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| Jeremy Bentham (1747-1832) |
Morals and
jurisprudence are quite a different thing, one might imagine, and
indeed, at least after Kant and his definite separation of the two,
this might well be true. Yet, one must not forget that Kant's division of these disciplines was rooted in a context, in which the
two were thought to be intimately connected. Before Kant, one might read books about
natural law, which was the ground and basis of both jurisprudence and
morals – natural law, ordained by God or reason or nature or all of
them, was an ideal that all civil laws should follow, even though
they might add some more laws to keep the wheels of civil society
running and even though natural law demanded things that no civil
authority had the power to control. Indeed, one might even think that
Kant himself did not distance himself too far from that context,
although he made a far sharper distinction between the two
disciplines than earlier philosophers.
Thus, it is no
wonder then that Bentham wants to introduce at common principle for
both morals and jurisprudence. The two disciplines just have
different fields of application, Bentham says. Juriprudence deals
with behaviour that civil society can control, but when behaviour
exceeds those limits, there's only morals to rely on. Bentham is
especially speaking of punishments, which was the original topic of
the book – if it would be too costly and difficult to apprehend all
people taking part in some behaviour conceived unacceptable, then at
least moralists can speak against it. Morals become then more like an
afterthought or a last minute resort, while the true interest of the
book lies in legislation.
Legislation, Bentham
says, consists usually of two parts. Well, he admits, there's also
the so-called constitution, but this is not clearly important for
Bentham. At best, constitution just states who are the people who
have the authority to enforce law. At worst, it is just a collection
of declarations, which appear to give unrestricted rights to people,
which the later law then restricts – people are born free, but then
law might demand restrictions on some people's liberties.
The mass of the law
consists of expository material and definitions required to
understand what the laws are all about – by copyright is meant this and
that. The core of the law then consists of imperatives – you should
follow the copyright – and for each imperative, there should be a
distinct punishment, Bentham says – if you impeach the copyright,
you shall be fined. The latter statement might be questioned, at
least on some definitions of punishments, because there are laws
denying something, but not assigning any punishments. Such laws
without punishments might still, for instance, give a law enforcer a
right to stop anyone from acting in some manner (cycling around with
a helmet is forbidden in such a sense in Finland).
The bulk of
Bentham's book consists then of divisions of possible ways of
misconduct, which might be forbidden by law. The basic method of
classification for Bentham is founded on the fact, who or what set of
persons bears the bad consequences of misconduct. Bentham suggests
four possibilities: the consequences might affect the person itself,
some other individual, some small set of people or the whole
community.
What is remarkable
in Bentham's division is the fact how little intentionality of the
actions bears on identifying something as misconduct. True, some form
of intentionality is a necessary condition for something being
punishable – a person who drops a stone on the head of a man
walking below accidentally or out of ignorance is not culpable. Yet,
even the inclusion of certain crimes in his classification shows that
intetionality is not a very central concern of Bentham's. For
instance, a person who eats and drinks too much might not have any
intention of hurting oneself, yet, Bentham considers that it still
forms an offence, because one ought to know better and see how bad
the consequences are.
A clear criterion
for taking some action as bad, for Bentham, is then the set of
consequences following from that action. Bentham is here going
especially against theories of natural law, in which good and bad
actions were decided more by their concordance with some law. Bentham
suggests that the real reason guiding these theories is just an
antipathy or sympathy one feels towards some actions – philosophers
speak about natural law, but actually just reveal their own likes and
dislikes. The same criticism appears to go against all deontological
theories, which take goodness and badness to be an intrinsic property
of actions, despite their consequences. Bentham's attitude appears
rather unfair – he doesn't understand what such a theory is all
about, thus, he concludes that it is just an arbitrary decision of
what is good or bad.
We might briefly
consider what Bentham would say to a virtue theory, which bases the
essence of ethics to individual's character instead of actions and
their consequences. Firstly, it is undoubtedly difficult to base a
system of jurisprudence on virtue theory (we don't usually punish
people, because of their characters), and as jurisprudence is far more
interesting topic to Bentham than ethics, he would have little motive
to entertain virtue theory. Furthermore, Bentham appears to think
that character is essentially just a fiction describing the tendency
of a person to act in certain manner, where the tendency is merely a
generalisation out of all past actions of a person.
Bentham is then a
devoted consequentialist, and he considers two species of it: either
one thinks pleasures are to be sought out and pleasures abandoned or
the other way around. The latter principle – the principle of
asceticism – is something Bentham ridicules a lot. It is an apparent
caricature of Stoic and Christian ideals – surely these two do not
aim for pain for its own sake, but for pleasures of a higher sort.
Bentham's preferred
theory is then utilitarianism – the worth of an action is decided
by the pleasure and the pain it engenders. One must say that there
are certain problems in this suggestion, especially when it is
applied to jurisprudence. Bentham appears to say that in
jurisprudence we should particularly look at the consequences of an
action for all citizens of a society. Now, among pleasures and pains
Bentham considers are such emotions like security and fear. If then
the majority will experience fear and anxiety over some plausible
consequences of person's actions, these actions are to be condemned
bad. Then again, if a person does not marry a person of another
gender and beget children – perhaps because she has vowed herself for
abstinence, or perhaps because she would instead want to marry
someone of the same gender – this will make the country weaker on
the long run, because not as many children are born as could be.
Bentham then concludes that sexual relationships incapable of
begetting children and even abstinence are both condemnable, even if
something where the actual punishment must be left for morals.
I find Bentham's
reasoning here somewhat questionable, since its result breaches
certain inalienable rights of human beings, namely, their right to
determine their own sexuality. Of course, Bentham has already said
law shouldn't recognise any inalienable rights, but all things should
be guided by the pleasure of the majority, without any concern for
the welfare of minorities. Admittedly, this is all quite in line with
Bentham's utilitarianism, but this just makes me question, whether
utilitarianism, at least in Bentham's style, is a proper principle of
either ethics or jurisprudence.
