Bentham, Jeremy (1748–1832)

Principle of Utility

Admitted to the bar in 1769, Bentham decided not to practice law, but to devote himself to its reform. He developed the principle of utility, or greatest-happiness principle, as a critical standard by which to judge the value of existing and proposed laws and institutions. Bentham grounded the principle of utility on the fact that human beings, and sentient creatures generally, were motivated by a desire for pleasure and an aversion to pain. One could say that a person who experienced a balance of pleasure over pain was happy. Bentham further argued that goodness consisted in, and only in, the experience of pleasure; and evil consisted in, and only in, the experience of pain. An act was morally good if, after weighing the pleasures and pains produced in the instance of every individual affected, the balance was on the side of pleasure, and it was morally evil if the balance was on the side of pain. It was the characteristic task of the utilitarian legislator to use sanctions to discourage actions detrimental to the happiness of the community.

Legal Theory

Bentham's principle of utility entailed the distinction between “law as it is” and “law as it ought to be” and thereby provided the basis for his critique of natural law. In A Fragment on Government (1776), which attacked William Blackstone's Commentaries on the Laws of England (1765–1769), Bentham distinguished between the legal expositor, who described what the law was, and the censor, who proposed what the law ought to be. Blackstone, by both describing and attempting to justify the laws of England, had confounded the two roles and, by appealing to the natural law and claiming that human (positive) law was valid only if it did not contradict the natural law, had committed himself to a nonexistent moral standard. Bentham argued that “real” law was the product of a real legislator, but since natural law was not the product of any legislator, it did not exist. An appeal to it to validate positive law was nonsense. Bentham deployed a similar argument against the related doctrine of natural rights. Legal rights were the product of government, while natural rights were the product of the imagination.

By the early 1780s, Bentham had concluded that the most effective means of promoting the happiness of the community would be through the introduction of a complete code of law (pannomion). In contrast to the English common law, which was corrupt, unknowable, incomplete, and arbitrary, a utilitarian code would be “all-comprehensive” and “rationalized”—with all terms defined consistently and each provision accompanied with reasons.

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