1.1 Jeremy Bentham
The classic exponent of utilitarianism is Jeremy Bentham, and one of his greatest works lays out a utilitarian justification of legal punishment.[5] For Bentham, the principle of utility is the ground of all moral actions. It is a natural principle that lacks any further ground,[6] and it is not to be questioned: "Systems
[4] For example, René Girard or Hans von Hentig—see chapter 2, Section 3. Girard argues that legal punishment is a functional equivalent of ritual sacrifice and serves as an outlet for violence, an outlet necessary to the survival of society. Von Hentig argues that punishment serves as a means of selection and security.
[5] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; reprinted New York: Hafner Press, 1948). In citing this I refer to Bentham's own chapter/section numbers.
[6] Ibid., ch. 1, section 11.
which attempt to question it deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light."[7] For Bentham, our privileged guide is
that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish happiness of the party whose interest is in question.[8]
Bentham believes that human beings all, implicitly or explicitly, consent to this principle, which calls on each of us to calculate the pleasures and pains that result from an action we contemplate taking:
Gross ignorance, they will say, never troubles itself about laws, and passion does not calculate…. [But] men calculate, some with less exactness, indeed, some with more: but all men calculate. I would not say, that even a madman does not calculate.[9]
Bentham claims that utilitarian calculation underlies not only human actions in general but legal punishment in particular:
The business of government is to promote the happiness of the society, by punishing and rewarding…. In proportion as an act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will be the demand it creates for punishment.[10]
Bentham maintains that the purpose of punishment is to discourage crimes, which he calls acts of "mischief." A crime produces a "primary mischief," which is sustained by an assignable individual or multitude of individuals, and a "secondary mischief," which is the extension of mischief to unassignable
[7] Ibid., ch. 1, section 1.
[8] Ibid., ch. 1, section 2.
[9] Ibid., ch. 14, section 28.
[10] Ibid., ch. 7, section 1.
individuals or to the whole community.[11] If I am robbed, I sustain primary mischief, and so do family members who care about me or rely on me for support. Society sustains secondary mischief by my being robbed, because the level of "danger" and "alarm" have been increased.[12] The "danger" lies in the suggestion to others of the feasibility of robbing. "Alarm" refers to the increased. fear we all suffer from the prospect of being victims of robbery.[13] It is to prevent such mischiefs that we punish. For Bentham, punishment is "an artificial consequence annexed by political authority to an offensive act."[14] We punish in order to augment the total happiness of the community by excluding mischief, which tends to subtract from that happiness.[15]
Punishment is itself a mischief, or evil, since it inflicts pain, and on the principle of utility "it ought only to be admitted in as far as it promises to exclude some greater evil."[16] Punishment does this by reformation, disablement, and compensation, but maily by "example"—by which Bentham means deterrence.[17] Compensation, or the providing of a "pleasure or satisfaction to the party injured," is not the primary purpose of punishing, because "no such pleasure is ever produced by punishment as can be equivalent to the pain."[18] Bentham sees as primary instead the deterrent function of punishment: "Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one."[19] Bentham often appeals to the deterrent effects of punishing, for example, in justifying the practice of not punishing retroactively: we cannot deter by punishing someone for an act
[11] Ibid., ch. 12, section 3.
[12] Ibid., ch. 12, section 5.
[13] Ibid., ch. 12, section 8.
[14] Ibid., ch. 12, section 36.
[15] Ibid., ch. 13, section 1.
[16] Ibid., ch. 13, section 2.
[17] Ibid., ch. 13, section 2; ch. 15, section 14.
[18] Ibid., ch. 13, section 2.
[19] Ibid., ch. 13, section 2, note.
he could not have known was mischievous.[20] Similarly, punishing infants or the insane or intoxicated is not warranted, for they could not be deterred.[21]
Bentham, then, gives what is essentially a deterrence-based justification of the infliction of punishment—we inflict punishment to deter future mischief—that is premised on the more general claim that mischief detracts from our happiness, and the increase of happiness should be the ultimate end of all ethical action.[22] Bentham justifies punishment by showing, not that it servesjustice, but that it promotes the good.[23]
Once he has established that the purpose of punishment is to yield the good by excluding mischief—which is painful and therefore evil—Bentham argues that we should employ punishment in particular cases only when it lives up to this purpose; he uses his account of the principle immanent in the practice to criticize the actual practice when it diverges from the principle. In Bentham's view, we should punish only when the principle of utility warrants punishment. Therefore, he argues, we should not punish where doing so would be groundless for want of mischief to deter; nor where punishing is inefficacious; nor, as we saw above, "where it cannot act so as to prevent the mischief"; nor where punishing is "unprofitable" or "too expensive"; nor where we could stop the mischief in some other, cheaper way.[24]
[20] Cf. ibid., ch. 13, section 7.
[21] Ibid., ch. 13, section 9. H. L. A. Hart has sharply criticized this point: "Plainly it is possible that the actual infliction of punishment on the insane or children may deter normal persons" ("Prolegomenon to the Principles of Punishment," in Stanley Grupp, ed., Theories of Punishment [Bloomington: Indiana University Press, 1971], p. 369).
[22] Bentham defines ethics as "the art of directing men's actions to the production of the greatest possible quantity of happiness" (Introduction , ch. 17, section 2).
[23] "Now, pleasure is in itself a good; nay, even setting aside immunity from pain, the only good; pain is in itself an evil; and, indeed, without exception, the only evil; or else the words good and evil have no meaning" (ibid., ch. 10, section 10).
[24] Ibid., ch. 13, section 3. Bentham infers so many "cases unmeet for punishment" that he runs the risk of undermining his own argument justifying punishment for its deterrent effect. Most modern deterrence theorists emphasize that if punishment is to deter, the potential criminal must be reasonably certain that his crime will be met with punishment. Bentham would have us factor into our calculation so many variables that no person could know for certain whether in the end the action he weighs would be deemed punishable.
Bentham also uses his principle of utility to formulate rules for how we should go about punishing. For example:
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.[25]
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.[26]
Bentham gives utilitarian accounts of aspects of legal punishment usually justified by retributive principles. For example, he says that punishment should share the characteristic of the offense, for in this way it is an analogy and will be efficacious.[27] Retaliation, therefore, "in the few cases in which it is practicable, and not too expensive, will have one great advantage over every other mode of punishment."[28] Bentham thus gives something approaching a utilitarian justification of the lex talionis. Bentham also finds a utilitarian ground for another retributive principle—that we punish in order to express society's moral disapproval of crimes. He suggests that by expressing reprobation for a crime—by using "solemnities"—we can increase the apparent magnitude, without needlessly increasing the cost (level of mischief) of the punishment.[29] Bentham argues, not, as do some retributivists, that we punish in order to condemn; but, rather, that by punishing in a way that expresses
[25] Ibid., ch. 14, section 8.
[26] Ibid., ch. 14, section 10.
[27] Ibid., ch. 15, section 7.
[28] Ibid., ch. 15, section 8.
[29] Ibid., ch. 15, section 9.
condemnation we can achieve our purpose—more total pleasure and less total pain—at a lower cost.
The retributivist may object to Bentham's justificatory project by claiming that Bentham does not really justify punishment—he does not show the justice of the practice; rather, he gives reasons why punishment is good. The retributivist might claim that questions of the good are separate from questions of justice or of what is right, and that before we decide how to obtain what is good we must know how justice or right limits what actions we might take to obtain the good.[30] Some retributivists infer from the utilitarian's emphasis on the good that the utilitarian ignores questions of right, that in principle he justifies the manifest in justice of punishing the innocent if doing so would promote social utility.[31]
Bentham does not argue that we should punish an innocent person, even if doing this would augment the total happiness of the community.[32] But he does argue that we should not punish in cases where this would be inefficacious, or unprofitable, or too expensive,[33] and some retributivists would reply that justice demands that we punish even in such cases. The dispute will remain obscured unless we make the distinction between demanding we punish only for an offense (a "negative retributive principle") and demanding we always punish for an offense (a "positive retributive principle").[34] At one point
[30] A major topic of contemporary moral philosophy is the question of whether the right is prior to the good. Michael Sandel challenges what he takes to be the claim of John Rawls that justice should have absolute priority over all particular conceptions of the good, by arguing that we give up the politics of rights for a politics of the common good. Sandel describes Rawls as a "deontological liberal" in holding to the moral priority of justice (Sandel, Liberalism and the Limits of Justice [Cambridge: Cambridge University Press, 1982], esp. Introduction and ch. 1; cf. John Rawls, A Theory of Justice [Cambridge, Mass.: Harvard University Press, 1971], esp. chs. 1–2.
[31] See chapter 5, section 4.
[32] Bentham says explicitly, if not emphatically, that we punish only in response to "an offensive act" (Introduction , ch. 12, section 36; cf. ch. 15, section 25, and ch. 13, section 3).
[33] Ibid., ch. 13.
[34] Recently such a distinction has been suggested by J. L. Mackie, Persons and Values (Oxford: Clarendon Press, 1985), pp. 207—8. Cf. C. L. Ten, "Positive Retributivism," Social Philosophy and Policy , vol. 7, no. 2 (Spring 1990), pp. 194–208.
Bentham appears implicitly to assent to the positive retributive principle that we must punish for an offense. Bentham writes that the deterrent effect of punishment
depends altogether upon the expectation it raises of similar punishment, in future cases of similar delinquency. But this future punishment, it is evident, must always depend upon detection. If then the want of detection is such as must in general appear too improbable to be reckoned upon, the punishment, though it should be inflicted , may come to be of no use.[35]
Here Bentham argues that punishment would be useless, and therefore by his own principle ought not to be inflicted, in cases in which punishing would not deter future mischief. However, Bentham, in reflecting on such cases, writes, not that we ought not to punish, but, rather, that punishing would be of no use "though it should be inflicted." This might indicate that he recognizes implicitly that there is some ethical demand (based on utility!) for punishing offenses, regardless of the bearing on utility of actually inflicting punishment in these cases. Of course the "should" here is ambiguous in the English of Bentham's time. It may mean "even were it to be inflicted" rather than "it ought to be inflicted," and so I do not think we should make too much of this point. In one other passage, referring to the accidental punishment of a person innocent of an offense, Bentham uses the phrase "justly punished" to describe the punishment deserved by someone guilty of an offense,[36] thus implicitly acknowledging the negative retributive principle that we may punish only those who commit offenses—justice demands this.
Bentham's position seems to be this: we may justly punish only those guilty of a crime. But though some will say justice demands that we punish all who commit crimes, in some cases
[35] Bentham, Introduction , ch. 17, section 13, my emphasis.
[36] Ibid., ch. 15, section 25.
the principle of utility dictates that we should refrain from carrying out the act of punishment.
Bentham did allow that "lots of punishment" are "variable."[37] Perhaps Bentham's response to the retributivist objection that it is unjust not to punish someone who commits an offense would be to say that we should always punish, but where the punishment we would ordinarily prescribe for a particular crime would be too great a mischief to be justified by utility, we should adjust the punishment to a lower level of mischief, thereby satisfying the demands both of retribution and of utility. The problem with this argument is that it is not consistent with Bentham's principle of utility, which insists that we punish only when punishment will be efficacious. By insisting on this point, Bentham stands opposed to the positive retributive principle that we must punish all offenses. But Bentham himself implicitly accepts the weaker negative retributive principle that we must punish only for an offense, and there is some evidence (though weak) that he might recognize implicitly even the stronger principle which he explicitly opposes.