A CRITIQUE OF JEREMY BENTHAM'S IDEA OF LAW
CHAPTER ONE
Introduction
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 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
CHAPTER TWO
2.0 Literature Review
2.1 Introduction
The review of relevant literature is the main topic of this chapter. A literature review covers theoretical and methodological contributions to a certain issue in addition to the state of knowledge at the time of writing. It provides information about the state of the art in relation to the subject you are writing about. It examines the body of work on the chosen subject. The literature evaluation in this study comprises the …
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