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Utilitarianism and the Punishment of the Innocent: The Origins of a False Doctrine1

Published online by Cambridge University Press:  26 January 2009

F. Rosen
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Abstract

This paper examines the commonplace assertion that utilitarianism allows for and even, at times, requires the punishment of the innocent. It traces the origins of this doctrine to the writings of the British Idealists and the subsequent development of what is called the post-utilitarian paradigm which posits various justifications for punishment such as retribution, deterrence and reform, finds all of them inadequate, and then, with the addition of other ideas, reconciles them. The idea of deterrence is falsely depicted as the utilitarian contribution to the theory of punishment, while deterrence in fact is one of several elements in the utilitarian theory. The mistake comes from ignoring the pain-pleasure dimension of Benthamite utilitarianism and from regarding the principle of utility itself as the sole criterion of action in a ‘top-down’ fashion.

Type
Research Article
Information
Utilitas , Volume 9 , Issue 1 , March 1997 , pp. 23 - 37
Copyright
Copyright © Cambridge University Press 1997

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Footnotes

1

I am indebted to Peter Nicholson and David Raphael for reading a draft of this paper and making valuable detailed comments on it. Geoffrey Thomas and Philip Schofield have made several important suggestions on sources and texts. They are not responsible, however, for the argument developed here. I am also grateful to my colleague, Ted Honderich, for his strong critique of classical utilitarianism at the 1994 ISUS conference in Tokyo. This paper is intended to form the first instalment of a response. An earlier version was read at the SIEU International Conference in Santiago in 1996.

References

2 Although this paper considers punishment, it does not, except in passing, explore the equally perplexing problem of innocence. For a discussion of killing the innocent in war, and the relevance of a ‘punishment model’ of innocence, see Norman, R., Ethics, Killing and War, Cambridge, 1995, pp. 159–206CrossRefGoogle Scholar.

3 Honderich, T., Punishment, The Supposed Justifications, Harmondsworth, 1969, p. 63Google Scholar.

4 Vallentyne, P., ‘Taking Justice Too Seriously’, Utilitas, Vii (1995), 207CrossRefGoogle Scholar.

5 McCloskey, H. J., ‘A Non-Utilitarian Approach to Punishment’, Inquiry, viii (1965), 255Google Scholar.

6 For a lucid account of recent thinking on this issue, see Ten, C. L., Crime, Guilt, and Punishment, A Philosophical Introduction, Oxford, 1987, pp. 13ffGoogle Scholar.

7 Nor was it an issue for Kant, who feared that the guilty would go unpunished or be insufficiently punished with the adoption of utilitarianism rather than that the innocent would be punished. See Kant's Political Writings, ed. Reiss, Hans, Cambridge, 1970, p.155Google Scholar.

8 Cf. Quinton, Anthony, ‘On Punishment’, in The Philosophy of Punishment, ed. Acton, H. B., London, 1969, pp. 55–64Google Scholar; Ten, pp. 14–17.

9 Bentham's, writings on punishment have yet to be fully edited for the new edition of The Collected Works of Jeremy Bentham, ed. Burns, J. H. (1961–1979)Google Scholar, J. R. Dinwiddy (1977–83), F. Rosen (1983–), and P. Schofield (1995–), London and Oxford. But see An Introduction to the Principles of Morals and Legislation, ed Burns, J. H. and Hart, H. L. A. with a New Introduction by Rosen, F., Oxford, 1996Google Scholar; and The Works of Jeremy Bentham, ed. Bowring, J., 11 vols., Edinburgh, 1838–1843Google Scholar, mainly volume 1.

10 The history neglected includes not only the history of theories of punishment but also that of utilitarianism itself. Cf. Smilansky, Saul, ‘Utilitarianism and the “Punishment” of the Innocent: The General Problem’, Analysis, 1 (1990), 256–61CrossRefGoogle Scholar, where utilitarianism is reduced to a primitive kind of ‘cost analysis’.

11 In Principles of Moral and Political Philosophy, first published in 1785, the utilitarian William Paley challenged the traditional legal maxim that ‘it is better that ten guilty persons escape, than that one innocent man should suffer’. His object was to adjust the burden of proof so that fewer guilty persons escaped punishment, but he hastened to add: ‘I do not contend that the life or safety of the meanest subject ought, in any case, to be knowingly sacrificed: no principle of judicature, no end of punishment can ever require that’ Works of William Paley, D.D.…., 5 vols., London, 1819, ii. 27Google Scholar.

12 Bradley, F. H., Ethical Studies, 2nd ed. (first published in 1876), Oxford, 1952, p. 29Google Scholar. See also p. 32n: ‘I was once told of a west-country sportsman who, on starting for the field before the day's work was begun, used regularly to tie up his dogs to a gate and thrash them, and at intervals during the day's sport repeat the nouthētesis [admonishment]. Whether it was wise to correct for no fault is a question for the dog-breaker; but surely no man in his senses would call it punishment. And yet it was good utilitarian punishment. And that is what is meant, when it is said that such punishment is the treating a man like a dog.’ The context of these remarks was a discussion of free will and responsibility and a critique of J. S. Mill's determinism.

13 See Green, T. H., Lectures on the Principles of Political Obligation, Ann Arbor, 1967, pp. 180–205 (‘The Right of the State to Punish’)Google Scholar; Bosanquet, B., Some Suggestions in Ethics, London, 1918, pp. 181–212Google Scholar; The Philosophical Theory of the State, London, 1965Google Scholar (4th edition reprinted), pp. 201–17; McTaggart, J. M. E., Studies in Hegelian Cosmology, Cambridge, 1901, ch. v, pp. 129–50Google Scholar.

14 McTaggart, p. 129.

15 Ibid., p. 133.

16 Bosanquet, , Some Suggestions in Ethics, p. 188Google Scholar.

17 Ibid., p. 189.

18 Ibid., p. 192.

19 Ibid., pp. 197–8.

20 T. H. Green, p. 185 (sect. 183).

21 McTaggart, p. 130.

22 Ibid., p. 131.

23 Ibid., p. 140.

24 Ibid., pp. 144ff.

25 Rashdall, Hastings, The Theory of Good and Evil, 2nd edn., 2vols., London, 1924, i. 289Google Scholar.

26 Bosanquet, , Some Suggestions in Ethics, p. 203Google Scholar.

27 Ibid., pp. 203–4. See also McTaggart, pp. 144–5; T. H. Green, pp. 192, 194–5 (sects. 193, 196).

28 On the ‘pragmatism’ in British Idealist moral and political thought, see Nicholson, Peter P., The Political Philosophy of the British Idealists: Selected Studies, Cambridge, 1990, pp. 185ffGoogle Scholar.

29 See, for example, Crossley, David J., ‘Bradley's Utilitarian Theory of Punishment’, Ethics, lxxxvi (1975–1976), 200–13Google Scholar. For a subtle and thoughtful essay on Bradley and punishment, see also Johnson, Peter, ‘Bradley and the Nature of Punishment’, The Philosophy of F. H. Bradley, ed. Manser, A. and Stock, G., Oxford, 1984, pp. 99–116Google Scholar.

30 Ewing, A. C., The Morality of Punishment with Some Suggestions for a General Theory of Ethics, London, 1929Google Scholar.

31 Much of Bentham's work on the theory of punishment was done in the 1770s, though published later by Dumont, Etienne in French editions, e.g., Traités de législation civile et pénale, 3 vols., Paris, 1802Google Scholar; and Théorie des peines et des récompenses, 2 vols., Paris, 1811Google Scholar. The exception is, of course, An Introduction to the Principles of Morals and Legislation, which was printed in 1780 and published in 1789. That Ewing saw his own work as a successor to that of Bentham is clear from his original plan to entitle the book, The Morality of Punishment and Reward, reflecting Bentham's belief that punishment and reward should be considered together. See Ewing, P. vii and Bentham's, Théorie des peines et des récompenses, translated by Smith, R. as The Rationale of Reward, London, 1825 andGoogle ScholarThe Rationale of Punishment, London, 1830Google Scholar. Although Ewing's The Morality of Punishment contains a major chapter on reward with numerous references to Bentham, the main focus was on punishment and the title was adjusted accordingly.

32 See chapters 2–4 and 6 of Honderich, pp. 22–107, 148–89.

33 See the introduction, bibliography and the articles collected in The Philosophy of Punishment, ed. H. B. Acton.

34 Ewing, p. 5.

35 Ibid., p. 6.

36 Ibid., p. 161.

37 See An Introduction to the Principles of Morals and Legislation, pp. lxiv–lxviii, 165–74.

38 See Mill, J. S., ‘Whewell on Moral Philosophy’, Essays on Ethics, Religion and Society, ed. Robson, J. M., Toronto, 1969 (Collected Works of John Stuart Mill, vol. 10), p. 173Google Scholar.

39 Ewing, pp. 13–14.

40 Ibid., p. 15.

41 Ibid., pp. 15ff.

42 Ibid., p. 18.

43 Ibid., p. 43.

44 Mabbott, J. D., ‘Punishment’, The Philosophy of Punishment, ed. Acton, H. B., p. 40Google Scholar.

45 Ewing, p. 55.

46 Honderich, p. 11.

47 Ibid., pp. 12–14, 157–8.

48 Ibid., pp. 183–4, 189.

49 Ibid., p. 87.

50 Oxford, 1930. See McCloskey, p. 253.

51 See Ross, pp. 56–7; Ewing, pp. v–vi.

52 See Smart, J. J. C., ‘An Outline of a System of Utilitarian Ethics’, in Smart, J. J. C. and Williams, Bernard, Utilitarianism, for and against, Cambridge, 1973, pp. 69–73CrossRefGoogle Scholar. Smart cites an earlier paper of McCloskey, , ‘A Note on Utilitarian Punishment’, Mind, lxxii (1963), 599CrossRefGoogle Scholar, though he probably had in mind also McCloskey, , ‘An Examination of Restricted Utilitarianism’, Philosophical Review, lxvi (1957), 466–85CrossRefGoogle Scholar.

53 See Barrow, Robin, Utilitarianism, A Contemporary Statement, Aldershot, 1991, pp. 157ffGoogle Scholar.

54 See Ten, pp. 18ff.

55 See Kelly, P. J., Utilitarianism and Distributive Justice, Jeremy Bentham and the Civil Law, Oxford, 1990, pp. 60ffGoogle Scholar.