Utilitarianism of

Law
Rabin Subedi
National Law College
Phone: 9851077261
Email:
subedirabin@gmil.com

Utilitarianism (Bentham)
Social progress of the time of Bentham was
looking for social justice- Bentham found
legal positivism as a solution of it.
Because, Benthams utilitarianism is an
attempt to find an objective science of
society and politics
Marxists philosopher Trotsky remarks that
utilitarianism arose as a part of ideological
factor which give an image of social
cohesion when conflict is the reality
Greatest happiness can be achieved if
people follow law
Happiness can be maximized in public and
private life

Utilitarianism (Bentham)

The objective of classical positivism is for new

science of law and reform, creating a condition of
modern society that focuses on political and
constitutional reform and developing modern
orderly society
Theory of positivism provides methodology for
guiding reform and support, and justification for
reform
Bentham had life-long fear of revolution because
he had witnessed the American and Continental
European revolutions which swept out in a
devastating way
Therefore, he advocated for good orders and
security so as to establish certainty

Utilitarianism (Bentham)

Benthams proposed four

elements of law :
Law is product of sovereigns will
Such product is known to the citizens
and officials of the nation
Laws lays down or prohibits certain
course of action
Law relies upon the use of sanction

Utilitarianism (Bentham)

According to Bentham No Command but

Mandate ( he rejects the idea of command)
The course of action is a mandate given by law
and it can be seen in four ways
A command ( do something , for instance wear a
seatbelt )
A prohibition ( not to do something, for instance do
not wear a seatbelt)
A permission to forbear ( you may refrain to wear
seatbelt )
Permission to act ( you may wear seatbelt)

Behind these, the sovereignty and coercion is

working that is structured by sanction

Utilitarianism (Bentham)

Supreme Legislature might be

omnipotent (powerful) but there might be
guides and checks- that is utility principle
By two sets of law the Sovereign makes
its will known and effectives Principal
laws that address to the citizens;
Subsidiary laws that address to the public
officers
In the case of public officers, other public
officers are verifying their acts

Utilitarianism (Bentham)

According
to
Bentham,
sanction
and

punishments are essential features of a legal

system
Four types of sanction : Physical, Political, Moral
and Religious

Calculus of pleasure and pain: each individual

and legislature is concerned with achieving
pleasure and avoiding pain
For these Bentham says units/lots ( before we
act we should calculate the values of lots
Values might be greater or lesser which
always depends on pleasures (a) intensity, (b)
duration, (c) certainty, (d) propinquity
(nearness), (e) fecundity (fruitfulness), (f)
purity

Utilitarianism (Bentham)

By this, it is proved that Bentham believes

in quantitative happiness/pleasure
Summing up the values of all pleasure, if
the act is balanced on the side of
pleasure, it will create a good tendency of
act; however, if it is on the side of pain it
will create a bad tendency
Therefore, the legislature should play key
role in discouraging and encouraging the
acts

Utilitarianism (Bentham)
greatest happiness
The obstacle of achieving
of the greatest number is aristocratic society
in which the a small group of elite people are
ruler who work for their own interest
Combination of rulers and ruled is the best
solution to overcome contradiction between
the rulers and ruled; if rulers and ruled
become one identity, there is no way of
conflicting interests
Bentham believed in rule by people ( by
representative of people, precisely; and not
more monarchy)