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.
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.
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.
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:-
According to Bentham 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 a 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:-
3. Certainty (probability),
6. Purity, (not leading to further pleasure or pain),
7. Extent (the number of people affected),
Criticism of Bentham’s theory of law
■ Due to Bentham’s strait-jacketing of laws into an imperative theory- all laws have to be either command or permission, it does not take proper account of laws conferring power like the power to make contracts, create a title, etc.
■ Bentham did not give fair treatment to custom as a source of law. He said customs could never be ‘complete’.
■ Bentham’s theory did not allow for judge make laws and hoped that such laws gradually eliminated by having ‘complete laws’.
■ It is not always true that an increase in the happiness of a certain segment of society will lead to an increase in the overall happiness level because it might be associated with a diminution in the happiness of some other rival section of the society.