|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.