Analytical School of Jurisprudence | Jeremy Bentham | Utilitarianism

Jeremy Bentham

1. Lawyer but never practised

2. Founder of positivism
3. Father of Analytical positivism
4. Utilitarianism, Law, Sovereign, Jurisprudence

Definition of Law as per Bentham

 Assemblage of signs, declarative of volitions, conceived or adopted by the sovereign of the

state
 Conduct to be observed in certain case by a certain person or class of persons who in the case
in question
 Law is the will of the sovereign that regulates the conduct of the people to which it applies
 Jurisprudence as Synonym of law which is embodied in case law, precedent or other legal
commentaries
 Jurisprudence is a theory
 Jurisprudence is of two kinds
o Expository – Law as it is
 Authoritative – Legislator represents what the state of law is
 Un-Authoritative – when any other person represents what state of law is
o Censorial – Law as it ought to be

Utilitarianism

5. Moral theory talking about what is right and wrong, based on which on how people and
institutions should behave and make decisions
6. It’s a philosophy that aims at betterment of society
7. Greatest happiness to the greatest number of people

Principle of Utility

1. Happiness is the motive of every individual

2. PAIN and PLEASURE – 2 sovereign masters
3. It approves or disapproves the actions either to increase or lessen the happiness of a person or
society
4. Right thing to do is what gives max utility which is max happiness
5. UTILITY means the property of something whereby it produces
a. Benefit, advantage, pleasure, good or happiness
b. To prevent the mischief, pain , evil or unhappiness
6. Its connected to HEDONISM , which means pursuit of happiness
a. Psychological Hedonism – every man seeks pleasure in every action
b. Ethical Hedonism – fundamental moral obligation is max pleasure or happiness
7. Utility is the only intrinsic good and actions are judged based on the propensity to produce
max pleasure or happiness for the greatest number
8. Moral duty of an individual is not only self-happiness but happiness of others too
9. One who doesn’t think of happiness of others can never receive happiness from others
10. Utilitarianism is described as the encyclopaedia of philosophy which states that actions right
or wrong is decided by the goodness or badness of their consequences
 11. Action is always judged by consequences but not by intention

Measuring PAIN and PLEASURE – HEDONIC Calculus

7 factors are

1. Intensity – how strong is the pleasure?

2. Duration – how long the pleasure will last?
3. Certainty – how likely or unlikely the pleasure will occur?
4. Propinquity – how close or soon the pleasure will occur?
5. Fecundity – whether it leads to additional pleasure?
6. Purity – whether there is any chance of being followed by sensations of opposite kind
7. Extent – the number of people to whom it extends

Sources of PLEASURE and PAIN

Four sources which he called as sanctions as each source will give the ability to bind to a law or rule
of conduct

1. Physical Sanction – P&P that occurs naturally and not induced by human being or superior
power
2. Political Sanction – P&P derived from a certain person of power or state
3. Moral/Popular Sanction – P&P comes from a community
4. Religious Sanction – P&P that comes from hand of superior invisible being

Criticism

 Freidman says this theory failed to create balance between individual and community
interests
 P&P cannot be the test for adequacy of law

Every Law is considered in 8 different respects

1. Source – Law is the will of sovereign

2. Subject – Person or thing
3. Object – the act and circumstances to which it applies
4. Extent – the range it applies to
5. Aspect – the various ways the will of the sovereign is expressed to that object
6. Force – the punishment or sanctions
7. Remedial State Appendages – any other law to be created to supplement principal law
8. Expression – the manner in which the law of sovereign is applied and made known to

Sovereign

A person or a group to whom the whole class pays obedience to

1. Sovereign – single or group of person

2. Power – Limited or divisible