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0 INTRODUCTION

1.1 Origin of Utilitarianism Principle

Jeremy Bentham (1749-1832) was an English jurist, philosopher, and legal and social
reformer. He was a political radical and a leading theorist in Anglo-American philosophy of
law. He is best known as an early advocate of utilitarianism and animal rights who influenced
the development of liberalism. Bentham was one of the most influential utilitarian, partially
through his writings but particularly through his students all around the world. Principle of
Utilitarian emerged as a result of the rejection of the Bourgeoisies to affirm the use of natural
law theory. Natural law at outlived its usefulness was used by the Bourgeoisies to attain
power, so to insist using it would have gone against them, so they outdone it. In so far as the
law is concerned, Bourgeoisies were in a view there were some inherit problem of natural law,
one of the problem of the law from Feudalism to Capitalism, there was a move from status to
contract, so the rulers of contract must be known.

The merchants want certainity of their affairs in contractual affairs and then demand to know
the rules governing contractual relation. Also there was a problem with the Common Law
Doctrine of Precedent, which was slow and uncertain like dog law. People were not aware of
what is done until taken before the court of law. There were no statutes governs the contract
during that time. Laws of Contracts were developed through cases and then the court develops
those rules. Also there was the problem of Procedural Law which was long and costly.
Bourgeoisies wishes the quick determination of cases. A long and costly determination of
cases was against their wishes as it was lowering their income earning process. Furthermore
there was a problem of alienation of property which was still limited to the law and lastly,
Criminal Law was old and antiquate. By 1800 there were more than 100 capital offences; even
pick-pocketing was a capital offence. For these matter, the reformation of legal system was
called and hence the Principle of Utilitarianism.

2.0 MAIN DISCUSSION

2.1 Review of Bentham’s Utilitarian Principle
Jeremy Bentham not only proposed many legal and social reforms, but also expounded a moral
principle on which they should be based. This philosophy, utilitarianism, argued that the right
act or policy was that which would cause "the greatest happiness of the greatest number" often

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referred to as the principle of utility. He wrote that: "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. On the one hand the standard of right
and wrong, on the other the chain of causes and effects, are fastened to their throne. They
govern us in all we do, in all we say, in all we think..."

According to Jeremy Bentham, the greatest happiness of the greatest number is the foundation
of morals and legislation. Here, he tried to show that, legislation is a science and the science
might be Sensorial or Expositorial Jurisprudence; however he was concerned much with
sensorial jurisdiction which explains the law as it IS OUGHT TO BE. He believes that the
principle which was to guide legislature was not natural law but the principle of utility. Also
nature is the first man under the two sovereign natures which is pain and pleasure, these two
points told us what we ought to do and refrain from doing. The goods and evils of an action
should be measured by quantity of pain or pleasure resulting from it i.e. simply means if your
actions promote happiness to others it is good and should be done, but if it promote pain, then
it is bad and should not be done.

2.2 Criticism of Bentham’s Utilitarian Principle

Factors Determining Desires; Jeremy Bentham did not mince words in his description of the
science of legislation and the art of legislation about what legislators should do to enact a good
law or a law that satisfies the greatest happiness of the greatest number. It has been described
as a consumer model of law in that the theory presupposes that the legislator would go
shopping for the best law to enact by holding consultations with stakeholders, evaluating the
pros and cons before coming to the conclusion of adopting one form of law or another. No
matter the nobility of this exercise, it must be noted that it is highly unrealistic.

Silence on Justice; generally, utilitarianism is a moral philosophy which seeks to provide a

theory of justice. However, Bentham reduced utility to issues of happiness, pleasure and
satisfaction of sensual desire without paying any attention to the imperative of justice. Thus,
although he focused much on criminal law, he did not even bother to discuss the principles of
justice which ought to determine the rightness or wrongness of punishment. It is believed that a
discussion of penological theories (as he did) without reference to the justice underlying them

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is foundationally defective. He dismissed the notion of justice as a fantasy which was created
for the purpose of convenience.

Majority versus Minority; it is easy in our socio-economic and political discourse to render
analyses by reference to the majority. For example, democracy is majority rule. In the same
vein, the utilitarian theory propounds the greatest happiness of the greatest number. This is
another way of saying that an action or law is worthwhile if it satisfies the interests of the
majority. But what then happens to the minority? The majoritarian theory is a theory that
satisfies the majority and dissatisfies the minority. In other words, minority interests can be
sacrificed on the altar of majority interests. The utilitarian theory is undermined by its
promotion of the interest of the majority over that of the minority.

2.3 Relevance of Utilitarian Principle in Law Making Process

According to Bentham, man is ruled by pain and pleasure and consciously or unconsciously
seeks pleasure and shuns pains. Therefore a legislator has to ensure the greatest happiness of
the greatest number in each and every law making process. The law makers should enact laws
which are the great useful to the whole society. Here, he was advocating on what can be termed
as JUSTICE LAW. Simply the core principle of Utilitarianism according to Bentham is
GREATEST HAPPINESS TO A GREATEST NUMBER and according to him;

1. It is a Principle of Utility which must guide legislation. In so doing, before enacting

any law, the law makers have to ask themselves as to what is the relevance and use of
such law to the society concerned.

2. Every individual action must conform to the needs of the society; by doing so, the
society can attain the greatest happiness.

3. Anyone who is not conforming with to this standard must face SANCTIONS and
those who conform to the standards must be rewarded.

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 Jeremy Bentham, in his book called A Fragments on Government,1 he tried to discuss and
elaborate about the source of law which to him can be explained in Political and Geographical
contents. In order to find the sources of law, one has to look at a Political Society. He said;

When a number of people are supposed to be in HABIT of paying obedience to a

person or an assembly of person of a known certain description such persons all
together are seen to be in a state of a Political Society.

He adds that, law arises out of this relationship of those who are paying obedience and the
assemblage of those who received such obedience. So the arise out of the political superior
and subordinate is called a Political Law, and this law is a command of a sovereign to the
governed. Without a command of a sovereign to a governed there cannot be law. Sovereign
cannot be commanded as it is a Commanded Commander. The relevance to the law making
process here is that, normally laws are enacted to help the superior to command subordinates.
In the law making process, subordinates cannot do the vice versa. So according to Bentham,
all laws commands or prohibit or permits some form of conduct although sometimes the
imperative character of the law is concealed (hidden). He went on defines law as;

An assemblage of signs declaration of evolution conceived or adopted by a

sovereign in a state concerning the conduct to be observed in a certain case by a
certain person or class of persons who in case of questions are supposed to be
subjects of his power.

The Principle of Utilitarianism is relevant to the law making process in the sense that the laws
shall be enacted only when the legislature considers it. In a law making process, normally, it
starts with idea whereby the bill is drafted on it so that it can be taken to the legislature for
discussion before being passed by the members of the legislature and assented by the
President for it to become a law. Now according to Jeremy Bentham, this process should be
conducted for the interest of the society. Whenever the idea is formulated it should aim at
giving pleasure or pain to a society and for the principle of utility to be maintained, enacted
laws should be capable of imposing sanctions to those who disobey them and reward for those
who obeyed them. In other words, individual actions or inactions should conform to a

1
J. Bentham., (1967), A Fragment on Government, Oxford: Basil Blackwell

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 community need and if not, then sanctions must apply, but if conform; he/she must be
rewarded.

However, the enacted laws have been looking only on one side of the coin, to those who does
not conform with and imposing sanctions or punishments over them. Take for example, if a
law is enacted to prevent theft within the community, if its people are stealing other people’s
properties, it’s obvious they are causing pain to that community and are subject to sanctions or
punishments. Normally it is expected that, its people should conform to the requirement of the
law and by doing so, they will be conforming with the Principle of Utilitarianism of giving
pleasure to the respective community, but the question here is, are they rewarded for
refraining from committing such wrong? The answer is obviously, No. The justification for
that has been that, it is an obligation of everyone to behave in a good manner to his society
and one cannot be rewarded for fulfilling his/her obligation.

3.0 CONCLUSION
The Principle of Utilitarianism was emerged as a result of rejection of Bourgeoisie to affirm
the use of Natural law theory for the number of the inherent problems of Natural law from
Feudalism to Capitalism where there was a move from status to contract and the rules
governing contracts were not known to them. Jeremy Bentham, the English jurist and
philosopher, came up with the principle of utilitarianism which was simply mean ‘greatest
happiness of the greatest number’. What he meant by this principle is that laws enacted should
mean to bring pleasure and pain and whoever acts in accordance with the requirement of the
law, brings pleasure to the community, and should be awarded and whoever acts contrary to
the requirement of the law, brings pain to the community, and should be punished. The
principle of utilitarianism is relevant to the law making process in the sense that, the process
always starts with the idea of bringing the greatest happiness of the greatest number. A bill
cannot be drafted if its intention has no relevance to the community. Also it is relevant as it
specify that, the law making body is the legislature, and after the enactment of the law, it has
been used by the superiors to command subordinates who are obliged to obey those laws.