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Bentham Utilitarian Analysis of Legislations & Law
§ Jeremy Bentham is the
founder of classical positivist theory
§ Bentham’s aim was to
establish scientific jurisprudence
§ Bentham divides jurisprudence into expositorial and censorial:
ü Expositorial: a person who expounds or gives an exposition which means
providing comprehensive description and explanation of an idea or a theory
§ Bentham has broad interest in reforming law and made certain suggestions on
the laws of England and others
§ Bentham rejected Natural law approach because for him happiness is the
greatest good
§ Not agreeing to natural law means to go against natural law and acting against
universal human good. The issue of natural law is whether or not those whom
committed capital crimes and how in present enough of a threat to the lives of
others to permit their execution under expanded principle of self defence.
§ Even though it is successfully argued that natural law tradition that those
guilty of capital crimes may be forfeited of their lives, there is still
justifiable doubt of an actual guilt because many cases who have been proven innocent
on review of their conviction.
§ Example: R v Derek Bentley (deceased) EWCA Crim 2516 for an accident in
1952.
§ He then laid down tests in developing legislation to create the greatest
happiness for the greatest number
1.
The art of legislation which is the
ability to predict what would maximise happiness and minimise misery in society
2.
The science of legislation where creation
of laws that would advance or promote social happiness whilst reducing social
pain and misery
§ So it seems to be saying that actions are right in the view of these
principles if they produce pleasure and prevent pain
§ Bentham says the objective of all laws is to promote happiness and to
measure the rightness and wrongness of the act
ü Actions which are morally rights will tend to produce the greatest possible
amount of pleasure and the least possible amount of pain
ü Actions which are morally wrong tend to produce either a lesser amount of
pleasure or greater amount of pain
§ He further argues that nature has placed mankind under the government of
pain and pleasure.
§ Felicfic Calcalus/Hedoristic Calcalus = analysis of combination of pleasure and pain
§ He then said any forms of punishments for violating civil or criminal laws
should conform to principles of utility. Any punishment inflicted upon an
offending individual should have sufficient ground for infliction of pain upon
that individual
Ø Arise issues such as prohibition in polygamy
Ø Prohibition on homosexual conduct
Ø Banning cigarette advertisements
Ø Prohibition of blasphemy of Christian religion
Ø Prohibition of blasphemy of Islamic
religion
§ Every person acts in self interest in that to maximize pleasures and
minimize pain. This theory is called Utilitarianism
which is classified under three components:
A.
Consequentionalism
-
On
human conduct which whether good or bad, its consequence will be judged by the
one who is responsible for the act and to others
-
Whether
good or not, to be judged by consequences to all individuals in society,
present or future
-
Pains
and pleasure measured for the consequences to individuals and strike balance
B.
Evaluative context
C.
Individual component
§ Pleasure of sadism is condemned by Utilitarianism as it outweighs the
painful consequences
§ Utilitarianism happiness is said to be biggest happiness every human look
for and based on the principle utility where the god and bad is balanced
between individual happiness and the happiness of the community
§ Bentham sceptical on natural law saying it is the concept of rights as nonsense
on stilts
§ He said rightness and wrongness of an act is to be decided by utility alone
not by moral decision or public opinion
§ Brought in the concept of Marxism here of false consciousness:
Ø Members of subordinate class suffer from false consciousness in that their
mental representations of the social relations around them concealed the
reality of subordination/exploitation
Ø Here the person would understand his role in the world and forces that
governs his rights
Critiques
on Bentham’s theory
-
Not correct to say human motivations
persons are only those seeking pleasure and the avoidance of pain
-
Persons acting without thinking of the
consequences or by force of habit: pleasure and pain enter as incidents or
consequences to other actions
-
It is doubtful whether outside events made
by the legislator can make a change in individuals capacity for happiness
-
It is not practicable to have a felicific
calculus in terms of balancing of individual interests and communal welfare
-
Idea of what gives pleasure would differ
easily by age, race and countries
-
Difficult at times unfair balance the
pleasure of majority with main of minority
-
In a certain judicial decision makes a
majority “better off” if it negatively affects the rights of the minority then
such a decision should not be given by judges on grounds of policy and that
core constitutional rights should not be repealed even by a legislature
-
John Rawls argues that utilitarianism treats human beings a
means rather than ends in themselves
-
Bertrand Russell argues if every man pursues his own
pleasure, how is it to ensure that legislature shall pursue the pleasure of
mankind in general?
Hart critiques that individuals are not as persons but
as experiencers of pleasures
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