Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 16 October 2013

On Bentham on pederasty (or offences against one's self)

One of the delights of the internet is that it is a treasure trove of obscure or little known documents, access to which would previously only have been open to those with very good libraries - or the time and resources to travel to those libraries. So it was that while I was that, while I was looking for information on Jeremy Bentham's theory of codification, I discovered this fascinating document: Bentham's essay on pederasty, or offences against one's self.

Jeremy Bentham
I have written on Bentham before - about his general theory of criminal law and punishment - but this shorter essay culled from amongst his voluminous unpublished writings is something else altogether. The general approach is in line with his attitude towards the common law and his project of reclassifying the criminal law, but the text, and its history, are revealing in other ways.

In this essay, which was written around 1785 but never published in his lifetime, Bentham examines the justifications given for the criminalisation of so-called "unnatural offences", principally the sexual offences of sodomy, bestiality and masturbation, and the severe punishments which attached to these crimes. He argues that there is little or no evidence that they harm either individuals or society and that there is no possible justification for harsh punishments imposed by the law.

He systematically works through the reasons that have been offered in support of these crimes by a series of distingushed writers, from William Blackstone, to Montesquieu to Voltaire, and dismisses them in turn as riddled with inconsistencies and prejudices and having no possible rational basis.

Thus, there is no evidence that the conduct produces pain; rather it produces pleasure. It cannot be an offence against security or the peace (Blackstone), if it is practised with consent. It cannot hurt the population (Voltaire), or rob women of their rights (!) or be harmful to marriage. And indeed, he asks, if homosexual sex is regularly practised on what basis can it be termed unnatural? The justification for such offences, he concludes seems to lie in a hatred of pleasure, rather than in any possible harm caused by the conduct itself, a position which has been set up by the "prejudices of false philosophy and the terrors of a false religion". In place of this, he argues that on the principle of utility  he argues that there is no justification for these offences (although he does recommend "domestic discipline" as a remedy for for the pernicious and enervating effects of masturbation).

This, then, is a fascinating document, both ahead of its time and strangely of its time. It is ahead of its time as the first known argument for reform of the law of homosexual offences in England, and it demonstrates as characteristic clarity of purpose and rhetorical flourish in its critique of existing criminal laws. It is also strikingly contemporary in its classification of such offences as "offences against one's self" - and thus not to be criminalised in the absence of either harm to oneself or others (or social harm). In this it prefigures the better known work of his pupil, John Stuart Mill, who set out what has come to be known in modern thought as the harm principle: that criminalisation without harm was unjustifiable. And it is also modern in its critique of criminal laws based on moral beliefs or prejudices, and in its aim of replacing prejudice with laws based on reason.

But at the same time it appears very much of its time. This is nowhere more apparent than in the title.  Pederasty for Bentham was the term for consenting homosexual intercourse between men (the term homosexual was not coined until the work of Kraft-Ebbing in the late nineteenth century, and pederasty did not acquire its specifically contemporary meaning of sex between a man and a boy until later). Consistently with this, his examples of the permissibility (and non-harmfulness) of homosexual sex were drawn principally from classical sources. But most notable of all is the tone of the essay, which would sit uncomfortably with modern arguments for law reform. Bentham makes little effort to hide his distaste, repeatedly referring to the perverted tastes of those who engage in such conduct. Indeed, the tone of the essay as a whole struggles to reconcile his arguments about a rational approach to the law with his personal beliefs about homosexual conduct.

And this brings us to the question of why it was not published. It was apparently originally conceived as part of the schema of classification contained in his book On the Principles and Morals of Legislation, one of his few major works that was published in his lifetime. In this book Bentham
proposes a new scheme for the classification of criminal laws that would be consistent with his utilitarian principles (see ch.16). In place of the categories of the common law he proposed a more rational schema based around the interests to be protected by the law, moving from offences against individuals (person, reputation) to objects associated with persons (such as property), to various kinds of public offences (including offences against the positive increase of the national felicity...). And he sought to examine existing laws to see how they would fall within his new classification - either being reclassified or abandoned altogether.

It is easy to see how the essay fits in this schema. But at the last moment it appears that he blanched at publication of this section. According to the editor of this published version, his notes reveal that hee feared that this was a step too far, that it would be damaging to his reputation to be associated with these beliefs, to appear to support homosexual conduct. And so the essay was quietly shelved

So it appears that Bentham the iconoclast, the attacker of irrational beliefs and sacred cows, was not without his limits after all. But if this disappoints, we should be grateful that this work is now freely available, for it offers fascinating insight into both the his beliefs and the mores of his time.

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