From the point of view of the legislator, we ask: "Is this the best punishment to assign for this type of offence?" It seems to me that the only way in which this question can be rationally discussed is the utilitarian way: that is by considering the consequences for society of adopting or not adopting the penal law in question. What other type of argument is relevant? Admittedly one could appeal to Scripture, but the New Testament was not intended as a text-book of penology, and some of the penal ideas of the Old Testament are barbarous. Certainly if we knew that God had said that such-and-such was the law we should adopt we should be foolish not to adopt it. But how does God know that it is the best law? God is rational and must have argued rationally to His decision. How else, then, than by arguing in the way we should, if we were rational, that is, in the Utilitarian way? . . . There is something else that [C. S.] Lewis might put in the place of Utilitarian argument: an appeal to the Law of Nature. I do not know what this is. But I think I know what the use of the expression "Law of Nature" is. It is this: "this is the Law of Nature" = "this is the rule that ought to be adopted", said by someone who wishes to disguise his own dogmatism and to conceal the fact that he is either unable or too lazy to search for a rational (i.e. a Utilitarian) justification of the proposed measure.
(J. J. C. Smart, "The Humanitarian Theory of Punishment," Res Judicatae 6 [fall 1954]: 368-71, at 369 [italics in original; ellipsis added])
Note from KBJ: This is scandalous. Smart says that he doesn't know what the law of nature is. Has he read Aquinas, Hobbes, Locke, or any of a number of other great thinkers? Imagine someone saying that he or she doesn't know what utilitarianism is, and then defining "this is utility maximizing" as "this is the act that ought to be performed," said by someone who wishes to disguise his own dogmatism and to conceal the fact that he is either unable or too lazy to search for a rational (i.e. a natural-law) justification for the proposed measure. By the way, note the conflation of rationality and utilitarianism. How convenient! You can always win a debate if you define your opponents as irrational.
Keith Burgess-Jackson, J.D., Ph.D. 