Civil and penal law are inextricably connected in Bentham’s legal theory. 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 (1838–43, III, 203). 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 2011b). 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 (2014) 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. To guide the legislator in proportioning punishments to offences he stipulated thirteen rules or “canons”, such as that the punishment must outweigh the profit of the offence, venture more against a great offence than a small one, punish for each particle of the mischief, and the like (1970, 167–71; see also Bedau, 2004; Draper, 2009). The delineation of such guidelines to protect against “unfrugal” or excessive punishments is indicative of his attempt to be as comprehensive and as exact as possible while attending to practicalities. This is nowhere more apparent than in Bentham’s critical analysis of the death penalty.

Bentham first examined the utility of the death penalty in the 1770s when he delineated the principles of penal law (1838–43, I, 441–50; see also 1970, Ch. XV), and followed this with an unpublished essay in 1809 in which he presented a critique of William Paley’s defence of the death penalty in his Principles of Moral and Political Philosophy (1785), and in particular the use of discretionary pardons (UC cvii, 193–277; Crimmins 1987). A further short essay “On Death-Punishment”, published in 1830, repeats many of the arguments from the first essay (1838–43, I, 525–32). Arguably, Bentham’s utilitarian analysis of the issues raised by the death penalty in the first of these essays stands as the most thoroughgoing examination of the question up to this time (Bedau 1983). 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. Nevertheless, at that time he thought the death penalty might reasonably be maintained for murder with aggravating circumstances and for cases of treason “in which the name of the offender, so long as he lives, may be sufficient to keep a whole nation in a flame” (1970 183). By 1809, however, he abandoned the exceptions and argued that no offence warranted capital punishment (UC cvii. 201).

Primary sources

Bentham’s writings

  • Bentham Manuscripts at University College London (UC followed by box and page/folio no.).
  • 1829–30, Œuvres de Jérémie Bentham, 3 vols., ed. E. Dumont, Bruxelles: Hauman.
  • 1838–43, The Works of Jeremy Bentham, Published under the Superintendence of his Executor, John Bowring, 11 vols., Edinburgh: William Tait.
  • 1840, Theory of Legislation; by Jeremy Bentham. Translated from the French of Etienne Dumont, by Richard Hildreth, 2 vols., rept. Bristol: Thoemmes Continuum, 2004.
  • 1842, Auto-Icon; or Farther Uses of the Dead to the Living; included in James E. Crimmins, ed., Jeremy Bentham’s Auto-Icon and Related Writings, Bristol: Thoemmes, 2002.
  • 1952–54, Jeremy Bentham’s Economic Writings, 3 vols., ed. W. Stark, London: George Allen & Unwin.
  • 1968–, The Collected Works of Jeremy Bentham, General Editors: J. H. Burns, J. R. Dinwiddy, F. Rosen, T. P. Schofield, London: Athlone Press; Oxford: Clarendon Press, in progress:
    • 1970, An Introduction to the Principles of Morals and Legislation, ed. J. H. Burns and H. L. A. Hart.
    • 1977, A Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns and H. L. A. Hart.
    • 1983, Chrestomathia, ed. M. J. Smith and W. H. Burston.
    • 1983a, Deontology together with A Table of the Springs of Action and the Article on Utilitarianism, ed. A. Goldworth.
    • 1983b, Constitutional Code, vol. 1, ed. F. Rosen and J. H. Burns.
    • 1989, First Principles Preparatory to Constitutional Code, ed. T. P. Schofield.
    • 1990, Securities Against Misrule and other Constitutional Writings for Tripoli and Greece, ed. T. P. Schofield.
    • 1993, Official Aptitude Maximized; Expense Minimized, ed. P. Schofield.
    • 1995, Colonies, Commerce, and Constitutional Law: Rid Yourselves of Ultramaria and other writings on Spain and Spanish America, ed. P. Schofield.
    • 1998,“Legislator of the World”: Writings on Codification, Law, and Education, ed. P. Scholfield and J. Harris.
    • 1999, Political Tactics, ed. M. James, C. Blamires and C. Pease-Watkin.
    • 2001, 2010a, Writings on the Poor Laws, ed. M. Quinn, 2 vols.
    • 2002, Rights, Representation, and Reform: Nonsense upon Stilts and other Writings on the French Revolution, ed. P. Schofield, C. Pease-Watkin and C. Blamires.
    • 2010b, Of the Limits of the Penal Branch of Jurisprudence, ed. P. Schofield.
    • 2011, Church-of-Englandism and its Catechism Examined, ed. J. E. Crimmins and C. Fuller.
    • 2012, On the Liberty of the Press, and Public Discussion, and other Legal and Political Writings for Spain and Portugal, ed. C. Pease-Watkin and P. Schofield..
    • 2013, “Not Paul, But Jesus Part III. Doctrine”, Bentham Project.
    • 2014, Of Sexual Irregularities, and other writings on Sexual Morality, ed. P. Schofield, C. Pease-Watkin, and M. Quinn.
    • 2015, The Book of Fallacies, ed. P. Schofield.
    • 2016a, 2019, Writings on Political Economy, Volume 1: including Defence of Usury; Manual of Political Economy; and Protest against Law Taxes), and Volumes 2: including Supply without Burthen and Proposals Relative to Divers Modes of Supply, ed. M. Quinn, Oxford: Oxford University Press.
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