IV.CRIMINAL LAW
We have now,after a long analysis,reached the point at which the principles can be applied to penal law.The legislator has to discourage certain classes of conduct by annexing 'tutelary motives.'The classes to be suppressed are of course those which diminish happiness.Pursuing the same method,and applying results already reached,we must in the first place consider how the 'mischief of an act'is to be measured.(52)Acts are mischievous as their 'consequences'are mischievous;and the consequences may be 'primary'or 'secondary.'Robbery causes pain to the loser of the money.That is a primary evil.It alarms the holders of money;it suggests the facility of robbery to others;and it weakens the 'tutelary motive'of respect for property.These are secondary evils.The 'secondary'evil may be at times the most important.The non-payment of a tax may do no appreciable harm in a particular case.But its secondary effects in injuring the whole political fabric may be disastrous and fruitful beyond calculation.Bentham proceeds to show carefully how the 'intentions'and 'motives'of the evil-doer are of the greatest importance,especially in determining these secondary consequences,and must therefore be taken into account by the legislator.A homicide may cause the same primary evil,whether accidental or malignant;but accidental homicide may cause no alarm,whereas the intentional and malignant homicide may cause any quantity of alarm and shock to the general sense of security.In this way,therefore,the legislator has again indirectly to take into account the moral quality which is itself dependent upon utility.
I must,however,pass lightly over a very clear and interesting discussion to reach a further point of primary importance to the Utilitarian theory,as to the distinction between the moral and legal spheres.(53)Bentham has now 'made an analysis of evil.'He has,that is,classified the mischiefs produced by conduct,measured simply by their effect upon pleasures or pains,independently of any consideration as to virtue and vice.The next problem is:what conduct should be criminal?--a subject which is virtually discussed in two chapters (xv and xix)'on cases unmeet for punishment'and on 'the limits between Private Ethics and the act of legislation.'We must,of course,follow the one clue to the labyrinth.We must count all the 'lots'of pain and pleasure indifferently.It is clear,on the one hand,that the pains suffered by criminals are far less than the pains which would be suffered were no such sanctions applied.On the other hand,all punishment is an evil,because punishment means pain,and it is therefore only to be inflicted when it excludes greater pain.It must,therefore,not be inflicted when it is 'groundless,''inefficacious,''unprofitable,'or 'needless.''Needless'includes all the cases in which the end may be attained 'as effectually at a cheaper rate.'(54)This applies to all 'dissemination of pernicious principles';for in this case reason and not force is the appropriate remedy.The sword inflicts more pain,and is less efficient than the pen.The argument raises the wider question,What are the true limits of legislative interference?
Bentham,in his last chapter,endeavours to answer this problem.'Private ethics,'he says,and 'legislation'aim at the same end,namely,happiness,and the 'acts with which they are conversant are in great measure the same.'
Why,then,should they have different spheres?Simply because the acts 'are not perfectly and throughout the same.'(55)How,then,are we to draw the line?By following the invariable clue of 'utility.'We simply have to apply an analysis to determine the cases in which punishment does more harm than good.He insists especially upon the cases in which punishment is 'unprofitable';upon such offences as drunkenness and sexual immorality,where the law could only be enforced by a mischievous or impossible system of minute supervision,and such offences as ingratitude or rudeness,where the definition is so vague that the judge could not safely be entrusted with the power to punish.'(56)He endeavours to give a rather more precise distinction by sub-dividing 'ethics in general'into three classes.Duty may be to oneself,that is 'prudence';or to one's neighbour negatively,that is 'probity';or to one's neighbour positively,that is 'benevolence.'(57)Duties of the first class must be left chiefly to the individual,because he is the best judge of his own interest.
Duties of the third class again are generally too vague to be enforced by the legislator,though a man ought perhaps to be punished for failing to help as well as for actually injuring.The second department of ethics,that of 'probity,'is the main field for legislative activity.(58)As a general principle,'private ethics'teach a man how to pursue his own happiness,and the art of legislation how to pursue the greatest happiness of the community.
It must be noticed,for the point is one of importance,that Bentham's purely empirical method draws no definite line.It implies that no definite line can be drawn.It does not suggest that any kind of conduct whatever is outside the proper province of legislator except in so far as the legislative machinery may happen to be inadequate or inappropriate.
Our analysis has now been carried so far that we can proceed to consider the principles by which we should be guided in punishing.What are the desirable properties of a 'lot of punishment'?This occupies two interesting chapters.