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Bentham and the Death Penalty

Published online by Cambridge University Press:  27 April 2009

Brian Calvert
Brian Calvert
Affiliation:
University of Guelph(retired)
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Abstract

This article examines the three works of Jeremy Bentham on capital punishment dating from 1775, 1809, and 1831. Besides Hugo Bedau's analysis of Bentham's 1775 and 1831 works and James Crimmins's assessment of Bentham's 1809 work, little attention has been paid to his abolitionist arguments on this contentious issue. I review some of the developments in Bentham's position, noting where the later work corrects some deficiencies in the earlier work, and I assess the cogency of the position as it evolves. I concentrate on deterrence and irremissibility, though I also comment on his discussion of popularity in his 1831 address and his 1775 essay.

Type
Articles
Information
Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 45 , Issue 2 , Spring 2006 , pp. 211 - 231
Copyright
Copyright © Canadian Philosophical Association 2006

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References

Notes

1 It might seem unfair that I have omitted to mention the name of Cesare Beccaria, especially since Bentham acknowledges his debt to him. I do not include him for two reasons: Beccaria does not really provide us with a coherent, sustained philosophical defence of his position, and he also thinks that in certain circumstances the use of execution is justified. Unlike Bentham, his opposition is not total.

2 The 1775 material was published in 1838 by Bowring, John as Rationale of PunishmentGoogle Scholar, which Bowring integrated into a larger work, Principles of Penal Law. The 1831 address was published in the same volume as an appendix to the same larger work under the title “On Death Punishment.” For all references to Rationale of Punishment and to “On Death Punishment,” I use the arabic pages and roman column number respectively from the Bowring edition. See Bowring, John, The Works of Jeremy Bentham (New York: Russell & Russell, reprinted in 1962), Vol. 1, 390, i–525, ii and 525, i-532, ii.Google Scholar The 1809 essay, “Law versus Arbitrary Power: A Hatchet for Paley's Net,” which has not yet been published, is stored in the University College London collection of Bentham's writings. In this article, all references to the 1809 essay are to the Box and folio numbers respectively (Box 107/fols.193–277).

3 In some cases, authors have constructed a position on the issue for Bentham as if he had never commented on it directly. See, for example, Brooks, Thom's “Utilitarianism, Capital Punishment and Innocent Person,” Review Journal of Philosophy and Social Science, 27 (2002): 17–32.Google Scholar Brooks speculates that “Bentham might conceivably find capital punishment unprofitable,” and “it is not inconceivable that capital punishment could be found needless by Bentham if it could be shown empirically that execution is no better a deterrent than life imprisonment” (ibid., p. 24).

4 Bedau, Hugo A., “A Utilitarian Critique of the Death Penalty,” in Death Is Different (Boston: Northeastern University Press, 1987), pp. 64–91Google Scholar (originally published in The Journal of Criminal Law and Criminology, 74, 3 [1983]: 873–925).Google Scholar All references to Bedau in this article are to the version reprinted in his book.

5 Crimmins, James E., “‘A Hatchet for Paley's Net’: Bentham on Capital Punishment and Judicial Discretion,” Canadian Journal of Law and Jurisprudence, 1, 1 (1988): 63–74.CrossRefGoogle Scholar Professor Crimmins was kind enough to give me a typescript copy of the 1809 papers which he transcribed from the Bentham Mss. at University College London. I am very grateful to him for doing so.

6 Bentham will pass over one obvious objection that Paley's standard for what counts as “a relatively small number” ignores the very high number of executions for the full range of capital offences. In London alone, there were at least 1,242 hangings between 1703 and 1772. See Linnebaugh, Peter, The London Hanged (London: Allen Lane, Penguin Press, 1991), esp. pp. 91–92.Google Scholar

7 Paley, as cited by Crimmins, in “‘A Hatchet for Paley's Net,’” p. 66.Google Scholar

8 Bentham, as cited by Crimmins, in ibid., p. 67.

9 Ibid., p. 68. The text I have quoted comes from the transcribed papers given to me by Professor Crimmins but includes the addition of the word “greater” in two places, italicized here for the sake of clarity. These words were actually missing in the transcription in the Crimmins article, but, in correspondence, Professor Crimmins has assured me that the two instances of “greater” do indeed appear in the original Bentham manuscripts. As will emerge later during the assessment of Bentham's use of the argument from deterrence, the change is of some importance.

10 Ibid., p. 68.

11 lain Hampsher-Monk has some interesting comments concerning Bentham, 's musings about sinister interests. In his book, A History of Modern Political Thought (Oxford: Blackwell, 1992)Google Scholar, he records Bentham's description of a sinister interest as one, the “tendency of which is to serve a less at the expense of a more extensive interest,” which referred initially to the legal profession. “But,” as Hampsher-Monk notes, “sinister interests widened, as Bentham's perceptions of the power structure of the unreformed constitution became clearer. The church and the nobility were powerful sources of what today would be called ideological control. They stopped people perceiving where their true interests lay, and thus perpetuated ignorance and gave rise to ‘false consciousness’” (ibid., p. 322). In a note on the same page, Hampsher-Monk draws our attention to the fact that Bentham himself actually used the term “false consciousness.”

12 Plans for the Panopticon were not complete until more than a decade after the 1775 proposals. See Panopticon: or the Inspection House, published by Bowring, in The Works of Jeremy Bentham, Vol. 4 (New York: Russell & Russell, reprinted in 1962).Google Scholar

13 Bedau, , “A Utilitarian Critique of the Death Penalty,” p. 86.Google Scholar

14 McCloskey, H. J., “An Examination of Restricted Utilitarianism,” in Contemporary Utilitarianism, edited by Bayles, Michael D. (New York: Anchor, 1968), pp. 117–41, esp. p. 121Google Scholar (originally published in Philosophical Review, 66 [1957]: 466–85).Google Scholar

15 A recent article by Frederick Rosen makes a stronger claim against McCloskey than this. Rosen argues that the example misrepresents Bentham and classical utilitarianism both historically and theoretically. Historically, the formulation of the deterrence principle that is vulnerable to the objection behind McCloskey's example is more accurately attributed to Ewing, A. C.'s The Morality of Punishment (Montclair, NJ: Patterson Smith, 1970)Google Scholar and Rosen claims it has its roots in a post-utilitarian paradigm (Rosen, F., “Utilitarianism and the Punishment of the Innocent: The Origins of a False Doctrine,” Utilitas, 9, 1 [1997]: 23–37, esp. pp. 35–37).CrossRefGoogle Scholar Theoretically, the example misrepresents Bentham's utilitarianism as working from a “top down” model, according to which utilitarians are supposed to begin with a conception of the good in itself. According to Rosen, classical utilitarianism is better described as a “bottom up” theory, “which employs a wide range of secondary principles, including principles of distribution, which are then justified on the grounds of their maximizing happiness” (ibid., pp. 31–33).

16 See Linnebaugh, , The London Hanged, pp. 360–62.Google Scholar

17 The transcript for the trial of “JOHN FRANK otherwise FRANKS, theft: burglary, 12 Jan 1780” is filed as The Proceedings of the Old Bailey, Reference no. t17800112–2. Trial transcripts can be found online at http://www.oldbaileyonline.org. I am grateful to an anonymous referee for noticing a problematic reference to Bentham, Jeremy's “wife”Google Scholar in an earlier draft of this article (Jeremy was a lifelong bachelor), James Crimmins for suggesting the source of Linnebaugh's confusion, and Jonathan Lavery for fact checking and confirming Prof. Crimmins's hypothesis.

18 I wish to thank my friend and former student, Dr. Jonathan Lavery, for helping with this article in its final stages. Thanks also to University of Guelph graduate student, Emily Jaklic, for assistance in the research. I also wish to thank the University of Guelph Department of Philosophy for putting Ms. Jaklic's services at my disposal, and two anonymous referees from this journal for their thoughtful comments.