JEREMY BENTHAM(1748-1832) Jeremy Bentham heralded a new era in the history of legal thought in England. He is considered to be the founder of positivism in modern sense of the term. Austin owes much to Bentham and on many points his propositions are merely the Para-phasing of Bentham Theory. Jeremy Bentham was the son of a wealthy Attorney of London. The Contribution of Bentham to English Law reforms can be summarized thus: He determined, in the 1st principle on which reforms should be based Secondly he determined the method the mode of regulation by which reforms should be carried out in England. Jeremy Bentham views on Law English Law as it existed at the end of 18th Century when Bentham was still in his youth has developed almost in a haphazard way as a result of customs or modes of thought which prevailed at different period. That is why it is said that in England law had in fact grown rather than been made. Bentham spearheaded codified law. He advocated there should be no reform in substantive law without reforming its structure through a process of analysis. Therefore he distinguished expositorial jurisprudence (i.e. what the law is) from censorial jurisprudence (i.e. what the law ought to be). Bentham believed that every law may be considered in the light of eight things: 1. Source-Law as the will of sovereign 2. Subject-may be person or things 3. Object-Act, situation or forbearance 4. Extent-Law covers a portion on land on which acts have been done 5. Aspect-May be directive or sanctional 6. Force 7. Remedial-State appendages 8. Expression Bentham’s Utilitarianism Bentham supported the economic principle of laissez faire which meant minimum interference of state in the economic activities of individuals. Bentham defined utility as property or tendency of a thing to prevent some evil or procure some good. According to him, the consequences of good and evil are respectively pleasure and pain. In other words the proper end of every law is the promotion of the greatest happiness of the greatest number. Bentham proceeded from the axiom that nature has placed mankind under governance of two sovereign masters i.e. pleasure and pain. They alone point out to us what we ought to do and what we should refrain from doing. Bentham convinced that if individuals comprising society were happy and contented the whole body politic would enjoy happiness and prosperity. Bentham desired to ensure happiness of the community by attaining four major goals: 1. Subsistence 2. Abundance 3. Equality 4. Security For the citizen and the function of law is to meet these ends i.e. to provide subsistence, to produce abundance, to favor equality and to maintain security. John Stuart Mill agreed with Bentham’s view regarding utilitarianism which is also called doctrine of Hedonism ”Theory of pain and pleasure.” Criticism: Firstly it is 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 legislation. Secondly, his theory fails to balance individual interest with the interest of community. Thirdly, pleasure and pain can’t be the final test of the law.
Posted on: Wed, 07 Jan 2015 01:30:58 +0000
Trending Topics
Recently Viewed Topics
© 2015