Bentham's principle of utility and the principles adverse to it

1. The starting point: pain and pleasure

The first sentence of the Introduction is the one to quote: “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.” Bentham makes two claims here. The psychological claim is that people in fact act to seek pleasure and avoid pain. The ethical claim is that the rightness of an action depends on its tendency to produce pleasure or prevent pain.

2. The principle of utility

By the principle of utility Bentham means the principle which approves or disapproves of every action according to the tendency it appears to have to augment or diminish the happiness of the party whose interest is in question. If that party is a community, the action is judged by its effect on the happiness of the community, and the interest of the community is nothing but the sum of the interests of the individual members who compose it. Utility means the property in any object by which it tends to produce benefit, advantage, pleasure, good or happiness, or to prevent mischief, pain, evil or unhappiness. The later short form is “the greatest happiness of the greatest number”, which Bentham came to call the greatest happiness principle.

Three features matter for legislation:

• It is a single, external standard. Pleasure and pain are facts that can be observed and, Bentham thought, measured. The legislator does not need to rely on intuition, tradition or natural law.
• Each counts for one. The happiness of every person affected is counted, and no one's counts for more than another's.
• It judges by consequences. An act or a law is good or bad according to its effects, not according to motive, custom or the authority of the person who made it.

3. Utility as the source of legislation

For Bentham the art of legislation is the art of directing the actions of people so as to produce the greatest happiness of the community. The legislator's business is to calculate the pleasures and pains a law will produce and to enact it only if the balance is good. From this follow the rules that run through his work:

• every law is an evil in itself, because it restricts liberty, and is justified only if it prevents a greater evil;
• punishment is itself a pain, and is justified only as far as it promises to exclude some greater evil, so it must not be groundless, inefficacious, unprofitable or needless;
• the ends of civil law are subsistence, abundance, equality and security, with security the chief; and
• laws should be codified, clear and known, so that people can calculate their consequences.

Bentham's demand that law be judged by its effects, rather than by its age or its supposed foundation in nature, was the basis of his attack on Blackstone and the common law, and of the nineteenth-century reform movement in English law. Indian codification in the same century owed much to it: the Penal Code drafted by Macaulay's Law Commission in 1837 and enacted in 1860 was written in a Benthamite spirit.

4. The four sanctions

A sanction is a source of pleasure or pain that gives binding force to a rule of conduct. Bentham identifies four: the physical (pleasures and pains in the ordinary course of nature), the political or legal (those applied by a judge or magistrate under the authority of the State), the moral or popular (those coming from the community's opinion), and the religious (those expected from a superior invisible being). The legislator works mainly through the political sanction, but must take account of the others, because they support or oppose the law.

5. Principles adverse to utility

Bentham says any principle that differs from utility must be wrong, and that such principles are of two kinds: those constantly opposed to it (asceticism) and those sometimes opposed and sometimes not (sympathy and antipathy, the arbitrary principle).

The ascetic principle. Like utility, it judges actions by their tendency to affect happiness, but in the opposite direction: it approves of actions that diminish happiness and condemns those that increase it. Its followers treat pleasure as suspect and self-denial as a virtue. Bentham identifies two classes of ascetics:

• the philosophers (moralists), who reject pleasure out of pride and a hope of honour and reputation, despising the pleasures of the senses as vulgar; and
• the religionists (devotees), who are moved by fear of punishment and hope of reward in a future life, and see pain as pleasing to the deity.

Bentham's objection is that the principle has never been, and cannot be, consistently pursued by any government: if it were, it would turn the earth into a hell. What its followers actually condemn is not pleasure as such but pleasures which, on a fair reckoning, bring more pain; and that is utility, misapplied.

The arbitrary principle, or principle of sympathy and antipathy. It approves or disapproves of actions not because of their effects on happiness but merely because the person judging feels disposed to approve or disapprove of them. The judgment is its own reason. Bentham says that this principle hides behind many names — moral sense, common sense, the law of nature, right reason, the fitness of things — all of which are ways of making one's own feelings into a rule for others. In legislation it shows itself in punishments fixed by the strength of the lawmaker's dislike rather than by the harm done, and in laws against conduct that offends opinion but harms no one.

6. Criticisms

• Measurement. Pleasures and pains of different people cannot really be added and compared on one scale.
• Quality. J.S. Mill argued that pleasures differ in quality, not only quantity (“better to be Socrates dissatisfied than a fool satisfied”), which Bentham's purely quantitative calculus cannot accommodate.
• Minorities. The greatest happiness of the greatest number can justify sacrificing individuals and minorities. This is why constitutions protect fundamental rights that a majority cannot override.
• Psychology. People act from duty, love and principle as well as from pleasure and pain.

Even so, the principle remains the basis of the cost-benefit reasoning legislators and courts use every day, including the proportionality test applied to restrictions on fundamental rights.

How this is examined

For the 10-mark essay: the opening sentence of the Introduction, the definition of utility and of the community's interest, the application to legislation (every law an evil, punishment justified only by greater good, the ends of civil law), the four sanctions, the adverse principles in a paragraph each, and the criticisms. The detail on how pleasures and pains are valued and classified belongs to the next note, and the classification of evils and the line between morals and legislation to the one after; bring in a sentence of each.