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Jeremy Bentham, Legal Positivism, Utilitariamism and the Panopticon

Jeremy Bentham, Legal Positivism, Utilitariamism and the Panopticon

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Published by Philip Reynor Jr.
Discuss and critically evaluate the contribution to jurisprudence of Jeremy Bentham. In the assignment it is necessary to deal with:


(1) Bentham’s contribution to legal positivism;

(2) Bentham’s contribution to utilitarianism;

(3) How Bentham’s idea of the model prison, the “Panopticon” influences the work of Foucault.
Discuss and critically evaluate the contribution to jurisprudence of Jeremy Bentham. In the assignment it is necessary to deal with:


(1) Bentham’s contribution to legal positivism;

(2) Bentham’s contribution to utilitarianism;

(3) How Bentham’s idea of the model prison, the “Panopticon” influences the work of Foucault.

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Published by: Philip Reynor Jr. on Nov 26, 2013
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Discuss and critically evaluate the contribution to jurisprudence of Jeremy Bentham. In the assignment it is necessary to deal with: (1)
 
Bentham’s contribution to legal positivism; (2) Bentham’s contribution to utilitarianism; (3) How Bentham’s idea of the model prison, the “Panopticon” influences the work of
Foucault.
 
 Jurisprudence Assignment 
 Student No.1000366
2
(a)
 
Bentham’s Contribution to Utilitarianism 
 
I
t is difficult to assess Jeremy Bentham‟s contribution to utilitarianism when
Bentham scholars cannot agree on the kind of utilitarian that Bentham was, that is, if they could agree that he was a utilitarian at all.
1
 What is certain, however, is that although Bentham was not the progenitor of the core ideas of utilitarianism he was no doubt the first to expound them systematically and, as such, he may be considered as the father, if not the founder, of the movement. Indeed, of the precursors, of whom there  were many
 – 
 Cumberland, Shaftesbury, Hutcheson, Gay, and Hume, to name a few
 – 
 it was the reading of David
Hume‟s
 A Treatise on Human Nature 
 that was to have the most profound effect on Bentham:  That the foundations of all virtue are laid in utility, is
there demonstrated …
 with the strongest
force of evidence …
For my own part, I well remember, no sooner had I read that part of the  work which touches on this subject, than I felt as if scales had fallen from my eyes. I then, for the first time, learnt to call the cause of the people the cause of Virtue.
2
 On the other hand, it had been French philosopher and
littérateur 
 Claude Adrien Helvétius in his work
De
l’esprit 
3
 who had, according to Bentham, been the first to cogently describe the nexus of interconnection between the notions of utility, happiness, pleasure and pain.
4
 For it was in reading Helvétius that he realised the significance of his discovery of the sole and universal standard of right and wrong in matters of both morals and legislation
 – 
 the principle of utility.
5
 As Bentham remarked: From [Helvétius] I learnt to look upon the tendency of any institution or pursuit to promote the happiness of society as the sole text and measure of its merit: and to regard the principle of utility as an oracle which if properly consulted would afford the only true solution that could be given to every question of right and wrong.
6
 In the famous opening lines to his work
 An Introduction to the Principles of Morals and Legislation 
 Bentham eloquently forwards his most familiar statement of the principle of utility. In it he recognises that
mankind is subject to “two sovereign masters
,
” pain and pleasure
, who determine not only what we do but also what we ought to do. Bentham continues:  The principle of utility recognises this 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 reason and of law. Systems
1
 
Lyons, „Was Bentham a Utilitarian?‟
Royal Institute of Philosophy Lectures,
 5 (1971) 196-
221. Hocutt, „Was Bentham a Utilitarian?‟
Canadian Journal of Political Science 
, 38:3 (2005) 697-717.
2
 
 A Comment on the Commentaries and A Fragment on Government 
, ed. J. H. Burns and H. L. A. Hart (London, 1977), at p.440 n. Schofield,
Utility and Democracy: The Political Thought of Jeremy Bentham 
 (Oxford, 2006) at p.3.
3
 Helvétius,
De l’esprit 
. First published in French in 1758, appeared in English translation:
De L’Esprit: or, Essays on the Mind, and its
several Faculties 
 (London, 1759).
4
 
Deontology 
, 290
 – 
1, 324
 – 
5;
Official Aptitude Maximized; Expense Minimized 
, ed. P. Schofield (Oxford, 1993), at pp.350
 – 
1.
5
 Schofield, p.4.
6
 Bentham to the Revd John Forster, Apr./May 1778, Correspondence, vol. ii, ed. T. L. S. Sprigge (London, 1968), at p.99. Schofield,
Utility and Democracy: The Political Thought of Jeremy Bentham 
 (Oxford, 2006) at p.4, fn.24.
 
 Jurisprudence Assignment 
 Student No.1000366
3  which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.
7
 Firstly, for Bentham, the two
sovereign masters
 
are equated with „good‟ and „evil‟
, the former being the object of desire and the latter being the object of repulsion. Secondly, as
happiness consists in “the enjoyment of pleasures and security from pains”
8
 it follows that pleasure is that which is morally good and pain evil. By utility is meant that property in any object, whereby it tends to produce benefit, advantage,
pleasure, good, or happiness … to prevent the happening of mischief, pain, evil, or
unhappiness to the party whose interest is considered.
9
  The principle of utility, therefore, as the criterion of moral action is a standard which takes as its measure the tendency of that action to increase or decrease happiness. Moreover, Bentham saw this principle as universal, as the
party 
 in question may be the
community in general or the individual, for it is “in vain to talk of the interest of the community, without understanding what is the interest of the individual”.
10
 
 Thus the “fundamental axiom” of utilitarianism
 arrived at by Bentham states:
It is the greatest happiness of the greatest number that is the measure of right and wrong 
”.
11
 
Indeed, Bentham‟
s aim was to develop a science of ethics by ontologically grounding its abstractions,
„good‟ and „evil‟
 for example, in physical fact for without such a grounding moral conceptions and principles are effectively meaningless nonsense. The principle of utility, according to Bentham, deals in sense rather than nonsense through its foundation in the physical experience of pleasure and pain and, as Bentham understood the experience of pleasure and pain as the common foundation both of psychology, in being determinative of our actions, and of morality, in being determinative of what we ought to do, he  was thus able to place ethics on a scientific footing
and it was at this soft spot in Bentham‟s theory that
his most stubborn criticisms were levelled.  These criticisms centred around the relationship obtaining between the con
cepts of „ought‟ and „is‟
 in
Bentham‟s theory 
. In his seminal article The
Principle of Utility 
 the philosopher A.J. Ayer accuses Bentham
‟s
 project, the grounding his ethical standard in facts about the physical world, as an attempt to
derive an „ought‟ from an „is‟ and thus as a classic example of the naturalistic fallacy.
 This leads Ayer to level two related criticisms against Bentham, the first, that Bentham does no more than describe a particular sort of action,
viz 
. those acts which maximise happiness are described as right, the second, that not all human action is goal-driven and not all goal-driven action is undertaken in order to promote
7
 Bentham,
 An Introduction to the Principles of Morals and Legislation 
. In
The Works of Jeremy Bentham 
,
 
 Volume 1: ( 
Principles of Morals and Legislation 
,
Fragment on Government 
,
Civil Code 
,
Penal Law 
 ) [1843]. ed. John Bowring (Edinburgh: William Tait, 1838-1843) at p.121
8
 Ibid at p.169.
9
 Ibid at p.121.
10
 Ibid at p.122.
11
 Bentham,
 A Fragment on Government 
. In
The Works of Jeremy Bentham 
,
 
 Volume 1: ( 
Principles of Morals and Legislation 
,
Fragment on Government 
,
Civil Code 
,
Penal Law 
 ) [1843]. ed. John Bowring (Edinburgh: William Tait, 1838-1843) at p.443.

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