A CRITIQUE OF JEREMY BENTHAM’S IDEA OF LAW

Bentham held not only that the good is happiness in general but also that each individual always pursue what he believes to be his own happiness. The business of the legislator, therefore, is the produce harmony between public and private interest. It is to the interest of the public that I should abstain from theft, but it is not my interest except where there is an effective criminal law. Thus, the criminal law is a method of making the interest of the individual coincide with these of the community; that is its justification. Men are to be punished by the criminal law in order to prevent crime, not because we hate the criminal. It is more important that the punishment should be certain than that it should be severe. In Bentham's day, in England, many quite minor offences were subject to the death penalty, with the result that juries often refund to convict because they thought the penalty is excessive. Bentham advocated abolition of the death penalty for all but the mitigated in this respect, finally Bentham says civil law should have four aims; subsistence, abundance, security and equality (Russel, 742).

In the book, A History of political theory the authors Sabine and Thorson gave an indepth analysis of Bentham's theory of law. They opine that the greatest happiness, as Bentham believed, placed in the hands of skillful legislator a practically universal instrument, with it, we can "rear the fabric of felicity by the hands of reason and law" (Sabine and Thorson, 617). This provides the theory of basic human nature, both its valuation and its motivations, which Bentham supposed to be applicable at all times and all places. The legislator needs to know only the special circumstances of time and place that have produced peculiar customs and habits and he can then control behaviour by allocating pains and penalties to produce the must desirable results.

The only limitations upon the method which Bentham recognized were psychological and ethical fixing on the one hand what the law can do and on the others, what it is wisely try to do. Bentham's jurisprudence consisted in the systematic application to all branches of the law, civil and criminal, and to the procedural law and the organisation of the judicial system. In the field of criminal law the principle of utility provided, as Bentham believed, a natural method of arriving at a rational theory of penalties (Sabine and Thorson, 618-619). The technical method starts from the assumption that crime "deserves" punishment, but the concept of desert is essentially indefinable except in terms of existing practices and ideas. The natural method, on the contrary, starts from the principle that punishment is always an evil, since it causes pain, and is justified only in so far as it either prevents a greater future evil or repairs an evil already done. The rule that a law must be judged by the incidence of its effect on human beings, and so far as possible on assignable individuals, was a sound liberal principle and this was part of Bentham's jurisprudence.

In the book The Enduring Questions: Main problems in philosophy, Maduine Rader devoted a section to the principle of morals and legislation. The author focuses on Bentham's utilitarianism and his idea of law. He started with the idea that nature has placed mankind under the governance of two sovereign masters, pain and pleasure (Rader, 567). It further tries to point out what we ought to do, as well as to determine what we shall do. They govern us in all we do, in al we say, in all we think. The principle of utility recognizes the subjection and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reasons and oT