utilitarianism

Jeremy Bentham argued that nature has placed mankind under two masters, pain and pleasure, and that the test of a good law is its utility in promoting the greatest happiness of the greatest number. He used this principle to criticise the common law and to argue for codification and reform of punishment, prisons and procedure. John Stuart Mill refined it by distinguishing higher and lower pleasures and by his “harm principle”.

The main criticism is that a pure utility calculation can justify sacrificing minorities or individual rights for the majority's benefit. Constitutional rights, enforced by courts, are a check against this.

Example

Bentham's utilitarianism supports punishment only to the extent that it prevents more pain than it causes.

See also

legal positivism · theories of punishment · justice

Read more in the study notes

• Theories of human rights (Human Rights Law and Practice)
• Theories of justice and the Indian constitutional idea of justice (Judicial and Legislative Process)
• Theories of punishment (Jurisprudence)
• Bentham and Austin: utility, command and the birth of analytical positivism (Legal Theory)
• The sociological school: Montesquieu, Ihering, Ehrlich and Duguit (Legal Theory)
• Schools of criminology and their penal policies (Penology and Victimology)