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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

POLITICAL OBLIGATION

A LEGAL ANALYSIS OF THE THEORY OF UTILITARIANISM

Submitted by: Submitted to:

Prarthana Gupta Prof. Raka Arya

2019BALLB26

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ACKNOWLEDGMENTS

I take this opportunity to express a deep sense of gratitude to The National Law Institute
University (NLIU) for providing me with this excellent opportunity to make this project. I
sincerely thank everybody who helped with the completion of this project.

On completion of this Project it is my present privilege to acknowledge my profound

gratitude and indebtedness towards my teachers for their valuable suggestions and
constructive criticism. Their precious guidance and unrelenting support kept me on the right
track throughout the project. I gratefully acknowledge my deepest sense of gratitude to:

Prof. (Dr.) Vijay Kumar, Director, National Law Institute University, Bhopal for providing
us with the infrastructure and the means to make this project;

Our Political Obligations professor, Prof. Dr. Raka Arya, who provided me this wonderful
opportunity and guided me throughout the project work;

I’m also thankful to the library and computer staffs of the University for helping me find and
select books from the University library.

Finally, I’m thankful to my family members and friends for the affection and encouragement
with which doing this project became a pleasure.

Prarthana Gupta

2019 BALLB 26

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TABLE OF CONTENTS

ACKNOWLEDGMENTS................................................................................................................2

HYPOTHESIS..............................................................................................................................4

STATEMENT OF PROBLEM........................................................................................................4

RESEARCH QUESTIONS.............................................................................................................4

METHODOLOGY.........................................................................................................................4

OBJECTIVE OF STUDY...............................................................................................................5

REVIEW OF LITERATURE..........................................................................................................5

INTRODUCTION..........................................................................................................................7

HISTORICAL PERSPECTIVE ON POSITIVISM..........................................................................10

HUTCHESON.........................................................................................................................11

GAY......................................................................................................................................11

HUME...................................................................................................................................12

THE UTILITARIAN APPROACH: IMPORTANT QUESTIONS AND THEIR ANSWERS.................12

ANALYSIS AND CONCLUSION..................................................................................................15

BIBLIOGRAPHY........................................................................................................................17

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HYPOTHESIS

The jurisprudence on utilitarianism developed primarily in Europe, stands the same for
application to the Indian society as well.

STATEMENT OF PROBLEM

The theory of utilitarianism is no longer a relevant theory and has become obsolete in the
contemporary society.

RESEARCH QUESTIONS

The present study has been undertaken with the following questions in mind:

1. How has the theory of utilitarianism has evolved over time?

2. What are the basics of the doctrine considering the assumptions on which the
postulates of the theory are based?

3. What are the relevant questions that arise upon the evaluation of the theory? And how
can we answer them?

4. How is the theory functioning in various fields apart from law such as business
strategy and economics?

METHODOLOGY

The method adopted for research on this particular topic has been doctrinal. Principal reliance
has been upon books and articles of eminent utilitarian thinkers and other extraneous
commentaries on the same.

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OBJECTIVE OF STUDY

The objective of undertaking this project is to make a comprehensive analysis of the

utilitarian theory and its relevance in contemporary times. It also seeks to evaluate the
contributions of a few lesser known thinkers of the theory and compare it with the
mainstream practice.

REVIEW OF LITERATURE

The following sources have been referred to while making the project:

1. Bentham, Jeremy. Theory of Legislation. General Books LLC, (2009).

Jeremy Bentham is one of the most renowned thinker and scholar on the utilitarian
theory. His text on the subject is considered the most insightful and authoritative. His
book, Theory of Legislation lays down the groundwork for what the legislature must
consider while making a law. Of particular importance is his insight on the principle
of pain and pleasure.

According to Bentham, the objective of a legislature must be to lay down such a law
that maximizes pleasure and minimizes pain for the greatest number. He says, “The
sole objective of the legislator is to increase pleasure and prevent pains; and for this
purpose, he ought to be well acquainted with their respective values. As pleasure and
pains are the only instruments he employs, he ought carefully to study their power.”

This is in fact the crux of the theory of utilitarianism that human action is centered
towards maximizing pleasure while reducing pain. The same is elaborately elucidated
upon by Bentham in his chapter on The Measure of Pleasures and Pains of this book.

This book has been instrumental for my basic understanding of the theory of pleasure
and pain which forms the crux of the theory of utilitarianism and therefore of this
project. It gives a comprehensive outlay of how pleasure and pain must be balanced

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against each other to determine the consequences of a particular action. That action
which leads to more pain than pleasure must be disregarded and done away with.

2. Gay, John. Preliminary Dissertation Concerning the Fundamental Principle of Virtue

or Morality, Cambridge University Press. (2002).
The dissertation paper of the philosopher John Gay has been relied upon is
establishing the existing relationship between utility and morality. According to Gay,
men acquire moral sense by learning to be pleased by those actions that promote
happiness and satisfaction and to be displeased by those that do the contrary. He
opined that humankind may learn what is virtuous by example of observation and
forming their own judgements as to what gives pleasure and what taketh it away.
Gay also explained why a person may be virtuous. Curiously enough, he made little of
man's obligation to obey the will of God. Rather he appealed to the universality of
man's inclination to seek pleasure and to avoid pain; and he equated a person's
happiness with his being pleased. There are two motives, then, for virtuous behavior.
First, when a person sees that his own happiness depends on the happiness of others,
he will seek to promote their happiness in the hope that they will in turn promote his.
Second, since esteem and merit are associated with virtue, man may behave virtuously
in order to enjoy the pleasure of being esteemed. Similarly, he will esteem those who
promote his happiness, in order to encourage them.
3. Mill, John Stuart. Crisp, Roger (ed.). Utilitarianism. Oxford University Press, (1998).
Jon Stuart Mill’s essay on utilitarianism provides support to the value of utilitarianism
as a moral philosophy. In his essay he defines utilitarianism as a theory based on the
principle that "actions are right in proportion as they tend to promote happiness,
wrong as they tend to produce the reverse of happiness."
Mill defines happiness as pleasure and the absence of pain. He argues that pleasure
can differ in quality and quantity, and that pleasures that are rooted in one's higher
faculties should be weighted more heavily than baser pleasures. Furthermore, Mill
argues that people's achievement of goals and ends, such as virtuous living, should be
counted as part of their happiness.
Mill's argument comprises five chapters. His first chapter serves as an introduction to
the essay. In his second chapter, Mill discusses the definition of utilitarianism, and
presents some misconceptions about the theory. The third chapter is a discussion
about the ultimate sanctions (or rewards) that utilitarianism can offer. The fourth

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chapter discusses methods of proving the validity of utilitarianism. In his fifth chapter,
Mill writes about the connection between justice and utility, and argues that happiness
is the foundation of justice.
The essay is of paramount importance in developing a detailed understanding of the
principles of utilitarianism and in particular its intricate relation with morality. Mill
talks about the use of utilitarian principle by society at large and the internalization of
the understanding of morality on the basis of it.

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INTRODUCTION

Utilitarianism is a set of normative ethical theories which focuses on maximizing the amount
of happiness derived from a set of actions. Although, the various thinkers may differ on
certain characteristics and nuances of the theory, the general idea behind it remains the same
of maximizing utility of an act or omission which is often described in terms of well-being of
a person or other associated concepts.

The founder of the concept, Jeremy Bentham describes utility as,

"that property in any object, whereby it tends to produce benefit, advantage, pleasure, good,
or happiness...[or] to prevent the happening of mischief, pain, , or unhappiness to the party
whose interest is considered." 1

Utilitarianism as an ethical and political theory is essentially the product of an English mind.
It finds its genesis in the theory of Hedonism of Epicurus. The theory believes that man is a
social animal and by that virtue is always motivated primarily by the motivation to avoid pain
and obtain as much happiness as possible. 2 Additionally, the happiness of each individual is
dependent upon his relations with other individuals which the State has the power to regulate
through legislations. Thus, the theory of utilitarianism is closely associated with practical
ethics and practical politics.

Utilitarianism is often considered a form of the theory of consequentialism itself. The theory
of consequentialism states that the standards of right or wrong are determined solely by the
consequences of any action. Whether the action leads to pain or pleasure determines whether
an action is right or wrong. It is however imperative to note at this point that happiness in this
case is of the largest number.3 Any action that leads to the pleasure of the largest number of
people and pain to the minimum possible people must necessarily be morally right by that
society’s standards.

1
Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. Of The Principle of Utility. 1-
6, (1780).
2
White, Stuart. Social Minimum. The Stanford Encyclopedia of Philosophy, edited by E. N. Zalta. Stanford
University. Retrieved 5 July 2020.
3
Id.

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In this regard utilitarian philosophers differ from those of intuitionism who hold that the
moral value of acts as good or bad depends upon its intrinsic value rather than its
consequences. The utilitarianism philosophers however, believe that utility is the measure of
right which implies that the property or tendency of any particular thing “to shield from some
evil or to secure some good”. The doctrine applies and is intended to apply on legislation as
well. Under this theory, the objective of the State and thus the legislature must be to secure
the happiness of the greatest number.

“The criteria of right and wrong and that of good and bad that the legislature must apply is
not in divine revelations but in the abstract principles of logic and reason”4

The philosophy in itself is highly pragmatic. It makes human activity, life and welfare the
primary and greatest concern. It also adopts a consistent program of legal, economic and
political reform. The utilitarian is therefore, “by temperament and by conviction a
pragmatist- practical and concrete valuing ideas mainly in so as far as they serve such
purposes as men desire and for which they strive”5

They insisted that all the political institutions and public policies must be judged by their
fruits and not by their ideality. That is to say focus must be on actual effects on the happiness
of the people while conforming to the theories of natural rights and justice.

In addition to its pragmatic characteristic, a pertinent fact is that those professing this theory
are individualists. According to them, the social order is balanced only by the innate and
intricate desire of the people to pursue and fulfill their own personal interests and desires.
Man’s constant and deep-rooted need to strive towards his own better version is the reason
why a stable social order is maintainable.

According to Bentham,

“Nature has placed mankind under the governance of two sovereign masters, pain and
pleasure. It is for them alone to point out what we ought to do.… By the principle of utility is
meant that principle which approves or disapproves of every action whatsoever according to
the tendency 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

4
Brandt, Richard B. A Theory of the Good and the Right. Oxford/New York: Clarendon Press (1979).
5
Harsanyi, John C. Morality and the theory of rational behaviour. Utilitarianism and Beyond, edited by A. Sen
and B. Williams. Pp. 39–62, (1982).

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happiness. I say of every action whatsoever, and therefore not only of every action of a
private individual, but of every measure of government.”6

Thus, the real significance of law or an institution must be judged in terms of the effects it is
able to produce on the individuals. The worthiness of a government must thus be measured
by the effects it has on the fortunes of actual men and women.7

In Chapter IV of Bentham’s An Introduction to the Principles of Morals and Legislation, he

introduced a method of calculating the value of pleasure and pain which has come to be
known as the Hedonic Calculus.8 According to him, the value of pleasure or pain, can be
measured by its intensity, duration, certainty and propinquity. It is also necessary to consider
whether the action has a chance of being followed by the same or different kind of reactions.
The number and extent of people affected by the action is also taken into consideration while
such a calculation is made.

In this theory, the society is regarded as nothing more than an aggregate of individuals who
are separately considered as equal beings in the eyes of the State. Though Stuart Mill
recognized the need of human beings to be a collective whole, he could not give up the idea
of society as a mere collection of individuals. 9 He could never arrive at the concept of ‘social
whole’ which is the only means to overcome the false antithesis between the State and the
individuals. The utilitarians accept the liberal belief that state is not a natural necessity arising
out of men’s needs and social nature as was held by Plato and Aristotle in ancient times and
by idealists in the modern age but is an instrument devised by men to satisfy their claims and
reflect their will.

6
Bentham, Jeremy. Theory of Legislation. General Books LLC, p. 58 (2009).
7
Mill, John Stuart. Crisp, Roger (ed.). Utilitarianism. Oxford University Press. p. 65, (1998).
8
Bentham, Jeremy. Theory of Legislation. General Books LLC. p. 58, (2009).
9
Mill, John Stuart. Crisp, Roger (ed.). Utilitarianism. Oxford University Press. p. 65, (1998).

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HISTORICAL PERSPECTIVE ON POSITIVISM

The fore-runner for the theory of utilitarianism were the theories set forth by philosophers in
the 18th century. The importance of happiness as the ultimate aim of human existence was
recognized long back. Aristippus and Epicurus put forth different forms of hedonism. The
concept was also explored in depth by Thomas Aquinas in his Summa Theologica.10

The medieval Indian philosopher Santideva was however one of the first ones to propagate
the theory of utilitarianism. He wrote that, “to stop all the present and future pain and
suffering of all sentient beings and to bring about all present and future pleasure and
happiness”11

The earliest concrete position on the ethical dogma of utilitarianism was considered to have
begun only with the philosopher Jeremy Bentham. However similar theories were presented
earlier by other thinkers.

HUTCHESON
The earliest thinker to use a utilitarian phrase was Francis Hutcheson. In his book- An Inquiry
into the Original of Our Ideas of Beauty and Virtue- he said that the virtue of a particular
action must be proportionate to the amount of pleasure it brings to the greatest number of
people to qualify as the most moral action. Similarly, moral evil is determined by the number
of people who are pained by the consequences of a particular action: The one that causes the
most misery is the worst. He even came up with a mathematical formula for computation of
morality of action which was a predecessor of the hedonic calculation.12

GAY
John Gay is often considered to be the first one to have developed a comprehensive and
systematic theory of utilitarian ethics.13 In Concerning the Fundamental Principle of Virtue or
Morality (1731), Gay argues that:14

10
Summa Theologica. Things in which man's happiness consists (Prima Secundae Partis, Q. 2).
11
Goodman, Charles. Śāntideva, Stanford Encyclopedia of Philosophy (2016).
12
Hutcheson, Francis. The Original of Our Ideas of Beauty and Virtue. In Schneewind, J. B. (ed.). Moral
Philosophy from Montaigne to Kant. Cambridge University Press. p. 515, (1725).
13
Ashcraft, Richard. John Locke: Critical Assessments Critical assessments of leading political philosophers,
Routledge, p. 691(1991).
14
Gay, John. Concerning the Fundamental Principle of Virtue or Morality. Schneewind, J. B. (ed.). Moral
Philosophy from Montaigne to Kant. Cambridge University Press. p. 408, (2002).

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“happiness, private happiness, is the proper or ultimate end of all our actions... each
particular action may be said to have its proper and peculiar end…(but)…they still tend or
ought to tend to something farther; as is evident from hence, viz. that a man may ask and
expect a reason why either of them are pursued: now to ask the reason of any action or
pursuit, is only to enquire into the end of it: but to expect a reason, i.e. an end, to be assigned
for an ultimate end, is absurd. To ask why I pursue happiness, will admit of no other answer
than an explanation of the terms.”

This pursuit of happiness is given a theological basis:15

“Now it is evident from the nature of God, viz. his being infinitely happy in himself from all
eternity, and from his goodness manifested in his works, that he could have no other design
in creating mankind than their happiness; and therefore he wills their happiness; therefore
the means of their happiness: therefore that my behavior, as far as it may be a means of the
happiness of mankind, should be such...thus the will of God is the immediate criterion of
Virtue, and the happiness of mankind the criterion of the wilt of God; and therefore the
happiness of mankind may be said to be the criterion of virtue, but once removed…(and)…I
am to do whatever lies in my power towards promoting the happiness of mankind.”

HUME
In an Enquiry Concerning the Principles of Morals, David Hume writes:16

“In all determinations of morality, this circumstance of public utility is ever principally in
view; and wherever disputes arise, either in philosophy or common life, concerning the
bounds of duty, the question cannot, by any means, be decided with greater certainty, than by
ascertaining, on any side, the true interests of mankind. If any false opinion, embraced from
appearances, has been found to prevail; as soon as farther experience and sounder
reasoning have given us juster notions of human affairs, we retract our first sentiment, and
adjust anew the boundaries of moral good and evil.”

15
Gay, John. Concerning the Fundamental Principle of Virtue or Morality. Schneewind, J. B. (ed.). Moral
Philosophy from Montaigne to Kant. Cambridge University Press. pp. 404–05, (2002).
16
Hume, David. An Enquiry Concerning the Principles of Morals. Schneewind, J. B. (ed.). Moral Philosophy
from Montaigne to Kant. Cambridge University Press. p. 552, (2002).

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THE UTILITARIAN APPROACH: IMPORTANT QUESTIONS AND THEIR ANSWERS

Utilitarianism as a concept is ambiguous and has several interrelated theories. Some of the
important questions that need to addressed for understanding the concept are:

1. What is utility?

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Utility may be defined from three perspectives. The first perspective is from the
Hedonistic school. Using the Hedonic calculus, the measurement of pain and pleasure
was based on maximization of pleasure principle. The key element of this definition is
that pain, is to the greatest extent possible, reduced.
Another theory defines utility as something which gives maximum amount of
happiness. The Eudemonistic utilitarianism focuses on the happiness principle rather
than pleasure principle. The advocates of this theory argued that not all pleasures may
be necessarily good. Constant suppression of pain for maximization of pleasure would
not necessarily provide happiness.17 An activity that provides more pain than pleasure
could give happiness to the person undertaking the activity.
The theory which has gained the most recognition in current times especially due to
its intricate connection with economic theory is the Preference Satisfaction theory.
Under this theory, the ultimate aim of pleasure or happiness is replaced with
preference. The problem with defining utility by the co-efficient of pleasure and
happiness is their subjectivity. Preference on the other hand has some amount of
objectivity in its approach. People may be asked to rank a particular object or action
according to their preference and an idea regarding the general state of affairs can be
gauged out. Economists in defining utility came up with the concepts of cardinal and
ordinal utility analysis which were preference-satisfaction based conceptions of
measurability of pleasure or happiness derived from an action.

2. What does it mean to maximize utility?

The idea of measurement of utility and its maximization may be looked at from
several perspectives. The Classical Utilitarianism says that utility may be calculated
as a sum of individual utilities. The utilitarian social welfare function put forth by
economists talks about simply adding up the utility values for individuals.18
On the contrary, another theory talks about averaging the individual utilities rather
than adding them up. Bernoulli-Nash John Nash (of A Beautiful Mind fame) is
associated with another alternative. This theory proposes that the individual utility
values must be multiplied together to give a more comprehensive sense of the values
as relative rather than absolute.

17
Sills, David L. Vol. I6, Utilitarianism. International Encyclopedia of the Social Sciences. The Macmillan
Company and The Free Press. p. 228, (1968).
18
Upendra Baxi. Bentham’s Theory of Legislation. Tripathi N.M. Private Ltd, Revised and Enlarged Ed.,
Bombay pp. x –xxxii, (1986).

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3. Does the rightness of an action depend on actual or expected utilities?

Due to the working of the phenomenon of uncertainty in every practical application of
a theory, the consequences of any action cannot be conclusively determined. The
theory of utilitarianism looks at the consequences of an action rather than their
intrinsic value. The disadvantage of this method is that the intrinsic “goodness” or
“badness” of a particular action cannot always be correctly determined by the
consequences it reproduces.19 Any given situation may at a point in time be “right”
but it may not necessarily produce desirable consequences. For instance: for an
underage drinker, the law prohibiting underage drinking would seem wrong since it
seeks to take away something that gives him great satisfaction (drinking alcohol).
A particular action, due to its uncertain nature, may lead to several different
consequences in the future. If probability of occurrence could be assigned to each
possible outcome, then the expected consequences of a given action may be
calculated by taking the product of the utility value for the state and the probability
that the state would come into being.20
For instance:
Take the following choice situation:

Action A has a 50% chance of producing a utility of 10 and a 50% chance of

producing a probability of 0. Since .5*10 + .5*0 = 5, the expected utility of action A
is 5.

Action B has a 90% chance of producing a utility of 0, and a 10% chance of

producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is
10.

And since 10 > 5, action A has the greater expected utility. Of course, it may turn out
that action B produces a utility of zero, but if what counts is expected utility, then this
ex post fact is irrelevant to the moral evaluation of action A.

19
Harsanyi, John C. Morality and the theory of rational behaviour. Utilitarianism and Beyond, edited by A. Sen
and B. Williams. Pp. 39–62, (1982).
20
Consequentialism. Stephen Darwall ed. (2002).

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ANALYSIS AND CONCLUSION

The theory of utilitarianism has its critics and defenders. An extremely controversial theory,
it is severely criticized by some as outdated and irrelevant whereas some claim that it
establishes superiority of legislation over “natural law” and thus still finds its functioning in
contemporary times.

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There are however certain criticisms raised against the theory and Bentham’s point of view in
general. Some of them are:

1. The application of the theory negates the importance of morality as an essential

element of formation of laws. By evaluating actions on the basis of majoritarianism,
utilitarianism may impede upon the rights of minority. What may be liked by the
majority may not always be right or moral. For instance, up until a few decades back
the majority of people living in America partook in the act of racial discrimination.
However, its widespread application is not a sufficient cause for considering the act as
morally right.
2. The theory also presents the problem of interpersonal utility comparisons. That is to
say that the absence of a clear method of qualitative comparison of utility gained by
one person and that gained by another. Classical utilitarianism talks about addition of
utility values to gauge the total amount of satisfaction (or utility) derived from a
certain object. However, the problem in this case is of quantifying the qualitative
aspect of satisfaction. The satisfaction gained by one person from object X cannot be
accurately compared to the satisfaction gained by another person from object Y.
3. Another pertinent objection raised against the theory is that living by utilitarian
standards all the time can make life extremely demanding. The theory purports that
man constantly focuses on maximizing utility. The choice that gives more utility is the
choice that human beings make and are supposed to make. This idea can sometime
have difficult repercussions. In order to maximize utility, a person may end up
neglecting his health and family. In such a way, the practicality of the theory becomes
implausible.
4. The consequences of pain and pleasure may be unforeseeable. It may give rise to such
situations that may provide for instant gratification with vices of pain later or vice
versa.

The utilitarians are also empiricists. Their empiricist bias is reflected in their attempt to
measure pleasure in concrete terms. This shows their eagerness to study human society in
scientific terms. I wish to suggest in this connection that human society cannot be adequately
understood in scientific and causal terms. It stands in need of a non-causal mode of

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understanding. The utilitarians have treated human person as means. Though Mill advances
the cause of liberty, he does it within the broad framework of utilitarianism.

BIBLIOGRAPHY

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Books and Articles

4. Baxi, Upendra, Bentham’s Theory of Legislation. Tripathi N.M. Private Ltd, Revised
and Enlarged Ed., Bombay pp. x –xxxii, (1986).
5. Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation. Of
The Principle of Utility. 1-6, (1780).
6. Harsanyi, John C. Morality and the theory of rational behavior. Utilitarianism and
Beyond, edited by A. Sen and B. Williams. Pp. 39–62, (1982).
7. Gay, John. Preliminary Dissertation Concerning the Fundamental Principle of
Virtue or Morality, An Essay on the Origin of Evil, William King, ed. and trans.
Edmund Law, 3rd edn. pp. xi–xxxiii. London, (1731),
8. Mill, John Stuart. Utilitarianism, Chapter 2. Retrieved 24 June 2012.
9. Bentham, Jeremy. Theory of Legislation. General Books LLC. p. 58, (2009).

Internet Resources

 Jstor.org
 Britannica Encyclopedia
 Stanford.edu

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