NAME DIVYA SHARMA

ROLL NO. 1779

SEMESTER IV

SUBJECT JURISPRUDENCE-II

PAGES 12

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ANSWER-1

Bentham’s utilitarianism- Bentham postulates “the greatest happiness principle”, which is

quite a straight forward idea. he asserts 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,
as well as to determine what we shall do. On the one hand the standard of right and wrong, on
the other the chain of cause and effects, are fastened to their throne. If you eat an ice cream,
the reason behind it is enhancing your pleasure. When we prefer a particular favour for ice
cream, it all boils down to what gives you more pleasure. Your actions are based on pain and
pleasure. According to him this principle of utility recognizes that we are subjects of pain and
pleasure- it requires people to act in such a way that they enhance their pleasure and avoid pain.
The principle of utility should be a governing principle not only for individuals but even for
government, the state. Government should make an assessment of how their actions would
affect society- if increase in pleasure is more than increase in pain then going ahead with that
action is in conformity with principle of utility- this is pleasure maximisation. The justness of
action has to be measured on this touchstone.

Bentham’s utilitarian principle includes two aspects. One is personal pleasure or happiness.
From the perspective of Bentham, utilitarianism refers to any kind of behaviour for promotion
of happiness, in other words, any tendency toward happiness as utilitarianism and the tendency
to deviate as scourge. In Bentham here, happiness is the personal pleasure measured by the
calculation of personal pleasure and pain. The second is the greatest happiness of the greatest
number, that is, social interests, and personal happiness is also personal interest. He said,
“social interests are one of the most common terms that may appear in ethical vocabulary.”
Bentham, then regarded the social interest as a simple sum of personal interests, thinking that
everyone is striving to maximize their happiness, naturally, it also enhances the interests of
society. He completely ignored the qualitative difference between the two.

Mill’s Utilitarianism- In his work on Utilitarianism, the claim that “happiness is the sole end
of human action, and the promotion of it the test by which to judge all human conduct” stands
at the centre of Mill’s practical philosophy, determining how individuals should act,
individually and collectively. Mill claims that the happiness which forms the utilitarian
standard of what is right in conduct is not the Agent’s own happiness but that of all concerned.
By showing that happiness is desirable, that nothing other than happiness is desirable, and that

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every person’s happiness is equally desirable, Mill holds that the principles of utility is proved.
For Mill acknowledges that in a strict sense, ultimate ends are amenable to proof. Mill presents
considerations capable of determining the intellect. As such, the principle is shown to have
rational grounds. Mill introduced into utilitarianism that pleasure differs in quality and not
simply in terms of quantity. For him some pleasures are superior to others and are desirable
than others: If I am asked, what I mean by difference of quality in pleasures, or what makes
one pleasure more valuable than other, merely as a pleasure, except its being greater in amount,
there is but one possible answer. Of two pleasures, if there be one to which all or almost all
who have experience of both give a decided preference that is the more desirable pleasure. Mill
claims that utilitarianism identifies that pleasure differs in quality as well as quantity; in the
judgement of those who have experience of different pleasures, some are preferable to others.
He then moves from preferable to higher, thus surreptitiously introducing a moral classification
among pleasures.

Difference between Bentham’s utilitarianism and Mill’s utilitarianism

1) Characteristic- On one hand, Bentham’s idea is Empirical i.e. it measures goodness a

posteriori. Also, his idea is based on pleasure and thus is hedonistic. Along with that,
his idea is also act utilitarianism which means that as per him, you are required to make
a judgement on the consequences of your act on the maximization of happiness. If
everyone acts as a utilitarian, utilitarianism won’t work. Happiness maximization will
not take place.
On the other hand, Mill’s is against the intuitionists’ as far as empirical characteristic
is concerned. Also, his idea is not pleasure based, but happiness based making it
eudemonistic. Also, his idea is more of a rule utilitarianism where in rule should be in
conformity with the utilitarian principle. Your act should be in conformity with the rule.
You are not required to make a judgement on the consequences of your act on the
maximization of happiness. Under this, you are no longer an autonomous agent.

2) Intrinsic Good- In Bentham’s utilitarianism, there are two sovereign masters – pain
and pleasure and one intrinsic good i.e. happiness. But as far as Mill is concerned, as
per him, happiness was more than just pleasure, but about having goals and virtues as
well as pleasure.
3) Kind of pleasure- Bentham’s focus was on quantitative pleasure. He believed that
pleasure could be calculated by the Hedonic calculus. On the other hand, Mill

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 distinguishes between higher pleasures (music, art, poetry) and lower pleasures (food,
drink, sex). Higher pleasures are more valuable.
4) Goodness- As per Bentham, what makes an action good is the balance of pleasure over
pain for the maximum number of people. On the contrary, as per mill, what makes an
action good is the balance of happiness over unhappiness which it produces.
5) Justice- Bentham ignores the issue of justice. Bentham doesn’t address the issue of the
rights of the minority which may be infringed by maximising pleasure of the majority,
example lynching. While, Mill addresses justice. Mill was concerned about rights and
justice and argued that happiness could only be maximised by having certain rights
guaranteed and laws or rules which promoted general happiness.
6) Motivation- Bentham focussed more on self-interest. Bentham saw utility in narrow,
individualistic terms and would agree with ideology like there is no thing as society,
just individuals. On the contrary, mill’s idea had sympathy. Mill argued that we have a
general sympathy for other human beings which gave us the motivation to seek the
general good, not just our own.
7) Time element- While on one hand, Bentham’s idea of pleasure is immediate, Mill’s
idea is based on long-term happiness. Bentham’s utilitarianism talks about what makes
you happy “now”, but Mill’s utilitarianism discusses long-term happiness and
unhappiness of society.

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ANSWER – 3

Background- To understand Kant, referring to Bentham is important. What is Kant’s view on

Bentham perspective? Kant believes that Bentham’s approach contributes nothing whatever
toward establishing morality, since making a man happy is quite different from making him
good and making him prudent or astute. Kant says that seeking own advantage is quite different
from making a person virtuous. Basing morality on interests and preferences destroys its
dignity. It doesn’t teach us how to distinguish right from wrong, but only to become better at
calculation. So, what Kant means is that, if we do what we are inclined to do, then it does not
establish morality. Morality is beyond something that Bentham is suggesting. We can’t call an
action morally good merely because it was triggered by a desire to be happy. For e.g. If you
like Vanilla flavoured ice cream and you eat it, by this act, you are just enhancing your

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happiness because you like what you ate. But if we analyse this action cannot be morally
worthy as per Kant.

Kant’s perspective- Morality as an independent existence, independence from utilitarianism

principle. Kant believes when you are choosing something your choices are not really free
choices. You are making these choices because they enhance your happiness and if these
choices are being made for happiness then it cannot be said that these choices have any moral
worth. This does not mean they are bad or good, they just do not have moral worth, the
dimension of morality does not even come up. This means that when people like us are making
these choices, we are doing so because we are designed in this way, we like something and
that’s why we chose something. But if we look closer, we will realise that we haven’t chosen
our likes and dislikes in life, they are just there, they were naturally inculcated in us. From
Kant’s perspective, we are living in a world of senses which is the sensible realm, and in that
world, what is happening is we have certain inclinations, we are inclined to like certain things,
and on the basis of these when we are making choices, those choices are not free choices, it is
not autonomy but heteronomy. We are actually shackled by these likes and dislikes already
present. we are not autonomously deciding what we want. This brings us to the concept of
Hypothetical imperative. If you decide a principle on which you want to live your life, then
that principle is not a free choice, it is the Hypothetical imperative. But Kant suggests here is
that its fine if you want to exercise happiness fine, but do not claim any moral worth here.
Morality is not merely exercising your inclination in a heteronomy.

Opposite of sensible realm, is intelligible realm. It is that world where you are not governed by
your senses. There is no natural inclination existing in you and this idea is quite similar to the
idea of original position given by Rawls, as both are like a clean slate. Ask yourself, why any
two people have difference of opinion or difference in tastes or likings? The answer is because
we are in the sensible realm, so we have our senses that are determining our inclinations. This
intelligible realm is that area in which we do exist, but we do not exist in our body, so if you
shed your body, your senses, you reach the Intelligible Realm. Your interpersonal differences
come to an end in this realm because the differences come from senses and they are not present
here. When we all will be same in Intelligible Realm, there will no differences, no matter what.
And according to Kant, in that intelligible realm since all these things are not there, we will be
free of inclinations. So, we will not try to enhance our happiness in this realm as we won’t even
have pre-determined likes and dislikes. And therefore, our choices in Intelligible Realm will
be autonomous as they will not be governed by our senses.

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Duty in intelligible realm- The choices made in Intelligible Realm are real free choices. And
we are duty bound to abide by the choices made in IR. So, the idea of duty emerges, from the
idea of freedom, and the idea of freedom is possible only if we understand that we are unfree
and we have the potential to be free if we transcend to IR. When we do our duty, then that
action that is motivated by duty and not selfish desires like happiness and thus has moral worth.
The idea of moral worth in our action is linked with idea of freedom and idea of duty. Kant
says this brings the element of categorial imperatives, that is the imperatives that people are
free to choose and are duty bound to follow once chosen.

Categorical imperatives- Kant says in that the categorial imperatives are those imperatives that
people are free to choose and are duty bound to follow once chosen. So, as per Kant, moral
worth comes from abiding by categorical imperatives. There are two categorical
imperatives: -

(1) Universalize your maxim- (act only on that maxim whereby you can at the time
will that it should become a universal law) (ask yourself are you putting your own
interests ahead of everyone else’s?)- he means when you do something ask yourself
will I be okay with others doing what I am doing? E.g. Say you are cheating, so ask
yourself do you want to live in the world where everyone is cheating, or if you are
stealing would you be ok living with others stealing? Look at this idea of cheating.
When you cheat you are putting your interest ahead of others and you are trying to gain
more not from formal rules but in whimsical and crooked manner, so you are putting
your own interest above the interest of others. So even if you say I am okay with others
doing it, at least you are accepting that you are putting your interest above others, which
is inherently wrong. So as per Kant, this very act of putting interest over others’ shows
that you are not universalizing the maxim, which fails the fulfilment of first categorical
imperative. So, it is only when you universalize the maxim only then it has moral worth.
People would not want to live in a world where everyone puts their interest above
others’.
However, it is important to notes that this imperative should not be read alone. It should
be read with other imperative.

(2) Treat persons as ends (act in such a way that you always treat humanity, whether
in your own person or in the person of any other, never simply as a means, but
always at the same time as an end)

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 Humans are not step stones that can be used to reach at your desires and your goals.
This is inhuman and immoral. If we look at examples from present times, we can see
that in so many places, your data is collected, and it is sold, like when you buy some
product you fill in your details and those details are sold to other companies or entities.
This shows how we and our information is actually a path used to reach to business
profits of many organisations. This shows humans are being treated as means to achieve
some end. And as per Kant this is wrong. People should be treated as end not means.
In fact, sometimes we personally don’t treat ourself as end.
We live in sensible realm and use our senses to achieve happiness, so in this way we
are treating ourself as means. Humanity is not being treated as an end here. Happiness
can be aftermath of something you want, but if you are doing something just for
happiness then that doesn’t have any moral worth. But if you do something for
humanity and that ends up giving you happiness, then that is fine. Let us understand
this through an example, say you help others, like a beggar, because that other person
is a human being and by helping him you are paying tribute to humanity then that has
moral worth, even if you feel happy doing this, because happiness wasn’t your primary
objective, here. This is treating humans as end not means. But if you help others for
your happiness that has no moral worth.
This categorical imperative is also the foundation of human rights, and it argues that
some rights are there for people just because they are humans. If govt. says that we
want to torture a suspect because we strongly feel that we can save others’ life by this,
from Kant’s perspective you cannot do this, because you can’t use him as a means to
achieve some end. You need to respect the humanity in that one person too. Even if
ultimate objective of torture is positive like saving hundreds of lives, you cannot use
that one human as a means to achieve this end. In this way, Kant’s work has influenced
the western liberal idea where individual liberty must be respected.
Let us consider a Popular example for better comprehension- There is a dishonest
shopkeeper. Imagine a small child goes to this man’s shop. Here, the shopkeeper has a
chance to deceive or cheat the child. For instance, say child is buying something and
shopkeeper has chance to sell the product at price higher than usual price considering
the fact that child is unaware about the price. Now suppose, despite this opportunity,
the shopkeeper does not do that. The question arises “why”? Because he does a
calculation in his mind that say I take the extra money from child now, this act of
cheating might come in the knowledge of other people like child’s parents or
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 neighbours etc and so if that happens it will adversely affect my reputation which will
affect my business and therefore to not have these losses I should not cheat or deceive
now. So, he instead just takes the usual money. Question is, is there any moral worth in
shopkeeper’s action?
Kant’s answer is no. He is using the child to have good reputation in future. He is
working on utilitarian principle and is aiming to maximise his profits. So as per Kant,
morality in action will come, when without doing these calculations and thinking about
loss and profit, the shopkeeper would consider the child as human being and thus the
child must be respected. So, if he doesn’t cheat because the child must be respected as
a human being, that is where the moral worth lies, not in such calculation of profit and
loss for self.

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ANSWER 4

The major idea that distinguishes the two ideologies of communitarians and libertarians is that
of detachment. The former has always raised objections to latter’s idea and have asserted that
self can never be detached from the society, or community at large. While, libertarians have
always argued that what an individual chose to do to himself, in his private space, should not
be someone else’s to decide. Rather, it should be left to personal discretion of the being.
However, communitarian idea is a slightly different one. They argue that this water-tight
demarcation between self and community, that libertarians are trying to establish is not a good
idea.

Let us understand this through Michael Sandal’s view. Though Michael Sandal’s view is quite
different from hardcore libertarians, but explains the objections quite clearly. Let us take a
background: when scholars are advocating for liberalisation and they argue that any legislation
that prohibits homosexuality should struck down. So, liberals argue that when homosexuality
or anything for that matter is being prohibited by state, then state is basically making a moral
judgement, which should not be there and state must act as a neutral party. Another argument
is state should see individuals as autonomous agents. Human being is capable of understanding
what is good for him. The reasoning is what we do in our private space should have nothing to
do with society. If state prohibits something, it encroaches in our private space. No one should
have space in this area. If two consenting adults choose to have a certain relationship within a

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private space, law, society, state have nothing to do with it. So, the libertarian arguments come
down to a private space where person’s autonomy is of superior value, which must be protected.
From the libertarian perspective there is no need to evaluate the moral worth of these choices
made in autonomy. Just protect the autonomy, because it is the only value worth protecting.
From Sandals Point of view, problem with this idea is, if this is the reasoning for protecting
same sex relationships, then those people who engage in same sex relationship will never get
respect in society. It will be a situation where people won’t like them, won’t respect, they will
just tolerate them. The respect that heterosexual couples get will never be given to them. If this
autonomy argument is put forth, then everything can be allowed, be it pornography or anything,
however, the type of acceptance that libertarians desire, which comes along with respect, will
not be fetched. So, this will not be acceptance and respect, but only toleration. Therefore,
Sandal has put forth a solution. He says that there is another way in which same sex
relationships can be argued for. The way of doing it is by showing that same sex relationships
have a function to perform in society. We can understand this from perspective of age-old
institution of heterosexual marriage. The society respects it, desires it because they think it has
a function to perform. So, if those in favour of same sex relationships are able to establish that
these relationships also have a function to perform, that is when the actual acceptance will
come into picture. When someone argues that a heterosexual marriage is an old institution and
legally recognised, the reasoning is, it has been accepted that it performs some function, which
gives it moral worth. It is this value we tend to protect. When we allow husband and wife to do
something in their private area, we actually pay tribute to this institution. If liberals want same
sex relationship to be accepted, they must argue in this way and explain function. Sandals is
basically inviting the liberals to show moral worth of same sex relationships. He is asking them
to show that same sex relationships have equal moral worth as heterosexual relationships. If
you just argue on autonomy, they may be legalised but they will just be tolerated. If you want
respect, you will have to show that same sex relationships perform equally important function
as heterosexual marriages. You should not argue for rights without establishing the moral worth
of the activity you are arguing for. If you just argue about autonomy, it does not create a
cohesive society. There will be no attachment in society, only entanglements. They will just
tolerate, not respect. Sandal’s conclusion is when we are claiming right, line of argument of
autonomy does not result in a desirable society.

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ANSWER- 5

Introduction- Dworkin’s idea of rights has a dichotomy of rights being understood in weak
sense which is in perspective of utilitarianism and in strong sense which the terms has anti-
utilitarian rights. Dworkin throws light on a very intriguing idea of impact of someone’s
decision on life of others, to say in a laymen language. In his idea of taking rights ‘seriously’,
he has distinguished between understanding rights in weak sense and in strong sense. In the
answer first we will discuss what exactly is the weak sense as per him, followed by how he
relates it with strong sense, or anti-utilitarian rights.

Understanding in weak sense- In his perspective, rights are understood in a weak sense, in
most of the modern democracies because rights are subjected to utilitarian restriction. Now the
question arises, what exactly are utilitarian restrictions? In order to comprehend this, let us take
an example of modern democracy like India. Our constitution gives us certain freedoms under
article 19(1), but also restricts them with article 19(2)-(6). These restrictions, if we look closer,
and read through the provision, are based on ideas like public morality, public health etc. so,
we can deduce that individual’s freedom is being restricted on the basis of what society feels
as right. From Dworkin’s perspective 19(1) protects something that is valuable to an individual
but that can be curtailed if it goes against what is good for the collective. Dworkin believes if
individual rights are subject to this kind of utilitarian restrictions, then state considers right in
weak sense. And he further explains this weak sense to have an unequal effect in way of
obstructing equal treatment to all. How?

Let us take the specific situation to understand this better. Dworkin has explained this using
the matter of gay rights. Dworkin says about this that if you do not allow people for some right
that is theirs on basis of utilitarian restriction, then state is doing something that is violation of
equality (equality not in general sense). Which means, say the government decides that they
will give everyone one vote on the matter “whether homosexuality should be legalised”? Now,
by giving this one vote to each that are providing equal method to put forth the view. But is
that enough? Dworkin says this is not proper equality and the reason is when a homosexual
would, in this poll, vote in favour of homosexuality, his vote will only reflect what he wants
for himself, i.e. he and his vote would not exhibit a force for heterosexuals to convert. And this
is what Dworkin calls as internal preference. However, if a heterosexual vote for not allowing
homosexuality, he not only tells how he wants to organise his life, but also shows what he
wants others to do, which is an external preference and internal preference combined. Now,

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though, apparently this process is democratic with one person having one vote, but in this case
certain people’s vote has dual impact, dual weightage which in turn affects the equality of those
who are only exhibiting internal preference. So, by doing so, the rights are being understood in
very weak sense. They are being rested on utilitarian restrictions of public consensus.

Solution in form of anti-utilitarian rights- Dworkin argues that equal treatment by giving
equal no. of votes is a utilitarian aspect, what we actually require for equality is, equal
application of those votes. This means, that is voting is resorted to, only the internal preference
of a person must be counted. Which means that equal treatment is not enough, people should
be treated as equals, rather, even before any rule emerges. If you follow equal treatment only,
you allow some to tell only internal preference and some to tell both internal and external. If
this happens, state is showing less concern and respect to homosexuals. This is understanding
rights in weak sense. According to him rights should be understood in strong sense, that is they
should not be subjected to utilitarian restrictions, So, when state is deliberating on those rights,
they should not take into consideration external preferences. So, he is trying to say, there is a
personal space within which there should be no encroachment. That is when people will be
treated with equal concern and respect. This is what he calls anti-utilitarian rights.

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ANSWER- 6

Background- Possession has not always from the beginning been the same. This theory has
evolved over time. Adverse possession, for one, is a later development in theory of possession.
In the theory, there are several stages that merged, got debated upon, or refuted in some cases,
leading to several changes. Adverse possession in one such concept that eventually came to
light and got discussed in legal realm.

What is an Adverse possession: Adverse possession is an uninterrupted and uncontested actual

possession of a property for statutorily period hostile to the rights and interests of the true owner
Imagine there is a person who is not an owner of a land but possess it adverse to the rights of
the owner, then after the statutory period he will become the owner.

Requirements for adverse possession: -

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 1. Possession should be actual- one who claims adverse possession will have to show that
there is actual possession. Actual possession here means some alteration has been done
to the state of the property. Say you have a house and adjacent to it there is a land
(owner not living there)- imagine you start parking your car there and you keep doing
it for years- this will not amount to possession because you are just parking your car
and removing etc there is no alteration- merely entering the property and coming out is
not enough- in fact putting a fence and locking it up is also not enough. You have to
show there is some alteration like construction on land. Adverse P is a serious thing and
thus has strict requirements.
2. Should be open- your adverse possession should be such that a reasonable man should
notice it- your possession shouldn’t be clandestine. Idea is that if the real owner is
vigilant, he should come to know. So, if you stealthily enter the land sleep and before
morning you sleep, so that is not open.
3. Possession should be hostile to the true owner- you need to exclude he true owner- there
should not be concurrent use because that isn’t adverse possession-
4. Absence of violence- also, there should be absence of violence i.e. real owner should
not have made any attempt to throw you out either physical or through court.
5. Absence of possession- And, there should also be absence of permission from true
owner i.e. your initial entry should be without the consent of the real owner.
6. Time element- There should be 12years of adverse possession, and 30 in case of govt.
property.
7. Continuity- there should not be intermittent Adverse possession

Merits/Justification for adverse possession- A land is supposed to be used. If someone is not

using it, then it is better that it is being used by someone rather than the true owner not using it
at all. Land is precious and should be used. If the owner is not taking care it is better someone
else does it. Sleeping litigant has no remedy. Ownership is easier to maintain when it is coupled
with possession. The rationale for adverse possession rests broadly on the considerations that
title to land should not long be in doubt, the society will benefit from someone making use of
land the owner leaves idle and that that persons who come to regard the occupant as owner may
be protected. The maxim that law and equity does not help those who sleep over their rights is
invoked in support of prescription of title by adverse possession. In other words, the original
title holder who neglected to enforce his rights over the land cannot be permitted to re-enter
the land after a long passage of time. A situation lasting for a long period creates certain

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expectations and it would be unjust to disappoint those who trust on them. Another justification
for the law of adverse possession is captured in the quote that possession is “nine points of the
law”.

Demerits- 1. It is like legalising theft;

2. Unjust enrichment;

3. Uncertainty due to subjectivity in the meaning of open, continuous, hostile, exclusive and
actual.

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