◆Introduction:- Jeremy Bentham was the original father of analytical School of jurisprudence. He considered to be the reformist. His contribution to the English law reforms can be summarised thus-
"He determined, in the first place, the principles on which reforms should be based .
Secondly, he determined the method i.e. the mode of legislation, by which reforms should be carried out in England."
◆Bentham's Expositorial and Censorial Jurisprudence:-
Bentham preferred to divide Jurisprudence into expositorial and censorial jurisprudence. Expository are analytical jurisprudence is concerned with "law as it is" without any regard to its moral or Immoral character. Whereas Censorial jurisprudence, is concerned with "science of legislation" that is what the law ought to be.
The function of 'expositorial' jurisprudence is to ascertain what the law is while that of sensorial jurisprudence is to ascertain what the law ought to be.
Bentham defined law as an act or power of willing which is conceived or adopted by the sovereign concerning the conduct to be observed in a certain case by a certain person or class of person.
His theory is also known as imperative law. Bentham made a catalogue of pleasure and pain. Because according to him while formulating a law legislature should emphasize on the pleasure not in pain, that means the main motive of the law should be for pleasure of the citizen.
"He determined, in the first place, the principles on which reforms should be based .
Secondly, he determined the method i.e. the mode of legislation, by which reforms should be carried out in England."
◆Bentham's Expositorial and Censorial Jurisprudence:-
Bentham preferred to divide Jurisprudence into expositorial and censorial jurisprudence. Expository are analytical jurisprudence is concerned with "law as it is" without any regard to its moral or Immoral character. Whereas Censorial jurisprudence, is concerned with "science of legislation" that is what the law ought to be.
The function of 'expositorial' jurisprudence is to ascertain what the law is while that of sensorial jurisprudence is to ascertain what the law ought to be.
Bentham defined law as an act or power of willing which is conceived or adopted by the sovereign concerning the conduct to be observed in a certain case by a certain person or class of person.
His theory is also known as imperative law. Bentham made a catalogue of pleasure and pain. Because according to him while formulating a law legislature should emphasize on the pleasure not in pain, that means the main motive of the law should be for pleasure of the citizen.
◆Bentham's concept of sovereignty:- According to Bentham a law may be defined as a sign declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons. Here for Bentham the power to enact a law is on the hands of Legislature.According to him the task of law never be completed without sovereignty.
◆Bentham's Utilitarianism:- Bentham as an individualist believed that the function of law is to emancipate individual from the bondage and restraint upon his freedom. He supported the economic principle of 'laissez-faire' which means minimum interference of the state in the economic activities of the individuals. Bentham propounded the principle of utilitarianism. According to this theory the right aim of the legislation is the carrying out of the principle of utility. In other words the proper end of every law is the promotion of "greatest happiness" of the "greatest number". Bentham defined utility as the property or tendency of a thing to prevent some Evil or procure some good. According to him the consequence of good and evil are respectively pleasure and pain.
Aspect of legislation:- According to the Jeremy Bentham while formulating the law the sovereign must keep in mind the things as discussed below-
1.Source:- According to the Bentham the source of law is the will of the sovereign who may conceive laws or adopt laws. Bentham said that sovereign is any person or class of person on whose will a whole political community are supposed to be pay disposition and in preference to the will of the any other person.
He also defined that in a political community where a number of person are supposed to be in the habit of disobedience to a person or class of person of known description that person alltogether are said to be in a political society.
The sovereign power is indefinite it is only limited by express conventions or by religious or political motivation. The sovereign consists of more than one body, each of which is obeyed in different respect.
2.subject:- Another aspect of law is subject. Subject may be person or things. Each of this may be active or passive or direct or indirect.
3.Object:- According to Bentham each act of situation is the object of an individual law. It is for him that "a law is a real entity" and so sought to reduce it its factual basis
An act originates from the fact of a person or thing, but it may be and in a person or thing. All laws regulate the conduct positively or negativity by imposing duties or granting permissions, e.g., the main object of Right to Information Act is to inform the people.
4.Extent:- Extent means the jurisdiction of the area where the law is applicable. Extent may be direct or indirect.
Direct extent means a law, covering a particular portion of land on which the act or legislation is applicable. Indirect extent refers to the relation of a person with the legislation. It means that within the jurisdiction a human being must have to act and it cannot transgressed its jurisdiction.
5.Aspect:- Every law has directive and a sessional part. The directive part concern the aspect of the sovereign's will towards a situation; on the other hand the functional part concerned with the force of law command, prohibition, permission to do and permission to not to do, etc. So on the sectional part the consequence of law is determined.
6. Force:- The law is dependent upon motivation for obedience. Force of law includes sanction. The sovereign will in this respect is a law as long as it is supported by sanction. Sanction includes physical, political, religious or moral motivations comprising threats of punishment and rewards.
7. Remedial Appendages:- It referred to the remedies. The sanction are provided by subsidiary laws. Sanction themselves required a further set of subsidiary laws to judge with a view of curtailing the evil.
8.Expression:- Sovereign's will may be expressed by various ways. Expression may be complete with referred to a particular legislation but in all such cases a judge should adopt a literal interpretation when the expression is incomplete.
Aspect of legislation:- According to the Jeremy Bentham while formulating the law the sovereign must keep in mind the things as discussed below-
1.Source:- According to the Bentham the source of law is the will of the sovereign who may conceive laws or adopt laws. Bentham said that sovereign is any person or class of person on whose will a whole political community are supposed to be pay disposition and in preference to the will of the any other person.
He also defined that in a political community where a number of person are supposed to be in the habit of disobedience to a person or class of person of known description that person alltogether are said to be in a political society.
The sovereign power is indefinite it is only limited by express conventions or by religious or political motivation. The sovereign consists of more than one body, each of which is obeyed in different respect.
2.subject:- Another aspect of law is subject. Subject may be person or things. Each of this may be active or passive or direct or indirect.
3.Object:- According to Bentham each act of situation is the object of an individual law. It is for him that "a law is a real entity" and so sought to reduce it its factual basis
An act originates from the fact of a person or thing, but it may be and in a person or thing. All laws regulate the conduct positively or negativity by imposing duties or granting permissions, e.g., the main object of Right to Information Act is to inform the people.
4.Extent:- Extent means the jurisdiction of the area where the law is applicable. Extent may be direct or indirect.
Direct extent means a law, covering a particular portion of land on which the act or legislation is applicable. Indirect extent refers to the relation of a person with the legislation. It means that within the jurisdiction a human being must have to act and it cannot transgressed its jurisdiction.
5.Aspect:- Every law has directive and a sessional part. The directive part concern the aspect of the sovereign's will towards a situation; on the other hand the functional part concerned with the force of law command, prohibition, permission to do and permission to not to do, etc. So on the sectional part the consequence of law is determined.
6. Force:- The law is dependent upon motivation for obedience. Force of law includes sanction. The sovereign will in this respect is a law as long as it is supported by sanction. Sanction includes physical, political, religious or moral motivations comprising threats of punishment and rewards.
7. Remedial Appendages:- It referred to the remedies. The sanction are provided by subsidiary laws. Sanction themselves required a further set of subsidiary laws to judge with a view of curtailing the evil.
8.Expression:- Sovereign's will may be expressed by various ways. Expression may be complete with referred to a particular legislation but in all such cases a judge should adopt a literal interpretation when the expression is incomplete.
◆ Criticism:- Bentham's theory of utilitarianism has been subjected to criticism on many counts.
1.According to Friedmann, it suffers mainly from two weaknesses-
Firstly, in an effort to blend materialism with idealism; Bentham underestimates the need for individual discretion and flexibility in the application of law overestimating the power of the Legislature.
Secondly, his theory fails to balance individual interest with the interest of the community.
2. Another criticism advanced against bentham's hedonistic calculus i.e., theory of utilitarianism is that pleasure and pain alone cannot be the final test of the adequacy of of law.
3. Bentham's theory suggests that interests of an unlimited number of individuals shall be conducive to the interest of the community. This, in other word means that freedom of enterprise will automatically lead to greater equality. But when put to actual practice it is just the reverse of it resulting into inequality.
1.According to Friedmann, it suffers mainly from two weaknesses-
Firstly, in an effort to blend materialism with idealism; Bentham underestimates the need for individual discretion and flexibility in the application of law overestimating the power of the Legislature.
Secondly, his theory fails to balance individual interest with the interest of the community.
2. Another criticism advanced against bentham's hedonistic calculus i.e., theory of utilitarianism is that pleasure and pain alone cannot be the final test of the adequacy of of law.
3. Bentham's theory suggests that interests of an unlimited number of individuals shall be conducive to the interest of the community. This, in other word means that freedom of enterprise will automatically lead to greater equality. But when put to actual practice it is just the reverse of it resulting into inequality.
◆Conclusion:- Despite the shortcomings of Bentham theory of utilitarianism his legal reforms ushered a new era in the history of legislation in England, and indeed, legislation has now become one of the most popular method of law making. Bentham was in fact the intellectual got father of John Austin from whom the latter borrowed, developed and perfected his theory of analytical positivism. Bentham devoted his entire life to the improvement in the quality of law and life with a view to promoting happiness of the people. It is irony of fate that the Bentham's works on law and legislation did not receive much attention during his lifetime but they are highly acclaimed and appreciated in the later years much after his death.
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