Bentham’s theory of law

Jeremy Bentham's theory about law

1. BENTHAM’S THEORY OF LAW By- SHREYA CHHETRI,STUDENT NEW LAW COLLEGE, PUNE BHARATI VIDYAPEETH DEEMED UNIVERSITY

2. JEREMY BENTHAM (1748-1832) One of the earliest legal positivist and considered to be the founder of positivism. English Utilitarian philosopher and social reformer. Popularly known for his theory of “utilitarianism”, also called as “doctrine of hedonism” He expounded principle of utility in his “Limits of Jurisprudence Defined” published in 1945. He did not think morality as an essential attribute of law and was of the view that law is in need of revision. Rejected the notion of reason to decide the morality of action. Principle of antipathy and sympathy is not sufficient to decide morality of action Principle of utility is a morally right principle of action of every situation. Defined a hedonistic method to calculate the moral rightness or wrongness of an action, which is known as hedonistic calculus. Bentham’s view about law were popularized by his disciple John Austin.

3. TWO DOCTRINES OF BENTHAM PSYCHOLOGICAL HEDONISM Human actions are motivated by the desire to enjoy pleasure or prevent pain. Enjoyment of pleasure or prevent pain is the only rational aim of human action. ETHICAL HEDONISM Wrongness or rightness of an action is determined by whether the action create happiness or unhappiness. If an action conforms to principle of utility (action tends to promote happiness or prevent unhappiness) then the action is morally right or at least not morally wrong. That is an action should have an overall tendency to promote the greatest amount of happiness. Happiness is identified with predominance of pleasure and absence of pain.

4. CLASSIFICATION OF PLEASURE & PAIN Pleasure and Pain may be caused by: Various kinds of sensation Thoughts Emotions Memories Expectations Associations Pleasure may be caused by the relief of pain and satisfaction of desire. Pain maybe caused by cessation of pleasure and frustration of desire. According to Bentham, “nature has placed mankind under governance of two sovereign masters i.e. pleasure and pain”. We owe them all our ideas; we refer to them all our judgments and all the determination of life

5. TYPES OF SANCTION Bentham calls the various kinds of pleasures and pain as sanctions and divides them into four categories. These are: Physical Sanction : pain and pleasure arise due to normal and natural or ordinary course of nature. Political Sanction : pain and pleasure arise due to an action of the sovereign authority or government. Moral Sanction : pain and pleasure is attached to an action by the will of the individual who are not in authority. Religious Sanction : pain and pleasure is attached to an action caused by the supernatural power or a superior invisible being.

6. THEORY OF UTILITARIANISM More emphasis was given to “individualism”. He discussed the principle in “ Introduction to Principles of Morals & Legislation”. Right aim of legislation is carrying out the principle of utility, which means that law shall prevent evil and produce good. Defined utility as “the property or tendency of a thing to prevent some evil or procure some good.” Proper end of every law is the promotion of “greatest happiness in greatest number”. Function of law is to unfetter the individual from the bondage. Once individual is free, he will be able to care about his future. He supported the principle of “ laissez faire ” state. The task of the government is to promote happiness of society by furthering enjoyment of pleasure & affording security against pain.

7. His theory proposed two premises: C onsequentialism : it means morality is concerned with the effects of actions on the happiness of individual. Maximization of happiness : it means greatest happiness in greatest number. Bentham desired to ensure happiness of the community by attaining four major goals, namely: Subsistence Abundance Equality Security for the citizens. Therefore, the function of the law must be to meet these ends. Bentham also talks about the utility as a function of usefulness i.e. how useful a product is depends upon our will to obtain it. Pleasure and pain are the ultimate standards on which a law should be judged. Thus, “greatest happiness principle” or the principle of utility forms the gist of Bentham’s thought.

8. SEVEN DIMENSIONS OF PLEASURE & PAIN Pleasure and pain can be scientifically calculated according to the following seven criteria of the Hedonistic Calculus. These are: Intensity or how intense is it, Duration or how long it lasts, Certainty or how probable it is, Propinquity or how soon will the expected effects will become evident, Fecundity or the probability of leading to further pleasure, Purity or how free from pain it is, Extent or how widely it covers Bentham argues that individual pursuit may lead to greatest pain and less pleasure to society and may not be right. Duty of legislation is to maintain society with optimum pleasure and minimum degree of pain.

9. BENTHAM & NATURAL RIGHTS According to Bentham, natural rights are simple non-sense. He calls natural law as “mock-law”, “sham law” or “quasi law”. He dethroned the natural from its pedestal & replaced it by a logical scientific working principle of utility. Natural rights are ambiguous Bentham says, because it suggests that there are general rights i.e. rights over no specific object. This means that one could have a claim on whatever one chooses. He also condemned the belief in natural rights on the grounds that it inspired violence and bloodshed as seen in F rench Revolution. In his view, all rights are the creation of law and there is no right before the government. He co-related his theory with human nature and his views are based on practical approach and real sense of life .

10. CRITICISM AGAINST BENTHAM According to Freidmann, it suffers mainly from two weaknesses, I t is an effort to blend materialism with idealism His theory fails to balance individual interests with the interests of the community. Pleasure and pain cannot be the final test of the adequacy of law. Every act which gives pleasure cannot be said to be good Law should be made exclusively by legislation which was supposed to remove any barrier to individual freedom but in later times, legislation was used to restrict individual’s freedom in economic matters. The ethics of principle of greatest happiness of greatest number is neither universally accepted nor derived as a logical necessity.

11. CONCLUSION Bentham was the real originator of analytical jurisprudence. He explained the nature of law and its purpose through tool of analysis. He mainly relied on the doctrine of utility to which law ought to conform. Relied on the doctrine of utility to measure the efficacy of law. He invented Expository Jurisprudence which mainly concerned with law as it is without regard to its moral or immoral character. He insisted on the separation of law from morality. According to G.W Paton, Bentham’s brilliant insight in human behaviour and shape of model law was the greatest contribution to European Jurisprudence.

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