Jeremy Bentham

Pleasures and Pains

Main Features: A principle of utility that subjected to everything to the elements of pleasures and
pain. Every action has the inherent tendency:

a.) To produce benefit, goodness or happiness such as wealth, reputation etc. In the case
pleasure considered as what is good. It approves actions that promotes the happiness of
an individual, and maximizes the pleasures.

Bentham undertakes an elaborate analysis of pleasures and pains. Pleasures are of the
following kinds.
 Pleasures of sense (taste and the satisfaction of hunger and thirst; intoxication; smell;
touch; hearing; seeing; sex; health; gratification of curiosity).
 Pleasures of wealth (the pleasure of acquisition and of possession).
 Pleasures of skill.
 Pleasures of amity (being on good terms with others).
 Pleasures of having a good name.
 Pleasures of power.
 Pleasures of piety.
 Pleasures of benevolence (pleasures resulting from the sympathy or benevolence of
others).
 Pleasures of malevolence or wickedness (pleasures resulting from the view of pain
suffered by others who may become the objects of our malevolence (including the
pleasures of the 'irascible appetite')., i.e sadism.

b.) Prevent Mischief, pain or evil such as fear malevolence. Pain equated as evil as it
disapproves of an action which not only against happiness of an individual but also
minimizes his pain.
• Bentham then proceeds to list the various categories of pain.
  Pains of privation (the pains that result from the thought of not possessing any of the
pleasures).
 Pains of desire (i.e. unfulfilled desire).
 Pains of disappointment.
 Pains of regret (at not expecting to enjoy a pleasure again, or at not having enjoyed a
pleasure as much as was expected).
 Pains of the senses (these are the reverse of the pleasures of senses and so include,
e.g. hunger thirst, bad tastes, bad smells, un-pleasant sounds, disagreeable sights,
excessive heat or cold, disease.
 Bentham does not mention the reverse of the pleasures of sex - presumably the pains
of frustration).
 Pains of awkwardness (Bentham may have had in mind his own extreme shyness).
 Pains of enmity (from being on bad terms with people). A. Pains of having an ill
name.
 Pains of piety (from believing that one is 'obnoxious ... to the Supreme Being').
 Pains of benevolence (from the knowledge of the sufferings of others).
 Pains of malevolence (from the knowledge that those one does not like are having
pleasures).
 Pains of expectation (from apprehensiveness).

Utilitarianism

- “Happiness was the greatest good”: Bentham opinion is that the law should be geared
towards greatest happiness for greatest number (Whether the law brings happiness to the
people or not)
- There are two test that develop the legislation to create the greatest happiness for the
greatest number:
- Test of “Art of Legislation”: Ability to predict what would maximize happiness and
minimize misery in the society.
- Test of “Science of Legislation”: Creations of Law that would advance or promote
social happiness whilst reducing social pain and misery.
 - Objective: All law should be to promote the greatest happiness of the greatest number to
measure the rightness or wrongness of the act.

Goal of Law is utility- “greatest happiness of the greatest number”

• The word ‘use', meaning usefulness for a purpose, provides a key to understanding what Bentham
means when he says that it is the notion of utility on which his scheme rests.

• He explains, 'By utility is meant that property in any object, whereby it tends to produce
benefit, advantage, pleasure, good or happiness, to prevent the happening of mischief,
pain, evil, or unhappiness to the party whose interest is considered.'

• With regard to individuals 'a thing is said to promote the interest.., of an individual, when
it tends to add to the sum total of his pleasures: or what comes to the same thing, to
diminish the sum total of his pains'.

• In the case of communities, correspondingly, ' An action may be said to be conformable

to the principle of utility ... with respect to the community at large ... when the tendency it
has to augment the happiness of the community is greater than it has to diminish it'.

Component of the Utilitarianism

a.) Consequentianalism
 Human conduct, whether is good or bad, is to be judges by its consequences to the
one who is responsible for the act and others.
 The Law, whether it is good or bad, is to be judged by its consequences to all the
individuals in the society, whether it may be present or future.
 Individual pains and pleasures are to be measured for the consequences to
individuals and one has to strike a balance to see which outweigh another.
(pleasure of sadism are outweighed by its harmful)
 One individual pleasure or pain should be counted as no more and no less than
that of any other person.
Based on these grounds legislation can be considered as desirable and good if the legislature can
forsee its consequences that would promote the greatest happiness and welfare of the greatest
number in the society.

Bentham applies the principle of utility specifically to government action, 'A measure of
government (which is but a particular kind of action, performed by a particular person or
persons) may be said to be conformable to or dictated by the principle of utility, when ... the
tendency it has to augment the happiness of the community is greater than any which it has
to diminish it'.

The analysis of pain

1.) Social Harm of a Mischievous Act

Primary consequences: It includes the effect upon a definite number of individuals.

Secondary Consequences: Relates to indefinite number of individuals. [instill fear to the others
who had experienced such fear of crimes (danger) or those who fear of being the victims of the
crimes (Alarm)]

Starving man steals bread from a rich man, The poor receives more pleasure than the pain
received by the rich. But theft will be still punished as it would result in secondary consequences
of alarm and danger and the good to the thief is outweighed by the harm to the rich. One person
striking another does not create alarm or danger to the society, because the other person has
nothing to fear unless he does an illegal act.

b.) Evaluation : 3 considerations

i.) Every man acts to promote his self-interest. This self-interest is equated with
happiness or the pleasures outweighing the pains. Man always tried to find out ways
and means to maximize pleasures and to minimize pains.
ii.) The pleasures and pains can be added up and weighed against each other on a felicific
calculus, in terms of the 7 factors:
 intensity;
 duration;
 certainty or uncertainty; and
 propinquity (close relationship) or remoteness
 Fecundity
  Purity
 Extent, those who are affected by it.
iii.) While making this calculation, one pleasures or pain of an individual, should not be
counted as more or less as that of any other.

Hedonistic: It lays emphasis on pleasures and pains. We call all pleasures as inherently
good.

Some pleasures are better than the others. For instance, pleasures of reading poetry or
listening to soft musics are better than drinking a glass of coca cola or consuming a Big mac.
Bentham holds that since the qualities of pleasure are equal, playing push pin, a popular
game at that time, is a goof as reading poetry.

c.) Individual
We have to consider every individual, whose interests are affected, no one should be
ignored. The individual comprising the society are happy and prosperous and the whole
politic would share their happiness and prosperity- The greatest happiness of the greatest
number.
Law should provide the followings to achieve the happiness of the society:
a.) Subsistence: One should put in his labor to get it, and the law cannot do anything
directly.
b.) Abundance: there should be equality in the distribution of wealth.
c.) Equality: There should be equality in the distribution of wealth.
d.) Security: there should be security of property and contract or expectation.

Felicific Calculus

• Since 'Pleasures ... and the avoidance of pains, are the ends which the legislator has
in view [,] it behooves him ...' Bentham says, 'to understand their value'. But how is a
legislator to measure the 'value', i.e. the degree, of happiness produced by an act?

• He needs some means to measure happiness because an act may result in happiness
(e.g. free medical treatment) to some and pain (e.g. increased taxes) to others.
 Further, some acts may produce a large measure of happiness or of pain, others a
trifling amount

• So what is needed-, we can imagine, is a pair of scales. On one side is put the weight of
the happiness that an act will result in, on the other side the weight of pain that will result,
and then one sees whether the value, the weight', of the happiness exceeds the weight
of the pain. If it does, the act satisfies the test of utility.

• Bentham explains how, in the case of a community the assessment is to be carried out.

• We must begin with any one person of those whose interests seem most likely to be
affected and take count of the immediate happiness produced for him by the act 'the value
of the happiness being assessed according to the four factors above), and then the longer-
term happiness. Then we must look the same thing with regard to pain (again the
immediate and long-term effects).

• It will be noted that this result ensues notwithstanding that the number of people who
would vote against the proposed action exceeds those in favour.

• This is because of the strength of the benefits to be enjoyed, albeit by a minority, exceeds
the weight of the drawbacks suffered by the majority.

• From this it will be appreciated that the formulation of Bentham's thesis as being that
an act is good if it promotes 'greatest good of the greatest number‘.

• Consider an appeal against a refusal by a local planning authority to grant planning

permission for a new development.

• Does not the inspector consider who will be affected, in what way they will be
affected, the degree to which each will be affected, and then apply Bentham's
felicific calculus?

• Refusal by State Authority to grant permit in the Case of Sri Lempah case, FC held that
State Authority did not have absolute discretion when it imposes conditions of approval
for conversion and subdivision and develop it for commercial purposes, to build a 3 four-
storey shop-houses and a four-storey hotel complex. That condition was challenged on
the ground that the Committee went beyond its powers and therefore the condition was
 ultra vires. The court referred to the case of R v Hillingdon Council, Ex parte Royco
Homes Ltd:

Although the planning authorities are given very wide powers to impose ‘such conditions
as they think fit’, nevertheless the law says that those conditions, to be valid, must fairly
and reasonably relate to the permitted development. The planning authority are not at
liberty to use these powers for an ulterior object, however desirable that object may seem
to them to be in the public interest.

The public interest of the society was to be upheld which are in accordance with the
Bentham’s goal 'greatest good of the greatest number”.

• Where an injunction is sought to prevent the continuation of a public or private nuisance,

does not the judge adopt the same balancing of interests?

• Tort Cases on Nuisance Barr v Biffa Waste Services Ltd [2013] QB 455

-A group of local resident commenced proceedings against Biffa Waste Services Ltd for
nuisance as a result of odour being emitted from one of its landfill sites. Biffa had already
been successfully prosecuted by the Environment Agency for breaches of conditions in
its operating permit limiting odour emissions.

• Lord Carnwath provided a valuable insight to the relationship between planning

and nuisance:

• “a fundamental difference between planning law and the law of nuisance. The former
exists to protect and promote the public interest, whereas the latter protects the rights of
particular individuals. Planning decisions may require individuals to bear burdens for
the benefit of others, the local community or the public as a whole. But, as the law stands,
it is generally no defence to a claim of nuisance that the activity in question is of benefit
to the public.”

• Are not proposals for new road schemes determined by the balancing of pains and
pleasures - current moves away from building new roads being a result of the
reassessment of the weight of the pains involved?
 • LAROW cases: Right to pass and re-pass a specified area of land to get to a public
terminal. Where a right given to any member of public to use a particular route as public
passages. Right of way may be created and given.

• Case of Che Nik Bte Bakar v Pentadbir Tanah Kuala Krai: Section 390(3) allows for
the creation of public right of way on private land. The principle of inviolateness of land
must be considered in the light of the doctrine of salus populi supreme lex- the interest of
the public are paramount. And that private interest may in some circumstances be
subordinated to the higher interest of the public, when the state think it is proper to do.

• The pleasure of the petitioner for Public Larow outweigh the pain of the owner of
the land for the greater happiness and enjoyment of the public.

• Bentham is right. Consciously or not, the felicific calculus is a guide to decisions

every day.

Point to ponder:

Issue on the punishment on Incest or Rape Case

Pleasures and Pain: Pleasure from the rapist or incestor having sexual acts; Pain suffered by the
rapist who will suffer the capital punishment- whipping depends upon the certainty of
conviction.

The psychological set-up of the perpetrator and his victim and the inability of the accused to
calculate in advance the pains of the proscribed punishment.

Severe punishment per se does not deter a wrongdoer, even assuming that every culprit
calculates pain and pleasure prior to or at the time of commission of an offence.

The gravity of the state’s interests in the preservation of those values and mores also plays a vital
role in shaping penal policy of the state. ‘Punishment’, a scholar rightly observes, ‘is a
conventional device for the expression of attitudes of resentment and indignation, and of
judgments of disapproval and reprobation, on the part either of the punishing authority himself or
of those ‘in whose name’ the punishment is inflicted’(providing law on imposition of
punishment of the rape or incest to combat such disturbing and disgusting issues for the benefits
of the social at large)
Attacks:

It is not correct to say that the motivations for a man are only his senses of pleasure and pain. In
fact, a man does many acts without thinking of the consequences or by force of habit. Pleasures
and pain enter as incident to other actions.

The guiding for certain person’s action are entirely different other than pleasure or pain. Saints
and Martyrs suffer pain through the acts of self-destruction and self-immolation.

Happiness is subjective and a matter of a peace for an individual mind. The outside events which
can be affected by the legislator have no concern with it.

It is not practicable to have felicific calculus, that is balancing of the individual interest
with communal welfare, for the following reasons.

a.) It is impossible for anyone to know all the consequences of his act, which may be
immediate and remote or present and future.
b.) Pleasure or pain resulting from an action are indefinite. An action may result in
immediate pain with the hope of pleasure soon or immediate pleasure with a promise of
pain. The assessment as such is almost impossible because of the time factor and
uncertainty.
c.) It is not possible to apply felicific calculus because of so many variations. The ideas of
what gives pleasure or pain, differ from age to age, class to class, race to race and country
to country
d.) Pleasures and pains of different ppl in the society cannot be measured or weighed against
each other. A piece of legislation may make a few increasingly happy, but it may make
many less happy. Eg A legislative measure may increase the take home pay of the
government servants at the cost of increasing the number of those who are unemployed.
Another example will be the arbitrary law in Malaysia where the pleasure of the
executive outweigh the pain of the people. SOSMA, POTA, Restriction on the rights on
freedom. It is difficult to balance the pleasure of the majority against pains caused to the
minority.
e.) Difficult to see how the prosperity of happiness or prosperity of the majority increses
prosperity or happiness of society. On some issues the pleasures of majority may cause
pains to the minority. The minority may feel bitter against the majority and may go to the
 extent of disharmony. Protection to the minorities and bumi-putras rights by giving
certain privileges enumerated in the Federal Constitution. Article 153 FC Reservation of
quotas in respect of services, permits, etc., for Malays and natives of any of the States of
Sabah and Sarawak.
f.) Capacity of an individual to select things for himself and deiced upon a course of action
is quite different from each other. This does not guide the legislator because he does not
know the necessities of an individual.