Unit 5- PRINCIPLES OF LEGISLATION

Jeremy Bentham was an English philosopher and political radical. He is primarily

known today for his moral philosophy, especially his principle of utilitarianism, which
evaluates actions based upon their consequences. The relevant consequences, in particular,
are the overall happiness created for everyone affected by the action. Influenced by many
enlightenment thinkers, especially empiricists such as John Locke and David Hume, Bentham
developed an ethical theory grounded in a largely empiricist account of human nature. He
famously held a hedonistic account of both motivation and value according to which what is
fundamentally valuable and what ultimately motivates us is pleasure and pain. Happiness,
according to Bentham, is thus a matter of experiencing pleasure and lack of pain.

Bentham lived during a time of major social, political and economic change. The
Industrial Revolution (with the massive economic and social shifts that it brought in its
wake), the rise of the middle class, and revolutions in France and America all were reflected
in Bentham’s reflections on existing institutions.

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.

Influenced by the philosophes of the Enlightenment (such as Beccaria, Helvétius,

Diderot, D’Alembert, and Voltaire) and also by Locke and Hume, Bentham’s work combined
an empiricist approach with a rationalism that emphasized conceptual clarity and deductive
argument.

For Bentham, morals and legislation can be described scientifically, but such a
description requires an account of human nature. Just as nature is explained through reference
to the laws of physics, so human behaviour can be explained by reference to the two primary
motives of pleasure and pain; this is the theory of psychological hedonism.

As Elie Halévy notes, there are three principal characteristics of which constitute the
basis of Bentham’s moral and political philosophy: (i) the greatest happiness principle, (ii)
universal egoism and (iii) the artificial identification of one’s interests with those of others.
 Influenced by the empiricism of Bacon and Locke, Bentham held that all knowledge
is derived from sensation: the intellect has no material to work with apart from that obtained
by the senses. In the second half of the 17th century, the Royal Society had emphasized the
role of experiment and generally empiricist epistemology in the development of the natural
sciences. Suitably impressed by the progress made in this department of knowledge, Bentham
carried over into moral science the basic principle that people can only know, in any certain
or scientific sense of that term, that which can be observed and verified. He argued that legal
science ought to be built on the same immovable basis of sensation and experience as that of
medicine, declaring “what the physician is to the natural body, the legislator is to the
political: legislation is the art of medicine exercised upon a grand scale”.

This was the core of the “experimental method” for Bentham; it was an approach
implicitly associated in his mind with a materialist ontology and a representational theory of
meaning. He rejected all forms of idealism in philosophy and insisted that in principle all
matter is quantifiable in mathematical terms, and this extends to the pains and pleasures that
we experience—the ultimate phenomena to which all human activity (and social concepts,
such as rights, obligation, and duty) could be reduced and explained.

Bentham sought to eliminate a host of ethical propositions as competing alternatives

to the utility principle, such as “moral sense”, “common sense”, “law of reason”, “natural
justice”, and “natural equity”. All are dismissed on the grounds that they are merely empty
phrases that express nothing beyond the sentiment of the person who advocates them. Not
representing verifiable reality, such phrases could not be considered useful. By comparison,
“utility” was a principle rooted in the empirical and verifiable facts of the felt experience of
pains and pleasures.

I- PRINCIPLE OF UTILITY

Utilitarianism is a normative ethical theory that places the locus of right and wrong
solely on the outcomes (consequences) of choosing one action/policy over other
actions/policies. As such, it moves beyond the scope of one's own interests and takes into
account the interests of others.
 According to Bentham, the objective of the legislator must be to do public good. He
must base his reasons on general utility. To give efficacy to the principle of utility, three
conditions, must be fulfilled:

a. Clear and precise definition of the term utility

b. To establish supremacy of this principle by rejecting all other principles, without any
exceptions.
c. To find a process of moral arithmetic to achieve uniform results.

Bentham's Principle of Utility: (1) Recognizes the fundamental role of pain and
pleasure in human life, (2) approves or disapproves of an action on the basis of the amount of
pain or pleasure brought about i.e, consequences, (3) equates good with pleasure and evil
with pain, and (4) asserts that pleasure and pain are capable of quantification (and hence
'measure').

“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…. They govern us in all we do, in all we say, in all we think: every effort we can
make to throw off our subjection, will serve but to demonstrate and confirm it. In words a
man may pretend to abjure 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 rear the fabric of felicity by the hands of reason and of
law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead
of reason, in darkness instead of light.”

The principle of utility is 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 happiness.

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: if that party be the community in
general, then the happiness of the community: if a particular individual, then the happiness of
that individual.
 The community is a fictitious body, composed of the individual persons who are
considered as constituting as it were its members. Therefore, the interest of the community is
the sum of the interests of the several members who compose it.

When an action, or in particular a measure of government, is supposed by a man to be

conformable to the principle of utility, it may be convenient to imagine a kind of law or
dictate, called a law or dictate of utility: and to speak of the action in question, as being
conformable to such law or dictate.

A man may be said to be a partisan of the principle of utility, when the approbation or
disapprobation he annexes to any action, or to any measure, is determined by and
proportioned to the tendency which he conceives it to have to augment or to diminish the
happiness of the community: or in other words, to its conformity or unconformity to the laws
or dictates of utility.

The purpose of law is to achieve maximum happiness to maximum people at the

expense of no or lesser pain. The legislators reasoning for making a particular law, must be
based on this principle. In making law, the legislator must calculate or compare the pleasure
or the pain that it brings about. The legislator must have the objective to increase the total
sum of the happiness of the individuals that form the community.

Utility as a principle has its essence in the virtue and the vice. Virtue is good as it brings
pleasures, vice is bad as it brings evil. The legislator who believes in the theory of utility,
finds, in the process of law-making, a number of these virtues and evils, that the proposed
law may bring. His objective must be to bring more virtue. He must also distinguish
pretended virtues and evils from the real virtues and evils.

II- PRINCIPLES ADVERSE TO THAT OF UTILITY

If the principle of utility be a right principle to be governed by, then whatever

principle differs from it in any case must necessarily be a wrong one. To prove any other
principle, therefore, to be a wrong one, there needs no more than just to show it to be what it
is, a principle of which the dictates are in some point or other different from those of the
principle of utility: to state it is to confute it.
 A principle may be different from that of utility in two ways:

a. By being constantly opposed to it: this is the case with a principle which may be
termed the principle of asceticism.
b. By being sometimes opposed to it, and sometimes not, as it may happen: this is the
case with another, which may be termed the principle of sympathy and antipathy.

A. THE ASCETIC PRINCIPLE

The Ascetic principle is the exact opposite of the principle of utility. An ascetic means
the ‘one who practices.’ It refers to the monks who practice penitence & devotions. They
desire to reduce pleasures and to suffer pain. They find morality upon privations, and virtues
upon the renouncement of one’s self. In a nutshell, they approve everything which tends to
diminish enjoyment, and they blame everything that tend to augment it.

According to Bentham, the Ascetic principle reposes false idea of utility. It was
perceived that attraction of pleasure might result into immoral acts. The morals and good
laws must forbid these pleasures according to ascetics.

The principle has been followed by two classes of men, namely, philosophers and
devotees. The ascetic philosophers, hopeful of applause by others, flatter themselves with the
idea of seeming to raise above humanity, by despising vulgar pleasures. They expect to be
paid in reputation and in glory, for all the sacrifices they seem to make.

The ascetic devotees, on the other hand, consider man as a degenerate being, who
ought to punish himself for being born. These ascetics believe in procurement of pleasure in
another life if they suffer pain in this life. The devotees have taken the ascetic principle a bit
further than the philosophers, in the sense that the latter only believe in censuring the
pleasure; the former believe in infliction of pain as a duty.

The principle of asceticism, however, with whatever warmth it may have been
embraced by its partisans as a rule of Private conduct, seems not to have been carried to any
considerable length, when applied to the business of government. In a few instances it has
been carried a little way by the philosophical party: witness the Spartan regimen. Though
then, perhaps, it maybe considered as having been a measure of security: and an application,
though a precipitate and perverse application, of the principle of utility. Scarcely in any
instances, to any considerable length, by the religious: for the various monastic orders, and
the societies of the Quakers, Dumplers, Moravians, and other religionists, have been free
societies, whose regimen no man has been astricted to without the intervention of his own
consent. Whatever merit a man may have thought there would be in making himself
miserable, no such notion seems ever to have occurred to any of them, that it may be a merit,
much less a duty, to make others miserable: although it should seem, that if a certain quantity
of misery were a thing so desirable, it would not matter much whether it were brought by
each man upon himself, or by one man upon another.

If they have established idleness by a law, it has been not because idleness, the mother
of vice and misery, is itself a virtue, but because idleness (say they) is the road to holiness. If
under the notion of fasting, they have joined in the plan of confining their subjects to a diet,
thought by some to be of the most nourishing and prolific nature, it has been not for the sake
of making them tributaries to the nations by whom that diet was to be supplied, but for the
sake of manifesting their own power, and exercising the obedience of the people. If they have
established, or suffered to be established, punishments for the breach of celibacy, they have
done no more than comply with the petitions of those deluded rigorists, who, dupes to the
ambitious and deep-laid policy of their rulers, first laid themselves under that idle obligation
by a vow.

B. THE ARBITRARY PRINCIPLE

This principle is also called as Principle of Sympathy and Antipathy. It consists in

approved or blamed by sentiments, without giving any other reason for the decision except
the decision itself. An action is judged to be good or bad because it pleases or displeases him
who judges. An action is not justified on the basis of virtues but on sympathy or antipathy. A
man will love a thing which gives him benefit, and hate a thing which hurts him.

The despotism or arbitrariness may be veiled under some ingenious arguments based
on:

a. Own moral sense- an action is justified on the basis of conscience.

 b. Common sense- an action is justified according to sense which belongs to everybody,
thereby speaking for everybody.
c. Understanding- an action is justified by the logic that all wise and just men have
understanding and wisdom which makes them superior to other beings, and the others
should have faith in their wisdom and understanding.
d. Eternal and immutable rule of right- an action is justified because there is an undying
rule telling us what is right and what is not.
e. Natural law- an action is justified because it is natural/ reasonable or a command of
divine.
f. Truth- an action is justified due its truthfulness and the opposite will to falsehood.

Bentham also noted, however, that the arbitrary principle and the principle of utility
coincide with each other from time to time, though perhaps without intending any such thing.
For example, when a man prosecutes a robber before a tribunal out of hatred or resentment,
the action is certainly good but the motive is not. This principle refers to those specious
objects which government pursue, without having general good for a single or independent
aim: such as good morals, equality, liberty, justice, power, commerce, religion, etc. These
objects should be borne in mind by the legislator while making laws, but should not be
regarded as ends in themselves. These should be subordinated to public good or public
happiness.

For instance, a government aiming commerce and wealth will regard the society as a
workshop and men as productive machines. It will care less if men are subjected to
oppression, as long as there is wealth and prosperity. Similarly, a government invested in
power and glory will end up quarreling with neighbours on the matters of territorial
acquisition, people, diplomacy, etc. They may also not wang to relinquish their power at the
hands of others, and do whatever they could to preserve their power.

Bentham further argues that these specious objects are a result of mistake and
inadvertence. These objects only have a relative values in contrast with happiness that has an
intrinsic value.

Causes of Antipathy

a. Repugnance of sense : something which the senses do not agree, to accept. It is very
common to see the transformation of physical antipathy into moral antipathy.
 b. Wounded Pride: A case of dissent causes wounded pride. “he who does not adopt my
opinion, indirectly declares that he has but little respect for my knowledge upon the
point in dispute.”
c. Power Controlled: The compulsive feeling that our power is limited and bounded is a
secret pain. Any resistance to the power causes discontent in us.
d. Confidence in the future weakened or destroyed: Falsehood or absurdity of the men
who were made responsible to rule makes us doubt and we do not rely upon such a
person.
e. The desire of unanimity : Unanimity is very pleasing to us. There would be mutual
confidence and increase of pleasure.
f. Envy: When certain advantages are given to some, others envy. With envy person
may become an ascetic. Envy leads to reducing the pleasures.

III- KINDS OF PLEASURES AND PAINS

There are two broad categories of both pleasure and pains, viz, simple and complex.
Simple, when they cannot be decomposed into others; complex when they are composed of
several simple pains or pleasures or a mixture of pleasures and pains.

A. SIMPLE PLEASURES

1. The pleasures of sense: It includes taste or palate; including whatever pleasures are
experienced in satisfying the appetites of hunger and thirst; intoxication; smell; touch;
hearing; vision; the sexual sense; health; novelty: or, the pleasures derived from the
gratification of the appetite of curiosity, by the application of new objects to any of
the senses.
2. The pleasures of wealth or riches: those pleasures which a man is apt to derive from
the consciousness of possessing any article or articles which stand in the list of
instruments of enjoyment or security, and more particularly at the time of his first
 acquiring them; at which time the pleasure may be styled a pleasure of gain or a
pleasure of acquisition: at other times a pleasure of possession.
3. The pleasures of skill or Address: exercised upon particular objects, are those which
accompany the application of such particular instruments of enjoyment to their uses,
as cannot be so applied without a greater or less share of difficulty or exertion.
4. The pleasures of amity or friendship: the pleasures that may accompany the
persuasion of a man's being in the acquisition or the possession of the good-will of
such or such assignable person or persons in particular: or, as the phrase is, of being
upon good terms with him or them: and as a fruit of it, of his being in a way to have
the benefit of their spontaneous and gratuitous services.
5. The pleasures of a good name or reputation: the pleasures that accompany the
persuasion of a man's being in the acquisition or the possession of the good-will of the
world about him; that is, of such members of society as he is likely to have concerns
with; and as a means of it, either their love or their esteem, or both: and as a fruit of it,
of his being in the way to have the benefit of their spontaneous and gratuitous
services. These may likewise be called the pleasures of honour, or the pleasures of the
moral sanction.
6. The pleasures of power: the pleasures that accompany the persuasion of a man's being
in a condition to dispose people, by means of their hopes and fears, to give him the
benefit of their services: that is, by the hope of some service, or by the fear of some
disservice, that he may be in the way to render them.
7. The pleasures of piety: the pleasures that accompany the belief of a man's being in the
acquisition or in possession of the good-will or favour of the Supreme Being: and as a
fruit of it, of his being in a way of enjoying pleasures to be received by God's special
appointment, either in this life, or in a life to come. These may also be called the
pleasures of religion, the pleasures of a religious disposition, or the pleasures of the
religious sanction.
8. The pleasures of benevolence: the pleasures resulting from the view of any pleasures
supposed to be possessed by the beings who may be the objects of benevolence; to
wit, the sensitive beings we are acquainted with; under which are commonly included,
a. The Supreme Being.
b. Human beings.
c. Other animals. These may also be called the pleasures of good-will, the
pleasures of sympathy, or the pleasures of the benevolent or social affections.
9. The pleasures of malevolence: the pleasures resulting from the view of any pain
supposed to be suffered by the beings who may become the objects of malevolence: to
wit, 2. Other animals. These may also be styled the pleasures of ill-will, the pleasures
of the irascible appetite, the pleasures of antipathy, or the pleasures of the malevolent
or dissocial affections.
10. The pleasure of knowledge: pleasure experienced upon acquisition of new ideas, or
discovery of interesting truths by application of mental faculties.
11. The pleasures of the memory: the pleasures which, after having enjoyed such and such
pleasures, or even in some case after having suffered such and such pains, a man will
now and then experience, at recollecting them exactly in the order and in the
circumstances in which they were actually enjoyed or suffered. These derivative
pleasures may of course be distinguished into as many species as there are of original
perceptions, from whence they may be copied. They may also be styled pleasures of
simple recollection.
12. The pleasures of the imagination: the pleasures which may be derived from the
contemplation of any such pleasures as may happen to be suggested by the memory,
but in a different order, and accompanied by different groups of circumstances. These
may accordingly be referred to any one of the three cardinal points of time, present,
past, or future. It is evident they may admit of as many distinctions as those of the
former class.
13. The pleasures of hope: the pleasures that result from the contemplation of any sort of
pleasure, referred to time future, and accompanied with the sentiment of belief.
14. The pleasures of association: the pleasures which certain objects or incidents may
happen to afford, not of themselves, but merely in virtue of some association they
have contracted in the mind with certain objects or incidents which are in themselves
pleasurable. Such is the case, for instance, with the pleasure of skill, when afforded by
such a set of incidents as compose a game of chess. This derives its pleasurable
quality from its association partly with the pleasures of skill, as exercised in the
production of incidents pleasurable of themselves: partly from its association with the
pleasures of power. Such is the case also with the pleasure of good luck, when
afforded by such incidents as compose the game of hazard, or any other game of
chance, when played at for nothing. This derives its pleasurable quality from its
association with one of the pleasures of wealth; to wit, with the pleasure of acquiring
it.
15. Pleasures grounded upon pains: To the catalogue of pleasures may accordingly be
added the pleasures of relief: or, the pleasures which a man experiences when, after he
has been enduring a pain of any kind for a certain time, it comes to cease, or to abate.
These may of course be distinguished into as many species as there are of pains: and
may give rise to so many pleasures of memory, of imagination, and of expectation.

B. SIMPLE PAINS

1. Pains of privation: the pains that may results from the thought of not possessing in the
time present any of the several kinds of pleasures. Pains of privation correspond to all
those pleasures whose absence excites a sentiment of chagrin. There are three
principal modifications of pains of privation-
(1) When the enjoyment of any particular pleasure happens to be particularly desired,
but without any expectation approaching to assurance, the pain of privation which
thereupon results is called the pain of desire, or of unsatisfied desire;
(2) Where the enjoyment happens to have been looked for with a degree of
expectation approaching to assurance, and that expectation is made suddenly to cease,
it is called a pain of disappointment.
(3) A pain of privation takes the name of a pain of regret in two cases: (i) Where it is
grounded on the memory of a pleasure, which having been once enjoyed, appears not
likely to be enjoyed again; and (ii) Where it is grounded on the idea of a pleasure,
which was never actually enjoyed, nor perhaps so much as expected, but which might
have been enjoyed (it is supposed,) had such or such a contingency happened, which,
in fact, did not happen.
2. Pains of the senses – These correspond to pleasure of senses. These include: pains of
hunger and thirst; the pains of the taste; the pains of the organ of smell; the pains of
the touch; the simple pains of the hearing; the simple pains of the sight; the pains
resulting from excessive heat or cold, unless these be referable to the touch; the pains
of disease; and the pain of exertion or fatigue, whether bodily or mental.
 3. Pains of mal-address or awkwardness: the pains which sometimes result from the
unsuccessful endeavour to apply any particular instruments of enjoyment or security
to their uses, or from the difficulty a man experiences in applying them.
4. Pains of enmity: those which a man feels when he believes himself an object of
malevolence on part of certain individuals, and apprehends that he will be subjected to
their hatred.
5. Pains of a bad reputation: those which a man feels when he believes himself an
object of malevolence or contempt of the surrounding world. These can also be called
as the pains of dishonour, or the pains of the moral sanction.
6. Pains of piety: the pains that accompany the belief of a man's being obnoxious to the
displeasure of the Supreme Being: and in consequence to certain pains to be inflicted
by his especial appointment, either in this life or in a life to come. When the belief is
well-grounded, these pains are commonly called religious terrors; when looked upon
as ill-grounded, superstitious terrors.
7. Pains of benevolence: the pains resulting from the view of any pains supposed to be
endured by other beings. These may also be called the pains of good-will, of
sympathy, or the pains of the benevolent or social affections.
8. Pains of malevolence: the pains resulting from the view of any pleasures supposed to
be enjoyed by any beings who happen to be the objects of a man's displeasure. These
may also be styled the pains of ill-will, of antipathy, or the pains of the malevolent or
dissocial affections.
9. Pains of the memory: these correspond exactly to the pleasures of the memory.
10. Pains of the imagination: they correspond exactly to the pleasures of the imagination.
11. Pains of fear: they correspond exactly to the pleasure of hope.
12. Pains of association: they correspond exactly to the pleasures of association.

Of the above list there are certain pleasures and pains which suppose the existence of
some pleasure or pain, of some other person, to which the pleasure or pain of the person in
question has regard: such pleasures and pains may be termed extra-regarding. Others do not
suppose any such thing: these may be termed self-regarding. The only pleasures and pains of
the extra-regarding class are those of benevolence and those of malevolence: all the rest are
self-regarding.

It must also be noted that certain pleasures exist without any corresponding pains such
as pleasure novelty, of riches.
IV- THE MEASURE OF PLEASURES AND PAIN

According to Bentham, the sole object of the legislator is to increase pleasure and to
prevent pain. In order to do so, he must be equipped to understand the value of pains and
pleasures which may accrue due to an action.

Value of pleasures or pain in relation to a single individual depends upon following

four circumstances:

1. Its intensity.
2. Its duration.
3. Its certainty or uncertainty.
4. Its proximity.

Pains and pleasures may have pains and pleasures as consequences. It is not enough to
examine the value of pleasure and pain as if they were isolated and independent. Therefore,
two additional circumstances must be taken into account in order to calculate the tendency of
an act resulting immediate pains or pleasures:

5. Its productiveness or fecundity

6. Its purity

Productiveness means the chance it has of being followed by sensations of the same
kind: that is, pleasures, if it be a pleasure: pains, if it be a pain. Its purity means the chance it
has of not being followed by sensations of the opposite kind: that is, pains, if it be a pleasure:
pleasures, if it be a pain.

Lastly, since a legislator’s job is to assess any action in reference to public utility, another
circumstance is warranted:

7. Its Extent

Whenever we wish to value an action, we must follow in detail all the operations
listed above. These are the elements of moral calculation rendering legislation a matter of
moral arithmetic. The unit of intensity is the faintest sensation that can be distinguished to be
pleasure or pain; the unit of duration is a moment of time. Degrees of intensity and duration
are to be counted in whole numbers, as multiples of these units. Certainty and propinquity are
reckoned as fractions whose limit is immediate actual sensation; from this limit the fractions
fall away.

Felicific Calculus

To take an exact account then of the general tendency of any act, by which the
interests of a community are affected, proceed as follows. Begin with any one person of those
whose interests seem most immediately to be affected by it: and take an account,

1. Of the value of each distinguishable pleasure which appears to be produced by it in

the first instance.
2. Of the value of each pain which appears to be produced by it in the first instance.
3. Of the value of each pleasure which appears to be produced by it after the first. This
constitutes the fecundity of the first pleasure and the impurity of the first pain.
4. Of the value of each pain which appears to be produced by it after the first. This
constitutes the fecundity of the first pain, and the impurity of the first pleasure.
5. Sum up all the values of all the pleasures on the one side, and those of all the pains on
the other. The balance, if it be on the side of pleasure, will give the good tendency of
the act upon the whole, with respect to the interests of that individual person; if on the
side of pain, the bad tendency of it upon the whole.
6. Take an account of the number of persons whose interests appear to be concerned;
and repeat the above process with respect to each. Sum up the numbers expressive of
the degrees of good tendency, which the act has, with respect to each individual, in
regard to whom the tendency of it is good upon the whole: do this again with respect
to each individual, in regard to whom the tendency of it is good upon the whole: do
this again with respect to each individual, in regard to whom the tendency of it is bad
upon the whole. Take the balance which if on the side of pleasure, will give the
general good tendency of the act, with respect to the total number or community of
individuals concerned; if on the side of pain, the general evil tendency, with respect to
the same community.

It is not to be expected that this process should be strictly pursued previously to every
moral judgment, or to every legislative or judicial operation. It may, however, be always kept
in view: and as near as the process actually pursued on these occasions approaches to it, so
near will such process approach to the character of an exact one.
 The same process is alike applicable to pleasure and pain, in whatever shape they
appear: and by whatever denomination they are distinguished: to pleasure, whether it be
called good (which is properly the cause or instrument of pleasure) or profit (which is distant
pleasure, or the cause or instrument of, distant pleasure,) or convenience, or advantage,
benefit, emolument, happiness, and so forth: to pain, whether it be called evil, (which
corresponds to good) or mischief, or inconvenience or disadvantage, or loss, or unhappiness,
and so forth.

Bentham maintains that – “it is not necessary to recommence this calculation upon
every occasion. When one has become familiar with the process; when ho has acquired that
justness of estimate which results from it; he can compare the sum of good and of evil with so
much promptitude as scarcely to be conscious of the steps of the calculation. It is thus that we
perform many arithmetical calculations almost without knowing it. The analytical method, in
all its details, becomes essential, only when some new or complicated matter arises; when it
is necessary to clear up some disputed point, or to demonstrate a truth to those who are yet
unacquainted with it.”

V- LIMITS SEPARATING MORALS AND LEGISLATION

Morality in general is the art of directing the actions of men in such a way as to
produce the greatest possible sum of good. Legislation ought to have precisely the same
object. However, these two are different in their extent and intervention in one’s life.

Morality governs all the kinds of actions, be it public private. It is a guide which leads
the individual, as it were, by the hand through all the details of his life, all his relations with
his fellows. Legislation has a limitation in in this regard. It ought not to exercise a continual
interference and dictation over the conduct of men.

Morality commands an individual to do all the things which are deemed beneficial to
the community, including his personal benefit. However, legislation ought not to command
certain acts which may be beneficial for the community. Similarly, legislation cannot forbid
all the injurious acts, but morality can.

There are two reasons for this difference:

 i. Legislation cannot influence the conduct of men directly, except by punishments.
These Punishments are justified only when they avoid greater pain. But, in many
cases, in which we might desire to strengthen a moral precept by a punishment, the
evil of the punishment would be greater than the evil of the offence.
ii. There is the possibility of punishing the innocent, in the anxiety of punishing the
culprits. This comes from difficulty in defining offence.

Classification of Moral Duties

In order to set the limits of morality and law, it is important to refer to classification of
moral duties. Private morality regulates the actions of men, either in that part of their conduct
in which they alone are interested, or in that which may affect the interests of others.
Accordingly, the moral duties can be classified as follows:

1. Duties to ourselves- The actions which affect a man's individual interest compose a
class called, perhaps improperly, duties to ourselves; and the quality or disposition
manifested in the accomplishment of those duties receives the name of ‘prudence’.
2. Duties to others- That part of conduct which relates to others composes a class of
actions called duties to others. Now there are two ways of consulting the happiness of
others: the one negative, abstaining from diminishing it; the other positive, labouring
to augment it. The first constitutes ‘probity’; the second is ‘beneficence’.

When does Morality Need Help of Law?

The conduct of individuals in society can be regulated by morals even without law’s
intervention. Bentham proposes that, legislation should interfere in the lives of men only to
support morals, and not otherwise.

Morality requires aid of legislation on following three points:

i. Relating to Self-Duty - The presupposition is that individuals have enough prudence to

not commit wrong. If they commit a wrong relating to self-duty, then they were not
willing to, but they were under mistake, i.e., their understanding was at fault.

Bentham replies to the objection, that facts show the contrary, by stating; firstly, that
in the greater part of these cases, punishment would be so easily eluded, that it would
 be inefficacious; secondly, that the evil produced by the penal law would be much
beyond the evil of the offence.

He gives an example where a legislator wants to erect a law regarding extirpation of

drunkenness and fornication. He argues that such a law will create more evil than it
wants to prevent. It requires multiple regulations, hence complexity of laws. Requires
severity of punishment to create deterrence, because these vices can be easily
concealed. Since there will be difficulty in procuring proof, it will be required to
intrude into the personal lives of the wrongdoers by employing informers or spies.

Bentham further argues that such imprudence does not cause any alarm in the society,
but the pretended remedy would spread a universal terror; innocent or guilty,
everyone would fear for himself or his connections; suspicions and accusations would
render society dangerous; we should fly from it; we should involve ourselves in
mystery and concealment; we should shun all the disclosures of confidence. Instead of
suppressing one vice, the laws would produce other vices, now and more dangerous.

Only in certain kinds of acts of imprudence, which are contagious, should there be
legislation. A slight punishment is warranted in case of scandalous notoriety. This will
be sufficient to give them a taint of illegality, which will excite the popular sanction
against them.

As per Bentham ‘man is the best judge of his own interests’. He must be left to his
own prudence. Even if they deceive themselves, after discovering the error they will
rectify the same. The law can interfere only in cases where conducts of individuals
may injure each other. In such cases law may apply restraints and punishments to
safeguard the interests of all the individuals.

ii. Relating to probity – Bentham says that there is a natural connection between
prudence and probity. That is to say, there is a relation with happiness or interests of
self with that of others. A man of prudence will always have motives to abstain from
injuring others. There are some natural motives, independent of law and religion, that
is the motives derived from own interests, for consulting happiness of others. These
are:
a. Of pure benevolence
b. Of private affection
c. Of good repute and fear of blame
 To realize the connection between interests of others and that of his own, an
individual needs ‘enlightened spirit and a heart free from seductive passions.’ In case
of lack of such a natural spirit legislation can supply artificial interest. In such a
situation morality derives its existence from law. Sometimes to know whether an
action is good or bad, we need to look at the law whether it permits it or forbids it. In
other words, the legislator must provide artificial motives and interests when a person
is not able to imbibe the said natural motives and interests. Most of the individuals
lack the natural understanding of the moral codes which are required to abstain from
injuring others. Hence the aid of law becomes necessary for such individuals in order
to place them under the jurisdiction of morality.

iii. Relating to beneficence- “The law may be extended to general objects, such as the
care of the poor; but, for details, it is necessary to depend upon private morality.
Beneficence has its mysteries, and loves best to employ itself upon evils so
unforeseen or so secret that the law cannot reach them. Besides, it is to individual
free-will that benevolence owes its energy.” Bentham here means that law cannot
ordinarily command the sentiment of benevolence or charity.
It is morality and religion which complement law tied to acts of humanity. Bentham is
of the opinion that the legislators ought to have done more in this sphere. They should
have rendered refusal or omission to do humanitarian deeds as ofefnces, when it is
convenient and when such a refusal or omission leads to clear and distinct evil. For
example, abandoning a severely wounded person on a secluded place, or not giving
information of an offence to the authorities.
For such delinquencies, the appropriate action may not always be punishment;
it may also be pecuniary responsibilities.
Bentham further advocates the banishment of cruelty to animals as an act of
benevolence, even though the animals may be utilised for human nourishment.