The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Chapter I: Of the Principle of Utility
• Chapter II: Of Principles Adverse to That of Utility
• Chapter III: Of the Four Sanctions Or Sources of Pain and Pleasure
• Chapter IV: Value of a Lot of Pleasure Or Pain, How to Be Measured
• Chapter V: Pleasures and Pains, Their Kinds
• Chapter VI: Of Circumstances Influencing Sensibility
• Chapter VII: Of Human Actions In General
• Chapter VIII: Of Intentionality
• Chapter IX: Of Consciousness
• Chapter X: Of Motives
• § 1. Different Senses of the Word Motive.1
• § 2. No Motives Either Constantly Good Or Constantly Bad.
• § 3. Catalogue of Motives Corresponding to That of Pleasures and Pains.
• § 4. Order of Pre-eminence Among Motives.
• § 5. Conflict Among Motives.
• Chapter XI: Of Human Dispositions In General
• Chapter XII: Of the Consequences of a Mischievous Act
• §1. Shapes In Which the Mischief of an Act May Show Itself.
• § 2. How Intentionality, &c. May Influence the Mischief of an Act.
• Chapter XIII: Cases Unmeet For Punishment
• § 1. General View of Cases Unmeet For Punishment.
• § 2. Cases In Which Punishment Is Groundless.
• § 3. Cases In Which Punishment Must Be Inefficacious
• § 3. Cases Where Punishment Is Unprofitable.
• § 3. Cases Where Punishment Is Needless.
• Chapter XIV: Of the Proportion Between Punishments and Offences
• Chapter XV: Of the Properties to Be Given to a Lot of Punishment
• Chapter Xvi (sections 1-2): Division of Offences1
• §1. Classes of Offences.
• § 2. Divisions and Sub-divisions.
• Chapter Xvi (sections 3-4): Division of Offences1 (continued)
• § 3. Genera of Class I.
• § 4. Advantages of the Present Method.
• § 5. Characters of the Five Classes
• Chapter XVII: Of the Limits of the Penal Branch of Jurisprudence
• § 1. Limits Between Private Ethics and the Art of Legislation.
• § 2. Jurisprudence, Its Branches.

§ 1. General view of cases unmeet for punishment.

I. The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief.

II. But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.69

III. It is plain, therefore, that in the following cases punishment ought not to be inflicted.

• 1. Where it is groundless: where there is no mischief for it to prevent; the act not being mischievous upon the whole.
• 2. Where it must be inefficacious: where it cannot act so as to prevent the mischief.
• 3. Where it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented.
• 4. Where it is needless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate.

[69.]What follows, relative to the subject of punishment, ought regularly to be preceded by a distinct chapter on the ends of punishment. But having little to say on that particular branch of the subject, which has not been said before, it seemed better, in a work which will at any rate be but too voluminous, to omit this title, reserving it for another, hereafter to be published, intituled The Theory of Punishment.* To the same work I must refer the analysis of the several possible modes of punishment, a particular and minute examination of the nature of each, and of its advantages and disadvantages, and various other disquisitions, which did not seem absolutely necessary to be inserted here. A very few words, however, concerning the ends of punishment, can scarcely be dispensed with.

The immediate principal end of punishment is to control action. This action is either that of the offender, or of others: that of the offender it controls by its influence, either on his will, in which case it is said to operate in the way of reformation; or on his physical power, in which case it is said to operate by disablement: that of others it can influence otherwise than by its influence over their wills, in which case it is said to operate in the way of example. A kind of collateral end, which it has a natural tendency to answer, is that of affording a pleasure or satisfaction to the party injured, where there is one, and, in general, to parties whose ill-will whether on a self-regarding account, or on the account of sympathy or antipathy, has been excited by the offense. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of control) no such pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted to the other purpose, ought, as far as it can be done without expense, to be accommodated to this. Satisfaction thus administered to a party injured, in the shape of a dissocial pleasure,** may be styled a vindictive satisfaction or compensation: as a compensation, administered in the shape of self-regarding profit, or stock of pleasure, may be styled a lucrative one. See B. I. tit. vi. [Compensation]. Example is the most important end of all, in proportion as the number of the persons under temptation to offend is to one.

* This is the work which, from the Author's papers, has since been published by Mr. Dumont in French, in company with The Theory of Reward added to it, for the purpose of mutual illustration. It is in contemplation to publish them both in English, from the Author's manuscripts, with the benefit of any amendments that have been made by Mr. Dumont. [Note to the Edition of 1823.]

** See ch. x. [Motives].