Bentham’s Project of Applied Ethics, circa 1780: A Penal Code. Part II: Punishment

While a number of Bentham’s works from around 1780 deal with punishment, the focus here is on the understudied work, The Rationale of Punishment (RP). Section I of this part of the article discusses the history of RP, and its relations to An Introduction to the Principles of Morals and Legislation (IPML). IPML and RP both apply the principle of utility to the design of a system of penal or criminal law, but IPML is more sophisticated philosophically and psychologically. While IPML discusses the design of punishments, RP takes the discussion further, treating at length the advantages and disadvantages of various types of punishment like the death penalty. Both works envision a utilitarian penal code as the penultimate step of the application process. RP in effect applies the principle of utility to penal design in three steps. The first step is discussed in Section II. This involves isolating twelve properties of punishments that are pro tanto desirable, given the principle of utility. Two are discussed in detail. A punishment with ‘characteristicalness’ has some sort of similarity to the criminal act it would respond to. A punishment with ‘exemplarity’ appears to observers to be more painful than it really is. Section III discusses the next step, Bentham’s ‘examinations’ of ten types of punishment. These examinations consider the overall desirability of these types of punishment, given their advantages and disadvantages. Bentham’s examination of ‘laborious punishment’ or compulsory labor is discussed in detail. He considered it the best specific type of punishment. Some weaknesses in Bentham’s reasoning are noted. Section IV discusses how Bentham treats the property of ‘general prevention’ in RP. This is the property of punishment which deters people other than the offender from committing the crime punished. Bentham considered it the most desirable property of punishment, but he had no data on how much crime is prevented by any type of punishment. His psychological form of reasoning about deterrence is described. Section V discusses Bentham’s thinking about how to measure general prevention, and the other benefits and costs of punishment, up until about 1810. He had envisioned government collection of statistics on crime as early as 1778, and by 1810 the earliest data on the deterrent effects of the death penalty were used in parliamentary debates, partly under his influence. In 1798 Bentham sketched a cost/benefit analysis of a policy of policing the roads outside cities, using a form of utilitarian reasoning developed by economists in the latter 20th century. In the appendix an account is given of the penal code manuscripts written c. 1780, noting the extent to which the concepts and claims discussed in both parts of this article influenced Bentham’s design of specific entries of the code.