4) Q. The principle of utility has penetrated from time to time into laws, from its
occasional alliance with the principle of sympathy and antipathy? In the light of this
discuss Bentham’s theory of utility.
Q. “The pain or pleasure, which is attached to a law from what is called its sanction”.
Bentham. Critically examine the four classes of sanctions laid down by Bentham.
Q. What is principle of Utility? What is its use in a penal legislation? Explain by giving
specific examples.
Q. What is the principle of sympathy and antipathy? Explain.
1. INTRODUCTION.
Utilitarianism –a philosophical movement flourished in 19th century in
England and, converts to countries with English flavour. In England
legal positivism was ushered by Thomas Hobbes and then by Jeremy
Bentham. Both of them correlated law with sovereignty and utility.
Bentham destroyed and demolished natural law giving currency to
the concept of utility as the principle of the ‘greatest good of the
greatest number’ - has condemned law of nature as ‘nothing but a
phrase’ and Blockstonian natural rights as ‘non-sense’ and eulogized
the doctrine of utility by rejecting both natural law and subjective
values and replacing these by standards based on human
advantages, pleasures and satisfactions. Bentham was a believer in
laissez-faire. His emphasis on reform and social welfare has made
him one of the creators of the welfare state. Bentham’s analysis of
the law has to be approached through his theory of fictions, which in
modern terminology would be styled semantics.
A law as distinct from law was to him a real entity, and so was an act.
Rights and duties, on the other hand, were fictional.
Basically, Bentham was interested in law of reforms.
The science of legislation is a branch of morals, being the principles
upon which man’s actions are to be directed to the greatest quantity
of possible happiness. The greatest happiness of the greatest
number might, require the greatest misery of the few. This is well
brought out in Bentham’s scheme for prison reform by way of his
celebrated “Panopticon.”
UTILITY-ITS MEANING:-
By the principle of utility is meant that principle which approves
or disapproves of every action whatever, according to the tendency
which it appears to have to augment or diminish the happiness of the
party whose interest is in question. or, what is the same thing in other words, to
promote or to oppose that happiness. I say of every action whatsoever; and therefore not
only of every action of a private individual, but of every measure of government.
Bentham: The Principle of Utility, also known as the “the greatest happiness
principle” (a term which he borrowed from Hume), is the belief that the best course of
action is whatever causes the greatest happiness for the greatest number of people.
Utilitarianism is the belief that what is best for society is whatever creates the greatest
amount of happiness for the greatest number of people. According to Bentham, each and
every person in a society is morally obligated to do that which causes the greatest amount
of happiness for everyone in the society. The principle of utility says that good actions
are the ones that create the most of happiness for the greatest number of people.
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 to
determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and effects, 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 it. In words, a man may pretend to
abjure their empire: but in reality he will remain subject to it all the while. The principle
of utility recognises 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.
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: or, what is
the same thing in other words, to promote or to oppose that happiness. I say of every
action whatsoever; and therefore not only of every action of a private individual, but of
every measure of government.
If that party should be a particular individual, then the principle
of utility is designed to promote his happiness; if it should be the
community, then the principle contemplates the happiness of the
community.
Bentham emphasized that community can have no interests
independent of the interests of the individual. To him community
interest is “the sum of the interest of the several members who
compose it”.
What is the same thing in other words, ‘promote or to oppose
the happiness’. I say of every action, not only of a private individual,
but of every measure of government.
The Benthamite legislator must strive to attain the four
goals:-
i. Subsistence;
ii. Abundance;
iii. Equality; and
iv. security for the citizens.
“All the functions of law” said Benthan, “ may be referred
to these four heads. Of these four ends of legal regulation, security
was to him the principal and paramount one. Security demands
that a man’s person, his honour, his property and his status be
protected, and his expectations, insofar as the law itself had
produced them, be maintained. Liberty must sometimes yield to a
consideration of general security, since laws cannot be made except
at the expense of liberty.
The public good ought to be the object of the legislator and
general utility ought to be the foundation of his reasoning.
To know the true good of the community is what constitute the
science of legislation - finding the means to realize that good.
Nature has placed mankind under the governance of two
sovereign maters, pain and pleasure. It is for them alone to point out
what we ought to do, as well as to determine what we shall do. On
the one hand the standards of right and wrong, on the other the chain
of causes and effects, are fastened to their throne. In words a man
may pretend to abjure their umpire; but in reality he will remain
subject to it all while. The principle of utility recognized 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. Utility is an abstract term. It expresses the property or
tendency of a thing to prevent some evil or to procure some good.
Evil is pain or the cause of pain. Good is pleasure or the cause of
pleasure. That which is confirmable to the augment the total sum of
his happiness of the individual that compose it. By utility is meant
that property in any object, whereby, it tends to produce benefit,
advantage, pleasure, good or happiness or to prevent the happening
of mischief, pain evil or unhappiness to the party whose interest is
considered; if that party be the community in general, the happiness
of the community if a particular individual, then the happiness of that
individual.
SOURCES OF PAIN AND PLEASURE
The business of the government, according to Bentham, was to
promote the happiness of the society by furthering the enjoyment of
pleasure and affording security against pain. “It is the greatest
happiness of the greatest number that is the measure of right and
wrong”. He was convinced that if the individuals composing the
society were happy and contended, the whole body politic would
enjoy happiness and prosperity.
1. Security is the sole end which the legislator ought to have in
view;
2. The four sources from which pleasure and pain are in use to
flow: i. physical, ii. the political, iii. the moral, iv. and the
religious. Pleasures and pains belonging to each of them are
capable of giving a binding force to any law or rule of conduct,
they may all of them be termed sanctions.
3. If it be in the present life, and from the ordinary course of
nature, not purposely modified by the interposition of the will of
any human being, nor by any extraordinary interposition of any
superior invisible being, that the pleasure or the pain takes
place or is expected, it may be said to issue from or to belong
to be physical sanction.
4. If at the hands of a particular person or set of persons in the
community, who under names correspondent to that of judge,
are chosen for the particular purpose of dispensing it, according
to the will of the sovereign or supreme ruling power in the state,
it may be said to issue front the political sanction.
5. Of at the hands of such chance persons in the community, as
the party in question may happen in the course of his life to
have concerns with, according to each man’s spontaneous
disposition, and not according to any settled or concerted rule,
it may be said to issue from the moral or popular sanction.
6. If from the immediate hands of a superior invisible being, either
in the present life, or in future, it may be said to issue from the
religious sanction.
7. Pleasures and pains which may be expected to issue from the
physical, political or moral sanctions, must all of them be
expected to be experienced, if ever, in the present life; those
which can be expected to issue from the religious sanctions
may be expected to be experienced either in the present life or
in a further.
LAW AND SANCTIONS
At the very beginning of the first Chapter of his work of Laws in
General Bentham gives his initial definition of a law. He continues:
“taking this definition for the standard, it matters not whether the
expression of will in question, so as it have put the authority of the
sovereign to back it, were by his immediate conception, or only by a
adaptation.” To this he later adds: “A will or mandate may be said to
belong to a sovereign in the way of conception when it was he
himself who issued it and who first issued it, in the words or other
signs in which it stands expressed: it may be said to be long to him by
adoption when the person from whom it immediately emanates is not
the sovereign himself…..
The mandate which the sovereign in question is supposed to
adopt may be either already issued, or not in the former case it may
be said to be his by susception; in the latter by pre-adoption.
Bentham was aware of the artificial and unrealistic results which
would ensure if the sovereign or sovereign body were said
specifically to produce and promulgate all the “Commands” or
“Orders’ of which the content of the positive law of a state made up.
His exposition therefore includes the idea that the sovereign,
thought directly responsible for originating some of the positive
law, also takes over to adopts orders given by other. In
particular, the notion of “Pre-adoption” in one perhaps rather
unrefined way of expressing the forward-looking or purposive aspect
of legal authority.
For Austin the sanction is a vital part of the idea of law. He
lays great emphasis on the close interrelation of three elements in
law, namely, “command” duty and sanction. These are
inseparably connected terms; each embraces the same idea as the
others.
Bentham’s account admits both punishments and rewards,
which he calls respectively “ coercive motives” and “alluring motives”.
Austin, however, refuses to allow the terms “sanction” to be extended
to cover rewards: “I think that this extension of the term is pregnant
with confusion and perplexity. The difference of opinion between
these two jurists is attributable, not to a difference in interpretation of
the term sanction itself, but rather to the relative lack of concern
shown by Bentham with the element of sanction in his concept of law.
Bentham pays more attention, however, to sanctions while discussing
methods of enforcement of laws at a later stage in his work.
Bentham has made the classification of sanctions. Though
not original indeed it well regarded as highly derivative. But this
analysis of correlation among the different types of sanctions, and
policy guidance arising from this, is highly original, deserving close
guidance arising from this, is highly original, deserving close
examination. The notion of sanction itself poses no analytical
problem to Bentham-such is the power of the principle of utility. The
pain or pleasure” he says, which is attached to a law form what is
called a sanction”. Implicit in this definition is an answer to the
question whether reward can be properly regarded as sanction. Nor
does Bentham, rightly find it compelling, as so many have done, to
distinguish between positive and negative sanctions, the one
corresponding, roughly, to reward and the other to punishment
deprivation etc. Since pleasures and pains may be
distinguished into four classes-physical, moral, political,
religious the sanctions also subdivide themselves accordingly.
Pleasures and pains “which may be expected in the ordinary
course of nature, without human intervention, compose the
natural or physical sanction” the term without human intervention
makes this distinctive definition somewhat problematic as Bentham’s
own example illustrates. If a man’s house s destroyed by fire as a
consequence of his imprudence. Bentham would call it a plain
of natural sanction.” But imprudence is not to be found in the
“ordinary course of nature and does definitely constitute human
intervention. What does then Bentham really mean by natural
sanction? The answer must be that it is a pain or pleasure
arising directly out of an event or an occurrence, regardless of
the factors which might have caused or contributed to the
occurrence or the event. In this sense, the destruction of the house
by fire is painful; it is an event, with its consequences (fire, therefore,
destruction) which arise out of the ordinary course of nature. Human
intervention (fire fighting) any operate as a source of pleasure; but
once again the actual pleasure will be derived not so much from the
act of fire-extinguishment but from the fact that fire is extinguished or
controlled. For Bentham, this too would be an instance of a natural
sanction. Moral sanction are pains and pleasures “expected
from the action of our fellow-men” in terms of their spontaneous
dispositions towards us” whether the latter be of friendship or
hatred” esteem or contempt. Bentham designates this sanction
as popular sanction or the sanction of sympathy. More
commonly, he later simply refers, to popular sanctions. It must not
be assumed carelessly that Bentham necessarily equals morality with
public opinion or honour or sympathy. Popular sanctions may
indeed often be most profoundly immoral from a specific ethical
standpoint e.g. ostracism for not observing segregation
between the whites and blacks or for violating social distance
based on the axis of pollution and purity, between a high-caste
Hindu and an “untouchable.”
Legal sanctions - pleasures and pains which can be
“expected from the action of the magistrate in virtue of the
laws”. Bentham describes them alternately as “political
sanctions,” thus seizing the vital fact that legislative decisions are
also products of political processes- the action of a magistrate need
not consist merely of punishment in the strict sense. It may cover
diverse activities-such as upholding a transaction, declaring a will
valid or void, providing matrimonial relief, etc.
Religious sanctions are distinctive from social or moral
sanctions in the sense that the orientation of the actor is not towards
another social actor as such but towards some supernatural entity,
even when made manifest through a human being. Pleasures and
pains arising from the religious orientation are described by
Bentham as constituting religious sanctions.
Only a small number of laws in a legal system relate
directly to the application of sanctions, especially if the notion of
a sanction is to be defined, with Austin, as a chance a threat of
some evil or harm. Type of legal rule which most nearly
approximates to Austin’s model is a rule of criminal law which
requires that certain physical or material action be annexed to certain
behaviors. Even then, however, the other essential elements in
Austin’s notion of law render his account inadequate as a proper
explanation of both theory and practice. Bentham’s account admits
both punishments and rewards, which he calls respectively “coercive
motives” and “alluring motives”. Austin however, refuses to allow the
term sanction to be extended to cover rewards; “I think that this
extension of the term is pregnant with confusion and perplexity”. The
difference of opinion between these two jurists is attributable, not to a
difference in interpretation of the term, itself, but rather to the relative
lack of concern shown by Bentham with the element of sanction in his
concept of law. Bentham pays more attention, however, to sanctions
when discussing methods of enforcement of laws at a later stage in
his work.
THE ASCETIC PRINCIPLE
The Ascetic Principle is the opposite or contrary to that
which we have just discussed. The follower of this Principle have a
honour of the pleasures. They are of the view that the thing which
gratifies the senses is criminal. They find morality upon privations,
and virtue upon the renouncement of one’s self. Therefore, in other
words, the opposite of the partisans of utility. The followers of this
Principle approve everything which tend to diminish enjoyment
and blame everything which tend to augment the enjoyment.
The followers of this principle can be divided into two classes of why
in other respects have scarce any resemblance, and who even affect
a mutual contempt. The philosophers and the devotees are the
followers of this principles.
The ascetic philosophers, animated by the hope of applause,
have flattered themselves with the idea of seeming to raise above
humanity, by despising vulgar pleasures. They want to be paid in
reputation and glory for all the sacrifices which they seem to make to
the severity of their maxims. The ascetic devotes are foolish people,
torments by vain terrors. They consider man as a degenerate being
who ought to punish himself without ceasing for the crime of being
born, and never to turn off his thoughts from that gulf of eternal
misery which is ready to open beneath his feet. The philosophers
have confined themselves to censuring pleasure; the religious sects
have turned the infliction of plain into duty.
occasional alliance with the principle of sympathy and antipathy? In the light of this
discuss Bentham’s theory of utility.
Q. “The pain or pleasure, which is attached to a law from what is called its sanction”.
Bentham. Critically examine the four classes of sanctions laid down by Bentham.
Q. What is principle of Utility? What is its use in a penal legislation? Explain by giving
specific examples.
Q. What is the principle of sympathy and antipathy? Explain.
1. INTRODUCTION.
Utilitarianism –a philosophical movement flourished in 19th century in
England and, converts to countries with English flavour. In England
legal positivism was ushered by Thomas Hobbes and then by Jeremy
Bentham. Both of them correlated law with sovereignty and utility.
Bentham destroyed and demolished natural law giving currency to
the concept of utility as the principle of the ‘greatest good of the
greatest number’ - has condemned law of nature as ‘nothing but a
phrase’ and Blockstonian natural rights as ‘non-sense’ and eulogized
the doctrine of utility by rejecting both natural law and subjective
values and replacing these by standards based on human
advantages, pleasures and satisfactions. Bentham was a believer in
laissez-faire. His emphasis on reform and social welfare has made
him one of the creators of the welfare state. Bentham’s analysis of
the law has to be approached through his theory of fictions, which in
modern terminology would be styled semantics.
A law as distinct from law was to him a real entity, and so was an act.
Rights and duties, on the other hand, were fictional.
Basically, Bentham was interested in law of reforms.
The science of legislation is a branch of morals, being the principles
upon which man’s actions are to be directed to the greatest quantity
of possible happiness. The greatest happiness of the greatest
number might, require the greatest misery of the few. This is well
brought out in Bentham’s scheme for prison reform by way of his
celebrated “Panopticon.”
UTILITY-ITS MEANING:-
By the principle of utility is meant that principle which approves
or disapproves of every action whatever, according to the tendency
which it appears to have to augment or diminish the happiness of the
party whose interest is in question. or, what is the same thing in other words, to
promote or to oppose that happiness. I say of every action whatsoever; and therefore not
only of every action of a private individual, but of every measure of government.
Bentham: The Principle of Utility, also known as the “the greatest happiness
principle” (a term which he borrowed from Hume), is the belief that the best course of
action is whatever causes the greatest happiness for the greatest number of people.
Utilitarianism is the belief that what is best for society is whatever creates the greatest
amount of happiness for the greatest number of people. According to Bentham, each and
every person in a society is morally obligated to do that which causes the greatest amount
of happiness for everyone in the society. The principle of utility says that good actions
are the ones that create the most of happiness for the greatest number of people.
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 to
determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and effects, 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 it. In words, a man may pretend to
abjure their empire: but in reality he will remain subject to it all the while. The principle
of utility recognises 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.
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: or, what is
the same thing in other words, to promote or to oppose that happiness. I say of every
action whatsoever; and therefore not only of every action of a private individual, but of
every measure of government.
If that party should be a particular individual, then the principle
of utility is designed to promote his happiness; if it should be the
community, then the principle contemplates the happiness of the
community.
Bentham emphasized that community can have no interests
independent of the interests of the individual. To him community
interest is “the sum of the interest of the several members who
compose it”.
What is the same thing in other words, ‘promote or to oppose
the happiness’. I say of every action, not only of a private individual,
but of every measure of government.
The Benthamite legislator must strive to attain the four
goals:-
i. Subsistence;
ii. Abundance;
iii. Equality; and
iv. security for the citizens.
“All the functions of law” said Benthan, “ may be referred
to these four heads. Of these four ends of legal regulation, security
was to him the principal and paramount one. Security demands
that a man’s person, his honour, his property and his status be
protected, and his expectations, insofar as the law itself had
produced them, be maintained. Liberty must sometimes yield to a
consideration of general security, since laws cannot be made except
at the expense of liberty.
The public good ought to be the object of the legislator and
general utility ought to be the foundation of his reasoning.
To know the true good of the community is what constitute the
science of legislation - finding the means to realize that good.
Nature has placed mankind under the governance of two
sovereign maters, pain and pleasure. It is for them alone to point out
what we ought to do, as well as to determine what we shall do. On
the one hand the standards of right and wrong, on the other the chain
of causes and effects, are fastened to their throne. In words a man
may pretend to abjure their umpire; but in reality he will remain
subject to it all while. The principle of utility recognized 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. Utility is an abstract term. It expresses the property or
tendency of a thing to prevent some evil or to procure some good.
Evil is pain or the cause of pain. Good is pleasure or the cause of
pleasure. That which is confirmable to the augment the total sum of
his happiness of the individual that compose it. By utility is meant
that property in any object, whereby, it tends to produce benefit,
advantage, pleasure, good or happiness or to prevent the happening
of mischief, pain evil or unhappiness to the party whose interest is
considered; if that party be the community in general, the happiness
of the community if a particular individual, then the happiness of that
individual.
SOURCES OF PAIN AND PLEASURE
The business of the government, according to Bentham, was to
promote the happiness of the society by furthering the enjoyment of
pleasure and affording security against pain. “It is the greatest
happiness of the greatest number that is the measure of right and
wrong”. He was convinced that if the individuals composing the
society were happy and contended, the whole body politic would
enjoy happiness and prosperity.
1. Security is the sole end which the legislator ought to have in
view;
2. The four sources from which pleasure and pain are in use to
flow: i. physical, ii. the political, iii. the moral, iv. and the
religious. Pleasures and pains belonging to each of them are
capable of giving a binding force to any law or rule of conduct,
they may all of them be termed sanctions.
3. If it be in the present life, and from the ordinary course of
nature, not purposely modified by the interposition of the will of
any human being, nor by any extraordinary interposition of any
superior invisible being, that the pleasure or the pain takes
place or is expected, it may be said to issue from or to belong
to be physical sanction.
4. If at the hands of a particular person or set of persons in the
community, who under names correspondent to that of judge,
are chosen for the particular purpose of dispensing it, according
to the will of the sovereign or supreme ruling power in the state,
it may be said to issue front the political sanction.
5. Of at the hands of such chance persons in the community, as
the party in question may happen in the course of his life to
have concerns with, according to each man’s spontaneous
disposition, and not according to any settled or concerted rule,
it may be said to issue from the moral or popular sanction.
6. If from the immediate hands of a superior invisible being, either
in the present life, or in future, it may be said to issue from the
religious sanction.
7. Pleasures and pains which may be expected to issue from the
physical, political or moral sanctions, must all of them be
expected to be experienced, if ever, in the present life; those
which can be expected to issue from the religious sanctions
may be expected to be experienced either in the present life or
in a further.
LAW AND SANCTIONS
At the very beginning of the first Chapter of his work of Laws in
General Bentham gives his initial definition of a law. He continues:
“taking this definition for the standard, it matters not whether the
expression of will in question, so as it have put the authority of the
sovereign to back it, were by his immediate conception, or only by a
adaptation.” To this he later adds: “A will or mandate may be said to
belong to a sovereign in the way of conception when it was he
himself who issued it and who first issued it, in the words or other
signs in which it stands expressed: it may be said to be long to him by
adoption when the person from whom it immediately emanates is not
the sovereign himself…..
The mandate which the sovereign in question is supposed to
adopt may be either already issued, or not in the former case it may
be said to be his by susception; in the latter by pre-adoption.
Bentham was aware of the artificial and unrealistic results which
would ensure if the sovereign or sovereign body were said
specifically to produce and promulgate all the “Commands” or
“Orders’ of which the content of the positive law of a state made up.
His exposition therefore includes the idea that the sovereign,
thought directly responsible for originating some of the positive
law, also takes over to adopts orders given by other. In
particular, the notion of “Pre-adoption” in one perhaps rather
unrefined way of expressing the forward-looking or purposive aspect
of legal authority.
For Austin the sanction is a vital part of the idea of law. He
lays great emphasis on the close interrelation of three elements in
law, namely, “command” duty and sanction. These are
inseparably connected terms; each embraces the same idea as the
others.
Bentham’s account admits both punishments and rewards,
which he calls respectively “ coercive motives” and “alluring motives”.
Austin, however, refuses to allow the terms “sanction” to be extended
to cover rewards: “I think that this extension of the term is pregnant
with confusion and perplexity. The difference of opinion between
these two jurists is attributable, not to a difference in interpretation of
the term sanction itself, but rather to the relative lack of concern
shown by Bentham with the element of sanction in his concept of law.
Bentham pays more attention, however, to sanctions while discussing
methods of enforcement of laws at a later stage in his work.
Bentham has made the classification of sanctions. Though
not original indeed it well regarded as highly derivative. But this
analysis of correlation among the different types of sanctions, and
policy guidance arising from this, is highly original, deserving close
guidance arising from this, is highly original, deserving close
examination. The notion of sanction itself poses no analytical
problem to Bentham-such is the power of the principle of utility. The
pain or pleasure” he says, which is attached to a law form what is
called a sanction”. Implicit in this definition is an answer to the
question whether reward can be properly regarded as sanction. Nor
does Bentham, rightly find it compelling, as so many have done, to
distinguish between positive and negative sanctions, the one
corresponding, roughly, to reward and the other to punishment
deprivation etc. Since pleasures and pains may be
distinguished into four classes-physical, moral, political,
religious the sanctions also subdivide themselves accordingly.
Pleasures and pains “which may be expected in the ordinary
course of nature, without human intervention, compose the
natural or physical sanction” the term without human intervention
makes this distinctive definition somewhat problematic as Bentham’s
own example illustrates. If a man’s house s destroyed by fire as a
consequence of his imprudence. Bentham would call it a plain
of natural sanction.” But imprudence is not to be found in the
“ordinary course of nature and does definitely constitute human
intervention. What does then Bentham really mean by natural
sanction? The answer must be that it is a pain or pleasure
arising directly out of an event or an occurrence, regardless of
the factors which might have caused or contributed to the
occurrence or the event. In this sense, the destruction of the house
by fire is painful; it is an event, with its consequences (fire, therefore,
destruction) which arise out of the ordinary course of nature. Human
intervention (fire fighting) any operate as a source of pleasure; but
once again the actual pleasure will be derived not so much from the
act of fire-extinguishment but from the fact that fire is extinguished or
controlled. For Bentham, this too would be an instance of a natural
sanction. Moral sanction are pains and pleasures “expected
from the action of our fellow-men” in terms of their spontaneous
dispositions towards us” whether the latter be of friendship or
hatred” esteem or contempt. Bentham designates this sanction
as popular sanction or the sanction of sympathy. More
commonly, he later simply refers, to popular sanctions. It must not
be assumed carelessly that Bentham necessarily equals morality with
public opinion or honour or sympathy. Popular sanctions may
indeed often be most profoundly immoral from a specific ethical
standpoint e.g. ostracism for not observing segregation
between the whites and blacks or for violating social distance
based on the axis of pollution and purity, between a high-caste
Hindu and an “untouchable.”
Legal sanctions - pleasures and pains which can be
“expected from the action of the magistrate in virtue of the
laws”. Bentham describes them alternately as “political
sanctions,” thus seizing the vital fact that legislative decisions are
also products of political processes- the action of a magistrate need
not consist merely of punishment in the strict sense. It may cover
diverse activities-such as upholding a transaction, declaring a will
valid or void, providing matrimonial relief, etc.
Religious sanctions are distinctive from social or moral
sanctions in the sense that the orientation of the actor is not towards
another social actor as such but towards some supernatural entity,
even when made manifest through a human being. Pleasures and
pains arising from the religious orientation are described by
Bentham as constituting religious sanctions.
Only a small number of laws in a legal system relate
directly to the application of sanctions, especially if the notion of
a sanction is to be defined, with Austin, as a chance a threat of
some evil or harm. Type of legal rule which most nearly
approximates to Austin’s model is a rule of criminal law which
requires that certain physical or material action be annexed to certain
behaviors. Even then, however, the other essential elements in
Austin’s notion of law render his account inadequate as a proper
explanation of both theory and practice. Bentham’s account admits
both punishments and rewards, which he calls respectively “coercive
motives” and “alluring motives”. Austin however, refuses to allow the
term sanction to be extended to cover rewards; “I think that this
extension of the term is pregnant with confusion and perplexity”. The
difference of opinion between these two jurists is attributable, not to a
difference in interpretation of the term, itself, but rather to the relative
lack of concern shown by Bentham with the element of sanction in his
concept of law. Bentham pays more attention, however, to sanctions
when discussing methods of enforcement of laws at a later stage in
his work.
THE ASCETIC PRINCIPLE
The Ascetic Principle is the opposite or contrary to that
which we have just discussed. The follower of this Principle have a
honour of the pleasures. They are of the view that the thing which
gratifies the senses is criminal. They find morality upon privations,
and virtue upon the renouncement of one’s self. Therefore, in other
words, the opposite of the partisans of utility. The followers of this
Principle approve everything which tend to diminish enjoyment
and blame everything which tend to augment the enjoyment.
The followers of this principle can be divided into two classes of why
in other respects have scarce any resemblance, and who even affect
a mutual contempt. The philosophers and the devotees are the
followers of this principles.
The ascetic philosophers, animated by the hope of applause,
have flattered themselves with the idea of seeming to raise above
humanity, by despising vulgar pleasures. They want to be paid in
reputation and glory for all the sacrifices which they seem to make to
the severity of their maxims. The ascetic devotes are foolish people,
torments by vain terrors. They consider man as a degenerate being
who ought to punish himself without ceasing for the crime of being
born, and never to turn off his thoughts from that gulf of eternal
misery which is ready to open beneath his feet. The philosophers
have confined themselves to censuring pleasure; the religious sects
have turned the infliction of plain into duty.
