A Critique of Jeremy Bentham’s Idea of Law
CHAPTER ONE
OBJECTIVE OF STUDY
The concept of law is a multidimensional one as it is not so easy to define because of its broad relationship to almost every aspect of human life. It has wide applicability to science, politics, religion, philosophy, economics and even social relationships. However, some definitions abound that will give us a general picture of what law is all about.
CHAPTER TWO
NATURE AND THEORIES OF LAW
THE NATURE OF LAW
Because no man is an island, he lives with other men in a community. In the course of his existence, he has goals and aspirations which may conflict with that of the other person. At such times, there should be need for regulatory principles to modify his freedom as well as that of others for mutual co-existence and orderliness. On the other hand, there are basic principles on which natural events are founded even before the creation of man. All that man does in this case is just to seek to discover and describe them. He does not invent or originate them. The nature and meaning of law can be understood from this perspective. For Hospers, laws are divided into two broad classes: prescriptive and descriptive laws (230).
Prescriptive laws are regarded as “rule (written or unwritten) by which a country is governed and the activities of people and organisation are controlled” (Collin 155). Here laws as prescriptive principles suggest an instrument of governance and control. Thus for the positivists, “law is a command backed by sanction or the threat of punishment” (Omoregbe vii). Law is a unique social-political phenomenon with more or less universal characteristics that can be discerned through philosophical analysis. Law is also a normative social practice purported to guide human behaviour, giving rise to reasons for action. Law is a set of regulatory rules made, ratified and accepted by a people as binding on them all, for the purpose of finding and modifying their behaviour towards common goals.
On the other hand, we have descriptive laws which are also called natural laws. Natural laws are the laws of nature. It is a system of law that is purportedly determined by the nature and thus, universal, classical natural law refers to use of reason to analyze human nature both social and personal and deduce binding rules of moral behaviour. According to natural law, theory, morality is a function of human nature and reason, it can discover valid moral principles by looking at the nature of humanity in society. It has been argued in some quarters, that the content of positive law (man made) cannot be known without some reference to natural law.
CHAPTER THREE
A CRITIQUE OF BENTHAM’S IDEA OF LAW
BRIEF BIOGRAPHY OF JEREMY BENTHAM
Bentham lived between 1748-1832. He came from a family of wealthy lawyers and he himself was intended for the law. In view of his early education he found his teachers lacking and his contemporaries stupid (Wayper, 83). Bentham, in returning to his record his vote in the University of Oxford parliamentary election, he found in a bookshop Priestly’s Essay on Government, which contained the phrase which Priestly had taken from Hutcheson “the greatest happiness of the greatest number”. It was, he says by that pamphlet and that page of it that he draw the phrase, the words and the importance of which have been so widely diffused over the civilized world, it was also from this same pamphlet that Bentham’s principles on the subject of morality, public and private were determined.
Bentham’s career as a barrister was short and inglorious. Instead of preparing for practice, he let chemistry and physics intrigue him. Yet his time was not being wasted. He was becoming more and more convinced that every man should, and that he in particular, must devote himself to the furtherance of human happiness.
Bentham was filled with the assurance that his particular job in life was to labour at the reform of the law, since he was rapidly becoming sure both that legislation was the must important of men’s activities and that he was possessed of a genius for it. In Decey’s word, he was in very truth the “first and greatest of legal philosopher” (210).
CHAPTER FOUR
EVALUATION OF BENTHAM’S THEORY OF LAW
Bentham’s theory of law is predicted on certain indices such as the utilitarian principles 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 enlightened 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 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 thus for Bentham is a matter of experiencing pleasure and lacking pain.
Although he never practiced law, Bentham did write a great deal of philosophy of law, critiquing the existing law and strongly advocating legal reform. He critiques various natural accounts of law which claim, for example, that liberty, rights and so on exist independent of government. In this way Bentham arguably developed an easy form of what is now often called “legal position”. Beyond such critique , Bentham ultimately maintain that putting his moral theory into consistent practice would yield results in legal theory by providing justification for social, political and legal institutions.
CHAPTER FIVE
CONCLUSION
From the foregoing, it is clear that Bentham is his theory of law came up with an admixture of moral philosophy, scientific method or empiricism, psychology, and mathematics (calculus) all in one mould. He was able to analyse the nature of humans and to deduce what drives him (pleasure or pain). And from this understanding, he was able to proposed that law will function properly if pain and pleasure are used as indices because humans by their nature will naturally avoid pain and seek after pleasure. Thus incorporating this idea into our legal system will enhance the law and give it some respect. Specifically then, what is morally obligatory is that which produces the greatest amount of happiness for the greatest number of people, happiness being determined by reference to the presence of pleasure and absence of pain.
RECOMMENDATION
Bentham’s theory of law clearly reflects his psychological view that the primary motivators in human beings are pleasure and pain. Though he admits that his version of the principle of utility is something that does not admit of direct proof, but he notes that this is not a problem as some explanatory principles do not admit of any such proof and all explanation must start somewhere. But this, by itself does not explain why another’s happiness or the general happiness should count.
One also wonders if pain has always been a deterrence for the avoidance of crime as experience has shown that most people who commits crime and are punished usually go back to repeat the same crime subsequently. This shows that pain may not be a yardstick for a free-crime society after all.
Another issue in Bentham’s theory of law is the challenge of calculating the pleasures and pains involved in carrying out a course of action (the hedonic calculus) since pleasures and pains are intrinsic. Furthermore, his psychological egoism that points clearly to the claim that man is egoistic or self-centred can be argued on the grounds that man still displays some element of altruism (considering other people’s interest first).
In all, Bentham’s theory of law is a very important attempt at bringing together all the important ingredients or facets that makes up the law. even though it may have one or two shortcomings, it nevertheless holds very useful tips in understanding the nature of man even as he lives in a law-governed society with restrictions that will help for the over all survival of the society.
REFERENCES
- Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation (ed.) J. H. Burns and HLA. Hart. London: the Athlone press, 1970.
- Collins, P. H. English Law Dictionary. Ibadan: Evans Brothers, 1987.
- Fitzgerald, P. The Truth about tomorrow’s sea flight”, Journal of Philosophy Vol. lxiv, No. II, 1969.
- Hopers, John. An Introduction to Philosophical Analysis., London: Rowledgese Kegan Paul, 1976.
- Omoeregbe, Joseph. Introduction to Philosophical Jurisprudence. Lagos: Joja Publishers, 1994.
- Uduigwomen, Andrew F. Studies in Philosophical Jurisprudence (3rd ed.) Calabar: Ultimate Index Publishers, 2010.
