A Brief History of Justice by David Johnston

Author:David Johnston [Johnston, David]
Language: eng
Format: epub
Publisher: Wiley
Published: 2010-11-13T17:00:00+00:00

The laws in general and penal laws in particular should be evaluated “from the point of view of whether or not they conduce to the greatest happiness shared among the greater number.” It is better, Beccaria observes, to prevent crimes than to punish them. “This is the principal goal of all good legislation, which is the art of guiding men to their greatest happiness.”

Jeremy Bentham was the great systematizer of the entire utilitarian approach to legal and institutional reform. Drawing heavily on Hume and acknowledging Beccaria, whose book on penal jurisprudence he called “the first of any account that is uniformly censorial” (in other words, the first book about laws that is critical and evaluative rather than merely expository), Bentham developed a theory that is rigorous and comprehensive and takes as its founding assumption the proposition that the architects, builders, and reformers of a civilized social world should aim to create laws and institutions that will maximize the happiness of its members.

Bentham is famously associated with the principle of utility. In a relatively early work, A Fragment on Government, he asserted that “it is the greatest happiness of the greatest number that is the measure of right and wrong.” In his later works, Bentham modified this formulation significantly, speaking only of the “greatest happiness principle.” Bentham never explained in print the reasons for this change, but it is plausible to surmise that he came to realize that his original statement was ambiguous and therefore lacking in rigor. When told to maximize aggregate happiness as well as to maximize the number of people who are happy, we are left to wonder what to do in cases where these two commands point toward divergent policies. Suppose, for example, the best available way to maximize aggregate happiness is to adopt laws or policies that would make many people extremely happy while making a few miserable, while the best way to distribute happiness to the greatest number of people would not result in maximizing aggregate happiness (perhaps because the happiest people under the latter scheme would not be as happy as they would be under the former). Bentham's initial statement of the principle of utility is flawed because it does not tell us which of these courses of action it entails.

Whatever his reasons for this change, Bentham went on to develop a highly systematic utilitarian theory, which has a great deal to say both about the legal and institutional arrangements that are likely to increase the enjoyment of a society's members – the subject on which Hume and Smith focused – and about reforms of criminal and penal law that could minimize the pain societies inflict on their own.

Bentham's theory is widely caricatured and poorly understood. Before touching on its most essential points, I'd like to dispel a few misconceptions about the theory.

First, although he opens his Introduction to the Principles of Morals and Legislation by asserting:

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.

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