Bentham's theory of law || Pleasure and Pain || Utilitarianism|
Bentham's theory of law || Pleasure and Pain || Utilitarianism|
In this article, are going to discuss the theory of law propounded by the
English jurist Jeremy Bentham, which is known by the various name like the
theory of Pleasure and Pain, the theory of Utilitarianism, the principle of greatest happiness, the principle of utility, etc. In this article, we will discuss what
is pleasure and pain theory?, what is the principle of utility?, what
is the doctrine of hedonism?, what is Bentham theory of law?, etc.
Introduction:-
At the beginning of the nineteenth-century positivist
movement was started by the jurists such as John Austin and Jeremy Bentham. At
that time the legal positivism was regarded as one of the most influential
schools of thought in legal jurisprudence around the world. After that, this
school of thought was taken forward by influential jurists such as Herbert,
Lionel, Adolphus, Hart and Joseph Raz. The above jurists have significant
differences in their views but the common idea that all of the above jurists
have is that they analyse the law as it is and have the common
objective of helping people understand the law of the land as it is not as it
ought to be. Moreover, the other common theme between all the jurists was that
they kept the law and moral principles on a completely separate footing, but
they do not completely negate the existence of the moral principles.
Two of the main jurists associated with the legal positivist school are Austin
and Bentham. Their main idea of law was similar but they differed in certain
aspects. These two jurists played a huge role in developing this school and are
considered to be the greatest writers in the field of legal positivism. We have
discussed the John Austin in our last article link here: Austin’s theory of
law, know we are going to discuss the Jeremy Bentham and his theory of law.
Jeremy Bentham:-
Jeremy Bentham
was born in 1748 and died in 1832 in London. Jeremy Bentham, the English
jurist, and utilitarian philosopher and social reformer, is regarded as the
greatest figure in the history of British Legal positivism. Besides being a
jurist he was reformer and legislation, a moralist, philosopher, and a hedonist
who thought of good (generally as happiness) by reference to which he praised
and blamed all action and activities. He was a leading theorist in
Anglo-American philosophy of law and one of the founders of utilitarianism. His
most important theoretical word is the Introduction to the Principles
of Morals and Legislation (1789), in this, he described and
developed the theory of the greatest happiness principle.
Principle of Hedonistic:-
Bentham advocates a doctrine of Hedonistic in two forms namely 1.
Psychological Hedonism, which means all human actions are motivated by the
desire to enjoy pleasure or prevent pain, and that is the only rational aim of
human action, 2. Ethical Hedonism, which means rightness or wrongness of an
action is determined by whether the action creates happiness or unhappiness.
The
principle of sympathy and antipathy (i.e. the feeling of seamless acceptance or
rejection for the expected results of action) is not enough basis to identify
the moral rightness or wrongness of an action. In Bentham’s theory, an action
conforming to the principle of utility is right or at least not wrong, it ought
to be done, or at least it is not the case that it ought not to be done.
Pleasure and Pain:-
Bentham has classified
the pleasure and pain on the basis of human psychology which illustrates as
psychological hedonism.
Pleasures
a. Pleasure of
riches
b. Pleasure of
good reputation
c. Pleasure of friendship
d. Pleasure of
knowledge
e. Pleasure of
social affection
f. Pleasure of
relief from pain which might vary with various kinds of pain, and
g. Pleasure of
good friendship and social affection.
Pain
a. Pain of
privation,
b. Pain of
sense including diseases of all kinds,
c. Pain of
skill,
d. Pain of
enmity,
e. Pain of
piety including feat of divine punishment, and
f. Pain
of knowledge and imagination.
He
also classified the pleasures and pain as sanctions and it divides into four
categories as follows:-
1. Physical
sanction
2. Political
sanction
3. Moral
sanction
4. Religious
sanction
Theory of Utilitarianism:-
Bentham is popularly known for his theory of utilitarianism which
has more emphasis on individualism. According to him the main function of law
is to make free the individual from the bondage and restraint upon his freedom.
He adherence the principle of ‘laissez-faire’, which meant minimum
interferences of the state in the economic activities of the individuals.
Bentham says that utility is that which produces benefit, advantage, pleasure,
good or happiness. His theory introduced two premises, the first one is the
belief in consequentialism, and it means morality is concerned with the effects
of actions on the happiness of the individuals. The second one is the
maximization of happiness. He says that an action is the right action when it
creates or its consequence is the greatest happiness of the greatest
number.
The "greatest happiness principle", or the principle of utility,
build the cornerstone of all Bentham's thought. He wrote in The
Principle of Morals and Legislation:
'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. On the other hand, the standard of right and wrong, on the other
the chain of causes and effects, ate fastened to their throne. They govern us
in all we do, in all we say, in all we think.'
Seven Dimensions of Pleasure or Pain:-
1. Intensity,
2. Duration,
3. Certainty
(probability),
4. Propinquity,
5. Fecundity,
6. Purity,
(not leading to further pleasure or pain),
7. Extent
(the number of people effected),
Critical Analysis of the theory:-
Bentham's theory has been criticised by many jurists
in their different ways, here we will discuss all these. The theory propounded
by the Bentham has its weaknesses.
Criticised by Friedman:-
He says about the weakness of the Bentham's work in two ways. One
is Bentham's abstract and doctrinaire rationalism which prevents him from
seeing a man in all his complexity, in his blend of materialism and idealism,
of nobility and baseness, of egoism and altruism. This means Bentham overestimate
of the legislator and an underestimate of the need for individual discretion
and flexibility in the application of the law.
The second basic weakness comes from the
failure of the Bentham is 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 greater equality. But it gave just the reverse results when it was put
in practice later on. In the same way, pleasure and pain alone cannot be the
test to judge the law.
No discussion about the legal system:
Bentham, in his theory, emphasized only on the pleasure
and pain, the principle of utility, and the greatest happiness of the greatest
number, etc. But he never talked about the legal system which prevalent almost
all over the world in the modern era. The concept of a legal system was never
discussed by him.
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