BENTHAM AND THE UTILITARIANISM

PROPOSAL SUBMITTED IN FULFILLMENT OF THE COURSE JURISPRUDENCE FOR THE DEGREE

B.A. LL.B. (Hons.)

SUBMITTED BY- Aashish Mittal

B.A. LL.B. (Hons.)

ROLL NO. – 1901

SUBMITTED TO – Dr. Manoranjan Kumar

(FACULTY OF JURISPRUDENCE)

DATE OF SUBMISSION - 20th OCTOBER 2020

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYANAGAR, MITHAPUR, PATNA

800001
 DECLARATION

I, hereby, proclaim that the work revealed in the B.A. LL.B. (Hons.) Project Report entitled
"Bentham and the Utilitarianism" submitted at Chanakya National Law University is a legitimate
record of my work did under supervision of Dr. Manoranjan Kumar I have not presented this work
somewhere else for some other degree or recognition. I am completely in charge of the
substance of my venture report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: AASHISH MITTAL

CHANAKYA NATIONAL LAW UNIVERSITY

|Page 1
 ACKNOWLEDGEMENT
I am feeling highly elated to work on the case law “Bentham and the utilitarianism” under the
guidance of my faculty of Jurisprudence, Dr. Manoranjan Kumar. I am very grateful to him for his
exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have
tried my best to pave the way for bringing more luminosity to this topic. I also want to thank all
of my friends; without whose cooperation this project was not possible. And at last I am very
much obliged to the God who provided me the potential for the rigorous research work. At finally
yet importantly I would like to thank my parents for the financial support.

THANK YOU

NAME: Aashish Mittal

ROLL NO: 1901

|Page 2
Table of Contents

1. INTRODUCTION ................................................................................................................. 4

2. LIFE & WORKS OF JEREMY BENTHAM ..................................................................... 6

3. PRINCIPLE OF UTILITY ................................................................................................... 7

4. DOCTRINE OF PLEASURES & PAINS AND THEIR TYPES .................................... 10

5. CRITICAL ANALYSIS ...................................................................................................... 13

6. CONCLUSION .................................................................................................................... 14

7. BIBLIOGRAPHY................................................................................................................ 15

|Page 3
 1. INTRODUCTION

Jeremy Bentham was a leading theorist in Anglo-American philosophy of law and one of the
founders of utilitarianism, he was born in Houndsditch, London on February 15, 1748. His most
important theoretical work is the Introduction to the Principles of Morals and Legislation (1789),
in which much of his moral theory—which he said reflected "the greatest happiness principle"—
is described and developed.

Moral theories define what is good and what is bad, and coming to a more broader sense the word
moral defines what is and what ought to be, more like a improved version of punishments for
crimes and rewards for goods, now if we go a little time back to 18th century, law and the society
was not that advanced, there was a scope of lawless society and emergence of a certain code which
prevails the behavioural aspects of the humans. Moral theories define that how we should make
our decisions, how we should value our choices, what institution to choose, what to study, and
similar questions like these, there was still a need for action principles for a society to have their
conduct to guide, so utilitarianism started with the Hedonist basis and upon that analogy it can be
said that pleasure is good and pain is bad. Breaking the above pleasure and pain concept into more
simple terms, if there is more pleasure overall than pain, than its good and if there is more pain
overall than pleasure than its bad.

Hedonist perspective says that if you are able to produce more pleasure than pain by any act than
it is a good thing, for example getting yourself a lightning shock if it gives you pleasure its good
if not than its bad, more of like choices which gives pleasure, but it does not work that way, if that
happens that will be problematic. Utilitarian perspective goes on to explain the concept or more of
a ‘community of people affected’ let’s take the above example by getting a lightning shock, people
will be freaked out by that, so what analogy I drew from the above discussion is that maximise
pleasure and minimise pain not just for ourselves but also for all persons affected of the
community is the core basic concept of the utilitarianism.

Utility was defined by Bentham as “the principle which approves or disapproves of every action
whatsoever according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question.” The principle of utility is designed to promote
the happiness of the individual or the community. The community can have no interests

|Page 4
independent of or aggressive to the interests of the individual. According to Bentham, community
interest is sum of the interests of the members who compose it. According to him the business of
the government was to promote happiness among the masses, by furthering the enjoyment of
pleasure and providing security against the pain. For him it was the greatest happiness of the
greatest number of the people, which constituted the principle of utility. A happy society
constitutes a happy polity. Public good is the object of the legislator.

OBJECTIVE OF THE STUDY:

To understand the principle of utilitarianism and the life works of English jurist Jeremy Bentham,
the doctrine of pleasure and pain, critical analysis of Bentham theory of utilitarianism.

HYPOTHESES:

1. The act which bring happiness is done by the greatest number of persons in society.
2. The role of pain and pleasure in any individual’s life is fundamental, equates good with
‘pleasure’ and evil with ‘pain’ are capable of quantification.

RESEARCH METHODOLOGY:

The research method upon which the researcher has relied upon is: -

• Doctrinal research: - Doctrinal research is concerned with legal prepositions and doctrines.
It is research into the law and legal concepts.

SOURCES OF DATA.

Data collected for the purpose of this particular research is from secondary sources.

• Secondary Source: - Secondary sources describe, discuss, interpret, comment upon,

analyses, evaluate, summaries, and process primary sources. It includes newspaper,
magazines and books. For the proposal, the researcher has taken into account books,
magazines and journals.

|Page 5
 2. LIFE & WORKS OF JEREMY BENTHAM

Jeremy Bentham was a leading theorist in Anglo-American philosophy of law and one of the
founders of Utilitarianism, he was born in Houndsditch, London on February 15, 1748. He
belonged to the legal background, with having attorneys in the house so his life was driven towards
the enlightenment, though he never intended to become what his family intended him to become,
rather under pressure and due to belonging to high class family did not object very much and at
the age of 12 entered Queen’s College Oxford and was called in the bar in 1769. From 1770-1830
he worked on different laws, interpretation, research papers, books, etc.

Bentham was a controversial enthusiast and most of his works proposed practical ideas, questions
in law for the reform of social institutions, his work had a great influence on the political
philosophy, ironically he did not write any text on this topic, nor gave any essential principle as
such. One of his most important theoretical work includes Introduction to the principles of Morals
and Legislation (1798)1, in which his moral theory, the greatest happiness principle had been
described and developed.

In 1781, he associated himself with Earl of Shelburne and, through him came into contact with
number of leading politicians and lawyers. In 1785, he was more intense in his enthusiasm and he
devised a plan for the now infamous “panopticon”- a model prison where all prisoners would be
observable by (unseen) guards at all times. Although his works are in contemporary structure are
unappreciated, meanwhile in 19th century his works lead to many political reforms in British
politics, when he attacked both Troy and Whig policies, both the Reform Bill of 1832 (promoted
by Bentham’s disciple, Lord Henry Brougham) and later reforms like secret ballot, advocated by
Bentham’s friend George Grote, reflected Benthamite concerns. His other disciples includes,
James Mill, as well as the legal theorist, John Austin.

Some of his works include- Fragment on Government (1776)2, Panopticon (1787,1791)3,

Punishments and Rewards (1811), Church-of-Englandism (printed 1817, published 1881).

1
An Introduction to the Principles of Morals and Legislation, Ed. J.H. Burns and H.L.A. Hart, London: The Athlone
Press, 1970.
2
Bentham, J., & Montague, F. C. (1891). A fragment on government. Oxford: Oxford University Press.
3
Bentham, Jeremy, 1748-1832. The Panopticon Writings. London ; New York :Verso, 1995.

|Page 6
 3. PRINCIPLE OF UTILITY

First systematic account of utilitarianism was developed by Jeremy Bentham, the moral theory
which goes on to explain the morally appropriate behavior will not harm others, but instead
increase happiness or “utility”. Earlier than classical utilitarian thinkers like Richard Cumberland
(1631-1718) and John Gray (1699-1745) were just the promoters and they failed to give a broader
rationale to the use and the distinctive observations; why an act is morally wrong? or what made a
certain act to constitute happiness?, they believed that promoting happiness was incumbent on us
since it was approved by god, if the same was delivered in 21st century they might not be able to
get a nickel out of it, so the earlier classical utilitarian approach tends towards an non-scientific
approach, based on god made.4

Bentham was more concerned with legal and social reforms, so he was not just referring to just the
usefulness of things or actions, but to the extent to which these things or actions promote the
general happiness, so the Bentham’s moral philosophy reflects what he call at different times “the
greatest happiness principle” or “the principle of utility”, and he writes, “By the principle of utility
is meant that principle which approves or disapproves of every action whatsoever, according to
the tendency which it appears to have to augment or diminish the happiness of the party whose
interest is in question: or, what is the same thing in other words, to promote or to oppose that
happiness.” And it emphasize that this applies to every action whatsoever it may be. The general
derivation from it that maximize the happiness to the greatest, and minimize the suffering.

According to him the business of the government was to promote happiness among the masses, by
furthering the enjoyment of pleasure and providing security against the pain. For him it was the
greatest happiness of the greatest number of the people, which constituted the principle of utility.
A happy society constitutes a happy polity. Public good is the object of the legislator.

To know the true good of the community is science of legislation and finding the means to realize
that good constitutes the art of legislation. According to his theory, mankind is always under the
governance of two sovereign masters, pain and pleasure. They point out what we ought to do, as
well as to determine what we shall do. They govern us in all our actions and thoughts. In words a

4
Driver, Julia, "The History of Utilitarianism", The Stanford Encyclopedia of Philosophy (Winter 2014 Edition),
Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2014/entries/utilitarianism-history/>.

|Page 7
man may pretend to reject their empire: but in reality he will remain subject to it all the while. The
principle of utility recognizes this subjection, and assumes it for the foundation of that system, the
object of which is to nurture the fabric of felicity by the hands of reason and of law. 5

The Benthamite legislator, seeking to ensure happiness for the community must strive to attain
four goals of subsistence, abundance, equality, and security citizens. He referred all these goals as
the functions of law. The goal of security was paramount and principal one. Next to security, he
gave emphasis to the goal of equality.

Bentham never questioned the desirability of economic individualism and private property. The
law, according to him, can do nothing to provide directly for the subsistence of the citizens. It can
impose penalty or give rewards, which indirectly act as the force behind the subsistence of the
individual. He did not force for the limitations on state interventions and social reforms.

What is utility?

By utility is meant that property in any object, whereby it tends to produce benefit, advantage,
pleasure, good, or happiness, (all this in the present case comes to the same thing) or (what comes
again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the
party whose interest is considered, whether that party is the community in general or a particular
individual. The community is a fictitious body, composed of the individual persons who are
considered as constituting as it were its members. The interest of the community then is the sum
of the interests of the several members who compose it.

Bentham’s Utility seems to be similar to happiness but the two are different in their meaning,
happiness is understood as a balance of pleasure and pain, whereby utility is used in somewhat
broader sense to develop an analogy in general context, utility can be said to be, what grammar is
to the English where English is metaphorically compared to happiness, whereby happiness is
important but its relation with utility cannot be ignored.6

Bentham himself, at least in some of his reminiscent and revisionary statements, seems to suggest
that he had made a tactical mistake in the 1780s. When the Introduction to the Principles of Morals

5
Baxi, Upendra, Bentham’s Theory of Legislation, 7th ed. (reprint), 2006, Lexis Nexis, New Delhi.
6
J.H. Burns, Happiness and Utility: Jeremy Bentham’s Equation, 17, Utilitas, University college of London, at 48,
March 2005, available at < https://www.utilitarianism.com/jeremy-bentham/greatest-happiness.pdf>.

|Page 8
and Legislation reached a second edition in 1823, he appended a footnote to the first occurrence
of the term ‘principle of utility’. There he argues that the alternative terms ‘the greatest happiness
or greatest felicity’ are preferable because ‘[t]he word utility does not so clearly point to the ideas
of pleasure and pain as the words happiness and felicity do’. And he adds the comment: 7

This want of a sufficiently manifest connexion between the ideas of happiness and pleasure on the
one hand, and the idea of utility on the other, I have every now and then found operating, and with
but too much efficiency, as a bar to the acceptance, that might otherwise have been given, to this
principle.8

For Bentham and his staunch supporters, the principle of utility play a major role in putting reforms
in social as well legal aspects of society, though some social reforms leads to Benthamite idea of
utilitarianism but they somewhat did not agree completely with the theories and works of Jeremy
Bentham and the same will be discussed in critical analysis chapter of this research.

7
Id at 49.
8
A Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns and H. L. A. Hart, in The Collected
Works of Jeremy Bentham [hereafter CW] (London, 1977), at 11 n.

|Page 9
 4. DOCTRINE OF PLEASURES & PAINS AND THEIR TYPES

Bentham referred Pleasure and pain regarding them one general word, interesting perceptions.

Interesting perceptions are either simple or complex, the simple ones cannot be resolve more and
are simply bestowed and gives pleasure and pain accordingly. For example pleasure of wealth,
skill power, relief, etc.

At the same time there are some simple pains too- enmity, awkwardness, etc.

Complex ones are those which are resolvable into composition of simple ones, like a composed
interesting perception may accordingly be composed wither, of pleasure alone, of pain alone, or
pleasure or pleasures and pain or pains together.

There are four distinguishing sources from which pleasure and pain are in use to flow, or in other
words they came to originate,: they may be termed the physical, the political, the moral, and the
religious: and inasmuch as the pleasures and pains belonging to each of them are capable of giving
a binding force to any law or rule of conduct, they may all of them are capable of giving a binding
force to any law or rule of conduct in the language of H.L.A. Hart, they may all of them be termed
sanctions in Austinian sense.9

Now we know what is a pleasure and what is pain, in Bentham’s sense but the real question is how
to measure such abstract things, which are psychological in nature. So to measure such things,
some circumstances to be taken into consideration which are:

• Intensity
• Duration
• Certainty or uncertainty
• Propinquity or remoteness

The above circumstances which are to be considered in estimating a pleasure or a pain considered
each of them by itself. But when the value of any pleasure or pain is considered for the purpose of

9
Jeremy Bentham. Introduction to the Principles of Morals and Legislation at 24 (1879), Available on HeinOnline,
accessed on oct 19, 2020 (08:40 PM IST).

| P a g e 10
estimating the tendency of any act bu which it is produced, there are two other circumstances to
be taken in the account; these are,

Its fecundity, or the chance it has of being followed by sensations of the same kind, i.e. if it be a
pleasure: pains, if it be a pain.

Its purity, or the chance it has of not being followed by sensations of the opposite kind, i.e. same.

These last two, are being given in a strict sense, so these are taken as properties only of the act, or
other relevant event, by which such other pleasure or pain has been produced; and accordingly to
be taken into account of the tendency of such act or such event.10 So the value of pleasure or pain
is considered for the number of persons the above six conditions are determining factor whether
the pain or pleasure will be greater or less.

However from the above six conditions there also lies one other important circumstance i.e. its
extent, the number of persons to whom it extends; or in other words as discussed in the introductory
portion of this paper persons who are affected by it.

From the above circumstances a process have been drawn by Bentham which allows the
accumulation of the value of pleasure or pain to what extent, and its guidance towards which it can
be categorized whether the same affects number of people, its growth, and such. And this same
process is therefore more broadly taken and given to shape in many fields like, for pleasure in
economics Marginal utility(consumer consumes till he reaches its satisfaction), good, convenience
or advantage, benefit, happiness and so forth; to pain it can be called an evil, mischief, or
inconvenience, or disadvantage, and so forth. Thereafter in keeping above drawn analogy that what
its use a person or any community or any particular field can derive from it it solely depend upon
the intensity of the pleasure or the pain.

Much had been discussed about the pleasure and pain, now we come to particular kinds of pain
and pleasure: stated above they can be classified into two categories simple and complex.

10
Id at 29-30.

| P a g e 11
Several simple pleasures:

• The pleasures of sense.

• The pleasures of wealth.
• The pleasures of skill.
• The pleasures of amity.
• The pleasures of a good name.
• The pleasures of power.
• The pleasures of piety.
• The pleasures of benevolence.
• The pleasures of malevolence.
• The pleasures of memory.
• The pleasures of imagination.
• The pleasures of expectation.
• The pleasures dependent on association.
• The pleasures of relief.

Several simple pains:

• The pains of privation.

• The pains of the senses.
• The pains of awkwardness.
• The pains of enmity.
• The pains of an ill name.
• The pains of piety.
• The pains of benevolence.
• The pains of malevolence.
• The pains of the memory.
• The pains of the imagination.
• The pains of expectation.
• The pains dependent on association.

| P a g e 12
 5. CRITICAL ANALYSIS

Bentham theory of utility works on a assumption that what is happiness of one individual will be
felicity, the greatest happiness for the community, whereas the same is not true in the contemporary
divergent societies, while one thing can be pleasure for a person, it might have a chance of
incurring a pain to another, so it is contradicting, being removing the assumption the theory can
be applicable to some extent, but not in all spheres of human conduct.

As critics were not hard to find, so is the case with Jeremy Bentham, his different theories in
relation to law reforms, utility concepts were criticized by different people like Thomas Carlyle
summed up the general perception of the crassness of “Benthamee utility” as the “pig-philosophy”,
nothing more than “virtue by Profit and Loss”11 (1840, 65). Other critics, like the Whig reformers
James Mackintosh and T.B. Macaulay, ready to follow Bentham’s lead in law reform, were also
highly critical of the diminished view of human nature that underpinned his philosophy and
attacked the radical proposals for political reform that emanated from the utilitarian camp (Lively
and Rees 1978).

As the 19th century wore on assailants came forth from all points across the philosophical
spectrum. Marx considered Bentham an “arch-philistine” and utilitarianism a superficial and
ephemeral bourgeois ideology (Capital I, Ch. XXIV, sect. 5). Sundry religionists, including those
of a philosophical bent like the classicist J.B. Mayor, intuitionists like William Whewell, and
idealists like Green, F.H. Bradley, Bernard Bosanquet and D.G. Ritchie combined to attack its
atomism, crude materialism, narrowly construed theory of motivation, and lack of appreciation of
the spiritual dimension of the human condition. The legal scholar Henry Maine could admire the
bravado and ambition of Bentham’s science of jurisprudence, but also deplored his failure to
appreciate the historical and evolutionary nature of law; he further objected to Bentham’s faith that
the ignorant masses could truly know what is in their best interest.12

11
Carlyle, T., 1840, On Heroes, Hero-Worship, and the Heroic in History, ed. M.K. Goldberg, J.J. Brattin, and M.
Engel, Berkeley, CA: University of California Press, 1993.
12
Crimmins, James E., "Jeremy Bentham", The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward
N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/sum2020/entries/bentham/>.

| P a g e 13
 6. CONCLUSION

Bentham contributed to his great extent and tried his life’s work in creation of a code based on the
utility theory propounded. He at the same time proposed many legal as well as social reforms, and
all his works could lead to a moral explanation on which they should be based. The theory of
utilitarianism shows that which policy, law, reason should be right act in the sense that which
would cause “the felicity” (the greatest happiness) it often referred to as the principle of utility.

Utilitarianism has profoundly impacted the modern society and its laws. Utilitarianism was radical
in the sense that it is a theory that is aimed at defining one simple basis that can be applied when
making any ethical decision. Criticism has not diminished its importance. It is important to
understand utilitarianism as it forms the basic tenants of legal theory and function of laws. It assists
in developing policies by examining their consequences and ensuring it touches the greatest
number of people. The theory informs debates on social issues and is the foundation for the modern
animal rights campaign.

A systematic understanding of contextual influences on experienced utility is developing alongside

a better understanding of the process by which experienced utility is evaluated. Considerable
evidence now suggests that the utility of an experience is evaluated quite differently depending on
whether its evaluation is made before, during, or after the experience. Moreover, this evidence
suggests that decision utility is not only an indirect measure of experienced utility. It is often
systematically wrong, and a distinction between decision utility and experienced utility is required.
Much has been learned from readopting a psychological approach to the study of utility, and there
is much more to look forward to learning. 13

13
Carey K. Morewedge, Utility: Anticipated, Experienced, and Remembered, Decision Making, 2nd Edition. Malden,
MA: Blackwell Press.

| P a g e 14
 7. BIBLIOGRAPHY

Websites

• http://socserv.mcmaster.ca/econ/ugcm/3ll3/bentham/morals.pdf
• https://iep.utm.edu/bentham/
• https://www.utilitarianism.com/jeremy-bentham/greatest-happiness.pdf
• https://plato.stanford.edu/entries/bentham/#CriCom

Articles & Journals

• O'Malley, Pat, Jeremy Bentham (September, 25 2009). FIFTY KEY CRIMINOLOGICAL

THINKERS, S. Maruna, J. Mooney & K. Hayward, eds., Routledge, Forthcoming, Sydney
Law School Research Paper No. 09/100, Available at
SSRN: https://ssrn.com/abstract=1478304
• Rivera, Aida, Jeremy Bentham’s Utilitarianism: Foundation of the Theory of Leonwalras?
(December 30, 2011). Cuadernos de Economia, Vol. 30, No. 55, pp. 55-76, July-December
2011 , Available at SSRN: https://ssrn.com/abstract=2117473

Books

• Carey K. Morewedge, Utility: Anticipated, Experienced, and Remembered, Decision

Making, 2nd Edition. Malden, MA: Blackwell Press.

• Jeremy Bentham. Introduction to the Principles of Morals and Legislation at 24 (1879),

Available on HeinOnline.

| P a g e 15