Legalists and the Concept of Sovereignty

Jeremy Bentham

Jeremy Bentham (1748–1832), an English utilitarian, is famous for his advocacy of modern legislation. By grounding his theory of ‘Utility’ in the doctrine of ‘the greatest happiness of the greatest numbers’, Bentham assigned the State the task of the promotion and maintenance of ‘Utility’. His two works, A Fragment on Government (1776) and An Introduction to the Principles of Morals and Legislation (1789) can be considered important from the point of view of the theory of Utilitarianism and the concept of the State and legislation. As Bentham understood it, men are moved by two primary sensations, the desire for pleasure and the avoidance of pain. In his An Introduction to the Principles of Morals and Legislation, he said, ‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.’ Every individual moved in such a manner would act out of self-interest in order to avoid pain and desire pleasure. In such a situation, the promotion of the ‘greatest happiness of the greatest numbers’ required the State to regulate the motive of self-interest and reconcile these interests. To do that, the State should become the sole source of law, an important sanction or source of pain or pleasure in the form of reward and punishment. Laws help in regulating the motive of self-interest with the aim of increasing the net balance of pleasure and decreasing the net balance of pain.

Wayper says that, ‘for Bentham the State is primarily a law-making body, a group of persons organized for the promotion and maintenance of happiness, and acting through law to that end.’²³ As the State is the law-making body, the law is commanding in nature and carries sanctions. Thus, it must be at the command of a supreme authority. In fact, Bentham stressed that only when such an authority was habitually obeyed did a civil society exist. Therefore, Bentham formulated a sovereign State that does nothing which can be termed illegal. He made the State the sole source of right and even said that the laws of the State sought to ensure happiness, not liberty. Natural law cannot be pleaded against the law of the State as for Bentham the ‘law of nature is nothing but a phrase’. However, Bentham granted that the right to property was essential for the security of individuals and maintained that governments should not take away property without adequate compensation.