第34章

An approximation to truth may be all that is attainable with ourpresent knowledge, but there is no reason for thinking that is soremote, or (what is the same thing) that it requires so muchfuture correction, as to be entirely useless and uninstructive.

The other theory which has been adverted to is the historicaltheory of Bentham. This theory which is obscurely (and, it mighteven be said, timidly) propounded in several parts of Bentham'sworks is quite distinct from that analysis of the conception oflaw which he commenced in the "Fragment on Government," and whichwas more recently completed by Mr John Austin. The resolution ofa law into a command of a particular nature, imposed underspecial conditions, does not affect to do more than protect usagainst a difficulty -- a most formidable one certainly -- oflanguage. The whole question remains open as to the motives ofsocieties in imposing. these commands on themselves, as to theconnexion of these commands with each other, and the nature oftheir dependence on those which preceded them, and which theyhave superseded. Bentham suggests the answer that societiesmodify, and have always modified, their laws according tomodifications of their views of general expediency. It isdifficult to say that this proposition is false, but it certainlyappears to be unfruitful. For that which seems expedient to asociety, or rather to the governing part of it, when it alters arule of law is surely the same thing as the object, whatever itmay be, which it has in view when it makes the change. Expediencyand the greatest good are nothing more than different names forthe impulse which prompts the modification; and when we lay downexpediency as the rule of change in law or opinion, all we get bythe proposition is the substitution of an express term for a termwhich is necessarily implied when we say that a change takesplace.

There is such wide-spread dissatisfaction with existingtheories of jurisprudence, and so general a conviction that theydo not really solve the questions they pretend to dispose of, asto justify the suspicion that some line of inquiry necessary to aperfect result has been incompletely followed or altogetheromitted by their authors. And indeed there is one remarkableomission with which all these speculations are chargeable, exceptperhaps those of Montesquieu. They take no account of what lawhas actually been at epochs remote from the particular period atwhich they made their appearance. Their originators carefullyobserved the institutions of their own age and civilisation, andthose of other ages and civilisations with which they had somedegree of intellectual sympathy, but, when they turned theirattention to archaic states of society which exhibited muchsuperficial difference from their own, they uniformly ceased toobserve and began guessing. The mistake which they committed istherefore analogous to the error of one who, in investigating thelaws of the material universe, should commence by contemplatingthe existing physical world as a whole, instead of beginning withthe particles which are its simplest ingredients. One does notcertainly see why such a scientific solecism should be moredefensible in jurisprudence than in any other region of thought.

It would seem antecedently that we ought to commence with thesimplest social forms in a state as near as possible to theirrudimentary condition. In other words, if we followed the courseusual in such inquiries, we should penetrate as far up as wecould in the history of primitive societies. The phenomena whichearly societies present us with are not easy at first tounderstand, but the difficulty of grappling with them bears noproportion to the perplexities which beset us in considering thebaffling entanglement of modern social organisation. It is adifficulty arising from their strangeness and uncouthness, notfrom their number and complexity. One does not readily get overthe surprise which they occasion when looked at from a modernpoint of view; but when that is surmounted they are few enoughand simple enough. But even if they gave more trouble than theydo, no pains would be wasted in ascertaining the germs out ofwhich has assuredly been unfolded every form of moral restraintwhich controls our actions and shapes our conduct at the presentmoment.