Justice Based On Pleasures

In the past two centuries, utilitarianism has always been an important theory which plays a great role not only in the relatively abstract fields of philosophy, but also in the practical fields such as economics, law and political science. Special attention needs to be paid to the fact that it is proper to regardthe utilitarianism as the only comprehensive philosophy that focus on legal science. As the founder and leader of classical utilitarianism, Bentham regards the "the most happiness of most people " as the ultimate target of his philosophy, and he sets "utility" as the only and ultimate evaluation criterion of act and system. The following two features make the utilitarianism an attracting theory. One is that as a civil theory independent of the God and the immortal spirits, the utilitarianism doesn’t need to apply to suspiciously metaphysical entities, which makes it possible for Bentham to build the philosophical system on the base of practices and makes more convincible his arguments against the precedent philosophy of law, mainly the theories of jus natural and natural rights. The other is that,as the philosophy of "consequentialism" and "welfarism",the utilitarianism considers individuals’happiness as the starting point and pays close attention to well-beings of the community and whole human being. The consequence of act and system being its evaluation object, this philosophy opposes any moral and legal prohibitionswithout "authentic" basis and is consistent with our moral instincts.But ever since its beginning, this philosophyhas received as much criticisms as compliments. In1971, the publication of A Theory of Justice by John Rawls gave a fatal blow to the utilitarianism, making it lose the leading role in the fields of moral, politics and the law. Criticisms to Bentham’s utilitarianism mainly concentrate on these following aspects. In the first place, the transition from the "psychological hedonism" to the "ethical hedonism"in Bentham’ sarguments of principle of utilitarianism belongs to the naturalistic fallacy and makes the arguments ineffective. In the second place, even if the argumentsare effective, the natural humanity of pursuing happiness while avoiding pains makes it hard for this transition to come true, and the individuals’ethics are in conflicts with the principle of utility. In the third place, Bentham gave equal value to all kinds of happiness which in his opinion only vary from in quantity but not in quality, and that is a "philosophy of pig". In the fourth place, the structure of consequentialism and the maximizing principle are based on calculation and comparison of pleasures and pains, which are not feasible in the practice.In the fifth place, the very guiding principle of "the most happiness of most people" in the utilitarianism theory,which concentrates too much on the consequence of act and the happiness of community, will leads to the infringement of individual’s independence and integrity. And that is unjust. In the sixth place, the utilitarianism demands too much on individuals’acts, which is inconsistent with our moral instincts. In order to response to these critics, utilitarianisms from John Mill to Henry Sidgwick, Hare, Smart and so on have developed Bentham’s theory. However, these efforts are built at the prices of sacrificing some aspects of Bentham’s philosophy and the concessions they made in Bentham’s position do not save the utilitarianism.This paper holds that the majority of criticism to Bentham’s philosophy of law in the contemporary era is not right. Therefore in order to make the utilitarianism a coherent and attracting theory,it is necessary to return to Bentham’s position and stick to it, and regard it as a political and legal theory. The foundation of Bentham’s philosophy of law is a naturalistic ontology. The transition from facts to rules in his arguments of principle of utility is effective. Bentham gave special meaning to private ethics, in his opinion, fulfilling the ethical obligation of prudence and integrity is a necessary condition for individuals’ happiness. Private ethics admit the legitimacy of individuals’ pursuit of self-interests, but holdat the same time that the boundary of maximizing individuals’happiness (interests) lies in that it should do no harm to the interests of others. And these two maximized happiness can coexist with each other. Bentham gave equal value to all kinds of happiness so as to make sure the uniqueness of the utility criterion and the feasibility of utility calculation. The utility estimation is not an accurate calculation of happiness and pains, and the utility is practical enough to cope with the real world.Bentham’s philosophy of law is a theory of individualism; meanwhile, compared with the utilitarianism as a moral theory, that as a philosophy of law demands less to the actors. It may effectively response to criticism which accused it to be "unjust" and "demanding". The utilitarianism is a comprehensive theory. In addition to observe the social backgrounds and ideological conditions of the rising of Bentham’s theory as well as the parts of arguments of principle of utility, this paper will mainly focus on studying Bentham’s utilitarianism as a philosophy of law.On the social background and ideological conditions of the rising of Bentham’s philosophy of law. The Utilitarian school initiated by Bentham is one of the British factions of radicalism social movement at the time. The Utilitarianism is both a philosophical movement and a social revolution promoted by this very philosophical movement. The industrial revolution provided the British radicalism movements with sufficient social conditions. North American Revolution and the French Revolution created the international scene in which the movement took place. The common law and its theory are the objects of criticisms and reform of Bentham’s philosophy of law.Bentham constructed his philosophy of law of empiricism by the criticizing the common law theory and the theory of natural rights. His philosophy of law was greatly affected by developments of natural science and spirits of the enlightenment. Utilitarianism pioneerssuch as Hume, Helvetius, Beccaria and other early utilitarianisms such as William Pale, William Godwinmade great contributions to the creation of Bentham’s philosophy of law.On the principle of utility and its arguments. The principle of utility is the foundation of Bentham’s philosophy and the entire utilitarian arguments. This theory admits the natural humanity that pursues happiness by avoiding pains and the priority of individual’s interests. By considering them as the starting point, it sets "the most happiness of most people" as the ultimate guiding and evaluation criterion for acts of individuals and governments. The unification of individual’s interests and the community interests are realized by educations and legislations.Individuals’ethic and arts of legislation share the same center but different circles. Both of them are contributed to the realization of the goals of maximizing happiness.On the utilitarianism and the positivism in Bentham’s philosophy of law.Bentham’s philosophy of law serves as a connecting theory between the preceding and the following ones by replacing the metaphysical criterion in the natural law theory with the practical criterion of "utility". This theory puts forwards, on thedichotomy of expositor and censor of law as well as of the "Law as it is" and the "Law as it ought to be", the core proposition of analytical jurisprudence that "law is the command of the sovereign", and therefore incidentally carves path for the analytical jurisprudence. Although there trends to be the analytical jurisprudence in Bentham’s philosophy of law, we should bear in mind that the principle of utility is the foundation of Bentham’s philosophy of law.On the constitutional theories of "two Benthams". His constitutional theories in early stage and in late stage are respectfullyepitomes of "two Benthams", namely, the enlightening Bentham and the radical Bentham.The failure ofPanopticon and the following notion of "sinister interests" played a vital role in Bentham’s transition to radicalism. Bentham opposing the then popular theory of checks and balances, his constitutional theory aimed at creating a system making the ruler dependent to the governed. According to Bentham, the good constitutionsare the onesthat ensure the rulerhas no sinister interests independent to the community, and pursue ultimately "the most happiness of most people"On the two components of reform of utilitarianism and their relations.The legal reform, which is the lifetime cause of Bentham, mainly aims at realizing the codification of common law and the reform of judicial system both with the orientation of providing ordinary with access to justice and with the target of realizing "the most happiness of most people".The "enlightening Bentham" hopes to promote the reform by the parliament, while the "radical Bentham" considers the parliament as the target of reform, and unifies the causes of the legal law and the parliamentary reform.