right as having been created; but fiction is not truth.

          We may feign laws of nature—rights of nature, in order to show the nullity of real laws, as contrary to these imaginary rights; and it is with this view that recourse is had to this fiction:—but the effect of these nullities can only be null.

English Invented Natural Rights, French Revolution Exposes their Danger (Anarchical Fallacies)

It is in England, rather than in France, that the discovery of the rights of man ought naturally to have taken its rise: it is we—we English, that have the better right to it. It is in the English language that the transition is more natural, than perhaps in most others: at any rate, more so than in the French. . . . It is right that men should be as near upon a par with one another in every respect as they can be made, consistently with general security: here we have it [i.e., the word "right"] in its adjective form, synonymous with desirable, proper, becoming, consonant to general utility, and the like. I have a right to put myself upon a par with everybody in every respect. Here we have it in its substantive sense, forming with the other words a phrase equivalent to this. Wherever I find a man who will not let me put myself on a par with him in every respect, it is right, and proper, and becoming, that I should knock him down, if I have a mind to do so, and if that will not do, knock him on the head, and so forth.

          The French language is fortunate enough not to possess this mischievous abundance. But a Frenchman will not be kept back from his purpose by a want of words: the want of an adjective composed of the same letters as the substantive right, is no loss to him. Is, has been, ought to be, shall be, can,—all are put for one another—all are pressed into the service—all made to answer the same purposes. By this inebriating compound, we have seen all the elements of the understanding confounded, every fiber of the heart inflamed, the lips prepared for every folly, and the hand for every crime.

          Our right to this precious discovery, such as it is, of the rights of man, must, I repeat it, have been prior to that of the French. It has been seen how peculiarly rich we are in materials for making it. Right, the substantive right, is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters, "gorgons and chimæras dire." And thus it is, that from legal rights, the offspring of law, and friends of peace, come anti-legal rights, the mortal enemies of law, the subverters of government, and the assassins of security.

          Will this antidote to French poisons have its effect? Will this preservative for the understanding and the heart against the fascination of sounds, find lips to take it? This, in point of speedy or immediate efficacy at least, is almost too much to hope for. Alas! how dependent are opinions upon sound! Who shall break the chains which bind them together? By what force shall the associations between words and ideas be dissolved? . . .

          It is for education to do what can be done; and in education is, though unhappily the slowest, the surest as well as earliest resource. The recognition of the nothingness of the laws of nature and the rights of man that have been grounded on them, is a branch of knowledge of as much importance to an Englishman, though a negative one, as the most perfect acquaintance that can be formed with the existing laws of England.

          But if the English were the first to bring the rights of man into the closet from the stage, it is to the stage and the closet that they have confined them. It was reserved for France—for France in her days of degradation and degeneration—in those days, in comparison of which the worst of her days of fancied tyranny were halcyon ones—to turn debates into tragedies, and the senate into a stage.

          The mask is now taken off [as a result of the tragic French Revolution], and the anarchist may be known by the language which he uses.

          He will be found asserting rights, and acknowledging them at the same time not to be recognized by government. Using, instead of ought and ought not, the words is or is not—can or can not.

PENITENTIARY SURVEILLANCE

The Building Plan ("Outline of the Plan of Construction of a Panopticon Penitentiary House")

The building circular—the cells occupying the circumference—the keepers, &c.—the centre—an intermediate annular well all the way up, crowned by a sky-light usually open, answering the purpose of a ditch in fortification, and of a chimney in ventilation—the cells, laid open to it by an iron grating. By blinds and other contrivances, the keeper concealed from the observation of the prisoners, unless where he thinks fit to show himself: hence, on their part, the sentiment of an invisible omnipresence.—The whole circuit reviewable with little, or, if necessary, without any, change of place. One station in the inspection part affording the most perfect view of two stories of cells, and a considerable view of another:—the result of a difference of level.

Uses of the Panopticon Plan (Panopticon, Letter 1)

I observed the other day in one of your English papers, an advertisement relative to a house of correction therein spoken of, as intended for * * * * * * *. It occurred to me, that the plan of a building, lately contrived by my brother, for purposes in some respects similar, and which, under the name of the Inspection House, or the Elaboratory, he is about erecting here, might afford some hints for the above establishment. I have accordingly obtained some drawings relative to it, which I here enclose. Indeed I look upon it as capable of applications of the most extensive nature; and that for reasons which you will soon perceive.

          To say all in one word, it will be found applicable, I think, without exception, to all establishments whatsoever, in which, within a space not too large to be covered or commanded by buildings, a number of persons are meant to be kept under inspection. No matter how different, or even opposite the purpose: whether it be that of punishing the incorrigible, guarding the insane, reforming the vicious, confining the suspected, employing the idle, maintaining the helpless, curing the sick, instructing the willing in any branch of industry, or training the rising race in the path of education: in a word, whether it be applied to the purposes of perpetual prisons in the room of death, or prisons for confinement before trial, or penitentiary-houses, or houses of correction, or work-houses, or manufactories, or mad-houses, or hospitals, or schools.

          It is obvious that, in all these instances, the more constantly the persons to be inspected are under the eyes of the persons who should inspect them, the more perfectly will the purpose of the establishment have been attained. Ideal perfection, if that were the object, would require that each person should actually be in that predicament, during every instant of time. This being impossible, the next thing to be wished for is, that, at every instant, seeing reason to believe as much, and not being able to satisfy himself to the contrary, he should conceive himself to be so. This point, you will immediately see, is most completely secured by my brother's plan; and, I think, it will appear equally manifest, that it cannot be compassed by any other, or to speak more properly, that if it be compassed by any other, it can only be in proportion as such other may approach to this.

          To cut the matter as short as possible, I will consider it at once in its application to such purposes as, being most complicated, will serve to exemplify the greatest force and variety of precautionary contrivance. Such are those which have suggested the idea of penitentiary-houses: in which the objects of safe custody, confinement, solitude, forced labor, and instruction, were all of them to be kept in view. If all these objects can be accomplished together, of course with at least equal certainty and facility may any lesser number of them.

Seeing without Being Seen (Panopticon, Letter 5)

It may be of use, that among all the particulars you have seen, it should be clearly understood what circumstances are, and what are not, essential to the plan. The essence of it consists, then, in the centrality of the inspector's situation, combined with the well-known and most effectual contrivances for seeing without being seen. As to the general form of the building, the most commodious for most purposes seems to be the circular: but this is not an absolutely essential circumstance. . . . You will please to observe, that though perhaps it is the most important point, that the persons to be inspected should always feel themselves as if under inspection, at least as standing a great chance of being so, yet it is not by any means the only one. If it were, the same advantage might be given to buildings of almost any form. What is also of importance is, that for the greatest proportion of time possible, each man should actually be under inspection. . . . Not only so, but the greater chance there is, of a given person's being at a given time actually under inspection, the more strong will be the persuasion—the more intense, if I may say so, the feeling, he has of his being so.

Source: Jeremy Bentham, A Fragment on Government (1776), Preface, Ch. 4; The Principles of Morals and Legislation (1780) Ch. 1, 4; Pannomial Fragments (1831), Ch. 3; Anarchical Fallacies (1796), Conclusion; Panopticon (1791), Letters 1, 5.

STUDY QUESTIONS

Please answer all of the following questions.

[Federalist Papers]

1. Regarding the first criticism, that republics waver between tyranny and anarchy, what are the improvements that Hamilton lists, and what is the new improvement that he wishes to add to the list?

2. Regarding the second criticism, that Montesquieu holds that confederations work only in small republics, what is Hamilton's response?

3. Regarding the third criticism, that confederacies by definition do not limit states' internal operations, what is Hamilton's response?

4. In the section "sources of faction," what are the two cures for faction, and what does Madison say about the viability of these cures?

5. In the section "republics defer to elected representatives" Madison states that republics have a better chance of avoiding factious representatives. What are his arguments for that view?

6. In the section "republics have more citizens and territory than democracies," what are Madison's arguments for that view?

[Burke]

7. According to Burke in the section on "two approaches to liberty" what is the difference between abstract liberty and liberty in action?

8. According to Burke in the section "inheritance conserves and transmits," beginning with the Magna Carta, what are the features of British government, that preserved English political tradition?

9. According to Burke in the section "Inheritance conserves and transmits" what are his main arguments for this view?

10. According to Burke in the section "pretended rights destroy real rights" what are his main points for this view?

11. According to Burke in the section "Abstract rights are too simplistic," how are we to understand the rights to food and medicine?

12. According to Burke in the section on "religion the basis of civil society," what is his response to atheistic critiques of religion what are the benefits of the established church?

13. According to Burke in the section on "society as a partnership with the past and future," what does that partnership involve?

[Bentham]

14. In the section on "reformation in morality" what does Bentham say about advancement in both science and ethics?

15. What is Bentham's argument against natural law?

16. What are the seven factors in Bentham's utilitarian calculus?

17. Defenders of social contract theory argue that the King's promise to secure happiness is a promise to follow the letter of the law. In the section on the "problem determining the king's violation of his promise," what are Bentham's four counter instances to this position?

18. According to Bentham in the section "the assumed binding nature of contracts," what is the presumed original contract between king and the people?

19. In the section on "ambiguity with the word right," what are the two meanings of "right" and how, according to Bentham, do we move from one to the other?

20. What is Bentham's Panopticon plan for surveillance?

21. Short essay: please select one of the following and answer it in a minimum of 100 words.

[Federalist Papers]

          a. In the section on "the true nature of a confederacy," Hamilton discusses the common view that a loose confederacy does not restrict the internal governance of individual states, but that federal consolidation does. Hamilton responds that "The extent, modifications, and objects of the federal authority are mere matters of discretion." What is his point, and how might defenders of a loose confederacy respond?

          b. In the section on "sources of faction" Madison describes two cures for faction, but then argues that each is not viable. Is Madison correct?

          c. In the section on "property the main cause of faction," What are Madison's arguments for that view, and is he correct?

          d. In the section on "property the main cause of faction," Madison states that governments consist of people who belong to conflicting groups, and we cannot count on enlightened statesmen to "adjust these clashing interests." But in the section "republics defer to elected representatives," he argues that elected representatives can "enlarge the public views" and "discern the true interest of their country" and "will be least likely to sacrifice it to temporary or partial considerations." Try to make these two seemingly conflicting positions consistent.

          e. In the section "republics encompass more citizens and territory than democracies" Madison argues that "The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States." Explain his position and say whether he is correct.

          f. Rousseau warned against the destructive nature of political factions and recommended banning them (Social Contract, 2.3). Compare Rousseau's rationale to Madison's and discuss which is better.

          [Burke]

          g. Brutus and Locke both defend revolution. Do either of their accounts allow for preserving tradition in a way that would satisfy Burke? Explain.

          h. In the section on "liberties as an inheritance," Burke draws an analogy between proper social change and change within the natural world. Explain his point with an example from nature, and discuss whether this is a good analogy.

          i. Burke says much about preserving our connection with past traditions. In the section on "society as partnership with the past and future," he briefly suggests that we must also anticipate the future. Develop his point here about a partnership with the future.

          j. Advocates of the French Revolution argue that French society under its old regime was so politically and economically flawed that a radical break from the past was needed. Considering that Burke wrote his critique before the reign of terror, it is easy to see how those tragic events confirmed what Burke said. Does the reign of terror support Burke's critique, or was the French revolution ultimately justified by the long term results within France?

          k. Burke argued that religious institutions should not be reformed by atheistic critiques, but rather through internal re-evaluations by the religious institutions themselves. Is Burke correct?

          l. Burke is considered the father of modern conservatism because of the importance that he places on the preservation of past traditions. Within the parameters of what Burke says about tradition, is there anything in his theory that is supportive of a more liberal or progressive approach to politics?

          [Bentham]

          m. A common criticism of Bentham's utilitarian calculus is that it is far too tedious to calculate all the seven factors. In the section on "applying the factors," Bentham discusses whether the calculus needs to be strictly applied in every moral judgment. Does his discussion there adequately address the criticism?

          n. In the section "obligation to govern and obey based on utility," Bentham criticizes social contract theory on the grounds that the King's "promise" to govern and the subject's "promise" to obey reduce to the utility of governing and the utility of obeying. How might Hobbes respond to this criticism?

          o. According to Bentham in the section "only legal rights are grounded in legislative facts," Bentham argues that natural rights have no factual basis. Is Bentham correct? Explain.

          p. Bentham criticizes Grotius, Pufendorf and other natural law theorists for fabricating natural laws, which might then be wrongly used as a foundation for natural rights. Is there anything in natural law theory that might legitimately form the foundation of natural rights?

          q. In the section "only legal rights exist," Bentham states that "Rights are, then, the fruits of the law, and of the law alone." Is he correct? Explain.

          r. Michael Foucault states the following regarding Bentham's Panopticon: "The Panopticon functions as a kind of laboratory of power. Thanks to its mechanisms of observation, it gains in efficiency and in the ability to penetrate into men's behaviour; knowledge follows the advances of power, discovering new objects of knowledge over all the surfaces on which power is exercised" (Discipline and Punish, 1975, 3.3). For Foucault, the Panopticon represents how discipline in modern societies is based on observation and examination. Is Foucault right, and is this a good or bad thing?