Legislative Principles and Law Making Process Content
Bentham’s ‘Principle of utility’
Utilitarian, in latin term it is “ütilis”, which mean ‘useful’. Bentham’s principle of utility concern with ‘welfare state, ‘Laissez faire’ policy. He was social reformer, he determined the aim of legislation to end social injustice.
Supreme objective of moral action is achievement of the greatest happiness for the greatest number of people. It must be the objective of legislation and legislative while drafting the law. ‘
In order to accord with the laws of nature, government and citizens should act to increase the overall happiness of the community/ or to secure the greatest happiness of maximum no. of people.
Pain and Pleasure
Identification of concept of “happiness” with pleasure and the absence of pain.
According to him nature has placed mankind with two sovereign matters (1) PAIN and other (2) PLEASURE.
Legislature is to find of what is pleasure and pain of public. A) PLEASURE: just, good, moral. B) PAIN: unjust, bad, immoral. The objective of legislature is to prevent pain and promote the pleasure. Without establishing Principle of Utility, pleasure can’t be gain and pain can’t be avoided. Law making should address no. of people through research. In this way pain of Nepalese can be addressed.
Legislation (law) should be made after social research. It will help to find out whether it may be accepted by large no. of population or not.
Legislative have to forward only those legislation which will have “greatest happiness of the greatest no. of people”. It always speaks for the majority not minority. It goes with the doctrine of “majority wins” and “voice of majority prevails”.
Four major goals of legislative
Legislative has four major goals. They are:-
- Subsistence: primary objective of subsistence is to provide socioeconomic rights or basic minimum standard of individuals.
- Abundance (opportunity): state need to provide opportunity to work and develop.
- Equality: everyone should be treated equally in case of life, liberty and property.
- Security: security of one’s property and rights by the state.
Subsistence, law should fulfill the basic needs. When law ensures subsistence than state should provide abundance opportunity to develop. And then all people have to be treated equally. To protect property, security is to be provided by law. This view of Bentham is region-able.
Act and rule
Legislation has two virtues to establish the law (i) By ACT (action): this say this law has to be made by the few experts. (ii) By Science: which says carry a research about which law is to be made by going one by one to each concern stakeholders.
ACT (action) states that, when faced with a choice, we must first consider the likely consequences first to generate most pleasure. RULE, he looks at what would happen if it were constantly followed. If adherence to the rule produces ore happiness, it is a rule that morally must be followed at all times. The major distinction between RULE and ACT is about the proper object of consequence. What may be the consequence after formulation of law is essential for Bentham.
System of reasoning
According to Bentham principle of utility is ’system of reasoning’. ”public goal should be the object of legislative; it should be scientifically calculated as system of reasoning by legislative”. He said public good is to be scientifically calculated by legislature. Legislature is scientist to determine public goods. Public goods are the common interest or public interest, common will, common property. He said individual interest is not calculated in the system of reasoning.
To establish the system of reasoning legislature have to be clear about it’s objectives:-
- At first they have to establish precise idea of utility who employ it: if legislature is going to make law then they have to be clear about the consequences of law after enacted.
- To establish sovereign principle of utility; legislature has to establish the principle problem which is to be solved. Ex: poverty may be the principle problem of Nepal.
To determine the process to achieve above principles: to find the process to achieve the problem.