Life and the Mind

When I am teaching about the work of figures in the history of my discipline (dead white men all), I often have to remind myself and then my students why people who seem to us now to be quite conservative were the radicals of the day. My favourite example of this are the early utilitarians, Jeremy Bentham and John Stuart Mill . First off, they were social reformers, interested in changing the world. Second, they had the idea that one couldn’t just declare that some act or other was wrong, instead one had to show how it harmed other persons. No harm to others? No justification for making the act in question illegal. It was that simple for the utilitarians. Third, standards of right and wrong were tied to the promotion of the overall good, in which each person’s happiness mattered and mattered equally. Even Betham’s infamous ideal prison the Panopticon (much reviled by contemporary theorists from Foucault on) in which prisoners are constantly observed from a central tower, was proposed as an alternative to prisons of the Victorian era. Prisons in Bentham’s time were little more than windowless holes in which prisoners (usually the poor arrested for prostitution or theft) were thrown and left to rot. The only to guarantee even minimally decent treatment was bribery and many didn’t survive to ever leave prison. Bentham’s focus on observation and reform at least assumed the inmate’s eventual return to regular life. Compared to retributivists who think it’s good for its own sake that those who do wrong suffer (regardless of the consequences), the utilitarians are positively softies on issues of crime and punishment.
But my favourite subject on which the early utilitarians wrote is homosexuality and the need for legal reform of laws against sex between men. In a long essay Betham tirelessly applies the utilitarian standard (does this promote the most overall good?) to laws forbidding gay sex. Called "Offences Against One’s Self: Paedestry" and written around 1785 it was believed to be

"the first known argument for homosexual law reform in England.“ Reform was clearly called for given that the penalties for offences included death. Death for homosexuality made no sense, thought Bentham. He wrote, "I have been tormenting myself for years to find if possible a sufficient ground for treating them with the severity with  which they are treated at this time of day by all European nations but upon the principle of utility I can find none." The first problem was that laws against sodomy were inequitably applied. Bentham noted that heterosexuals were also committing the offence in question: "It seems to be more common for men to apply themselves to a wrong part in women," notes Bentham, "and in this case grave authors have found more enormity than when the sex as well as the part of the object is mistaken." Rather than concluding that this meant all sorts of sex ought to be regulated, he instead declared it outrageous that the state should be involved in the sex lives of consenting adults.  "If there be one idea more ridiculous than another, it is that of a legislator who, when a man and a woman are agreed about a business of this sort, thrusts himself in between them, examining situations, regulating times and and prescribing modes and postures." There was one argument which Bentham did consider quite seriously, the effect that legalizing male homosexuality would have on heterosexual women. If there were no men left as a result, or not enough to go round, this would make straight women unhappy and given the utilitarian calculation, this mattered morally. But Bentham concluded, in one of my favourite passges in the history of philosophy, that women’s near monopoly on men’s affections is secure and that we don’t need the law to enforce it. "By the mild ordinances of nature the fair sex enjoy already a monopoly asperfect as other monopolies are, and more perfect than they ought to be,  of the affections of the other and this monopoly is too well secured by  the means that established it to need the support of the harsh constitutions of penal laws. A ribbon or ringlet is a much more suitable  and not less powerful tie to bind a lover than the hangman’s rope of the  executioner. The man may be their friend, but it should seem not a very  judicious friend, who would advise them to conciliate affection by horror and by force."
Lesbian sex? What of it, you ask. Bentham with his usual wit notes that while sex between two women was against the law in France, "we know nothing of this in England."

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