Legal Theory and Research: A Comparative Study of Bentham and Austin

This article provides a comparative study of legal theories of Jeremy Bentham and John Austin. It discusses their views on the law, sovereignty, and sanctions. It also highlights the differences between their theories and provides criticism of their ideas.

Legal theory and Research
Title
Assignment Name:
Student Name:
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Legal theory and Research
Table of Contents
INTRODUCTION:....................................................................................................................3
JEREMY BENTHAM:..............................................................................................................3
JOHN AUSTIN:.........................................................................................................................5
DIFFERENCES BETWEEN THEORIES OF BENTHAM AND AUSTIN.............................7
CRITICISM:..............................................................................................................................7
CONCLUSION:.........................................................................................................................8
REFERENCES:........................................................................................................................10
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Legal theory and Research
The question selected for this assignment is “The law is written by the powerful”.
INTRODUCTION:
The statement that –“the law is written by the powerful”was the philosophy of Legal
Positivists. It was the answer provided to ‘what is law’ under the theory developed by Early
Positivists of Law in the 18th and 19th centuries. These Early Positivists were – Jeremy
Bentham and John Austin.
The Legal Positivists highlight on the notion of ‘Law as it is’1 based on the contention of
what is real, can be observed and does exist.2This school of thought was developed as a
response to the theories of Natural law3, which emphasised on the concept of ‘Law as it ought
to be’ and how laws can be created on the basis of morality to make them – just or
ethical.4Under the theories of Natural Law, law isnot considered to be man-made and that it is
based on the truthfulness of morality and justice.
Both the Positivists – Bentham and Austin followed the same focal idea of ‘what is law’, but
they differed in their opinion regarding common law, God and the moral element of law5.
The theory of legal positivism looks at the legal system of a society as solely dependent on
the sovereign present in that society. It does not look at the other key aspects of law, which
are morality, justice, will of people or the rule of law. Both these positivists followed this
theory of absolute power to the sovereign6.
JEREMY BENTHAM:
Jeremy Bentham was an English jurist, social reformer and philosopher. He is considered to
be one of the most prominent leasers of Legal positivism. He is also termed as ‘father of
Modern Utilitarianism’.
The definition of law provided by Bentham can be summarised as Law is the will of the
supreme authority. He opined that rules can only be a consequence of thecommands of a
sovereign authority and that only these rules can form the law of the land. Based on this
11H.L.A. Hart, The Concept of Law (1961, 2ndedn. Clarendon Law Series) 34
2 J. Penner, D. Schiff and R. Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and
Materials (2000) Lexis Nexis, UK, London, p. 92
3Jonathan Crowe, "Natural Law Theories" (2016) 11(2) Philosophy Compass.
4 E. Nalbandian, Notes on Jurisprudence: Natural Law Theories, I Mizan Law Review No. 1 June 2007, p. 167 -
168
5MacCormick, Neil (1985). “A Moralistic Case for A-moralistic Law,” 20 Valparaiso Law Review 1.
6Kelsen, Hans (1945). General Theory of Law and State, trans. A. Wedberg, repr. 1961. New York: Russell and
Russell.
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thought, he emphasised that the rules which arise from the will of the sovereign result in
more clear and specific laws as compared to the rules which are derived from a common law
system7.
Bentham was convinced that law flows from the force of the sovereign to regulate the people
and that it must be followed by the group of people to whom it is applicable.
Bentham did not believe the law to be moral or just. He did not link law with morality.
According to him, law is the result of commands issued by the sovereign, who is highest
body present in that territory and that supreme ruler does not follow any other person but
commands habitual obedience from the group of people living together8. In other words, this
sovereign is most powerful and his command is law.
Bentham also did not mention that this sovereign can only be an individual. He was of the
opinion that sovereign can be a body or group, however, this sovereign must not bow to any
other body or group.
Further, Bentham did not view the power of the sovereign as absolute. He thought that the
sovereign can, by his own will, limitor divide his power. He say agreements with external
agencies as a means to limit power of sovereign.
Bentham also opined that law should always be supported bysanctions9. Thus, the rules of
sovereign to become law must be backed by rewards and punishments.He visualised that
those people who follow the law of sovereign should be rewarded and those who do not
follow this law should be punished. This would encourage people to follow the law and deter
the ones not following laws by the penalties.
In consonance with this thought, he formulated the theory of utility, which states that all
people are governed by pain and pleasure, which act as their masters. Every person wishes
his pleasure to increase and his pains to decrease. Thus, while creating any rule or law, this
aspect should be kept in mind. Therefore, law should be measured on the amount of pain it
may cause to those who breach it and how much amount of pleasure it would provide to those
people who follow it10.
7 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008, Read Books) 79
8John Austin, The Province of Jurisprudence Determined (1832) 215
9Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008, Read Books) 79
10Kramer, Matthew (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford: Clarendon Press.
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This theory of utility is also termed as ‘greatest happiness principle’ since Bentham claimed
that the greatest happiness of greatest numbers can only be the measure of right or wrong. He
vehemently rejected natural rights and found that only ‘greatest happiness’ can become the
foundation of a free society.
Bentham also looked at liberty with his two elements. He commented that liberty is pleasure,
on the other hand, any restriction on this liberty is a pain11.
Bentham was quite insistent on writing or codifying the laws. He was interested in codifying
the laws of England as well as America.
JOHN AUSTIN:
John Austin was also a well-known legal philosopher belonging to England. He was a
disciple of Jeremy Bentham and took his work to a different level, though bit divergent with
his thought process but he made Bentham much more popular with his writings and works.
He is considered to have formulated the systematic alternate to both ‘natural law theories of
law’ and ‘utilitarianism’. His theory is regarded as a form of ‘analytic jurisprudence’12.
Austin clearly distinguished the ‘moral rules’ from ‘positive law’. He, unlike Bentham
believed that the fundamentalbasis of the moral ruleswas considered to be the lawdeclared by
God and as written in the ancient scriptures. He opined that will of God gives purpose and
takes care of the greatest happiness of all living beings.Austin was of the opinion that that the
laws of god even though not expressedor communicated in any method, are inferred from the
consequence of happinessof all persons collectively treated as greatest, inclinations of
humans to increase or decrease that factor. He firmly believed that utility helps to discover
divine pleasure13.
He diverged from the views of Bentham as regards the law being only laid down by
sovereign. He agreed to the category of law derived from sovereign, but also included the
moral laws provided by God through scriptures. He created subset of laws termed as ‘positive
law’.
Austin attempted to create a classification of all types of laws which were present in his
times. He wished to identify each law and call them by their proper names, e.g. divine law,
11Bentham, Jeremy (1782). Of Laws in General. Ed. H.L.A. Hart, 1970. London: Athlone Press.
12Morison, W. L. (1982) John Austin. Stanford: Stanford University Press.
13 Austin 1873: Lecture IV, p. 160
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moral law, customary laws,laws of private associations, laws of households, and also
international law.
So, he created two key categories of laws and termed them as: ‘Laws Properly So Called’ and
‘Positive Law’. Thus, he gave weightage to both the laws – laws from God as well laws
created by a sovereign. The former were termed as Divine Law and the latter as Positive
Law14.
He created another category of laws as ‘Laws improperly so called’. These laws were based
on the opinion of people and were formulated among themselves for systematic conduct. He
clarified that since there is no proper authority behind these laws, so the same are improper
laws.
The definition of positive law given by Austin is similar to Bentham. He also opined that the
commands of a sovereign should be supported bysanctions against the people who do not
obey those commands. He diverged from Bentham by using the term ‘political sovereign’
instead of only sovereign15.
He was of the opinion that a society must have a political sovereign for deriving the real
sense in to positive laws. In his eyes, political sovereignty of the society was real
independence.
Austin even justified few laws which though were improper as they did not have all the
elements of a proper law (political sovereign, command and sanction). These laws were16:
i) Declaratory laws
These were derived from a declaration, which only clarify or interpretthe existing
rules.
ii) Laws to repeal law
These were formulated to repeal the previous duties or rules.
iii) Laws of imperfect obligation
These referred to the laws which were not followed by any sanctions. He termed
these as duties which people were obliged to carry out e.g. keeping the city clean.
14R. Campbell, The Philosophy of Positive Law (1879) 234
15Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), Edward
N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2018/entries/legal-positivism/>.
16Green, Leslie (1999). “Positivism and Conventionalism,” 12 Canadian Journal of Law and Jurisprudence pp.
35-52.
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Austin also differentiated between positive law and positive morality. He defined positive
morality as rules which were similar to positive laws. However, he gave weightage to
positive laws in case of any conflict17.
DIFFERENCES BETWEEN THEORIES OF BENTHAM AND
AUSTIN
The first and foremost difference between these two great philosophers is on the belief of
God and his scriptures as source of law. Bentham did not support the idea that scriptures
could be considered as a source of law. He firmly believed in the will of sovereign as the will
ofGod cannot be ascertained.
On the other hand, Austin believed in both – the law of God as well as the law derived from
the will of a sovereign. He believed in writings of scriptures and treated them as a formidable
source of moral rules.
Another point of difference between them is as regards the definition of the term
‘sovereignty’. Bentham believes wholly in the supreme power of a sovereign. He sees the
sovereign as the most powerful and does not think that his power can be divided. Whereas,
Austin looks at sovereignty from a political aspect. He thinks that sovereignty is based on not
only internal but also external aspects. He also talks about limiting or dividing this
sovereignty, which is different from that of Bentham who visuals sovereign as absolute.
Both Bentham and Austin had different views on the sanctions associated with the laws.
Bentham stated that laws should have both elements - pleasure and pain. If the law was
followed by the people, then they should be rewarded and if they did not follow the law, then
they should be punished.
On the other hand, Austin talks only about the sanctions. He does not mention about
rewarding the people if they follow the laws. He refers only to the punishments once the laws
are disobeyed.
The whole perspective put by Bentham of – greatest happiness is lost in the teachings of
Austin.
Another key area of disagreement between Austin and Bentham is that of judiciary. The
sovereign as per Benthamdoes not require courts to play any role in legal development. The
17 John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic) 135
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sovereign has the supreme power. However, Austin’s ideas of utilitarianism fuelled the belief
that judiciary18will help in creating laws which will also be beneficial for the public at large.
CRITICISM:
There were short falls in views of both Jeremy Bentham and John Austin. Both being
Positivists laid heavy emphasis on the power of sovereign. They both treated their sovereigns
with extreme power and command, however they both did not give any importance to
international law19. What happens to other sovereigns who might exist beyond the territorial
limitation of the current sovereign? Should one sovereign not observe the sovereignty of
others?
They both talk only about the law of the land. What happens to other sovereigns which are
present in other lands?
Both the philosophers also did not assess the requirement of system for assessment of the
laws created by the sovereign. Judiciary was also nearly absent. Is a system not required to
keep a check on the absolute powers of sovereign?
The concept of law to be linked only with sanctions (or rewards as well in the case of
Bentham) is itself flawed. The laws are not created only for the happiness of all people, but
the whole idea is to have a systematic and regulated life20.Does the meaning of law only
implies penalties and punishments? Can a person or group of people for that matter be
rewarded for following a law?
Further, Bentham does not prove that the law should be for greater happiness; he merely uses
this as an assumption to base his theory, which eventually became the cornerstone of his
philosophy and was also followed by other thinkers. What is the basis of creating those rules
which provide happiness? Does the concept of law only require greater numbers21?
CONCLUSION:
Law is not a system purely based on the will of the ‘strongest person’. Law can also not be
based on system of rewards and sanctions.
18Himma, Kenneth E., "Judicial Discretion and the Concept of Law," forthcoming in Oxford Journal of Legal
Studies vol. 18, no. 1 (1999)
19Finnis, John (1996). “The Truth in Legal Positivism,” in The Autonomy of Law, ed. Robert P. George. Oxford:
Clarendon Press, pp. 195-214.
20Fuesser, Klaus (1996), “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling,” in The Autonomy
of Law, ed. Robert P. George. Oxford: Clarendon Press, pp.119-162.
21Gardner, John (2001) “Legal Positivism: 5 ½ Myths,” 46 American Journal of Jurisprudence 199.
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The system of law cannot be in the hands of a sovereign who does not obey anyone but must
be obeyed by everyone. This philosophy is more like dictatorship where the sovereign has all
the powers and can decide on all matters without any restrictions from any one. The
sovereign also does not observe the power vested in another sovereign, which can never be
the case.
There is no due given to morality by the Legal Positivists. These theories look at the common
good of all people and term it as greatest happiness but fail to conduct a morality check of the
laws being created by the sovereign22 or for that matter to even the authority of that
sovereign.
22Schauer, Fred (1996), “Positivism as Pariah,” in R.P. George, ed. The Autonomy of Law. Oxford: Clarendon
Press.
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REFERENCES:
Austin 1873: Lecture IV.
Bentham, Jeremy (1782). Of Laws in General. Ed. H.L.A. Hart, 1970. London: Athlone
Press.
Crowe, Jonathan, "Natural Law Theories" (2016) 11(2) Philosophy Compass.
E. Nalbandian, Notes on Jurisprudence: Natural Law Theories, I Mizan Law Review No. 1
June 2007
Finnis, John (1996). “The Truth in Legal Positivism,” in The Autonomy of Law, ed. Robert
P. George. Oxford: Clarendon Press.
Fuesser, Klaus (1996), “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling,”
in The Autonomy of Law, ed. Robert P. George. Oxford: Clarendon Press.
Gardner, John (2001) “Legal Positivism: 5 ½ Myths,” 46 American Journal of Jurisprudence.
Green, Leslie (1999). “Positivism and Conventionalism,” 12 Canadian Journal of Law and
Jurisprudence.
Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2018
Edition), Edward N. Zalta (ed.), URL =
<https://plato.stanford.edu/archives/spr2018/entries/legal-positivism/>.
H.L.A. Hart, The Concept of Law (1961, 2nd edn. Clarendon Law Series).
Himma, Kenneth E., "Judicial Discretion and the Concept of Law," forthcoming in Oxford
Journal of Legal Studies vol. 18, no. 1 (1999)
J. Penner, D. Schiff and R. Nobles, Introduction to Jurisprudence and Legal Theory:
Commentary and Materials (2000) Lexis Nexis, UK, London.
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (2008, Read
Books)
John Austin, Lectures on Jurisprudence (2002, Vol. 1, Bloomsbury Academic)
John Austin, The Province of Jurisprudence Determined (1832)
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Kelsen, Hans (1945). General Theory of Law and State, trans. A. Wedberg, repr. 1961. New
York: Russell and Russell.
Kramer, Matthew (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford:
Clarendon Press.
MacCormick, Neil (1985). “A Moralistic Case for A-moralistic Law,” 20 Valparaiso Law
Review 1.
Morison, W. L. (1982) John Austin. Stanford: Stanford University Press.
R. Campbell, The Philosophy of Positive Law (1879)
Schauer, Fred (1996), “Positivism as Pariah,” in R.P. George, ed. The Autonomy of Law.
Oxford: Clarendon Press.
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