Bentham on the classification of evils, cases unmeet for punishment, and morals and legislation

1. The classification of evils

An evil, for Bentham, is pain or the cause of pain. To judge how bad an act is, and how much the law should do about it, the legislator must trace all its painful consequences, not only those felt by the immediate victim. Bentham divides the evil of a harmful act into three orders.

• Evil of the first order (primary evil) is the harm suffered by assignable individuals. It is original where it falls on the person directly injured (the man robbed loses his money), and derivative where it falls on others connected with him by interest or sympathy (his family, his creditors).
• Evil of the second order (secondary evil) spreads through the community at large. It has two branches: alarm, the pain of apprehension felt by others who learn of the act and fear the same may happen to them; and danger, the real probability that the act will be repeated, by the same offender or by others encouraged by his example, especially if he goes unpunished.
• Evil of the third order arises when the alarm becomes so great and lasting that it produces discouragement and inactivity: people stop working, saving and trading because they no longer feel secure in the fruits of their labour. Industry declines and the whole society is poorer.

Bentham applies the same analysis to good: a beneficial act produces good of the first order for those directly benefited and good of the second order through the confidence and example it spreads.

Why it matters. The classification explains why the State, and not only the victim, has an interest in punishing crime. A theft that causes the owner a small loss may still cause great evil of the second order, because many people feel less secure; punishment is justified chiefly to prevent that secondary evil. It also explains why offences against security of property are treated seriously, and why the legislator ranks offences by the alarm and danger they create as well as by the harm to the victim.

2. Punishment and the cases unmeet for punishment

All punishment is in itself an evil. On the principle of utility it ought to be admitted only in so far as it promises to exclude some greater evil. Bentham lists the cases in which punishment ought not to be inflicted:

• groundless — where there is no mischief to prevent, the act not being harmful on the whole (for example, where the person affected consented);
• inefficacious — where it cannot act so as to prevent the mischief, as with a law not made known, or applied to an infant, an insane person, or one acting under irresistible compulsion;
• unprofitable or too expensive — where the mischief it would produce is greater than the mischief it would prevent; and
• needless — where the mischief can be prevented, or cease of itself, without it, for instance by instruction or persuasion.

The parallel with Indian criminal law is clear. The general exceptions in the Bharatiya Nyaya Sanhita, 2023 for acts of children, persons of unsound mind and acts done under compulsion or with consent reflect the “inefficacious” and “groundless” cases; the Probation of Offenders Act, 1958 and community service under section 4(f) of the Sanhita reflect the idea that harsher punishment can be needless or unprofitable.

3. The distinction between morals and legislation

Bentham does not oppose morals to law. Both have the same end, the greatest happiness, and both judge acts by their consequences. Morals, or private ethics, is the art of directing one's own actions to produce the greatest happiness; legislation is the art of directing the actions of others, through the political sanction, to the same end. The difference lies in their extent.

• Ethics covers every action of a person; legislation can usefully cover only some. There are many acts that are bad but which it would be groundless, inefficacious, unprofitable or needless to punish.
• Bentham divides a person's duties into those towards himself (prudence) and those towards others, which may be negative, not to diminish their happiness (probity), or positive, to increase it (beneficence).
• Probity is the field most suited to legislation: the law can and should forbid harming others.
• Beneficence is less suited: the law can require some positive acts (supporting dependants, rescuing in some situations), but cannot compel kindness generally without great expense and intrusion.
• Prudence is the least suited: the individual is the best judge of his own interest, and the legislator cannot know the circumstances of each person; punishing imprudence would usually do more harm than good.

So, in Bentham's phrase, morals has the same centre as legislation but a larger circumference. The legislator should leave to the moral and religious sanctions what the political sanction cannot handle well.

4. The modern debate

Bentham's line is the ancestor of J.S. Mill's harm principle in On Liberty (1859): the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others. In England the Wolfenden Report (1957) recommended that private homosexual conduct between consenting adults should cease to be criminal, saying that “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business”. Lord Devlin replied that society may use the law to protect its shared morality, since a common morality holds society together; H.L.A. Hart, following Mill, answered that the mere fact that conduct is thought immoral by the majority is not enough to justify punishing it.

In India the debate has a constitutional answer. In Navtej Singh Johar v. Union of India, 2018 INSC 790, (2018) 10 SCC 1, a Constitution Bench read down section 377 of the Indian Penal Code so as to exclude consensual sexual acts between adults in private, holding that the relevant standard is constitutional morality, not popular or societal morality. In Joseph Shine v. Union of India, 2018 INSC 898, (2019) 3 SCC 39, it struck down the offence of adultery in section 497, treating it as a matter for civil remedies such as divorce rather than criminal law. Both decisions can be described in Bentham's terms: the conduct, whatever one thinks of its morality, was a case where punishment was groundless or unprofitable. The Bharatiya Nyaya Sanhita, 2023 contains no general offence corresponding to the old section 377 and no offence of adultery.

How this is examined

As 6-mark notes (“Classification of evils”, “Cases unmeet for punishment”) or as a 10-mark essay on the distinction between morals and legislation or on the operation of the principle of utility upon legislation. For the last, combine this note with the two before it: the principle (utility), the method (value of pleasures and pains, sensibility), and the result (classification of evils, limits of punishment, the field of law against the field of morals).