On Bentham

Readers with sharp eyes (or too much time on their hands) will have noticed that the font used on this blog goes by the name of Bentham. And how indeed could I have chosen any other font, for Jeremy Bentham is the great iconoclast of the common law system.

Bentham is well known today as a founder of utilitarianism. Michel Foucault and others have brilliantly analysed his ideal prison, the panopticon. This device was designed to allow the continual and perfect surveillance of prison inmates by a guard located inside a central tower where they could not be seen by those they observed.

Although this was never built as a prison, it stands today as a symbol for the modern suveillance society. yet in addition to all of this Bentham was an energetic and persistent critic of the criminal law of his day, and there is much we can learn from his extensive writings on the topics of criminal law and codification - rambling and digressive as they often are.

One of the most striking features of Bentham's writings (see for example the Introduction to Principles and Morals of Legislation) is his furious desire to divide and classify. He begins from a general principle (of utility) and then engages in a continual series of distinctions and separations, inventing his own scientific vocabulary to explain the classes and categories he identifies. Every so often he then runs into the problem of a clash between his scientific terminology and the accepted legal or popular language (see e.g. his category of heterogeneous or multiform offences p.190). This raises a problem which the criminal law continues to grapple with: is it better to retain traditional language or categories even where they use an archaic or out-of-date language (malice aforethought, wicked recklessness, larceny and so on) or should the law be modernised? The answer, of course, may be that it depends on the term in question. The use of certain terms changes with the times - the legal defiinition of rape now includes anal and oral penetration without any loss of the stigma attaching to the crime. But who would mourn the loss of the term 'larceny'?

But the more interesting questions might be these ones. First, how is it that certain concepts or categories acquire a public acceptance or moral weight? It has always seemed odd to me that the phrase 'grievous bodily harm' the creation of the Victorian draftsman in the Offences Against the Person Act 1861 has entered popular usage, in spite of its strained, technical definition. Does this tell us anything about the legitimacy of the criminal law?

And second, what if society and the law change? Bentham regarded offences against trust as heterogeneous offences that could not be classified elsewhere. But if, as sociologists suggest, trust is a central feature of modern society, should this alter our perception of its place in the classification of the criminal law?

[Anyone interested in learning more about Bentham (the philosopher not the font) should look at the webpages of the Bentham Project: http://www.ucl.ac.uk/Bentham-Project/]