Category Archives: Bentham, Jeremy


from Principles of Penal Law
from Principles of Judicial Procedure


Jeremy Bentham was a philosopher, economist, and legal theorist. Born in London, Bentham is said to have been a precocious child; at as young as three or four years of age, he started to read and study Latin. Bentham entered Queen’s College in 1760 at the age of 12, where he studied law, graduating in 1763. Although he was called to the bar, he showed no inclination towards practicing law. He wrote extensively on legal theory in such works as A Fragment on Government (1776) (in which he criticized Blackstone’s [q.v.] Commentaries), Rationale of Punishment and Rewards (1811), and Defense of Usury (1787). In 1823, he helped to found the Westminster Review in order to promote the principles of the Philosophical Radicals, a group that included such thinkers as James and John Stuart Mill. In all of his many, frequently unfinished writings, Bentham sought to create a simplified, coherent, and humane legal system.

Bentham is today remembered as the defender of the utilitarian principle he first outlined in 1789 in his An Introduction to the Principles of Morals and Legislation. He held that the morality of an action is determined by its utility, and the object of all conduct and legislation should be to assure “the greatest happiness of the greatest number.” According to Bentham, pleasure and pain are the two chief motives that govern mankind, and the role of law is to maintain a just balance between rewards and punishments. Bentham felt that punishment was evil in that it involved pain; he became a pioneer for prison reform and conceived of an ideal prison known as the “Panopticon.” He died in London on June 6, 1832, “surrounded by 70,000 sheets of manuscript on the theory of law and all conceivably related subjects.” Bentham’s embalmed body, dressed in his own clothes and with a wax head, sits in a glass case in the foyer of London’s University College, a school he helped found.

In these excerpts from Principles of Penal Law and Principles of Judicial Procedure, Bentham condemns the current laws regarding the punishment of suicide as illogical and cruel, and hints at some of the conceptual puzzles that the then-current conceptualization of suicide raises.

Jeremy Bentham, Principles of Penal Law, Part II, Book IV, “Vicarious Punishment,” and Principles of Judicial Procedure, Ch. VIII, “Judicial Application,” in John Bowring, ed., The Works of Jeremy Bentham (1838–1843), facsimile edition, New York: Russell & Russell, Inc., 1962, vol. 1, pp. 479-480; vol. 2, p. 41. Quotation in biographical note from Ross Harrison, Bentham, London: Routledge & Kegan Paul, 1983, p. 1.


 Vicarious Punishment

In the English law, the only instance which is to be seen of a case of mis-seated punishment, which is clearly and palpably vicarious, is that of the punishment attached to suicide.  It may perhaps be said, that the man himself is punished as much as the case will admit of; that his body used to be pierced with a stake, that he is still buried with ignominy, and that, with respect to him, every thing that could be done, is done; that this is not found sufficient, and that, as an additional check to the commission of this offence, it is necessary to call in aid the contemplation of the sufferings that his wife and children may endure by his death.  But the effect of this contrivance is obviously very trifling.  The prospect of the pain he shall suffer by continuing to live, affects him more than that of the pain it seems to him they will suffer upon his putting himself to death.  He is more affected, then, with his own happiness than with theirs: the selfish predominate in his mind over the social affections.  But the punishment of forfeiture, that is, the punishment of those relations and friends, can have the effect of preventing his design upon no other supposition than that the social affections are predominant in him over the selfish; that he is more touched by their suffering than by his own: but this is shown by his conduct not to be the case.

Nor is this all: it is not only nugatory as to its declared purpose, but in the highest degree cruel.  When a family has thus been deprived of its head, the law at that moment steps in to deprive them of their means of subsistence.

The answer to this may be, that there is some species of property, which upon this occasion is not forfeited; that the law is not executed; that the jury elude it, by finding the suicide to be insane; and that, moreover, the king has the power of remitting the forfeiture, and of leaving to the widow and orphans the paternal property.

That such is the disposition of juries, and of the sovereign, is undeniable: but is that a reason for preserving in the penal code, a law that it is considered a duty invariably to elude?  And by what means is it eluded?  By perjury; by a declaration made by twelve men, upon oath, that the suicide was deranged in his mind, even in cases in which all the circumstances connected with the case exhibit marks of a deliberate and steady determination.  The consequence is, that every suicide who dies worth any property, is declared to be non compos.  It is only the poorest of the poor, who, after making the same calculation that was made by Cato, and finding the balance on the same side, act accordingly, that are ever found to be in their senses, and their wives and children to be proper victims for the rigour of the law.  The cure for these atrocious absurdities is perjury: perjury is the penance that, at the expense of religion, prevents an outrage on humanity.


Judicial Application

In the case of coroners and coroners’ juries,―as often as suicide is declared the result of insanity, when in fact it is the result of calculation―a calculation by which it is determined, that in what remains of life, if preserved, the quantity of pain will outweigh that of pleasure.  The cases in which the operation is declared not to be the result of insanity are extremely rare.  And then what are they?  Those generally in which a man has left neither property nor friends, by whom his property, if any, at his decease could be shared.  When the confidant of the Holy Alliance, so truly called holy (for what wickedness is equal to that called holiness?) put an end to his life, what he did was, as everybody knows, deliberate.  If suicide is an act of insanity, so is voluntary entering into a military service―so is choosing what appears the least of any two evils.

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