Front Page Titles (by Subject) CHAPTER XIV.: REASONS FOR CONSIDERING CERTAIN ACTIONS AS CRIMES. * - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER XIV.: REASONS FOR CONSIDERING CERTAIN ACTIONS AS CRIMES. * - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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REASONS FOR CONSIDERING CERTAIN ACTIONS AS CRIMES.*
We have made an analysis of evil. This analysis shows, that there are certain actions from which there results more evil than good: it is actions of this kind, or, at least, those which have been reputed such, that legislators have prohibited. A prohibited action is what is called a crime: to make these prohibitions respected, it has been necessary to institute punishments.
But is it proper to consider certain actions as crimes? or, in other terms, is it proper to subject them to legal punishments?
What a question! Is not all the world agreed upon it? Is it necessary to prove a recognised truth, a truth so well established in the minds of men?
All the world may be agreed; but upon what is this agreement founded? Ask each one his reasons. You will find a strange diversity of sentiments and principles: you will find it not only among the people, but among the philosophers. Is it lost time to seek for an uniform base of agreement upon so essential an object?
The agreement which exists is only founded upon prejudices; and those prejudices vary according to times and places, according to opinions and customs. I have always been told that such an action was a crime, and I think that it is a crime. Such is the guide of the people, and even of the legislator. But if custom has considered innocent actions as crimes; if it have considered small offences as great ones, and great offences as small ones; if it vary every where, it is clear that it ought to be subjected to a rule, and not be taken as the rule itself. We appeal, then, here to the principle of utility: it confirms the decisions of prejudice wherever they are just; it annuls them wherever they are pernicious.
I suppose myself a stranger to all our present denominations of vice or virtue: I am called to consider human actions only with relation to their good or evil effects. I open two accounts; I place on the side of pure profit all pleasures; I place on the side of loss all pains: I faithfully weigh the interests of all parties; the man whom prejudice brands as vicious; he who is accounted virtuous, are, for the moment, equal before me. I wish to judge the prejudice itself, and to weigh in this new balance all actions, with the intention of forming a catalogue of those which ought to be permitted, and of those which ought to be prohibited.
The operation, which at first appears so complicated, becomes easy, by means of the distinction which we have made between the evil of the first, the second, and the third order.
Have I to examine an act attacking the security of an individual? I compare all the pleasure, or, in other terms, all the profit which arises from this act to its author, with all the evil, or all the loss, which results from it to the party injured. I see at once that the evil of the first order surpasses the good of the first order. But I do not stop there. This action is followed by danger and alarm to society: the evil which was confined at first to a single person, spreads itself over all in the shape of fear. The pleasure resulting from the action is only for one: the pain is for a thousand, for ten thousand, for all. The disproportion, already prodigious, appears almost infinite, if I pass on to the evil of the third order, by considering, that if the act in question were not repressed, there would result from it an universal and durable discouragement, a cessation of labour, and at last the dissolution of society.
I shall consider the strongest desires, those the satisfaction of which is accompanied with the greatest pleasures; and it will be seen that their satisfaction, when it is obtained at the expense of security, is much more fruitful of evil than of good.
1. Let us first take enmity: it is the most fruitful cause of attacks upon honour and the person. I have conceived, it matters not on what account, enmity against you. Passion leads me astray: I insult you, I degrade you, I wound you. The spectacle of your suffering gives me, at least for a time, a feeling of pleasure. But even for this time, can it be believed that the pleasure I feel is equal to the pain you suffer? If even each atom of your pain could be painted in my mind, is it probable that each atom of pleasure which corresponds to it, would appear to me to have the same intensity? and yet there are only some scattered atoms of your sufferings which present themselves to my distracted and troubled imagination: as to you, not one of them can be lost; as to me, the greater part is always dissipated in pure loss. But this pleasure, such as it is, is not slow in letting its natural impurity break out. Humanity, a principle which nothing perhaps can stifle in the most atrocious minds, awakens a secret remorse in mine: fears of all kinds; fear of vengeance, either on your part, or on the part of those connected with you; fear of the public voice; religious fears, if there remain any spark of religion in me: all these fears will soon arise to trouble my security and corrupt my triumph. The passion has faded; the pleasure is destroyed; internal reproach succeeds it. But on your side the suffering still endures, and may have a long duration. It is thus with slight wounds that time can heal: what will it be in those cases in which, from the nature of the injury, the wound is incurable, when the limbs have been cut off, the features disfigured, or the faculties destroyed? Weigh these evils, their intensity, their duration, their consequences; measure all their dimensions, and see how in all senses the pleasure is inferior to the pain.
Let us pass on to the effects of the second order. The news of your misfortune spreads over all minds the poison of fear. Every man who has an enemy, or who may have an enemy, thinks with dread on every thing which can inspire the passion of hatred: among feeble beings, who have so many things for which to envy one another, about which to dispute; whom a thousand little rivalries place without ceasing, in opposition to one another; the spirit of revenge announces a train of endless evils.
Hence, every act of cruelty produced by a passion, of which the principle is in all hearts, and by which every body may suffer, causes an alarm, which will continue until the punishment of the guilty has removed the danger to the side of injustice and enmity. This is a suffering common to all; and we ought not to forget another pain, which results from it, that pain of sympathy which is felt by generous minds on beholding crimes of this nature.
2. If we, secondly, examine those actions which may arise from that imperious motive, from that desire to which nature has confided the perpetuity of the species, and so large a portion of man’s happiness; we shall see, that when it injures personal security, or the domestic condition, the good which results from its satisfaction bears no comparison with the evil to which it gives rise.
I speak here only of that attack which manifestly compromises the security of the person—Rape. It is not proper, by a gross and puerile joke, to deny the existence of this crime, and to diminish the horror of it. Notwithstanding all that may be said in this respect, even those women who are most prodigal of their favours, would not like that a brutal fury should ravish them. But here the magnitude of the alarm renders useless all discussion respecting the primitive evil: whatever may be the case with the actual crime, the possibility of its perpetration will always be an object of dread. The more universal the desire which gives birth to this crime, the greater its alarm and its force. In those times when the laws had not sufficient power to repress it, or manners were not sufficiently regulated to disgrace it, it gave rise to revenges, of which history has preserved some recollection. Whole nations have interested themselves in the quarrel, and hatred has been transmitted from fathers to their sons. It seems that the severe confinement of the Greek women, unknown in the time of Homer, owed its origin to a period of trouble and revolution, in which the feebleness of the laws had multiplied disorders of this kind, and disseminated a general terror.
3. With regard to the motive of cupidity. If we compare the pleasure of acquiring by usurpation, with the pain of losing, the one will not be found an equivalent for the other. But there are cases in which, if it were possible to restrain their effects to evils of the first order, the good would have an incontestible preponderance over the evil. In considering such crimes in this point of view only, no good reason can be assigned for the rigour of the laws. Every thing turns upon the evils of the second order: it is these which give to the action the character of a crime; it is these which render punishment necessary. Suppose, for example, the physical desire has for its object the satisfying of hunger; that a poor man, pressed with want, steals a loaf in the house of a rich man, which perhaps may save his life: can the good which he has done to himself, and the evil he has done to the rich man, be considered equal? The same observation may be applied to less striking examples. Suppose that a man pillages the public funds: he enriches himself, and impoverishes nobody: the wrong he does to individuals reduces itself to impalpable portions. It is not, therefore, on account of the evil of the first order that it is necessary to consider these actions as crimes: it is on account of the evils of the second order.
If the pleasures attached to the satisfaction of desires, so powerful as enmity, lust, and hunger, in opposition to the will of the parties interested, is far from equalling the evils which arise from such satisfaction, the disproportion will appear much greater with regard to less active and powerful motives.
The desire of self-preservation is the only one which still demands a separate consideration.
Suppose this desire regards an evil which the laws themselves would impose upon an individual, it is necessary that this should be for some very pressing reason, such as the necessity of putting in execution the punishments directed by the tribunals; punishments, without which there would be no security, no government. Now, if the desire to escape from this punishment is satisfied, the law is found in this respect struck with impotence. The evil which results from this satisfaction is, then, that which results from the impotence of the laws, or (which amounts to the same thing) the non-existence of all law. But the evil which results from the non-existence of laws is in effect the assemblage of the different evils which laws are established to prevent; that is to say, of all the evils that men are liable to experience from men. A single triumph of this kind on the part of an individual over the laws, is not sufficient to strike the whole system with impotence. Nevertheless, every example of this kind is a symptom of weakness, a step towards destruction. There results from it an evil of the second order: an alarm, a danger at least; and if the laws connive at this evasion, they are in contradiction with their proper ends: for the purpose of avoiding a small evil, they admit another much more than its equivalent.
There remains the case in which an individual repels an evil to which the laws do not wish to expose him. But since they do not wish that he should submit to this evil, they wish that he should not submit to it. To avert this evil is in itself a good. It is possible that, in endeavouring to preserve himself, the individual may cause an evil more than equivalent to this good. The evil which he has caused in his self-defence, is it confined to what was necessary for this object, or has it exceeded it? What relation does the evil done bear to the evil averted? Is it equal? Is it greater? Is it less? Would the evil averted have been susceptible of indemnification, if, instead of being prevented by such costly proceedings, the party had temporarily submitted to it? These are so many questions of fact, which the law ought to take into consideration in establishing regulations in detail, with regard to self-defence. It is a subject which belongs to the penal code; in the examination of the means of justification or extenuation with regard to offences. It is enough to observe here, that in all cases, whatever may be the evil of the first order, all the evil that an individual can do in self-defence, does not produce any alarm, any danger. If the individual be not attacked, and his security compromised, other persons have nothing to fear from him.
[* ]This chapter is inserted from Dumont’s “Traités de Legislation,” Vol. I. ch. ii., in order to complete the exhibition of Bentham’s principles as published in his lifetime.—Ed.