UTILITARIANISM

Jeremy Bentham (1748-1832)
In his writings, Bentham suggested that the field of jurisprudence encompasses two types of study; expository jurisprudence (analysis of law as it is) and censorial jurisprudence (the science of legislation). 
Bentham published two books entitled FRAGMENT ON GOVERNMENT where he propounded the theory of utilitarianism and INTRODUCTION TO MORALS AND LEGISLATION where he fully expounded the theory. 

Bentham based his theory of the principle of utility on the premise that men are self-interested and always act to gain pleasure and avoid pain. According to him, all institutions devised by men are supposed to promote happiness and avoid pain.
Bentham was an egalitarian; he recognized the individual as the most important unit of society. However, Bentham recognized that there would be instances where the interests of the individual would conflict with that of the society. In such instances, he contended that some limitations must be placed on the individual's freedom to pursue his own happiness. He explained that since the individual's happiness can only be guaranteed if the general happiness of society is increased, the curtailment of the individual's freedom becomes necessary. Thus, the ultimate end of every legislation must be ''the greatest happiness of the greatest number''. 
Consequent to Bentham's expositions is what is known as the felicific or hedonistic calculus which is an algorithm formulated by Bentham for calculating the degree or amount of pleasure that a specific action is likely to cause. He believed the moral rightness or wrongness of an action to be a function of the amount of pleasure or pain that it produced. The felicific calculus could, in principle at least, determine the moral status of any considered act. 
Bentham believed that since there are different individuals, the legislature must extrapolate the law from the pleasure-pain principle and come up with the law that gives the greatest number, that is, some commensuration between pain and pleasure. This he termed as legislators mean which is essentially a wrought derivation to the effect that if the legislature makes a law, the pain of infraction should be more so that it is appropriately balanced against pleasure. Take rape for example, the severity of punishment of the pain of rape should outweigh the pleasure of the rapist. In sum, there should be sufficient pain attached to infraction of the rules in order to deter prospective wrong-doers. Our courts therefore have a duty of quantifying the pain suffered by the victim (or by society) in order to assess damages or punishment. Therefore, there must be a commensuration between the injury and the compensation or punishment. 
Ultimately, Bentham believed that eventually the evils of society would be eradicated and the total happiness of society secured. Also, he thought that once the equality of opportunity for all had been attained, the law would withdraw and leave society to be governed by individual enterprise and free competition. 


Rudolf Von Jhering (1818-1892)
For Jhering, laws are merely instruments for serving the needs of society and their purpose is purely for the promotion and protection of the interests of society. This purpose should always guide juridical thought and action. 
Although Jhering built his theory of purpose (jurisprudence of interests) upon the works of Bentham, he rejected Bentham's a priori theories and individualistic approach to jurisprudence. Focusing on the practical aspect of law while rejecting the bare academic analysis of law, he saw society as a machine and man merely a part of the machine. 
Just like Bentham, Jhering opined that the purpose of society is to fulfill human wants which the individual can't satisfy alone. He thinks that man's wants are basically the pursuit of pleasure and the avoidance of pain. He divides these wants into three categories: i. extra-legal (those fulfilled by nature alone) ii. Mixed-legal (those fulfilled by both nature and law) iii. Pure-legal (artificial wants peculiar to man in society).
Just like Bentham, Jhering recognizes the conflict of interests in society but contends that they will always exist. He studied the society to see how these conflicting interests were controlled and managed and found that four motives influence men and make it possible for them to co-exist in society. These motives are desire for reward, fear of coercion, feelings of duty and feelings of love. The first two he described as 'egoistic' and the other two he described as 'altruistic'. In a figure of speech, he describes the four motives as levers in the social machine. Moreover, he identified different instruments in society e.g. religion, morality etc. for influencing human conduct and persuading people to live together. Each of these instruments plays on different levers of social motion.
According to Jhering, law acts on the motive of fear, that is, on the egoistic motive of fear of coercion and he stressed the sanction element backed by the power of the state. In this regard, he is in full agreement with Austin and Kelsen. 
As regards the conflict between the individual and society, he explained that although the individual is the basis of all legal rules, he must nevertheless be seen as a member of a higher legal unit standing above him, such as the state. By this, he puts society above the individual since the law must secure the good of society as a whole.

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