Principles of Legislation

Ayush Jha
Assistant Professor
Introduction
• Term legislation comes from Latin word
‘legislatio’ meaning bringing of law.
• Legislation in a strict sense means laws made
by a competent authority in that regard.
• In wider sense it includes judge made laws,
customs and conventions.
• Legislations may be direct or indirect.
• Laws can be made by supreme authorities in a
State or by subsidiary authorities.
Jeremy Bentham’s Principle of ‘Utility’
• Two of his famous works: ‘The Theory of
Legislation’ and ‘Introduction to Morals and
Legislation’.
• In addition to his moral and legal philosophy,
these are also guides to Legislators.
• He postulated ‘Utilitarianism’ as principle of
legislation.
• He maintains Legislation is both science and art.
• He explains utility as the basis of political
obligations; it is the end objective of Govt. and
legislation.
• The objective of the legislator must be to do public
good. He may base his reasons on general utility.
• It is the duty of the legislators to make a great
study of two concepts, viz, pleasure and pain.
• The term ‘utility’ expresses some propensity or
tendency of a thing to prevent some evil or to do
some good.
• ‘The principle of utility is that principle which
approves or disapproves of every action according
to the tendency which increase or decrease
happiness’.
• Anything which conforms to this utility, brings
happiness to the individual.
• 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.
Virtues and Vice
• 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.
Objections
• What is utility, is judged by each person and
hence, it is objected that it loses its force.
• Religious objection: The good and evil can
only be decided by God.
• It is not necessary that which is useful will be
just and honest.
• The aim of good morals is different from the
aim of politics.
• It may promote opportunism in people.
The Ascetic Principle
• Ascetic means ‘one who practices.’ It refers to the
monks who practice penitence & devotions.
• They desire to reduce pleasures and to suffer pain.
• This Ascetic principle is opposed to the principle of
utility.
• It is followed mainly by philosophers and devotees.
• 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.
Arbitrary Principle
• AKA Principle of Sympathy and Antipathy.
• Things are approved or blamed by sentiments, without
giving any other reason for the decision except the
decision itself.
• This Principle is based on I love, I hate.
• An action is judged to be good or bad because it pleases or
displeases him who judges.
• He merely pronounces himself sovereign and admits no
appeal.
• 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.
Causes of Antipathy
• Repugnance of sense : something which the
senses do not agree, to accept.
• 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.”
• Power Controlled: The compulsive feeling that
our power is limited and bounded is a secret
pain.
• 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.
• The desire of unanimity : Unanimity is very
pleasing to us. There would be mutual
confidence and increase of pleasure.
• Envy: When certain advantages are given to
some, others envy. With envy person may
become an ascetic. Envy leads to reducing the
pleasures.
Operation of these principles on Legislation
• Legislation Rarely Based on Asceticism.
• The foundation of asceticism, that there is merit
in infliction of pain cannot be applied while
making of laws.
• Arbitrary principle has been utilised by
governments while making legislations.
• They consider principles like justice, equality,
wealth, power and glory etc. to be ends and not
means.
• A Government which has wealth and commerce
looks to the society as a workshop.
Applying the Principle of Utility
• To obtain an exact accounting of the general
tendency of any act affecting the interests of a
community, proceed as follows:
• Begin with any one person among those whose
interests seem most immediately to be affected by it
and take into account:
– the value of each distinguishable pleasure that appears to
be produced by it in the first instance;
– the value of each pain that appears to be produced by it in
the first instance;
– the value of each pleasure that appears to be produced by
it after the first—this constitutes the productiveness of
the first pleasure and the impurity of the first pain;
– then take into account the value of each pain that
appears to be produced by it after the first—this
constitutes the productivity of the first pain, and the
impurity of the first pleasure.
– 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 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.
– Take into account the number of people whose
interests appear to be concerned, and repeat the
above process with respect to each.
• Sum up the good and bad tendencies and then
figure out the balance.
• If this is on the side of pleasure, it will give the
general good tendency of the act with respect to
the community.
• If it is on the side of pain, it gives the general
evil tendency with respect to the same
community.
• It is not to be expected that an exact account of
the tendency of any act will be strictly pursued
before every moral judgment, or to every
legislative or judicial operation.
Morals v/s Legislation
• According to Bentham Both morality and
Legislation have same objects, i.e. greatest
possible sum of good.
• However, Morality has bigger ambit in contrast
with laws.
• Law ought not to exercise continual interference
and control over conduct of men.
• Morality commands each individual to do good to
the community along with his own.
• Legislation cannot command a lot of beneficial
acts and cannot forbid all the injurious acts.
• Reasons for these differences-
– Legislation has no direct influence except by
punishment. These Punishments are justified only
when they avoid greater pain.
– There is the possibility of punishing the innocent, in
the anxiety of punishing the culprits. This comes from
difficulty in defining offence.
• Private Morality dictates two kinds of duties-
duties to self and duties to others.
• Prudence is the quality required to accomplishes
the duties to self.
• Two ways of consulting happiness of others:
positive (beneficence) and negative (probity).
When does morality needs help of law?
In case of Imprudence
• The presupposition is man has enough prudence
to not commit wrong.
• If man commits a wrong relating to self duty,
then he was not willing to, but he was under
mistake, i.e., his understanding was at fault.
• If a legislator make stringent laws to prevent the
evil created by such a conduct, then it will create
more vices.
• Slight punishment is warranted in these cases to
trigger the popular sanctions.
• 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.
Related to probity
• There is a natural connection between prudence and
probity.
• A man of prudence will always have motives to
abstain from injuring others.
• There are certain natural motives:
– Of pure benevolence
– Of private affection
– Of good repute and fear of blame.
• To realize the connection between interests of others
and that of his own, a man 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 a an action is
good or bad, wee need to look at the law
whether it permits it or forbids it.
Related to Beneficence
• It is the will of individual which is the power
of benevolent activities.
• It cannot be imposed by law.
• It has ties in humanity of morals and religion
which complement law.
• The legislators have not done enough in this
sphere.
• The legislators ought to have erected a refusal
to observe humanity service into offences.