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This does not mean that optimal utility is not the goal, but simply stresses that optimal utility will be more likely achieved where there is an approximate equality in the distribution of the basic requirements of happiness Postema Green forward, argue that calculations of total utility fail to respect the distinctiveness of persons and thereby place their interests at perpetual risk Rawls , 22—27; Nozick , 28—35; see the discussions in Ten , 13—37; Rosen , Chs.
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If deterrence can be achieved by punishing an innocent bystander when the real culprit cannot be caught or brought to justice, then why should the bystander not be punished? Because public utility would be maximised by making an example of an innocent bystander just as much as by punishing the person who was actually guilty of the offence but who has not been apprehended, it seems the utilitarian ought to support the punishment. But this is not only intuitively wrong, it is also wrong because there is a real danger that violations of security would lead to other such violations, with no principled basis to cease inflicting them.
Basic securities must be afforded to each and every member of the community, and violations of these vital interests are not justified, whether they be perpetrated by other individuals or government, since they contravene the distributive elements of utilitarian theory. From early on in his utilitarian theorizing, Bentham understood that the achievement of utilitarian objectives in practice required the translation of the utility principle into elements amenable to implementation in ways that the philosophically abstract principle itself could not be.
Concrete manifestations of happiness, for example, could be found in personal security and reduced crime rates, enhanced health and declining death rates, broader opportunities for education, the reduction of diseases caused by sewage pollution, and so on. This deficiency did not, however, prevent him from developing the theoretical apparatus to direct the formulation of such laws. This was more than the Humean observation that utility is embedded in customary rules that have evolved over time.
Where the jurist detects deficiencies, new rules and precepts must be developed that demonstrably accord with the utility principle. The greatest happiness principle sets the over-arching objective and is the critical standard against which existing practices are to be judged. As such, it stands ever ready to be summoned forth whenever new guidelines are needed, subordinate ends conflict, or existing laws require amendment, refinement, or further elaboration.
However, in practice it is the secondary elements of the theory that do the work of producing beneficial outcomes.
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In this way, they give practical concreteness to the philosophically abstract end of the greatest happiness. The subordinate ends of civil law are security, subsistence, abundance, and equality, in this order of priority. This is entirely consistent with the view that, properly understood, the utility principle entails a presumption in favour of an equal distribution, unless there is compelling empirical evidence that utility would not be served by such a policy. However, he refused to countenance the idea that policies to redistribute wealth at the cost of security would be beneficial either to social prosperity or individual wellbeing.
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Bentham believed that facilitating individuals in the pursuit of their interests in a free market is what government should do, because this is the proven best way to maximise the public good. Where laissez-faire does not produce the best result, however, the legislator must act in other direct and indirect ways to produce the optimal outcome. But radical schemes for property re-distribution are ruled out; the axiomatic requirement that each be treated equally, that the happiness of each be counted, justified policies to equalize the distribution of goods only where this could be achieved without disappointing legitimate expectations.
Just as the primary purpose of civil law is economic security and national prosperity, so it draws powerful support from the protection afforded persons, property and expectations by the threat of punishment —43, III, To this end, utilitarian penal law is framed in terms of the principal objective of deterrence, but it also embraces the secondary ends of disablement, moral reformation, and compensation see Crimmins b. The effectiveness of the theory in practice depends on two additional features: offences must be classified solely on the basis of the harm perpetrated, and there must be an appropriate proportion between crimes and punishments.
It is because of its failure to satisfy the first feature that Bentham rejected the prevailing criminalization of consensual sexual acts, and developed the first systematic defence of sexual liberty in the English language. In settling the required proportions of punishment, Bentham recognised he had burdened the legislator with a vastly complex task—the calculation of the correct quantity and type of pain needed to achieve the desired ends, in particular the objective of deterrence. Bentham first examined the utility of the death penalty in the s when he delineated the principles of penal law —43, I, —50; see also , Ch.
In sum, it is a special application of his utilitarian theory of punishment. The framework of analysis is presented as an objective, neutral exercise, by which the benefits and costs of the death penalty in cases of murder are assessed in comparison with life imprisonment with hard labour. All things considered, Bentham believed the weight of the calculation worked against the death penalty on the grounds of deterrence, the fact that it is inequable in its application, falling mainly on the shoulders of the poor, and because it is a form of punishment that is irremissible in the face of judicial error.
By , however, he abandoned the exceptions and argued that no offence warranted capital punishment UC cvii. Subordinate ends are also evident in the design and management of the panopticon prison: security and economy are foremost, but tempered by humanity and accountability. This view of the panopticon has opened up some interesting lines of discourse on the encroaching methods of control and surveillance in contemporary liberal societies Brunon-Ernst The end of economy determined that the panopticon prison should be a private self-sustaining operation not requiring financial assistance from the public purse.
Security determined that the community be protected from convicted criminals, and severity in punishment was to serve the ends of deterrence and reformation. But security also required that the inmate be protected from cruel treatment, and humanity determined that prisoners should be deprived only of liberty not health or life.
Prisoners were to be kept clean and their labour made productive and profitable, including the development of skills that might be useful to them when released. In support of these objectives, Bentham invoked several devices to effect transparency and accountability in prison government. And, just as the panopticon was to be monitored by the publication of regular reports, so reports of government activity were required to keep the democratic polity informed and facilitate the accountability of public officials.
When Bentham turned his thoughts to constitutional law in earnest in the s, partly inspired by constitution-making in parts of southern Europe, it was with the conviction that all states in which the institutions of representative democracy already existed or in which they could be introduced were fertile soil for the utilitarian pannomion.
The administrative, electoral and legislative details of this project occupied much of the last decade of his life, with its core ideas discussed in the pages of a variety of works in addition to the Code , such as Securities Against Misrule , First Principles Preparatory to Constitutional Code , and Official Aptitude Maximized; Expense Minimized. The subsidiary principles of accountability, efficiency, and economy underpinned the institutional design and procedural operations elaborated in these writings. It is imperative, therefore, to devise mechanisms that will ensure that only by acting in the public interest could they promote their own interests.
Given the extensive powers Bentham envisaged the thirteen ministries of the reformed government would possess—far more power in the areas of public health, education, and relief of the poor and indigent than existed at the time—further safeguards would be required.
Intellectual and active aptitude were to be tested through an examination process, though this would come to naught if the appointed official did not possess the appropriate moral aptitude —43, IX, Other devices designed to ensure, encourage, and test the required aptitude of public officials include: 1 the precise definition of responsibilities attached to each office, against which the actions of officials could be judged by either a superordinate official or the public; 2 the principle of subordination, according to which every official was subordinate to another who could punish him for inefficiency in the performance of his tasks; 3 complete exposure to legal prosecution of all officials for wrong-doing; 4 the elimination of the practice of handing out unwarranted titles of honour to party supporters and other favourites; 5 complete publicity of government business and the elimination of secrecy; and 6 freedom of the press, speech and association see Rosen , Ch.
In the first sense of the term it is seemingly impossible for there to be a law that deliberately functions contrary to the will of the legislature. However, Bentham also held that all political authority, no matter what form it takes, is necessarily limited by its capacity to compel obedience from the people.
And in Of the Limits of the Penal Branch of Jurisprudence he explained that this implies two volitions, both of which are necessary components of a complete theory of sovereignty: on the one hand, the enactments of a legislature and, on the other, the will of the people to obey those enactments. The POT would scrutinize the actions of elected representatives, public and judicial officials, prosecuting charges where they are found remiss in their responsibilities, censoring misrule and imposing penalties when applicable.
In these terms, the POT would be the leading security against the misuse and abuse of power , Vital to the functioning of the POT is the dissemination of information. In the first instance this would require the establishment of a public archive of government actions and activities containing records of law, policy, legislative debate, and statistics, which the government would be constitutionally required to make available to the public by a freedom of information provision in the constitutional code to ensure transparency.
Secondly, it would require an unshackled press to ensure widespread publicity and the freedom to criticize unimpeded by censorship or gagging orders. Here Bentham drew upon his essay On the Liberty of the Press, and Public Discussion to point out the dangers of laws designed to limit these liberties. Bentham did not consider that the effectiveness of the POT as a check on misrule could be undermined by secret government methods to limit the flow of information, nor did it occur to him that a press dominated by the views of one class could subvert the veracity of the information it disseminated.
He pinned his faith on transparency and publicity Postema , Ideally, the public would be adequately informed, and the POT would be constituted by those among the public who were both knowledgeable and concerned about the issues before it. Its judgements could change as new evidence came to light or as new arguments were enunciated, and it could be fragmented or unified in its view in proportion to the variety of individual opinions expressed. During the revolutionary years in France, Dumont fed his ideas into the debates over judicial, legal, penal and legislative reform, and if his proposals had little impact on the social and political improvements undertaken they yet contributed to the direction of French liberalism Champs It was from this platform that Bentham was able to promote himself as a potential codifier of the laws in countries near and far.
Despite the herculean efforts of Dumont, however, his ideas received a mixed reception in France see Champs , Ch. On the other hand, self-interest and the utility principle was rejected by Germaine de Stael as an impoverished grounding for moral duty, and rejected by other reformers such as Benjamin Constant who grounded their liberalism on natural rights. Earlier, in , Bentham had counselled the French National Convention to divest itself of its colonies on the grounds of their disutility though the text Emancipate Your Colonies! Santander, who was more inclined to resist the influence of the Catholic Church, restored it to the curriculum of the universities when he became President of the newly constituted state of Colombia in A year later he published in Greek A General Theory of Administrative Systems and especially of the Parliamentary One, Accompanied by a Short Treatise on Justices of the Peace and Juries in England , containing a defense of representative government and advocating a judicial system based on utilitarian principles, replete with references to Bentham Peonidis David Hoffman first introduced utilitarian ideas into legal education in America at the University of Maryland in the early s.
The reviews paid particular attention to the systematic presentation of the theory of civil law, which also impressed itself on the teaching of law in the newly independent states of South America, where property rights were a matter of considerable importance in the aftermath of the collapse of the Spanish and Portuguese empires. Thomas Cooper, who left England for the United States in with Joseph Priestley, from whom he initially derived his utilitarianism, was a confirmed Benthamite by the s and the intended recipient of writings Bentham entrusted to John Quincy Adams.
Thereafter Cooper employed utilitarian principles in his writings on law and political economy, most notably in Lectures on the Elements of Political Economy Edward Livingston, the famous author of codes of law for Louisiana, corresponded with Bentham, who sent him books for his research. Inspired by Bentham, Vale was in favour of humane penal laws that proportioned penalties to the objective of deterrence and an advocate of state intervention to alter the social circumstances that fostered crime.
Mill, and Henry Sidgwick. Throughout the following century his influence continued to be felt, particular in discussions of moral and legal philosophy and economic theory and practice. In he was hired to tutor J. Mill in Roman law, began attending meetings of the Utilitarian Society established by the younger Mill in , and in was appointed to the Chair of Jurisprudence at the newly founded University of London, where he was the first in England to introduce utilitarian ideas into legal education.
Around this time, however, partly in response to the challenge of T. Though, like Bentham, an advocate of representative democracy based on universal suffrage, Mill also made several proposals to temper the potential excesses of unconstrained majoritarian institutions. However, he also developed the theory of diminishing marginal utility, furnishing the legislator with a conceptual tool by which to address the uneven distribution of social happiness. The collectivist conclusions Bentham drew from this principle were modest in scope, but later reformist economists like W.
Jevons , impressed by the idea that social utility could be calculated based on the aggregate of individual interests, developed the theory in the direction of modern welfare economics. Reform-minded liberals such as J. Hobson and L. Constant preferred the prescriptions of natural law as the philosophical basis for government.
Jeremy Bentham (Stanford Encyclopedia of Philosophy)
Other critics, like the Whig reformers James Mackintosh and T. As the 19 th century wore on assailants came forth from all points across the philosophical spectrum. XXIV, sect. Sundry religionists, including those of a philosophical bent like the classicist J. Mayor, intuitionists like William Whewell, and idealists like Green, F. Bradley, Bernard Bosanquet and D. Ritchie combined to attack its atomism, crude materialism, narrowly construed theory of motivation, and lack of appreciation of the spiritual dimension of the human condition.
Like J. Mill, the Pragmatists also dismissed the idea that any single form of the summum bonum could account for the many goods that people seek James , — There have been many critics of Bentham since. Schofield provides an overview of some new directions in Bentham studies, including in the arts and literary studies.
Many of these commentaries have been inspired by the publication of the authoritative volumes in The Collected Works of Jeremy Bentham that began appearing in to replace the poorly edited and incomplete Bowring edition — At the time of writing, 33 of the projected 80 volumes have been published. As new volumes appear the topics of discussion and debate will continue to increase, burnishing the reputation of a philosopher whose ideas remain relevant in a great number of areas of interest to moralists, psychologists, economists, historians, legal and political philosophers.
Michael Quinn and David Lieberman, generous and wise colleagues, gave careful attention to an earlier draft of this article and I am greatly indebted to them for the important improvements they recommended.
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Life and Writings 2. Philosophical Foundations 3. Pains and Pleasures 3. Later Improvements 4.