Principles of Morals and Legislation
'An Introduction to the Principles of Morals and Legislation,' by Jeremy Bentham, was first printed in 1780 then revised until 1823. Bentham used this text to outline a process of moral decision-making that depends only on the consequences of actions. Utility, or happiness, is valued. This work was provided moral justification and guidance for lawmakers who are formulating a penal code (i.e., creating laws to specify punishment for crimes).
The idea that criminals deserve punishment, retributive justice, is popular among lawmakers and so Bentham addresses it. Similarly, the role for restorative, distributive and procedural justice can be evaluated from a utilitarian perspective.
The utilitarian approach that Bentham founded is fiercely opposed by deontologists and virtue ethicists to this day.
Chapter 1: The Principle of Utility
The opening to Bentham's book establishes the central thesis of the book: pleasure and pain should guide our moral behavior:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do;
Bentham then argues that it is not a subjective choice to base moral behavior on perceptions of pleasure and pain, but that we are compelled to do so:
They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. (p. 1)
The principle of utility is described as the evaluation of action according to its effect on the happiness of those who are affected by it. Bentham continues with a more detailed description:
By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness, (all this in the present case comes to the same thing) or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered. (p. 2)
Thus Bentham dispels the idea that utility is limited to bodily pleasure. In Bentham's view, the principle of utility can be applied to whole communities. Then, the interest (well-being) of the community is the sum of the interests of its members so government action is dictated by the principle of utility when, in total, it elevates happiness more than it diminishes it (p. 3).
To preempt his critics, Bentham asks whether one person's sentiments should be used as a standard of right and wrong for other people or if each person's sentiment "has the same privilege of being a standard to itself" (p. 6). He concludes that to impose one's standard of right and wrong on others would be hostile to the rest of the global population.
Chapter 2: Of Principles Adverse to That of Utility
This chapter reviews possible arguments against utilitarianism (note that Bentham does not use the word utilitarianism although he is now seen as utilitarianism's founding father.)
Bentham begins by positing that opposition to utilitarianism is either complete or partial. Any philosophy that directly opposes the principle of utility is asceticism, a self-denial of indulgence that can involve renouncement of worldly possessions and fasting (p. 9).
So how would Bentham regard those who deny their indulgence so as to gain a pleasure of enlightenment in this life or by transcendance? For example, Buddhists can believe that attachment to people, material posessions and status result in a cycle of increasing unfulfilled desires that cause suffering. According to that philosophy, denial of worldly conveniences is a path to happiness. Bentham addresses this in part by acknowledging that some religious ascetics are working toward other-worldly rewards, which he calls "the principle of utility misapplied" (p. 13).
The perils of asceticism become apparent when it is proposed as a basis for governmental action (p. 11), says Bentham. He reiterates that religious asceticism is the worst kind, especially when a religion's adherents believe that they have duty to make others miserable. He argues that government officials are unlikely to impose ascetic rules intentionally but through their imbecility they can, for example, lead a "nation to be preyed upon by swarms of idle pensioners" (p. 12).
Bentham identifies a principle of sympathy and antipathy (toward utilitarianism; p. 14-16). He described this as occasional support for and occasional opposition toward the principle of utility (p. 8-9), but made it clear that he is referring to people who formulate moral arguments without any need for external evidence (p. 16-17), whose decisions will only coincide with utilitarian principles by coincidence (p. 18). Such a philosophy would make criminal punishment arbitrary and unjust (p. 20).
Bentham addresses what he called the theological principle: obtaining divine guidance. He argues that humans cannot know the will of God because written documents require too much interpretation and we cannot know which interpretation is correct without already having the answer as a basis for comparison (p. 22).
The popular approach of evaluating actions based on their motive, Bentham argues, is a mistake. It arises, he says, from the observation that certain types of motives often lead to positive utility. That leads to the unwarranted conclusion that we should judge behavior by motives, rather than its resulting utility (p. 23).
Chapter 3: Of the Four Sanctions or Sources of Pain and Pleasure
This chapter reviews four sources of pain and pleasure: physical, political, moral, and religious. These are also Bentham's sources of sanctions, the justification he uses to control others.
Bentham reminds legislators that pleasure and plain are the only things that they should consider when making laws, and that these are also the only means of making people do things. Bentham briefly describes the four sanctions:
- A physical sanction is a source of pain or pleasure in the typical sense and not related to other-worldly things like rewards or punishments in the after-life (p. 25).
- A political sanction is one that is administered by a community at large or by a leader (e.g., a king, an elected official, or their subordinates).
- If the general public delivers the pleasure or pain not based on a formal law but on an informal judgment or attitude, it is a moral or popular sanction.
- If a divine being dispenses the pleasure or pain, it is a religious sanction (p. 25).
When an undesirable event is caused by an accident, it is a calamity, but if it is caused by imprudence, it is a punishment (He either means one's own imprudence or understands punishment loosely here; p. 26). If the same outcome is delivered in accordance with law, it is considered punishment. If the outcome is attributable to lack of assistance from others who disapprove of the actor's actions, it can be considered a moral sanction. If the same outcome is attributed to divine interference, it would be considered a religious sanction (p. 26).
Pleasure and pain are put in the form of expectations so that sanctioning is possible. According to Bentham, only if they operate through physical sanctions are other sanctions possible. That is, physical sanctions can be a part of the other three sanctions (p. 27). Political and religious sanctions can aid or impede the work or legislators, but they should not omit consideration of them (p. 27-28).
Chapter 4: Value of a Lot of Pleasure or Pain, How to be Measured
This chapter begins the very difficult analysis of how pleasure and pain should be measured. Many philosophers have examined, criticized, and attempted to improve upon the theories in this chapter because of the importance of measurement in making morally sound judgments. The role of measurement is particularly important in the treatment of non-human animals, whose utility is harder to estimate.
The value of pleasure or pain for an individual for one event is determined by four attributes of the event:
- certainty, and
- propinquity (how immediate or distant the pain or pleasure occurs in time; p. 29).
These four attributes apply to the valuation of individual events, but the evaluation of an act requires two additional considerations (related to side-effects of actions or repeated behaviors): fecundity, and purity (p. 29-30). Fecundity is the chance that the given action will increase the chance of future sensations of the same type and purity is the degree to which such fecundity will not cause opposite sensations (p. 30).
When the subject is a group of people, he considers:
- propinquity (immediateness or distance in time),
- purity, and
- extent (number of people affected; p. 30-31).
To determine the effect of an act (presumably one that is the product of governmental laws or policies) on the interests of a community, start with one person who is affected by the act and add four things: the value of the direct pleasure, the value of the direct pain, the value of secondarily pleasurable outcomes, and the value of secondarily painful outcomes. Add the pleasure, subtract the pain and if the result is positive, the act is good for that individual (p. 31). Repeat this process to calculate the total effect of an action that affects many people.
Bentham acknowledges that a formal calculation might not always be practical: he suggests that this procedure is not necessary for every moral judgment and that estimations of this process might be practical (p. 31). He also clarified that pleasure and pain can be evaluated in terms of "good..., profit..., or convenience, or advantage, benefit, emolument, happiness, and so forth" (p. 31), and to evil, mischief and the like.
In defense of his utility calculus, Bentham argues that property has value according to the degree of the pleasure or pain that it affords to the owner [this is an argument for the instrumental value of property].
Chapter 5: Pleasures, Pains, and Their Kinds
Bentham divides pleasures into:
- simple, which cannot be described by more basic perceptions; and
- complex, which are mixtures of two or more pleasures, two or more pains, or both pleasures and pains.
Bentham listed 14 simple pleasures:
- good name (reputation),
- association, and
- relief (p. 33).
He also listed simple pains:
- ill name,
- expectation, and
- association (p. 33-34).
Bentham details the pleasures, which are, to various extents, self-explanatory. The pleasure of amity is when people are on good terms with each other, the pleasure of piety stems from perceived good will of a supreme being, the pleasure of benevolence is that of the recipients of benevolence, and the pleasure of association is of the instrumental value of something (e.g., great skill in chess might be pleasurable in itself and might also lead to the pleasure of power; p. 36-37).
Some of the pains are self-explanatory, for example privation is the lack of pleasure as exemplified by hunger, a pain of the senses. The pain of piety is understood as the expected disapproval of a supreme beings (p. 40) and he pain of benevolence is a sympathetic response to the pain of others (p. 40).
Chapter 6: Of Circumstances Influencing Sensibility
This chapter reviews the measurement of pleasure and pain, considering the different degrees to which people are affected by different types of stimuli.
Pleasure and pain are produced by causes but people can respond differently to the same cause (p. 43). The quantity of pleasure or pain that a person experiences is the quantum of sensibility, and this can be an evaluation of general response tendencies or specific response to specific conditions. Bias is the degree to which a person is more affected by one type of stimulation than another, such as being more affected by sense of taste than by sense of hearing (p. 43).
Sometimes the effect of a given cause varies according to other factors: these are circumstances influencing sensibility (p. 44). Bentham listed 32 types of circumstances:
- bodily imperfection,
- quantity and quality of knowledge,
- strength of intellectual powers,
- firmness of mind,
- steadiness of mind,
- bent of inclination,
- moral sensibility,
- moral biases,
- religious sensibility,
- religious biases,
- sympathetic sensibility,
- sympathetic biases,
- antipathetic sensibility,
- antipathetic biases,
- habitual occupations,
- pecuniary circumstances,
- connexions in the way of sympathy,
- connexions in the way of antipathy,
- radical frame of body,
- radical frame of mind,
- government, and
- religious profession.
The remainder of the chapter examines these.
Chapter 7: Of Human Actions in General
This chapter reviews some attributes of actions that are relevant to legislators who are crafting laws. The discussion of these attributes follows some of the philosophical conventions of Bentham's day, such as considering simple and complex acts and divisible and indivisible acts. This chapter also mentions motives, which are treated more fully in Chapter 10.
The opening line of this chapter is "The business of government is to promote the happiness of the society, by punishing and rewarding" (p. 70). Bentham sees that punishment can be used as a deterrent, or possibly retribution, to undesired acts. The degree of punishment should be proportional to the degree that the act disturbs happiness, and only material consequences, or those that affect happiness, should be considered (p. 70).
Actions that are punishable have four primary attributes: the act itself, circumstances, intention, and consciousness (p. 71) and two secondary attributes: motives and disposition (p. 72). This chapter covers only the act itself and its circumstances.
The act itself can be distinguished along five dimensions:
- positive and negative,
- external and internal,
- transitive and intransitive (types of external acts),
- indivisible and divisible, and
- simple and complex.
Positive and negative acts refer not to the moral evaluation of acts but to types of physical action taken. Positive acts involve motion and negative acts involve refraining from motion (p. 72). Negative acts can be absolute (e.g. refraining from hitting a person at all) or relative. External acts are acts that involve moving the body and internal acts are acts of the mind. Thinking of something or intending to do something is an internal act. Physically doing something is an external act (p. 73). Acts of discourse (e.g., speaking or writing) can be a mixture of internal and external such as writing to tell someone to do something. Transitive acts are ones that affect a foreign body (e.g., I punch somebody). Intransitive acts are ones that do something to oneself without affecting other people or things (p. 73. Bentham delineates internal and external acts, saying of a man who intends to poison himself that the internal act stops and the external act begins when the glass of poison hits his lips.
Transient acts are one-time acts whereas continued acts are repeated (p. 73). Sometimes continued acts can become habits (p. 74). Simple and complex acts are divided according to an arbitrarily long list of single acts (p. 75). Note that the issue of identifying an act as one or two acts might become relevant later when estimates of the consequences of actions are made.
The second topic of this chapter is circumstances. Bentham suggests that killing a person might be good in some circumstances (p. 76). Any object is a circumstance (pp. 76-77). Just as an act's consequence becomes material when it affects happiness, a circumstance is considered material when it affects happiness (p. 77).
Circumstances can alter outcomes through their effect on
- derivation (indirect causal influences; outcomes derived from the main consequences),
- collateral or connection (co-occurring outcomes such as collateral damage), and
- conjunct influence (conjoint, or simultaneous, influences or outcomes).
Many acts occur in a context in the context of circumstances ranging from powerful to miniscule (p. 79). These circumstances should be considered according to their nature and their strength of impact (p. 80). Bentham describes circumstances that can be aggravating or extenuating (p. 80).
Chapter 8: Intentionality
This chapter is a continuation of Chapter 7 and a continuation of the list of four primary attributes of actions that are punishable by legislators. According to this chapter, good and bad are to be determined by production of pleasure or pain, and any reference to good or bad intentions is a "figurative and less proper way of speech".
Most non-utilitarians give the intentions of an act, and the intended consequences of an act special importance (p. 82). Bentham gives the example of intentionally touching a person but accidentally hurting the person, an intentional action with unintentional consequences. Consequences cannot be intentional unless the first stage of action is intentional. This includes Bentham's example in which someone intends to hurt a man by running into him when someone else steps in the way resulting in both being hurt. In that case one of the two consequences was intentional.
A consequence is directly intentional if the planned course of action follows a series of cause-and-effect relationships, otherwise it is obliquely intentional (p. 84). An outcome is ultimately intentional if the last part of the cause-and-effect chain ends with the desired outcome, otherwise the outcome is mediately intentional (pp. 84-85). An outcome is inexclusively intentional if the action produces side-effects or exclusively intentional if there are no other effects (p. 85).
Inexclusively intentional acts are conjunctively, disjunctively, or indiscriminantly intentional (p. 85). The act is conjunctive if all outcomes are intended, disjunctive if only not all outcomes are intended, or indiscriminant when either some or all outcomes are desired. The actor can have a preference for the outcome of a disjunctive act.
If there are many stages in an action, some of which are unintentional, then the action is largely unintentional. However, if a person intends to punch you in the cheek and hits you in the eye instead, it is difficult to deny intention (p. 87).
The last paragraph of the chapter begins with a reminder that nothing can be considered good or bad unless it is itself pleasure or pain or if it causes or prevents pleasure or pain (p. 87). The issue becomes more complicated when Bentham states "But in a figurative and less proper way of speech, a thing may also be styled good or bad, in consideration of its cause" (pp. 87-88; the remainder of the paragraph seems to intermix both the literal and figurative labels of good and bad). Intentions are caused by motives and produce consequences, so an intention is considered good if it produces good consequences or is caused by "good" motives. Motives are discussed in the next chapter.
Note that Bentham uses the phrase "objects of the will," which might explain references to objects in other parts of the book: "Acts, with their consequences, are objects of the will as well as of the understanding: circumstances, as such, are objects of the understanding only" (p. 88).
Chapter 9: Of Consciousness
This chapter describes the fourth primary attribute of actions that should be considered by legislators for the purposes of identifying punishment for crimes.
Production of the consequences of an intentional act can depend on circumstances (p. 89). A person aware of circumstances makes and advised act, and a person unaware of circumstances makes an unadvised act. Determination of the advised or unadvised status is determined by the existence and materiality of the circumstance. An unadvised act can be heedless if a prudent person would ignore the circumstance (pp. 89-90). An act can be mis-advised if the circumstance existed but was not material and can be mis-supposed if the circumstance did not exist (p. 90).
An erroneously supposed circumstance is material if it would have prevented bad side-effects or produced beneficial outcomes if it had existed (p. 90).
An act that is intentional in itself, advised, and not mis-supposed is considered intentional (p. 91). This is an example of extending "the intentionality from the act to the consequences" (p. 92).
Rashness is execution of a misadvised act (p. 92). It is considered rash when a prudent person would have examined the situation and determined that the action should be avoided.
This leads to the next topic, which distinguishes between good and bad acts and between good and bad motives: "In ordinary discourse, when a man does an act of which the consequences prove mischievous, it is a common thing to speak of him as having acted with a good intention or with a bad intention" (p. 92). Perhaps "In ordinary discourse" is equivalent to the "figurative and less proper way of speech" mentioned at the end of Chapter 8. Although people talk about good and bad intentions, the criteria is more directly linked to the motive (p. 92), says Bentham. Motives and consequences can be distinguished from each other and the reader's inference is that intentions cannot be distinguished from motives or consequences: "The intention might therefore with perfect propriety be styled a good one, whatever were the motive" (p. 93). In other words, people can always claim good intentions regardless of the facts. He gives an example of how people can claim good intentions:
To warrant the speaking of the intention as being a good one, it is sufficient if the consequences of the act, had they proved what to the agent they seemed likely to be, would have been of a beneficial nature. And in the same manner the intention may be bad, when not only the consequences of the act prove beneficial, but the motive which gave birth to it was a good one. (p. 93)
Bentham distinguishes "intention" from "motive". The example is of somebody who falsely accuses you of a crime. The accuser can claim an good motive because the intent from the acuser's point of view is that the community would be protected from a criminal, but Bentham asserts that the acuser's motive is malice, and is therefore bad (p. 94).
Bentham compared the terms from this chapter to some terms used in Roman law (p. 94).
Absence of intention, absence of consciousness, or presence of mis-supposal constitute extenuation of an offence (p. 96).
Chapter 10: Motives
This is a long chapter about motives. Bentham first describes some attributes of motives, then argues that language can affect how we think of motives. Specifically, he argues that the things that are commonly considered bad motives (e.g., lust) are really one end of a spectrum (e.g. sexual desire) that might have both good and bad outcomes. From this he argues that there are no good or bad motives but only good and bad consequences of specific actions. He does acknowledge that understanding motives can help to estimate the magnitude of continuing malicious acts, set punishments, and develop plans to reduce malicious behavior.
The character of any act is affected by the motives that are attributed to it (p. 97, sec. I). A motive is "any thing that can contribute to give birth to, or even to prevent, any kind of action" (p. 97, sec. II). Speculative motives are those that influence thoughts only. This type of act cannot directly affect pain or pleasure, but "it is only on account of their tendency to produce either pain or pleasure, that any acts can be material" (p. 98, sec. II). The motives of interest are those that influence actions or forbearance of actions. These are practical motives (p. 98, sec. III).
The word motive can have two meanings. One meaning is an incident that gives rise to an act. This is a literal or unfigurative meaning. The other meaning refers to what Bentham calls a "fictitious entity, a passion, an affection of the mind" (p. 98, sec. IV) and other such things that motivate actions. Examples of this type of motive are avarice, indolence, and benevolence (p. 99, sec. IV). These are figurative meanings of the word motive.
Unfigurative (real event) motives can be divided into internal and external incidents (p. 99, sec. V). Internal incidents are those that have a relatively direct effect on pleasure or pain. Bentham's examples are the pleasure of acquiring money or the pain of exerting yourself (p. 99, sec. V). The external incidents are one step removed from the internal incidents. An example is finding a lottery ticket that can be exchanged for money.
For people to plan an action, they must look beyond the act and focus on the ultimate consequences. These consequences, or mental events, are called objects. The future event itself is the posterior possible object, or esse and the current perception of that future is the present existing object, or prospect. These are both called motives (p. 99, sec. VI, p.100, sec VI).
The most powerful motive is the motive in esse, which is the [current] expectation of the internal motive in prospect (p. 100, sec VI). The example is that if your neighbor's house is on fire, your motive in esse is your current fear that the fire will spread to your house and the external motive in prospect is that your house will eventually burn with you in it.
Anything that can induce a belief about external incidents can influence the will to act (p. 101, sec. VIII). Identifying motives like this is what it means to give reasons for actions. The example is that if Bentham tells you about your neighbor's house being on fire and explains how the fire can spread to your house, you are motivated to act. Bentham described this as follows: "I suggest motives to your understanding" (p. 101, sec. VIII).
The most important element of a chain of motives is "the last internal motive in prospect" (p. 101, sec. IX), which is always reducible to a pleasure or pain (p. 102). "A motive is substantially nothing more than pleasure or pain, operating in a certain manner" (p. 102, sec. IX).
Pleasure is in itself good as is the avoidance of pain: "It follows, therefore, immediately and incontestibly, that there is no such thing as any sort of motive that is in itself a bad one" (p. 102, sec. X) A footnote explains that even the perpetrator of a terrible act sees some type of pleasure in an act that causes pain to another.
There is a need to explore what it means for a motive to be good or bad (p. 102, sec. XI). Motives can be good or bad only according to their effects (p. 102, sec. XII). A word that conveys a good sense expresses approval, and a word that conveys a bad sense expresses disapproval, and these judgments are based on the circumstances (p. 102, sec. XIII). Some words like piety and honor have only good meanings, but there are many more words that have only bad meanings (p. 104, sec. XIII). Language seems to forbid referring to some traditionally bad acts as good or vice-versa, so new phrases would be useful (p. 104, sec. XIII).
Bentham now reviews some concepts to show that some of the words that have only a bad meaning are really part of a spectrum of meanings that has bad at one and and good at the other (p. 104, sec. XIV). The first example is desire, which is a broad category that, at one end, includes the bad motive sensuality (at least it had a negative connotation in Bentham's day, before Lady GaGa existed!). Bentham notes that there is no word to express the good side of desire (p. 104, sec. XIV). Love of good cheer is really part of a dimension that includes greediness, voraciousness, and gluttony (pp. 104-105, sec. XV).
To the pleasures of the sexual sense corresponds the motive which, in a neutral sense, may be termed sexual desire. In a bad sense, it is spoken of under the name lasciviousness, and a variety of other names of reprobation. Name used in a good sense it has none. (p. 106, sec. XVI)
Bentham added a footnote that mentioned love as a good version of this concept, but noted that the word love also adds meaning beyond sexual sense.
Another example of word usage is that pleasures of wealth can be referenced with the neutral term pecuniary interest or the negative terms avarice, covetousness, rapacity, or lucre (p. 107, sec. XIX). In some cases frugality has a positive meaning.
The desire of ingratiating oneself can motivate a man to make his wife happy, but in other cases it might lead him to poison her (p. 108, sec. XXI). In the same way a woman can "preserve the favour" of a wealthy man by lawful or unlawful means, but the motive is the same (p. 108, sec. XXI).
The pleasure of a good name can also be called a love of reputation, the desire of ingratiating one's self, honour, false honour, pride, or vanity (p. 108, sec. XXII), or even fear of dishonour, fear of disgrace, fear of infamy or fear of shame: "The pleasures belonging to the moral sanction run undistinguishably into the pains derived from the same source" (p. 109, sec. XXII).
Love of power leads to a similar range of behaviors (p. 110-111, sec. XXIII), as does love of God versus fear of God, which can lead to piety or assassinating somebody for religious reasons (p. 111-112, sec. XXIII).
Sympathy can take the form of good-will, benevolence or pity and compassion (p. 112-113, sec XXV). In others it can become patriotism. Perhaps such sympathy could lead somebody to break another person from prison (p. 113, sec XXV).
Malevolence can take the form of dislike or anger, or wrath. One example of this motive is that if a person commits a crime and is punished, the criminal might then retaliate against the person who filed the claim and hang that person. This would be considered detestable, but in another case a criminal kills somebody and the victim's son prosecutes and has the criminal executed--this is considered laudable. Both are the same motives (p. 115, sec XXVI).
Pleasure and pain exist on a continuum: "Now in many instances the desire of pleasure, and the sense of pain, run into one another undistinguishably" (p. 115, sec. XXVII). Slight pain is sometimes indistinguishable from slight pleasure. Motives of self-preservation is sometimes indistinguishable from pleasure-seeking. Bentham mentions fear of poverty as a type of self-preservation, presumably in contrast to the pursuit of wealth. Self-preservation can lead people to terrible deeds, such as the mother of an illegitimate child who kills the baby to hide her shame (p. 116, sec. XXVII).
Avoidance of exertion (laziness) has no good name (p. 117, sec. XXVIII). In one circumstance, it might lead parents to abandon their children while in another it might lead slaves to escape or motivates a mechanic to develop a labor-saving device (p. 118, sec. XXVIII).
The inference from these examples is that "there is no such thing as any sort of motive which is a bad one in itself" (p. 118, sec. XXIX). The motives that are typically considered bad, such as lust, cruelty, and avarice, are simply the names applied when the related outcome is bad, but are more generally to be considered sexual desire, displeasure, and pecuniary interest (p. 118-119, sec. XXX). Instead of referring to motives as good or bad, look to the consequences:
"The only way, it should seem, in which a motive can with safety and propriety be styled good or bad, is with reference to its effects in each individual instance; and principally from the intention it gives birth to: from which arise, as will be shown hereafter, the most material part of its effects. (p. 120, sec. XXXIII)
Although Bentham does not allow for a full-scale exception to his theory of motives, he identifies one motive that is closer to the principle of utility than others: "Of all these sorts of motives, good-will is that of which the dictates, taken in a general view, are surest of coinciding with those of the principle of utility" (p. 121, sec. XXXVI). Good-will can fail to be consistent with utility when the agent considers how the effects of an action affect only a small group of people rather than the full population (p. 122, sec. XXXVII).
Love of reputation is the second best motive in terms of its typical effects on utility (pp. 122-123, sec. XXXVIII). Actions stemming from love of reputation will coincide with the principle of good-will only so far as the actions are expected to be publicly known (p. 123, sec. XXXVIII).
Desire for amity is the next best motive, and it varies according "to the number of the persons whose amity a man has occasion to desire" (p. 124, sec. XXIX).
Religious beliefs are so varied that it is difficult to generalize them or assign motives to them (p. 124, sec. XL). People claim that the divine being is benevolent, "but they do not mean that he is so in reality" (p. 125, sec. XL). The dictates of religion are simply the biases of people, and dictates can be produced from poor interpretation of religious texts (p. 126, sec. XL).
The dictates of religion seem to be growing closer to the principle of utility (p. 126, sec. XLI). This happens because people increasingly "borrow continually a new and a new leaf out of the book of utility" (p. 126, sec. XLI). In other words, Bentham says that religious interpretation is influenced by an underlying focus on utility as a basis for morality.
When motives conflict, it becomes difficult to choose a course of action (p. 127, sec. XLIII). Conflicting motives are impelling, tending to produce action, or restraining, tending to prohibit it. These, however, are interchangeable depending on whether the act is considered positive or negative (p. 128, sec. XLIII). Bentham argues that, considering the interchangeability of these terms, all motives lead to action, so no two motives can oppose one another (p. 128, sec. XLIV). A bad act is one in which the benevolent motive was insufficient.
Motives for malicious acts are important because they affect the magnitude of the outcome and they affect the judgment for punishment (p. 130, sec. XLVI). Understanding these motives might also help to identify ways to combat the problem preemptively.
Chapter 11: Of Human Dispositions in General
This chapter examines human dispositions: enduring tendencies to engage in certain types of acts or to act with certain motives. This topic is relevant to legislators who might find reasons to adjust criminal punishment according to the perceived depravity of the offender.
The opening of the chapter reminds us that motives cannot be good or bad in themselves but hints that there is something about a person that is good or bad. This is the person's disposition, a "fictitious entity" that refers to enduring characteristics of a person (p. 131, sec. I).
Dispositions will be judged according to their consequences (p. 131, sec. II). The consequences of one's disposition can affect the self or others. Dispositions can be considered virtuous or vicious but the magnitude of the good or bad connotation is questionable (p. 131, sec. II). If a particular disposition affects only the self, the matter is within the domain of moralists as opposed to legislators (and this book is about legislators; p. 132, sec. II).
A person with a mischievous disposition is generally expected to engage in pernicious acts (p. 132. sec III). If a person with a mischievous disposition thinks that an act will be beneficial, but the act has a bad outcome, the observer should continue to consider that person mischievous, but if a person with a good disposition thinks that an act will be bad and the outcome is actually good, that person should still be considered good (p. 133, sec. V). Bentham judges disposition based on its consequences, not on the person's perception of their outcomes.
Actions typically produce outcomes that are consistent with the underlying intentions (p. 133, sec. VI). Bad intentions at one point tend to be correlated with bad intentions in the future (p. 133, sec. VII). The character of a disposition depends on the tendency of the act and the motive (p. 133-134, sec VIII).
If an act benefits the self, and the tendency of the behavior is good, there is little grounds for evaluating the quality of the underlying disposition (p. 134, sec. IX). If an act benefits the self and the tendency of the behavior is bad, it suggests a bad disposition. The example is of stealing bread (p. 134, sec. X). An act with a good tendency and a good motive suggests a good disposition. An act with a bad tendency combined with good motive could suggest either a good or bad disposition, but cannot exist without contradiction (p. 135, sec. XII-XIII). An example of this is a person from a starving family steals some bread and takes none of it but gives it to the other family members (p. 135, sec. XIV). Bentham gives more complicated examples involving somebody who kills the king and is doomed to torture, but the offender's son knows that his father will repent and thereby illegally frees him from prison (the good part is preventing his father's torture and the bad part is the illegal jail-break).
An act can suggest a good disposition when the act is good and the motive is semi-social (e.g., love of reputation; p. 136, sec. XVII). An act of revenge cannot be good (p. 138, sec XIX), but an act with a good tendency and a religious motive is good (p. 138, sec. XXI). An act with a bad tendency and a religious motive is questionable (p. 138, sec. XXII). Religiously-motivated acts frequently diverge from the principle of utility (p. 139, sec. XXII).
If the tendency of the act is bad and the motive is bad, then it suggests a mischievous disposition (p. 141, sec. XXV). The example is of stealing bread and then destroying it.
After reviewing mostly bad dispositions, Bentham declares that the book, being about penal law, is not going to cover meritorious acts or dispositions (p. 142, sec. XXVI).
Bentham concludes that the evaluation of dispositions depends on the motives and is the sum of all intentions:
It is evident, that the nature of a man's disposition must depend upon the nature of the motives he is apt to be influenced by: in other words, upon the degree of his sensibility to the force of such and such motives. For his disposition is, as it were, the sum of his intentions: the disposition he is of during a certain period, the sum or result of his intentions during that period. (p. 142, sec. XXVII)
Bentham's reference to intentions here is confusing considering that most of the chapter so far has been about tendencies of acts and motives, but then he clarifies the matter by saying that "the causes of intentions are motives" (p. 142, sec. XXVIII).
A seducing or corrupting motive is one that prompts a mischievous act (p. 142, sec. XXIX). A tutelary motive is one that prompts restraint from performing a bad act. Tutelary motives are standing (ongoing) or occasional (temporary).
A mischievous act can be prompted by any type of motive, but motives of benevolence and good-will are least likely to produce bad behavior (p. 143, sec. XXXI). Motives of benevolence and good-will can be considered part of the more general category of tutelary motives.
The next section suggests that people who act from a motive of love of reputation will almost always discourage mischievous acts, rather than encouraging them (note that "the force of this motive" refers to the motive of love of reputation):
Now in the case of an act, which is really of a mischievous nature, it can scarcely happen that there shall be no persons whatever who will look upon it with an eye of disapprobation. It can scarcely ever happen, therefore, that an act really mischievous shall not have some part at least, if not the whole, of the force of this motive to oppose it; nor, therefore, that this motive should not act with some degree of force in the character of a tutelary motive. (p. 144, sec. XXXII)
That is, typically, at least one person will view an act with a mischievous tendency with disapproval. Someone who is motivated by love of reputation would rather not have their action met with disapproval. So, they will be more avoidant of acting with mischievous tendency. Bentham considered this motive to be a standing tutelary motive.
Amity is a standing tutelary motive (producing self-restraint to avoid mischievous acts; p. 144, sec. XXXIII).
The motive of religion is different from the prior two motives (p. 144, sec. XXXIV). For example, in ancient Greek religion, favor from one god might imply enmity from another god.
Occasionally, tutelary motives can interrupt a thief from a planned crime. The examples are of a thief who becomes too drunk to steal or receives a visit from a doxy (prostitute) and is thereby distracted (p. 145, sec. XXXV).
Two somewhat artificial and occasional tutelary motives are laziness and self-preservation (p. 146, sec. XXXVI). Self preservation affects two types of dangerous situations: physical danger and moral danger (p. 146, sec. XXXVII). Moral danger is largely affected by the threat of an obnoxious act being detected. This danger of detection can be divided into immediate opposition and criminal punishment (p. 146, sec. XXXVIII). Bentham notes that love of reputation and amity also depend on threat of detection, and in all cases, the force of the motive increases in line with the threat of detection.
The foundations have now been established so that the strength of temptation can be described (p. 147, sec. XL). When evaluating a crime for a potential punishment, the strength of the temptation depends on the ratio of the seducing motives to the tutelary motives. This is an evaluation of the pleasure of pursuing an act versus the trouble or danger that it incurs.
Acts with low temptation and high depravity suggest a highly mischievous disposition (p. 148, sec. XLI). If a person engages in an act that seems mischievous to the actor, then the actor must have low sensitivity to social considerations (tutelary motives).
The rules for evaluating the depravity of somebody's disposition:
- Given the strength of the temptation, identify the apparent mischievousness based on the nature of the act
- Given the apparent mischievousness of the act, the slighter the temptation that has been overcome, the more one can conclude that a person's disposition is depraved
- Given the apparent mischievousness of the act, the stronger the temptation that has been overcome, the less one can conclude that a person's disposition is depraved
- Where the motive is dissocial, given the apparent mischievousness of the act the strength of the temptation, a person's disposition has depravity equal to the amount of deliberation that accompanied the act. (p. 149-150, sec. XLII)
Extraordinary depravity calls for greater punishment because it adds to the terror created by the underlying crime and is expected to lead to more mischief in the future (p. 151, sec. XLIII). Note that Bentham's argument here describes the punishment for depravity in terms of the immediate consequences of the offense and in terms of the expectation of future consequences. In other words, the call for punishment for depravity is not a punishment that could occur without a criminal act and without a valid threat of future criminal (or at least depraved) acts. There is another reason for punishing depravity: it indicates a lack of sensibility in the criminal (p. 151, sec. XLIII). Bentham's argument in the remainder of this section is difficult to decipher. It seems that he argues that judges might find it difficult to punish a person who lacks depravity, or conversely, might want to punish a person for depravity alone. He also mentions that people object to the idea of increasing punishment for crimes that have high temptation. If that is what Bentham is saying, then he is arguing that depravity, (or lack thereof) can motivate some judges to issue unwarranted degrees of punishment (either too much or too little punishment).
Chapter 12: Of the Consequences of a Mischievous Act
This chapter is an attempt to categorize the nature of mischievous acts. The format of this chapter, as with some other chapters, reflects an approach to philosophy that is no longer used: profuse categorization and naming of arbitrary divisions of phenomena.
So far, we have covered attributes affecting the evaluation of consequences: the act itself, circumstances, consciousness, intentions, motives, and dispositions (p. 152, sec. I). This chapter will be about the consequences themselves.
"The tendency of an act is mischievous when the consequences of it are mischievous" (p. 152, sec. II), and this applies to both actual and expected consequences. These consequences can be divided into primary and secondary.
A primary mischief can be divided into the original and derivative types according to who is affected, where derivative mischief is that which affects other than the primary target (p. 153, sec. IV). People affected by derivative effects have an interest in or sympathy with the main person affected by the mischief.
Secondary mischief is comprised of pain and danger (p. 153, sec. V). The pain of secondary mischief is the alarm (fear or worry) of suffering or inconvenience, and danger is the mere possibility of mischief. Thus secondary mischief applies only to the main target or victim of the mischief. Secondary mischief can also apply to people who were not directly affected by the main mischief. The example is that people in a town become afraid to travel a road where somebody was robbed, and there is also an objective increase in danger (p. 154, sec. VI).
After a robbery occurs, it can increase the risk of future robberies in two ways: it suggests the idea to others and reduces the self-restraint of potential criminals (p. 155, sec. VIII). The biggest effect in this regard is to reduce expectations of punishment and to reduce expected shame of committing the same kind of crime. These to factors together comprise the influence of example (p. 157, sec. XI).
Alarm after a crime can come from fear that the same criminal will act again or that others will be motivated to commit the same type of crime (p. 157, sec. XIII).
If the primary consequences are bad, it might be that the secondary consequences are good. The example is that punishing a criminal might have the good effect of dissuading others from criminal activity (p. 157, sec. XIV).
Mischief can be categorized in three ways: according to its nature, cause, or complexity (p. 158, sec. XV). When the mischief is simple, it can be positive or negative (where negative is the loss of pleasure), and when mischief is complex it can be either certain or contingent, and the division of categories continues.
If a person acts mischievously toward one's self, it is self-regarding, otherwise it is extra-regarding (p. 159, sec. XV).
An example of a contingent effect is that a person can drink a tiny amount of alcohol and feel no effect, but drunkenness is contingent upon the repetition of that same act (p. 160, sec. XVI).
Bentham briefly describes a case of tax evasion (p. 160, sec. XVII). He classifies this as a negative kind of mischief. He says that communities must defend against internal and external adversaries and that there is no way to do this without taxes. The net effect of such a policy is to provide a benefit to the entire community. When taxes are paid, the money is distributed to the various government or military personnel in a "connected chain of duties" (p. 161, sec. XVII).
Nonpayment of taxes does not create any alarm (p. 163, sec. XVIII). A legislator might consider the future threat of invasion by a foreign power that would be caused by absence of a tax and that would produce greater pain due to the demands of the invading power.
Secondary mischief depends on intention, consciousness, motive, and disposition. The real state of affairs affects danger and the perceived state of affairs affects alarm (p. 164, XIX).
A completely unintentional act implies no secondary mischief (p. 164, XX). If an act is unintentional but also unadvised (i.e., the actor is unaware of the circumstances) and heedless (the circumstances are trivial enough that a prudent person could ignore them), there might be some secondary mischief (p. 164, sec. XXI). A misadvised act (circumstance existed but were not material) without rashness implies no mischief (p. 165, sec. XXII). A misadvised act with no rashness but with only partially extenuating circumstances might imply some mischief (p. 165, sec. XXIII). A misadvised act with rashness implies some secondary mischief (p. 165, sec. XXIV). Intentional mischief implies the full weighting of secondary mischief where it exists (p. 165, sec. XXV).
Motives can also affect evaluation of secondary mischief, but good motives cannot negate the evaluation of secondary mischief (p. 165, sec. XXVI). A bad motive does not negate the positive secondary effects of a mischievous act (p. 166, sec. XXVII). If both the primary and secondary consequences are pernicious, a bad motive make the secondary consequences worse (p. 166, sec. XXVIII). The secondary mischief is at its worst when the motive makes it likely that the person will re-offend (p. 166, sec. XXX). This likelihood is determined by the strength and constancy of the influence that produced the act (p. 167, sec. XXXI).
The most powerful motives are physical desire, love of wealth, love of ease, love of life, and fear of pain, each of which is self-regarding (p. 167, sec. XXXIII). An act of vengeance is less mischievous than those motivated by one of the powerful motives (the footnote explains that vengeance and similar motives are less persistent than the powerful motives). The secondary mischievousness of a religious act is made worse due to the constant force of the religious motive (p. 168, sec. XXXIV).
The consequences mentioned so far are natural consequences not affected by political authority. The next chapter will be on punishment, which is an artificial consequence (p. 168-169, sec. XXVI).
Chapter 13: Cases Unmeet for Punishment
This is a short chapter that describes four conditions under which punishment is improper (unmeet): when it is groundless, ineffective, unprofitable, or needless.
Laws should "augment the total happiness of the community" (p. 170, sec. I), but punishment is evil, so it must prevent a greater evil to abide by the principle of utility. Punishment should not be used when it is groundless, inefficacious (ineffective), unprofitable (too expensive), or needless (p. 171, sec. III).
Punishment is groundless when no mischief as been committed or if the act was consensual, as long as the consent was free and uncoerced (p. 171, sec. IV). Punishment is also groundless when the mischief was outweighed, meaning that it also produced something of greater value, provided that the act prevented a calamity or was otherwise necessary, such as for judicial or military reasons (p. 172, sec. V). Punishment can also be groundless when adequate compensation is already a certainty (p. 172, sec. VI).
Punishment is inefficacious when the law was passed after the act was committed (p. 172--173, sec. VII). This can happen if the law was ex-post-facto, or the sentence was beyond what the law allowed, or when the judge chooses an arbitrary punishment outside the law (p. 173, sec. VII). Punishment is inefficacious when it is not communicated to the person it is intended to affect (i.e., this is the opposite of "ignorance of the law is no excuse"; p. 173, sec. VIII). Punishment is also inefficacious when it could produce no effect, such as on a person who is drunk or insane (p. 173, sec. IX). Punishment is inefficacious when the act committed is unintentional or unconscious (p. 174, sec. X), when the situation is overpowering (such as when in physical danger (p. 175, sec. XI), or when the act is involuntary (p. 175, sec. XII). Note that Bentham clearly stated that punishment should not be used in any of these cases (see p. 171, sec. III). It is unclear if he would eliminate drunk driving laws today because a drunk person could not understand them, or if the laws would be written to communicate to people before they are drunk so they can make plans to avoid criminal activity when they become drunk.
Punishment is unprofitable when the evil of the punishment outweighs the evil of the offence (p. 175, sec. XIII). There are four types of evil punishment: coercion, apprehension (such as fear of execution), sufferance (the pain of punishment itself), and derivatives (secondary effects like sympathy of the family of the accused; p. 175-176, sec. XIV). It would be unprofitable if the punishment would motivate further mischief (p. 176, sec. XVI), or if the accused would be stopped from performing valuable deeds, the public strongly opposes the punishment, or the displeasure of foreign powers (p. 176-177, sec. XIII).
Punishment is needless when it can be more efficiently addressed "by instruction, for instance, as well as by terror: by informing the understanding, as well as by exercising an immediate influence on the will" (p. 177, sec. XVII). Bentham did not describe what the "immediate influence on the will" means or how it relates to "terror."
Chapter 14: Of the Proportion Between Punishments and Offences
This chapter lists four goals of punishment (four ways to reduce the negative effects of mischief), and then derives 13 rules for creating laws that might achieve those goals. Modern readers might object to some of the rules; for example, his elaboration of Rule 6 suggests that extra punishment should be added to account for prior offenses that probably occurred without detection. That suggestion (as well as Rules 9 and 10) seems to contradict the goal of using punishment to prevent mischief. Another difficulty in this chapter is the potential moral conflict between allocating punishment to outweigh the profit of an action even though the profit (benefit) of an offense might not correspond to the harm done to others.
Laws are designed o prevent mischief, but when mischief cannot be completely prevented, there are other approaches to reducing the negative effects of mischief (p. 178, sec. I). The four approaches to minimizing mischief are to
- prevent any mischief from happening (p. 178, sec. III),
- reduce the degree of mischief if it does happen (p. 178, sec. IV),
- influence the offender to commit the minimal offence relative to the offender's immediate needs (p. 178, sec. V), and
- implement prevention measures as cost-effectively as possible (p. 178, sec. VI).
Those four principles suggest rules for the appropriate proportion of punishment. The first rule is: "The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence" (emphasis in the original for each of the rules quoted here; p. 179, sec. VII). A footnote specifies that the profit of an offence includes not only the monetary profit but also the effects on happiness, but Bentham's discussion here does not specify a special calculation of profit for a situation such as recreational drug use where the profit (enjoyment) of the act might not be in proportion to the harm to others.
Some have viewed these punishments as harsh. The matter is complicated because as the profit of an offense increases, so too does the temptation to commit it (p. 180, sec. IX). This increase in temptation cannot be constitute a reason make the punishment ineffectual, and the punishment becomes ineffectual when the degree of punishment is less than the degree of profit (p. 180, sec. IX). Setting punishment below this level is cruel to the public by making them suffer due to lack of protection, and cruel to the offender for "punishing him to no purpose" (p. 181, sec. IX). Setting punishment to such a low level also fails to achieve the beneficial outcome (of crime prevention), which is the only justification for using the evil of punishment (p. 181, sec. IX).
Rule 2: "The greater the mischief of the offence, the greater is the expense, which it may be worth while to be at, in the way of punishment" (p. 181, sec. X). In other words, severity of punishment should increase with the severity of the offence.
Rule 3: "Where two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less" (p. 181, sec. XI).
Rule 4: "The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it" (p. 181, sec. XII).
Rule 5: "The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given" (p. 182, sec. XIII).
Rule 6: "That the quantity actually inflicted on each individual offender may correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into account" (p. 182, sec. XIV). Bentham appears to refer to the list of factors in Chapter 6.
The word quantity above could also be value (p. 183, sec. XVI). If the value of punishment, adjusted for the certainty of punishment, is less than the profit of the offence (as perceived by the offender), the punishment must be increased correspondingly. Based only on this statement, it would seem that Bentham would not oppose setting a punishment to five times that value of the profit if the probability of being caught were 1 in 5. A footnote says that "simple compensation is never looked upon as sufficient punishment for theft or robbery" (p. 183, sec XVI footnote 2).
Bentham now expands on the argument by suggesting that punishment should also include consideration "of such other offences of the same sort as the offender is likely to have already committed without detection" (emphasis in original; p. 183, sec XVI). Bentham called this a "random mode of calculation" (p. 183, sec XVI), but defended it anyway.
Rule 7: "To enable the value of the punishment to outweigh that of the profit of the offence, it must be increased, in point of magnitude, in proportion as it falls short in point of certainty" (p. 184, sec XVIII).
Rule 8: "Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity" (p. 184, sec XIX). In other words, if a punishment is delivered many years after the crime, the punishment should be increased above what it would be if the punishment were delivered immediately. Perhaps Bentham was referring to the expected proximity of punishment, as mentioned earlier (see p. 183, sec. XVI).
Rule 9: "Where the act is conclusively indicative of a habit, such an increase must be given to the punishment as may enable it to outweigh the profit not only of the individual offence, but of such other like offences as are likely to have been committed with impunity by the same offender" (p. 184, sec XX).
Rule 10: "When a punishment, which in point of quality is particularly well calculated to answer its intention, cannot exist in less than a certain quantity, it may sometimes be of use, for the sake of employing it, to stretch a little beyond that quantity which, on the other accounts, would be strictly necessary" (p. 184, sec XXII).
Rule 11: "In particular, this may sometimes be the case, where the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson" (p. 184, sec XXIII). A footnote says that it might be good to persuade the public to avoid the habits that lead to the mischief.
Rule 12: "In adjusting the quantum of punishment, the circumstances, by which all punishment may be rendered unprofitable, ought to be attended to" (p. 185, sec. XXIV).
Rule 13: "Among provisions designed to perfect the proportion between punishments and offences, if any occur, which, by their own particular good effects, would not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted" (p. 185, sec. XXIV). In other words, if adding new laws would add confusion due to excessive detail, do not adopt them.
Bentham notes a criticism of his theories: gross ignorance lacks concern for laws and passion does not calculate (p. 187, sec. XXVIII). Bentham's reply is that when pain or pleasure is in the highest degree, people calculate (p. 187-188, sec. XXVIII).
Chapter 15: Of the Properties to Be Given to a Lot of Punishment
The previous chapter addressed the rules for formulating punishment for offenses. This chapter identifies properties of punishment that should be considered by legislators who formulate punishment.
Property 1: variability. If a rule is going to be consistent with the rules from the previous chapter, the corresponding punishment (for a category of offence) must have variability (i.e., the quantity or quality must be adjustable to suit the punishment; p. 189-190, sec. II).
Property 2: equability. Punishment must also have equability; which is variation to account for the circumstances of an offence (p. 190, sec. III).
Property 3: commensurability. The degree of punishment should correspond to the degree of the offense. Banishment can be ineffective as punishment if the offender does not care about staying in or leaving the place (p. 191, sec. IV). Serious offenses should have greater punishment than lesser punishments (p. 191, sec. V). To make lesser punishments commensurable with greater punishments for greater offenses, the greater punishment can be the sum of punishments for lesser offenses (p. 192, sec. VI).
Property 4: characteristicalness. Punishment cannot be effective when it is not in the mind of the offender. One way to facilitate this association is to make the punishment similar to the offence in some way (p. 192, sec. VII). If the analogy between crime and punishment is its characteristicalness, and is strongest when they have the exact same nature (p. 192-193, sec. VII). This is retaliation.
Apparent punishment is that which is in the mind of the offender, and it does all the work of prevention while the real punishment does the mischief (p. 193, sec. IX). Adding real punishment for a crime can increase the apparent punishment, but if a less expensive means can be employed, it should be used. In such a case, additional real punishment is needless.
Property: exemplarity. A punishment is exemplary if the appearance of the punishment (as opposed to the corresponding real punishment) is important (p. 194, sec. X). Punishments with analogy to the offence are exemplary.
Property 6: frugality. If a mode of punishment produces needless pain, it is unfrugal, otherwise it is frugal (p. 194, sec. XI). A punishment of optimal frugality produces no superfluous pain while producing some benefit for others (p. 194, sec. X).
Both exemplarity and frugality reduce the ratio of real suffering to to apparent suffering, and exemplarity tends to increase apparent suffering while reducing the real (p. 195, sec. XIII).
Lesser properties: The four purposes of punishment (from the top of Chapter 8) lead to properties of punishment: example, reformation, disablement, and compensation (p. 195, sec. XIV).
Property 7: subserviencey to reformation. Punishments that invalidate the motive of a crime exhibit subservience to reformation (they help to reform the offender to reduce the chance of recidivism).
Property 8: efficacy with respect to disablement. Sometimes the need to disable a person from committing an offence also disables that person in other ways (p. 196, sec. XVIII). This property stands in opposition to frugality. The death penalty is an example of this type (p. 196, sec. XIX).
Property 9: subserviency to compensation. Perhaps this refers to the degree to which the punishment provides compensation to the victim.
Property 10: popularity. Some punishment are unpopular meaning that the general public opposes the use of the punishment (p. 198, sec. XXII). A good punishment would have an absence of unpopularity.
Property 11: remissibility. Sometimes a punishment is assigned but the accused is later found not guilty (p. 199-200, sec. XXV). If the punishment can be remitted (cancelled) to minimize harm. Whippings, mutilation, and capital punishment cannot be remitted if the convicted person is later found to be innocent. Remissibility also allows for a change in the sentence due to good behavior (p. 200, sec. XXV).
No punishment exemplifies all of these properties (p. 201, sec. XXVI).
Chapter 16: Division of Offenses
This is a long chapter that enumerates categories of offenses that are presumably relevant for determination of punishment. Benthams's summary at the end of the chapter (starting p. 296, sec. LVI) reviews his justification for categorizing offenses according to his method and then lists the main classes of offenses. The review here will be address only the main classes and subcategories of offenses.
It is important to distinguish between acts that are offenses from those that might be offenses (p. 204, sec. I). In a footnote, Bentham argues that the only way to gain complete knowledge of something is to divide it into parcels that facilitate distinction between groups. He called this bipartition, meaning that the whole is divided into two parts, then those parts are divided into two parts, and so on until the thing has been adequately described (p. 204, sec. I, footnote 1).
The principle of utility as applied to the community should be the only basis for declaring what is an offence (p. 205, sec. I-II), and this implies that an act must adversely affect members of the community to be considered an offense (p. 205, sec. III-IV).
Bentham begins his outline of the chapter by providing brief descriptions of the five classes of offenses that will be examined in detail in this chapter. The first class of offense is acts against individuals (p. 205, sec. VI). The second class is semi-public offenses, which is characterized by adverse effects on the community where the effect is vaguely shared among all members of the community or some subset of those members (p. 206, sec. VII). The third class is self-regarding offenses, meaning that the act affects only the actor (p. 206, sec. VIII). The fourth class is public offenses that affect everyone in the community (p. 207, sec. IX). The fifth and final class is called multiform because of their multiple effects. Specific examples of this type would be offenses of falsehood (e.g., fraud) and offenses against trust (p. 208, sec. X).
Further divisions of the first class of offense (offenses against individuals) include acts against the (physical) person, against property, reputation, condition, person and property, and person and reputation (p. 208-210, sec. XI). Offenses of condition include those related to one's status as husband or wife, parent or child, master or servant, and the like (p. 210, sec. XI).
Divisions of the second class of offense (offenses against the semi-public) include danger, in which a threat looms over all even if nobody is directly harmed in the present (p. 211, sec. XII). When the danger effects actual offenses, they are considered calamities.
Divisions of the third class of offense (offenses against the self) are similar to those of the first class, but are not of much trouble to the legislator (p. 213, sec. XV).
Divisions of the fourth class of offence (offenses against the public) are more complex than the previous ones. They include offenses against
- external security,
- crime prevention,
- public force,
- positive increases of the national felicity,
- public wealth,
- national wealth,
- religion, and
- national interests (p. 213-214, sec. XVII)
Offenses against external security are those that might induce hostilities from foreign powers (p. 218, sec. XVII).
The managers of punishment do not always observe offenses, but religion can lead people to believe in a power that does not have the same deficiencies that human criminal enforcers have (p. 219-220, sec. XVIII). Belief in this power is thought to be either necessary or useful. To diminish or misapply this power of influence is a crime against religion (p. 219-220, sec. XVIII).
Divisions of the fifth class of offence (multiform offences) are offenses of falsehood or trust. Offenses of falsehood include lies, forgery, impersonation, perjury (p. 221, sec. XX). Offenses against trust affect the exercise of a power or a right (p. 223-224, sec. XXV). A person might be invested with the power of a trustee and its corresponding duties (p. 225-226, sec. XXV). In some cases, the public is the beneficiary of trusts (p. 228, XXVI).
Offenses against condition are those that adversely affect certain types of relations, such as master and servant and husband and wife (p. 232, sec. XXVI). An example is that a person who is bound with an obligation to be a land steward would be negligent for withholding services (p. 233, sec. XXVI).
Offenses against trust can affect trust itself or the consequences of trust (p. 234, sec. XXVII). These offenses can be
Chapter 17: Of the Limits of the Penal Branch of Jurisprudence
This is the final chapter of the book. Perhaps the most significant contributions of this chapter are its discussion of personal ethics versus legislation and its discussion of animal rights in an extended footnote.
The first section describes distinctions between private ethics and legislation. The two main branches of legislation are civil and penal (criminal; p. 309, sec. I). The creation of a complete law requires understanding of the parts of a law and the procedures that connect them p. 309, sec. I).
The discussion that leads to private ethics begins as follows: "Ethics at large may be defined, the art of directing men's actions to the production of the greatest possible quantity of happiness, on the part of those whose interests is in view" (p. 310, sec I). When these ethics are applied to one's self, they are called self-government or private ethics."
Things affected by human actions "are of two sorts: 1. Other human beings who are styled persons. 2. Other animals, which, on account of their interests having been neglected by the insensibility of the ancient jurists, stand degraded into the class of things" (p. 310 sec. IV). Directing behavior according the principle of utility is called legislation when the measures are permanent and administration when they are otherwise (such as guiding daily behaviors or processes; p. 311, sec. IV).
The long footnote in section IV addresses ethical consideration of animals, and is widely cited. The footnote begins with the suggestion that Hindu and Muslim religions have made some comment on the interests of animals and asks why there has not been universal consideration of the matter. His answer is that existing laws are based on mutual fear. There is no reason why humans have not considered the interests of animals. If being eaten were the only consideration, then humans should be able to eat all they want because humans benefit and animals are no worse off because they otherwise would have died worse deaths in the wild. Animals do not suffer from fear of future misery. Humans should also be allowed to kill animals that molest us because we suffer from their actions and "the are never the worse for being dead" (p. 311 footnote). Bentham now asks if there is any reason for humans to torment animals. In considering this point, Bentham says
The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may come one day to be recognised, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. (p. 311 footnote)
Bentham also argues in the footnote that intelligence should not be a criteria for moral consideration because dogs and horses are more rational than infants. "The question is not, Can they reason? nor, Can they talk?" but, Can they suffer?" (p. 311 footnote).
Humans can be considered according to their faculties as either adults or children (p. 311, sec. V). Legislation that is most relevant for children pertains to education.
Happiness of individuals is most affected by how actions affect the self and then by how they affect others, which is an ethical duty to the self (p. 312, sec. VI). The quality of exercising this duty corresponds to prudence. Because happiness depends on those around us, we have duty to others.
Bentham asks about the motives for considering the well-being of others (p. 312--313, sec. VII). The answer is that an adequate basis of motives is consideration of one's own interests, but people will find that they consider the interests of others through processes of sympathy, benevolence, love of amity, and love of reputation (p.313, sec. VII). "Private ethics and the art of legislation go hand in hand" (p. 313, sec. VIII). Individuals should act to benefit the entire community, but legislators should not compel such behavior (P. 314, sec. VIII). Likewise people should seek to abstain from obnoxious behavior, but legislators should not necessarily block every such behavior.
Where is the dividing line between what people should do and what legislators should compel people to do? There are four situations when individual ethics might differ from proper legislation:
- when the punishment would be groundless,
- when punishment would be ineffective,
- when punishment would be unprofitable (too expensive), and
- when punishment would be needless (p. 314, sec. IX).
It is difficult to confine legislators to bounds, but doing so can prevent their many passions and prejudices from leading to improper laws (p. 320, sec. XVI).
Legislators are free from the need to punish people on matters of belief for which a "Being of infinite benevolence" will "punish them with an infinity of torments" (the humorous contradiction might have been intentional here; p. 320-321, sec. XVII). His example is the coercive measures that Louis XIVth used against heretics.
Bentham acknowledges property rights: "Legislation must first determine what things are to be regarded as each man's property, before the general rules of ethics, on this head, can have any particular application (p. 322, sec. XVIII).
Jurisprudence is the specification of what the law is and what it should be (p. 324, sec XXI). International laws deal with transactions between nations.
Open Directory entry for Jeremy Bentham
- ↑ J. Bentham, Introduction to the Principles of Morals and Legislation, Oxford: Claredon 1878 (originally published 1823) [books.google.com]
- ↑ Bentham's view in this regard is subjectivist in that he allows each individual to evaluate his or her own happiness, and it is impartial in that the sentiments of individuals are counted equally. In Chapter 4, Bentham's method of adding the value of each component of an individual's happiness relies on an objectivist assumption that legislators can, quite precisely, evaluate the worth of other people's happiness using a [ratio level of measurement]