BENTHAM'S THEORY - GREATEST HAPPINESS OF THE GREATEST NUMBER

According to a positivist tradition, a law or a norm has a status of law if a recognized human authority declares it to be a law. Who do we say recognized human authority? Precisely, we are distinguishing it from spiritual, from a deity.

The content of law from a positivist perspective is irrelevant. From positivist perspective what we are concerned is whether or not the law was enacted by the sovereign. Morality is irrelevant. So, the law is valid if the sovereign says it’s valid.

For a law to be valid within the positivist tradition, a law must have the correct pedigree. What we mean by the pedigree is that the sovereign must follow the established procedures for law making.

Positivist access the validity of law by asking two questions, Was the law created by the correct authority? Did the correct authority follow the appropriate procedures? A law is valid only if it is a YES to both the questions.

The beginning of 19th Centiry might be taken as marking the beginning of positivist movement. The word 'posit' means position thus concentrating on law as it is in present condition (different from the 'is' concept of natural law). The law is treated as a command emanating from the State and the school is therefore, also called the imperative school or assertive school.

The positivist school or the analytical school of thought analyses the first principles of law as it exists in the legal system and does not investigate into what law ought to be. They analyse the relation between state and law ans study the essential ingredients of the fabric of law. The school also favors codification of law.

Rules can be in form of public fear and private fear. Rules of private fear were not the concern in positivist school. Public fear: -   1. Those behaviors which has social consequences, and 2. Those behavior which has come before a judge for its assessment.

In public fear there are three key concepts:-

1.  Sovereign, 
2. Command, will of sovereign, 
3. Law

Sovereign declared concerning to the conduct, to be followed in a given society. Sovereign regulates the behavior of the citizens. Desire for further pleasure may make anyone feel that sovereign is binding on that person.

Why we follow sovereign?
1. We want to achieve a particular situation
2. We want to enjoy the pleasure
3. To motivate others (Swacch Bharat Abhiyan)

Jeremy Bentham's ethical theory presents that actions are right in so far as they produce pleasure or prevent pain, and is an explanation of a political theory that the purpose of civil or criminal laws is to maximise the amount of pleasure or happiness which may be enjoyed by society. Bentham proposed the concept of:
- Pacta Regalia - Royal Agreement between Sovereign and his Subject, and
- Lex Princpem - Command of the Super-Sovereignty in his Utilitarian theory.

Bentham firmly believed that man was motivated by a basic desire to experience pleasure and avoid pain. He once famously wrote, "Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do." - Principles of Morals and Legislation, Chapter 1.

Bentham argues that if utility is defined as the ability to produce happiness, then the rightness of an action is determined by its utility. Bentham also argues that if happiness is viewed as the only thing which is intrinsically good, then the principle of utility is the only right principle of human action.

Bentham advocates a doctrine of psychological hedonism, that all human actions are motivated by the desire to enjoy pleasure or prevent pain, and that the enjoyment of pleasure or the avoidance of pain is the only rational aim of human action. He also advocates a doctrine of ethical hedonism, that the rightness or wrongness of an action is determined by whether the action tends to promote happiness or unhappiness.

If an action conforms to the principle of utility (i.e. if the action tends to promote happiness or prevent unhappiness), then the action is morally right, or at least is not morally wrong. If an action does not conform to the principle of utility (i.e. if the action tends to prevent happiness or promote unhappiness), then the action is morally wrong, or at least is not morally right.

Bentham maintains that the principle of utility is the only sufficient ground for deciding whether an action is morally right or wrong. Bentham argues that the principle of utility is a morally right principle of action for every situation. He says that the principle of utility may also be described as the greatest happiness principle, in that it asserts that the only morally right and proper goal of action is to achieve the greatest happiness of all individuals whose interest is affected by the action.

Bentham rejects the notion that the law of reason is a sufficient principle of morality. For Bentham, such concepts as common sense, the rule of right, the law of reason, and the law of nature are only theoretical or speculative principles and cannot be practically applied to every moral situation.

According to Bentham, actions which are morally right tend to produce the greatest possible amount of pleasure and the least possible amount of pain, while actions which are morally wrong tend to produce either a lesser amount of pleasure or a greater amount of pain than other actions which could be performed. The total amount of pleasure or pain which is produced by an action may depend on the total amount of pleasure or pain which is experienced by all individuals whose interest is affected by the action.

Bentham provides a classification of the various kinds of pleasures and pains. Pleasures and pains may be caused by various kinds of sensations, thoughts, emotions, memories, expectations, and associations. Simple pleasures and pains may be combined to form complex pleasures and pains. Pleasure may also be caused by the relief of pain, and pain may be caused by the cessation of pleasure. Pleasure may be caused by the satisfaction of desire, and pain may be caused by the frustration of desire.

Bentham also provides a classification of motives for action. However, many of his arguments for the theory that motives are morally neutral are not only misdirected but morally repugnant. For example, he argues that there is no difference between the aim to avoid punishment by telling the truth and the aim to avoid punishment by telling a lie, because the aim in either case is to avoid punishment.

He argues that there is no difference between the aim to preserve oneself from danger by helping another person and the aim to preserve oneself from danger by not helping another person, because the aim in either case is to preserve oneself from danger. He argues that there is no difference between the aim to gain a person’s favor by being kind to that person and the aim to gain a person’s favor by being cruel to the enemy of that person, because the aim in either case is to gain the person’s favor.

According to Bentham, pleasure is intrinsically good, and pain is intrinsically evil. The motives which individuals may have for their actions are only good or evil if they have good or evil consequences. Motives may not be intrinsically good or evil, and their consequences may vary according to each situation and according to each individual’s sensitivity to pleasure or pain.

Bentham asserts that if good intentions are produced by a motive, then the motive may be described as good. If bad intentions are produced by a motive, then the motive may be described as bad. The goodness or badness of an intention to perform a particular action may depend on the material consequences of that action. The material consequences of an action are the sensations of pleasure or pain which are produced by that action. Good actions produce pleasure, while bad actions produce pain.

According to Bentham, motives produce intentions, and the sum of an individual’s intentions may produce a disposition to perform, or not to perform, a particular action. Whether or not an individual performs a particular action may depend on his or her disposition to perform that action and on the particular circumstances which may affect the expression of that disposition.

Bentham divides motives into two kinds: 
1. Seducing (or corrupting), and 
2. Tutelary (or preservatory). 
Seducing motives may cause an individual to perform wrongful acts, while tutelary motives may cause an individual not to perform wrongful acts. Tutelary motives may be either standing (i.e. constant) or occasional. Standing tutelary motives may govern an individual’s conduct in most (or all) situations, but occasional tutelary motives may govern an individual’s conduct in only some situations.

According to Bentham, “A law may be defined as an assemblage of signs declarative of a violation conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are supposed to subject to his power.”

He believed that every law must be considered in the light of eight aspects:

1.       Source: Will of sovereign by conception, i.e. direct intervention, statutes. And by adoption, i.e. code. We give importance to source when it has legitimacy. It is superior. Bentham’s sovereign is any person or assemblage of persons to whose will a whole political community are supposed to be in a disposition to pay obedience. It may consist of more than one body, each of which is obeyed in different respects.

2.       Subject: To whom the law is directed. It is inferior. Those who are affected by the Command are the Subject.

3.       Object: Includes action or omission, (acts, situation or forbearance)

4.       Extent: To the extent to which the laws follow.

5.    Force: Sovereign will forces us to follow the law through public consequences and judges assessment. As regards the force of law, a law is dependent upon motivations for obedience. It includes, physical, political, religious and moral motivations, comprising threats of punishments and rewards.

6.       Content/Expression/Form: It must have to be a shape, like enactment, ordinance, etc.

7.       Remedial Appendages: According to Bentham, sanctions are provided by subsidiary laws, but they themselves require a further set of subsidiary laws, “remedial appendages”, addressed to judges with a view to curing the evil, stopping the evil or preventing future evil.

8.       Expression: The ways in which the will of the sovereign may be expressed are various. Expression may be complete and in that cases judge should adopt a literal interpretation. A judge can adopt a liberal interpretation only where the expression of the will of the sovereign is incomplete. Bentham was the enemy of judge-made law and he sought to minimize judicial discretion by trying to ensure that laws were complete, not only in expression, but also in connection and design.

Legal philosophy of Bentham is also known as ‘utilitarian individualism’.  He criticized the method of law-making, corruption and inefficiency in the administration of justice and restraints on individual liberty. He was an individualist.According to him the function of law is to emancipate the individual from the bondage and restraint upon his freedom. Once the individual was made free, he would be able to look after his welfare. In this respect, he was a supporter of the Laissez faire principle.

He was an individualist and also a utilitarian. According to him, the end of legislation is the ‘greatest happiness of the greatest number’. He defined utility as the property or tendency of a thing to prevent some evil or to produce some good. The consequences of good and evil are respectively pleasure and pain.

The purpose of law and thereby the task of the government is to bring pleasure which is the consequence of good and to avoid pain, which is the consequence of evil. Pleasure and pain are the ultimate standards on which a law should be judged. Considerations of justice and morality do not find place in his theory. The right relationship between positive law and morality has been expressed by him in the maxim, “obey punctually, Censure freely”.

Bentham desired to ensure happiness of the community by attaining four major goals namely, subsistence, abundance, equality and security.For him, security and equality form the main objective of legal regulation. He criticized the methods of law making, corruption, and inefficiency in the administration of justice and restraints on individual liberty.

 Criticisms

Friedmann pointed out two main weaknesses in Bentham’s theory:

1.       Bentham’s abstract and doctrinaire rationalism, which prevents him from seeing man in all his complexity, in his blend of materialism and idealism, of nobility and baseness, of egoism and altruism. This leads Bentham to an overestimate of the powers of the legislator and an underestimate of the need for individual discretion and flexibility in the application of the law.

2.       Bentham’s failure to develop clearly his own conception of the balance between individual and community interest. According to him, the interests of an unlimited number of individuals shall be automatically conducive to the interests of the community, as the freedom of enterprise will automatically lead to a greater equality. But it just gave the reverse results when actually put to practice.

Bentham’s hedonistic calculus has been criticized that pleasure and pain cannot alone be used to judge the law.

Bentham’s emphasis on legislature was adopted by many countries but has not remained confined to what Bentham proposed. According to him, the aim of legislature was only to remove the shackles from the individuals freedom, and provide him opportunities for self-progress. But the legislation in later years were used to restrict the individual’s freedom in economic matters.

Dicey correctly notes the paradox when he says, “the apostle of individualism was destined to become the founder of State socialism.”

Thus, Bentham’s contribution is considered so great that his period is known as the Benthamite Era in the legal history of England. He introduced legal positivism and treated legal theory as a science of investigation which would be approached through scientific method of experimenting and reasoning.

Reference:

- Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory (Central Law Agency, 7th edn., 2016).

- Rosco Pound, VII Volumes on Jurisprudence

- Jeremy Bentham, The Principles of Morals and Legislation.

- Dr. Avtar Singh, Introduction to Jurisrudence (Wadhwa Nagpur, 1st edn., 2001).