Bentham: Punishment and the Utilitarian Use of Persons as Means

Abstract

One of the main barriers against a Utilitarian justification of punishment is a widespread criticism that if punishment is evil justified by the good it can achieve, then the state could use persons as a means to an end in pursuing this good. This opens the door, at a theoretical level, for the potential punishment of innocents, disproportionate punishment and failure to respect persons as rational and responsible agents. Further, critics argue that any considerations of security or utility guard against the perceived risks contingently, without intrinsic commitment to respecting persons as ends in themselves. This article addresses the criticism fundamentally by returning to Bentham’s original writings and demonstrating that a principle of equality is embedded in the greatest happiness as an end of government. The principle of equality can theoretically be developed using the tools of Bentham’s political theory, including his commitments to democracy, to the elimination of pain and to the differentiation between real and fictitious entities, to ensure that a Utilitarian theory of punishment, as part of its premise, would be constrained from using persons as mere means. Further, building on the equality of happiness, the article proposes an individualistic justification of punishment that responds to the traditional accusations of innocents’ punishment and excessive punishment, and ensures the respect of persons as rational and responsible agents.