In the Principles of the Penal Code, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was sceptical of the need to create offences, but grudgingly accepted their value in light of deficiencies in procedure and the judiciary. These days the scepticism is even greater, with courts and commentators in the United States, Canada, the United Kingdom and elsewhere believing that such ‘proxy’ offences deny a defendant the right to establish that he did not engage in the conduct that the presumed offence probabilistically but not necessarily indicates. On closer analysis, however, such scepticism appears unjustified. Almost all offences, and indeed almost all legal rules, are premised on a probabilistic relationship between the behaviour the rule encompasses and the behaviour that is the rule-maker's real concern. Presumed offences may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules.
1 Bentham, Jeremy, Principles of the Penal Code, book 4, ch. 15, in The Theory of Legislation, trans. Hildreth, Richard from Etienne Dumont, ed. Ogden, C. K. (London, 1931), pp. 425–7.
2 That indicators often do not cause what they indicate is obvious – smoke does not cause fires. And even statistically non-spurious indications are often not caused by the phenomenon they indicate. Slurred speech is an indicator of impaired driving even though impaired driving does not cause slurred speech. And although increased ice cream sales indicate increased bee stings, bee stings do not cause ice cream sales.
3 In using the term ‘accessory’, Bentham was not referring to individuals who are accessories to crime according to contemporary criminal law terminology. Rather, he meant only to distinguish those actions which are treated as offences because of some relationship with principal offences. Bentham's four types of principal offence are best understood as representing four different relationships between an accessory (or adjunct, or secondary) offence and a primary offence.
4 Among the valuable contributions are Alexander, Larry and Ferzan, Kimberly, Crime and Culpability: A Theory of Criminal Law (Cambridge, 2009); Hart, H. L. A., Punishment and Responsibility: Essays in the Philosophy of Law (Oxford, 1978), pp. 126–31; Moore, Michael, Placing Blame: A General Theory of the Criminal Law (Oxford, 1997); Alexander, Larry, ‘Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction: An Essay in Memory of Myke Bayles’, Law and Philosophy 12 (1993), pp. 33–67; Alexander, Larry and Kessler, Kimberly D., ‘Mens Rea and Inchoate Crimes’, Journal of Criminal Law and Criminology 87 (1997), pp. 1138–72; Husak, Douglas, ‘The Nature and Justifiability of Non-Consummate Offenses’, Arizona Law Review 37 (1995), pp. 151–83.
5 Bentham also included ‘cruelty to animals’, on the basis of it being ‘an incentive to cruelty towards men’. Cruelty to animals may or may not be an incentive to or otherwise causal of cruelty towards humans, but it is curious that Bentham, who famously included all creatures capable of suffering within the utilitarian calculus (Jeremy Bentham, Principles of Morals and Legislation, ch. XVII, sect. 4 (1789; 1988), p. 311), did not treat cruelty towards animals as a wrong in itself, independent of its propensity to cause cruelty to humans.
6 The Oxford English Dictionary defines ‘prodigality’ as ‘reckless extravagance in expenditure, wastefulness’.
7 In this article I bracket the empirical questions whether marijuana use is a causal contributor to the use of so-called hard drugs, whether being a consumer of obscene material increases the likelihood that the consumer will engage in acts of sexual violence, and whether users of child pornography are, because of that use, more prone to become sexual abusers of children.
8 Blackstone, William, Commentaries on the Laws of England, vol. 1 (London, 1765), pp. 54–8. Blackstone understood malum in se crimes, such as murder, theft and perjury, as those acts that are prohibited by ‘a superior law’, meaning the law of God, and malum prohibitum crimes, such as the unlawful killing of game animals, as those involving the transgression of ‘positive duties’ but not a ‘moral offence’.
9 The distinction between malum in se and malum prohibitum, ‘being so shrewd, and sounding so pretty, and being in Latin, has no sort of occasion to have any meaning to it: accordingly it has none’. Bentham, Jeremy, A Comment on the Commentaries and A Fragment on Government, ed. Burns, J. H. and Hart, H. L. A., 2nd edn. (London, 1996), p. 63.
10 In Bentham's time, ‘sure’ meant trustworthy or reliable, but not necessarily certain.
11 See Oberman, Michelle, ‘Mothers Who Kill: Coming to Terms with Modern American Infanticide’, American Criminal Law Review 34 (1996), pp. 1–91, at 6–20; Wrightson, K., ‘Infanticide in English History’, Criminal Justice History 3 (1982), pp. 6–37.
12 Principles of the Penal Code was written around 1789 and published in French in 1802, both dates preceding the enactment of the Infanticide Act of 1803. Nevertheless, proposals for such a law were widely circulated and discussed from the 1770s on, and Bentham may have been thinking of these statutory proposals in addition to the statutes already on the books.
13 Merchant Shipping Act of 1854, §2 (UK).
14 Few ships literally went down with all hands. More commonly, the crew would abandon a ship in distress, and if the ship never actually sank (if, for example, it ran aground on an island, or floated aimlessly without masts or steering apparatus) it might well be found some time later.
15 Bentham provides two other examples, but neither is as clear as those of infanticide or concealing shipwrecked property. One is the capital crime of ‘meet[ing] together armed and disguised, because this is supposed to be a proof of a formed design to offer violent resistance to the officers of the customs’. It is true that the indicating act of meeting armed and disguised might indicate an illegal plan, but it might also constitute a preparatory offence in itself, making the example more complicated. Similarly, the example of the offence of ‘hav[ing] stolen goods in possession without being able to render a satisfactory account of how they were obtained’ is complicated by the element of the actor not ‘being able to render a satisfactory account’. Because it is difficult to imagine an innocent explanation for being unable to render a satisfactory account, the example is less clearly a true presumed or evidentiary offence.
16 31 U.S.C. §5316 (2006). Implementing and clarifying regulations are in 31 C.F.R. §103.23(a)(2008). The regulations were at the centre of United States v. Bajakajian, 524 U.S. 321 (1998), in which the United States Supreme Court concluded that the penalty of forfeiture of all undeclared money – $357,144 – was an ‘excessive fine’ in violation of the Seventh Amendment to the Constitution. Interestingly, the Court concluded that Bajakajian was ‘not a money launderer, a drug trafficker, or a tax evader’, a conclusion curiously based on an unwillingness to consider the intentional failure to report such a large sum, despite knowing of the reporting requirement, as any evidence of drug dealing, money laundering or tax evasion.
17 Consider in this regard the frequency with which public officials and others in responsible positions are punished for ‘appearances of impropriety’. In such instances is it the appearance that is actually the problem, or instead are appearance offences simply shortcuts taken to avoid the problems of proof and identification involved in apprehending those who have been guilty of actual and not just apparent impropriety?
18 Fla. Stat. §893.135(1)(b) (2008).
19 In contrast to Florida, Illinois treats possession of more than a statutorily specified amount as evidence of dealing or trafficking, but in Illinois such possession is evidence of the primary offence and not treated as the primary offence itself. See People v. Munoz, 432 N.E.2d 370 (Ill. App. 3rd Dist. 1982); People v. Atencia, 446 N.E.2d 1243 (Ill. App. 1st Dist. 1983).
20 2003 c. 42.
21 I am grateful to James Edwards for the reference and description.
22 See Chisholm, Roderick, Theory of Knowledge, 2nd edn. (Englewood Cliffs, 1977), p. 7; Ullman-Margalit, Edna, ‘On Presumption’, Journal of Philosophy 80 (1983), pp. 143–63; Ullman-Margalit, Edna and Margalit, Avishai, ‘Analyticity by Way of Presumption’, Canadian Journal of Philosophy 12 (1982), pp. 435–52.
23 A good overview in civil context is Allen, Ronald, ‘Presumptions in Civil Actions Reconsidered’, Iowa Law Review 66 (1981), pp. 843–78. For the criminal law, where rights or constitutional concerns are implicated, see Jeffries, John Calvin Jr., and Stephan, Paul B. III, ‘Defenses, Presumptions, and Burden of Proof in the Criminal Law’, Yale Law Journal 88 (1979), pp. 1325–1404.
24 Goodright v. Moss, 2 Cowp. 519, 98 Eng. Rep. 1257 (1777) (Mansfield, L.J.); Cal. Evid. Code §621. This presumption might serve multiple purposes. One, my primary concern here, is evidentiary, but the law might treat support for a child as sufficiently important to justify assigning responsibility to certain husbands even when they are not in fact the fathers.
25 See, for example, United States National Bank v. Underwriters at Lloyd's, London, 396 P.2d 765 (Or. 1964).
26 See Leary v. United States, 395 U.S. 6 (1969).
27 In the United States, there are circumstances under which such presumptions in criminal cases are held to violate the constitutional requirement that the prosecution bear the burden of proving each element of an offence, and proving it in accordance with the ‘beyond a reasonable doubt’ standard constitutionally required in most criminal cases. For the shifting nature of the constitutional doctrine on criminal presumptions, compare Mullaney v. Wilbur, 421 U.S. 684 (1975), with Patterson v. New York, 432 U.S. 197 (1977), with Sandstrom v. Montana, 442 U.S. 510 (1979), with County of Ulster v. Allen, 442 U.S. 140 (1979), with Dixon v. United States, 126 S. Ct. 2437 (2006), with Clark v. Arizona, 126 S. Ct. 2709 (2006).
28 Of some relevance here is the United States Supreme Court's fortunately brief foray into the so-called irrebuttable presumption doctrine in constitutional law. For a time, the Court considered statutes that created irrebuttable evidentiary regulatory presumptions as creating problems of due process, as with a Connecticut statute invalidated because it presumed irrebuttably that students who had recently moved into the state were not genuine residents for purposes of tuition rates. Vlandis v. Kline, 412 U.S. 441 (1973). As the Court soon recognized, however, the creation of an irrebuttable presumption that some act reflects some broader underlying justification is an inevitable component of any rule and any regulation (see Schauer, Frederick, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford, 1991)), and the irrebuttable presumption doctrine was scrapped. Weinberger v. Salfi, 422 U.S. 749 (1975).
29 On the distinction between evidence and what evidence is evidence for, in legal context, see Nesson, Charles, ‘The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts’, Harvard Law Review 98 (1985), pp. 1357–92, at 1378–85.
30 R. Oakes,  S.C.R. 103.
31 172 N.E.2d 273 (NY 1961).
32 Delmonico v. State, 155 So. 2d 368 (Fla. 1963).
33 State v. Walker, 444 So. 2d 1137 (Fla. App. 2nd Dist. 1984).
34 State v. Birdsell, 104 So. 2d 148 (La. 1958).
35 See Edwards, James, ‘Justice Denied: The Criminal Law and the Ouster of the Courts’, Oxford Journal of Legal Studies 30 (2010), pp. 725–48; Tadros, Victor, ‘Crimes and Security’, Modern Law Review 71 (2008), pp. 940–70.
36 ‘[I]t is better that ten guilty persons escape, than that one innocent suffer’ (Blackstone, vol. 4, p. 358).
37 Bentham, Jeremy, A Fragment on Government and an Introduction to the Principles of Morals and Legislation, ed. Harrison, W. (Oxford, 1948), p. 430. Two seminal analyses are Postema, Gerald J., Bentham and the Common Law Tradition (Oxford, 1986), pp. 403–8, and Dan-Cohen, Meir, ‘Decision Rules and Conduct Rules: On Acoustic Separation in the Criminal Law’, Harvard Law Review 97 (1984), pp. 625–77.
38 In describing Bentham in this way, I am understanding him as an important precursor to, or perhaps even a founder of, an indirect or rule-based version of utilitarianism. Although Postema plausibly understands Bentham's decision rules – the instructions to judges in adjudicating disputes – as embodying a sophisticated and rule-sensitive version of act-utilitarianism, Bentham's strongly rule-based view of conduct rules, and his unwillingness to grant the subjects of those rules licence to depart from them even on the basis of their own assessment of whether aggregate utility would be benefited by the departure, represents a commitment to a form of rule-utilitarianism preceding the one by John Stuart Mill famously explicated in Urmson, J. O., ‘The Interpretation of the Moral Philosophy of J.S. Mill’, Philosophical Quarterly 3 (1953), pp. 33–9. For discussion of what this understanding of rules in Bentham and the utilitarian tradition says about the nature of rules in general, compare Schauer, Frederick, ‘Rules and the Rule of Law’, Harvard Journal of Law & Public Policy 14 (1991), pp. 645–94, with Postema, Gerald J., ‘Positivism, I Presume? . . . Comments on Schauer's ‘Rules and the Rule of Law’, Harvard Journal of Law and Public Policy 14 (1991), pp. 797–822.
39 Bentham would indeed have authorized judges to ameliorate, in the service of utility, the occasional negative consequences of inflexible rules (see Postema, Bentham and the Common Law Tradition, pp. 408–21), but in doing so within a framework of rules the judges would still be operating in the shadow of an unwillingness to grant to judges the power to make unmediated calculations of aggregate utility in every case.
40 Especially the sexually explicit ones almost certainly at issue in the Bunis case.
41 The most prominent defence of particularism is Dancy, Jonathan, Ethics without Principles (Oxford, 2004); Dancy, Jonathan, Moral Reasons (Oxford, 1993). My own anti-particularist views are scattered throughout Schauer, Frederick, Profiles, Probabilities, and Stereotypes (Cambridge, Mass., 2003). The debates about particularism are best captured in the various contributions in Hooker, Brad and Little, Margaret Olivia (eds.), Moral Particularism (Oxford, 2001).
42 For an overview of the debates, see Brad Hooker, ‘Rule Consequentialism’, Stanford Encyclopedia of Philosophy, <http://plato.stanford.edu/entries/consequentialism-rule/> (2008). And compare, for example, the defences of rule-utilitarianism in Hooker, Brad, Ideal Code, Real World (Oxford, 2000), and Johnson, Conrad, Moral Legislation (Cambridge, 1991), with the sophisticated act-utilitarianism in Regan, Donald H., Utilitarianism and Co-operation (Oxford, 1980), and Smart, J. J. C., ‘Extreme and Restricted Utilitarianism’, Philosophical Quarterly 6 (1956), pp. 344–54.
43 Earlier versions of this article were presented to the Department of Philosophy at McMaster University, at the University of Virginia School of Law Faculty Workshop, at the Radzyner School of Law, Interdisciplinary Center Herzliya (Israel), Faculty Colloquium, and in the University of North Carolina School of Law Faculty Enrichment Series. I have benefited not only from the audience questions on those occasions, but also from the written comments and suggestions of Richard Bonnie, Josh Bowers, James Edwards, Jason Johnston, Tom Nachbar, Dan Ortiz and Stefan Sciaraffa.
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