In the late eighteenth century English law was a combination of common law and statute law. The volume of law enacted by parliament was increasing rapidly, but the common law was still the predominant element, and most English lawyers regarded it as essentially superior to statute. Indeed, one of William Blackstone’s chief concerns in his Commentaries on the Laws of England was to emphasize the virtues of common law and to warn against the expansion of parliamentary legislation. As he and others saw it, the common law had been built up over the centuries, and the rules and practices it embodied were the outcome of the wisdom and experience of many generations; at the same time, through the scope which judges had to introduce limited reinterpretations and adjustments, it was vulnerable of incremental (growth) change in response to changing social conditions. By contrast, statute was seen as a rather rude instrument, and one that had something inherently arbitrary and dependent about it.
2. Common law tradition use:
Blackstone faced a double dilemma: not only was it difficult to extract principles, but there were very few written rules to draw on, for the common law was, as he put it, only handed down by tradition, use, and experience. In an era where statutes were perceived as secondary additions and modifications of the common law, which were piecemeal and fragmented (split) rather than unified and general, and where law reporting was undeveloped, case adjudications rested on two often vast institutions. On the one hand lay the twelve judges of the Courts of Westminster Hall, who could discuss legal matters among themselves and develop their legal ideas in an unwritten manner. Much early eighteenth-century law was hence part of an oral culture, or the custom of judges in their practice. On the other hand lay the jury, making decisions which failed to distinguish matters of law and fact, but combined them in a single verdict.
3. Success and failure:
In addressing these two tasks, Blackstone’s Commentaries achieved both success and failure. His overall map of the law, its arrangement and categorizations, gave the common law a rationality and unity not seen before; he was widely praised for this, and as a result his work became the main diet for the law student for over a century. His methodology was similarly important, for in putting the law into an order and a method, and in seeking to analyse it as a system of rules, he allowed lawyers to treat specific areas of law as sciences capable of analysis, and not merely as terms of art to be followed. He was less successful in explaining the functioning of law at case level, as Bentham was quick to expose in his critique. In fact, the Commentaries were not a treatise on legal reasoning, but a summary of the law; and when it came to a discussion of how the courts functioned, Blackstone relied more on a theory of customs and maxims than on positive rules. Hence, a gap remained between Blackstone’s traditional view of judges, and his search for principle. He attempted to fill this gap by using the law of nature, but his careless and casual use of the concept reveals his lack of success.
4. Use of an institutional framework:
A view of the common law as based on natural law principles entailed a fundamentally different view of law from a theory of custom. What made them sit together in the Commentaries was Blackstone’s use of an Institutional framework in which to locate a customary and remedies-based system of law. The Institutional structure not only assisted his categorizations of the law, but also enabled Blackstone to use a theory of law based on rules with rational and determinate sources, in order to show that the common law was not a chaotic collection of customs and maxims, but a coherent whole. In borrowing the Institutional structure for the Commentaries, Blackstone had to borrow the natural law epistemology as an organizing concept to give it consistency; but since he did not seek to relate natural law to legal reasoning at case level, it could play no part in explaining the law. Blackstone’s theorizing on natural law was superficial and derivative. Instead of natural law being a positive source, it ended at best with reason being a limit on custom, so that unreasonable customs were prevented from being seen as law. Yet this was not particularly informative, for an unreasonable custom was little more than a custom which was not recognized as a legally binding one. This required an explanation of how and when courts first recognized customs as legally binding; something Blackstone failed adequately to cover.
B. Criticisms on common law:
1. Bentham’s critique:
Bentham’s critique of the common law took two forms. The first was an attack on Blackstone’s jurisprudence. Blackstone’s prime error was that he failed to set up a theoretical analysis that could explain the common law. Although he had been the first man successfully to put the whole together, necessary for the creation of guides to expectation, his analysis failed in the end to fulfil this function. The second attack was on common law’s technicality. For Bentham, the common law’s categories and terms of reference were entirely arbitrary and meaningless.
2. The common law tradition:
Bentham devoted a significant portion of his attack against the common law tradition to the theory of the common law and the extent to which this theory differed from its practice. The common law was, in the 18th century, considered to be the expression of immemorial custom and long-standing practice which personified natural reason. The law was thus legitimated by its historical antecedents as well as its inherent rationality. Bentham regarded such ideas as dangerous misleading notions: appeals to the Law of Nature were nothing more than private opinion in mask or the mere opinion of men self-constituted into legislatures. The most prompt and perhaps the most usual translation of the phrase ‘contrary to reason’ is ‘contrary to what I like’.
3. Private and subjective:
The only determinate concrete content that can be given to natural law or reason is entirely private and subjective because of the abstractness of these motions. They offer no public shared standards for assessment of rules, laws, actions, or decisions. This has two disastrous consequences for law and adjudication. A) justification of judicial decisions is removed entirely from the public arena. Judicial decisions resting on appeals to natural law or reason rest entirely on private sentiment. And b) this opens the door wide for corruption and the manipulation by sinister interests of those who are subject to law.
4. Dog law:
Behind the mask of legal fiction and the pretence (shame) of immemorial custom, lay an incomprehensible (unintenteligible) web of unjust laws continued in the name of precedent which Bentham ridiculed as dog law: Whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. Such irrational respect for antiquity ensures that senseless decisions of the past repeated in the future. But times obviously change. Therefore, the more antique the precedent, the more barbarous, inexperienced, and prejudice-led the race of men, by and among whom the precedent was set, the more unlike that the same past state of things is the present state of things.
5. The doctrine of stare decisis:
And, illogically, the doctrine of stare decisis produces greater rather than less arbitrariness. This is because despite the apparent rigidity of the doctrine, to avoid following a precedent judges resort to legal fictions, equity, natural law and other devices which render the law even more uncertain. Moreover, a judge is at liberty either to observe a precedent or to depart from it. The doctrine thus defeats its own avowed purpose.
6. Vague and Uncertain:
The indeterminacy of the common law is widespread. Unwritten law is essentially vague and uncertain. It cannot provide a reliable, public standard which can reasonably be expected to guide behavior. Bentham’s positivist conception of law, in other words, is a extremely purposive or functional one, informed of course by the principle of utility. The common law falls far short of this conception not only because it fails to express rules with clarity, but because its very validity is suspect. So law’s indeterminacy infects its very legitimacy; to accept the authority of the rules themselves is often to accept the larger authority of the law itself. And this conflation results in a reluctance to question and criticize the law in general, to blind obedience.
7. The role of judges:
The role of judges in this disorder is especially destructive. As already mentioned judges conspire to preserve the common law’s delay, expense and injustice. The judiciary was insufficiently accountable to the people and its method of resolving disputes unduly complex. The first deficiency could, he argued, be remedied by rendering the whole process of judging more open and public. Publicity, he wrote, is the very soul of justice. It ensured that judges were legally and morally accountable. But it was not enough for the courts to be accessible, they had to use language which was comprehensible to the ordinary person.
8. Judges like fathers:
The second problem could, Bentham thought, be resolved by making judges more like fathers. He saw considerable merit in employing the method by which domestic disputes are resolved: a father quickly, justly and comprehensibly determines, without technical rules of evidence, whether a child has committed the act in question, and hands down the appropriate verdict and judgment or sentence. This inviting model of alternative dispute resolution assumes a number of social features from which it may seem dangerous to extrapolate a great deal, but it supplies a fairly graphic analogy in support of informal modes of adjudication.
9. The dupe of every prejudice:
Bentham’s assault on the common law was largely developed, in the first instance, by way of a critique of Blackstone’s Commentaries. Indeed this critique, though he never completed it, was something he never abandoned: at the age of eighty he added some 300 sheets of manuscript to what he had written in the 1770s. There was something almost obsessive about his hostility towards Blackstone. Though he occasionally gave him credit for producing a serviceable map of the jungle of English law, he much more frequently criticized him; Blackstone had some claim to be regarded as an improver, of a cautious and modest kind, but Bentham described him in a memorandum of the 1780s as ‘the dupe of every prejudice, and the abetter of every abuse.
1. A positivist:
A positivist is a person who acknowledges that it is possible to identify legal rules without making a moral judgment. Jeremy Bentham belongs to the early school of positivism. Motivated by a desire to distinguish between what the law is and what it ought to be, Bentham used the legal concept of sovereignty to advocate theories which explained and separated what the law is from what the law ought to be. His command theory illustrated that jurisprudence was solely concerned with positive law. Bentham felt that divine law had no place in law.
Utilitarians believe that the best action is the one which promotes the welfare of the greatest number. Bentham was a utilitarian, because he arguably felt that the law must promote the welfare of the greatest number; this means that what the law is must be separated from what it ought to be if the law is to promote the welfare of the greatest number. The criticism Bentham made against the law, especially the uncodified and unwritten law ‘nonsense on stilts, makes it plausible that his positivism was conditional on his utilitarianism.
3. Gerald Postema says:
Gerald Postema says that Bentham associates justice with law and the administration of it. He argues that the conflict between justice and utility amounts to the conflict between adherence (loyalty) to the rules, and the violation of a rule in order to secure a clear advantage in a particular case. Postema claims that Bentham does not choose between justice and utility. Rather, Bentham sees in justice an attractive political idea which concerns the utility of secure and determinate public rules.
4. Bentham represents the classical school of English legal positivism:
Bentham represents the classical school of English legal positivism, often criticized by modern theorists as misguided. But he cannot sensibly be understood without an appreciation of the historical context in which he wrote and the objectives he sought to achieve. In particular, he was uneasy about the manner in which the common law was explained and justified as the expression of community needs and interests. For him, law is an expression of political facts, as will become evident below. I shall briefly describe the main elements of his theories and then suggests where his strengths and weaknesses might lie.
5. Of Laws in General:
In 1970, professor Hart published the first authoritative edition of Bentham’s Of Laws in General, which Bentham completed in about 1782. It is clear that Bentham’s work (in particular, An Introduction to the Principles of Morals and Legislation) constitutes a major contribution to positivist jurisprudence and the systematic analysis of law and the legal system. With his extraordinary combination of a fly’s eye for detail, with an eagle’s eye for illuminating generalizations’, Bentham devoted himself for constructing a comprehensive theory of law, logic, politics and psychology, founded on the principle of utility.
6. Bentham’s careful attention:
Little escaped Bentham’s careful attention. He dealt with the courts, prisons, procedure and reform of the law on almost every subject. And his sustained, often devastating, assault on the received wisdom of his days is magnificent in its destructive power, for, as Mill put it, Bentham found the battering-ram more useful than the builder’s trowel (a tool use). But it is his critique of the common law and its theoretical underpinnings that are especially important to the student of jurisprudence. Moved by the spirit of the Explanation, Bentham sought to subject the common law to the cold light of reason.
7. Discredit the common law:
He attempted to discredit the common law by explaining what lay behind its mask. The use of fictions, the confusion and inconsistency of the Draconian criminal law with its disproportionate sanctions, including capital punishment, legal jargon, and the complex writ system were some of the features of the common law that he attacked in his characteristically hurtful and incisive manner. The law was a confusing network of technical rules created by lawyers, conveyancers, and judges which served their corrupt interests. Most people were too poor or ignorant to drive any benefit from a process which supposed to be fair and rational:
8. The techniques of manipulation:
The techniques of manipulation of ignorance, complexity, and selective terror for sinister ends could not be seen, according to Bentham, as mere oddness of an essentially rational system of law. Rather, he included the latest expected chapter in a story that had been written over the centuries. If society was to see any improvement, its law must be reformed; if its law was to be reformed it must be burned to the ground and rebuilt according to a new and rational pattern. (see common law)
D. Code of Laws:
1. Two Benthams at the same time:
we can see two Benthams at the same time: one aiming to construct an ideal all-comprehensive real code of laws to be put into practice, another the critic of the common law, developing a metaphysics of law with which to reform the mass of common law materials. These two Benthams reflect the two problems as he was addressing. Blackstone’s failure to show the common law as a united body of rules encouraged Bentham to seek to throw away the common law and start again; but the problem Blackstone ignored of knowing how judges came to decisions in concrete cases was also one Bentham addressed that took him in a different direction. Bentham was known best in his life as a reformer, and hence it is the first view that has traditionally prevailed. Indeed, it is clear that he imagined drawing up large and extensive substantive codes of laws for any government that would let him, offering his services to President Madison of the United States, as well as several Latin American and Southern European states in the 1820s. Throughout his life, Bentham drew up codes of Penal, Civil, and Procedural Law, culminating in the 1820s with his Constitutional Code.
2. The chaos of the common law:
However, Bentham codified the chaos of the common law in a very simple manner. Once the law is codified: …..a man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency: what acts it is his duty to perform for the sake of himself, his neighbour or the public: what acts he has a right to do, what other acts he has a right to have others perform for his advantage.In this one repository (store) the whole system of the obligations which either he or any one else is subject to are recorded and displayed to view.
3. The power of judges:
Such a code would significantly diminish the power of judges; their task would consist less of interpreting than administering the law. It would also remove much of the need for lawyers: the code would be readily comprehensible without the help of legal advisers. Codification, in short, would wind up judges. The principle of utility dictated that the code would be structured in the most logical manner and formulated in the simplest language. It would lay down general principles in a logical and fairly detailed way, as well as justifications for these principles.
4. Historians are divided:
Historians are divided over what type of code Bentham imagined. On the one hand historians like L.J. Hume and S.R .Letwin have argued that it should be wholly comprehensive, so that judges would adjudicate in a fairly mechanical manner following the substantive rules of the code. This interpretation rests on Bentham’s persuasion that social reality had a structure that could be uncovered by classification, so that it was possible to outline all possible modes of action. On the other side, Gerald Postema has argued that Bentham’s theory of adjudication was much more flexible than has so far been realized. For Postema, Bentham’s theory of law was built on a commitment to a direct-utilitarian theory of practical reasoning: by this, the code guaranteed a co-ordination of social interaction and secured expectations, but guaranteed that, at case level, the practical reasoning of the judges would remain a direct-utilitarian one that could distribute with the code. The Benthamic code was thus only a broad set of principles which could be fleshed out by reference to utility, and the judges could ignore the code when utility dictated.
Bentham remained determined in his commitment to a complete code, seeing it in 1828, at the time of the wave of law reform, as being altogether crucial, while consolidation was insupportable and the mere reinforcement of the corrupt system. Yet the most significant feature of Bentham’s substantive proposals-whether in the form of writing a code or even in the more modest project of building and running his Panopticon-was their failure. Not only did he fail to get any government to adopt his code, but he never managed to complete a satisfactory one. Yet his ideas and his approach to law were highly influential. We must therefore distinguish between codification as an idea and as a substantive proposal.
E. The principle of utility:
Philosopher, economist, jurist and legal reformer, Bentham was able to spin from the line of the ‘principle of utility’ a vast textile of ethics and jurisprudential doctrine, known as ‘utilitarianism’, which sought an answer to the question, ‘What ought an individual to do?’ Bentham’s answer was that he should act so as to produce ‘the best consequences possible’. ‘Consequences’ include all that is produced by an act, whether arising during or after its performance. A summary of the main principles of utilitarianism is given below.
2. The principle of Utility:
The principle of utility was set out by Bentham in his ‘Introduction to the Principles of Morals and Legislation. He defined it as that property in any object whereby it tends to produce pleasure, good or happiness, or to prevent the happening of mischief, pain or evil and unhappiness to the party whose interest is considered. Nature had placed mankind under the governance of two sovereign masters, pain and pleasure; they indicate what we ought to do and determine what we shall do. The principle that we desire pleasure and wish to avoid pain is utilised by Bentham so as to make the judgment that we ought to pursue pleasure. The principle of utility cannot be demonstrated because it is not susceptible to proof; indeed, says Bentham, it is needless even to attempt a demonstration.
3. The guiding standard:
For Bentham, the principle of utility had to be the guiding standard and the basis for evaluation of all action. Utility in this case was to be understood as that quality of an object or action which gave it a propensity to produce some good, satisfaction/happiness or benefit on the one hand, and to prevent or reduce pain, evil or mischief on the other. The principle of utility was, as such, an objective standard for deciding on what good law and what was not.
4. Mathematical accuracy:
Bentham attempted to give the theory some measure of mathematical accuracy. A thing will promote the interest of an individual when it tends to add to the sum total of his pleasure, or to diminish the sum total of his pains. It was possible, he argued, to make a quantitative comparison of the pleasure and pain likely to result as the consequences of alternative courses of action. A person should sum up the likely pleasures and pains so as to arrive at the good or bad tendency of the act in question-the felicific calculus. An account of the number of persons whose interests appear to be involved should be taken, and the calculus applied to each. The result would be an estimate of the good or evil likely to be produced within the community as a whole.
1. The aim of the legislator:
The aim of the legislator, according to Bentham, should be to produce the greatest happiness of the greatest number. Community interest was no more than the sum of the interests of those who compose a society. The art of legislation involves the discovery of the means to realise the good. The legislator considering the ambit and content of the criminal law must take into account the fact that the acts he desires to prevent are evils and that they are greater evils than the laws to be used to prevent them. Legislation ought to aim at four goals: subsistence, abundance, security and the reduction of inequality. The laws which a legislator should seek to promote should be seen in relation to desirable conduct to be expected from persons or classes of persons.
2. Considering the criminal law:
In considering the criminal law, Bentham applied the principle of utility in rigorous fashion. First, the mischief of an act should be measured. Mischief consisted of the pain or evil inflicted by the act. If an act tended to produce evil, it must be discouraged. Evil could be primary or secondary. If X steals from Y, this is primary evil. Secondary evil arises where X’s theft weakens the general respect for property. Bentham stresses that secondary evils may often outweigh primary evils.
3. Increased the total happiness of the community:
Because the legislator is concerned to increase the total happiness of the community, he must discourage acts likely to produce evil consequences. A criminal act is one which is obviously detrimental to the happiness of the community; hence, the law should be concerned solely with acts that diminish the pleasure of persons by the infliction of pain. The criminal law is intended to assist in the active promotion of the community’s total happiness by punishing those who commit offences characterized as evil according to the principle of utility.
4. Division of offences:
Bentham would not accept a division of offences between the acts wrong in themselves and the acts wrong because the law prohibits them. The principle of utility insists that an act cannot be wrong in itself; whether it is right or wrong depends on consequences. If it is highly probable that an act will produce harm, it should be prohibited; if unlikely to produce harm, its prohibition is unjustified. We prohibit murder and theft and punish those responsible, not because the acts are wrong in themselves but because of the evil consequences for others. For precisely the same reasons, we punish also those who commit minor offences.
5. Punishment is in itself an evil:
Bentham said punishment is in itself an evil: it necessarily inflicts suffering on the offender. But the object of the criminal law is the increase of the community’s happiness; hence, if punishment is to be administered, it must be shown that the pain to be inflicted on offenders will prevent or exclude some greater pain. The usefulness of punishment emerges only if its infliction achieves a greater measure of happiness for the community. It has no value if it merely adds more units of pain to the community as a whole. Mere retribution is valueless because it only adds to the total quantum of pain caused by the offences.
6. Why society ought to punish offenders:
Bentham insisted on an examination of why society ought to punish offenders. There is no value in inflicting punishment where it is groundless; hence, an offence which admits of compensation, and which can be followed by such compensation, ought not to be punished. Punishment which is too expensive ought not to be inflicted. The proportion between punishment and the offence must be kept in mind. Punishment should be great enough to outweigh profit derived by the criminal. The greater the offence, the greater should be the punishment.
7. Punishment ought to be variable:
Punishment ought to be variable and adapted to suit circumstances, but the same punishment should be given for the same type of offence. The quantum of punishment should never exceed the amount required to make it effective, so that extravagant punishment should be rejected as wasteful. The more uncertain it is that a criminal will be caught, the greater should be the punishment when he is apprehended and convicted. Punishment should act as a deterrent, should be reformatory where that is possible and should have wide popular support. Hence Bentham’s acceptance of the need for capital punishment, which, he believed, did provide a deterrent. It is interesting to note the support for capital punishment shown by Bentham’s disciple, J.S Mill. On one of the rare occasions on which Mill spoke in the House of Commons, in 1868, he advocated the retention of death penalty.
8. Practical schemes for the rational punishment:
Bentham’s utilitarian principles as applied to the criminal law and punishment led him to prepare practical schemes for the rational punishment of offenders. Among a large number of such plans, which were often worked out in considerable detail, was the design of a Panopticon-a prison in which the conduct of the inmates was to be controlled by total surveillance throughout the day. Bentham stated that its object was to grind rogues honest. This process was to be achieved by an uninterrupted survey of behavior, which would result in the remodelling of the offenders attitudes. Bentham had in mind reform of the prisoners- mere punishment with no objective other than retributive detention seemed to him a wasted opportunity.
9. Bentham’s radical approach:
Bentham’s radical approach to law and punishment was vigorously opposed in his time, although a number of penal reforms are now attributed to him. Controversy surrounds his approach to punishment even today. It is argued that the utilitarians disregarded the claims of justice in determining whether or not a punishment was right. For them, the utility of the punishment was the sole consideration, but for many jurists, other matters would have to be taken into account before accepting the correctness of a particular type of punishment. Objection is taken, too, to the pleasure-pain calculus which is considered unreal and absurd, particularly in relation to the criminal law. Principles of punishment derived from a construct of this nature are considered flawed and, therefore, unreliable.
10. Opposition to Bentham’s views:
Opposition to Bentham’s views also stems from jurists who cannot accept his reasoning concerning the general happiness of society as constituting the summum bonum. It is thought that Bentham’s view of mankind was naive in the extreme. People are much more complex than the principle of utility suggests, and the causes of crime are much more complicated than the utilitarian model indicates. Modern investigations of criminal psychology put forward a psychological picture of anti-social motivation which is at odds with Bentham’s views.
11. Plamenatz suggests:
Plamenatz, the historian of the utilitarian movement, suggests that although much of Bentham’s work was often superficial and basic, it was far ahead of its time in proposing new methods of analysing social and legal problems. These methods and the resulting proposals for reform of the criminal law can be accepted on their own terms. It is not necessary, therefore, to accept Bentham’s felicific calculus or his belief in the greatest happiness of the greatest number in order to agree with his powerful pleas for a rethinking of the fundamental purposes and modes of punishment. There is much in his analysis which is ingenious, original and though-provoking. It remains worthy, according to Plamenatz and others, of consideration by jurists of all persuasions. The contemporary school of penology which accepts the utilitarian justification of penalising offences, holds that penalties imposed by the law act to reduce the frequency of offences by deterring the offender and potential imitators; reforming the offender; educating the public by imprisoning some offenders. Bentham’s influence remains much in evidence.
G. Are you a utilitarian?
1. Utilitarianism is an important theory:
Utilitarianism is an important theory because it has profound influence and reflection on our moral beliefs. An example is necessary: imagine that commuters have been experiencing daily frustrations with problems due to signal failures and breakdowns on the national railway network. We all assume that it is our business to subject the performance of the railway bosses to scrutiny. We all assume that it is our business to subject the performance of the railway bosses to scrutiny. We do this because we feel that keeping an efficient and well-maintained railway system is the moral responsibility of the railway bosses. Their duties have utility; to seek the increase in welfare or happiness of train commuters. The purpose of our scrutiny is to make the rail network a safer environment for all of us. This welfare maximisation is considered a neat idea, a moral standard worth achieving.
2. Utilitarianism is a consequentialist theory:
Utilitarianism is a consequentialist theory in that it looks at the consequences of an action. For example, every health authority in the United Kingdom has the responsibility for managing its resources equitably, the health authority is mindful of the utilitarian maxim everyone counts as one and no one for more than one, and decide how much can be spent on drugs, equipment and logistics. Presume that a sick child needs a very expensive treatment which will bite deeply into the resources at the disposal of the health authority. Considering that it had decided to spend X amount per head relative to the population in its catchments area, it decides to refuse to fund the treatment of this sick child. In taking its decision the health authority considered the consequences of spending Y amount to fund the treatment of the sick child: it would mean suffering would increase for others. The right action is the one which will promote the welfare of the many.
3. Agreed to be a caretaker:
Imagine I have agreed to be a caretaker of the house of a friend, who is going away on a holiday. A week later I change my mind when I receive another offer to manage an orphanage. I do that because I think managing the orphanage has more utility value-many people will benefit from the experience. However, the utilitarian will not be happy about my behaviour because of the adverse effects it could have. I gave a promise which I later broke. Society would be in danger if people kept breaking promises.
4. Keeping promises:
The difficulty for opponents of utilitarianism here is that they must bear in mind that the morality of keeping promises is based on a calculation of the consequences. Even if it was simply that my promise had to be overridden by a sudden emergency, the utilitarian insists that we must always remember that the promise-breaking relates to a past fact. As a consequentialist theory, utilitarianism looks only at the end and not the means by which this end is achieved. Let us assume that members of the intelligence service have received a tip off that a terrorist group has planted a bomb, primed to be detonated when a prominent member of the government rises to speak at a rally. If this were allowed to happen, many people would die. The intelligence service decides to evacuate people from the rally and from nearby homes. They forcibly remove people who refuse to move, thereby infringing their liberty. The utilitarian will argue that, as long as the lives of many people are saved, the means by which the intelligence service achieves this aim is not important.
5. Different versions of utilitarianism:
There are different versions of utilitarianism, such as act and rule utilitarianism. Act utilitarianism state that, where a person has a choice between two courses of action, the right action to choose is the one which produces the most happiness not for the person himself but for all who are in any way affected by the act. The greatest happiness of the greatest number is the benchmark for the right action, and this happiness is usually interpreted to mean a balance of pleasure over pain. It is suggested that for each alternative course of action, it is possible to weigh the amounts of pleasure it produces for some people and add these up. We then add up all the amounts of pain and subtract the sum of pain from the sum of pleasure; the correct action is that which produces the greatest positive or least negative medium of pleasure over pain.
6. Rule utilitarianism:
Rule utilitarianism differs from act utilitarianism in the sense that it makes general happiness the benchmark for the right action, but only through an indirect two-stage procedure. Imagine a rule says that act A is of higher utility than any alternative but is banned by rule Y because it is of the kind F, the performance of which will decrease happiness. There must be something about act A to explain the contrast. Rule utilitarianism will find a happy medium with act utilitarianism and incorporate F1 instead of F and thereby allow for the prescription of A. for example, if allowing 1,000 people to cross a weak bridge at a time will cause the bridge to collapse and everybody to be injured, rule utilitarianism can agree with act utilitarianism for a rule which will prescribe that only X number of people must cross the bridge at any one time.
7. The attraction of utilitarianism:
The attraction of utilitarianism is that it is a moral theory. Happiness is said to be the foundation of morality, and so many people are attracted by a theory which espouses the welfare and happiness of people.
8. Criticisms of utilitarianism:
There have been many criticisms of utilitarianism. It is an aspirational (ambition) theory and as such cannot lay claim to be a moral theory. The happinesses of people are not the same, so it is difficult to subscribe to a theory which is aspirational but cannot measure the consequence of any act before it happens. Utilitarianism can be criticised for trading-off the happiness of one person for the happiness of another. It has no independent method of distribution of welfare, so it has only instrumental concern for welfare. It is impossible to trade-off the misery of slaves for the happiness of slave owners. Further, the theory cannot explain its disregard for rights, since to the utilitarian the end justifies the means, even if one human life is sacrificed in the process of saving one hundred people. What is important to the utilitarian is that there is average utility in terms of happiness as a result.
Utilitarianism is said to be a moral theory, but its disregard for rights and freedom makes one question the basis of its morality. It seems crude to say that a sadist’s happiness has a utility value when happiness is at the expense of the misery of others. John Rawls is right to say that such happiness, the right to do it, cannot be defined in terms of the good. Justice is always prior to such a right. We are reminded by the philosopher Immanuel Kant that human beings are ends in themselves not means to an end. This moral philosophy impels me to reject utilitarianism.
Bentham and Austin compared:
The definition of law:
Bentham’s definition of law might be divided into the following six elements:
a) An assemblage of signs
b) Declaratory of a volition
c) conceived or adopted by the sovereign
d) concerning conduct to be observed by persons subject to his power;
e) such volition relying on certain events which it is intended such declaration should be a means of causing, and
f) the prospect of which it is intended should act as a motive upon those whose conduct is in question.
Bentham is concerned to arrive at the conception of a single, complete law which sufficiently expresses the legislative will.
Bentham argues that commands are merely one of four methods by which the sovereign enacts law. In developing his theory of the structure of law, he distinguishes between laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct (permissive laws). In Of Laws in General Bentham is concerned with the distinction between penal and civil laws. Every law has a penal and a civil part; thus, even in the case of little to property there is a penal element: as Bentham puts it:
Let the proprietary subject then be a certain piece of land, a field, the offence which consists in the wrongful occupation of this property will be any act in virtue of which the agent may be said to meddle with this field.The offence then being the act of meddling with the field, the act which is the object of the law, the act commanded is the negative act of not meddling with the field.
In other words, the owner’s title is derived from a general (penal) prohibition against meddling with the field. The owner is himself exempted from this prohibition. What Bentham seeks to show is that laws which impose no obligations or sanctions (what he calls civil laws’) are not complete laws, but merely parts of laws. And, since his principal objective was the creation of a code of law, he argued that the penal and civil branches should be formulated separately.
For Bentham, sovereignty is a key concept. He regards sovereignty as a matter of the social fact of the habit of obedience. Again, Bentham’s views turn out to be more sophisticated and less doctrinaire than Austin’s.
Bentham’s definition is strikingly similar:
When a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person, or an assemblage of persons, of a known and certain description (whom we call governor or governors) such persons altogether (subjects and governors) are said to be in a state of political society.
Bentham (alive to the institution of federalism) acknowledges that the supreme legislative power may be both limited and divided by what he calls an express convention. Both writers, by identifying commands as an essential element of their theories of law, naturally require to explain who issues these commands and under what circumstances.
Bentham recognises not only that sovereignty may be limited or divided, but that limitation on the sovereign power is actually a correlative of limited obedience to the legislator’s commands. What Bentham seems to be suggested is that where the people decide not to obey a particular command this constitutes a limitation of sovereignty. This is not a wholly convincing argument, but it exhibits a willingness on Bentham’s part to acknowledge political realities which often escape Austin. Indeed, Bentham goes so far as to accept the possibility of judicial review of legislative action. It has been suggested that Austin may have confused the de facto sovereign
Bentham is willing to concede that a sovereign’s commands would constitute law even in the absence of sanctions in the Austinian sense. For him law includes both punishments (coercive motives) and rewards (alluring motives), but they are not the fundamental, defining characteristics of law that they are for Austin. Nor is Bentham guilty of the limited social vision of law and the legal system that afflicts Austin in respect.
Bentham emphatically rejected the notion of Blackstone and Montesquieu that the three powers of government were separate in the English Constitution. Sovereignty in England rests ‘in the King, Lords, and Commons in Parliament assembled’ and that sovereignty can only be exercised through the co-operation of the three branches.
For Bentham, the science of legislation comprised the ability, on the part of the law making authorities in a State, meaningfully to tell or predict the sort of actions and measures which would maximise pleasure or happiness and minimise pain or misery. The art of legislation was then the ability of the legislators to create laws which would effectively promote the good and reduce the bad in this sense.
Bentham surely recognised in himself the Luther of Jurisprudence. He derided not only lawyers language but also their wigs, robes and anachronistic forms of address, and the ambiguity, complexity and irrationality of the rules of evidence. His critique inspired the major legislative reforms of the law of evidence of 1843, 1851 and 1898.
In 1768 Jeremy Bentham discovered the principle of utility, that the greatest happiness of the greatest number is the only proper measure of right and wrong and the only proper end of government. From then until his death in 1832, he worked with determination to discover means of promoting that end and thus to rear the fabric of felicity by the hands of reason and of law.