THE ARBITRARY PRINCIPLE OR
THE PRINCIPLE OF SYMPATHY AND ANTIPATHY
According to this Principle, 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, not because it is
conformable or the contrary, to the interests of those whom it
affects, but because it pleases or displeases him who judges.
He merely pronounces himself sovereign and admits no appeal. He
does not feel obliged to justify his opinion by any consideration
relative to the good of society, liberty, justice, power, commerce
religion, objects respectable in themselves, and which ought to enter
into the view of the legislator; but which too often lead him astray,
because he regards them as ends, not as means. Therefore, a
wealthy government looks upon society as a workshop, regards men
only as productive machines and does not bother as to how much it
torments the people, though it makes them rich. The government
does not feel concerned about a multitude of evils which it might
easily cure. It expects to produce maximum means of enjoyment, but
puts obstacles in the way of enjoying. Some governments consider
power and glory as the sole means of public good.
Sometimes the principle of sympathy and antipathy coincide,
the principle of utility. Man loves the thing which gives him benefit
and hates the thing which hurts him. Therefore, from one edge of the
world to the another edge, acts beneficent or hurtful are regarded
with the same sentiments of approbation of dislike. Morality and
jurisprudence led by this kind of instinct, have often reached the great
end of utility without having a clear idea of it.
The sole basis of action always surely good is the consideration
of utility. Therefore, sympathy and antipathy must be subject to it.
But the principle of utility is its own regulator; admits none.
The ascetic principle attacks utility in front. The principle of
sympathy neither rejects it nor admits it; it pays no attention to it; it
floats at hazard between good and evil. The ascetic principle is so
unreasonable, that its most senseless followers have never
attempted to cart it out. The principle of sympathy and antipathy
does not prevent its partisans from having recourse to the principle of
utility. This last alone neither asks nor admits any exception. Qui
non sub me contra me; that which is not under me is against me;
such is its mono. According to this principle, to legislate is an affair of
observation and calculation; according to the Ascetics, it s an affair
of fanaticism; according to the principle of sympathy and antipathy, it
is a matter of humour, of imagination, of taste.
The principle of utility has penetrated from time to time into
laws, from its occasional alliance with the principle of sympathy
and antipathy. The principle of utility has not been properly
followed by any legislator. The ascetic principle, though embraced
with warmth by its partisans in their private conduct, has never had
much direct influence upon the operations of government.
John Stuart Mill agreed with Betham that “actions are right in
proportions as they tend to promote happiness; wrong as they tend
to produce the reverse of happiness”. He attempted on the other
hand, to defend utilitarianism against the reproach of coarse
hedonism by pointing out that human beings have faculties more
elevated than the animal appetites and do not regard anything as
happiness which does not include their gratification. The conclusion
at which he arrived was that the pleasures of the intellect (such as the
enjoyment of art, poetry, literature, and music), the pleasures of the
feelings and imagination, as well as those of the moral sentiments,
must be assigned a much higher value than those of mere sanctions.
He also insisted that the utilitarian doctrine of happiness was altruistic
rather than egoistic, since its ideal was the happiness of all
concerned.” Bentham had spoken of justice in a deprecatory fashion
and had subordinated it completely to the dictates of utility.
LAW AND EXPECTATION
The idea of expectation plays a vital role in theory. Bentham
has defined security as the paramount and of law in terms of
expectation. He says that without law, there is o security and without
security the values of subsistence, abundance, and equality cannot at
all the pursued through the law. Security itself consist in the
maintenance of expectations. Accordingly, the goodness of the laws
depends upon their conformity to general expectation. The legislator
ought to be well acquainted with the progress of this expectation, in
order to act in concert with it. This should be the end.
The question comes as to how to achieve this end? Speaking
ideally laws should be “anterior to expectations.” Because some
expectations are anterior to law, the legislator ought to simply follow
them. Bentham acknowledges that laws also create new
expectations. While correlating law to expectation Bentham lays
down some conditions of a good law which strikingly anticipate the
requirements of what Loan Fuller enunciated as the “inner morality of
law”. Bentham has insisted that the laws should be well known,
consistent, certain in execution, simple and literally enforced.
Therefore, the paramount requirement is that laws ought to be judged
by the principle of utility. According to Bentham good law has the
function not merely of ministering to expectations but also the
function of exercising control over expectation. Bentham insists that
the law should be know, consistent, methodical, certain of execution
and loyal in its interpretation to the expressed intention or will of the
legislator.
Bentham’s other prescriptions explicitly relate to legal system
as a whole.
Every man has his limited measure of under standing. The
more complex the law is, the more it is above the faculties of a great
number. The law ought to be a manual of instruction for each
individual; and everyone should be enabled to consult it in doubtful
cases, without the aid of an interpreter.
It is relevant to stress that Bentham’s further counsel that laws
must be interpreted literally assumes in the first place the existence of
laws which are well conceived in the light of the above quoted
prescription. Bentham stresses that when laws are knowable, judicial
interpretation should have no other role than strict interpretation,
legislative one. Bentham’s denunciation of activist interpretation by
judges has to be contextualized; it applies to only those laws in
particulars, and those legal systems as a only those laws in
particular, and those legal systems as a whole where people are
enables to understand the law even without an aid of an interpreter
on all necessary occasion.” In such contexts, Bentham is right to
characterize an activist judge as a charlatan who astonishes the
spectators by making sweet and bitter run from the same cup.”
SUMMARY
Bentham’s theory of utility is an amazing achievement. It has
established the superiority of legislation over natural law, custom and
the common law as a form of political action in the contemporary or
modern state. The understanding of law by Bentham was his great
work. The theory has tires to emancipate legislation from the
quicksand’s of prejudice and instinct. He has tires to put the theory
on scientific basis through the principle of utility, basing it on
“sensations and experience.” The theory has identified the basic
principles of civil and penal laws with clarity. The theory has
converted the law in such a way, no other work did.
He who is so lighted in his views, or a passionate in his ideas of
reform as to desire a revolt or bring about in established system in
general contempt, is unworthy to be heard at the tribunal of an
enlightened public.
The good which the law produces is universal; it is enjoyed
everyday and every moment.
THE PRINCIPLE OF SYMPATHY AND ANTIPATHY
According to this Principle, 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, not because it is
conformable or the contrary, to the interests of those whom it
affects, but because it pleases or displeases him who judges.
He merely pronounces himself sovereign and admits no appeal. He
does not feel obliged to justify his opinion by any consideration
relative to the good of society, liberty, justice, power, commerce
religion, objects respectable in themselves, and which ought to enter
into the view of the legislator; but which too often lead him astray,
because he regards them as ends, not as means. Therefore, a
wealthy government looks upon society as a workshop, regards men
only as productive machines and does not bother as to how much it
torments the people, though it makes them rich. The government
does not feel concerned about a multitude of evils which it might
easily cure. It expects to produce maximum means of enjoyment, but
puts obstacles in the way of enjoying. Some governments consider
power and glory as the sole means of public good.
Sometimes the principle of sympathy and antipathy coincide,
the principle of utility. Man loves the thing which gives him benefit
and hates the thing which hurts him. Therefore, from one edge of the
world to the another edge, acts beneficent or hurtful are regarded
with the same sentiments of approbation of dislike. Morality and
jurisprudence led by this kind of instinct, have often reached the great
end of utility without having a clear idea of it.
The sole basis of action always surely good is the consideration
of utility. Therefore, sympathy and antipathy must be subject to it.
But the principle of utility is its own regulator; admits none.
The ascetic principle attacks utility in front. The principle of
sympathy neither rejects it nor admits it; it pays no attention to it; it
floats at hazard between good and evil. The ascetic principle is so
unreasonable, that its most senseless followers have never
attempted to cart it out. The principle of sympathy and antipathy
does not prevent its partisans from having recourse to the principle of
utility. This last alone neither asks nor admits any exception. Qui
non sub me contra me; that which is not under me is against me;
such is its mono. According to this principle, to legislate is an affair of
observation and calculation; according to the Ascetics, it s an affair
of fanaticism; according to the principle of sympathy and antipathy, it
is a matter of humour, of imagination, of taste.
The principle of utility has penetrated from time to time into
laws, from its occasional alliance with the principle of sympathy
and antipathy. The principle of utility has not been properly
followed by any legislator. The ascetic principle, though embraced
with warmth by its partisans in their private conduct, has never had
much direct influence upon the operations of government.
John Stuart Mill agreed with Betham that “actions are right in
proportions as they tend to promote happiness; wrong as they tend
to produce the reverse of happiness”. He attempted on the other
hand, to defend utilitarianism against the reproach of coarse
hedonism by pointing out that human beings have faculties more
elevated than the animal appetites and do not regard anything as
happiness which does not include their gratification. The conclusion
at which he arrived was that the pleasures of the intellect (such as the
enjoyment of art, poetry, literature, and music), the pleasures of the
feelings and imagination, as well as those of the moral sentiments,
must be assigned a much higher value than those of mere sanctions.
He also insisted that the utilitarian doctrine of happiness was altruistic
rather than egoistic, since its ideal was the happiness of all
concerned.” Bentham had spoken of justice in a deprecatory fashion
and had subordinated it completely to the dictates of utility.
LAW AND EXPECTATION
The idea of expectation plays a vital role in theory. Bentham
has defined security as the paramount and of law in terms of
expectation. He says that without law, there is o security and without
security the values of subsistence, abundance, and equality cannot at
all the pursued through the law. Security itself consist in the
maintenance of expectations. Accordingly, the goodness of the laws
depends upon their conformity to general expectation. The legislator
ought to be well acquainted with the progress of this expectation, in
order to act in concert with it. This should be the end.
The question comes as to how to achieve this end? Speaking
ideally laws should be “anterior to expectations.” Because some
expectations are anterior to law, the legislator ought to simply follow
them. Bentham acknowledges that laws also create new
expectations. While correlating law to expectation Bentham lays
down some conditions of a good law which strikingly anticipate the
requirements of what Loan Fuller enunciated as the “inner morality of
law”. Bentham has insisted that the laws should be well known,
consistent, certain in execution, simple and literally enforced.
Therefore, the paramount requirement is that laws ought to be judged
by the principle of utility. According to Bentham good law has the
function not merely of ministering to expectations but also the
function of exercising control over expectation. Bentham insists that
the law should be know, consistent, methodical, certain of execution
and loyal in its interpretation to the expressed intention or will of the
legislator.
Bentham’s other prescriptions explicitly relate to legal system
as a whole.
Every man has his limited measure of under standing. The
more complex the law is, the more it is above the faculties of a great
number. The law ought to be a manual of instruction for each
individual; and everyone should be enabled to consult it in doubtful
cases, without the aid of an interpreter.
It is relevant to stress that Bentham’s further counsel that laws
must be interpreted literally assumes in the first place the existence of
laws which are well conceived in the light of the above quoted
prescription. Bentham stresses that when laws are knowable, judicial
interpretation should have no other role than strict interpretation,
legislative one. Bentham’s denunciation of activist interpretation by
judges has to be contextualized; it applies to only those laws in
particulars, and those legal systems as a only those laws in
particular, and those legal systems as a whole where people are
enables to understand the law even without an aid of an interpreter
on all necessary occasion.” In such contexts, Bentham is right to
characterize an activist judge as a charlatan who astonishes the
spectators by making sweet and bitter run from the same cup.”
SUMMARY
Bentham’s theory of utility is an amazing achievement. It has
established the superiority of legislation over natural law, custom and
the common law as a form of political action in the contemporary or
modern state. The understanding of law by Bentham was his great
work. The theory has tires to emancipate legislation from the
quicksand’s of prejudice and instinct. He has tires to put the theory
on scientific basis through the principle of utility, basing it on
“sensations and experience.” The theory has identified the basic
principles of civil and penal laws with clarity. The theory has
converted the law in such a way, no other work did.
He who is so lighted in his views, or a passionate in his ideas of
reform as to desire a revolt or bring about in established system in
general contempt, is unworthy to be heard at the tribunal of an
enlightened public.
The good which the law produces is universal; it is enjoyed
everyday and every moment.
