JEREMY BENTHAM & ANALYTICAL POSITIVISM

Bentham theory is also called “Utilitarian Individualism”.

Bentham defined law as ‘an assemblage of signs, declarative of violation conceived or adopted by a sovereign in a state which means that law is an expression of the will of the sovereign in a state.’ He believed that every law may be considered in the light of eight different as:

• Source- law is the will of the sovereign.

• Subject- person or thing.

• Object- act, situation, forbearance.

• Extent- law covers a portion of land on which act is done.

• Aspect- may be directive or sanctioned.

• Force- to produce the effect.

• Remedial state appendages- something attached with the state.

• Expression- of will.

So, the source of law is the will of the sovereign who may concede laws which he personally issues as law or adopts previously issued laws by the former sovereign.

Bentham was the supporter of individuals and believed that the function of law is to make the individuals free from all the bondage and restrictions. He favored the economic principle of “Laissez Faire” which means minimum interference of the state in the economic activities of the individual. Once the individual is free, they will be looking after their own welfare.

Individualism:

Based on the principle of ‘Laissez-Faire’ means minimum interference of the state in the economic activities of the individual. And this should be resulting in the happiness and welfare of society.

According to Bentham, the purpose of the law is to bring pleasure and avoid pain (Pain and Pleasure theory) and the legislation came to an end on the greatest happiness of the greatest number.

According to this theory, the right aim of the legislation is to carry out the principle of utility. The legislation developed the law on the basis of the utility of individuals.

Utility:

Bentham defines it in two terms:

• To provide pleasure property/tendency of a thing, to provide some pleasure, benefits, advantages, happiness.

• To prevent pain, to prevent the happening of mischief, pain, evil or unhappiness.

The utility is based on the greatest number of happiness of the greatest number (maximum happiness to the maximum number of people). That’s why this theory is also known as “greatest happiness principle”, which means any law is good/bad depending upon the general happiness of the majority of the population. When we conclude Bentham’s theory or when we co-relate these two terms, it’s clear that the interest of the community is attached with the interest of the individuals. Society is just a collection of individuals and the interest of an individual is related to the interest of society.

The main function of Bentham’s theory:

Bentham desired to ensure the happiness of the community by attaining four major goals:

• To provide substance.

• To produce fullness (abundance).

• To favor equality.

• To maintain security.

Criticism against Bentham:

The weakness of Bentham theory are as follows:

1. According to Friedman; Bentham’s theory mainly suffers from two weaknesses:

• Bentham mingled materialism with ideas.

• His theory fails to balance the individual interest with the interest of the community.

2. The main concept of pleasure and pain is not the final test of the adequacy of law or we can only say they’re not the ultimate goal of law or legislation.

3. Bentham theory states that the interest of an unlimited number of individuals shall be contributed to the interest of the community but in practice, because of the inequality it is not possible.

4. The concept of “Laissez Faire” which provides a complete framework of freedom to the individuals and provide them the opportunities for development was not completely right and even in the later time ‘legislation was used to restrict individuals in economic matters’.

Importance:

1. Bentham’s contribution to the legal theory and legislation is so much that his era is known as “Benthanite Era” in the legal history of England. He introduced legal positivism and treated the study of law as a science of investigation through scientific methods of experiments and reasoning. This philosophy that “justice is nothing but social happiness or the happiness of the majority of people” seems like a great moral of ideal for the welfare of states.

2. He agreed with Kelson who said absolute justice is an irrational ideal, an illusion- one of the eternal illusions of mankind. Bentham’s perception of justice is based on the system of values i.e. morals. The individuals living in society have to conform to the set values or norms and rationalize their conduct/behavior accordingly.

3. Bentham defined law as an “assemblage of signs declarative of a violation conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons; who in the case in question are/are supposed to be subject of his power.

4. Expression- where the expression of law is completely in unequivocal terms, the judge must adopt liberal interpretation. It is only where the expression of law is incomplete that the judge may resort to liberal interpretation.