The sense of justice...

The sense of justice, Mill pointed out, encompasses all those moral requirements, which are most essential for the well being of mankind and which human beings therefore regard as sacred and obligatory.10 Apart from the above differences, Bentham's notion of subordination of justice to utility is further evident by the fact that he was opposed to wide judicial discretion to be given to judges to interpret the laws.

He counsels that judicial interpretation should have no other role than strict interpretation, not an activist interpretation which gets "rid of the intention clearly and plainly expressed" and substitutes judicial intention for the legislative one.11 Bentham has characterized an activist judge as a charlatan who nourishes the spectators by making sweet and bitter run from the same cup.12 While making a scathing attack of judicial activism, Bentham observed: "The serpent, it is said can pass his whole body whenever he can introduce his head.

As respects legal tyranny, it is this subtle head of which we must take care, least presently we see it followed by all the tortious fields of abuse. 13 Prof. Upendra Baxi is of the opinion that Benthamite condemnation, of a Judge as usurper, who substitutes his will for that of the legislatior as a conscious overtaker who produces and reproduces arbitrariness is clearly addressed to a context where the legislator has, in fact followed Bentham's Counsel of producing clear laws.

It is only in such contexts that judicial activism, rightly thus stands condemned.14 Bentham's condemnation of Judges is not confined to mere usurpation of powers but he also condemned the delay and denial of justice on the part of Judges.

He addressed them scomfully as "Judges and Co."15 and even advocated the abolition of House of Lords and Monarchy.16 It is, therefore, submitted that although Bentham does not formulate anywhere in the "Theory" a fully fledged justification of judicial review, Prof. Baxi opines that it is embedded in the notion of reciprocal dependence of three powers.

"The principle of utility asks us to guard against all forms of usurpation of political (legislative) power.17 Thus, while recapitulating our discussion on Bentham's notion of justice, it is submitted that there is no elaborate and systematic theory of justice given by Bentham. His theory of justice is grounded in the happiness of individual and not that of society, which he never recognized.