A Critique Of Jeremy Bentham’s Idea Of Law

Project and Seminar Material for Law

A Critique Of Jeremy Bentham’s Idea Of Law

Chapter One


The concept of law has always been controversial leading to all kinds of theorizing. This has constituted a problem to an easy understanding of law because law has been viewed and interpreted differently by different thinkers. Foremost in the understanding of law are issues such as correct interpretation, judicial precedence, justice and fairness, punishment and its limits, the rule of law and its preservation, legal knowledge and ignorance, and chiefly, obedience to the law for the survival of the community. These were some of the factors that led Bentham to propose his own theory of law using Hedonistic calculus.

Jeremy Bentham saw human nature as the seeking of pleasure and avoidance of pain. Laws therefore to him are a way to control people’s action through the fear of pain and punishment. For Jeremy Bentham, the existence of laws and morality can be explained through human nature. According to his theory of psychological hedonism, there are two main forces that drives human nature and explains why people act the way they do; pleasure and pain.

All people tend to avoid pain and to seek out pleasure in their daily living. This view of human nature is different from that of other thinkers such as Locke who said that human nature can be explained through natural law and the social contract. Jeremy Bentham says that his view of human nature is positivistic and is not theoretical as other views of human nature and can easily be used practically for legislative and political purposes. Hedonic calculus is Bentham’s method of making decisions based upon the amount of pain and pleasured caused by the out come of decisions.

It will also set a standard to understand the position of Bentham on his ideas of law and to see from the stand point of philosophical speculations, criticism and analysis what gains there is that can benefit from his doctrines, ideas and theories. Also, society must be organized in a way that lives and properties can be protected hence the introduction of a legal system that will checkmate and curb the excessive of some people.

For him, it is the job of the legislators to make sure that the laws enacted promotes the greatest amount of pleasure and happiness for the greatest number of people. Since human nature is pleasure seeking and pain avoiding, it is the job of the state to use their knowledge to create laws that will maximize pleasure and minimize pain for every one. Punishment is used to control because it causes pain which people would avoid at all cost.

This work will examine Bentham’s idea of law, from critical point of view to ascertain if Bentham’s prescription will indeed work by making people to avoid the wrong and do what is right because of the fear of pain.

In the book political thought by C-L Wayper, the author tries to analyse Bentham’s idea of utility, the state and its importance. For Bentham, everything that brings happiness is good. An adherent to the principle of utility, he says “holds virtue to be a good thing by reason only of the pleasures which result from the practice of it; he esteems vice to be a bad thing by reason only of the pains which follows in its train” (Wayper, 89).

The doctrine of utility, therefore is a hedonistic doctrine. Moving from the principle of utility, the utilitarian explanation of the state is a complete explanation in terms of an unlimited end. The state, utilitarian tells us of a group of person’s organized for the promotion and maintenance of utility, that is happiness or pleasure. This principle of utility, not any inherently improbable contracts, is all that is needed to explain why men obey the state. Bentham and the utilitarian tells us in what way the state is perculiar, it is the sole source of law, which is the most certain of the four sanctions, or overriding motives, which govern the lives of men.

For Bentham, the state is primarily a law-making body. (Wayper, 94). A group of persons organized for the promotion and maintenance of happiness, and acting through law to that end. Law is a command and restraints, and as such is opposed to liberty, its great task is to reconcile interests so as to regulate the motive of self interest that it shall operate, even against its will, towards the production of the greatest happiness. This is done by attaching artificial pains, or punishment to certain actions of a particular kind which would not be conducive to the general happiness.

Furthermore, because law is a command, it must be the command of a supreme authority. Indeed, it is only when such an authority is habitually obeyed that Bentham is prepared to admit the existence of civil society.

In the book history of western philosophy, Betrand Russel spoke of Bentham that he wished to establish a code of laws and more generally, a social system which would automatically make men virtuous. Bentham maintained that what is good is pleasure or happiness, he used these words as synonyms and what is bad is pains. Therefore one state of affairs is better than another if it involves a greater balance of pleasure over pain, or a smaller balance of pain over pleasure of all possible states of affairs, that one is best that is that which involves the greatest balance of pleasure over pain (Russel, 741).

Bentham held not only that the good is happiness in general but also that each individual always pursue what he believes to be his own happiness. The business of the legislator, therefore, is the produce harmony between public and private interest. It is to the interest of the public that I should abstain from theft, but it is not my interest except where there is an effective criminal law. Thus, the criminal law is a method of making the interest of the individual coincide with these of the community; that is its justification. Men are to be punished by the criminal law in order to prevent crime, not because we hate the criminal. It is more important that the punishment should be certain than that it should be severe. In Bentham’s day, in England, many quite minor offences were subject to the death penalty, with the result that juries often refund to convict because they thought the penalty is excessive. Bentham advocated abolition of the death penalty for all but the mitigated in this respect, finally Bentham says civil law should have four aims; subsistence, abundance, security and equality (Russel, 742).

In the book, A History of political theory the authors Sabine and Thorson gave an indepth analysis of Bentham’s theory of law. They opine that the greatest happiness, as Bentham believed, placed in the hands of skillful legislator a practically universal instrument, with it, we can “rear the fabric of felicity by the hands of reason and law” (Sabine and Thorson, 617). This provides the theory of basic human nature, both its valuation and its motivations, which Bentham supposed to be applicable at all times and all places. The legislator needs to know only the special circumstances of time and place that have produced peculiar customs and habits and he can then control behaviour by allocating pains and penalties to produce the must desirable results.

The only limitations upon the method which Bentham recognized were psychological and ethical fixing on the one hand what the law can do and on the others, what it is wisely try to do. Bentham’s jurisprudence consisted in the systematic application to all branches of the law, civil and criminal, and to the procedural law and the organisation of the judicial system. In the field of criminal law the principle of utility provided, as Bentham believed, a natural method of arriving at a rational theory of penalties (Sabine and Thorson, 618-619). The technical method starts from the assumption that crime “deserves” punishment, but the concept of desert is essentially indefinable except in terms of existing practices and ideas. The natural method, on the contrary, starts from the principle that punishment is always an evil, since it causes pain, and is justified only in so far as it either prevents a greater future evil or repairs an evil already done. The rule that a law must be judged by the incidence of its effect on human beings, and so far as possible on assignable individuals, was a sound liberal principle and this was part of Bentham’s jurisprudence.

In the book The Enduring Questions: Main problems in philosophy, Maduine Rader devoted a section to the principle of morals and legislation. The author focuses on Bentham’s utilitarianism and his idea of law. He started with the idea that nature has placed mankind under the governance of two sovereign masters, pain and pleasure (Rader, 567). It further tries to point out what we ought to do, as well as to determine what we shall do. They govern us in all we do, in al we say, in all we think. The principle of utility recognizes the subjection and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reasons and of

law systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light. A measure of government which is but a particular kind of action performed by a particular persons or persons, may be said to be conformable or dictated by the principle of utility, when in like manner the tendency which it has to argument the happiness of the community is greater than any which it has diminish it (Rader 568).

In the book Philosophy made simple, Pokin and Stroll devoted an aspect of the works of Bentham especially on his ideas on the principles of utility and law. The authors make the claim that the British criminal code was considerately improved because of the efforts of Bentham and his group. Bentham opposed both monarchy and hereditary, aristocracy, advocated complete democracy, including women’s suffrage, and opposed British materialism in India and the other colonies (Pokin and Stroll, 33).

Utilitarianism has often been regarded as a political philosophy which entails democratic government as a political institution. The great utilitarian fought for civil liberties and for women’s Suffrage, for the conduct of government by law. In regarding each man as of equal importance in calculating the amount of pleasure and pain an action evoked, their views came to be identified with the democratic tenet that each man count equally before the law. And since the rightness or wrongness of an act is to be determined by how it affects the majority this seems to point to rule by the majority, another provision of democracy (Pokin and Stroll, 35).

Chapter Four

4.1 Evaluation Of Bentham’s Theory Of Law

Bentham’s theory of law is predicted on certain indices such as the utilitarian principles which evaluates actions based upon their consequences, the relevant consequences, in particular, are the overall happiness created for everyone affected by the action. Influenced by many enlightened thinkers, especially empiricists such as John Locke and David Hume, Bentham developed an ethical theory grounded in a largely empiricist account of human nature. He held a hedonistic account of both motivation and value according to which what is fundamentally valuable and what ultimately motivates us is pleasure and pain. Happiness thus for Bentham is a matter of experiencing pleasure and lacking pain.

Although he never practiced law, Bentham did write a great deal of philosophy of law, critiquing the existing law and strongly advocating legal reform. He critiques various natural accounts of law which claim, for example, that liberty, rights and so on exist independent of government. In this way Bentham arguably developed an easy form of what is now often called “legal position”. Beyond such critique , Bentham ultimately maintain that putting his moral theory into consistent practice would yield results in legal theory by providing justification for social, political and legal institutions.

At the beginning of the introduction to the principles of morals and legislations, Bentham wrotes:
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 one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in al we do, in all we say, in all we think; every effort we can make to throw off our subjection, will serve, but to demonstrate and conform it (1).

From this we can see that, for Bentham, pleasure and pain serve not only as explanations for action, but they also define one’s good. It is, in short on the basis of pleasures and pains, which can exist only in individuals, that Bentham thought one construct a calculus (of mathematics dealing with rates of variation) of value.

Rated to this fundamental hedonism is a view of the individual as exhibiting a natural, rational self-interest (a psychological egoism). To Bentham, in every human breast, self regarding interest is predominant over social interest; each person’s own individual interest over the interests of all other persons taken together. Fundamental to the nature and activity of individuals, then, is their own well-being, and reason as a natural capability of the person is considered to be subservient to this end.

By way of evaluating Bentham’s theory of law, three principal characteristics stands out. They are

  1. The greatest happiness principle
  2. Universal egoism and
  3. The artificial identification of one’s interests with those of others.

Though these characteristics are interests with those of others. Though these characteristics are present throughout his work, Bentham is concerned with articulating rational principles that would provide a basis and guide for legal, social and moral reform.

4.2 Conclusion

From the foregoing, it is clear that Bentham is his theory of law came up with an admixture of moral philosophy, scientific method or empiricism, psychology, and mathematics (calculus) all in one mould. He was able to analyse the nature of humans and to deduce what drives him (pleasure or pain). And from this understanding, he was able to proposed that law will function properly if pain and pleasure are used as indices because humans by their nature will naturally avoid pain and seek after pleasure. Thus incorporating this idea into our legal system will enhance the law and give it some respect. Specifically then, what is morally obligatory is that which produces the greatest amount of happiness for the greatest number of people, happiness being determined by reference to the presence of pleasure and absence of pain.

Thus for Bentham, by the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to argument or diminish the happiness of the party whose interest is in question; or what is the same thing in otherwords, to promote or to oppose that happiness. And this applies to every action whatsoever. And that which does not maximize the greatest happiness is therefore, morally wrong.

4.3 Recommendation

Bentham’s theory of law clearly reflects his psychological view that the primary motivators in human beings are pleasure and pain. Though he admits that his version of the principle of utility is something that does not admit of direct proof, but he notes that this is not a problem as some explanatory principles do not admit of any such proof and all explanation must start somewhere. But this, by itself does not explain why another’s happiness or the general happiness should count.

One also wonders if pain has always been a deterrence for the avoidance of crime as experience has shown that most people who commits crime and are punished usually go back to repeat the same crime subsequently. This shows that pain may not be a yardstick for a free-crime society after all.

Another issue in Bentham’s theory of law is the challenge of calculating the pleasures and pains involved in carrying out a course of action (the hedonic calculus) since pleasures and pains are intrinsic. Furthermore, his psychological egoism that points clearly to the claim that man is egoistic or self-centred can be argued on the grounds that man still displays some element of altruism (considering other people’s interest first).

In all, Bentham’s theory of law is a very important attempt at bringing together all the important ingredients or facets that makes up the law. even though it may have one or two shortcomings, it nevertheless holds very useful tips in understanding the nature of man even as he lives in a law-governed society with restrictions that will help for the over all survival of the society.

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