Bentham

Home Up

Authors born between 1700 and 1800 CE

Smith ] Paine ] Jefferson ] Condorcet ] [ Bentham ] Goethe ] Wollstonecraft ] Comte ]

Click Up For A  Summary Of Each Author

 

 

Contents

Introduction

The Principle of Utility

Alternatives to the Principle of Utility

The Alternative of Asceticism

Legislation Rarely Based on Asceticism 

The Alternative of Sympathy and Antipathy

The Theological Principle of Right and Wrong 

Sources of Pleasure and Pain

Applying the Principle of Utility

Simple Pleasures and Pains

Modification of Pleasure and Pain 

Considerations Involved in Punishment 

Balancing Punishment and Offense

The Need for System and Rules

Sources

 

 

Introduction

 

Jeremy Bentham (1748-1832) was born in Houndsditch, London. His father was a wealthy attorney who encouraged his son’s precocious learning of Latin, French and the violin at age five. At age 13 he entered Queen’s College, Oxford, with a reputation for Greek and Latin verse. He gained a B.A. at 15 and entered Lincoln’s Inn to study law. When called to the bar, Bentham found he did not wish to practice law but to develop the philosophical basis for rational and humanistic reform of existing law. Having a substantial inheritance, Bentham was able to devote his life to pursuit of his ideals.

 

Bentham’s first publication, A Fragment on Government, was recognized as a piercing attack on the praise heaped on the English Constitution by Sir William Blackstone, an Oxford lecturer who considered the law of nature or the law of God to be a basis for English law. Bentham disputed this and, in passing, accused Blackstone of being against every reform and supporting every form of legal chicanery. Of his own observations of legal proceedings, Bentham said the following:

I saw crimes of the most pernicious nature passing unheeded by the law; acts of no importance put in point of punishment upon a level with the most baneful crimes; punishments inflicted without measure and without choice; satisfaction denied for the most crying injuries; the doors of justice barred against a great majority of the people by the pressure of wanton impositions and unnecessary expense; false conclusions ensured in questions of fact by hasty and inconsistent rules of evidence; the business of hours spun out into years; impunity extended to acknowledged guilt and compensation snatched out of the hands of injured innocence; the measure of decision in many cases unformed, in others locked up and made the object of a monopoly; the various rights and duties of the various classes of mankind jumbled together into one immense and unsorted heap; men ruined for not knowing what they are neither enabled nor permitted ever to learn; and the whole fabric of jurisprudence a labyrinth without a clue.

Bentham expounded his theory of law in the Principles of Morals and Legislation, published in 1789. He called his philosophical basis for legislative reform "utilitarianism", which he founded on the requirement that legislation and legal decisions should be based on a scrutiny of their effects on the happiness of the greatest number of people involved. In large part, Bentham was attacking the belief in intuitive knowledge of absolute principles, which he called the principle of sympathy and antipathy. In his acquaintance with the courts he recognized that this principle encouraged judgments based on feelings arising from ignorance and prejudice.

 

Bentham undertook a dispassionate survey of English legal institutions, rejecting admitted evils previously said to be unavoidable, and sought to achieve a view of the legal system as a whole in which the parts should not contradict each other. He argued that all legal institutions should be made to justify their utility, and he suggested alternative institutions where the existing ones were clearly defective. The legal revolution and the Reform Act of 1832, which attempted to make English law more equitable and to purge it of medieval litter, can be traced to the ideas of Bentham.

 

Bentham became the acknowledged leader of a group of philosophical radicals, including J. Mills and J. S. Mills, who sought social reform based on utilitarianism. In addition to writing about morals and law, Bentham negotiated for many years with the government to construct a model prison that would make it unnecessary to transport convicts overseas. He also promoted plans for canals though the isthmuses of Suez and Panama, and founded University College, London, and the Westminster Review. In the course of this, he formed an extensive circle of friends and pupils, including the Mills and the Austins, who helped him get his publications into print. He is said to have disliked general society as waste of time and poetry as misrepresentation. He enjoyed dinners with friends and visitors, his garden, and music (he had a piano in each main room).

         

The following extracts are taken from Principles of Morals and Legislation. The section an extract is from is indicated in parenthesis.

 

 

 

 

1  There is, or rather there ought to be, a logic of the will, as well as of the understanding: the operations of the will are neither less susceptible to being defined by rules nor less worthy than the operations of the understanding. Of these two branches of the recondite art of logic, Aristotle saw only the latter. Succeeding logicians, treading in the steps of their great founder, have concurred in seeing with no other eyes. Yet so far as a difference can be assigned between operations so intimately connected, a logic of the will is more important, since it is only by its direction of the operations of the faculty of will that the operations of the understanding are of any consequence. (Preface)

   

2  Of this logic of the will, the most important application is to the science of law. This is to the art of legislation what the science of anatomy is to the art of medicine. But there is this difference: that the subject of it is what the artist has to work with, instead of being what he has to operate upon. Nor is the body politic less in danger from a want of acquaintance with the one science, than the body natural from ignorance in the other. (Preface)

 

 

The Principle of Utility

 

3  Nature has placed humanity under the rule of two absolute authorities: pain and pleasure. It rests with them alone to point out what we ought to do, as well as to determine what we shall do. To their throne are secured the standards of right and wrong and the chains of cause and effect. They govern us in all we do, in all we say, in all we think. Every effort we make to throw off their rule only demonstrates and confirms it. A man may pretend to reject their rule but in reality he remains subject to it all the while. This subjection is recognized formally in the principle of utility (or principle of greatest happiness), which forms the foundation of utilitarian philosophy. The object of this philosophy is to bring the greatest happiness to society by means of reason and of law.(I: 1)

             

4  The principle of utility approves or disapproves of every action according to its tendency to augment or diminish (promote or oppose) the happiness of the party being considered. I say of every action, and therefore include not only actions of private individuals, but also every measure passed by government. The utility of any object is defined as the property that tends to produce for some party benefit, advantage, pleasure, good, or happiness (all of which come to the same thing), or (what also comes to the same thing) that tends to prevent mischief, pain, evil, or unhappiness. If the party is a community, then it is the happiness of the community that is considered. If it is a particular individual, then the happiness of that individual is meant. (I: 2-3)

                      

5  A community is a fictitious body, composed of the individual persons who are considered its members. The interest of the community then is what?—the sum of the interests of the several members who compose it. It is in vain therefore to talk of the interest of the community without understanding the interest of the individual. A thing is said to be in 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.

    For the community at large, then, an action may be said to be conformable to the principle of utility (or, for shortness sake, to utility) when the tendency it has to augment the happiness of the community is greater than any it has to diminish it. Consequently, a government measure (an action of a particular person or persons) may be said to follow the principle of utility when it has a greater tendency to augment the happiness of the community than diminish it. (I: 5-7)

                

6  When an action conforms to the principle of utility one may always say either that it is one that ought to be done or at least it is not one that ought not to be done. One may say also that it is right it should be done, or at least that it is not wrong. That is, it is a right action or, at least, not a wrong action. When thus interpreted, the words ought, and right and wrong and others of that kind, have a meaning; otherwise, they have none. (I: 10)

              

7  Has the correctness of the principle of utility been ever formally contested? It should seem that it had, by those who have not known what they have been saying. Is it susceptible of any direct proof? Apparently not: for that which is used to prove every thing else, cannot itself be proved. A chain of proof must have a commencement somewhere. To give a proof of that is as impossible as it is needless. But a confused or partial understanding of this principle may cause a man to be disposed not to accept it. If he thinks clarifying his opinion on such a subject worth the trouble, let him take the following steps and, at length perhaps, he may come to be reconciled with it. (I: 11, 14)

       

            

Alternatives to the Principle of Utility

    

8  Let him first decide whether he would wish to discard this principle altogether. If so, let him consider what all his conclusions (in matters of politics especially) can amount to. Would he judge and act without any principle, or is there is any other he would judge and act by? If there is, let him satisfy himself whether it is really a separate intelligible principle; or whether it is merely words that at bottom express nothing more than his own unfounded feelings—that is, what in another person he might call caprice. (I: 14)

              

9  If he thinks that his own approval or disapproval of an act, without any regard to its consequences, is a sufficient foundation for action, let him ask himself whether his feelings are to be the standard of right and wrong for every other man. Or do every man's feelings have the same privilege of being a standard to itself?

    If the first, let him ask himself whether his principle is not despotic, and hostile to all the rest of human race.

    If the second, whether it is not anarchical, and whether at this rate there are not as many different standards of right and wrong as there are men. And whether even to the same man, the same thing, which is right today may (without the least change in its nature) be wrong tomorrow. And whether the same thing is not right and wrong in the same place at the same time. And in either case, whether all argument is not at an end. And whether when two men have said, "I like this", and "I don't like it", they can (upon such a principle) have any thing more to say. (I: 14)

  

10  If he says that the feelings he proposes as a standard must be grounded on due consideration, on what particular consideration is it to be based? If on particulars having relation to the utility of the act, then let him say whether this is not deserting his own principle and relying on that very one he has set out to oppose. If not on this principle, on what other? If he should be for a compound solution, adopting his own principle in part and the principle of utility in part, let him say how far he will adopt it. When he has decided for himself where he will stop, then let him ask himself how he justifies adopting it only thus far and why he will not adopt it any farther. (I: 14)

 

   

The Alternative of Asceticism

    

11  A principle may differ from that of utility in two ways: 1. By being constantly opposed to it: this is the principle of asceticism. 2. By being sometimes opposed to it and sometimes not, which may be termed the principle of sympathy and antipathy.

    The principle of asceticism, unlike the principle of utility, approves of any action which appears to diminish the happiness of the party whose interest is in question, and disapproves of any action which appears to increase that happiness. (II: 2-3)

     

12  There are two classes of men by whom the principle of asceticism appears to have been embraced; the one a set of moralists, the other a set of the religious. Hope, that is the prospect of pleasure, seems to have animated the former—the hope of honor and reputation at the hands of men. Fear, that is the prospect of pain, seems to animate the latter—fear that is the offspring of superstitious fancy, or fear of future punishment at the hands of a malevolent and revengeful deity. I say in this case fear, for in the invisible future, fear is more powerful than hope. While the two parties and their motives differ, the principle is the same. (II: 5)

 

13  The religious party, however, appear to have carried it farther than the philosophical. They have acted more consistently and less wisely. The moralists have scarcely gone farther than to condemn pleasure, the religionists have frequently gone so far as to make it a matter of merit and duty to court pain. The moralists have hardly gone farther than the making pain a matter of indifference. They have not condemned all pleasure in one lump. They have discarded only what they have called the gross. They have even cherished and magnified refined pleasures. Yet to cleanse these from the sordidness of the impure original, they found it necessary to change their name to the honorable, the glorious, the reputable, the becoming, the polite. In short, any thing but pleasure. (II: 6)

 

14  From these two sources have flowed the doctrines from which the opinions of the bulk of mankind have been influenced; some from the philosophical, some from the religious, some from both. The opinions derived from the two sources would naturally intermingle, making a kind of alliance between parties otherwise very dissimilar. This has disposed them to unite upon various occasions against the common enemy—anyone holding the principle of utility—whom they joined in branding with the odious name of Epicurean. (II: 7)

   

 

Legislation Rarely Based on Asceticism

 

15  With whatever warmth it may have been embraced by its partisans as a rule of private conduct, the principle of asceticism seems not to have been applied in any considerable degree to the business of government. In a few instances it has been carried a little way by the philosophical party, as in the Spartan regime. There are scarcely any instances of it being implemented to any considerable degree by the religious party. The various monastic orders, and the societies of the Quakers, Dumplers, Moravians, and other religious groups have been free societies whose regime no man has adopted without his own consent.

    Whatever merit some men may have thought there would be in making themselves miserable, it does not seem ever to have occurred to any of them that it may be a merit, much less a duty, to make others miserable. Yet, from the ascetic point of view it should seem that if a certain quantity of misery were so desirable a thing, it would not matter much whether it were brought by each man upon himself, or by one man upon another. (II: 8)

    

16  It is true that among adherents to religion the same source giving rise to the principle of asceticism has nourished other doctrines and practices from which misery in abundance has been produced. Holy wars provide witness to this, as do the persecutions for religion. But the passion for producing misery in these cases was confined to particular persons. They were tormented, not as men, but as heretics and infidels. To have inflicted the same miseries on their fellow believers would have been as blamable in the eyes of these religious people, as in the eyes of one adhering to the principle of utility.

    We read of saints, who for the good of their souls, and the mortification of their bodies, have voluntarily yielded themselves a prey to vermin. But though many persons of this class have wielded the reins of empire, we read of none who have made laws and labored to stock the body politic with highwaymen, housebreakers, or arsonists. If they have suffered the nation to be preyed upon by swarms of idle pensioners, or useless political appointees, it has rather been from negligence and imbecility, than from any settled plan for oppressing and plundering of the people. If they have declaimed against the pursuit of pleasure and the use of wealth, they have commonly stopped at declamation. They have not, like Lycurgus, made express ordinances for the purpose of banishing precious metals. (II: 8)

 

17  The principle of asceticism seems originally to have come from the reveries of certain hasty intellectuals. Having perceived, or fancied, that some pleasures in certain circumstances have in the long run been attended with a greater degree of pain, they rejected every thing that offered itself under the name of pleasure. Having gained this point, and having forgotten the point they set out from, they marched on so far as to think it meritorious to fall in love with pain. But in the end we see that even this is the principle of utility misapplied. The principle of asceticism never was, nor ever can be, consistently pursued by any living creature. Let but one tenth part of the inhabitants of this earth pursue it consistently and in a day's time they will have turned it into a hell. (II: 9)

 

 

The Alternative of Sympathy and Antipathy

 

18  Among principles opposed to utility, the one that now seems to have most influence in matters of government is what may be called the principle of sympathy and antipathy. By this, I mean the principle involved in approval or disapproval of certain actions merely because a man finds himself disposed to approve or disapprove of them. Such a person holds that approval or disapproval is a sufficient reason by itself, and disclaims the necessity of seeking any independent reason. By this principle, in morals and more particularly in politics, the degree of punishment and the justification for it is determined by the degree of the disapproval.

    It is clear that this is not a positive principle in itself, so much as a term employed to signify the dismissing of all principle. What one expects to find in a principle is something that points out some external consideration as a means of justifying and guiding the internal sentiments of approval and disapproval. This expectation is ill served by a proposition that does nothing more nor less than hold up each of those sentiments as a ground and standard in itself. (II: 11,12)

         

19  In looking over the catalogue of human actions to determine which are to be marked with the seal of disapproval, says a holder of this principle, you need only take counsel of your own feelings. Whatever you feel like condemning is wrong for that very reason. The same reason serves to determine the punishment. To such a viewpoint, it makes no difference how much the judgment and determination are adverse to utility, or even whether being adverse to utility is to be taken into account. Punish as you hate. If you do not hate at all, punish not at all. The fine feelings of the soul are not to be overborne and tyrannized by the harsh and rugged dictates of political utility. (II: 13)

                  

20  The various systems that have been formed concerning the standard of natural right may all be reduced to the principle of sympathy and antipathy. One account may serve to for all of them. They all consist of contrivances to avoid the obligation of appealing to any external standard, and for prevailing upon the reader to accept of the author's sentiment or opinion as a reason in itself. The phrases differ, but the principle is the same. (II: 14)

   

21  The dictates of the principle of sympathy or antipathy will frequently coincide with those of utility, though perhaps without intending any such thing. As this probably occurs more frequently than not, it enables the business of penal justice to be carried on the tolerable sort of footing that is common today. For what more natural or more general ground for hatred of a practice can there be than the mischievousness of such a practice? What all men are exposed to suffer by, all men will be disposed to hate. It is far, however, from being a reliable ground, for when a man suffers he does not always know what he suffers from. A man may suffer grievously, for instance, by a new tax without being able to trace the cause of his sufferings to the mischief of some neighbor who has eluded the payment of an old one. (II: 15)

     

22 It is important to distinguish between two things that are very apt to be confounded—an individual’s motive or cause that is productive of any act; and the ground or reason that warrants regarding that act with approval. When the act happens to produce effects that we approve of, we are apt to transfer our approval to the motive itself. It is in this way that the sentiment of antipathy has often been considered as a just ground for action. Antipathy, for instance, may in a particular case be the cause of an action that is attended with good effects: but this does not make it a right ground for action in that case, any more than in any other. For the same sentiment of antipathy if implicitly deferred to may be, and very frequently is, productive of the very worst effects. Antipathy, therefore, can never be a right ground for action. No more, therefore, can resentment, which is but a modification of antipathy. Antipathy or resentment must always to be regulated to prevent them doing mischief. To be regulated by what? Always by the principle of utility. The principle of utility neither requires nor admits of any another regulator than itself. (II:.19)

    

 

The Theological Principle of Right and Wrong

  

23  It may be wondered, perhaps, that in all this discussion no mention has been made of the theological principle. By this is meant the principal that professes to resort to the will of God for the standard of right and wrong. But this is not in fact a distinct principle. It is never any thing more or less than one or other of the three before-mentioned principles, presenting itself under another shape. The will of God meant here cannot be his revealed will as contained in sacred writings, for that is a system which nobody ever thinks of resorting to nowadays for details of political administration. And even before it can be applied to the details of private conduct, it is universally allowed by the most eminent divines of all persuasions to stand in need of pretty ample interpretation. Otherwise, what use are the works of those divines?

    For the guidance of these interpretations, it is also allowed that some other principle must be assumed. What then may this other principle be? It must be one or other of the three mentioned above: for there cannot, as we have seen, be any more. It is plain, therefore, that, setting revelation aside, no light can ever be thrown upon the standard of right and wrong by any thing that can be said upon the question of God's will. We may be perfectly sure, indeed, that whatever is right conforms to the will of God. But this is so far from showing us what is right that it is necessary to know first whether a thing is right in order to know whether conforms to the will of God. (II: 18)

     

 

Sources of Pleasure and Pain

 

24  There are four distinguishable sources from which pleasure and pain flow: Considered separately they may be termed the physical, the political, the moral and the religious. To the extent that the pleasures and pains belonging to each of these are capable of giving a binding force to any law or rule of conduct, they may all of them be termed sanctions.

    If the pleasure or the pain takes place, or is expected, in the present life and in the ordinary course of nature, it may be said to issue from or to belong to the physical sanction. This is provided it is not purposely modified by some human being or by some superior invisible being.

    If it takes place at the hands of a particular person or community group, corresponding to a judge assigned to dispense it according to the will of the supreme ruling power in the state, it may be said to issue from the political sanction.

    If it takes place at the hands of persons in the community interacting with the party in question, according to each man's spontaneous disposition rather than any settled rule, it may be said to issue from the moral or popular sanction.

    If it takes place from the immediate action of a superior invisible being, either in the present life or in a future, it may be said to issue from the religious sanction. (III: 2- 6)

 

25  Suffering that a man receives in the natural and spontaneous course of things may be styled a calamity. If it occurs through his imprudence, it may be styled a punishment issuing from the physical sanction. If this same suffering is inflicted by the law, it is known simply as a punishment. If incurred for want of any friendly assistance, occasioned by perceived misconduct of the sufferer, it becomes a punishment issuing from the moral sanction. If it occurs through immediate intervention by the supernatural, it is a punishment issuing from the religious sanction. (III: 8)

            

26  Of these four sanctions, the physical is the basis of the political and the moral sanctions, and also of the religious to the extent that this relates to the present life. It is included in each of those other three. Any of the pains or pleasures belonging to the physical may operate independently of the other sanctions. None of them can operate except by means of it. The powers of nature may operate in and of themselves, but neither the magistrate nor men at large can operate (nor is God in the case in question supposed to operate) except through the powers of nature. (III: 11)

  

 

Applying the Principle of Utility

 

27  To obtain an exact accounting of the general tendency of any act affecting the interests of a community, proceed as follows. Begin with any one person among those whose interests seem most immediately to be affected by it and take into account:

 

1) the value of each distinguishable pleasure that appears to be produced by it in the first instance;

2) the value of each pain that appears to be produced by it in the first instance;

3) the value of each pleasure that appears to be produced by it after the first—this constitutes the productiveness of the first pleasure and the impurity of the first pain;

4) then take into account the value of each pain that appears to be produced by it after the first—this constitutes the productivity 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 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 into account the number of people 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 that 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 bad upon the whole. Take the balance. If this is on the side of pleasure, it will give the general good tendency of the act with respect to the community. If it is on the side of pain, it gives the general evil tendency with respect to the same community. (IV: 5)

                

28  It is not to be expected that an exact account of the tendency of any act will be strictly pursued before every moral judgment, or to every legislative or judicial operation. It may, however, be always kept in mind. 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. (IV: 6)

 

 

Simple Pleasures and Pains

 

29  The several simple pleasures of which human nature is susceptible seem to be as follows: pleasures of sense, pleasures of wealth, pleasures of skill, pleasures of amity, pleasures of a good name, pleasures of power, pleasures of piety, pleasures of benevolence, pleasures of malevolence, pleasures of memory, pleasures of imagination, pleasures of expectation, pleasures dependent on association, pleasures of relief. (V: 2)

             

30  The several simple pains seem to be as follows: pains of privation, pains of the senses, pains of awkwardness, pains of enmity, pains of an ill name, pains of piety, pains of benevolence, pains of malevolence, pains of the memory, pains of the imagination, pains of expectation, pains dependent on association. (V: 3)

            

31  The pleasures of sense seem to be as follows: pleasures of the taste or palate (including whatever pleasures are experienced in satisfying the appetites of hunger and thirst), pleasure of intoxication, pleasures of the organ of smelling, pleasures of the touch, simple pleasures of the ear independent of association, simple pleasures of the eye independent of association, pleasure of the sexual sense, pleasure of health (or the internal pleasurable feeling or flow of spirits, as it is called, accompanying a state of full health and vigor, especially at times of moderate bodily exertion), pleasures of novelty or the pleasures derived from the gratification of the appetite of curiosity by the application of new objects to any of the senses. There are also pleasures of novelty excited by the appearance of new ideas: these are the pleasures of imagination. (V: 4)

 

 

Modification of Pleasure and Pain

 

32  The disposition that any one has to feel a certain quantity of pleasure or pain from a cause (or stimulus) of given force, is what we term the degree of his sensitiveness. This may be either general, referring to the sum of the stimuli that act upon him during a given period, or particular, referring to the action of any one particular stimulus, or type of stimulus.

    Now the quantity of pleasure or of pain that a man is liable to experience on application of a stimulus will not depend on that stimulus alone, but will depend in some measure on other circumstances. These circumstances may be termed circumstances influencing sensitiveness. (VI: 2,5)

 

33  Circumstances influencing sensitiveness will apply differently to different stimuli; in as much as that some circumstances will not apply at all for a certain stimulus. On the other hand, these same circumstances may affect with great force another stimulus. But without entering for the present into these distinctions, it may be of use to sum up all the circumstances that can modify the effect of a stimulus. . . They seem to be as follows: health, strength, hardiness, bodily imperfection, quantity and quality of knowledge, strength of intellectual powers, firmness of mind, steadiness of mind, bent of inclination, moral sensitiveness, moral biases, religious sensitiveness, religious biases, sympathetic sensitiveness, sympathetic biases, antipathetic sensitiveness, antipathetic biases, insanity, habitual occupations, pecuniary circumstances, connections in the way of sympathy, connections in the way of antipathy, radical frame of body, radical frame of mind, sex, age, rank, education, climate, lineage, government, religious profession.

     These circumstances, all or many of them, will need to be attended to when an account is to be made of any quantity of pain or pleasure resulting from any cause. (VI: 6)

 

 

Considerations Involved in Punishment

 

34  The business of government is to promote the happiness of the society, by punishing and rewarding. The part of its business that consists in punishing is the subject of penal law.

     What happiness consists of we have already seen: enjoyment of pleasures, security from pains. The demand an act creates for punishment is in proportion to its tendency to disturb that happiness and to the degree that it is pernicious. An act is more or less pernicious according to the sum total of its consequences: that is, according to the difference between the sum of those which are good and the sum of those that are evil. (VII: 1-2)

    

35  Wherever consequences are spoken of, only material ones are meant. The multitude and variety of consequences of any act must needs be infinite, but only those that are material are worth regarding. From the point of view of a legislator, those consequences of an act that can be said to be material (or of importance) either consist of pain or pleasure, or have an influence in the production of pain or pleasure. (VII: 3)

    

36  It is also to be observed that a summation of the consequences of an act should take into account not such only as might have ensued, were intention out of the question, but also such as depend upon the connection there may be between these consequences and intention. . . Now, with regard to the consequences of an act, the intention will depend upon two things: 1) the state of the will or intention with respect to the act itself, and 2) the state of the understanding or perceptive faculties with regard to the circumstances. The latter depends on the degree of consciousness of the circumstances, which in turn may either be a state of consciousness [proper awareness], unconsciousness [lack of awareness], or false consciousness [mistaken awareness]. (VII: 4-5)

 

35  Therefore, in every transaction that is examined with a view to punishment, there are four aspects to be considered: the act that is committed, the circumstances in which it is committed, the intentionality that may have accompanied it, and the consciousness, unconsciousness, or false consciousness that may have accompanied it. (VII: 6)

 

 

Balancing Punishment and Offense

 

35  The general object that all laws have, or ought to have, in common is to augment the total happiness of the community and therefore to exclude, in the first place, as far as possible every thing tending to subtract from that happiness. In other words, to exclude mischief.

     But all punishment is mischief; all punishment in itself is evil. Upon the principle of utility, if punishment ought to be admitted at all, it ought to be admitted only in as far as it promises to exclude some greater evil. (XIII: 1-2)

     

36  It is plain, therefore, that in the following cases punishment ought not to be inflicted—

1) where it is groundless: where there is no mischief for it to prevent, the act not being mischievous upon the whole community;

2) where punishment must be ineffective: where it cannot function so as to prevent the mischief;

3) where it is unprofitable or too expensive: where the mischief it would produce would be greater than that prevented;

4) where it is needless: where the mischief may be prevented, or cease by itself, without punishment— that is, at a cheaper rate. (XIII: 3)

     

37  When punishment is worth while, there are four subordinate goals that a legislator whose views are governed by the principle of utility will naturally to propose to himself:

1) to prevent, in so far as possible and worth while, all sorts of offenses whatsoever: in other words, so to ensure that no offense whatsoever may be committed;

2) to induce a criminal to commit an offense less mischievous rather than one more mischievous: in other words, to choose always the least mischievous of two offenses when either of them will suit his purpose;

3) to dispose a criminal resolved upon a particular offense to do no more mischief than is necessary for his purpose (in other words, to do as little mischief as is consistent with the benefit he has in view);

4) to prevent whatever mischief is proposed as cheaply as possible. (XIV: 2-6)

     

38  Subservient to these goals must be rules governing the matching of degree of punishment to an offense. . .

Rule 1. The value of the punishment in any case must not less than sufficient to outweigh the profit of the offense.

Rule 2. The greater the mischief of the offence, the greater is the expense that it may be worthwhile to incur in the punishment.

Rule 3. Where two offences are in competition, the punishment for the greater offense must be sufficient to induce a criminal to prefer the less.

Rule 4. The punishment should be adjusted in such a manner to each particular offence so that for every part of the mischief there may be a motive to restrain the offender from indulging in it.

Rule 5. The punishment ought in no case to be more than necessary to bring it into conformity with these rules.

Rule 6. To ensure that the quantity of punishment actually inflicted on each individual offender corresponds to the quantity intended for similar offenders in general, the several circumstances influencing sensitiveness ought always to be taken into account. (XIV: 7-14) [further rules are also given]

 

39  It may be of use in this place to recapitulate the several circumstances to be considered in establishing the proportion between punishments and offenses. These seem to be as follows:

I. Regarding the offence:

1. The profit of the offense;

2. The mischief of the offense;

3. The profit and mischief of other greater or lesser offences, of different sorts that the offender may choose from;

4. The profit and mischief of other offenses, of the same sort, which the same offender may probably have been guilty of already.

II. Regarding the punishment:

5. The magnitude of the punishment: composed of its intensity and duration;

6. The deficiency of the punishment in point of certainty;

7. The deficiency of the punishment in point of proximity;

8. The quality of the punishment;

9. The accidental advantage in point of quality of a punishment, not strictly needed in point of quantity;

10. The use of a punishment of a particular quality, in the character of a moral lesson.

III. Regarding the offender:

11. The responsibility of the class of persons in a way to offend;

12. The sensibility of each particular offender;

13. The particular merits or useful qualities of any particular offender, where a punishment might deprive the community of their benefit;

14. The multitude of offenders on any particular occasion;

IV. Regarding the public, at any particular time:

15. The inclination of the people for or against any quantity or mode of punishment;

16. The inclinations of foreign powers;

V. Regarding the law (that is, the public) for it to endure:

17. The necessity of making small sacrifices in point of proportionality for the sake of simplicity. (XIV: 27)

 

 

The Need for System and Rules

 

40  There are some, perhaps, who, at first sight, may look upon the attention to detail involved in the application of such rules as so much labor lost. For gross ignorance, they will say, never troubles itself about laws, and passion does not calculate. But the evil of ignorance is susceptible to a cure. And as to the proposition that passion does not calculate, this—like most of these very general and oracular propositions—is not true. When matters of such importance as pain and pleasure are at stake—and these in the highest degree (in short, the only matters that can be of importance)—who is there that does not calculate? Men calculate, some with less exactness, indeed, some with more; but all men calculate. I would not say that even a madman does not calculate.

     Passion calculates, more or less, in every man: in different men, according to the warmth or coolness of their dispositions, according to the firmness or irritability of their minds, and according to the nature of the motives acting upon them. Fortunately, the passion most given to calculation is the one for which society has most reason to be apprehensive by reason of its strength, constancy, and universality: I mean that corresponding to the motive of pecuniary interest. Thus attention to detail in rules for punishment has the best chance of being effective where effectiveness is of most importance. (XIV: 28)

 

41  Had the science of architecture no fixed nomenclature belonging to it—were there no settled names for distinguishing the different sorts of buildings nor the different parts of the same building from each other—what would it be? It would be what the science of legislation, considered with respect to its form, remains at present.

    Were there no architects who could distinguish a dwelling-house from a barn, or a side-wall from a ceiling, what would architects be? They would be what all legislators are at present. (XVII: Note 1 XXV)

     

42  Take for instance the Declaration of Rights, enacted in convention by the State of North Carolina, in or about the month of September, 1788—said to be copied, with a small exception, from one in like manner enacted by the State of Virginia. The following, to go no farther, is the first and fundamental article:

‘That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.’

     Not to dwell on the oversight of confining to posterity the benefit of the rights so declared, what follows? That, for those protected in this way, every law or other order divesting a man of the enjoyment of life or liberty is void. This becomes the case, amongst others, with every coercive law.

     Therefore, for persons protected in this way, every order to pay money for taxes, for example, or to settle a debt between individuals, or otherwise, is void. For if the law is complied with, the effect is to ‘deprive and divest him’ of the enjoyment of liberty. That is to say, the liberty of paying or not paying as he thinks proper (not to mention of not going to prison, if such coercion is resorted to). . .

     In addition, for such persons, every order to attack an armed enemy in time of war is also void: for, the necessary effect of such an order is to deprive some of them "of the enjoyment of life."

     Moreover, the famous Declaration of Independence, published by Congress July 5th, 1776, after a preamble goes on with these words: 

‘We hold these truths to be self-evident: that all men are created equal: that they are endued by the creator with certain inalienable rights: that among those are life, liberty, and the pursuit of happiness.’

     Who can help lamenting that so rational a cause should be founded on reasons so much fitter to produce objections than to remove them? (XXVII: 29 Note 1 XXVII)

    

     

Sources

     

The web site of the Bentham Collection, University College, London, England.

   

Jeremy’s Labyrinth , the Classical Utilitarianism Web Site, University of Texas. Some of the footnotes are reproduced. Bentham’s observations on legal proceedings, quoted in the Introduction, are provided at this web site, together with references to their occurrence in earlier references.

 

Introduction to the Principles of Morals and Legislation by Jeremy Bentham. Prometheus Books, Buffalo, New York, 1988. This has a full set of footnotes.

     Bentham characterized this work as "pervaded by blemishes, which have not escaped even the author’s partial eye". As he was evidently happy to have others edit his work and prepare it for print, the selected extracts have been edited to translate Bentham’s language into more modern form. The original text is readily available in book form and on-line at the above websites.

   

   

Authors born between 1700 and 1800 CE

Smith ] Paine ] Jefferson ] Condorcet ] [ Bentham ] Goethe ] Wollstonecraft ] Comte ]

   

   Introduction and selection of  extracts Copyright © Rex Pay 2005