Principles of Morals and

Principles of Morals and Legislation/237
XXVII. Thirdly, with respect to time. In a work of the expository
kind, the laws that are in question may either be such as are still in force
at the time when the book is writing, or such as have ceased to be in
force. In the latter case the subject of it might be termed ancient; in the
former, present or living jurisprudence: that is, if the substantive juris-
prudence, and no other, must at any rate be employed, and that with an
epithet in both cases. But the truth is, that a book of the former kind is
rather a book of history than a book of jurisprudence; and, if the word
jurisprudence be expressive of the subject, it is only with some such
words as history or antiquities prefixed. And as the laws which are any
where in question are supposed, if nothing appears to the contrary, to be
those which are in force, no such epithet as that of present or living
commonly appears.
Where a book is so circumstanced, that the laws which form the
subject of it, though in force at the time of its being written, are in force
no longer, that book is neither a book of living jurisprudence, nor a book
on the history of jurisprudence: it is no longer the former, and it never
was the latter. It is evident that, owing to the changes which from time to
time must take place, in a greater or less degree, in every body of laws,
every book of jurisprudence, which is of an expository nature, must in
the course of a few years, come to partake more or less of this condition.
The most common and most useful object of a history of jurispru-
dence, is to exhibit the circumstances that have attended the establish-
ment of laws actually in force. But the exposition of the dead laws which
have been superseded, is inseparably interwoven with that of the living
ones which have superseded them. The great use of both these branches
of science, is to furnish examples for the art of legislation.
XXVIII. Fourthly, in point of expression, the laws in question may
subsist either in the form of statute or in that of customary law.
As to the difference between these two branches (which respects
only the article of form or expression) it cannot properly be made ap-
pear till some progress has been made in the definition of a law.
XXIX. Lastly, The most intricate distinction of all, and that which
comes most frequently on the carpet, is that which is made between the
civil branch of jurisprudence and the penal, which latter is wont, in
certain circumstances, to receive the name of criminal.
What is a penal code of laws? What a civil code? Of what nature
are their contents? Is it that there are two sorts of laws, the one penal the
other civil, so that the laws in a penal code are all penal laws, while the

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238/Jeremy Bentham
laws in a civil code are all civil laws? Or is it, that in every law there is
some matter which is of a penal nature, and which therefore belongs to
the penal code; and at the same time other matter which is of a civil
nature, and which therefore belongs to the civil code? Or is it, that some
laws belong to one code or the other exclusively, while others are di-
vided between the two? To answer these questions in any manner that
shall be tolerably satisfactory, it will be necessary to ascertain what a
law is; meaning one entire but single law: and what are the parts into
which a law, as such, is capable of being distinguished: or, in other
words, to ascertain what the properties are that are to be found in every
object which can with propriety receive the appellation of a law. This
then will be the business of the third and fourth sections: what concerns
the import of the word criminal, as applied to law, will be discussed
separately in the fifth.
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Notes
1. For example.—It is worse to lose time than simply not to gain.—A
loss falls the lighter by being divided.—The suffering, of a person hurt
in gratification of enmity, is greater than the gratification produced by
the same course.—These, and a few others which he will have occasion
to exhibit at the head of another publication, having the same claim to
the appellation of axioms, as those given by mathematicians under that
name; since, referring to universal experience as their immediate basis,
they are incapable of demonstration, and require only to be developed
and illustrated, in order to be recognised as incontestable.
2. A Fragment on Government, etc., reprinted 1822.
3. Such as obligation, right, power, possession, title, exemption, immu-
nity, franchise, privilege, nullity, validity, and the like.
4. See ch. xvi. [Division], par. 42, 44.
5. Hume’s History.
6. Hume’s History.
7.  For the reason, see chap. xi. [Dispositions], par. xvii. note.
8. See ch. iv. and ch. vi. par. xxi.
9. See B. I. tit. [Offences against Religion]
10. Here ends the original work, in the state into which it was brought in
5 November, 1780. What follows is now added in January, 1789.
The third, fourth, and fifth sections intended, as expressed in the
text, to have been added to this chapter, will not here, nor now be given;
because to give them in a manner tolerably complete and satisfactory,
might require a considerable volume. This volume will form a work of
itself, closing the series of works mentioned in the preface.
What follows here may serve to give a slight intimation of the na-

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