WorkJeremy Bentham

Principles of Penal Law

Bentham's theory of punishment — an evil justified only when it prevents a greater one — recast in French by Dumont before it ever appeared in English.

by Jeremy Bentham500 passages held

  • English, the original language, and your language
First published
(published posthumously)
Original language
English

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Overview

This is one of the works that exists in English only because a Swiss editor built it in French first. Bentham drafted the material in the 1770s and 1780s and left it in the disordered heaps he was notorious for; Étienne Dumont selected, ordered and translated it, and the penal treatise reached the public inside the Traités de législation civile et pénale of 1802 — a book that sold across Europe and made Bentham's name on the Continent while England still ignored him. The English Principles of Penal Law is a retranslation of that. Its argument treats punishment as an evil in itself, pain deliberately inflicted, which a legislator may impose only where it heads off some greater pain, and never where it would be groundless, needless, unprofitable, or simply unable to work. From that single test Bentham derives rules of proportion: punishment set so that crime never pays, so that of two offences the graver is the more strongly deterred, so that no more suffering is spent than the purpose needs. The approach cut hard against an English code that hanged for petty theft and forgery alike, and it fed the nineteenth-century movements to grade punishments to offences and to clear the gallows of its lesser crimes. Much of what modern penal theory takes for granted about deterrence and proportion stands, by way of Dumont, on this text.

Key concepts

Why does Bentham call punishment an evil?

Because it is pain deliberately inflicted, and pain is an evil whatever its occasion. This is the hinge of the theory: since punishing adds suffering to the world, it can never be good in itself and always needs a justification beyond the crime. The only justification Bentham allows is that it prevents some greater pain; a penalty that fails to do this is simply one evil piled on another.

When ought punishment not be inflicted?

Bentham names four cases. Punishment is groundless where there was no real mischief to prevent; needless where the end could be reached without it; unprofitable where the suffering it causes outweighs the harm it stops; and inefficacious where it cannot influence the will, as with acts done in infancy, insanity, or unavoidable ignorance. In any of these, inflicting it is pure loss and no justice at all.

What is Bentham's rule of proportion?

That punishment be measured to its purpose: enough that crime never pays, so no one profits by offending; heavier for the graver offence, so an offender inclined to either is steered to the lesser; and never more than the end of deterrence requires. Proportion for Bentham is forward-looking, tuned to preventing future harm, rather than backward-looking retribution matched to a crime already done.

What did Bentham object to in English criminal law?

That it hanged for petty theft and forgery as readily as for murder, punishing wildly unlike crimes alike and spending death where it bought no safety. Judged against his test, such a code was largely groundless cruelty. His critique fed the nineteenth-century reforms that graded punishments to offences and cleared the gallows of its lesser crimes, softening one of the harshest penal codes in Europe.

Why does this book exist in French before English?

Bentham drafted the penal material in the 1770s and 1780s and left it in disordered heaps. His editor Étienne Dumont selected, ordered, and translated it, publishing it inside the Traités de législation civile et pénale of 1802, which sold across Europe. The English Principles of Penal Law is a later retranslation of that French version, so Bentham's own words reached English readers second-hand.

Themes of the book

What this book returns to, gathered into themes and ordered by how much of the text each one occupies.

Punishment as an evil to be minimized

If punishment is itself pain deliberately inflicted, when may a state ever impose it? Bentham's answer is narrow: only where it heads off a greater pain, and never otherwise.

Punishment is an evil in itself, pain deliberately inflicted, and so it needs a justification the crime alone cannot give. A legislator may impose it only to prevent some greater pain, and never where it would be groundless, needless, unprofitable, or simply unable to work. That single test rules out whole classes of punishing that an unreflective code hands down. Where suffering would buy nothing, inflicting it is not justice but cruelty wearing the robes of law. The rest of the theory follows from treating penalty as a cost to be justified, not a debt to be paid.

  • utility
  • justice
  • legal reform
  • legal theory
  • criminal justice
  • capital punishment

How much punishment, and no more

Once punishment is admitted, how much is right? Bentham derives rules of proportion so no more suffering is spent than the purpose needs, and the graver crime is the more strongly deterred.

From the test that punishment must prevent a greater evil, Bentham draws rules of measure. Set the penalty so that crime never pays; make the graver of two offences the more strongly deterred, so an offender minded to do either is steered toward the lesser; and never spend more suffering than the end requires. The rules cut hard against an English code that hanged for petty theft and forgery alike, punishing unlike crimes alike. They fed the nineteenth-century movements to grade punishments to offences and to clear the gallows of its lesser crimes.

  • deterrence
  • legislation
  • judicial discretion
  • punishment
  • proportionality
  • public opinion

Within this work

passages held
500
distinct concepts
913
by passages held, corpus-wide
#64

What this book thinks together

Every arc around the wheel is one concept in this book. A ribbon joins two the text reaches for together, and its width is how many of its passages hold both. Strongest: accountability with transparency.
Concept co-occurrence, strongest first 8 concepts, joined by 9 pairings. 33 shared passages in all. 91 weaker pairings reach beyond these concepts and are not drawn.
ConceptPaired conceptShared passages
accountabilitytransparency5
legal theoryutility5
accountabilitygovernance4
evidencejustice4
evidencelegal theory4
governancetransparency3
justiceutility3
legislationtransparency3
accountabilitylegislation2

Works held

The author's work in order, this book marked in place. Your-language title first, the original beneath it where the two differ; side chips show which full texts are held.

  1. 1838 A Fragment on Government

    Bentham's first published book, carved out of a larger unfinished attack on Blackstone; the 1776 debut that brought him to the notice of reformers and set the course of everything he wrote after.

    EN
  2. 1838 An Introduction to the Principles of Morals and Legislation

    The theoretical foundation under all of Bentham's legislative projects, printed in 1780 but withheld until 1789; the penal code it was written to introduce was never completed, and the book outgrew the code it served.

    EN
  3. 1838 Essay on the Influence of Time and Place in Matters of Legislation

    An early essay, written about 1782 and left unpublished, testing his science of legislation against the hard case of colonial Bengal; it reached readers first through Dumont's French edition and only later in English.

    EN
  4. 1838 Essay on the Promulgation of Laws and the Reasons Thereof

    Transmitted to print through Dumont like his other early legislative writing, this short piece insists that publishing a law — together with its reasons — is a condition of its authority rather than a favour to the governed.

    EN
  5. 1838 Principles of Penal Law you are here EN
  6. 1838 Principles of the Civil Code

    The source of Bentham's doctrine that security of expectation outranks the other ends of law, and the civil-law counterpart to his penal theory; published in French by Dumont in 1802 and carried into English only by later retranslation.

    EN
  7. 1839 A Protest Against Law-Taxes

    A short pamphlet provoked by the Irish budget of 1793 — printed that year, published in 1795, extended in 1816 — and one of the political-economy tracts in which Bentham argued that taxing legal proceedings shuts the poor out of the courts.

    EN
  8. 1839 Anarchical Fallacies

    The work in which Bentham's utilitarianism turns to demolish the doctrine of natural, imprescriptible rights; written in the 1790s against the French revolutionary declarations and first published, in French, by Dumont in 1816.

    EN
  9. 1839 Leading Principles of a Constitutional Code for Any State

    A short 1823 statement, published in The Pamphleteer, of the principles behind Bentham's unfinished Constitutional Code; the clearest brief version of the representative democracy his final years argued for.

    EN
  10. 1839 Principles of International Law

    A work his own century treated as utopian: four essays from the late 1780s, printed only after Bentham's death, in which he coined the term "international" and set out an early plan for perpetual peace.

    EN
  11. 1839 Principles of Judicial Procedure with the Outlines of a Procedure Code

    Bentham's theory of how courts should operate, drawn from manuscripts he worked on for over thirty years and published only posthumously; his fullest case against legal technicality and the exclusion of evidence.

    EN
  12. 1839 Tax with Monopoly

    A minor scheme from Bentham's 1794 review of possible taxes, proposing to soften a tax by pairing it with a monopoly; unpublished in his lifetime, like almost all of his political economy.

    EN
  13. 1839 The Book of Fallacies

    Bentham's satirical catalogue of the fallacies used to resist reform, edited from his manuscripts and published in English in 1824 after Dumont's French version of 1816; the most quotable and least systematic of his major works.

    EN
  14. 1840 A Commentary on Mr Humphreys' Real Property Code

    A late sign of Bentham's codifying cause gaining ground: his 1826 Westminster Review response to James Humphreys' proposal to codify English real-property law, welcoming it while pressing it further.

    EN
  15. 1840 A Manual of Political Economy

    Bentham's principal treatise on political economy, written in the 1790s, first printed in the collected Works of 1843, and given an authoritative edition by Werner Stark in the 1950s; the source of his "be quiet" rule for the state.

    EN
  16. 1840 Bentham's Draught for the Organization of Judicial Establishments Compared with the National Assembly

    A rival judicial blueprint Bentham drew up in 1790 against the French Assembly's own reform draft and sent unbidden to Paris; an early mark of his turn toward democracy, and left unfinished.

    EN
  17. 1840 Codification Proposal

    The 1822 pamphlet in which the ageing Bentham offered his services as codifier to any liberal government; it opens his "legislator of the world" years and points toward the unfinished Constitutional Code.

    EN
  18. 1840 Emancipate Your Colonies

    An early argument for shedding colonies that his own age passed over: written in 1793 for the French National Convention, held back while Britain and France were at war, and printed only in 1830.

    EN
  19. 1840 Nomography or the Art of Inditing Laws

    A late unfinished fragment, printed in the posthumous Works, on the craft of drafting legislation — Bentham's catalogue of the faults of legal style and their cures, with an appendix on his own methods.

    EN
  20. 1840 Pannomial Fragments

    The unbuilt goal of Bentham's whole legislative project: fragments, published posthumously, toward the foundations of his Pannomion — the single complete code he projected for decades and never finished.

    EN
  21. 1840 Papers Relative to Codification and Public Instruction

    A collection of Bentham's 1811–15 correspondence with American and Russian authorities, published in 1817; the working papers behind his later Codification Proposal and among the beginnings of the Constitutional Code.

    EN
  22. 1840 Swear Not at All

    Part of Bentham's late assault on the Anglican establishment: an 1817 tract against the swearing of oaths, above all the religious subscription forced on students at Oxford and Cambridge.

    EN
  23. 1841 A Fragment on Ontology

    One of three linked fragments on logic, language and metaphysics that Bentham wrote around 1813–15 and never published; the metaphysical root of his theory of legal fictions and the home of his method of paraphrasis.

    EN
  24. 1841 An Introductory View of the Rationale of Evidence

    A compact case against excluding any relevant testimony — Bentham's own digest of the argument the young J.S. Mill drew out of his manuscripts as the five-volume Rationale of Judicial Evidence (1827).

    EN
  25. 1841 Essay on Language

    Written around 1813–16 with his essays on logic and ontology and unpublished until the posthumous Works; Bentham's attempt at a universal grammar, built on the claim that the sentence, not the word, is the true unit of meaning.

    EN
  26. 1841 Essay on Logic

    One of the linked essays of the mid-1810s, printed only after his death; here Bentham recasts logic as the art of thinking toward a purpose, and it lays bare the classifying method underlying his whole system.

    EN
  27. 1841 Securities Against Misrule Adapted to a Mahommedan State

    Constitutional writings Bentham produced in 1822 for Tripoli, at a Tripolitan reformer's request, adapting his checks on misrule — above all a free press and public opinion — to a Muslim state; printed only after his death.

    EN
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