Reading – PSN chapter 3, C chapter 3
Lecture 3. Early Legal Positivism: Bentham
Introducing early positivism
The ‘positivist’ mind-set
- The Enlightenment (1650-1800): intense and critical examination of the foundations of human knowledge
- Suspicion of the ‘pretensions’ to knowledge by metaphysics, theology – that it is all too speculative, not trustworthy,
and in the end, rests on nothing but someone’s say-so (e.g. the Pope) or on tradition
- So very much secular – unwilling to simply bow to religious authorities
- They searched for a more trustworthy method for establishing what exists and what we can know – something you can
test, something that can be proven… a fact: something that anyone employing a certain method can test and see for
themselves that it is a fact (something to be known)
The legal positivists
- Commitment to a method that can identify the law without relying on (as above) on religious authority or tradition
- Thus, they treat law as artifice: as something that is created (‘posited’) at a certain time and place, such that its origin
can be traced back to a source
- They differ as to what the source is: some say it is the will of the sovereign (Bentham, Austin), and some say it is a rule
(rule of recognition in Hart, the Basic Norm in Kelsen)
- But what unites them, arguably, is the search for a test of the validity of the law that treats it as a fact one can know
Important figures in the history of legal positivism
- Thomas Hobbes (1588-1679) - ‘A law is the Command of him, or them that have the Sovereign Power, given to those
that be his or their Subjects, declaring Publickly, and plainly what every of them may do, and they must forbear to do’
- David Hume (1711-1776)
- Jeremy Bentham (1748-1832)
- John Austin (1790-1859)
- (And then others in the 20th century)
Focus in this course
- We will focus primarily on Bentham and Austin. Austin’s theory is the subject of a famous, generally regarded as
devastating, criticism from HLA Hart. For this reason, Austin tends to be emphasised more than Bentham in discussions
of early positivist theories.
- However, Austin borrows a great deal from Bentham, and Bentham’s theory is arguably more sophisticated. So we will
first try to get to grips with Bentham, then turn to Austin.
Jeremy Bentham (1748-1832)
Biographical
- Born in Spitalfields, London, on 15 February 1748
- Learnt Latin at 3, went to Queen’s College Oxford at 12 – there he attended William Blackstone’s lectures; throughout
his life was critical of Blackstone (and his Commentaries)
- Aged 15 member of Lincoln’s Inn
- Key texts
1776: published part of his critique of Blackstone, A Fragment of Government
1789: An Introduction to the Principles of Morals and Legislation
1803-1808: Rationale of Judicial Evidence
1830: first volume of a Constitutional Code (the intellectual project of creating a code occupied him for the rest
of his life and remained unfinished at his death in 1832)
Lots of work was unpublished at his death, and to this day not all of it has been published. (The work of
digitising and transcribing all of Bentham’s work is still underway at the: Transcribe Bentham Project at UCL.)
HLA Hart became an editor of Bentham’s transcripts and helped publish some of them: e.g. Of Laws in General
(1970)
Historical background
Utilitarianism
- ‘the principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to
have to augment or diminish the happiness of the party whose interest is in question’
- Greatest happiness: Maximise pleasure, minimise pain
- The creation and administration of law should be guided by this
Who Bentham was influenced by / responding to?
- Hobbes
Takes from Hobbes the idea of law something issued by a sovereign
But also disagrees with Hobbes on some crucial matters, e.g. criticised Hobbes’ ‘social contract’ as a fiction
Lecture 3. Early Legal Positivism: Bentham
Introducing early positivism
The ‘positivist’ mind-set
- The Enlightenment (1650-1800): intense and critical examination of the foundations of human knowledge
- Suspicion of the ‘pretensions’ to knowledge by metaphysics, theology – that it is all too speculative, not trustworthy,
and in the end, rests on nothing but someone’s say-so (e.g. the Pope) or on tradition
- So very much secular – unwilling to simply bow to religious authorities
- They searched for a more trustworthy method for establishing what exists and what we can know – something you can
test, something that can be proven… a fact: something that anyone employing a certain method can test and see for
themselves that it is a fact (something to be known)
The legal positivists
- Commitment to a method that can identify the law without relying on (as above) on religious authority or tradition
- Thus, they treat law as artifice: as something that is created (‘posited’) at a certain time and place, such that its origin
can be traced back to a source
- They differ as to what the source is: some say it is the will of the sovereign (Bentham, Austin), and some say it is a rule
(rule of recognition in Hart, the Basic Norm in Kelsen)
- But what unites them, arguably, is the search for a test of the validity of the law that treats it as a fact one can know
Important figures in the history of legal positivism
- Thomas Hobbes (1588-1679) - ‘A law is the Command of him, or them that have the Sovereign Power, given to those
that be his or their Subjects, declaring Publickly, and plainly what every of them may do, and they must forbear to do’
- David Hume (1711-1776)
- Jeremy Bentham (1748-1832)
- John Austin (1790-1859)
- (And then others in the 20th century)
Focus in this course
- We will focus primarily on Bentham and Austin. Austin’s theory is the subject of a famous, generally regarded as
devastating, criticism from HLA Hart. For this reason, Austin tends to be emphasised more than Bentham in discussions
of early positivist theories.
- However, Austin borrows a great deal from Bentham, and Bentham’s theory is arguably more sophisticated. So we will
first try to get to grips with Bentham, then turn to Austin.
Jeremy Bentham (1748-1832)
Biographical
- Born in Spitalfields, London, on 15 February 1748
- Learnt Latin at 3, went to Queen’s College Oxford at 12 – there he attended William Blackstone’s lectures; throughout
his life was critical of Blackstone (and his Commentaries)
- Aged 15 member of Lincoln’s Inn
- Key texts
1776: published part of his critique of Blackstone, A Fragment of Government
1789: An Introduction to the Principles of Morals and Legislation
1803-1808: Rationale of Judicial Evidence
1830: first volume of a Constitutional Code (the intellectual project of creating a code occupied him for the rest
of his life and remained unfinished at his death in 1832)
Lots of work was unpublished at his death, and to this day not all of it has been published. (The work of
digitising and transcribing all of Bentham’s work is still underway at the: Transcribe Bentham Project at UCL.)
HLA Hart became an editor of Bentham’s transcripts and helped publish some of them: e.g. Of Laws in General
(1970)
Historical background
Utilitarianism
- ‘the principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to
have to augment or diminish the happiness of the party whose interest is in question’
- Greatest happiness: Maximise pleasure, minimise pain
- The creation and administration of law should be guided by this
Who Bentham was influenced by / responding to?
- Hobbes
Takes from Hobbes the idea of law something issued by a sovereign
But also disagrees with Hobbes on some crucial matters, e.g. criticised Hobbes’ ‘social contract’ as a fiction
