LEGAL POSITIVISM: JEREMY BENTHAM

(Morrison)
 Social and political reformer – proposing social change along the lines of utilitarian
philosophy
 Enlightened progress to be found by developing an empirical mode of thought.
 One must see the reality of imperatives of interest, industry and individualism.
 Bentham: views on utility
views on law
criticisms

VIEWS ON UTILITY
 According to Bentham, the principle of utilitarianism is the guiding principle, and
standard on which to rest the technology of justice.
 While considered by many to be the father of utilitarianism: Marx = ‘the principle of
utility was no discovery of Bentham. He simply reproduced in his dull way what
Helvectius and other Frenchman has said...”
 His utilitarianism = an attempt to find an objective science of society and politics, as free
from human subjectivity.
 Utility= “that principle which approves or disapproves of every action whatsoever,
according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question”.
 According to Bentham, utility is inherent in nature itself. – where interest and reason
are combined.
The governance of the human being is thus by the dictates of pleasure and pain.
“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 should do”. There is thus a psychological hedonism inherent in us. (R v
Brown: even pain, is for some pleasure or gain, so principle of utility is still universal)
 This provides us with the master criterion based upon reality and self-interest. These
two features provide:
1. The standard needed for censorial jurisprudence (not just analyzing, but also
reforming)
(Morrison defines censorial juris and analytical: to reform it you need to define it)
[as opposed to expository jurisprudence: scientific. Analytical/descriptive. Austin:
“the existence of law is one thing, its merits and demerits is another”
2. A model of the causes of human behavior – which the legislator can then use to direct
social behavior.

 Can attribute six characteristics to his master principle of utility:

1. Maximization principle:
- greatest happiness of the greatest no. of people.
 - (it is also a democratic principle and we can see its practical dimension in modern day
democracy, where a simple or a super majority represent those that elect them, at the
expense however, of the minority.
Bentham: views on system of governance = promotion of “radical Democracy” –
Morrison. As opposed to monarchy (Hobbes) [read para: those in power want the
greatest happiness…. And the established church]
2. Hedonism:
the preference of pleasure over pain.

Simmonds points out a number of derivatives from his principle of utility:

3. Individualistic:
looks at what impact will be had on an individual (criticism: individuals still ignored in
a minority)
4. Consequentialist:
theory of utilitarianism is prospective in the sense that it looks towards the future =
what consequences will ensue from an action.
5. monistic:
utilitarianism = master principle = the only guiding principle. confident in having
developed a master principle which can judge the aptness of action.

6. egalitarian:
can also be said to be egalitarian in the sense that it’s a principle of approximate
equality. One vote per person.

 Book = Introduction to the Principles of Morals and Legislation 1789.

 Utility = a critique of natural law.
Bentham immediately detected Blackstone’s fallacy about natural right. Believed there
could not be any basis for a theory of natural rights which, in reality, is non-sense on
stilts. Utility cuts through the fictions and theories of natural rights, since while
morality is not an abstract categorical imperative, its real basis is natural necessity, and
this doesn’t have to actually correspond to the basic principles.

 Morrison suggests that Bentham has assumed the validity of the principle of utility.
in a few sentences, without indicating just how he does it, Bentham moves from the fact
that we desire pleasure to the judgment that we ought to pursue pleasure (pleasure
being the moral principle of utility).
In applying the is-ought gap (as propagated by David Hume), Morrison states that:
Bentham does not explain how the gap between stating that men desire pleasure and
claiming that they ought to, or that is right that they should be crossed. [as he links
ought to pleasure].
explaining such a gap or giving such proof would be “impossible as it is needless”
according to Bentham.
 Bentham had not proved that happiness is the basis of ‘good’ and ‘right’, which is the
very nature of utility, and he was aware of that. He answers this = the very nature of
utility is one that cannot demonstrate its utility: “that which is used to prove everything
else, cannot itself be proved: a chain of proofs must have their commencement
somewhere”
 While the validity of the ultimate guiding principle can’t be proved, Bentham shows
how
higher theories of morality are either reducible to the principle of utility or are inferior
to this principle because they have no clear meaning or can’t be consistently followed.
e.g. (1) Social contract as an obligation to obey law.
- is it even an actual contract or not? – even the contract theory itself rests upon the
principle itself, as the greatest happiness of the greatest number can only be achieved if
we obey the law.
there is thus no need to develop a scientifically dubious theory when the problem can
be solved by saying: obedience is better because disobedience does more harm than
good.
(2) understanding ‘right’ according to the theological will of God. Since we can’t know
God’s pleasure we must observe ‘what is our own pleasure and pronouncing it to be his’
[problem with that. Religious scriptures provide what people believe to be God’s
pleasure and His will].

VIEWS ON LAW
 Optimistic roots for ‘classic legal positivism’ visible in benthams theory
 Utility= methodology for guiding reform to create conditions of a modern orderly
society. Needed predictability of interaction and certainty of outcome. According to
bentham, “man is not like brutes… he is susceptible of pleasure and pain by
anticipation”
 Ideas for reform, using law, and utility as the master principle behind law, in the
interest of good order and protection of property (having witnessed wars in
Europe). Whenever he found a discrepancy between the principle of utility on one
hand, and in social and legal order on another, he wanted reform.

 Law, for Bentham: four-fold phenomena

1. It is the product of the sovereigns will (“volition conceived or adopted* by

the sovereign”)
2. Such a product is known to the citizens and officials of a state
3. (“concerning conduct to be observed”): Lays down courses of action or
demands restraints of action (normative: defines do’s and don’ts)
 4. Relies upon use of sanction (in case of non-compliance)

* law need not originate with the sovereign, “it may be said to belong to him
by adoption when the person from whom it immediately emanates is not the
sovereign himself.. such will should be observed and looked upon as his”

 Morrison notes, Bentham defines law in terms of mandates.

Austin, made use to ‘command’
Course of action mandated by law may take one of four forms (laws)
1. Commands
2. Prohibitions
3. Permission to forbear. Morrison e.g. “you MAY refrain from wearing
seatbelts” – not a command, OR a prohibition
4. Permission to act e.g. contracts, wills, trusts etc.
Behind these four mandates, are the twin features of (1) sovereign and (2) coercion
by sanctions
 Sovereign:
 Supreme legislature= omnipotent and all powerful. He has no legal limitations and
nothing can bind him. (unless “by express convention”) Austin later adopts this
characteristic of his sovereign. (only political limitations)
 Utility is a guiding and influencing principle only. i.e. “national felicity, the
happiness of the greatest number – be maximized”
 Laws in contravention of the principle of utility will not be null and void.
 Hedonistic (pleasure-pain calculus): “sum up all the values of the pleasures on the
one side, and those of all pains on the other. The balance, if it be on the side of
pleasure,” means the act is good, if on the side of pain, then the act is bad.
 Rationale: each individual and each legislator is concerned with avoiding pain and
achieving pleasure. Bentham speaks of units or lots of pleasure or pain with an
attempt at mathematical precision. Before acting, we should, and we really do,
calculate the values of those lots. [prospective/consequentialist aspect of
utilitarianism]
 As this calculus indicates, Bentham is interested in the quantitative aspects of
pleasure. All actions are equally good if they produce the same amount of pleasure.

 The sovereign makes two types of laws: by which he makes his will known and
effective
1. Principal Laws
addressed to the citizens e.g. criminal law
2. Subsidiary Laws
addressed to officials to enforce principal las.
 Bentham’s method of legislation
 1. Measure the mischief of an act or rule
what is the consequence of it – how much pain or happiness is it giving: an act is
good if it advances more pleasure than pain
2. Measure of mischief will always be through the pain or evil it inflicts.
3. Acts that produce evil will be most discouraged
 Gives example of robber: robbery is loss to victim, but also, if its successful robbery
it weakens respect for property in society and that property becomes insecure. This
loss concerns the supreme legislature more.
 Two types of evil
1. Primary evil – to the victim. Loss of life, or property. (robbery)
2. Secondary victim – sense of insecurity in the society.
According to Bentham, legislature is concerned with eradicating the secondary type
of evil. In this sense, pain/punishment is justified if promotes a greater good.
So, purpose of law = promotion of greatest happiness
traced most of his evils to judge made common law and the aristocratic society.
Promoted democracy. Bentham was aware that men seek their own happiness, but
the object of government was to seek the greatest happiness of the greatest number.
The way to overcome this contradiction: to combine the rulers and the ruled and to
put government in the hands of the people. Application of the principle of utility
required a rejection of the monarchy, who were more concerned with their own
interests.
 Purpose of law:
‘laws aim is to augment the total happiness of the society by discouraging those acts
that would produce evil consequences.
 E.g. criminal act – detrimental to society’s happiness. Only an act that in way inflicts
pain on individuals or a group (and is detrimental to the society) out to be the
concern of the law. In this way, many acts of his day would be a matter of private
morals. In deciding which acts are those, the answer is simply to apply the principle
of utility. E.g. sexual immorality, ingratitude, rudeness, where the definitions are so
vague that the judge can’t be safely entrusted to punish.

 Sanctions:
 “punishment has been threatened in the case of non-compliance”. Bentham stresses
that punishment and sanctions are essential features of a legal system.
 Since pain and pleasure give real values to acts, they constitute efficient causes for
human behavior.
 Types of sanctions:
sanctions for Bentham are: sources of pain and pleasure. A sanction is what gives
binding force to a rule of conduct or law.
in all the four areas, the sanction is the threat of pain, if any conduct prescribed the
by legislature is violated.
 1. Physical
2. Political
3. Religious (excommunication)
4. Moral (guilt)
 Legislature’s chief concern= decide what type of behaviors will tend to increase the
happiness of society and what sanction will most likely bring about increased
happiness. ‘Obligations’ – word given concrete meaning as it means not an
undefined duty but the prospect of pain if not complied.
 Kant = morality of an act depends on the right motive and not on its consequences.
Utilitarianism is in stark contrast to Kantian thinking = it depends only on the
outcome, if the end result is happiness its moral. (Morrison= pleasure not motive
confers moral quality on the act). Bentham's moral philosophy, then, clearly reflects
his psychological view that the primary motivators in human beings are pleasure
and pain.
 Thus punishment must be ‘useful’ in achieving a greater aggregate of pleasure and
happiness, has no justification if its effect is simply to add still more units or lots of
pain to the community. Justification of punishment thus is that the greatest
happiness of the greatest number can be effectively secured.
 Utility doesn’t thus reject punishment, but rethinks as to why we need it. No
punishment when it is: groundless (if it can be compensated. But argument arises
that compensation is still a detriment and thus a pain), inefficacious, unprofitable,
and needless.

CRITICISMS OF BENTHAM:

 In applying the principle of utility on its extreme examples, it would seem to

suggest, that in the Benthamite conception, something as painful as torture could be
justified, as en exception to the general rule on the prohibition of torture, in bomb
ticking situation, e.g. to promote the happiness of the greatest no. (e.g. A terrorist
hiding bomb, torture to acquire info) Kant v Utility point.
In a similar breath, situations which would otherwise be morally repugnant would
be allowed exceptionally if they promoted the greatest happiness of the greatest
number. E.g. compromising one patient for the sake of others, e.g. for organ
transplants.
 Hedonistic calculus= impractical: pleasures are interchangeable according to a
man’s circumstances, and what causes pleasure to one may cause pain to another.
 John Stuart Mill = one of Bentham’s biggest critics. Only by removing problems in
Bentham’s theory would we have a perfect theory of utilitarianism acceptable to all.
 Bentham doesn’t offer any proof for utilitarianism, saying that the ultimate
authority does need proof. Mill however, puts forth proof for utilitarianism: To
prove an object to people they need to see and hear it. “In like manner, I apprehend
the sole evidence that it is possible to provide anything desirable that people do
actually desire it.”
 Gross hedonism:
Bentham has made his theory gross and sensual without accepting any qualitative
distinction between different types of pleasures aka physical, psychological etc.
Mill = didn’t approve Bentham’s view that pleasures were different only in quality,
but propagated that also in quality. And gives more importance to quality. ‘pleasure
of a scientist can not be equated with that of a debauch’. Some pleasures are inferior,
and some are superior.
Mill also answers how to determine that quality: If one of two pleasures is preferred
by those who are related with both pleasures, we say that preferred pleasure is
superior in quality to the other.