Keith Burgess-Jackson

Jeremy Bentham (1748-1832) on Natural Law

Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial?—Sometimes one thing, sometimes another: they seem hardly to have settled the matter with themselves. A defect this to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom, which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be. Montesquieu sets out upon the censorial plan: but long before the conclusion, as if he had forgot his first design, he throws off the censor, and puts on the antiquarian. The Marquis Beccaria's book, the first of any account that is uniformly censorial, concludes as it sets out with penal jurisprudence.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 17, sec. 27, p. 298, n. a2 [italics in original; footnotes omitted] [book first published in 1789])

Jeremy Bentham (1748-1832) on Jurisprudence

Jurisprudence is a fictitious entity: nor can any meaning be found for the word, but by placing it in company with some word that shall be significative of a real entity. To know what is meant by jurisprudence, we must know, for example, what is meant by a book of jurisprudence. A book of jurisprudence can have but one or the other of two objects: 1. To ascertain what the law is: 2. to ascertain what it ought to be. In the former case it may be styled a book of expository jurisprudence; in the latter, a book of censorial jurisprudence: or, in other words, a book on the art of legislation.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 17, sec. 21, pp. 293-4 [italics in original; footnote omitted] [book first published in 1789])

Note from KBJ: Bentham's terminology, here as in so many other places, did not catch on. Today, jurisprudence is divided into two types: positive (Bentham's "expository") and normative (Bentham's "censorial"). A positive theory of rape, for example, is an attempt to reconstruct the law of rape. Its aim is elucidation. A normative theory of rape is an attempt to change the law of rape. Its aim is transformation. In pithier language, a positive theory of X is an attempt to get X right, whereas a normative theory of X is an attempt to set X right. Before criticizing a theory, you should take pains to understand what sort of theory it is. Several years ago, I published an essay entitled "A Theory of Rape." In it, I proposed to reconceive rape as coercion (rather than, say, as the absence of consent). At least two philosophers, Antony Duff and David Archard, mistook my theory for a positive theory, which means their criticisms missed the mark. Duff, for example, said in a review of my book (of which my essay was but one chapter) that I was "wrong." I explained to him that I can't be wrong if I'm not trying to be right. Either he did not grasp the point, in which case his intelligence is called into question, or he was hell-bent on saying bad things about me, in which case his moral character is called into question. I suspect the latter.

Jeremy Bentham (1748-1832) on Enforced Beneficence

A woman's head-dress catches fire: water is at hand: a man, instead of assisting to quench the fire, looks on, and laughs at it. A drunken man, falling with his face downwards into a puddle, is in danger of suffocation: lifting his head a little on one side would save him: another man sees this and lets him lie. A quantity of gunpowder lies scattered about a room: a man is going into it with a lighted candle: another knowing this, lets him go in without warning. Who is there that in any of these cases would think punishment misapplied?

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 17, sec. 19, note u, p. 293 [book first published in 1789])

Note from KBJ: Who is there? Me!—at least if Bentham is talking about legal punishment. The law has no business coercing people into doing good (which includes, but is not limited to, preventing harm). Its authority is limited to coercing people into not doing harm. See the difference?

Jeremy Bentham (1748-1832) on Private Ethics

To conclude this section, let us recapitulate and bring to a point the difference between private ethics, considered as an art or science, on the one hand, and that branch of jurisprudence which contains the art or science of legislation, on the other. Private ethics teaches how each man may dispose himself to pursue the course most conducive to his own happiness, by means of such motives as offer of themselves: the art of legislation (which may be considered as one branch of the science of jurisprudence) teaches how a multitude of men, composing a community, may be disposed to pursue that course which upon the whole is the most conducive to the happiness of the whole community, by means of motives to be applied by the legislator.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 17, sec. 20, p. 293 [book first published in 1789])

Jeremy Bentham (1748-1832) on Domestic Relations

Two persons, who by any means stand engaged to live together, can never live together long, but one of them will choose that some act or other should be done, which the other will choose should not be done. When this is the case, how is the competition to be decided? Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certain means of deciding it but physical power: which indeed is the very means by which family, as well as other competitions, must have been decided long before any such office as that of legislator had existence. This then being the order of things which the legislator finds established by nature, how should he do better than to acquiesce in it? The persons who by the infiuence of causes that prevail every where, stand engaged to live together, are, 1. Parent and child, during the infancy of the latter: 2. Man and wife: 3. Children of the same parents. Parent and child, by necessity: since, if the child did not live with the parent (or with somebody standing in the place of the parent) it could not live at all: husband and wife, by a choice approaching to necessity: children of the same parents, by the necessity of their living each of them with the parents. As between parent and child, the necessity there is of a power on the part of the parent for the preservation of the child supersedes all farther reasoning. As between man and wife, that necessity does not subsist. The only reason that applies to this case is, the necessity of putting an end to competition. The man would have the meat roasted, the woman boiled: shall they both fast till the judge comes in to dress it for them? The woman would have the child dressed in green; the man, in blue: shall the child be naked till the judge comes in to clothe it? This affords a reason for giving a power to one or other of the parties: but it affords none for giving the power to the one rather than to the other. How then shall the legislator determine? Supposing it equally easy to give it to either, let him look ever so long for a reason why he should give it to the one rather than to the other, and he may look in vain. But how does the matter stand already? for there were men and wives (or, what comes to the same thing, male and female living together as man and wife) before there were legislators. Looking round him then, he finds almost every where the male the stronger of the two; and therefore possessing already, by purely physical means, that power which he is thinking of bestowing on one of them by means of law. How then can he do so well as by placing the legal power in the same hands which are beyond comparison the more likely to be in possession of the physical? in this way, few transgressions, and few calls for punishment: in the other way, perpetual transgressions, and perpetual calls for punishment. Solon is said to have transferred the same idea to the distribution of state powers. Here then was generalization: here was the work of genius. But in the disposal of domestic power, every legislator, without any effort of genius, has been a Solon. So much for reasons: add to which, in point of motives, that legislators seem all to have been of the male sex, down to the days of Catherine. I speak here of those who frame laws, not of those who touch them with a sceptre.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 16, sec. 40, pp. 237-8, n. x3 [italics in original; footnotes omitted] [book first published in 1789])

Note from KBJ: Bentham is making an efficiency argument for domestic patriarchy. Does it not also apply to political patriarchy?

Jeremy Bentham (1748-1832) on the Evil of Punishment

The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief.

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

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 13, secs. 1-2, p. 158 [footnote omitted] [book first published in 1789])

Note from KBJ: Bentham viewed punishment as intrinsically bad, and therefore in need of justification. Retributivists disagree, saying that deserved punishment is intrinsically good, and therefore in no need of justification.

Jeremy Bentham (1748-1832) on Punishment

The consequences we have hitherto been speaking of, are the natural consequences, of which the act, and the other articles we have been considering, are the causes: consequences that result from the behaviour of the individual, who is the offending agent, without the interference of political authority. We now come to speak of punishment: which, in the sense in which it is here considered, is an artificial consequence, annexed by political authority to an offensive act, in one instance; in the view of putting a stop to the production of events similar to the obnoxious part of its natural consequences, in other instances.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 12, sec. 36, pp. 156-7 [italics in original] [book first published in 1789])

Note from KBJ: Bentham's utilitarian aim is to make it rational for individuals to engage in utility-maximizing behavior. Suppose I am tempted to commit a certain crime. The state threatens me with punishment if I proceed. When I take this artificial cost of my conduct into account, it will turn out that it is not in my interest (after all) to commit the crime. The job of a legislator is to set the punishment in the right place. It should be just sufficient to deter.

Jeremy Bentham (1748-1832) on Fanaticism

If a man happen to take it into his head to assassinate with his own hands, or with the sword of justice, those whom he calls heretics, that is, people who think, or perhaps only speak, differently upon a subject which neither party understands, he will be as much inclined to do this at one time as at another. Fanaticism never sleeps: it is never glutted: it is never stopped by philanthropy; for it makes a merit of trampling on philanthropy: it is never stopped by conscience; for it has pressed conscience into its service. Avarice, lust, and vengeance, have piety, benevolence, honour; fanaticism has nothing to oppose it.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 12, sec. 34, p. 156, n. r [book first published in 1789])

Note from KBJ: Bentham here describes the psychology of terrorism.

Jeremy Bentham (1748-1832) on Do-Gooders

Now it has been shown, that there is no sort of motive by which a man may not be prompted to engage in acts that are of a mischievous nature; that is, which may not come to act in the capacity of a seducing motive. It has been shown, on the other hand, that there are some motives which are remarkably less likely to operate in this way than others. It has also been shown, that the least likely of all is that of benevolence or good-will: the most common tendency of which, it has been shown, is to act in the character of a tutelary motive. It has also been shown, that even when by accident it acts in one way in the character of a seducing motive, still in another way it acts in the opposite character of a tutelary one. The motive of good-will, in as far as it respects the interests of one set of persons, may prompt a man to engage in acts which are productive of mischief to another and more extensive set: but this is only because his good-will is imperfect and confined: not taking into contemplation the interests of all the persons whose interests are at stake. The same motive, were the affection it issued from more enlarged, would operate effectually, in the character of a constraining motive, against that very act to which, by the supposition, it gives birth. This same sort of motive may therefore, without any real contradiction or deviation from truth, be ranked in the number of standing tutelary motives, notwithstanding the occasions in which it may act at the same time in the character of a seducing one.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 11, sec. 31, p. 135 [book first published in 1789])

Note from KBJ: Progressives are do-gooders. Think of all the progressive policies that are well-intended but in fact make things worse: the minimum wage; rent control; affirmative action; opposition to corporal punishment in the home and in schools; opposition to torture; no-fault divorce; and so on. Benevolence is not enough, for, as Bentham observes, it can generate maleficent (or at least nonbeneficent) actions. Progressives think that it's the thought (i.e., the motive) that counts. They're wrong. The road to hell is paved with good intentions.

Jeremy Bentham (1748-1832) on Justice

Sometimes, in order the better to conceal the cheat (from their own eyes doubtless as well as from others) they set up a phantom of their own, which they call Justice: whose dictates are to modify (which being explained, means to oppose) the dictates of benevolence. But justice, in the only sense in which it has a meaning, is an imaginary personage, feigned for the convenience of discourse, whose dictates are the dictates of utility, applied to certain particular cases. Justice, then, is nothing more than an imaginary instrument, employed to forward on certain occasions, and by certain means, the purposes of benevolence. The dictates of justice are nothing more than a part of the dictates of benevolence, which, on certain occasions, are applied to certain subjects; to wit, to certain actions.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 10, sec. 4, p. 120, n. b2 [book first published in 1789])

Note from KBJ: Bentham, like John Stuart Mill after him, denied that justice is an independent principle or virtue. The only relevant consideration in a distribution of benefits or burdens is how much utility (i.e., pleasure) it produces. That the distribution is equal is neither here nor there. That the distribution is in accordance with desert is neither here nor there. Utilitarians view their theory as simple. Most others view it as simplistic.

Note 2 from KBJ: If you click the image, you will see Bentham's stuffed body (known as the Auto-Icon) in a wooden cabinet at the University of London. The head on the body is fake. Bentham's actual head, now shrunken and blackened, lies between his legs. Bentham stipulated in his will that his body be stuffed and displayed in this manner. The idea, apparently, was to inspire future generations. Are you inspired?

Jeremy Bentham (1748-1832) on Intrinsic Wrongness

So much with regard to acts considered in themselves: we come now to speak of the circumstances with which they may have been accompanied. These must necessarily be taken into the account before any thing can be determined relative to the consequences. What the consequences of an act may be upon the whole can never otherwise be ascertained: it can never be known whether it is beneficial, or indifferent, or mischievous. In some circumstances even to kill a man may be a beneficial act: in others, to set food before him may be a pernicious one.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 7, sec. 21, p. 79 [italics in original] [book first published in 1789])

Note from KBJ: To a consequentialist such as Bentham, only consequences matter, morally. That an act is of a certain type, such as lying, torturing, or killing an innocent human being, is irrelevant. An act of each type can be right or wrong, depending on whether its consequences are best. Deontologists reject this approach. They hold that certain types of act are intrinsically wrong, i.e., wrong independently of their consequences. You can see why consequentialism has been the theory of choice for tyrants. The end justifies the means. In other words, no means are ruled out. If genocide is necessary to bring about socialist utopia, then genocide is right.

Jeremy Bentham (1748-1832) on Government

The business of government is to promote the happiness of the society, by punishing and rewarding. That part of its business which consists in punishing, is more particularly the subject of penal law. 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. What happiness consists of we have already seen: enjoyment of pleasures, security from pains.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 7, sec. 1, p. 74 [book first published in 1789])

Jeremy Bentham (1748-1832) on the Influence of Climate

Among the external circumstances by which the influence of education is modified, the principal are those which come under the head of climate. This circumstance places itself in front, and demands a separate denomination, not merely on account of the magnitude of its influence, but also on account of its being conspicuous to every body, and of its applying indiscriminately to great numbers at a time. This circumstance depends for its essence upon the situation of that part of the earth which is in question, with respect to the course taken by the whole planet in its revolution round the sun: but for its influence it depends upon the condition of the bodies which compose the earth's surface at that part, principally upon the quantities of sensible heat at different periods, and upon the density, and purity, and dryness or moisture of the circumambient air. Of the so often mentioned primary circumstances, there are few of which the production is not influenced by this secondary one; partly by its manifest effects upon the body; partly by its less perceptible effects upon the mind. In hot climates men's health is apt to be more precarious than in cold: their strength and hardiness less: their vigour, firmness, and steadiness of mind less: and thence indirectly their quantity of knowledge: the bent of their inclinations different: most remarkably so in respect of their superior propensity to sexual enjoyments, and in respect of the earliness of the period at which that propensity begins to manifest itself: their sensibilities of all kinds more intense: their habitual occupations savouring more of sloth than of activity: their radical frame of body less strong, probably, and less hardy: their radical frame of mind less vigorous, less firm, less steady.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 6, sec. 39, p. 67 [italics in original] [book first published in 1789])

Jeremy Bentham (1748-1832) on Sexual Difference

Among such of the primitive modifications of the corporeal frame as may appear to influence the quantum and bias of sensibility, the most obvious and conspicuous are those which constitute the sex. In point of quantity, the sensibility of the female sex appears in general to be greater than that of the male. The health of the female is more delicate than that of the male: in point of strength and hardiness of body, in point of quantity and quality of knowledge, in point of strength of intellectual powers, and firmness of mind, she is commonly inferior: moral, religious, sympathetic, and antipathetic sensibility are commonly stronger in her than in the male. The quality of her knowledge, and the bent of her inclinations, are commonly in many respects different. Her moral biases are also, in certain respects, remarkably different: chastity, modesty, and delicacy, for instance, are prized more than courage in a woman: courage, more than any of those qualities, in a man. The religious biases in the two sexes are not apt to be remarkably different; except that the female is rather more inclined than the male to superstition; that is, to observances not dictated by the principle of utility; a difference that may be pretty well accounted for by some of the before-mentioned circumstances. Her sympathetic biases are in many respects different: for her own offspring all their lives long, and for children in general while young, her affection is commonly stronger than that of the male. Her affections are apt to be less enlarged: seldom expanding themselves so much as to take in the welfare of her country in general, much less that of mankind, or the whole sensitive creation: seldom embracing any extensive class or division, even of her own countrymen, unless it be in virtue of her sympathy for some particular individuals that belong to it. In general, her antipathetic, as well as sympathetic biases, are apt to be less conformable to the principle of utility than those of the male; owing chiefly to some deficiency in point of knowledge, discernment, and comprehension. Her habitual occupations of the amusing kind are apt to be in many respects different from those of the male. With regard to her connexions in the way of sympathy, there can be no difference. In point of pecuniary circumstances, according to the customs of perhaps all countries, she is in general less independent.

(Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart, in The Collected Works of Jeremy Bentham, ed. F. Rosen and Philip Schofield [Oxford: Clarendon Press, 1996], chap. 6, sec. 35, pp. 64-5 [italics in original] [book first published in 1789])

Note from KBJ: I can't think of a single female utilitarian, past or present. Bentham explains why.