Ruchika Jain, Student of Law, VIT Law School
Utilitarianism was a philosophical movement in England. It is something that fits right in ethical theory when compared with science and featuring with great expletory power of single law of morality. Some of its roots can be found in Scottish philosopher called Hume’s writing also though he cannot be regarded as a typical exponent of utilitarianism. Utilitarianism is actually a type of naturalism.
According to Bentham, he places mankind under the governance of two sovereign masters, pleasure and pain. He says that good or evil action of man depends on the quantity of pain or pleasure. Utility was defined by Bentham as “that principle which approves or disapproves of every action whatsoever, according to the tendency[i] which it appears to have to[ii] augment or diminish the happiness of the party whose interest is in question ((Morals and legislation p.3)).” According to Bentham, the principle of utility is to promote the happiness of the individual or the happiness of the society. He says that providing pleasure and security to the society member is the duty of the government. He states that it is the greatest happiness of the greatest number of people in the society. Bentham refers all the function of law under these four heads:”to provide subsistence, to produce abundance, to favour equality, to maintain security ((The theory of legislation, ed.C.K.Ogden (London,1931), p.96)).” He places security as the top most priority which every man needs. After this he gives importance to equality, but equality of opportunity and not the equality of condition. A law of a state can just produce rewards and punishment to motivate people so that they can produce subsistence for themselves in the society. He further links between his theory of legislature and the ideas of modern social reform.
JOHN STRAUT MILL
He agreed to the saying of Jeremy Bentham. He further insisted the doctrine of happiness in the concept of utilitarianism which could be egoistic rather than showing unselfish concern for the welfare of others. He says about significance which attributes the concept of justice which he subordinates to state or order authoritative to utility. He defines its origin with two sentiments namely, the impulse of self defence and the feeling of sympathy. The sense of justice, Mill pointed out, encompasses all those moral requirements, which are most essential for the well being of mankind, and which human beings therefore regard as scared and obligatory ((Id., p.73,78)).
PHILOSOPHY OF IHERING
RUDOLF VON IHERING (1818-1892) was a German jurist. In his life period of 72 years, he devoted his time for the development of civil law and the concept of ‘utilitarianism’ and all his ideas were considered to be the most important for the development of the “Jurisprudence of interests” in Germany. His main works were given in his major work, Der Zweek Inrechi it means purpose in law.
RUDOLF VON IHERING completely criticised the idea of JOHN STRAUT MILL. According to J.S.Mill, “That the sole end for which mankind is warranted, individually or collectively, in interfering with liberty of action of any of their number, is self protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant ((The English philosophers from Bacon to Mill, ed .E .A. Burtt p.956)).” He completely criticised the saying of J.S.Mill in his work “Law as a mean to an end”.
According to Jeremy Bentham and John Stuart Mill, an action is right if it is promoting happiness and wrong if it is not promoting happiness, the happiness should not only be limited to the person who has done the action, but it should also affect everyone.
Ihering gave a totally different concept of utilitarianism. To support his point of criticism he gave an example of Chinese government. He says that Chinese government could not prohibit the import of opium into china as it affects the liberty of the buyers. So, as a result what government could do so that their liberty is not affected, it can just see it with folded hands not bothering about other people of the country. According to him, the sole purpose of law is not to promote the individual liberty but it is to bring about the equilibrium between the individual purpose and the social purpose. This is the main goal of law. His basic philosophy attitude was “To make the work of the individual, whether it be of hand or the brain, as useful as possible for others, and thereby indirectly also for himself, to effectuate every force in the service of humanity – this is the problem which every civilized people must solve, and with regard to which it must regulate all its economics ((Id. pp. 68-69)).”
In IHERING’s philosophy, the central notion was the concept of purpose. The basic idea of his concept of purpose deals with right and law that exists and are valid only if it is realized and enforced by the justice. He further says that people and state should struggle for their moral self-assertion. According to him “Purpose is the creator of law”. He thinks that law is only an instrument to serve the society. He says that law is actually what the human sets to achieve his or her desires. Though he accepted that it had its root in history, he rejected that law is nothing but the product of unintended, unconscious purely historical forces. According to him, end or purpose of law: “Law is the sum of the conditions of social life in the widest sense of the term as secured by the power of the state through the means of external compulsion ((Ihering, supra n.2 p.380)).” He arises two elements from his concept:
- Subtractive element
- Formal element
He said that securing of the conditions of social life is the subtractive aim of law.
The formal element is the concept of compulsion. According to him, a legal rule without compulsion “was a fire which does not burn, a light that does not shine ((Id. p. 241)).”
He described international law as merely an incomplete form of law. Ihering said “it is not mere chance but a necessity, deeply rooted in the nature of the law, that all thorough reforms of the mode of procedure and of positive may be tracked back to legislature ((Ihering, supra n.7, pp.9-10)).”