for he certainly assumes an answer. People, in the first
place, are 'induced to obey' by the sanctions. They don't rob that they
may not go to prison. That is a sufficient answer at a given moment. It
assumes, indeed, that the law will be obeyed. The policeman, the gaoler,
and the judge will do what the sovereign--whether despot or
legislature--orders them to do. The jurist may naturally take this for
granted. He does not go 'behind the law.' That is the law which the
sovereign has declared to be the law. In that sense, the sovereign is
omnipotent. He can, as a fact, threaten evildoers with the gallows; and
the jurist simply takes the fact for granted, and assumes that the
coercion is an ultimate fact. No doubt it is ultimate for the individual
subject. The immediate restraint is the policeman, and we need not ask
upon what does the policeman depend. If, however, we persist in asking,
we come to the historical problems which Bentham simply omits. The law
itself, in fact, ultimately rests upon 'custom,'--upon the whole system
of instincts, beliefs, and passions which induce people to obey
government, and are, so to speak, the substance out of which loyalty and
respect for the law is framed. These, again, are the product of an
indefinitely long elaboration, which Bentham takes for granted. He
assumes as perfectly natural and obvious that a number of men should
meet, as the Americans or Frenchmen met, and create a constitution. That
the possibility of such a proceeding involves centuries of previous
training does not occur to him. It is assumed that the constitution can
be made out of hand, and this assumption is of the highest importance,
not only historically, but for immediate practice. Mill assumes too
easily that Bentham has secured responsibility. Bentham assumes that an
institution will work as it is intended to work--perhaps the commonest
error of constitution-mongers. If the people use the instruments which
he provides, they have a legal method for enforcing obedience. To infer
that they will do so is to infer that all the organic instincts will
operate precisely as he intends; that each individual, for example, will
form an independent opinion upon legislative questions, vote for men who
will apply his opinions, and see that his representatives perform his
bidding honestly. That they should do so is essential to his scheme; but
that they will do so is what he takes for granted. He assumes, that is,
that there is n