Letting the Rats Loose: Bentham’s Perspective

February 1, 2021

Naman Goyal

Naman is a fourth-year law student in O.P. Jindal Global Law School. He is currently working towards better understanding of how differences in philosophical underpinnings shape the countries of the world.

This article deals with the topic of captivity of non-endangered animals in the form of zoological parks. This topic will be discussed in reference to Jeremy Bentham’s philosophies and is limited to the present legislations in India although the theory might share relevance to other legislations. While Bentham’s philosophy has here been applied only towards the selected topic, the paper can be referred to as a means of understanding its nuances, while helping its applications to other topics.

Bentham’s theory of law:

            Bentham separates the legal theory with the moral theory and, therefore, is a legal positivist.[1] The following is his definition of law: “…an assemblage of signs declarative of a volition, conceived and adopted by the sovereign in a state, concerning the conduct to be adopted in a certain case by a certain person or class of persons who in the case in question are or are supposed to be, subject to his power.”[2] Bentham suggests that this volition of the legislator is evident in four manners: “a command, a prohibition, a permission to act or a permission to restraint.”[3] Therefore, if the legislation in question abides by this definition, Bentham would hold it to be a valid legislation. To summarize, if the legislation in question carries a “command, a prohibition, a permission to act or a permission to restraint”[4] to the people subject to the power of the respective sovereign, then the law is a valid law as per Bentham.

            Applying this theory to the context of the legislation concerned, i.e., the section 38H of the Wildlife (Protection) Act, 1972, which gives recognition to zoos, it is evident that the legislation gives permission to run zoos on the basis of a few set criteria mentioned in the same section. Therefore, there exists a permission to act and the act to be done in accordance with a certain set of commands. Thus, there exists a declarative volition. This law was enacted by the competent legislation towards the people subject to its power. As a result of meeting the criteria, this law, would be a valid law as per Bentham.

            Though Bentham is an imperative legal theorist, and though he believes that the moral theory cannot provide for standard law, Bentham suggests that there is certain objectivity that law should work for: they should maximize pleasure and minimize pain.[5] Bentham had thus, created the idea of utility and believed that the law should pursue maximum utility. To Bentham this idea of utility is applicable to animals as well: “The question is not, Can they reason? Nor, can they talk? But, can they suffer?” He therfore, acknowledges that animals too are capable of feeling pain and pleasure, and by virtue of this, should be accounted for in understanding the effect of the law on utility. Based on this idea of utility, Bentham would suggest that the law is creating for more pain than pleasure and thereby, is a bad law.

            To assemble his approach towards law: Bentham would suggest that laws should act towards utility, but regardless of whether the law is acting against it, it is still law if it meets his positive definition. Applying this theory in the current scenario, the law can still be found to be valid, though a value laden judgement can be passed stating that the zoos are causing more pain than pleasure causing it to act against utility. The law legitimizing zoos is, therefore, bad law; but is still valid law. This idea, along with the reasonings on which this finding is based, might be subject to critique from different theorists. The following part of the paper deals with a few possible critiques which would further be replied to from Bentham’s perspective.

Positive versus natural:

            St. Thomas Aquinas, who is a natural law theorist, would argue that there exists an overlap thesis and not the separation thesis, which suggests that laws are necessarily derived from morals, which as per Aquinas would be deriving the human law from the natural laws and basic goods. All living beings are to seek the basic goods of life, procreation and knowledge. He would further critique that following utility and pleasure are the same as doing acts in the alignment with the natural laws and the basic goods. In the current scenario, he would argue that there has been a mistake in the interpretation and translation of the divine and natural laws, to the human law, so giving for a bad law.[6] A bad law according to him should not be called law at all and one is free to not follow it.[7] He does also state that a bad law should be followed if it is a part of an otherwise just system of laws.[8] Bentham would reply to this critique by differentiating the concept of  a basic goods, and the system of utility: basic goods such as life and procreation are often leading to a net increase in utility so long as it does not cause a greater harm. For instance, procreation is good only till the extent where the population is in control and balance; overpopulation of a species would, among many other problems, result in an imbalance in food chain and shortages of resources for everyone.

Thus, the unrestrained pursuance of basic goods would do more harm than good. Utility on the other hand would account for the present scenario and give direction for an action that would lead to a better solution than frantically following a basic good. Bentham would further state that when Aquinas asks for the bad law to be followed if it is a part of an otherwise just system, he is only, in fact, upholding the positive nature of laws, where despite there being a divide in the moral and the legal theory, he asks for the law to be upheld. Therefore, the law is still legit regardless of it being a bad law. This reply of Bentham can be compared to his understanding of natural rights which he deems to be “… a pervasion of language, ambiguous, and figurative…”[9] Thus, according to him, there is no guarantee of the grant of such natural rights, until and unless the law and the sovereign recognize and give for the maintenance of such. Similarly, in the respective legislation, the sovereign does not recognize the right to freedom of life to animals, which, though Bentham recognizes to go against the benefit of all living beings, still results in the legislation being valid.

The “principle” of utility:

            Ronald Dworkin would critique that the system of utility using pain and pleasure is but a principle that a judge may use to base his judgement on.[10] Based on the usage of this principle of utility the law can be held to be illegit. To this Bentham would accept that utility can be used as a principle in the judgement of the legitimacy of the laws in question. Dworkin would further argue that the moral rights available to individuals act as a trump against the government: “… but those Constitutional rights we call fundamental like right of free speech, are supposed to represent rights against the government in the strong sense; that is the point of the boast that our legal system respects the fundamental rights of the citizen.”[11] Applying this to the theory of Bentham that animals too are capable of feeling pain and pleasure, they too can be interpreted to have moral rights as against the government. Bentham would agree that the laws should accommodate for these rights to be available to animals as well, in accordance with greater utility. Albeit the acceptance of the critiques from Dworkin, Bentham would argue that the laws would still be held valid until pronounced as illegitimate by the competent authority, thereby, only reinforcing the positivist nature of the law. Bentham would further state that only those rights that are guaranteed by the sovereign to the concerned beings would be maintainable in the court of law.[12] Therefore, until it is so pronounced by the competent authority, these moral rights will not become fundamental to the animals.

Majority rules?

            Dworkin would further critique the theory that laws should pursue utility. Deriving from his works Taking Rights Seriously[13], where he argues that a collective goal is not enough justification for imposing loss upon few individuals, and Is there a right to pornography[14], where he argues that individuals have a right to not suffer disadvantage on the basis of majority view; Dworkin would argue that usage of utility would lead to harm to minority on the basis of the majority. H. L. A. Hart would have a similar critique against the use of utility as it is majoritarian and so would cause detriment to the minorities.[15] To this Bentham would respond by stating that “…democracy [is] a set of institutions designed, not to discover the preponderant aggregate of individual interests, but to promote only the common interests of all the members of the community.”[16]

In continuation to this, he would further argue that “the will of the majority of the people … exhibits the nearest approach that can be made to the will of the whole.”[17] Bentham illustrates this by giving an example of election of representatives, where, he proposed comparative majority, which means having more votes than all other candidates, over absolute majority, which means having more votes than the cumulative of the votes of all other candidates.[18] Referring to this example, it can be seen that a system of absolute majority consisted of “complication … delay, vexation, expense, and non-election”[19], and one that gave for all minorities would be even worse off. Thus, the system of utility, being one of comparative majority, would be the best possible to understanding the repercussions of an action and thereby, deciding the best course of actions. Thus, the system might not be impeccable, but is reliable in decision making.

Room to change:

            Hart would further critique the system of utility as it does not allow for the change of the preferences of the individuals subject to it.[20] To illustrate in the current scenario, the animals could eventually grow fond of being in a controlled and protected environment where hunting and surviving would be the least of the worries. In that case the utility would increase without taking any action in direction of such. Hart could connect this to the concept of the Panopticon by Bentham which illustrates that the ever visibility allows for disciplinary change which is then internalized.[21] Applying this to the current scenario, Hart could argue that the animals could have internalized the environment of the zoo to an extent where they may develop a comfort to the environment. To this, Bentham would again respond by stating that the system of utility is not impeccable. Accounting for change, in an uncontrolled environment, would result to a cumbersome number of possibilities that would hinder with decision making and actions. Moreover, zoos are not as controlled as a Panopticon could be, and animal reasoning could be different from that of the humans. Based on these arguments, using utility to suggest that the respective legislations are causing more pain than pleasure is a valued judgement relevant to the present and so inspiring action now. The same statement might not be precise a century later, owing to the circumstances then, albeit there could be another statement based on the system of utility that might be relevant then.

Inherently immoral:

            Lon L. Fuller would critique Bentham stating that the laws in question need to have inner morality for them to be operational, which according to him is lacking in this case.[22] In the current scenario, he would argue, the laws are contradictory. The Prevention of Cruelty to Animals Act gives that animals shouldn’t be subject to unnecessary pain and cruelty and it also defines being caged in an exhibit of insufficient dimensions to allow for movement as cruelty.[23] The Wild Life (Protection) Act also states that animals are to not be harmed. Meanwhile the act also allows for the establishing and functioning of zoos that would in effect harm the animals.[24] By virtue of the law being contradictory and so lacking in inner morality, individuals are free to not follow it. Bentham would disagree: there certainly does exist an overlap between the laws, but when the laws refer to cruelty, harm, and pain towards animals, they do not take into consideration that zoos would result in such plight. Thus, as established, these laws would allow for harm or cruelty to the extent of the establishing and running of zoos.

The case for Bentham:

            Meeting all the criteria of law as per Bentham, the law at hand is legitimate; and based on the greater pain it might be causing to animals in comparison to the lesser pleasure, the law can be seen to be detrimental to utility. Being a positive theory, it is subject to critique from natural law theorists such as Aquinas who would argue that utility is in itself the following of the concept of the basic goods, which could be responded by illustrating the difference between the two: the concept of basic goods suggest that one is to keep pursuing these, while the concept of utility looks at the resultant pleasure or pain arising out of any action, be it a basic good as defined by Aquinas, and then enact.[25] Dworkin would argue that the law can be pronounced illegitimate based on principles[26], to which Bentham would reply that the law is still held valid until pronounced otherwise. Among many other jurists, Dworkin[27] and Hart[28] would critique the system of utility since it is majoritarian, so leaving room for harm to individuals of the minority, and that it does not allow for change. Bentham would respond to this by saying that the choice of the majority is the closest approximation of the common good of the whole.[29] Bentham’s approach to law would therefore help look at the law in terms of its own legitimacy and independent of this, its value to the government. The law could therefore be objectively understood for its characteristics as a positive law, and subjectively, based on, the effect that the law has by it so functioning.

[1] H. L. A. Hart, Essays on Bentham: Jurisprudence and Political Theory, (1982), at 108.

[2] id at 110.

[3] id at 112-114.

[4] id.

[5] Stephen R. Munzer, A Theory Of Property, (1990), at 195.

[6] Brian Bix, Jurisprudence: Theory and Context, (5th ed. 2009), at 71.

[7] id at 72.

[8] id.

[9] Dennis Ejikeme Igwe, Natural Rights as ‘Nonsense upon Stilts’: Assessing Bentham, International Journal of Arts & Sciences 379–385 (2015) at 380-381.

[10] Ronald Dworkin, Taking Rights Seriously, (1977), at 22-27.

[11] id at 191.

[12] Igwe, supra note 13 at 379.

[13] Dworkin, supra note 14at xi.

[14] Ronald Dworkin, Is There A Right To Pornography?, Oxford Journal of Legal Studies 177–212 (1981).

[15] H. L. A. Hart, Between Utility and Rights, 79 Columbia Law Review 828–846 (1979) at 829-830.

[16] Michael James, Public Interest and Majority Rule in Bentham’s Democratic Theory, 9 Political Theory 49–64 (1981) at 49.

[17] id at 57.

[18] id.

[19] id.

[20] Hart, supra note 19 at 830-831.

[21] Bernard E. Harcourt, Exposed: desire and disobedience in the digital age (2015) at 80.

[22] Bix, supra note 10, at 86.

[23] Section 11(e), The Prevention of Cruelty to Animals Act, 1960.

[24] Section 38H, The Wild Life (Protection) Act, 1972.

[25] Munzer, supra note 5.

[26] Dworkin, supra note 14.

[27] id at xi; Dworkin, supra note 18.

[28] Hart, supra note 19.

[29] James, supra note 21.


Naman Goyal

Naman is a fourth-year law student in O.P. Jindal Global Law School. He is currently working towards better understanding of how differences in philosophical underpinnings shape the countries of the world.

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