Essays on Bentham: Jurisprudence and Political Theory

by H.L.A. Hart

In his introduction to these closely linked essays Professor Hart offers both an exposition and a critical assessment of some central issues in jurisprudence and politcal theory. Some of the essays touch on themes to which little attention has been paid, such as Bentham's identification of the forms of mystification protecting the law from criticism; his relation to Beccaria; and his conversion to democratic radicalism and a passionate admiration for the United States.

Genres: Philosophy

280 pages, Hardcover

First published November 4, 1982

About the author

Herbert Lionel Adolphus Hart was a legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law and made contributions to political philosophy.

Reviews

[Sharif Farrag · Rating 4 out of 5]

There is a remarkable similarity between some of Bentham's detailed recommendations for punishment and the operation of the punishment machine in Kafka's In the Penal Colony. The similarity is large enough that I wonder if Kafka's story was influenced by Bentham's ideas. Chronologically, it is quite possible. Kafka wrote In the Penal Colony in 1919. Bentham wrote his early work on punishment in the 1780s, although I'm not sure when it was published. Kafka was a lawyer by training, which marginally increases the probability that he read the relevant parts of Bentham's Principles of Penal Law.

In the book entitled "Of Corporal Punishments", Bentham describes a punishment machine designed to whip offenders automatically:

"A machine might be made, which should put in motion certain elastic rods of cane or whalebone, the number and size of which might be determined by the law: the body of the delinquent might be subjected to the strokes of these rods, and the force and rapidity with which they should be applied, might be prescribed by the judge: thus everything which is arbitrary might be removed. A public officer, of more responsible character than the common executioner, might preside over the infliction of the punishment; and when there were many delinquents to be punished, his time might be saved, and the terror of the scene heightened, without increasing the actual suffering, by increasing the number of the machines, and subjecting all the offenders to punishment at the same time."

And in his exhaustive account of the ways punishment might be made analogous to the crime committed, Bentham offers the twisted idea of a punishment exacted by representing the offence on the body of the offender:

"Some offences are characterized by the assumption of a disguise to facilitate their commission: a mask, or crape over the face, has commonly been used. This circumstance constitutes an aggravation of the offence: it increases the alarm produced, and diminishes the probability of detection; and hence arises the propriety of additional punishment. Analogy would recommend the imprinting on the offender a representation of the disguise assumed. This impression might be made either evanescent or indelible, according as the imprisonment by which it may be accompanied, is to be either temporary or otherwise. If evanescent, it might be produced by the use of a black wash: if indelible, by tatooing. The utility of this punishment would be most particularly felt in cases of premeditated murder, rape, irreparable personal injury, and theft, when accompanied with violence and alarm."

So we have two ideas: a machine designed to inflict punishment automatically and a sentence that requires imprinting the offender's crime - a picture or a statement - into his flesh.

Now Kafka's punishment machine in In The Penal Colony combines these ideas and ramps them up.

The punishment machine imprints, by needles plunging deeper and deeper into the condemned man's back, the offence of which he is guilty. Over twelve hours, the condemned man comes to realize what is being written into his flesh and, around the same time, that he will not survive the ordeal. Eventually, he dies of blood loss. Kafka's description of the workings of the machine is uncannily similar to Bentham's description of his machine. Both mention the need for a public official to check that the machine is carrying out the prescribed sentence.

"When the man is lying on the Bed and it starts quivering, the Harrow sinks onto the body. It positions itself automatically in such a way that it touches the body only lightly with the needle tips. Once the machine is set in position, this steel cable tightens up immediately into a rod. And now the performance begins. Someone who is not an initiate sees no external difference among the punishments. The Harrow seems to do its work uniformly. As it quivers, it sticks the tips of its needles into the body, which is also vibrating from the movement of the bed. Now, to enable someone to check on how the sentence is being carried out, the Harrow is made of glass. That gave rise to certain technical difficulties with fastening the needles in it securely, but after several attempts we were successful. We didn’t spare any efforts. And now, as the inscription is made on the body, everyone can see through the glass."

** For other descriptions of publicly demonstrated execution machines in fiction, see: The Glass Abattoir by Coetzee.

[Phillip · Rating 5 out of 5]

The book will be of great use and interest to scholars and students of contemporary jurisprudence, legal theory & 19th-century philosophy.