Bentham on pleasures and pains: value, kinds and circumstances affecting sensibility

1. Why the legislator needs this

The principle of utility tells the legislator to promote the greatest happiness. It is useless without a method. Bentham therefore supplies three things: a way of measuring a pleasure or pain (its value), a list of the pleasures and pains people experience (their kinds), and an account of the factors that make the same cause produce different amounts of pleasure or pain in different people (sensibility). Punishment, the legislator's main tool, is a pain, and offences are judged by the pain they cause; so this machinery is what makes utility usable in law.

2. The value of a pleasure or pain

To a person considered by himself, the value of a pleasure or pain is greater or less according to four circumstances:

• intensity — how strong it is;
• duration — how long it lasts;
• certainty or uncertainty — how likely it is to occur; and
• propinquity or remoteness — how near or far off in time it is.

When the value of the act that produces the pleasure or pain is considered, two more are added:

• fecundity — the chance that it will be followed by sensations of the same kind (pleasure by more pleasure, pain by more pain); and
• purity — the chance that it will not be followed by sensations of the opposite kind.

When a number of persons are considered, a seventh is added:

• extent — the number of persons to whom it extends, that is, who are affected by it.

The process, later called the felicific or hedonic calculus, is to take each person affected, sum the values of all the pleasures and of all the pains the act is likely to produce for him, see the balance, then do the same for every person affected and add the results. If the balance is on the side of pleasure, the act has a good tendency for the community; if on the side of pain, a bad one. Bentham admits that this cannot be done precisely for every act, but says it is the standard to which moral and legal judgment always approximates.

Application to law. The dimensions explain rules of punishment that Bentham defends elsewhere. Because certainty and propinquity add value, a certain and speedy punishment deters more than a severe but uncertain or delayed one. Because extent counts, an offence that alarms the whole community is worse than one that harms a single person. And because purity matters, a punishment that produces resentment and further crime is a bad one.

3. Kinds of pleasures and pains

Bentham divides pleasures and pains into simple ones, which cannot be resolved into others, and complex ones made up of several simple ones. He lists fourteen simple pleasures:

• of sense; of wealth; of skill; of amity; of a good name; of power; of piety; of benevolence; of malevolence; of memory; of imagination; of expectation; pleasures dependent on association; and of relief.

And twelve simple pains:

• of privation; of the senses; of awkwardness; of enmity; of an ill name; of piety; of benevolence; of malevolence; of memory; of imagination; of expectation; and pains dependent on association.

Some of these are self-regarding (they concern only the person who feels them, such as pleasures of sense or wealth) and some are extra-regarding (they depend on the pleasures or pains of others: benevolence and malevolence). Two short explanations earn marks. The pains of privation correspond to several pleasures: the pain of desire, of disappointment and of regret at losing something. The pleasure of relief is the pleasure felt when a pain ceases or abates.

Application to law. The catalogue tells the legislator what is at stake when an offence is committed or a punishment inflicted. Theft causes pains of privation; defamation causes pains of an ill name; imprisonment takes away pleasures of sense, amity and power. Punishments can be chosen to match the pleasure that motivated the offence: a fine for an offence committed for gain, loss of reputation for one committed for status.

4. Circumstances affecting sensibility

The same cause does not produce the same amount of pleasure or pain in everyone. Bentham calls a person's disposition to feel pleasure or pain from a given cause his sensibility, and lists thirty-two circumstances that influence it:

• health; strength; hardiness; bodily imperfection;
• quantity and quality of knowledge; strength of intellectual powers; firmness of mind; steadiness of mind; bent of inclination;
• moral sensibility; moral biases; religious sensibility; religious biases; sympathetic sensibility; sympathetic biases; antipathetic sensibility; antipathetic biases;
• insanity; habitual occupations; pecuniary circumstances; connexions in the way of sympathy; connexions in the way of antipathy;
• radical frame of body; radical frame of mind;
• sex; age; rank; education; climate; lineage; government; and religious profession.

He separates them into primary circumstances, which belong to the person's own make-up (health, strength, frame of mind and so on), and secondary ones, which are external and act through the primary ones (sex, age, rank, education, climate, lineage, government, religious profession). The secondary circumstances are useful to the legislator because they can be observed, while the primary ones usually cannot.

Application to law. This is the reason the law cannot treat all people as if they felt alike. A fine that is trivial to a rich man is crushing to a poor one (pecuniary circumstances); imprisonment weighs differently on the young, the old and the sick (age, health); the same insult wounds differently according to rank and education. Bentham draws the conclusion that punishments must be variable within limits, so that the judge can adjust them to the offender, and that legislators must take account of local circumstances when laws are transplanted from one country to another (climate, government, religion). Indian law reflects both points: sentencing discretion between a minimum and maximum, special provisions for children and juveniles, and mitigation on grounds of age, health and circumstances.

How this is examined

Each of the three lists is a 10-mark essay on its own when paired with its purpose and its legal application, as set out above. Begin each essay with two lines connecting it to the principle of utility, give the list accurately, explain the items with examples, and end with how the legislator or judge uses it. Bentham's sanctions and the adverse principles are in the previous note; the classification of evils is in the next.