Jurisprudence (Tripos Paper 37)
Utilitarianism
Jeremy Bentham was a utilitarian thinker who supported a legal system that was based,
analogously in his terms to medicine, on complete codification of the common law. He is
best known for his “principle of utility”, inspired by the work of earlier liberal and scientist
Joseph Priestley. Benthamite utilitarianism demands that state decisions, including laws,
be made with a view to creating the most pleasure for the most people, with a view in all
contexts (including punishment) to 7 criteria: intensity, duration, certainty, proximity,
productiveness, purity and extent.
J S Mill was Bentham’s pupil and developed his mentor’s utilitarian ideas by splitting
pleasures into higher and lower ones and addressing more specifically social inequalities
like sexism and racism. Mill is more known for his works of transitional liberalism, in
which he developed the ‘harm principle’ which stipulated that the prevention of harm was
the only legitimate ground for state action. Mill was also an influential constitutional
theorist and advocated for a system of checks and balances to mitigate ‘the tyranny of the
majority’.
Glanville Williams was a Welsh legal academic who was described by one contemporary as
‘the illegitimate child of Jeremy Bentham’. Williams’ utilitarian theory of law is
characterised by what he saw as positivist, secular tenets of law: clarity, consistency,
accessibility, and humanity.
Early Positivism
John Austin was Bentham and Mill’s friend and shared both their empirical view of law and
the idea that law should maximise pleasure. He developed this empirical perspective into
“legal positivism”, an ideology that traces human-made laws back to human lawmakers
and not to ephemeral moral concepts. Austin’s positivism was a “command theory” which
framed legal rules as the orders of a sovereign who backed them with the threat of sanction.
This model is sometimes described as ‘the gunman writ large’.
Hans Kelsen was an Austrian jurist whose scientific positivist approach echoed that of
Austin’s. Distinct in Kelsen’s theory however is a hierarchy, with constitutional law at the
top and the other areas of law underneath, deriving their validity and normativity from
above. This hierarchy is representative of Kelsen’s forceful rejection of natural law ideas of
moral derivation of validity: in place of it, this hierarchy would manifest the central norm
of a legal system, what Kelsen called a grundnorm, which would allow for its identification.
Max Weber was a German social scientist whose rational and scientific outlook contributed
to legal theory the idea that the state is defined as the entity with a monopoly on the
legitimate use of force. For Weber, the state is most effective when it chooses to rule by
rational-legal authority: organising society with reference to rationality, legal legitimacy
(legality) and bureaucracy. Put another way, for Weber law is the rational ground on which
a state can exercise force.
, Core Thinkers (Legal)
HLA Hart was an English barrister, legal academic and spy. His book The Concept of Law
(1961) contributed a series of key theses to what has become modern legal positivism. Hart
decimated Austin’s command theory and built in its place a notion of ‘the union of primary
and secondary rules’, where the primary (legal) rules are explained by secondary rules
which determine their creation, alteration, deletion, adjudication and recognition. The last
of these, and the most important, is an evolution of Kelsen’s grundnorm. Hart noted that, to
understand law, we must view it from the internal point of view – that of the legal official,
with a standing disposition to obey, condemn others, and accept our own condemnation.
Lon Fuller was an American legal academic who advanced a procedural natural law theory
wherein the internal (and minimal) morality and existence of law is embodied in 8
desiderata: (1) generality, (2) promulgation, (3) prospectiveness, (4) clarity and
intelligibility, (5) consistency, (6) not impossible or extremely burdensome to follow, (7)
sufficient stability across time and (8) state officials must act and decide on the basis of,
and in accordance with, the law (‘congruence’). Fuller argues that these principles of
legality create a predisposition toward and protection of external morality of law, and
promote autonomy and dignity by implicit social contract.
John Finnis was Dworkin’s colleague at Oxford and remains a legal academic today. He
advanced a modernised version of classical natural law theory which sees law as rules made
for a community and buttressed by sanctions which are directed towards reasonably
resolving ‘problems of coordination’ that arise between individuals pursuing the 7 basic
goods: (1) life, (2) knowledge, (3) play, (4) aesthetic experience, (5) sociability, (6) practical
reasonableness, and (7) religion. This sixth basic good also provides the structure for
navigating the others, and is itself made of 9 ‘requirements’: (1) the rational life plan, (2)
the absence of arbitrary preference between values, (3) the absence of arbitrary preference
amongst persons, (4) the retention of an idea of the bigger picture, (5) loyalty to our
commitments, (6) efficient bringing about of good, (7) the lack of conduct which is
detrimental to the pursuit of basic goods, (8) the favouring and fostering of the good of our
community, and (9) acting in accordance with conscience.
Ronald Dworkin was an American lawyer and philosopher, and Hart’s colleague and
successor at Oxford, who argues that the ‘conventionalist’ approach of legal positivists fails
to account for the disagreement as to the sources of law present in appellate cases.
Dworkin’s proposed solution is to perceive law as a body of decisions which possess an
internal consistency of political morality about how state force is to be exercised. Dworkin
has since suggested (in 2011) that the desire to live a good life and connect to what we owe
others should be the leading values for all, and so legal, theory.
Debate on Fuller
Nigel Simmonds was a Cambridge legal academic whose book Law as A Moral Idea (2007)
advances and affirms Fuller’s theory. In a protracted debate with Matthew Kramer (below),
Simmonds argued that Fuller’s desiderata of congruence worked to demonstrate the lack of
moral compulsion wicked regimes would have to obey the rule of law, and thus the internal
Utilitarianism
Jeremy Bentham was a utilitarian thinker who supported a legal system that was based,
analogously in his terms to medicine, on complete codification of the common law. He is
best known for his “principle of utility”, inspired by the work of earlier liberal and scientist
Joseph Priestley. Benthamite utilitarianism demands that state decisions, including laws,
be made with a view to creating the most pleasure for the most people, with a view in all
contexts (including punishment) to 7 criteria: intensity, duration, certainty, proximity,
productiveness, purity and extent.
J S Mill was Bentham’s pupil and developed his mentor’s utilitarian ideas by splitting
pleasures into higher and lower ones and addressing more specifically social inequalities
like sexism and racism. Mill is more known for his works of transitional liberalism, in
which he developed the ‘harm principle’ which stipulated that the prevention of harm was
the only legitimate ground for state action. Mill was also an influential constitutional
theorist and advocated for a system of checks and balances to mitigate ‘the tyranny of the
majority’.
Glanville Williams was a Welsh legal academic who was described by one contemporary as
‘the illegitimate child of Jeremy Bentham’. Williams’ utilitarian theory of law is
characterised by what he saw as positivist, secular tenets of law: clarity, consistency,
accessibility, and humanity.
Early Positivism
John Austin was Bentham and Mill’s friend and shared both their empirical view of law and
the idea that law should maximise pleasure. He developed this empirical perspective into
“legal positivism”, an ideology that traces human-made laws back to human lawmakers
and not to ephemeral moral concepts. Austin’s positivism was a “command theory” which
framed legal rules as the orders of a sovereign who backed them with the threat of sanction.
This model is sometimes described as ‘the gunman writ large’.
Hans Kelsen was an Austrian jurist whose scientific positivist approach echoed that of
Austin’s. Distinct in Kelsen’s theory however is a hierarchy, with constitutional law at the
top and the other areas of law underneath, deriving their validity and normativity from
above. This hierarchy is representative of Kelsen’s forceful rejection of natural law ideas of
moral derivation of validity: in place of it, this hierarchy would manifest the central norm
of a legal system, what Kelsen called a grundnorm, which would allow for its identification.
Max Weber was a German social scientist whose rational and scientific outlook contributed
to legal theory the idea that the state is defined as the entity with a monopoly on the
legitimate use of force. For Weber, the state is most effective when it chooses to rule by
rational-legal authority: organising society with reference to rationality, legal legitimacy
(legality) and bureaucracy. Put another way, for Weber law is the rational ground on which
a state can exercise force.
, Core Thinkers (Legal)
HLA Hart was an English barrister, legal academic and spy. His book The Concept of Law
(1961) contributed a series of key theses to what has become modern legal positivism. Hart
decimated Austin’s command theory and built in its place a notion of ‘the union of primary
and secondary rules’, where the primary (legal) rules are explained by secondary rules
which determine their creation, alteration, deletion, adjudication and recognition. The last
of these, and the most important, is an evolution of Kelsen’s grundnorm. Hart noted that, to
understand law, we must view it from the internal point of view – that of the legal official,
with a standing disposition to obey, condemn others, and accept our own condemnation.
Lon Fuller was an American legal academic who advanced a procedural natural law theory
wherein the internal (and minimal) morality and existence of law is embodied in 8
desiderata: (1) generality, (2) promulgation, (3) prospectiveness, (4) clarity and
intelligibility, (5) consistency, (6) not impossible or extremely burdensome to follow, (7)
sufficient stability across time and (8) state officials must act and decide on the basis of,
and in accordance with, the law (‘congruence’). Fuller argues that these principles of
legality create a predisposition toward and protection of external morality of law, and
promote autonomy and dignity by implicit social contract.
John Finnis was Dworkin’s colleague at Oxford and remains a legal academic today. He
advanced a modernised version of classical natural law theory which sees law as rules made
for a community and buttressed by sanctions which are directed towards reasonably
resolving ‘problems of coordination’ that arise between individuals pursuing the 7 basic
goods: (1) life, (2) knowledge, (3) play, (4) aesthetic experience, (5) sociability, (6) practical
reasonableness, and (7) religion. This sixth basic good also provides the structure for
navigating the others, and is itself made of 9 ‘requirements’: (1) the rational life plan, (2)
the absence of arbitrary preference between values, (3) the absence of arbitrary preference
amongst persons, (4) the retention of an idea of the bigger picture, (5) loyalty to our
commitments, (6) efficient bringing about of good, (7) the lack of conduct which is
detrimental to the pursuit of basic goods, (8) the favouring and fostering of the good of our
community, and (9) acting in accordance with conscience.
Ronald Dworkin was an American lawyer and philosopher, and Hart’s colleague and
successor at Oxford, who argues that the ‘conventionalist’ approach of legal positivists fails
to account for the disagreement as to the sources of law present in appellate cases.
Dworkin’s proposed solution is to perceive law as a body of decisions which possess an
internal consistency of political morality about how state force is to be exercised. Dworkin
has since suggested (in 2011) that the desire to live a good life and connect to what we owe
others should be the leading values for all, and so legal, theory.
Debate on Fuller
Nigel Simmonds was a Cambridge legal academic whose book Law as A Moral Idea (2007)
advances and affirms Fuller’s theory. In a protracted debate with Matthew Kramer (below),
Simmonds argued that Fuller’s desiderata of congruence worked to demonstrate the lack of
moral compulsion wicked regimes would have to obey the rule of law, and thus the internal
