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“I dreamt the other night that I was the founder of a sect. . . . It was the sect of the utilitarians.
Jeremy Bentham made note of this dream in 1780, when he was in his early thirties. It was a dream that would turn out to be prophetic. Within ten years, he had published An Introduction to the Principles of Morals and Legislation (1789), in which he presented the theory of utilitarianism and outlined its practical application for legislation, judicial procedure, and the reform of the penal code. By the middle of the nineteenth century, through the efforts of his disciples James and John Stuart Mill (James’ son), the effects of the “sect” he had founded were already beginning to be felt. Reform of the English system of law and punishment had begun, making use in part of Bentham’s utilitarian principles. More generally, utilitarianism had come to be accepted as a legitimate system of ethics, to some extent replacing (or, at the very least, being incorporated into) earlier Aristotelian, Christian, and intuitionist systems. And, following the publication of John Stuart Mill’s Utilitarianism (1863), which expanded upon and to some extent modified Bentham’s work, aspects of utilitarian theory were integrated into the theory of political liberalism. To this day, the principles Bentham first developed in his Introduction more than two hundred years ago remain influential. They continue to shape beliefs about crime and punishment; they underlie the practice of “majority rule” that is the basis for selecting public officials and passing legislation; and they are implicitly assumed in most arguments advocating free trade and laissez faire economics. Given the broad extent to which contemporary thinking—moral, political, and economic—is indebted to his work, and given that many moral theorists, political philosophers, and economists still consider themselves “utilitarians,” Bentham is appropriately regarded as one of the great legal reformers as well as the father of one of the most important ethical systems in the modern era.
Born in London in 1748, Jeremy Bentham was something of a child prodigy. At the age of six, he was reading Latin and French. By the time he was seven, he was playing Corelli and Handel violin sonatas. At twelve, he was accepted at Queen’s College, Oxford; and, by fifteen, he had graduated and begun studying law at Lincoln’s Inn. His father, a lawyer himself, wanted Jeremy to enter the legal profession; however, Bentham ultimately chose not to follow his father’s lead. Early on, he determined that the English civil and penal law needed codification and reform, and this became the main preoccupation of his life. With this in view, Bentham turned to writing. An Introduction to the Principles of Morals and Legislation, as well as most of his other work, was an essential part of his project for legal reform. To further this project, he brought together a number of like-minded reformers (including the Mills, father and son) and organized a group that came to be known as the Philosophical Radicals. In 1824, he helped found the Westminster Review as a forum for making public the reformist ideas of the so-called “Radicals.” This publication was to serve for almost 100 years as a counterpoint to the conservative journal Quarterly and the more centrist Edinburgh.
Bentham’s intention, however, was never to confine himself to writing works of abstract philosophy. He hoped that his writing would have practical effects and serve as a catalyst for meaningful social change. Hoping, for example, to remedy the terrible conditions of the English prisons at that time, he and his younger brother Samuel came up with an innovative design for prison construction (1785) called the Panopticon. In addition to providing running water, installing heating units, and generally raising the standard of cleanliness, the design introduced a more effective system of prison management. The cells were built around a central tower, from which the guards could watch the prisoners without being seen themselves. Prisoners would then have to assume that they were always being observed. The intention was that, by conditioning prisoners to regulate their own behavior, their guards would be less likely to maltreat them. The Benthams spent twenty years attempting to have a Panopticon built in England and, though ultimately they were unsuccessful in this attempt, prisons based upon their design have since been built throughout the world, including various places in the United States.
In 1798, in collaboration with a British magistrate named Patrick Colquhoun, Bentham wrote the “Thames Police Bill,” which provided a plan for policing the River Thames and established the first regular police force in England. It remained in place, unchanged, for more than fifty years and was the model for Sir Robert Peel’s original organization of the London police force in 1829. Bentham’s attempts at legal reform also included the compilation of a complete body of laws, which he hoped would minimize the arbitrariness and confusion resulting from the fact that England had an unwritten system of common law rather than a system of statutory law. While he was putting together this compilation (later published as the Constitutional Code), he tried to interest Catherine of Russia and other European leaders in adopting it. Again he was unsuccessful. However, his view that a fair and equitable system of law needed to be codified eventually came to be accepted as the norm. He was still working on this project at the time of his death in 1832.
In spite of his commitment to reform, Bentham did not always make the best use of his substantial rhetorical skills. Although he wrote thousands of pages on a wide range of subjects, the Introduction is the only major theoretical work that he published himself. He was frequently distracted by new projects and therefore habitually left his work unedited and sometimes unfinished. As a very young man, he determined to write a critique of the Commentaries on the Laws of England by William Blackstone, the most prominent English jurist and legal scholar of his era. Since Bentham believed that Blackstone’s legal theory was largely responsible for the poor state of the English legal system, and since he believed that any reform of this system would require a substantive refutation of Blackstone’s theory, this was a project close to his heart. And yet he himself published only a portion of this work (as A Fragment on Government), the remainder being published almost one hundred fifty years later, in 1928. Similarly, his general writings on legal and penal reform, his Book of Fallacies, the Rationale of Judicial Evidence, and his final work, The Constitutional Code, were all completed, edited, and published by others, some even appearing first in French translation.
The original impetus for Bentham’s writing An Introduction to the Principles of Morals and Legislation was to point the way toward a reform of the English system of punishment. It was not intended to be a comprehensive work on the subject either of morality or of legislation. As he says in the preface, the initial draft of the work had a “more limited design . . . that of serving as an introduction to a penal code.” Bentham himself admits that the work is inadequate as an introduction to the principles of morals; since, though it discusses the concepts of pleasure, pain, and human motivation, it fails to consider other important concepts, most notably those of virtue and vice. He also agrees that it is incomplete as an introduction to the principles of legislation, since it excludes any discussion of civil law, focusing as it does almost entirely on the penal law. On the other hand, given that Bentham, in writing his later drafts of the work, saw himself as transforming it from an introduction to a penal code into an introduction to the principles of morals and legislation, it seems clear that he had come to the conclusion that any reform of the system of punishment required first a rethinking of the contemporary view of morality and law. Again as Bentham argues in the preface, any penal code is necessarily subordinate to the civil law that corresponds to it, since punishment is only the means by which the goals of the civil law are accomplished. And the civil law itself can only be established based on a proper understanding of the concepts of right and wrong. The Introduction is, therefore, best read as an effort towards reforming the system of punishment by basing it on a substantively new conception of morality, one that is grounded in, what he calls, the “logic of the will.”
According to Bentham, Aristotle formulated a “logic of the understanding,” describing the rules that direct human thought; but he developed no corresponding rules for the direction of the human will. Following his lead, later philosophers limited themselves to elaboration of Aristotelian rules for the understanding. Bentham felt that, since the correct functioning of the understanding is dependent upon a well regulated will, it is in fact more important to focus on the development of a logic of the will, “the most considerable branch” of which is the science of law. The Introduction is part of Bentham’s contribution to this new science; and, in this respect, Bentham’s view of what was necessary for legal and penal reform was a self-conscious extension of the Enlightenment attempt to make use of Newton’s scientific method within the spheres of morals and politics. Since the object of all legislation is to regulate human behavior, it must be written with an awareness of what factors influence that behavior. A logic of the will is an account of these factors. Similarly, since the primary purpose of any system of punishment is to achieve the ends of legislation, it must be designed in such a way that the punitive measures that are established effectively discourage the specific behavior that the laws are intended to regulate. So, before any comprehensive civil or penal code of laws can be promulgated, some description of human behavior and a corresponding set of moral principles must be outlined and their relation to those legal codes shown.
Bentham believed that earlier systems fail to lay an adequate foundation for the establishment of a legal code for one of two reasons. They misconceive human nature and, as a consequence, impose moral obligations that run counter to the motivations that are the true source of human action and are therefore antithetical to the ways in which human beings actually behave. Such systems are based upon what Bentham calls the “principle of asceticism” and are characterized by an emphasis on the denial of pleasure. They include most, if not all, religious traditions, but also classical moral theories such as stoicism. A legal system using the principle of asceticism as its starting point would likely seek to establish norms of behavior unnatural to the vast majority of people. Punishment for any failure to live up to these norms would, therefore, inevitably be unjust. In this light, the principle of asceticism cannot serve as a useful guide in the lawmaking process.
The vast majority of moral systems, however, fail because, in spite of the fact that they make a pretence of appealing to objective standards of right and wrong, they end up being little more than the expression of the subjective views of their exponents. Bentham argues that such systems are ultimately based on the “principle of sympathy and antipathy,” which is to say, they are in practice reducible to the “principle” that actions are considered right or wrong merely because some moral theorist or lawgiver approves or disapproves of them. The main focus of Bentham’s critique in this case was the eighteenth-century “intuitionists,” who believed that human beings have a moral “sense,” akin to the five bodily senses, that is somehow able to discern moral truths. Bentham felt that it was in principle impossible independently to verify the accuracy of any claims made on the basis of this sense, and that therefore intuitionist moral theory was inescapably subjective. He singles out for special criticism the Third Earl of Shaftesbury (a student of John Locke’s), Francis Hutchinson, and David Hume, among others. Presumably, he would also have placed most classical systems of ethics in this category, not least of all that of Aristotle (of whom Bentham surprisingly makes no mention in this context).
His principal target, however, was most likely his old teacher William Blackstone, whose Commentaries on the Laws of England had been the impetus for Bentham’s own Comment on the Commentaries. Blackstone’s intention was to give a systematic analysis of the English common law, and to justify that system by showing its correlation to his theory of natural law. Because of its thoroughness and the extent of its detail, the Commentaries were immediately influential. But Blackstone presented the work as a scientific study of law; and it was this aspect of the work that alarmed Bentham, not because he was in principle against holding law to a scientific standard. On the contrary, as noted above, Bentham himself was committed to the achievement of this goal. The Commentaries, however, pretended to make use of scientific method in the context of the entirely non-scientific idea of natural law, which was in Bentham’s view a “fictitious entity,” and was therefore in this respect a prototypical example of the principle of sympathy and antipathy. The danger that Bentham saw was that the pseudo-scientific quality of the Commentaries, while giving it the authority of a supposed logical rigor, in fact papered over what was in essence a subjective justification for maintaining the status quo of the English legal system. Blackstone’s Commentaries had the practical consequence of greatly increasing the power of judges and lawyers by giving their subjective interpretations of the common law a scientific gloss. Under these circumstances, any meaningful legal reform was impossible. Bentham felt that such reform did indeed require a scientific analysis of the law, but not one relying on the moral fiction of “natural law.” It needed, rather, to be built upon a moral foundation accurately taking into account the real—and observable—motives underlying human behavior. Only then could the legal system have an element of scientific objectivity, which could serve as the basis for a substantive reform.
One purpose of the Introduction was to provide this moral foundation. It begins with the assertion that “[n]ature has placed mankind under the governance of two sovereign masters, pain and pleasure. . . . 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.” This is the most basic observable “fact” about human behavior. All human beings, Bentham argues, act for the purpose of increasing their own overall happiness—which can most clearly be understood as the presence of pleasure and the absence of pain. This is the principle of utility. To the extent that individuals seek their own happiness instinctively, they are natural utilitarians.
Individuals, however, do not live in isolation; they are invariably members of a community. Such membership requires that some limitations be placed on the lengths to which individuals may pursue their private happiness, since individuals’ conceptions of pleasure and pain vary and since one’s pursuit of happiness frequently conflicts with another’s. The community has an interest in preventing these conflicts, though it must be careful to interfere as little as possible with the pursuits of its members. The realization of this interest may be thought of as constitutive of the public happiness. But the “community” is an abstraction; in Bentham’s terms, it is another “fictitious entity.” As such, it has no independent reality beyond its existence as the sum of all of the individuals that make up that community. So, happiness can be attributed to the public as a whole only when the sum of community members who are happy is greater than the sum who are unhappy. The achievement of this “public happiness” is the primary goal of the community, just as the achievement of private happiness is the primary goal of the individual. The community seeks to accomplish its goal by creating conditions in which the greatest number of its individual members are freely able to pursue their private happiness. This is what Bentham calls the “greatest happiness principle,” or the principle of utility in its public aspect.
The accomplishment of this community goal would clearly be well served if each individual actively sought the happiness of the greatest number. If all members of the community were “beneficent,” there would be fewer conflicts among them and the public happiness would more easily be ensured. Unfortunately, in this respect individuals are not natural utilitarians. They do not necessarily have the public interest in view when they are pursuing their private happiness. The Introduction, however, does not focus on the need to establish a private morality. Bentham’s goal is not to delineate what is necessary to make individuals good or even public-spirited. In fact, the principle of utility in its private aspect is not Bentham’s primary concern. On the contrary, his primary concern is to ensure that the government—in its role as administrator of the system of law and punishment—acts on the basis of the principle of utility in its public aspect, and strives as much as possible to achieve the general happiness of the community. As Bentham puts it, “the happiness of the individuals, of whom a community is composed, that is their pleasures and their security, is the end and the sole end which the legislator ought to have in view.” But, though this may be the legislator’s object in making law, this object cannot be achieved by legislating a “public” conception of happiness. Pleasure and pain are not felt in the same way by all individuals, and it is not the function of the legislator to ensure that they are. His only function is to prevent “mischief,” that is, to discourage actions that in general tend to conflict with the happiness of individuals, by enacting laws that establish an appropriate system of rewards and punishments. In other words, the community must make use of the tools of government—law and punishment—to ensure that private pursuits do not conflict with the general happiness.
The central difficulty in reforming the legal system is, therefore, to discover an “appropriate” system of rewards and punishments—one that will discourage conflict and promote happiness, while taking into consideration man’s natural inclinations and avoiding too great an interference in his attempts to satisfy them. The first principle of Bentham’s system is the assumption that “all punishment is mischief: all punishment in itself is evil,” because ultimately it amounts to nothing more than the infliction of pain. Since the legislator’s purpose is to increase the general happiness, the only justification for punishment is that it contributes to this end by excluding a greater evil than the punishment itself. In this context, Bentham raises questions about the value of punishment that are still being debated today—whether it contributes to the reform of offenders or merely prevents them from committing further crimes; whether it is a kind of retributive justice in relation to the nature of the crime committed; or whether it serves as an example of the consequences that must be suffered by anyone contemplating the commission of a similar crime. The answers to any of these questions, however, can only be determined on the basis of whether or not the specific punishments satisfy the public principle of utility. If they do not result in a greater general happiness, it would be inappropriate to include them as part of a reformed penal code.
The overall tendency of Bentham’s reforms, then, is to limit the extent and severity of punishment. His insistence on the need for such limitations grows out of his basic understanding of human behavior. Criminals, no less than others, are rational actors; and, like everyone else, they calculate the potential pleasures and pains associated with their actions. A proper penal code will establish penalties that are just harsh enough, and no more so, to discourage the prohibited behavior. In the criminal’s calculation, he will weigh the pleasure of the offense against the pain of the sanction, and he will then be less likely to commit the crime. Any increase in the harshness of the punishment, beyond what is necessary to discourage the offense, serves no purpose and is, therefore, arbitrary and inherently unjust. This principle—that the punishments associated with specific infractions of the law should be made proportional to the crimes committed—is central to Bentham’s suggested reforms. And, for similar reasons, any laws that are unenforceable or unnecessary should be excluded from the legal code. He also acknowledged that there might be errors in the enforcement of the law and that, given this possibility, all punishments should be “remissible.” He therefore recommended that the widespread practices of whipping, branding, and mutilation—what today would be called “cruel and unusual” punishment—be abolished. More remarkably, Bentham was an early and vociferous opponent of the death penalty.
Beyond the requirements of proportionality and “frugality” in the system of punishment, the principle of utility made clear to Bentham the need for other equally important reforms. Though, as he argues, all individuals naturally act for the purpose of increasing their pleasure and decreasing their pain, they experience pleasure and pain in different ways, and they do so largely because they have different “sensibilities.” Any given individual’s disposition is influenced, for example, by his health, strength, intelligence, age, sex, social status, education, etc. Such circumstances affect the ways in which he behaves and, by extension, the ways in which he can be expected to behave. Since law by definition is intended to be for general application, all legislation must take into account the fact that individual sensibilities are not uniform. So every law, especially those that make up the penal code, must be justly and equitably applicable both to, say, a young man of sixteen coming from an “at risk” environment, as well as to an adult coming from a more privileged background. On the other hand, Bentham suggests that some laws need to be written with the sensibilities of whole classes of people in mind—singling out for special protection all women, for example, or all minority races.
A reformed legal code need also take into account the circumstances surrounding the commission of any act that has been prohibited. Here, Bentham introduces the general distinction between criminative circumstances on the one hand, which relate to the essence of the offence, and extenuating or aggravating circumstances on the other hand, which either augment or diminish the extent to which an offender should be punished. The law must also consider various other specific factors relating to the mental state of the offender. (1) Was his action intentional or unintentional? If the consequences of his action were the only criminal offense, did he intend these consequences to occur, or did he intend only the action itself? (2) Was he conscious of the various circumstances surrounding his action? Was he aware that certain consequences would result, or did he mistakenly suppose that the consequences would be other than how they turned out? (3) What were the motives that brought about his action? Were they self-serving, or were they beneficent but mistaken? Were they the result of certain aspects of his disposition somehow beyond his control?
Though, today, such questions might seem commonplace, at the time Bentham was writing they were not standard considerations either in the formulation or in the application of the law. By raising these questions in the Introduction, Bentham pointed the way toward a substantive revision of the English legal system—a system that, as it has evolved in the one hundred seventy-five years since Bentham’s death, has come to serve as one of the most important models for the development of systems of law and punishment throughout the modern world.
Bentham has been criticized for advocating hedonism. His emphasis on the dictum that the pursuit of pleasure and the avoidance of pain are the primary forces ruling human behavior, is often taken as an endorsement of the unrestrained gratification of any and all desires, as well as a denial of the higher aspects of man. Others have argued that his “felicific calculus” is impracticable. Though it may be true that individuals calculate how best to achieve their own happiness and governments calculate how best to foster the happiness of the community, it is impossible to assign quantitative values designating the amount of happiness that will result from specific actions, activities, or laws. If so, it would then be equally impossible to determine in any scientific way the greatest happiness of the people.
The most worrisome critique of Bentham’s utilitarianism, however, is that it apparently justifies the mistreatment of minority groups. The greatest happiness principle seems to imply that the happiness of the majority is the decisive factor in the resolution of moral questions and the determination of public policy. The happiness of members of permanent minorities—such as racial and ethnic groups—will invariably be outweighed in any felicific calculus.
There is an element of truth to all of these criticisms (though Bentham’s theory allows for compelling responses to each). On the other hand, most of them rely to a certain extent on a misunderstanding of Bentham’s ultimate object in writing the Introduction—to provide some substantive ground upon which to base a reform of English law. In the end, Bentham was not entirely successful in his attempt to provide a thorough “science of law,” thereby eliminating the subjectivity thought to be inherent in all legal and penal systems. However, he undoubtedly contributed to the establishment of codes of law that more rationally relate legislation and its associated sanctions to the natural sources of human behavior. In this, he achieved his purpose.
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