Classical School - Bentham

Bentham

In this context, the most relevant idea was known as the "felicitation principle", i.e. that whatever is done should aim to give the greatest happiness to the largest possible number of people in society. Bentham argued that there had been "punishment creep", i.e. that the severity of punishments had slowly increased so that the death penalty was then imposed for more than two hundred offences in England. For example, if rape and homicide were both punished by death, then a rapist would be more likely to kill the victim (as a witness) to reduce the risk of arrest.

Bentham posited that man is a calculating animal who will weigh potential gains against the pain likely to be imposed. If the pain outweighs the gains, he will be deterred and this produces maximal social utility. Therefore, in a rational system, the punishment system must be graduated so that the punishment more closely matches the crime. Punishment is not retribution or revenge because that is morally deficient: the hangman is paying the murder the compliment of imitation.

But the concept is problematic because it depends on two critical assumptions:

• if deterrence is going to work, the potential offender must always act rationally whereas much crime is a spontaneous reaction to a situation or opportunity; and
• if the system graduates a scale of punishment according to the seriousness of the offence, it is assuming that the more serious the harm likely to be caused, the more the criminal has to gain.