[THE PRINCIPLES OF PUNISHMENT - JEREMY BENTHAM - FROM THE PRINCIPLES OF MORALS AND LEGISLATION]
GOODNESS or badness, then, cannot be predicated of the motive. What is good or bad in the man when actuated by one motive or another is his disposition, or permanent attitude of mind, which is good or bad as tending to produce effects beneficial to the community. It is to be considered in regard to its influence on (1) his own happiness; (2) other people's. The legislator is concerned with it so far as it is mischievous to others. A man is held to be of a mischievous disposition when it is presumed that he inclines to acts which appear to him mischievous. Here it is that 'intentionality' and 'consciousness' come in.
Where the tendency of the act is good and the motive is a social one, a good disposition is indicated; where the tendency is bad and the motive is self-regarding, a bad disposition is indicated. Otherwise, the indication of good or bad disposition may be very dubious or non-existent. Now, our problem is to measure the depravity of a man's disposition, which may be defined as the sum of his intentions. The causes of intentions are motives. The social motives may be called tutelary, as tending to restrain from mischievous intentions; but any motive may become tutelary on occasion. Love of ease, and desire of self-preservation, in the form of fear of punishment, are apt to be tutelary motives.
Now we can see that the strength of a temptation equals the sum of the impelling motives, minus the sum of the tutelary motives. Hence, the more susceptible a man is to the standing tutelary motives, the less likely is he to yield to temptation; in other words, the less depraved is his disposition. Hence, given the strength of the temptation, the mischievousness of the disposition is as the apparent mischievousness of the act. Given the apparent mischievousness of the act, the less the temptation yielded to the greater the depravity of disposition; but the stronger the temptation, the less conclusive is the evidence of depravity. It follows that the penalty should be increased--i.e. the fear of punishment should be artificially intensified, in proportion as, apart from that fear, the temptation is stronger.
WE now come to consequences. The mischief of the act is the sum of its mischievous consequences, primary and secondary. The primary mischief sub-divides into original, i.e. to the sufferer in the first instance; and derivative, to the definite persons who suffer as a direct consequence, whether through their interest, or merely through sympathy.
The secondary mischiefs, affecting not specific persons but the community, are actual danger, or alarm--the apprehension of pain. For the occurrence of the act points to the possibility of its repetition; weakening the influence both of the political and of the moral sanction. An act of which the primary consequences are mischievous may have secondary beneficial consequences which altogether outweight the primary mischief--e.g. the legal punishment of crime. The circumstances influencing the secondary mischiefs of alarm and danger are the intentionality, the consciousness, the motive and the disposition; danger depending on the real, and alarm on the apparent, state of mind, though the real and the apparent coincide more commonly than not.
Between the completely intentional and completely unintentional act there are various stages, depending on the degree of consciousness, as explained above. The excellence of the motive does not obliterate the mischievousness of the act; nor vice versa; but the mischief may be aggravated by a bad motive, as pointing to greater likelihood of repetition.
Punishment, being primarily mischievous, is out of place when groundless, inefficacious, unprofitable, or needless. Punishment is inefficacious when it is ex post facto, or extra-legal, or secret; or in the case of irresponsible (including intoxicated) persons; and also so far as the intention of the act was incomplete, or where the act was actually or practically under compulsion. It is unprofitable when under ordinary circumstances the evils of the punishment outweigh those of the offence. It is needless when the end in view can be as well or better attained otherwise.
NOW, the aim of the legislator is (1) to prevent mischief altogether; (2) to minimise the inclination to do mischief; (3) to make the prevention cheap. Hence (1) the punishment must outweigh the profit of the offence to the doer; (2) the greater the mischief, the greater the expense worth incurring to prevent it; (3) alternative offences which are not equally mischievous, as robbery and robbery with murder, must not be equally punished; (4) the punishment must not be excessive, and therefore should take into account the circumstances influencing sensibility; (5) so also must the weakness of the punishment due to its remoteness, and the impelling force of habit.
The properties of punishment necessary to its adjustment to a particular offence are these: (1) variability in point of quantity, so that it shall be neither excessive nor deficient; (2) equality, so that when applied in equal degree it shall cause equal pain--e.g. banishment may mean much to one man, little to another; (3) commensurability with other punishments; (4) characteristicalness, or appropriateness; (5) exemplarity--it must not seem less than it is in fact; (6) frugality--none of the pain it causes is to be wasted. Minor desirable qualities are (7) subserviency to reformation of character; (8) efficiency in disabling from mischief; (9) subserviency to compensation; (10) popularity, i.e. accordant to common approbation; (11) remissibility.
[DIVISION OF OFFENCES]
AN offence--a punishable act--is constituted such by the community; though it ought not to be an offence unless contrary to utility, it may be so. It is assumed to be a detrimental act; detrimental therefore to some person or persons, whether the offender himself or other assignable persons, or to persons not assignable.
Offences against assignable persons other than the offender form the first class; offences against individuals, or private offences, or private extra-regarding offences. The second class is formed by semi-public offences, i.e. not against assignable individuals, nor the community at large, but a separable group in the community, e.g. a class or a locality. The third class are those which are simply self-regarding; the fourth, against the community at large; the fifth, multiform or heterogeneous, comprising falsehood and breaches of trust.
The first class may be subdivided into offences against (1) the person, (2) reputation, (3) to property, (4) condition--i.e. the serviceableness to the individual or other persons, (5) person and property together, (6) person and reputation.
The second, semi-public, class, being acts which endanger a portion of the community, are those operating through calamity, or of mere delinquency. The latter are subdivided on the same lines as private offences. So with the third or self-regarding class.
In class four, public offences fall under eleven divisions: (1) offences against external security--i.e. from foreign foes; (2) against justice--i.e. the execution of justice; (3) against the preventive branch of police; (4) against the public force--i.e. military control; (5) against increase of national felicity; (6) against public wealth--i.e. the exchequer; (7) against population; (8) against national wealth--i.e. enrichment of the population; (9) against sovereignty; (10) against religion; (11) against national interests in general.
In class five, falsehood comprises simple falsehoods, forgery, personation and perjury; again distributable like the private offences. In the case of trusts, there are two parties--the trustee and the beneficiary. Offences under this head cannot, for various reasons, be conveniently referred to offences against property or condition, which also must be kept separate from each other. As regards the existence of a trust: as against the trustee, offences are (1) wrongful non-investment of trust, and wrongful interception of trust, where the trusteeship is to his benefit; or (2) where it is troublesome, wrongful imposition of trust. Both may similarly be offences against the beneficiary. As regards the exercise of the trust, we have negative breach of trust, positive breach of trust, abuse of trust, disturbance of trust, and bribery.
We may now distribute class one--offences against the individual--into genera; to do so with the other classes would be superfluous. Simple offences against the person are actions referring to his actual person, body or mind, or external objects affecting his happiness. These must take effect either through his will, or not. In the former case, either by constraint, or restraint, confinement, or banishment. In any case the effect will be mortal or not mortal; if not mortal, reparable or irreparable injury when corporal, sufferance when mental. So the list stands--simple and irreparable corporal injuries, simple injurious restraint or constraint, wrongful confinement or banishment, homicide or menacement, actual or apprehended mental injuries.
AGAINST reputation the genera of offences are (1) defamation, (2) vilification. Of offences against property, simple in their effects, whether by breach of trust or otherwise, the genera are: wrongful non-investment, interception, divestment, usurpation, investment of property; wrongful withholding of services, destruction, occupation, or detainment, embezzlement, theft, defraudment, extortion.
Of complex offences against person and reputation together: corporal insults, insulting menacement, seduction, and forcible seduction, simple lascivious injuries. Against person and property together: forcible interception, divestment, usurpation, investment, or destruction of property, forcible occupation of movables, forcible entry, forcible detainment of immovables robbery.
As to offences against condition: conditions are either domestic or civil; domestic relations are either purely natural, purely instituted, or mixed. Of the first, we are concerned only with the marital, parental and filial relations. Under the second head are the relations of master and servant, guardian and ward. In the case of master and servants, the headings of offences are much like those against property. Guardianship is required in the cases of infancy and insanity; again the list of offences is similar. The parental and filial relations, so far as they are affected by institutions, comprise those both of master and servant, and of guardian and ward; so that the offences are correspondent.
The relation of husband and wife also comprises those of master and guardian to servant and ward. But there are further certain reciprocal services which are the subject of the marital contract, by which polygamy and adultery are constituted offences in Christian countries, and also the refusal of conjugal rights.
FROM domestic conditions we pass to civil.
Eliminating all those which can be brought under the categories of trusts and domestic conditions, there remain conditions constituted by beneficial powers over things, beneficial rights to things, rights to services, and by corresponding duties; and between these and property there is no clear line of demarcation, yet we can hit upon some such conditions as separable. Such are rank and profession which entail specific obligations and rights--these are not property but conditions; as distinguished from other exclusive rights bestowed by the law, concerned with saleable articles (e.g. copyright), which convey not conditions, but property. So, naturalisation conveys the conditions of a natural born subject.
Public offences are to be catalogued in a manner similar to private offences.
My object has been to combine intelligibility with precision; technical terms lack the former quality, popular terms the latter. Hence the plan of the foregoing analysis has been to take the logical whole constituted by the sum of possible offences, dissect it in as many directions as were necessary, and carry the process down to the point where each idea could be expressed in current phraseology. Thus it becomes equally applicable to the legal concerns of all countries or systems.
The advantages of this method are: it is convenient for the memory, gives room for general propositions, points out the reason of the law, and is applicable to the laws of all nations. Hence we are able to characterise the five classes of offences. Thus, of private offences, we note that they are primarily against assignable individuals, admit of compensation and retaliation, and so on; of semi-public offences, that they are not against assignable individuals and, with self-regarding offences, admit of neither compensation nor retaliation; a series of generalisations respecting each class can be added.
THE relation between penal jurisprudence and private ethics must be clarified. Both are concerned with the production of happiness. A man's private ethics are concerned with his duty to himself and to his neighbour; prudence, probity and beneficence. Those cases described as unmeet for punishment are all within the ethical, but outside the legislative, sphere, except the 'groundless' cases, which are outside both. The special field of private ethics is among the cases where punishment is 'unprofitable' or 'inefficacious,' notably those which are the concern of prudence. So with the rules of beneficence; but beneficence might well be made compulsory in a greater degree than it is. The special sphere of legislation, however, lies in the field of probity.
A work of jurisprudence is either expository of what the law is, or censorial, showing what it should be. It may relate to either local or universal jurisprudence; but if expository can hardly be more than local. It may be internal, or international; if internal, it may be national or provincial, historical or living; it may be divided into statutory and customary, into civil and penal or criminal.
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