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Bentham, Law and Marriage: A Utilitarian Code of Law in by Mary Sokol

By Mary Sokol

Sokol locations Bentham in his ancient context, finding his proposal in the overdue eighteenth-century debates on felony, political, philosophical and literary concerns of marriage. >

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Extra info for Bentham, Law and Marriage: A Utilitarian Code of Law in Historical Contexts

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Despite its presence in the penal code, Bentham provided no punishment for forced marriage but instead declared that the marriage would be held void. This, he wrote, would have the effect of taking away the inducement for committing the crime in the first place. 73 Bentham thought such forced marriages to be so iniquitous that no penalty should be incurred by the unhappy couple should they later commit adultery.

In addition, the more a wife multiplies her infidelities, the greater will be her husband’s danger of finding himself raising the children of other men, which is a burden that does not elicit the sentiment of paternity. 65 He then turned his attention to the children that may possibly result from an extramarital union. He thought that the dangers relating to the obligation to raise the children of others would be less onerous in the case where it is the wife who takes on this role. 66 Bentham incorporated the existing rules of canon law into his marriage code, holding that children produced by a wife during their marriage will be deemed to be legitimate, whereas the children born to another woman will not be deemed to be the husband’s unless the affair was with an unmarried woman.

122 Unfortunately, de Gouges fell foul of the Jacobins and went to the guillotine in 1793, notorious in her death as in her life. Bentham’s law of marriage was strongly secular. 123 While it is clear that the canon law of marriage did not provide him with his idea for short-term marriage nevertheless it can be argued that his marriage law owed much to canon law. For example, incest did not become a secular crime until 1908124 but Bentham wrote extensively on this canon law offence. His language, as when he wrote of the ‘evil fame of chastity’,125 and the instructions he gave to his legislator to punish ‘the “rare” offence of incest’ as the English church courts did (by ignominious punishment or a fine) rather than by death as in France,126 all indicate his familiarity with the jurisdiction and work of the church courts.

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