Interpretation of Statutes

BENTHAM'S THEORY OF LEGISLATION:

The Theory of Legislation is a masterpiece in the field of law. Bentham's objective is to educate the
legislators and to provide them with a sound philosophy broad-based on the theory of
Utilitarianism. Legislation is a science and an art. It is a science as it contains certain basic
principles to do good to the community and it is an art when it provides for the various means to
achieve the good. The objective of the legislator must be to do public good. He may base his
reasons on general utility. Utility is the basis of Bentham's theory. The principles of utility form the
basis of his reasoning, on an analysis of the principles of utility, we find that all our ideas,
judgments and determinations spring from certain motives: pleasure and pain. It is the duty of the
moralists and the legislators to make a great study of these two concepts pleasure and pain. Utility
is an abstract term. It expresses some propensity or tendency of a thing to prevent some evil or to
do some good. Evil is pain or the cause of pain. Good is pleasure or the cause of pleasure. Hence,
anything which conforms to this utility brings happiness to the individual. The legislator must have
the objective to augment the total sum of the happiness of the individuals that form the community.
Utility is the first principle-the first link in the chain. The legislators reasoning for making a
particular law must be based on this principle. Utility has a commendable logic behind it. In
making law, the legislator must calculate or compare the pleasure or the pain that it brings about.
Here pleasure & pain are used in the ordinary meaning i.e., what everybody feels when put in a
situation it is the experience of the peasant and the prince, the unlearned and the philosopher.
Utility as a principle has its essence in the virtue and the vice. Virtue is good as it brings pleasures;
vice is bad as it brings evil. Moral good is good as it brings pleasure to the man; Moral evil is bad
as it brings pain to the man. The legislator who believes in the theory of utility, finds, in the process
of law-making, a number of these virtues and evils, that the law books do not possess.

PRINCIPALS OF LEGISLATURE:

Bentham proposed law may bring about. His objective must be to bring more virtue; He must also
distinguish pretended virtues and evils from the real virtues and evils. These are the facets of the
concept of utility and based on this exposition Bentham develops his philosophy of utilitarianism.
His works 'the theory of legislation' and 'Introduction to the principles of Morals and Legislation’
form a manual of instructions to a legislator. Knowledge of these makes the legislator appreciate
the moral and legal philosophy. His objective must be to bring more virtue; He must also
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distinguish pretended virtues and evils from the real virtues and evils. These are the facets of the
concept of utility and based on this exposition Bentham develops his philosophy of utilitarianism.
His works 'the theory of legislation' and 'Introduction to the principles of Morals and Legislation’
form a manual of instructions to a legislator. Knowledge of these makes the legislator appreciate
the moral and legal philosophies of Bentham and also to get an insight into the sociology of law.

Objections to Utility

a) Bentham is rightly called the Patriarch & the chief exponent of the theory of utilitarianism.
His principle of utility, based on pleasure & pain-is applied by him, to explain the basis of political
obligations; it is the end objective of Govt. and legislation. Man obeys the law and lives in a
politically organized society for it is the best way of securing his interests and happiness. In fact,
political life is based on the principles of utility. Hence, Laws, the measures of the Government,
political institutions and rights are to be judged and justified according to the principles of utility.
The greatest happiness of the greatest number is the basic of utility.
b) Though this theory is sound and practicable some objections have been raised.
I) Some trifling objections may be raised based on verbal difficulties. These are not
substantial, but still require careful attention.
II) The language used to explain the result of utility is virtue. But this is objected to on the
ground that Virtue' is generally understood as opposed to utility. According to Bentham this is not
correct. Virtue is the sacrifice of a less interest to a greater, from a doubtful to a certain definite
interest. Hence, the place of virtue is secured. If a person calculates badly, and arrives at a wrong
result, the mistake is not that of arithmetic but the man. This is true in respect of virtue.
III) It is commented that the principle of utility is only a revival of Epicureanism (Philosophy of
Epicure, Greek philosopher: who thought pleasure was the chief good). This is not true, according
to Bentham. The epicurean doctrine had damaged the basis of morals & moral values. It was a
dangerous concept, and, has nothing to do with utility.
IV) What is utility is judged by each person and hence, it is objected that it loses its force.
V) The next objection is put on the basis of the religious principle; the will of God; it is
universal, sovereign and decides the good and evil. Hence, it is the only rule. Bentham answers this
by saying that the will of God is expressed by man by presuming what it would be. That is why
revelations or gospels are different. Hence, this objection is not correct.

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VI) The next objection is that when utility y is to be followed in politics, there would be a
difference. The aim of good morals is different from the aim of politics. Bentham answers saying
that the ultimate aim of both is securing happiness.
VII) The next objection is that which is useful may not be just and honest. This is not so. The
collective idea is important.
VIII) Lastly it may promote opportunism in people because under a contract a person can commit
a breach for his own advantage. This is also not true Bentham says. It is the utility of contract
which is the force to it, riot the agreement itself.

PLEASURE AND PAIN

Bentham in enunciating his concept of utility speaks to the tendency of a thing to secure some good
and to shield from evil. Evil means pain; Good means pleasure. Hence, pleasure and pain become
the starting point the first link in the chain-to define utility. A comparative estimate or calculus of
pains or pleasures should be made in every process of providing orderly reasoning.

Explaining the status of these two: pleasure & pain, he states 'Nature has placed mankind under the
governance of two sovereign masters, pleasure & pain'. Bentham's theory is clear. We owe all our
ideas, and, we refer all our decisions to the two sovereign masters, namely, pleasure & pain. To
seek pleasure, and, to avoid pain is the sole aim of mankind. Every moralist and every legislator
must study mainly this naked truth of life - an unmistaken reality of life. Every aspect of utility is
subject to these two motives of human being i.e., seeking pleasure and shunning pain. The concept
of sanction (legal force) is also based on pleasures and pains covered under the heads: Physical,
Moral Political & Religious. These four sanctions have different impacts on individuals. The
measure of pleasure & pain is ably done by Bentham by referring to the value of pleasure. He finds
four circumstances as to:

i) its intensity
ii) its duration
iii) its certainty
iv) its proximity.

He further elaborates this with reference to its productiveness, its purity and its
extent. In this process, legislation is like arithmetic. Income is the 'good' that law brings, pain is the
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outgo. This is an analytical method. This theory of moral calculation is done in making the law, to
provide more good and less pain. Hence, Bentham is correct when he claims that all persons are
subject to this concept of pleasure and pain.

The Ascetic Principle

Ascetic means 'one who practices'. It refers to the monks who practice penitence & devotions. They
desire to reduce pleasures and to suffer pain. This Ascetic principle is opposed to the principle of
utility. It is followed mainly by philosophers and devotees. The philosophers raise above humanity,
and despise vulgar or sexual pleasures. In return, they get reputation and glory in society. Bentham
says that these are 'foolish people' tormented by vain terrors. According to them, they feel that they
should punish themselves so that they may not be born again. Their objective is to reduce pleasures
to the minimum and to suffer pain. Each pain brings happiness in the other world. These persons
have a horror of pleasure. Everything that gratifies the senses is criminal, odious and therefore to be
abandoned. They approve everything that diminishes enjoyment. They blarne everything that helps
to increase enjoyment. Asceticism has its origin in the concept that attraction of certain pleasure
may lead a person astray and force him to commit pernicious acts. The evil here was more than the
good. Hence, it was prohibited. But, the basis of all good laws and sound morals is also to forbid
such pleasures as would bring bad effects in society. No doubt the ascetics have taken their
principle to the extreme. They have made a frontal attack on utility. Bentham opines that the
ascetics have made a mistake. They have attacked pleasure itself, they have condemned it. They
have made it the object of a general prohibition.

Principle of Sympathy & Antipathy:

The principle of Sympathy and Antipathy is also called the arbitrary principle. According to this,
certain actions are approved or disapproved, without giving any reason for the decision, except the
decision itself. An action is good or bad according to the whims and fancies of an individual. This
is not a principle of reasoning; it is the negation of it. A despot belongs to this group. He speaks
sovereignty; he admits no appeal. He does not think that he should justify his decision with
reference to the good of the society. I feel that it is so. 'It is my intimate conviction' etc. Bentham
quotes a despot telling 'God speaks by my mouth. Come and receive the Oracle of God'. The
despot's opinion triumphs, it is supreme. What results from this is anarchy. This is the essence of

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arbitrary principle. Here, the despot is unmindful of the consequences. He furnishes no reasons.
Hence, this cannot be made the basis of and system of reasoning. As such, this is to be discarded.
Bentham says the principle of Sympathy neither admits nor rejects the theory of utility, but floats
between the good and the evil. That which is not under me is against me' is its motto.

Causes of Antipathy

Bentham observes that Antipathy has its tremendous influence on morals and legislation.

Factors that give birth to Antipathy:

i) Repugnance of sense: something which the senses do not agree, to accept. Animals are
killed as they are brought of as ugly.
ii) Wounded Pride: When a person does not accept but shows disregard there is wounded
pride. Contempt grows.
iii) Power Controlled: We find our power is limited and bounded. This is a secret pain.
iv) Confidence in the future weakened or destroyed: Falsehood makes us doubt and we do
not rely upon such a person.
v) The desire of unanimity: Unanimity is very pleasing to us. There would be mutual
confidence and increase of pleasure.
vi) Envy: When certain advantages are given to some, others envy. With envy person may
become an ascetic. Envy leads to reducing the pleasures.

Influence on Government

It is the principle of sympathy and antipathy that has exercised the greatest influence on
Governments.

i) A Government which has wealth and commerce looks to the society as a workshop. Men
are productive machines. It cares not for the torment of the men. It is sufficient if they become rich.
The Govt. is in different towards evils.
ii) Governments which have power and glory as means to do public good, resort to wars,
conquests, new acquisitions etc. They do not consider that this glory has great misfortune in the
killing of hundreds of persons, and other evils.

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iii) Governments which are administered well, which protect the property and persons, where
people are happy, this is another type.

KINDS OF PLEASURES

The inventory of man's sensations is done with great labour of analysis by Bentham, who puts them
into two:

I) Simple pleasures
II) Simple pains

SIMPLE PLEASURE

a) Pleasure of sense: The pleasure of taste, of smell, of sight, of hearing & of touch. In
addition, the blessing of health, and the pleasure of novelty may be included. Pleasure of novelty is
that which we experience when new objects are applied to our senses.
b) Pleasure of Riches: This is a kind of pleasure derived from possessing certain things. It
will be so lively at the moment of acquisition. It gives great pleasure to possess materialistic things.
c) Pleasure of Address: On attaining perfection in something after having difficulty in
attaining it, say in composing music, one gets pleasure.
d) Pleasure of friendship: Possessing good will of individuals and right to expect services
from them.
e) Pleasure of good Reputation: This is getting esteem & goodwill of the people about us,
the persons with whom they have relations or common interests and as a result of this expecting
their voluntary and gratuitous services.
f) Pleasures of Power: Power which a man has, which makes others follow through hopes or
fears that is by fear of some evil or hope of some good which he can do them.
g) Pleasure of Piety: Piety is quality of being religious. Acquiring or possessing favours of
God either here or there, either in this life or in another.
h) Pleasure of Benevolence: Benevolence is act of kindness. This is what we sense, when we
contemplate the happiness of those who love us. This is the pleasure of social affection or

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sympathy. It also extends towards animals of which we love, the signs of their happiness affect us
agreeably.
i) Pleasure of Malevolence: Malevolence is causing harm. This is the pleasure experienced
by those who do not love us, whether men or animals.
j) Pleasure of Knowledge: This is a mental faculty to acquire new ideas and discover or
invent something. The joy obtained while discovering solution to a difficult problem is priceless.
k) Pleasure of Memory: To remember in a proper order what has happened. It is always
joyful to look into the memories that are created. Pleasure of both good and bad memory can be
recollected.
l) Pleasure of imagination: Arranging in a proper order the desires that we possess. New
ideas in the arts and sciences and all discoveries which interest our curiosity, contribute to the
pleasures of the imaginations.
m) Pleasure of hope: Desiring for the good in ‘future’. Expectation relating to certain future
events which creates pleasure at the present.
n) Pleasure of Association: When an object does not give pleasure in itself but when an
object is connected with some other object, there may come a charm. Thus forming an association
results in pleasure of gaining.
o) Pleasure of pain: That which ends or diminishes pain which is been suffered from quite
long time is itself a source of pleasure.

Complex pleasures: A combination of two or more of the above simple pleasures produces
complex pleasures.

a) Pains of Privation: We desire certain pleasure, but we have more fear of wanting it than
obtaining it. Results may be called as pain of desire or unsatisfied desire. If the hopes to have
something fail then there is pain of disappointment. If we lose possession of something then there is
regret.
b) Pains of sense: There are nine: Hunger and thirst, taste, smell, touch hearing, sight, excess
of cold or heat, diseases, fatigue of mind or body. Disagreeable sensation on these will result in
pain.
c) Pains of mal-address: What one gets in fruitless efforts. Where there is no possibility of
any fruits for the efforts shown.

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d) Pains of enmity: Hatred experienced in respect of others especially when a man feels he is
an object of malevolence to others.
e) Pains of Bad Reputation: What a man feels when exposed to a situation considered bad. It
includes pain of dishonour or popular sanctions.
f) Pains of Piety: Fear of offending God/ a supreme being. They are also called as religious or
superstitious fears.
g) Pains of' Benevolence: When others are suffering, we experience some pain. It makes us
weep at the miseries of others as well as at our own. They may also be called as pains of sympathy,
pains of the social affections.
h) Pains of Malevolence: When a person whom we hate gets happiness or becomes
prosperous, we get this pain. They may also be called as pains of antipathy, pains of anti-social
affections.
i) Pains of memory: When a person remembers the bad memory or when he is unable to
remember the important things due to lack of memory there is pain.
j) Pains of imagination: When an imagination does not turn out to be a reality then we get
this pain. It can also be called as pains of disappointment.
k) Pains of fear: when a person fears about something there is pain undergone by him about
that subject-matter which he has fear. Basis and use of classification: This division, Bentham
has done after much labour, and its utility is great. The entire system of Morals & legislation can be
easily explained away. Similarly, offences or 'criminality or evil of certain action/or punishments-
may be explained.

According to Bentham, this theory of pains and pleasures is the sole foundation of all knowledge
on the subject of legislation.

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SENSIBILITY

Bentham's extension of the principle of pleasure and pain takes us to his concept of sensibility. AH
causes of pleasure do not give the same pleasure to all. Similarly all causes of pain will not produce
the same pain-to all. The difference is in its sensibility. It is in its degree or in kind. The
circumstances that influence the sensibility are spoken of as primary or secondary. The primary
circumstances are those that by themselves would influence sensibility of a person under a given
cause, thing or situation. The secondary circumstances would not by themselves influence the
sensibility of a person under a given cause, thing or situation. They would, however, jointly with
the primary circumstances influence the sensibility of a person. The differences in sensibility
depend on certain circumstances which influence the moral or physical conditions of individuals. In
matters of legislation, we cannot proceed with any degree of assurance without considering all
circumstances which tend to influence sensibility. The following are the primary circumstances
which influence the sensibility of an individual.

1. Natural constitution or temperament of the individual,

2. Health,
3. Strength,
4. Bodily imperfection,
5. The degree of knowledge,
6. Strength of intellectual powers,
7. Firmness of mind,
8. Perseverance,
9. The bent of inclinations,
10. Notions of Honour,
11. Notions of Religion,
12. Sentiments of sympathy and Antipathy,

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There are certain other circumstances which have got an outward appearance clearly noticeable.
They are called Secondary circumstances, namely:- 1) Sex 2) Age 3) Rank 4) Education 5)
Habitual occupations 6) Climate 7) Race 8) Government and 9) Religious Profession. These
Secondary circumstances can easily be taken into consideration not only by the legislator but
also by the judge who administers justice.

OFFENCES

After making an analysis of the evils, Bentham’s states that there are certain acts which cause
more of evil than of good. Legislators have prohibited such acts and have called them as
'Offences'. To get these offences respected, punishments have been prescribed universally. This
is well established. An act should not be declared as a crime basing on prejudices which vary
according to time, place, custom and opinions. Trifling acts' may become serious crimes, in the
absence of a philosophy; hence, Bentham says 'the Principle of Utility should be made the
foundation'. Acts or omissions are to be declared as offences basing the reason on utility. He
asserts that all well-known offences are reasoned on the basis of Utility, This should be weighed
by .the legislator by weighing the evil and the good, in all its aspects.
i) Passion of hatred
If more evil results from a particular act (say theft, robbery etc) than the good, that act should be
declared as an offence. The reason is more evil will result if that act is not declared as an offence.
Calculation of the pain or the pleasure, is to, Bentham, as simple as arithmetic. If A assaults B
intentionally, B suffers a pain, but A gets the pleasure of assaulting - it appeals to his passion.
But, to B-it offends his honour & person. The pleasure of A in assaulting is temporary, but, soon
a fear of hatred by B sets in the mind of A. Fear of every kind surrounds him. Suppose A has cut
off a leg of B intentionally, the fear of. hatred of B doing something will be intensive.
ii) Security affected: Ravishment
This is the effect of the offence. A spirit of revenge may set in with serious consequences.
iii) Motive of Cupidity
The motive of a man becoming rich by robbing the treasury, of stealing a piece of loaf to save
from starvation, the evils that result are of the second order which Bentham has defined.
Similarly, a person who commits rape. He may satisfy his appetite but the pain it brings on the
woman and on others, is disproportionate. Hence, rape is declared as an offence.
The legislator must measure the good and the evil with a kind of moral arithmetical calculation.
He must weigh the evils, their duration and their result. He must measure

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them properly before erecting the act as an offence. He must also weigh the derivative evils that
may result from the act. Thus, Bentham lays down a solid foundation to erect an act as an
offence basing his ordered reasons on his concept of pleasure and pain.

MORALS AND LEGISLATION

According to Bentham "Legislation has the same centre, but it has not the same circumference."
Morality is an art. It directs the acting of men to produce the greatest possible sum of good. The
objective of the Legislature must be the same. Though these two differ in their extent, still the
end is the same. All actions, public or private come within Morality and individuals are guided
by it throughout their lives. However, legislation cannot do this. The reasons are :
i) Legislation can have no direct influence over individuals, except by punishment.
ii) There is the possibility of punishing the innocent, in the anxiety of punishing the
culprits. Hence, Bentham vertically divides the area of legislation and suggests the legislators not
to interfere with the personal interests of an individual. The reason is the person himself is the
best judge and he will correct himself when he finds he is in the wrong, e.g. Temperance. The
legislator must look to those areas when a person's actions create evil on others & to legislate
there.

SANCTION

Bentham's theory of pleasure or pains explains away the sanction of law. He says, The pleasure
or pain which is attached to a law, is the sanction. The laws of one State, have no force in another
State as they have no sanction there. Pleasures and pains are of four classes. 1) Physical 2)
Moral 3) Political 4) Religious.

1) Physical or Natural sanctions: These are in the ordinary course of nature. There is human
intervention. A man's house is on fire by accident. There is the pain of natural sanction.
2) Moral sanctions: These are with reference the actions of our fellow men, friends etc. in
society. Sanction of honour.
3) Political sanction: The pleasure and pain which result from the actions of the Magistrate in
punishing according to law. This is the legal sanction.
4) Religious: The pleasure or pain which results from threats of religions. These are religious
sanctions. e.g: Legal sanction. A persons house is pulled down by orders of a Magistrate. All
these four sanctions have their own impacts. The natural sanction is the one which acts always.
The popular & the religious sanctions are highly variable and change in accordance with utility.
The legal sanction acts on all men with equal force: it is clear and specific. But it requires proof.
Hence the crafty can escape. Hence, Bentham suggests using all the three sanctions:
Moral, political & religious. They are like magnets-their power is doubled by putting the
corresponding poles together.

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