In a little-noticed segment of the Principles of the Penal Code,Footnote ¹ Jeremy Bentham discussed the category of crimes he labelled ‘presumed offences’. These crimes, which Bentham also referred to as ‘evidentiary offences’, were deemed offences not because the prohibited behaviour is intrinsically wrong, and not even because a legislature has determined the behaviour to be socially suboptimal even if not morally reprehensible. Rather, presumed offences, for Bentham, were those in which some form of behaviour, innocent in itself, probabilistically indicates that the person engaging in the behaviour has also engaged in other and wrongful behaviour. What makes a presumed offence evidentiary, therefore, is that conduct is prohibited just because it provides evidence of other and wrongful conduct, even if the conduct providing the evidence is, in itself, and like much evidence in general, entirely blameless, and even if there is no causal relationship between the indicating conduct and the statistically indicated wrong.Footnote ² We could also designate such offences as ‘proxy’ offences or ‘surrogate’ offences, both terms capturing Bentham's idea that the designated offence is at one remove from the conduct that is the state's genuine concern.

Bentham's treatment of presumed offences is cursory, seemingly because he viewed such offences not as central to the criminal law, but instead as epiphenomenal accommodations to the defects of procedural law and the failings of judges. A closer analysis of presumed offences, however, reveals them not only to be more prevalent, even now, than Bentham supposed and than we typically recognize, but also that presumed offences offer a valuable perspective on the operation and structure of criminal law, and indeed of law itself. Bentham's identification of presumed or evidentiary offences was an important insight, but even he may have underestimated just how perceptive the insight was.

I

Bentham treats presumed offences as one of four types of accessory offence.Footnote ³ The first is the most familiar – the category of attempts to commit a ‘principal offence’. The legal and philosophical issues surrounding attempts are complex and important,Footnote ⁴ but because an attempt necessarily involves what Bentham calls ‘a formed intention to commit the principal offence’, there is no question of the possession of a wrongful state of mind on the part of one who attempts to commit a crime. The essential presence of the wrongful state of mind thus excludes the possibility (evidentiary mistakes aside) of punishing truly innocent behaviour, and so the issues raised by attempts as accessory offences are considerably removed from those I discuss here.

The second type of accessory offence is described by Bentham as involving a person who is ‘in a situation in which there is reason to fear that he may presently conceive a criminal design. Such are gaming, prodigality, and idleness, when poverty is added to it.’Footnote ⁵ Again, Bentham provides little detail about the nature of this category, but his examples are revealing. While gaming, prodigalityFootnote ⁶ and idleness may not in Bentham's mind rise to the level of independent or primary offences, nor do they describe praiseworthy behaviour. We can understand Bentham's second type of accessory offence, therefore, as a category of minor wrongs which might not by themselves justify criminalization, but which Bentham thought are criminalized, and for him properly so, because of their tendency to lead to major wrongs by those who engage in them. In modern times, some arguments for criminalizing marijuana use are of this variety, as are many arguments for prohibiting the possession of obscenity or child pornography.Footnote ⁷ For present purposes, however, the important aspects of the crimes in this category are, first, that the criminalized conduct is thought to be causally related to more harmful behaviour, and, second, that the prohibited conduct, although of minor wrongfulness when taken in isolation, is still thought to be somewhat short of morally praiseworthy.

In Bentham's third category of accessory offences, conduct is prohibited because of the possibility that even innocent or valuable forms of the conduct may accidentally cause socially undesirable consequences. Bentham says that some sales of poison or gunpowder fall into this category because they are prohibited, even in the absence of criminal intention, in order to ‘prevent calamities’. Unlike the first two categories, crimes in this category punish conduct that is wrong only because the law makes it so, and the law does so for reasons not touching the motives of the actor or the intrinsic moral quality of the prohibited act. And although Bentham was characteristically acerbic in mocking the category of crimes that since BlackstoneFootnote ⁸ have been referred to as malum prohibitum (in contrast to those that are malum in se),Footnote ⁹ his third category seems to capture many of the crimes that, because they are not intrinsically immoral but are nonetheless contingently socially suboptimal, are characterized according to Blackstone's distinction as malum prohibitum.

II

Bentham's second and third categories are germane to the present discussion, but it is the fourth category that is my principal interest here. This is the category of presumed or evidentiary offences, and Bentham provides a series of intriguing, albeit quaint, examples. In one, he observes that ‘[b]y an English statute, the concealment by the mother of the birth of an illegitimate child, is punished as murder, because such conduct is regarded as a sure proof of infanticide’.Footnote ¹⁰

Bentham does not give an exact reference, but the law to which he was referring might have been any of three different English statutes dealing with infanticide in this manner, each targeted principally at the mothers of illegitimate children who concealed their pregnancy (often with the flowing clothes characteristic of the times) and then attempted further to conceal the birth by killing the newborn child.Footnote ¹¹ One 1623 statute, formally entitled An Act to Prevent the Destroying and Murthering of Bastard Children, commonly known as the Jacobean Law of 1623, treated as murder the act of concealing the death of an illegitimate newborn child. A 1693 statute made it a capital offence to bury the body of a child whose birth had been concealed. And an 1803 law, which superseded the earlier infanticide statutes, made it an offence (albeit not a capital one) to conceal the birth of an illegitimate child who was subsequently found to have died.Footnote ¹²

All these statutes were premised on the frequency (or believed frequency) with which mothers of illegitimate children killed their newborns in order to conceal the fact of having given birth to an illegitimate child. But the very phenomenon that in Victorian and earlier times provided the incentive for infanticide – the shame of illegitimacy, for both mother and child – also provided an incentive to conceal a pregnancy. But when the fact of the shame of illegitimacy is coupled with the frequency of stillbirth in those times, we can see that a statute designed to deal with the killing of a baby who was born alive could also snare within its net the mothers of stillborn children who both before and after the birth still had a strong desire to conceal what would have then been considered a highly shameful act. Moreover, the same fear of social condemnation often led mothers of illegitimate children to give birth in secret, thus rendering unlikely the availability of a witness who might testify in court that the child was stillborn. The secrecy surrounding illegitimate birth, with the consequent effect on legal proof, thus provided the basis for statutes creating presumed offences – statutes that punished the indicating act of concealment rather than (or in addition to) the criminal act of killing, even though on some (and perhaps many) occasions – an illegitimate stillborn birth – the indications of the indicating act might well have been false.

Bentham's other examples display the same characteristic of a probabilistic relationship between the prohibited conduct and real wrong, especially the example of a statute making it ‘an offence to obliterate the marks upon shipwrecked property, because such an act indicates intention of theft’. Such statutes, which still exist in the United Kingdom and its former colonies, typically make it a crime to ‘deface[] or obliterate[] the marks on any ship or boat wrecked, or abandoned, or in distress’,Footnote ¹³ or to do the same to the marks on any property being transported on such a vessel. In an era when shipwrecks and missing ships were common, when many ships resembled each other, and when communicating the exact characteristics of a ship lost at sea was difficult, one who unlawfully took a ship or appropriated a wrecked one outside the laws relating to salvage of abandoned vessels could often avoid apprehension simply by changing the name of the ship and, perhaps, by repainting it. But because it would have been difficult to prove unlawful taking of, for example, a ship that left no survivors,Footnote ¹⁴ statutes such as this made criminal an act that would in almost all cases have indicated unlawful possession. Once again, however, the ‘almost’ is important. The markings of a shipwreck lawfully possessed might have been changed to conceal its identity from pirates, or from an enemy, but the statute criminalized the indicator without regard to the possibility – admittedly slight, but not non-existent – that the indicator could give a false indication.

III

Bentham's examplesFootnote ¹⁵ of shipwrecks and infanticide seem dated, but numerous contemporary crimes fit the category he identified. Consider, for example, the crime of entering or leaving the United States while carrying $10,000 or more of unreported cash or cash-equivalents.Footnote ¹⁶ Unlike countries that control currency exports and imports as part of their financial policy, the United States does not limit the amount of money, in whatever form, that people may bring into or take out of the country. The crime consists not in importing or exporting cash, but only in failing to declare to the customs authorities the amount of cash being imported or exported.

Once we understand that the crime is not the import or export of cash, but rather the import or export of unreported cash, we can see that criminalization is not premised on there being anything intrinsically or necessarily wrong about carrying large amounts of cash into or out of the United States. Instead, criminalization is based on the belief – seemingly well-founded – that those who carry large amounts of cash across borders usually do so in aid of other crimes, typically money laundering, drug dealing or tax evasion. As with the presumed offences that Bentham identified, the offence is based not on the intrinsic wrong of the criminalized conduct, but instead on the view that such conduct probabilistically indicates other conduct, with the indicated and not the indicating conduct being the real concern. Just as the unreported birth of a subsequently dead child was believed to constitute strong evidence of infanticide and thus prosecuted as infanticide, and just as the presence of altered markings on wrecked ships was thought to be evidence of theft and criminalized as such, so too is the unreported carrying of cash into or out of the United States believed to be strong evidence of tax evasion, money laundering or drug dealing. The cross-border transportation of large amounts of unreported cash is accordingly prosecuted as a serious crime because of the difficulties involved in proving the primary crime that the indicating crime probabilistically indicates.Footnote ¹⁷

Even more obvious examples of presumed crimes are those laws treating possession of more than a specified amount of a controlled substance as drug dealing. Under Florida law, for example, anyone in possession of more than 28 grams of cocaine is considered to be a trafficker in cocaine and is punished accordingly.Footnote ¹⁸ Note that the relevant statute does not simply treat possession of more than the specified amount as evidence that one is a dealer.Footnote ¹⁹ Rather, one simply is a dealer according to Florida law if one possesses 28 grams or more, even if one is not in (non-legal) fact a dealer, just as one was guilty of the crime of infanticide by not reporting the birth of a subsequently dead infant even if one had not committed infanticide at all. Unlike the previous examples, however, whether from Bentham's day or the present, there is no totally innocent explanation for the proscribed behaviour. Under Florida law, possession of any amount of cocaine is a crime, and thus the indicating behaviour is always itself criminal. Nevertheless, the indicating behaviour might still be innocent with respect to the crime of actually being a drug dealer, because some non-dealer might simply be hoarding large amounts for personal consumption. But because such (sort of) innocent behaviour is statistically unlikely, even if not impossible, Florida treats the statistical indication as sufficient to treat all possessors of greater than the specified amount as drug dealers, even if in actual fact they are not.

The relationship between the genuine concern and the definition of the presumed offence is similar in the United Kingdom's Sexual Offences Act 2003.Footnote ²⁰ Sections 9 and 13 of that act make it an offence for any person aged eighteen or older to engage in consensual sexual conduct with someone under the age of sixteen. But unlike the concerns about morality or age of consent that underlay traditional statutory rape laws, this law was targeted at overtly manipulative or coercive sexual conduct. Believing that such manipulation or coercion would be too difficult to prove, however, Parliament prohibited conduct that it believed was easier to prove but which typically indicated that actual coercion had taken place.Footnote ²¹

IV

Describing such indicating or evidentiary offences as presumed offences exposes the close connection between presumed offences and presumptions in general. In law, but not only in law, presumptions play a substantial role in our epistemic judgments.Footnote ²² When we look out of the window and see cars with windscreen wipers moving, we presume it is raining, even though it might not be. If we see a man running out of a bank with mask and gun, we presume him a bank robber, although it is possible he is simply crazy or a movie actor. And if we encounter someone in a police car wearing a police uniform, we presume her to be a police officer, even though the uniform and the car may be fraudulent.

Presumptions are as much a part of law as of everyday epistemic experience.Footnote ²³ The common law and numerous modern statutes presume a husband to be the father of a child born during marriage,Footnote ²⁴ and the common law has long presumed that an unexplained death is not a suicide.Footnote ²⁵ In the criminal law, an American federal statute presumes that any illegal drug seized at the border is imported, although it is possible that the drug is entirely domestic.Footnote ²⁶ And in much of the law of evidence and proof, judges and juries are allowed and often required to presume the existence of an unknown fact on the basis of proof of a known one.Footnote ²⁷

Although presumptions are a ubiquitous component of legal evidence, their widespread acceptability seems largely a function of their typical defeasibility. When we see moving wipers but also observe a broken fire hose spewing water, we relinquish our presumption of rain, just as seeing a movie camera and accompanying crew in the vicinity of the front door of the bank would cause us to give up our presumption that the man with the mask was a real bank robber. And in law, the typical evidentiary presumption is rebuttable. Presumptions of paternity can be overcome by DNA tests, and the presumption against suicide is not conclusive, but rather shifts the burden of persuasion to the opposing party, often in this context a life insurance company, to provide evidence to the contrary. Presumptions in law and in life typically provide useful and statistically reliable evidentiary shortcuts, but the fact that they are ordinarily not conclusive appears to have forestalled most worries about injustice.

V

Although evidentiary presumptions are common, making such presumptions a part of the definition of an offence, as with Bentham's presumed offences, seems often to generate a far more hostile reaction.Footnote ²⁸ It is one thing, after all, to conclude that where there is smoke there is fire, but the soundness of that epistemic conclusion does not lead us to define fire by the presence of smoke, and collapsing the distinction between the evidence for an act and the definition of that actFootnote ²⁹ is what presumed or evidentiary offences typically do.

Or at least that seems to be what Bentham thought. Although he identified the class of presumed offences, and did not suggest that they should be eliminated from the law as he knew it, Bentham viewed presumed offences as grudging accommodations to the procedural imperfections of English law rather than as aspects of law to be admired or embraced. His analysis deserves to be quoted in full:

Bentham's view that there is something dubious about presumed offences turns out to be widely shared. The Supreme Court of Canada, for example, in the 1986 decision that established the structure of inquiry for conflicts between rights protected under the Charter of Rights and Freedoms and governmental claims of the need to restrict those rights, held that there was no ‘rational’ basis for presuming, even rebuttably, that a possessor of narcotics was trafficking in those drugs.Footnote ³⁰ And consider the 1961 decision of the New York Court of Appeals in a case called People v. Bunis.Footnote ³¹ A New York law had made the resale of books and magazines without covers a crime. Underlying the law is the widespread industry practice, then and now, of allowing retailers to return unsold copies to the wholesaler and ultimately to the publisher for full credit. In order to save shipping costs, however, only the covers are returned to the publisher, with the retailer or wholesaler destroying the remainder of the book or magazine. Because unscrupulous dealers could resell the coverless copies for which they had already received full return credit, however, New York enacted the law in order to discourage this form of fraud.

As with the statutes that Bentham described and the prohibition on unreported currency movements, the prohibition on the sale of coverless books was entirely indicative. There is nothing inherently wrong with selling a coverless book or magazine, but because such sales usually if not inevitably indicate a hard-to-discover fraudulent act, New York treated the inherently innocent act that typically pointed to an underlying wrongful one as a distinct crime. When the law was challenged, however, the New York Court of Appeals, the state's highest court, invalidated the law, concluding that punishing the imperfect indication without allowing an individual to show that she was not within the class of the genuinely guilty violated that norm of fairness and justice that in American law typically goes by the name of ‘due process’.

The New York decision was hardly atypical in its scepticism of evidentiary offences. A Florida law had prohibited possession of spear guns within an area designated as prohibiting spearfishing, but the Supreme Court of Florida invalidated the law, even while acknowledging its statistical reliability, for punishing those whose possession of such equipment might not be in the service of illegal activities.Footnote ³² Another Florida court some years later struck down a law prohibiting the repackaging of legally obtained narcotics, again because although such repackaging almost always indicated illegal reselling, the imperfection of the indication rendered the law constitutionally impermissible.Footnote ³³ In Louisiana, the state's highest court found constitutionally defective a law that had prohibited the possession of hypodermic needles without prescription by any person without formal medical qualifications, once again because of the possibility of lawful use, and again in the face of strong evidence that the overwhelming proportion of such possessions accompanied and thus indicated illegal use or sale of drugs.Footnote ³⁴ Even more recently, British commentators have harshly attacked a wide variety of laws – including laws dealing with sexual assault, terrorism and immigration – that do not allow a person charged with an offence as defined in the statutes to argue that he has not committed the deeper wrong that the statute is in reality designed to combat.Footnote ³⁵

The concern embodied in these decisions and academic observations is not, or at least not directly, a worry about the conflation of epistemic with ontological issues. It is indeed a mistake to understand the evidence for x as constitutive of x, and the lack of evidence for something's existence is hardly conclusive of its non-existence. That neither I nor anyone else, to my knowledge, has any evidence for the colour of the core of the planet Neptune does not entail that it does not have a colour. What exists and what evidence we have for something's existence are distinct issues, and it would be grounds for legitimate worry if the law fell into this all-too-familiar trap. But most presumed offences recognize the distinction between the evidence and what the evidence is evidence for, and for Bentham, for many courts and for some modern commentators the concern appears to lie elsewhere.

Although Bentham viewed presumed offences as necessary accommodations to a world of imperfect procedures and even more imperfect judges, he appears implicitly to have believed that without these imperfections the criminal law in particular and law in general ought not to rely on probabilistic indications of primary offences, but should instead seek to punish only the primary offences. And that seems to have been the view of the courts and modern commentators as well. If the primary offence is illegal spearfishing, then that is what should be proscribed, and if the genuine concern with respect to selling books without covers is fraud, then it is fraud that should be punished, and it is proof of fraud itself that should be required to be proved. If the primary offence is coercing juveniles into sex, then that is what should be prohibited, and not those sexual contacts that are highly likely but not necessarily to be coercive. Bentham may have had a more generous view of the second-best necessity of presumed offences than did many courts, but Bentham, some modern courts and some commentators appear to have shared the view that presumed offences are in some way undesirable. More particularly, for many courts and commentators, the defect in presumed offences appears to be that they are probabilistic, and consequently incorporate the possibility of punishing those who in fact have done nothing genuinely or intrinsically wrong.

VI

The view that the probabilistic and indirect nature of presumed offences renders them worrisome appears to be at odds with the probabilistic nature of evidence itself. It is true that prosecuting Mr Bunis for selling magazines without covers runs some risk of prosecuting someone who is not engaged in a fraud on publishers and wholesalers, but the probabilistic nature of criminal conviction would not evaporate were the presumed offence to be eliminated. If Bunis were prosecuted directly for fraud, the possibility would still remain that he would be found guilty – faulty evidence might be admitted, or the jury might simply make a mistake – even if he had not engaged in any fraud at all. It is often supposed that this possibility is minimized by use of the ‘proof beyond a reasonable doubt’ standard in criminal cases, and such a high burden of proof provides some protection against erroneous convictions, but there is a difference between ‘proof beyond a reasonable doubt’ and ‘proof to an absolute certainty’. Moreover, such standards are subjective standards of confidence that a decision-maker is expected to have, rather than objective measures of actual probabilities, and as a result even a judge or juror who is absolutely certain might still be wrong. Witnesses sometimes lie and are often innocently mistaken. And various other imperfections of the trial process produce the inevitable possibility that those who are found guilty, directly, of ϕ-ing did not in fact ϕ at all. We strive to reduce the frequency of such events, and in the criminal process we recognize, as did Blackstone centuries ago, that the errors of erroneous conviction are more serious than the errors of erroneous acquittal.Footnote ³⁶ But the only way to eliminate all possibility of erroneous conviction is to eliminate conviction entirely, and because we are properly unwilling to do this we accept the fact that at least some people who are convicted of crimes did not in fact commit the crimes of which they are convicted.

Once we recognize, however, that erroneous conviction is the inevitable even if not desirable by-product of a system that punishes people for wrongdoing, then we can understand why there is no fundamental difference between the probabilistic nature of indirect prosecution under laws creating presumed offences and the probabilistic nature of direct prosecution for the primary offences. In both cases there is some possibility of error, and the way in which errors might arise because of the probabilistic nature of presumed offences is little different from the way in which errors might arise from the probabilistic nature of judicial proof itself.

VII

Scepticism about presumed offences is even more curious once we understand the way in which many primary offences are themselves, in reality, presumed offences. Consider the offence of driving at a speed greater than the posted speed limit. Speeding is an offence not because it is intrinsically wrong. Rather, it is wrong because it is dangerous, but danger – like risk – is itself probabilistic. Not only is a speed limit a crude measure that collapses distinctions in driving skill, weather conditions, traffic and road surface, among many others, but even a speed limit individuated across all these variables is still only an assessment of the probability of dangerous driving, and dangerous driving is itself only an assessment of the probability of an actual accident.

For a committed utilitarian like Bentham, the same point would be even more generalizable. Non-utilitarians might well see murder, theft, fraud and various other offences as premised on non-utilitarian values, and thus might be able to distinguish presumed from primary offences in terms not that different from those of the classic distinction between malum prohibitum and malum in se. But the utilitarian cannot avail himself of such a distinction, and must understand all state-created offences as assessments of the probabilistic tendency of the prohibited conduct to decrease utility and punishment for engaging in that conduct as an assessment of the concomitant probabilistic tendency of the punishment to increase utility. Bentham certainly understood this, and thus, just as he understood the imperfect relationships between concealing a birth and infanticide and between altering a shipwreck's markings and piracy, he also must have understood at the next remove the imperfect relationships between infanticide and utility and between piracy and utility. Consequently, Bentham would have had no reason – except a reason grounded in utility itself, but nowhere explained in Principles of the Penal Code or anywhere else in the Bentham corpus – to view presumed offences as occupying a discrete and marginal corner of the criminal law. For Bentham, especially, the probabilistic nature of presumed offences would have, or at least should have, been understood as a largely undifferentiated aspect of the probabilistic nature of the criminal law itself.

Indeed, the foregoing is not only about the criminal law, but about all legal rules. Few legal rules are in any sense morally ultimate or primary, and for the committed utilitarian no legal rules are ultimate or primary. As Bentham well understood, and as he discussed in explaining his important distinction between conduct rules and decision rules,Footnote ³⁷ we do not have a legal system in which the only conduct-regulating legal rule is a prohibition on reducing aggregate utility (or a mandate to increase aggregate utility). But if utility is the ultimate touchstone, then any rule of conduct can be seen as having as its target an under- and over-inclusive approximation of conduct predicted to increase or decrease utility. And with respect to the criminal law, the specific prohibitions of the criminal law can similarly be understood as the under- and over-inclusive (with respect to utility) prohibitions on utility-reducing behaviour. Aggregate obedience to a concrete legal rule under aggregate circumstances can thus be expected to produce an aggregate maximum (when combined with the same for all other legal rules) of utility, but the necessary generality of any rule, legal or otherwise, will ensure that on some particular occasions following the rule will produce an outcome other than, and worse than, the outcome that would have been produced under ideal conditions and perfect information by a perfect decision-maker seeking only and directly to maximize utility.Footnote ³⁸

That Bentham viewed presumed offences as second-best accommodations to a legal system he despised for its inefficiency and corruption comes as no surprise. More surprising is that he saw presumed offences as different from other offences and different from all of law. If presumed offences would have been unnecessary with better procedures and better judges, as Bentham explicitly suggested in these passages of Principles of the Penal Code, then so too, even with perfect procedures and perfect judges, would have been all specified crimes and all specified legal rules. Presumed offences are indeed second-best accommodations to an imperfect world and limited human capacity, but for a utilitarian and certainly for Bentham the designation of specific offences can only be understood in precisely the same way.

Obviously Bentham did not believe that a mandate to maximize utility would have been sufficient, for he was well aware of the cognitive failings of citizens and judges.Footnote ³⁹ Indeed, that is precisely why he so celebrated and actively promoted precisely drafted legal codes and, in part, why he so abhorred the common law. But the Bentham who thought judicial law-making discretion anathema should also have recognized that presumed offences are no more an accommodation to a world of flawed human decision-makers than is codified law in general, and the fact that he seemed to distinguish the two phenomena remains a curiosity in need of explanation.

VIII

Presumed offences, primary offences and law itself are all, as we have seen, probabilistic, but it would be a mistake to assume that for that reason they are all equivalent. Probabilities vary, and so does the likelihood that any legal rule will produce the all-things-considered correct outcome on any particular occasion. The rule about altered markings on shipwrecks and shipwrecked property may well properly identify stolen property on almost all occasions, but, given the cultural dimensions of illegitimacy in the eighteenth and early nineteenth centuries, the presumption of infanticide would probably have had a higher error rate. And given the possible existence of secondary and tertiary markets in books and magazines without covers,Footnote ⁴⁰ the New York law invalidated in the Bunis case may also have had an intolerably low accuracy rate, at least in the context of criminal law. That all of these laws deal in probabilities does not mean that all probabilities are equivalent.

The instinct that so many courts have had, and to which Bentham appears also to have fallen prey, might be thought of as not only an admirable instinct towards accuracy, but also a more debatable instinct towards individuation. Even those of us who reject the view that moral judgement is necessarily particularisticFootnote ⁴¹ recognize that moral, legal and policy judgments may still be understood as more or less particularistic, or, conversely, more or less general. But it does not follow from this recognition that particularism or individuation is acontextually superior to generalization and the use of coarser rules. As the debates about act- and rule-consequentialism make clear,Footnote ⁴² maximally act-based decision-making has its normative competitors. And even if act-based decision-making is hard to fault in an ideal world, as a matter of non-ideal theory in a multi-decision-maker environment – one in which those who make the rules are not necessarily the same as those who are expected to follow them – maximum particularism or individuation may come at a cost, and the cost may at times be high.

Thus emerge both empirical and normative questions. Empirically, do people have an instinct (a term I intend as agnostic among whether that instinct is genetic, biological or simply learned) towards the particular? Does the Aristotelian view that justice is individual and particular reflect deep preferences among people, including the people who happen to become judges in cases involving coverless magazines and spearfishing equipment? And if – a big if – this penchant for more individuation and smaller rather than larger categories of decision, for context above all, and for taking everything into account, is a deep and widespread human desire, is it something that can be modified by education or training? And if people can be trained to think and decide in larger rather than in smaller units, in classes rather than in individuals, is that a good thing, and, if so, when and where? These are the normative questions that ultimately emerge from recognizing that the probabilistic and indirect nature of presumed offences is less different from the rest of law and the rest of decision-making than even Bentham may have recognized, but tackling these normative questions must wait for another occasion.Footnote ⁴³