Jurisprudence the skill or knowledge of law is significant for every one in the
society in order to understand what is exactly law, its origin to help us
develop a better understanding of law and why must we follow, how must we
interpret it. Multiple jurists over the time have given theories and Austin and
Jeremy Bentham's theory form the basis of one of the schools of jurisprudence
which is the analytical school of jurisprudence. We will be discussing what were
the theories given by these jurists and how they are relevant in todays life
especially in case of Indian Legal system.
Jeremy Bentham's Theory:
The English jurist, utilitarian philosopher, and social reformer Jeremy Bentham
is recognised as the most important character in the history of British Legal
Positivism. He was a reformer and legislator, a moralist, philosopher, and a
hedonist who commended and condemned all actions and activities in the name of
good (usually defined as happiness). He was a key theorist in Anglo-American
legal philosophy and one of utilitarianism's founders. The Introduction to the
Principles of Morals and Legislation is his most important theoretical work, in
which he describes and develops the theory of the greatest happiness principle.
Jeremy Bentham marked the beginning of a new era in English legal theory. In the
modern understanding of the term, he is regarded as the originator of
positivism. Austin owes a great deal to Jeremy Bentham, and many of his
arguments are just the 'para-phasing of Bentham's theory.' Bentham's greatest
works demonstrate that, contrary to popular belief, he is the true father of
analytical positivism, rather than John Austin.
As an individualist, Bentham felt that the purpose of legislation is to free
people from their enslavement and restrictions on their freedom. The goal of a
utilitarian philosophy is to improve society as a whole. It would say that an
action is right if it makes the largest amount of people in a community or group
happy. He believed in the economic idea of 'laissez-faire,' which meant that the
government should meddle as little as possible in people's economic activity.
The utilitarian principle was proposed by Jeremy Bentham.
According to this theory, the proper goal of legislation is to implement the
utility principle. To put it another way, the proper goal of all laws is to
promote the 'largest happiness of the greatest number.' 'Utility,' according to
Bentham, is "a thing's property or tendency to avert some evil or procure some
benefit." According to him, the outcomes of good and evil are 'pleasure' and
'pain,' respectively. The government's job, according to utilitarianism, is to
enhance the happiness of society. If there is a commotion, the state has
complete authority to punish the perpetrators. The Felicific Calculus could be
used to calculate pain and pleasure.
There are two types of pleasures and sorrows, according to Bentham. They are as
According to Bentham, pleasure or pain may be quantified mathematically by
considering seven factors:
- Simple pleasures or ones that cannot be converted into something else (as
the pleasures of senses, wealth, skill, amity, good name, power, piety etc.)
- Complex joys are those that can be broken down into several basic
- Intensity is the first factor to consider (more or less efficaciousness)
- Duration (longer or shorter life)
- Certainty (consideration of definiteness or indefiniteness)
- Propinquity (consideration of nearness or remoteness of time)
- Objectivity (accompaniment of all pleasure or pain)
- Extensiveness (the number of persons fallen under influence)
- Fecundity (potential to be fruitful or barren)
Relevance Of Bentham's Theory In Indian Legal System
According to Bentham, "there is scarcely anyone who is not liable to come within
the consideration of the law in all of these various kinds of pain and
pleasure." As a result, all penal laws are based on the same philosophy of
prioritising the common good over private interests. The pain of piety, for
example, is the suffering that comes with the notion that man is unpleasant to
the absolute being's anger, or the pain of religion. Religious terrors are
protected under sections 295 to 298 of the IPC.
Similarly, the agony of ill repute, the suffering of dishonour, is protected as
defamation under the IPC and Tort law. Similarly, because of the deterioration
of air quality, stubble burning has been rendered illegal under Sec. 188 of
Indian Penal Code.
The significance of legal tradition in Benthamite Utilitarianism's reformist
rhetoric is a contradiction. On the one hand, the popular interpretation of
utilitarian jurisprudence is historical, and it opposes the rewriting of the
criminal justice system that existed in the late 18th and early 19th centuries
in Britain. It influenced 'legal particularism,' emphasising
difference/pluralism and advocating for personal laws for India's religious
minorities. In India, Bentham's utilitarianism and impact may be observed in the
construction of a penal code as well as a code of criminal and civil procedure.
Bentham completely denied the significance of judge made law and the relation of
morality and law, but in India many laws are based on the customs, traditions
and morals such as Hindu Law and Muslim Law and also the precedents which are
set by courts of law in India form an undeniably significant part of laws and
are as important as a legislation.
Bentham laid emphasis on laws to be in codified form at all times and shouldn't
be in unwritten form so in a way the customary laws and traditions are denied to
be part of law by Bentham. In Indian legal system when laws are made their
consonance with the customary law is often of great relevance which is against
the theory of Bentham.
Every piece of law has as its primary goal the promotion of happiness and the
reduction of unhappiness. These laws are written in such a way that they protect
society's major interests even if it means sacrificing individual interests.
Under the influence of Jeremy Bentham's utilitarianism, Indian laws are drafted.
The Indian Constitution, for example, encourages welfare, justice, and equality
among people. The Indian Constitution incorporates several state and individual
rights, although certain rights are not absolute since the constitution limits
these rights by imposing certain constraints in the public interest. Articles
14, 21, 16, 15, 39, 38, 41, 42, 51-A, 25, 48, 19, and so forth.
According to the Bentham Theory of Sovereignty, there will be a political
society with a body of people acting to express the people's will. That is, in
the instance of India, we can see relevance in terms of a democratic form of
governance that adheres to participatory democracy values.
Hence, we can see the relevance of the Utilitarian theory of Bentham in form of
the basic principles followed while laws are made and the purpose for which they
are made which is greatest happiness of greatest number of people in the
John Austin's Theory
John Austin, the father of Analytical School of Jurisprudence in his book
"Province of Jurisprudence" that mentions the theory of legal positivism and
sovereignty. In order to understand Austin's concept of positivism one must
understand his definition of law. He defined law as the Command of sovereign
backed by sanctions. His concept of positivism talks about law as it is,
irrespective of what law is ought to be and based on experiment and observation
denying the basis of morality.
Austin's sovereign doctrine can indeed be narrowed to the following
That there is a unit of people who possess sovereign power in every civic and
autonomous community. That the sovereign is a distinct individual or group of
individuals. That such determinate superior cannot be subjected to any other
Therefore, in conclusion, Austin's definition of sovereignty includes the
existence of a superior power that is absolute, inalienable, indivisible,
all-encompassing, and eternal. It is not bound by any other superior's
restrictions or commands.
Relevance Of Austin's Theory In Indian Legal System
In order to understand the relevance of Austin's Theory of Positivism we must
critically analyze the three aspects of his definition of law which are –
Command, sovereign and sanctions.
Commands that are given by the sovereign make law, so basically the law is what
the command of the highest authority says. The sovereign authority is the
ultimate supreme and its power to give commands is unquestionable. This is
exactly the opposite of what happens in India since Indian legal system doesn't
run on some commands given by a determinant authority.
India is a democracy
where we have a constitutional framework, the source of law lies in the sacred
Constitution of India, which confers equal rights to all and even the citizens
have same rights and status as the legislative authority. The judge made law is
completely denied in Austin's theory but in India the precedents set by the
courts form an essential part of our legal system.
The sovereign is regarded as the ultimate superior authority which has no
limitation on its powers to make laws and there is no other authority to
question the law it makes or its commands. Pluralism and accountability to
people doesn't exist in the theories given by him. When we talk about Indian
democratic and quasi federal system and concepts it is based on are totally in
contrast with the theories of Austin.
The power of sovereign is not indivisible or ultimate, the actions of
legislature can be questioned in the court of law, the laws made by them can be
judicially reviewed. The power is divided among legislature, executive and
Sanctions are the instrument of enforcing law and making people follow the law.
When subjects do not abide by the law, sanctions follow them. This is the basic
concept of imperative law, that sanctions are necessary for enforcing the law.
Sanctions make the sovereign a suppressing authority, since whoever goes against
its commands has to face the consequences in form of sanctions. This make it
nearly impossible for the subjects to be part of the law-making process and
participate in government.
In India participation of common people is forms a major part of legal system.
The subjects and government co-operate to make and enforce laws. In any modern
society like India, fear of sanctions does not make the subjects follow the law
and sanctions are essentially the tool of enforcing law. All laws are not backed
by sanctions like Fundamental duties or directive principles of state policy or
procedural laws like code of civil procedure, law of evidence and code of
The Indian democracy has laws that follow the morality, customs and beliefs
several communities and the diverse society of India has been following for
years. Austin in his theories has entirely denied the relevance of morals which
is not at all true in case of Indian democracy, since our customs and traditions
for a significant part of our legal system like the Muslim or Hindu law. When
the laws are made it is made sure that they don't hurt traditional sentiments of
people at large.
The purpose of law was not defined by Austin, his theories have never even tried
to co relate law to justice, morals or ethics. Social norms were denied. Indian
legal system or any legal system for that matter has established itself for the
purpose of administering justice, establish equality etc.
Austin's theory presents this presumption that the people will follow the
command of sovereign or the law blindly. People who believe in the sovereign
will anyways follow the law out of their faith in its command and those who
don't will follow it out of fear of sanctions and there will be no resistance or
no one will even think of questioning the laws made by the superior authority.
But this is completely irrelevant in todays form of legal system or modern
Recently Government of India introduced the three farms bills, which were
agricultural laws, government faced major backlash from the people of India and
Indian citizens protested against it for about a year. There have been multiple
instances like this when people have exercised their rights and protested
against the unjust laws made by government. So people have an option to accept
or reject the laws and question their validity, no one can make them follow the
Sovereign is the only body making and enforcing laws when it comes to Austin's
theory, it denies the significant role that judiciary plays in making laws,
executive bodies CBI, ED etc or police play in enforcing laws.
Hence the theories given by Austin are no more relevant in case of a democracy
or any civic modern society like India. Law has developed more into something
that people accept rather than a command that subjects have to follow and are
given by sovereign.
India is a country that follows a positive theory of law and the Constitution of
India holds the supreme authority. The Courts take decisions within the ambit of
the law of the land. Thus, the view of the majority holds no essence in the
judiciary. Bentham's utilitarianism still is the basic idea behind the laws made
in several nations and have been adopted by numerous countries to meet their
particular political, cultural, economic, and social objectives, and have been
adapted over time to meet evolving societal needs.
To an extent his theories are relevant and play a vital role is providing a
direction to the government in which they should proceed while making laws,
where as in case of the theories given by Austin the modern world has changes,
the purpose of law, who makes the law and how laws are made have changed as
well, which has made the theories given by him not practical in today's scenario
of Indian Legal System.
Written By: Shanuja Thakur