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In attempting to layout the bases of penal legislation, Jeremy Bentham took a scientific approach. The underlying principles that he identified in human nature, which were ultimately directed by God’s will, supported manmade laws. The contrasting ideas of pleasure and pain are fundamental in motivation all realms of action. The use or “utility” of all actions, whether of an individual or a community, are likewise organized to generate or oppose pleasure or pain. “Utility” is the fundamental property that produces pleasure, which he considers equivalent to benefit, advantage, or happiness. That which works toward the opposite effect he calls “asceticism.”
Bentham devotes the book’s first chapter to further explanation of utility, turning in the second chapter to the adverse principles, mainly “asceticism.” Chapters III–VI are concerned with various dimensions of pleasure and pain, or sensibility more generally. It is only in the seventh chapter that the author begins detailed consideration of action, including consciousness, intentionality, consequences, and motive; each of the last three becomes the subject of a separate chapter. He then turns to an aspect of human nature, “disposition,” which moves the discussion to unique individuals rather than generic ones. Chapters XII and XIII discuss how disposition affects consequences, and situations that would not warrant punishment. In the last four chapters, Bentham discusses punishments and how they suit different offenses, and XVII, the final chapter, the limits of the penal branch.
It may seem counterintuitive to place the main subject, penal legislation, last, but Bentham’s goal was to build the most solid foundation possible so that his premises and the logical arguments that followed from them would seem irrefutable. It follows, of course, that one must accept his basic premises if the rest of the arguments are to make sense. In arguing for the “utility” of happiness, however, Bentham has found as many critics as supporters over the years.
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Jeremy Bentham’s aim in writing An Introduction to the Principles of Morals and Legislation was to discover the foundations for a scientific approach to penal legislation. Because he found these in human nature, rather than in statutes and precedents, his work is also a book on morals.
Two distinct elements appear in Bentham’s theory. The first is a psychology of motivation according to which all the actions of people are directed toward pleasures or away from pains. The second is a principle of social ethics according to which each person’s actions ought to promote the greatest happiness of the greatest number of persons. That the two principles are independent in their origin and application is not altered by the fact that happiness, according to Bentham, consists in nothing other than pleasure and the avoidance of pain.
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The obligation to promote the happiness of the greatest number Bentham called the principle of utility. In the manner of the eighteenth century, he frankly admitted that this first principle of his philosophy cannot be proved, because a chain of proof must begin somewhere, and there can be no principle higher than a first principle. The principle, he said, is part of “the natural constitution of the human frame,” and people embrace it spontaneously in judging others if not in directing their own actions. Bentham believed that, in addition to this principle, there are in humans social motives, including “goodwill” or “benevolence,” which work in harmony with the principle of utility; but the inclination to kindness is one thing and the principle of utility something else. The latter is an intelligible rule that lies at the foundation of all morals; hence, also of legislation.
What chiefly distinguished Bentham from other eighteenth century moral philosophers was, first, that he recognized only one ultimate principle of morals and, second, that the principle that he maintained was one that admitted of empirical application. The Age of Reason commonly appealed to a whole array of self-evident principles, intuitive convictions, and laws of nature. However, Bentham complained that none of them provided an external standard on which people could agree. In many instances, the alleged truths of nature were an expression of the principle of utility, but at other times they were nothing but expressions of private feelings, prejudices, and interests. The principle of utility, on the other hand, made it possible to define good and evil, right and wrong, in terms that everyone understood and accepted.Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. . . . The principle of utility recognizes this 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.
These fundamentals having been laid down, Bentham devoted the remainder of his work to detailed analyses of the psychology of human behavior, chiefly as it bears on problems of social control. His aim was to find the natural divisions of his subject and to arrange the matter in tables that would be of help in drawing inductions.
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First, Bentham treated of pleasures and pains. Legislators, he said, have a twofold interest in these. Inasmuch as the general happiness consists in pleasure and the avoidance of pain, legislators must consider these as ends or final causes; however, because, as legislators, they have to employ motives, they must also consider them as instruments or efficient causes. It is the latter consideration especially that makes it necessary to consider the sources of pain and pleasure. Legislators are advised that, in addition to such internal motives as people have toward benevolence, there are several external forces or “sanctions” that reinforce virtue and right. The physical sanction is the pain and loss that nature attaches to certain imprudent acts; the religious sanction is fear of divine displeasure or hope of divine favor; the popular sanction is the favor or disfavor of other people. Political sanction is a fourth source of pain and pleasure, being the rewards and punishments that the ruling power of the state dispenses in cases where the other sanctions are not effective.
The value of particular pains and pleasures is obviously relevant in connection with the ends of legislation, but not less so in connection with the means, because the deterrent must be made to outweigh the temptation to crime if it is to serve its purpose. Bentham believed that it is possible to estimate the amount of a pain or pleasure, and he suggested seven calculable factors: intensity, duration, certainty, propinquity, fecundity, purity, and extent. Besides the quantitative side of pain and pleasure, Bentham recognized that there are different kinds of pains and pleasures, and he devoted a chapter to tabulating them. Perceptions, he held, are usually composite, made up of more than one pain or pleasure or both. He undertook to analyze them into their simple parts and to enumerate these. Besides pleasures of the senses he noted pleasures of acquisition and possession, of skill, of friendship, of a good name, of power, and even of malevolence. Besides pains of the senses, he recognized the pains of privation (desire, disappointment, regret) and the kinds of pains that are opposite to the pleasures listed above. Lawmakers, according to Bentham, must have all these in view. When they consider an offense, they must ask what pleasures it tends to destroy and what pains to produce in order, on one hand, to estimate its mischief to the public and, on the other, its temptation to the wrongdoer. Furthermore, when they consider the punishment, they must take into account the several pains that the state has the power to inflict.
Besides these accounts of the general value of pains and pleasures, a special chapter is devoted to individual differences. Bentham listed thirty-two factors that influence people’s sensibilities to pain and pleasure, reminding lawmakers that there is no direct proportion between the cause of pain or pleasure and its effect because differences of health, sex, education, religion, and many other conditions must be taken into account.
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Bentham then considered human action. Legislators are interested in acts in proportion to their tendency to disturb the general happiness; hence, their judgment has regard only to consequences, not to motives. Bentham distinguished carefully between the intention of an act and its motive. The intention of an act, he maintained, may have two things in view, the act and its consequences, but not equally: One must intend at least the beginning of the act, as, for example, when one begins to run; but one may have none of the consequences in view and rarely does one have more than a few. To make his point, Bentham took the story of the death of William II of a wound received from Sir Walter Tyrrel when they were stag hunting, diversifying it with different suppositions. Had Tyrrel any thought of the king’s death? If not, the killing was altogether unintentional. Did he think, when he shot the stag, that there was some danger of the king’s riding in the way? If so, the act was intentional but obliquely so. Did he kill him on account of hatred and for the pleasure of destroying him? If such was true, the deed was ultimately intentional. Such examples show that intention involves, besides the motive or will to act, an understanding of the circumstances in which the action takes place. It is the latter that, according to Bentham, must chiefly be taken into account when an intention is praised or blamed, for it is the consequences that are properly good or evil; the intention is good or evil only in so far as the consequences were in view from the start.
Bentham maintained that the will or motive of an intentional act is neither good nor evil. One desire is as legitimate as another, and the pleasure that a person receives from injuring an enemy is, considered by itself, a good, however we may judge the act in terms of its consequences. Bentham was alert to the role that fictitious entities play in human discourse and noted the difficulties that they place in the way of exact analysis. For example, “avarice” and “indolence” are supposed to act as motives, although they correspond to nothing in the human heart. Similarly, real motives, such as the pleasure of eating or of sexual satisfaction or of possession, are obscured by calling them “gluttony,” “lust,” and “covetousness.” To help clear up the confusion, Bentham goes over the whole catalog of kinds of pleasures and pains and notes how many of them have several names. Thus, pleasures of wealth are called “pecuniary interest” (a neutral term); “avarice,” “covetousness,” “rapacity,” and “lucre” (terms of reproach); and “economy,” “thrift,” “frugality,” and “industry” (terms of approval), according to the circumstances and one’s estimate of their consequences. However, the motive, in each case, is the same, and may neither be praised nor blamed.
Nevertheless, some motives are more harmonious with the principle of utility than others. Bentham classified the motives as social (goodwill, love of reputation, desire for friendship, and religion), dissocial (displeasure), and self-regarding (physical desire, pecuniary interest, love of power, and self-preservation). However, not even the purest social motive, goodwill, always coincides with the principle of utility, particularly when it confines itself to the interests of a limited set of persons.
Bentham recognized that when one is contemplating an act, one is frequently acted on by many motives which draw one in different directions. Some of them are more likely to prompt mischievous acts, others to oppose them. The sum of the motives by which one is likely to be influenced make up one’s disposition. “Disposition” was, in Bentham’s view, another fictitious notion that represents no more than one person’s estimation of how another person is likely to behave. Nevertheless, so far as it can be estimated, the disposition of an offender is important to know. Also Bentham admitted that judgments of good and bad do apply to dispositions, as they do not to single motives. He suggested that the degree of depravity of a criminal’s disposition is inversely proportional to the strength of the temptation needed to prompt the person to a mischievous act.
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True to the principle of utility, however, Bentham maintained that, strictly speaking, only the consequences of an act are good or bad. Pleasures and pains are real, as dispositions are not. Also acts and intentions, which are internal to the doer, are good or evil only as they attach to consequences. Bentham devoted approximately the last half of his book to distinguishing and classifying mischievous acts. The main division is between primary mischief, which is suffered by one or more individuals whose happiness is directly affected by the offense, and secondary mischief, which is the alarm or danger apprehended by the citizenry from the presence of the offender at large in their midst. Penal legislation must take account of both because the latter diminishes the general happiness (by disturbing people’s sense of security) no less than the former.
Bentham’s principles for penal legislation are frankly calculative. The lawmaker must estimate the strength of temptation to do mischief and make the punishment sufficiently severe to act as a deterrent. Bentham argues that there is no kindness in making the punishment light because if it is strong enough, persons disposed to crime will not have to endure it, whereas if it is too light, they will. Severity, of course, is not the only thing to be considered. Applying his method of calculating the amount of pleasure and pain, Bentham argued that the certainty and proximity of the punishment must also be taken into account, as well as its appropriateness.
There is no detailed account in An Introduction to the Principles of Morals and Legislation of the purposes of punishment. However, in a footnote, referring to a separate work called Théorie des peines et des récompenses (1811, 2 volumes; The Rationale of Reward, 1825; also known as The Rationale of Punishment, 1830), the author explains that the principal end of punishment is to control action, whether that of the offender or of others who might be tempted to similar misdeeds. It may work through reformation of the person’s disposition, through prohibiting action, or through making the individual an example. Bentham recognized that vindictive pleasure is also a good, but he could not tolerate making it a basis for punishment.
Like his liberal disciple John Stuart Mill (as in On Liberty, 1859), Bentham held that all punishment is mischief and to be admitted only for the exclusion of greater evil. In many cases, to use his words, “punishment is not worth while.” This is the case when the act was freely entered into by the party injured, when the penalty cannot be efficacious (for example, when it comes too late), or when the evils of detecting and prosecuting the crime are more costly than the evils they are intended to prevent. In some cases, the mischief is better countered in other ways—for example, the disseminating of pernicious principles should be overcome by educating people in wholesome ones.
The limitations of effective penal legislation were a matter of primary concern to Bentham. He emphasized private ethics and education as more important than legislation. His view of ethics is usually designated “enlightened self-interest” because he maintained that in most instances people’s motives for consulting the happiness of others are dictated by their own interest. However, he conceded that there are occasions when social motives act independently of self-regarding motives. Private ethics he called the art of self-government; education, the art of governing the young. Admittedly these do not always achieve their full intention, but it is dangerous and unprofitable to try to make up for their defects by criminal procedures.
Bentham was especially critical of the jurisprudence that existed at the time, and he distinguished his approach to the subject by coining a new name. A book of jurisprudence, he said, could have one of two objects: to ascertain what the law is, or to ascertain what it ought to be. Most books are devoted to the former—he called them “expository”; his was devoted to the latter—he called it “censorial” jurisprudence, or the art of legislation.
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Davidson, William Leslie. Political Thought in England: The Utilitarians from Bentham to J. S. Mill. Ralph Curtis, 1979. Outlines the development of utilitarianism, clearly differentiating Jeremy Bentham and John Stuart Mill. Offers insights into Bentham’s moral, social, and political philosophy and his theories of education and prison reform.
Halévy, Elie. The Growth of Philosophic Radicalism. 1901. New York: A. M. Kelley, 1949. London: Faber, 1952. The classic analysis of the emergence of the Benthamites. Halévy writes with great clarity for the general reader. Exceptional bibliography.
Himmelfarb, Gertrude. Victorian Minds. New York: Alfred A. Knopf, 1968. The second of these essays uncovers Bentham’s obsession with the Panopticon, his rejected plan for a model prison. Examining the actual plans, Himmelfarb reveals a darker side of Bentham’s intended prison reforms and questions whether Bentham shared the democratic ideals of his later adherents.
Long, Douglas G. Bentham on Liberty: Jeremy Bentham’s Idea of Liberty in Relation to His Utilitarianism. Toronto: University of Toronto Press, 1977. Long has concluded that Bentham, in searching for a science of humanity and society, believed that liberty was secondary to security in establishing a plan for social action.
Lyons, David. In the Interest of the Governed: A Study in Bentham’s Philosophy of Utility and Law. Oxford: Clarendon Press, 1991. An interpretation, suitable for advanced undergraduates, of An Introduction to the Principles of Morals and Legislation. Argues that Bentham has a dual standard of interests: community interest is the criterion of right and wrong in public or political affairs, whereas personal interest is the proper standard for “private ethics.” Comprehensive bibliography.
Mack, Mary Peter. Jeremy Bentham: An Odyssey of Ideas. New York: Columbia University Press, 1963. This magisterial biography of Bentham’s first forty-four years draws from unpublished as well as published sources. The standard modern study of Bentham, scholarly yet written for the general reader.
Mill, John Stuart. On Bentham and Coleridge. Edited by F. R. Leavis. New York: G. W. Stewart, 1951. The classic and essential account of Bentham by his intellectual godson and heir, who was himself a leader of the utilitarians.
Rosen, F. Bentham, Byron, and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought. New York: Oxford University Press, 1992. This book offers insights into Bentham’s political philosophy.
Rosenblum, Nancy L. Bentham’s Theory of the Modern State. Cambridge, Mass. Harvard University Press, 1978. Highlights in readable fashion Bentham’s anticlassical views of the state and particularly of legislation. For Bentham, laws are neither the foundation of an ideal, unchanging order nor the instrument of character formation but an expression of utility.
Semple, Janet. Bentham’s Prison: A Study of the Panopticon Penitentiary. New York: Oxford University Press, 1993. This interesting story of Bentham’s attempt to build a prison offers insights to his difficult character.
Steintrager, James. Bentham. Ithaca, N.Y.: Cornell University Press, 1977. An interpretation of Bentham’s political thought, somewhat opposed to Mill and Halévy. Takes pains to dissociate Bentham from some aspects of what later became known as utilitarianism. For advanced undergraduates.