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Bentham’s Distinction between Law and Morality and Its Contemporary Significance

La distinction que fait Bentham entre droit et morale, et son importance actuelle
Satoshi Kodama

Résumés

Sur la relation entre droit et morale, il existe différents points de vues communément exprimés, du moins dans le Japon d’aujourd’hui. Par exemple, les opinions suivantes sont émises : « Alors que le droit comprend des sanctions, la morale n’en comprend pas, et donc on n’est pas obligé de se conformer à la morale. » Ou encore : « On doit s’abstenir de critiquer moralement les actes d’autres personnes, tant que celles-ci n’ont commis aucun délit pénal. » Toutefois, de telles opinions semblent être fondées sur des malentendus à l’égard de la relation entre droit et morale. Le présent article se propose donc de clarifier la relation entre ces deux notions, en utilisant les idées de Jeremy Bentham sur ce sujet. Dans la première partie, nous examinerons les problèmes de compréhension du droit et de la morale qui semblent se poser au Japon. Dans la deuxième partie, nous décrirons les distinctions traditionnelles entre ces deux normes, et soutiendrons que la distinction traditionnelle entre droit et morale en tant que contraintes extérieure et intérieure sur les individus ne semble pas saisir convenablement la relation complexe entre ces deux normes dans la société actuelle. Dans la dernière partie, nous examinerons les idées de Bentham sur leur distinction, et identifierons les questions qui restent encore à résoudre dans sa pensée.

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Texte intégral

Introduction

1Recent books on ethics, whether introductory or otherwise, do not talk much about the relationship between law and morals. The topic is no longer extensively discussed in academic circles. That may partly explain why there are a variety of popular views on their relationship, at least in contemporary Japan. There are, for example, such views as “while the law has sanctions, morality does not have them; so we only have to obey the law, but not morality” or “the public should not morally criticize what other people do unless they have committed a criminal offence.” However, such opinions seem to be based on misunderstandings of the relationship between law and morals. Moreover, the traditional distinction of law and morals as external and internal constraints upon individuals does not seem to capture the complex relationship between the two norms in contemporary society.

2Therefore, this article will aim to clarify the relationship between law and morals, using ideas from Jeremy Bentham’s thoughts on the topic, especially in the last chapter of his Introduction to the Principles of Morals and Legislation. The first section will discuss what seems to be problematic understandings of law and morals in Japan. The second section will describe and then criticise the traditional distinctions between the two kinds of norms. The last section will examine Bentham’s ideas on the distinction and will identify the remaining issues in his thought.

Law and morals: some contemporary views in Japan

  • 1 “Hostile Takeover Bid of Nippon Broadcasting: Livedoor CEO Horie Answers Questions,” The Sankei New (...)

3In the early 2000s, Takafumi Horie, one famous IT entrepreneur in Japan, purportedly said, “Investors do not care whether their actions are immoral or not. Unfair as they may be, their actions are permitted as long as they are legal. The (legal) rules are all they care about, since morality changes over time.”1 The view “morality changes over time” seems to express a form of moral relativism. Moral relativism usually leads to the conclusion that we should be tolerant of each other because morality is different from person to person. However, here it leads to a different conclusion: one can ignore what others say about them because morality is different from time to time.

4His reasoning seems fallacious. Even if one accepts the view that morality changes over time, it does not follow that one can ignore morality. For one thing, the law also changes over time. For example, Japan decriminalised fornication in 1947, and the revised Penal Code of 1995 deleted patricide as a form of aggravated homicide, long after the Supreme Court judged it to be unconstitutional in 1973. What Horie meant to say is, therefore, not that morality changes over time, but that morality does not come with sanctions as the law does. Put it more formally:

P1. Legal norms have sanctions, but moral norms do not have any.

P2. One need to obey norms which have sanctions, but one may ignore those without sanctions.

C: Therefore, one needs to obey legal norms, but one may ignore moral norms.

  • 2 “Japan Innovation Party expelled the Lower House member Uenishi,” The Asahi Newspaper, 5 April 2015 (...)

5This way of reasoning also emerges in the recent statements of politicians and academics in Japan. In the spring of 2015, one political party expelled a young National Diet member named Sayuri Uenishi on account of inappropriate behaviour. One instance of her bad behaviour was that she took part in a dinner party on the day she took sick leave from the Lower House plenary session. The leader of the political party advised her to resign from the Diet as well. However, she refused to do so, reportedly stating, “I will not be deprived of the Diet membership unless I commit something illegal.”2 Her statement is true indeed, but the leader must have recommended her to resign on moral grounds. Her statement seems to betray her belief that one only need to obey the law but can ignore morality.

  • 3 Kaku Sechiyama, “The Japanese view on sexuality: a spate of recent adultery scandals and ‘social sa (...)

6More recently, there was a string of media reports of adultery committed by celebrities and Diet members in Japan, resulting in more or less considerable “social sanctions” to those who committed them. For example, one female celebrity lost all her commercial contracts and had to keep a low profile after the media reported her affair with a married musician. In another case, one male Diet member had to leave his political party and voluntarily resign from the Diet after his adultery came to light. Commenting on these cases, a Japanese sociologist Kaku Sechiyama wrote, “adultery is no longer a criminal offence in modern Japanese penal code. Thus, those who commit adultery should not be subject to social sanctions (or ‘lynching’), such as annulment of commercial contracts or deprivation of official positions.”3 His claim seems to be that people should be allowed to do whatever they like as long as they are not doing something illegal. More formally, Sechiyama’s claim can be put as follows:

P1. People should not be subject to social sanctions if they have not committed illegal acts.

P2. Extra-marital affairs are not illegal acts.

C. Therefore, those who had extra-marital affairs should not be subject to social sanctions.

7Sechiyama’s argument is slightly different from the arguments put forward by others above in that he does not deny the existence of social sanctions. His claim about social sanctions seems more normative than descriptive. His claim is not that there are no sanctions attached to morality, but that people should not apply any sanctions to non-criminal acts of individuals. Thus, if someone gets caught with possessing and using illegal drugs, they will justifiably be subject to social sanctions. However, if someone has committed adultery, which is no longer illegal in Japan, they should not be subject to social sanctions. Sechiyama’s claim seems to express a liberal attitude on the relationship between law and morals.

  • 4 H. L. A. Hart, Law, Liberty and Morality, Harry Camp Lectures at Stanford University ; 1962 (London (...)

8However, is P1 above true? There seems to be a grave misunderstanding about the relationship between law and morals. Apart from legal norms, there are moral norms in society, and they often come with a specific type of sanctions. Moral norms here refer to what H. L. A. Hart, following John Austin, called “positive morality” in analogy to positive law.4 Positive law is not an ideal law like the natural law but is a set of laws which are or were actually in force in one country or region. Analogously, positive morality is moral norms in one society which are not established by the government, but which nevertheless exist. Moral norms in contemporary Japan would include “Do not lie,” “Never be a nuisance to one’s neighbours,” “Be kind to children and the elderly.” “Never commit adultery” seems to be another example. The claim here is not that people should follow positive morality just because they exist. Just as there are bad laws, so there may well be bad moral norms. Here the claim is simply that there is no denying that positive morality exists apart from positive law.

  • 5 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. by J. H. Burns, H. (...)
  • 6 “Social sanctions” (Sechiyama’s term) and “moral sanctions” (Bentham’s term) are used interchangeab (...)

9According to Jeremy Bentham, “moral or popular sanctions” are attached to moral norms.5 Whereas political sanctions mainly refer to the penalty that is created and administered by the sovereign power, moral sanctions are not exercised through definite procedural rules, but through each person’s own will. Moral sanctions as Bentham conceived consist mainly of not assisting the person in question. In contemporary society, this would take the shape of a consumer boycott, or withholding assistance from those who have committed morally wrong acts. The extreme example of this type of sanction in Japan would be “mura-hachibu”, a kind of social ostracism which occasionally still happens in traditional Japanese villages, where villagers do not help the person in question except in the case of fire and funeral.6

  • 7 Bentham, chap. 3.

10Sechiyama in the above quotation mentioned “lynching”, but do moral sanctions include extra-legal physical punishment by neighbours or chance persons? Certainly, Bentham did not mention such a form of punishment as a moral sanction.7 It is theoretically possible, but where the government monopolizes the penal power, such private use of punishment as mob vengeance cannot be considered as justified. Even if someone violates moral norms, it would not be justified to physically harm them in the name of moral sanctions, given the (dis)utility of such sanctions.

11It may be the case that in Japan, moral sanctions for adultery are too harsh, especially for celebrities and politicians. Moreover, it may be the case that moral sanctions now take the shape of not only withholding assistance which is usually given to others but also causing severe mental harm to the violator by expressing insensitive and harsh comments using social media. In that respect, Sechiyama may be right to ask the Japanese public for self-restraint. However, the point here is not the severity of moral sanctions in the case of adultery but the misapprehension that only law has sanctions or that sanctions in any shape are inappropriate for non-illegal acts. We can and do apply moral sanctions to those who commit immoral acts, whether or not the acts in question are illegal. Moral sanctions are in principle necessary for moral norms just as political sanctions are necessary for legal norms. We can certainly debate the severity of moral sanctions in specific cases, but we cannot plausibly argue that there is or should be no moral sanctions for non-illegal acts.

12Another way to interpret Sechiyama’s claim would be to understand his claim as meaning that having an extra-marital affair belongs to the sphere of privacy. After the above quotation, he added, “in principle, adultery is a problem to which the married couple or the interested parties should find an answer for themselves. It is not something that others should lightly stick their nose into, let alone exercising social sanctions upon it.” Taking this statement into account, one can rephrase his argument as follows.

P1. People should not be subject to social sanctions for their acts which do not concern others except those involved.

P2. Adultery is an act which does not concern others except those involved.

C. Therefore, people who have committed adultery should not be subject to social sanctions for it.

  • 8 John Frederick Wolfenden Wolfenden of Westcott, Report of the Committee on Homosexual Offences and (...)
  • 9 “The object of this Essay is to assert one very simple principle, as entitled to govern absolutely (...)

13Here, P1 seems sound. For example, it would be wrong to denounce publicly or exercise moral sanctions to those consenting adults who commit homosexual acts. Thus, in the UK, the Wolfenden Report in 1957 recommended decriminalization of homosexual acts, stating “there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”8 One can make the same point concerning public or social morality, as J.S. Mill does in his On Liberty.9

14However, the problem lies in P2. Is it correct to say that adultery is an act which does not concern others except those involved? The main reason homosexual acts were decriminalized in the UK was that there is no harm involved in the sexual acts between consenting homosexual adults. Can we apply the same reasoning to adultery as well? This line of thinking appears to reveal an oversimplification of the relationship between law and morals. Rephrasing the words of the Wolfenden Report, one can say that there seems to remain a realm of public morality and immorality which is the public’s business, if not the law’s business. To elaborate on this point, we shall briefly examine the traditional distinctions between law and morals.

Traditional distinctions of law and morals

  • 10 For their respective views on toleration, see John Locke, Locke on Toleration, Cambridge Texts in t (...)

15This section will briefly describe and then criticize the traditional distinctions between law and morals. As explained at the beginning of this paper, not many books on ethics today deal with this issue. However, textbooks on jurisprudence commonly introduce the distinction between the external nature of law and the internal nature of morality. Thus, according to Christian Thomasius, a German jurist and philosopher (1655-1728), law achieves external peace by regulating the external actions of people while morality achieves internal peace by regulating the conscience, the internal aspect of individuals. The state can only enforce the law but not morality. The morality here is strongly related to one’s religious beliefs, and the separation of morality and law is intended to secure the freedom of religious faith. In other words, the state should not interfere with individuals’ conscience because it cannot force faith which resides internal to oneself, as John Locke discussed in his Letter concerning Toleration. Kant’s famous distinction between legality and morality is similar to Thomasius’s in that it distinguishes external actions and internal motives.10

  • 11 Sato, Ethics (2nd ed.) (Tokyo: Tokyo University Press, 1960), p. 13 (in Japanese).

16One Japanese textbook on ethics, written more than half a century ago, reflects this kind of distinction and states, “Law and morals are not completely separate but complement each other. Nevertheless, to the extent that they are different, that law remains social, objective, and external, while morality is individualistic, subjective, and internal."11 In Japan, this type of explanation is still prevalent in the field of medical ethics, for example. Nevertheless, such understanding does not seem to capture the contemporary reality of law and morality. It cannot adequately explain, for example, the role of “ethics committees” for medical research, “ethical guidelines” by the government or medical associations, or “the codes of ethics” by professional associations. Such institutions and rules may not have the legal recognition and therefore considered as belonging to the sphere of morality. However, they do attempt to regulate the external actions as well as internal aspects of individuals.

17Even in a society where diversity of values is recognized, there exists a social or public morality. However, a Thomasius-inspired understanding of law and morality tends to put social or public morality out of sight and gives the impression that there is only private morality and law. Thus, Shigeaki Tanaka, a Japanese legal philosopher, states:

  • 12 Tanaka, p. 170.

Such understanding of morality [as internal constraint] is too narrow in scope and cannot be considered as an essential element common to a whole variety of morality. An emphasis on the internal aspect of morality may apply to private morality in which the conscience and the purity of motives matter, but it seems doubtful if it applies to positivistic social morality which is based on conventions and traditions rather than individual autonomous choices.12

18According to him, private morality here emphasizes individuals’ internal and subjective sentiments such as one’s conscience and autonomous choices and respects the originality and diversity of one’s moral ideals. On the other hand, social morality is a set of positive and objective moral principles and norms that are generally shared among the members of a society. It is recognized as mainly regulating each other’s outward actions, is backed with social sanctions, and deemed essential for the existence and development of the society.

  • 13 Georg Jellinek, Die Socialethische Bedeutung von Recht, Unrecht Und Strafe (Wien: A. Holder, 1878), (...)

19Social morality and the law are not the same things, although they overlap with each other. They are different norms, each having sanctions of their own. Then the question arises as to what role each should play in controlling individuals’ actions. A German legal philosopher Georg Jellinek (1851-1911) described the law as minimum ethics in two senses. Objectively, it only requires the minimum part of ethics. Subjectively, it only requires the minimum ethical attitude from the members of society.13 Jellinek’s view is pertinent, especially in liberal societies that respect individuals’ freedom. However, we still need to ask the question of what the ethical minimum of the law is. To answer this question, we shall examine Bentham’s view on the relationship between law and morals in the third and last section.

Bentham’s view on the relationship between law and morals

  • 14 Note that Bentham only deals with positive law and positive morality in this chapter. He does not d (...)

20In the last chapter of his Introduction to the Principles of Morals and Legislation (hereafter IPML), Jeremy Bentham provides illuminating insights on how law and morals should relate to each other. Here he makes a detailed classification of law and morals as well as a classification of human actions according to how they affect the happiness of oneself and that of others.14

21In Chapter 17 of the IPML, Bentham first defines “ethics at large” as “the art of directing men’s actions to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view” (Sec. 2). He then divides the actions one can direct into one’s actions and those of others and calls the art of directing the former “the art of self-government or private ethics” (Sec. 3). As to the actions of others that one can influence, Bentham distinguishes those of human beings and non-human animals, and calls the art of directing other human beings “the art of government”. He then divides it into “the art of legislation” (when the measures are of a permanent nature) and “the art of administration” (when they are of a temporary nature) (Sec 4). Lastly, when one directs the actions of others who are minors, the art is called “the art of education’” (sec. 5).

22The title of Bentham’s book contrasts morals with legislation. However, the above classification of “ethics at large”, or “ethics in general” as he uses the phrase in the same chapter, suggests that he understand ethics as an overarching category containing not just private ethics (morals) but also legislation and education. Ethics, in other words, deals with norms in general, including legal norms and moral norms.

  • 15 Michael Quinn, “Popular Prejudices, Real Pains”, in Bentham’s Theory of Law and Public Opinion, ed. (...)
  • 16 Bentham here uses “legislation” to contrast with “private ethics”, but it must mean legislation in (...)

23After broadly differentiating human actions into those affecting only the person him- or herself and those affecting others, Bentham asks which kind of actions private ethics and legislation should guide (sec. 8). As already suggested by other commentators, Bentham’s question is similar to the question that John Stuart Mill asks in On Liberty, that is, when can law and public opinion justifiably coerce individuals to act, or prohibit them from acting, in a certain way?15 Bentham’s answer is also similar to Mill’s answer: Private ethics should guide all of one’s actions, i.e. those only affecting him- or herself as well as those affecting the happiness of others, but legislation should mostly be concerned about those actions which affect the happiness of others and should not in principle be applied to those actions which only affects oneself (secs. 15-19).16 The legislator should not attempt to enforce the so-called duty of prudence, such as not to drink too much. This is partly because the individual him- or herself stands in a better position to pursue one’s happiness than the legislator, and partly because the harmful consequences of administering the law in this area of action would surpass the benefit. Obtaining the evidence of adultery, for example, involves entering into the private lives of the individuals, thereby “spreading dismay through every family, tearing the bonds of sympathy asunder, and rooting out the influence of all the social motives” (sec. 15).

24As to the actions affecting the happiness of others, Bentham distinguishes those tending to decrease the happiness of others and those tending to increase it. Of these, it is the former type of action that legislation has mainly concerned and should concern (secs. 6 and 18). Again, this line of thinking is similar to Mill’s harm principle. In this way, Bentham derives a liberal principle from his utilitarianism, namely the principle that says one can pursue one’s happiness as long as one does not injure one’s neighbours. In other words, he establishes the proper sphere of law, which Jellinek described as minimum ethics.

25On the other hand, Bentham makes interesting remarks on those actions which promote the happiness of others, namely beneficence. Many instances of beneficence lose their value if done by self-regarding motives which are induced by the threat of punishment. In that sense, private ethics rather than legislation should guide one’s action in order to promote the happiness of others. However, in other cases, when one can easily help someone in danger, Bentham sees no obstruction for the law to intervene. Thus, he writes:

  • 17 Bentham, chap. 17 sec. 19. Interestingly, J. S. Mill makes a similar remark in On Liberty Mill, xvi (...)

A woman’s head-dress catches fire; water is at hand; a man stands by and laughs. A drunken man, falling with his face in a puddle, is in danger of drowning though lifting his head a little on one side would save him; another man sees this and leaves him there. […] Would anyone think that punishment is inappropriate in these cases? 17

  • 18 On the bad Samaritan laws, see Feinberg Moral Limits of the Criminal Law. Volume 1, Harm to Others (...)

26There are several countries which do have punishments to such “bad Samaritans”. However, to this day, it is still debated whether not doing good to others should carry moral and legal responsibility.18

27As is evident from the above discussion, Bentham does not adopt the traditional view of morality as an internal constraint and law as an external constraint but distinguishes law and private morality by delineating for each norm the sphere of individual actions that should be regulated (see the table below). Put in another way, when Bentham distinguishes law and morals, he hardly discusses one’s conscience or the goodness of one’s motives but aims to distinguish their roles according to his utilitarian objective of promoting overall happiness.

  • 19 Bentham, chap. 17.

Table: Bentham’s Classification of Ethics19

Ethics at large (Ethics in general)

Private ethics: guiding one’s own conduct

Legislation: guiding the conduct of others

Self-regarding actions: duty of prudence

Intervene

Not intervene in principle

Other-regarding actions: duty of probity (refraining from harm)

Intervene

Intervene in principle

Other-regarding actions: duty of beneficence (doing good)

Intervene

Not intervene in principle (but see the text)

  • 20 Bentham, chaps 13, 17.

28With this classification of law and morals, what would Bentham say on the matter of adultery discussed in the first section? He does think that fornication should not be made illegal, but the reason he gives is not that fornication is not unethical, nor that it should be resolved among those involved in the case. Instead, his reason is that the harms involved in the policing of fornication would surpass the benefits of its regulation. He lists the four circumstances where punishment is not suitable: 1. Where punishment would be groundless because the act in question is not morally wrong. 2. Where punishment would be inefficacious. 3. Where punishment would be unprofitable, viz. the cost of punishment surpasses its benefit. 4. Where punishment would be needless, as there are less intrusive means such as instructions to achieve the same end.20 Of these, he regards the third reason as pertinent to the case of fornication. Namely, criminalizing fornication is not profitable because the benefits of punishment would not outweigh the harms involved in policing and punishing the act. Nevertheless, he acknowledges fornication to be generally harmful and thinks that it should be guided by private ethics just as drunkenness should. Therefore, he writes:

  • 21 Bentham, chap. 17 sec. 15.

All he [the legislator] can hope to do, is to increase the efficacy of private ethics, by giving strength and direction to the influence of the moral sanction. […] All that he can do then, against offences of this nature, with any prospect of advantage, in the way of direct legislation, is to subject them, in cases of notoriety, to a slight censure, so as thereby to cover them with a slight shade of artificial disrepute.21

29In sum, Bentham thought that although adultery is morally wrong and subject to the moral sanction, it should not be legally punished because the harms of the punishment outweigh its benefits.

30It was earlier suggested that Bentham’s distinction between law and morals is similar to J.S. Mill’s harm principle. However, there is one significant difference between the two. In his classification of ethics, Bentham does not explicitly refer to public or social morality. Bentham’s private ethics is, by definition, “the art of guiding one’s own actions” and as such does not include public opinion. He indeed mentions the moral sanction in the above quotation, implying that the legislator can influence individuals’ private ethics through modifying public opinion, but the question of when and what degree of moral sanction from others is due appears to be conspicuously absent from his discussion.

  • 22 Henry Sidgwick, another utilitarian, briefly examines the “important function [of positive morality (...)

31On the other hand, Mill thinks his harm principle applies to the coercion by the government as well as by public opinion. In other words, his principle states that the individual’s action should be morally and legally punishable only when it is harmful to others. However, given the discussion in this paper so far, it seems too broad-brush to treat the moral sanction and the legal sanction as applying to the same sort of acts. For example, such immoral acts of adultery, rudeness, or treachery might well be criticized by others even though they should not be punishable by law. Therefore, the question is left to us to inquire about the ideal relationship among law, public morality, and private morality.22

32That said, it has hopefully become apparent from the above discussion that even when the act is not criminal, it can be morally wrong as in the case of adultery, and that positive morality has sanctions just as positive law does. If one understands law and morals in this way, one can see that there is a confusion involved in claims such as “one is allowed to do anything as long as it is not criminal” and “no social sanction should be attached to the acts which are not criminal.”

Conclusion

33Although there are a variety of ways to understand the relationship between law and morals, it seems correct to state that legal norms and moral norms separately exist although they overlap each other, and that morality divides itself into private and public morality. How one conceives the relationship between law and morality is crucial when we discuss ethical questions. Bentham’s discussion in the last chapter of the IPML helps one to understand the relationship better, although more work needs to be done to clarify how law, public morality, and private morality relate to one another.

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Bibliographie

Austin, John, The Province of Jurisprudence Determined, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1995)

Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, ed. by J H. Burns, H. L. A. Hart, and F. Rosen (Oxford: Clarendon Press, 1996)

De Champs, Emmanuelle, “Bentham et le droit constitutionnel: morale et législation”, in Bentham juriste. L'utilitarisme juridique en question, ed. by Guillaume Tusseau and Malik Bozzo-Rey (Paris : Economica, 2011)

Feinberg, Joel, Moral Limits of the Criminal Law. Volume 1, Harm to Others (New York ; Oxford: Oxford University Press, 1984)

Hart, H. L. A., Law, Liberty and Morality (London, 1963)

Ishii, Kozo. Bentham on Liberty: Thinking from the problems of torture and homosexuality, Ryukoku Hogaku, 25.1 (1992), 1-51 (in Japanese)

Jellinek, Georg, Die Socialethische Bedeutung von Recht, Unrecht Und Strafe (Wien: A. Holder, 1878)

Locke, John, Locke on Toleration, Cambridge Texts in the History of Philosophy (Cambridge, 2010)

Lyons, David, In the Interest of the Governed: A Study in Bentham’s Philosophy of Utility and Law (Oxford University Press, 1991)

Mill, John Stuart, The Collected Works of John Stuart Mill, ed. by John M. Robson (Toronto: University of Toronto Press, 1977), xviii

Quinn, Michael, Popular Prejudices, Real Pains, in Bentham’s Theory of Law and Public Opinion, ed. by Xiaobo Zhai and Michael Quinn (Cambridge University Press, 2014)

Sato, Toshio. Ethics (2nd ed.) (Tokyo: Tokyo University Press, 1960) (in Japanese)

Sidgwick, Henry, "The Theory of Evolution in Its Application to Practice", in Essays on Ethics and Method (Oxford University Press, 2003)

Tanaka, Shigeaki. Contemporary Jurisprudence (Tokyo: Yuhikaku, 2011) (in Japanese)

Thomasius, Christian, Essays on Church, State, and Politics (Indianapolis, Ind.: Liberty Fund, 2007)

Wolfenden of Westcott, John Frederick Wolfenden, Report of the Committee on Homosexual Offences and Prostitution (London, 1957)

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Notes

1 “Hostile Takeover Bid of Nippon Broadcasting: Livedoor CEO Horie Answers Questions,” The Sankei News, 1 March 2005, in Japanese.

2 “Japan Innovation Party expelled the Lower House member Uenishi,” The Asahi Newspaper, 5 April 2015, in Japanese.

3 Kaku Sechiyama, “The Japanese view on sexuality: a spate of recent adultery scandals and ‘social sanctions’” 11 April 2016, in Japanese https://www.nippon.com/ja/currents/d00214/

4 H. L. A. Hart, Law, Liberty and Morality, Harry Camp Lectures at Stanford University ; 1962 (London, 1963), p. 20; Austin, The Province of Jurisprudence Determined, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1995).

5 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ed. by J. H. Burns, H. L. A. Hart, and F. Rosen. 1968 (Oxford: Clarendon Press, 1996), chap. 3.

6 “Social sanctions” (Sechiyama’s term) and “moral sanctions” (Bentham’s term) are used interchangeably throughout this article. For an interesting discussion on the distinction between social norms and moral norms, see Anne Brunon-Ernst. “Use of Social Norms in the Production of Legal Norms: A Genealogical and Critical Approach to Nudges.” Les Cahiers de Droit, 59.1 (2018) and Geoffrey Brennan, et al. Explaining Norms. (Oxford: Oxford University Press, 2013), esp. ch. 4.

7 Bentham, chap. 3.

8 John Frederick Wolfenden Wolfenden of Westcott, Report of the Committee on Homosexual Offences and Prostitution, (London, 1957), p. 24. Bentham also thought that there was no good reason to criminalise homosexual acts between consenting adults. For his view, see Jeremy Bentham, Selected Writings, edited by Stephen G Engelmann and Philip Schofield (New Haven: Yale University Press, 2011), pp. 33-100.

9 “The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion.” John Stuart Mill, The Collected Works of John Stuart Mill, ed. by John M. Robson (Toronto: University of Toronto Press, 1977), xviii, p. 236 (emphasis added).

10 For their respective views on toleration, see John Locke, Locke on Toleration, Cambridge Texts in the History of Philosophy (Cambridge, 2010), and Thomasius, Essays on Church, State, and Politics, Natural Law and Enlightenment Classics (Indianapolis, Ind.: Liberty Fund, 2007). For Thomasius’s and Kant’s distinctions between law and morals, the author referred to the famous textbook of jurisprudence by Shigeaki Tanaka. See Tanaka, Contemporary Jurisprudence (Tokyo: Yuhikaku, 2011), chap. 5 (in Japanese).

11 Sato, Ethics (2nd ed.) (Tokyo: Tokyo University Press, 1960), p. 13 (in Japanese).

12 Tanaka, p. 170.

13 Georg Jellinek, Die Socialethische Bedeutung von Recht, Unrecht Und Strafe (Wien: A. Holder, 1878), p. 42; Tanaka, p. 171.

14 Note that Bentham only deals with positive law and positive morality in this chapter. He does not discuss natural law or natural rights, which he famously criticizes in his other writings, notably in his Fragment on Government and Nonsense upon Stilts.

15 Michael Quinn, “Popular Prejudices, Real Pains”, in Bentham’s Theory of Law and Public Opinion, ed. by Xiaobo Zhai and Michael Quinn (Cambridge University Press, 2014); Ishii, “Bentham on Liberty: Thinking from the problems of torture and homosexuality”, Ryukoku Hogaku, 25.1 (1992), 1-51 (in Japanese); David Lyons, In the Interest of the Governed: A Study in Bentham’s Philosophy of Utility and Law (Oxford University Press, 1991), p. 62.

16 Bentham here uses “legislation” to contrast with “private ethics”, but it must mean legislation in the broader sense, including “the art of administration” as above explained.

17 Bentham, chap. 17 sec. 19. Interestingly, J. S. Mill makes a similar remark in On Liberty Mill, xviii, p. 237.

18 On the bad Samaritan laws, see Feinberg Moral Limits of the Criminal Law. Volume 1, Harm to Others (New York ; Oxford: Oxford University Press, 1984), chap. 4. Note that a bad Samaritan law is different from a good Samaritan law which aims to protect individuals from liability lawsuits when they try to help others but fail to do so.

19 Bentham, chap. 17.

20 Bentham, chaps 13, 17.

21 Bentham, chap. 17 sec. 15.

22 Henry Sidgwick, another utilitarian, briefly examines the “important function [of positive morality] of regulating conduct in matters beyond the range of governmental coercion” in his Elements of Politics. Like Bentham, he thinks it would be unwise to legally punish adultery (or “intercourse of the sexes outside the conjugal relation”), but it should be morally discouraged by “affixing a strong stigma of discredit to such intercourse.” His discussion here is illuminating but deliberately kept short, because “to consider in detail how this function [of positive morality] ought to be performed would be to write a treatise on ethics.” See Henry Sidgwick, Essays on Ethics and Method (Oxford University Press, 2003), sec. 4.

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Satoshi Kodama, « Bentham’s Distinction between Law and Morality and Its Contemporary Significance », Revue d’études benthamiennes [En ligne], 16 | 2019, mis en ligne le 20 décembre 2019, consulté le 06 décembre 2021. URL : http://journals.openedition.org/etudes-benthamiennes/6378 ; DOI : https://doi.org/10.4000/etudes-benthamiennes.6378

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Satoshi Kodama

Kyoto University (Japan)

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