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Principles of Legislation Ayush Jha Assistant Professor. Introduction Term legislation comes from Latin word ‘ legislatio ’ meaning bringing of law. Legislation in a strict sense means laws made by a competent authority in that regard.
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Introduction • Term legislation comes from Latin word ‘legislatio’ meaning bringing of law. • Legislation in a strict sense means laws made by a competent authority in that regard. • In wider sense it includes judge made laws, customs and conventions. • Legislations may be direct or indirect. • Laws can be made by supreme authorities in a State or by subsidiary authorities.
Jeremy Bentham’s Principle of ‘Utility’ • Two of his famous works: ‘The Theory of Legislation’ and ‘Introduction to Morals and Legislation’. • In addition to his moral and legal philosophy, these are also guides to Legislators. • He postulated ‘Utilitarianism’ as principle of legislation. • He maintains Legislation is both science and art. • He explains utility as the basis of political obligations; it is the end objective of Govt. and legislation.
The objective of the legislator must be to do public good. He may base his reasons on general utility. • It is the duty of the legislators to make a great study of two concepts, viz, pleasure and pain. • The term ‘utility’ expresses some propensity or tendency of a thing to prevent some evil or to do some good. • ‘The principle of utility is that principle which approves or disapproves of every action according to the tendency which increase or decrease happiness’. • Anything which conforms to this utility, brings happiness to the individual.
The purpose of law is to achieve maximum happiness to maximum people at the expense of no or lesser pain. • The legislators reasoning for making a particular law, must be based on this principle. • In making law, the legislator must calculate or compare the pleasure or the pain that it brings about. • The legislator must have the objective to increase the total sum of the happiness of the individuals that form the community.
Virtues and Vice • Utility as a principle has its essence in the virtue and the vice. • Virtue is good as it brings pleasures, vice is bad as it brings evil. • The legislator who believes in the theory of utility, finds, in the process of law-making, a number of these virtues and evils, that the proposed law may bring. • His objective must be to bring more virtue. • He must also distinguish pretended virtues and evils from the real virtues and evils.
Objections • What is utility, is judged by each person and hence, it is objected that it loses its force. • Religious objection: The good and evil can only be decided by God. • It is not necessary that which is useful will be just and honest. • The aim of good morals is different from the aim of politics. • It may promote opportunism in people.
The Ascetic Principle • Ascetic means ‘one who practices.’ It refers to the monks who practice penitence & devotions. • They desire to reduce pleasures and to suffer pain. • This Ascetic principle is opposed to the principle of utility. • It is followed mainly by philosophers and devotees. • The Ascetic principle reposes false idea of utility. • It was perceived that attraction of pleasure might result into immoral acts. • The morals and good laws must forbid these pleasures according to ascetics.
Arbitrary Principle • AKA Principle of Sympathy and Antipathy. • Things are approved or blamed by sentiments, without giving any other reason for the decision except the decision itself. • This Principle is based on I love, I hate. • An action is judged to be good or bad because it pleases or displeases him who judges. • He merely pronounces himself sovereign and admits no appeal. • An action is not justified on the basis of virtues but on sympathy or antipathy. • A man will love a thing which gives him benefit, and hate a thing which hurts him.
Causes of Antipathy • Repugnance of sense : something which the senses do not agree, to accept. • Wounded Pride: A case of dissent causes wounded pride. “he who does not adopt my opinion, indirectly declares that he has but little respect for my knowledge upon the point in dispute.” • Power Controlled: The compulsive feeling that our power is limited and bounded is a secret pain.
Confidence in the future weakened or destroyed: Falsehood or absurdity of the men who were made responsible to rule makes us doubt and we do not rely upon such a person. • The desire of unanimity : Unanimity is very pleasing to us. There would be mutual confidence and increase of pleasure. • Envy: When certain advantages are given to some, others envy. With envy person may become an ascetic. Envy leads to reducing the pleasures.
Operation of these principles on Legislation • Legislation Rarely Based on Asceticism. • The foundation of asceticism, that there is merit in infliction of pain cannot be applied while making of laws. • Arbitrary principle has been utilised by governments while making legislations. • They consider principles like justice, equality, wealth, power and glory etc. to be ends and not means. • A Government which has wealth and commerce looks to the society as a workshop.
Applying the Principle of Utility • To obtain an exact accounting of the general tendency of any act affecting the interests of a community, proceed as follows. • Begin with any one person among those whose interests seem most immediately to be affected by it and take into account: • the value of each distinguishable pleasure that appears to be produced by it in the first instance; • the value of each pain that appears to be produced by it in the first instance; • the value of each pleasure that appears to be produced by it after the first—this constitutes the productiveness of the first pleasure and the impurity of the first pain;
then take into account the value of each pain that appears to be produced by it after the first—this constitutes the productivity of the first pain, and the impurity of the first pleasure. • Sum up all the values of all the pleasures on the one side, and those of all the pains on the other. The balance, if on the side of pleasure, will give the good tendency of the act upon the whole with respect to the interests of that individual person; if on the side of pain, the bad tendency of it upon the whole. • Take into account the number of people whose interests appear to be concerned, and repeat the above process with respect to each.
Sum up the good and bad tendencies and then figure out the balance. • If this is on the side of pleasure, it will give the general good tendency of the act with respect to the community. • If it is on the side of pain, it gives the general evil tendency with respect to the same community. • It is not to be expected that an exact account of the tendency of any act will be strictly pursued before every moral judgment, or to every legislative or judicial operation.
Morals v/s Legislation • According to Bentham Both morality and Legislation have same objects, i.e. greatest possible sum of good. • However, Morality has bigger ambit in contrast with laws. • Law ought not to exercise continual interference and control over conduct of men. • Morality commands each individual to do good to the community along with his own. • Legislation cannot command a lot of beneficial acts and cannot forbid all the injurious acts.
Reasons for these differences- • Legislation has no direct influence except by punishment. These Punishments are justified only when they avoid greater pain. • There is the possibility of punishing the innocent, in the anxiety of punishing the culprits. This comes from difficulty in defining offence. • Private Morality dictates two kinds of duties- duties to self and duties to others. • Prudence is the quality required to accomplishes the duties to self. • Two ways of consulting happiness of others: positive (beneficence) and negative (probity).
When does morality needs help of law? In case of Imprudence • The presupposition is man has enough prudence to not commit wrong. • If man commits a wrong relating to self duty, then he was not willing to, but he was under mistake, i.e., his understanding was at fault. • If a legislator make stringent laws to prevent the evil created by such a conduct, then it will create more vices. • Slight punishment is warranted in these cases to trigger the popular sanctions.
As per Bentham ‘man is the best judge of his own interests’. He must be left to his own prudence. • Even if they deceive themselves, after discovering the error they will rectify the same. • The law can interfere only in cases where conducts of individuals may injure each other. • In such cases law may apply restraints and punishments to safeguard the interests of all the individuals.
Related to probity • There is a natural connection between prudence and probity. • A man of prudence will always have motives abstain from injuring others. • There are certain natural motives: • Of pure benevolence • Of private affection • Of good repute and fear of blame. • To realize the connection between interests of others and that of his own, a man needs ‘enlightened spirit and a heart free from seductive passions.’
In case of lack of such a natural spirit legislation can supply artificial interest. • In such a situation morality derives its existence from law. • Sometimes to know whether a an action is good or bad, wee need to look at the law whether it permits it or forbids it. Related to Beneficence • It is the will of individual which is the power of benevolent activities. • It cannot be imposed by law.
It has ties in humanity of morals and religion which complement law. • The legislators have not done enough in this sphere. • The legislators ought to have erected a refusal to observe humanity service into offences.
