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Jeremy Bentham was a British jurist and moral philosopher who advocated the use “utilitarianism” in the legislative process.  His legal theories were laid out in a 1789 book entitled The Principle of Morals and Legislation.  

Human Nature: Pain and Pleasure

According to Bentham,

Nature has placed mankind under the governance of two sovereign masters: pain and pleasure.  It is for them alone to point out what we ought to do, as well as what we shall do…[T]he standard of right and wrong…are fastened to their throne.  They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm.

We may deny these facts but we can’t escape their reality.

In words a man may pretend to abjure [the pain/pleasure] empire: but in reality he will remain subject to it all the while.

Bentham argues that mankind’s natural “subjection” to pain and pleasure makes his “principle of utility” the ideal system for formulating laws.

The principle of utility recognizes this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law.  Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.

So what exactly is Bentham’s “principle of utility”?  He describes it thus,

By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question.

If you are a legislator, then “the party whose interest is in question” is, of course, the general public.  When making laws, the legislator must attempt measure or “value” the total amount of pain or pleasure his policies may produce.  To do this, Bentham advises lawmakers to consider the pain/pleasure

  • Intensity
  • Duration
  • Certainty/uncertainty, and
  • Proximity/remoteness.

Bentham advises that lawmaking formulas should not be rigidly applied.  Instead, they should kept in mind as the legislator weighs the costs and benefits of any particular policy.

It is not to be expected that this process should be strictly pursued previously to every moral judgment, or every legislative or judicial operation.  It may, however, be always kept in view.