The document discusses Jeremy Bentham's principle of utility as the basis for legislation, which holds that legislation should aim to maximize happiness and minimize pain for the community. It also examines Bentham's views on how the principles of utility, asceticism, and sympathy/antipathy influence legislation and compares the roles of morality versus law. The document provides guidance for legislators in applying the principle of utility when drafting laws.

1. Principles of Legislation
Ayush Jha
Assistant Professor

2. 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.

3. 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.

4. • 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.

5. • 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. • 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.

12. 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.

13. 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;

14. –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.

15. • 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.

16. 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.

17. • 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).

18. 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.

19. • 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.

20. Related to probity
• There is a natural connection between prudence
and probity.
• A man of prudence will always have motives
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.’

21. • 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.

22. • 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.