Bentham and the Utilitarian Calculus

Where two offences come in competition, the punishment for the greater must be sufficient to induce a man to prefer the less. A famous and practical rule: if robbery and murder carry the same penalty, the robber has no reason to spare his victim.

The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules above.

The influence on Indian law

This is the paragraph that makes the chapter more than a European history lesson.

The Indian Penal Code 1860 was drafted by a commission under Thomas Babington Macaulay, who was a utilitarian and worked in close intellectual contact with Bentham's followers. Three features of the Code are directly Benthamite.

Codification itself. Bentham coined the word and campaigned for the replacement of judge-made law by a complete written code, so that every subject could know the law in advance. The Penal Code was the largest realisation of that programme anywhere in the world.

Definition and illustration. The Code defines each offence and then illustrates it, which is Bentham's method for making a law intelligible to those who must obey it.

Graded punishment. Offences are arranged with maxima that rise with the harm done, which is the second and third rules of proportion applied.

The Bharatiya Nyaya Sanhita 2023 carries all three features forward, so the structure an Indian student meets today is still recognisably the utilitarian one.

Criticism

Pleasure and pain cannot actually be measured. The calculus is a metaphor dressed as arithmetic, and no one has ever applied it numerically.

It permits punishing the innocent. If the aggregate happiness would be increased by convicting a person known to be innocent, the theory as stated supplies no objection. This is the standard and serious charge, and the usual reply, that a practice of convicting the innocent would in the long run reduce happiness, is a reply about rules rather than about acts.

It ignores desert. A theory that looks only forward to consequences cannot explain why a punishment should be limited by what the offender deserves.

And the panopticon. Bentham's design for a prison in which every inmate can be observed at all times without knowing when he is watched is his most famous practical proposal, and it has become the standard image of surveillance as a form of power. It shows the direction in which a purely utilitarian penology runs when nothing limits it.

A worked example

A city has a problem with ticketless travel on suburban trains. The fare is thirty rupees, the chance of being checked is one in forty, and the present penalty is a fine of five hundred rupees.

Apply the first rule of proportion. The expected cost of travelling ticketless is one fortieth of five hundred, which is twelve rupees and fifty paise, against a saving of thirty. The punishment is less than sufficient to outweigh the profit, so on Bentham's analysis the offence is worth committing and the rational traveller commits it.

Two ways to fix it. Raise the penalty to above one thousand two hundred rupees, or raise the chance of being checked. Bentham's own preference, and Beccaria's, is the second, because certainty acts on the will more reliably than a distant possibility of a large fine, and because a very large fine on a poor traveller is unprofitable punishment in his sense: it does more harm than the offence.

Now apply the competition rule. Suppose the penalty for ticketless travel were the same as for assaulting a ticket examiner. A traveller caught without a ticket would then have nothing to lose by assaulting the examiner and running. The rule requires that the graver offence carry the heavier penalty precisely so that the offender is given a reason to stop at the lesser.

And apply the four categories. Is the punishment groundless? No, there is a real loss. Inefficacious? No. Unprofitable? A fine of five thousand rupees on a daily wage earner would be. Needless? Partly: automated fare gates prevent the mischief at a cheaper rate, and Bentham would prefer them to any penalty.

Quick revision

• Jeremy Bentham: the greatest happiness of the greatest number; punishment is itself an evil and is justified only to exclude a greater evil.
• Punishment must not be inflicted where it is groundless, inefficacious, unprofitable or needless.
• The felicific calculus: intensity, duration, certainty, propinquity, fecundity, purity, extent.
• Rules of proportion: punishment must outweigh the profit of the offence; greater mischief warrants greater expense; the graver of two competing offences must carry the heavier penalty so the offender prefers the lesser; and punishment must never exceed necessity.
• Indian influence: codification, definition with illustrations, and graded maxima, all carried into the Sanhita.
• Criticism: pleasure and pain are not measurable; the theory as stated permits punishing the innocent; it has no place for desert; and the panopticon shows where an unlimited utilitarian penology leads.

Test yourself

1. State Bentham's four cases in which punishment ought not to be inflicted. Where it is groundless, there being no mischief to prevent; where it is inefficacious, because it cannot act on the will, as with an infant or a person who could not have known; where it is unprofitable, because the pain of the punishment exceeds the harm of the offence; and where it is needless, because the mischief can be prevented at a cheaper rate by other means.

2. What is the competition rule and why does it matter? That where two offences come into competition the punishment for the greater must be sufficient to induce the offender to prefer the lesser. It matters because a penal scheme that punishes robbery and murder alike gives the robber no reason to spare his victim, so the grading of maxima is not merely a matter of desert but a device for limiting harm.

3. Name three features of Indian penal legislation that are directly Benthamite. Codification itself, the replacement of judge-made criminal law by a complete written code knowable in advance; the technique of defining each offence and following the definition with illustrations; and the arrangement of offences with maximum punishments graded by the harm caused. All three survive in the Bharatiya Nyaya Sanhita 2023.