INTRODUCTION:

Jeremy Bentham (15 February 1748 – 6 June 1832)

Bentham was an English philosopher, jurist and social reformer. He is regarded as the founder of modern utilitarianism. Bentham became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfares. He advocated individual and economic freedom, usury, the separation of church and state, freedom of expression, equal rights for women, the right to divorce, and the decriminalising of homosexual acts.¹ He called for the abolition of slavery and the death penalty, and for the abolition of physical punishment, including that of children.² Though strongly in favour of the extension of individual legal rights, he opposed the idea of natural law and natural rights, calling them "nonsense upon stilts".³

Bentham's students included his secretary and collaborator James Mill, the latter's son, John Stuart Mill, the legal philosopher John Austin, as well as influential political figures such as Robert Owen, one of the founders of modern socialism.

Bentham has been described as the "spiritual founder" of University College London,⁴ though he played little direct part in its foundation. In recent years he has become known as an early advocate of animal rights.⁵

JOHN AUSTIN (1790-1859)

John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to law known as “legal positivism.” Austin's particular command theory of law has been subject to pervasive criticism, but its simplicity gives it an evocative power that continues to attract adherents. Austin’s work is largely derivative of Bentham’s Of Laws in General (OLG) which had greatly influenced the though process of Austin, his disciple and which shaped his concept of law and sovereignty. He was regarded as the “Father of English Jurisprudence” who early in his career, came under the fold of utilitarian theory of Jeremy Bentham. Bentham and Austin’s concept of law is imperative in nature as they believed that the source of law is the will of sovereign.⁶ Like Bentham, Austin believed that “law” is only an aggregate of individual laws.⁷ In his views all laws are rules the majority of which regulate behavior. These are either directives or those imposed by general opinion. Directives have to be laid down “posited”; and a directive, whether general or particular, is ‘the expression or intimation of your wish’ that another shall do or forebear, issued in the form of a command. Accordingly, a law in its most comprehensive signification is ‘a rule laid down for the guidance of an intelligent being by an intelligent being having power over him’. This can only be accomplished by a determinate person or body, since an indeterminate body cannot express wishes in the form of commands.

AUSTIN’S DEFINITION OF LAW AND ITS CLASSIFICATION

“A law in its most general sense is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”⁸

Austin distinguishes between what he called “laws properly so- called” and “laws improperly so-called”.

LAW PROPERLY SO CALLED

The key to a “law properly so-called” lies in obligation, which was approached as follows- every wish with regard to conduct is favourable to conduct which is desired and unfavourable to conduct which is not desired. Such wishes may emanate from directives or from general opinion, but wishes that are directives are distinguishable in that they render conduct obligatory. A person is under an obligation, not simply when consequences harmful to him ensue, for, if so, there would be an obligation not to put ones hand in the fire. An obligation exists when another has the power and purpose of inflicting and evil on any actor, who fails to conform to the desired conduct.⁹ This other may be God, or human beings acting as political superiors, i.e. a sovereign person or body of persons in an independent political society, or private persons acting in pursuance of rights conferred upon them by political superior. General opinion cannot create obligations. Every directive, then, is a command, the threat of evil is a sanction, and the party commanded or threatened is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for obedience.¹⁰ He sub-divided laws ‘properly so-called’ into laws set by God, Divine laws, and laws set by men to men acting as political superiors or in pursuance of rights conferred by political superior. To every law set by men to men he applied the term- ‘positive law’ or ‘law simply and strictly so-called’ so as to distinguish them from the laws of God.¹¹ Positive laws are the subject matter of jurisprudence.

LAW IMPROPERLY SO CALLED

Laws improperly so called are those which are not set – directly or indirectly – by a political superior. Under the heading of laws ‘improperly so called’ Austin placed, first of all, ‘laws by analogy’ i.e. laws set and enforced by mere opinion, such as the laws of fashion, international law, etiquette and so forth. This kind of law also includes ‘laws by metaphor’, which covers expressions of the uniformities of Nature. To all these Austin gives the name of ‘positive morality’- ‘positive’ so as to distinguish them from the laws of God, ‘morality’ so as to distinguish them from positive law or law strictly so called.

POSITIVE LAW

Austin definition of law is one of the first, and one of the most distinctive, theories that views law as being “imperium oriented”—viewing law as mostly the rules imposed from above from certain authorized (pedigreed) sources. Austin defined law as a command of the sovereign which is backed by legal sanctions. Thus, according to Austin, positive law has three characteristic features- it is a type of command, it is laid down by a political superior and it is enforceable by sanction. All positive law is deduced from a clearly determinable law-giver as sovereign.

COMMAND THEORY

Every law or rule is a command:“If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an evil in case I comply not with your wish, the expression of your wish is a command.”¹² ‘Command’ is distinct from requests, wishes and so on. As per Austin, all the rest are simply expression of desire, while commands are expressions of desire given by superiors to inferiors. This creates a hierarchy of status among those governed and those governing. The governed are bound by the desires expressed by the superiors and cannot demur. This relationship of superior to inferior consists for Austin in the power which the former enjoys over the latter, i.e. his ability to punish him for disobedience. A command is thus an expression of desire where the person to whom the desire is expressed is liable to an evil (or detriment) if it is not complied with.¹³ Consequently, the subjection of the inferior to the superior consists in his ability to suffer a penalty for disobedience.

Austin himself said that ‘law is a species of command’, and not vice versa. For a command to qualify as law, the command must have been given by a political superior, or sovereign. Thus, Austin distinguishes laws from other command by their generality. The ideas or notions comprehended by command are the following:

1. A wish or desire conceived by a rational being that another rational being shall do or forbear from something.

2. An evil to proceed from the former and to be incurred by the latter in the event that the wish is not complied with.

3. An expression of the wish by words or other signs.

In summary then, Austin says that all laws are set by intelligent beings to intelligent beings having power over them (excluding laws of physics and relating to animals). He said that all laws involve the concepts of command duty and sanction and the relationship of superior and subordinate

Analytical Jurisprudence and Legal Positivism

Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's utilitarianism is evident (though with some differences) in the work for which Austin is best known today. On Austin's reading of utilitarianism, Divine will is equated with Utilitarian principles: “The commands which God has revealed we must gather from the terms wherein they are promulgated. The command which he has not revealed, we must construe by the principle of utility”. This particular reading of utilitarianism, however, has had little long-term influence, though it seems to have been the part of his work that received the most attention in his own day. Some have also seen Austin as being one of the early advocates of “rule utilitarianism.” Additionally, Austin early on shared many of the ideas of the Benthamite philosophical radicals; he was “a strong proponent of modern political economy, a believer in Hartian metaphysics, and a most enthusiastic Malthusian”. Austin was to lose most of his “radical” inclinations as he grew older. Austin's importance to legal theory lies elsewhere—his theorizing about law was novel at four different levels of generality.

First, he was arguably the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were secondary to more general moral and political theories). Analytical jurisprudence emphasizes the analysis of key concepts, including “law,” “(legal) right,” “(legal) duty,” and “legal validity.” Though analytical jurisprudence has been challenged by some in recent years, it remains the dominant approach to discussing the nature of law. Analytical jurisprudence, an approach to theorizing about law, has sometimes been confused with what the American legal realists (an influential group of theorists prominent in the early decades of the 20th century) called “legal formalism”—a narrow approach to how judges should decide cases. The American legal realists saw Austin in particular, and analytical jurisprudence in general, as their opponents in their critical and reform-minded efforts. In this, the realists were simply mistaken; unfortunately, it is a mistake that can still be found in some contemporary legal commentators.

Second, Austin's work should be seen against a background where most English judges and commentators saw common-law reasoning (the incremental creation or modification of law through judicial resolution of particular disputes) as supreme, as declaring existing law, as discovering the requirements of “Reason,” as the immemorial wisdom of popular “custom.” Such (Anglo-American) theories about common law reasoning fit with a larger tradition of theorizing about law (which had strong roots in continental European thought—e.g., the historical jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that generally law did or should reflect community mores, “spirit,” or custom. In general, one might look at many of the theorists prior to Austin as exemplifying an approach that was more “community-oriented”—law as arising from societal values or needs, or expressive of societal customs or morality. By contrast, Austin's is one of the first, and one of the most distinctive, theories that views law as being “imperium oriented”—viewing law as mostly the rules imposed from above from certain authorized (pedigreed) sources. More “top-down” theories of law, like that of Austin, better fit the more centralized governments (and the modern political theories about government) of modern times.¹⁴

Third, within analytical jurisprudence, Austin was the first systematic exponent of a view of law known as “legal positivism.” Most of the important theoretical work on law prior to Austin had treated jurisprudence as though it were merely a branch of moral theory or political theory: asking how should the state govern? (and when were governments legitimate?), and under what circumstances did citizens have an obligation to obey the law? Austin specifically, and legal positivism generally, offered a quite different approach to law: as an object of “scientific” study, dominated neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin's efforts to treat law systematically gained popularity in the late 19th century among English lawyers who wanted to approach their profession, and their professional training, in a more serious and rigorous manner.

Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or “conceptual”—though this is not a term Austin used) theory of law. (The main competitor to legal positivism, in Austin's day as in our own, has been natural law theory.) Legal positivism does not deny that moral and political criticism of legal systems is important, but insists that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism.

There were theorists prior to Austin who arguably offered views similar to legal positivism or who at least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with his amoral view of laws as the product of Leviathan; David Hume, with his argument for separating “is” and “ought” (which worked as a sharp criticism for some forms of natural law theory, which purported to derive moral truths from statements about human nature; and Jeremy Bentham, with his attacks on judicial lawmaking and on those, like Sir William Blackstone, who justified such lawmaking with natural-law-like justifications.

Austin's famous formulation of what could be called the “dogma” of legal positivism is as follows:“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”

Fourth, Austin's version of legal positivism, a “command theory of law” (which will be detailed in the next section), was also, for a time, quite influential. Austin's theory had similarities with views developed by Jeremy Bentham, whose theory could also be characterized as a “command theory.” Bentham, in a posthumously published work, would define law as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed 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: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question. However, Austin's command theory was more influential than Bentham's, because the latter's jurisprudential writings did not appear in an even-roughly systematic form until well after Austin's work had already been published, with Bentham's most systematic discussion only appearing posthumously, late in the 20th century

Bentham’s Utililtarian Approach and other legal works

Bentham's ambition in life was to create a "Pannomion", a complete utilitarian code of law. He not only proposed many legal and social reforms, but also expounded an underlying moral principle on which they should be based. This philosophy of utilitarianism took for its "fundamental axiom, it is the greatest happiness of the greatest number that is the measure of right and wrong". Bentham claimed to have borrowed this concept from the writings of Joseph Priestley, although the closest that Priestley in fact came to expressing it was in the form "the good and happiness of the members, that is the majority of the members of any state, is the great standard by which everything relating to that state must finally be determined".

The "greatest happiness principle", or the principle of utility, forms the cornerstone of all Bentham's thought. By "happiness", he understood a predominance of "pleasure" over "pain". He wrote in The Principles of Morals and Legislation:

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think.

Another way to think about the principle of utility in the context in which Bentham explains it is, "usefulness." That is, Bentham talks about utility as a function of usefulness--how useful a product is determines how much we are willing to give up to obtain the product or service. The more useful the product is to us, the more value as a result we are willing to pay or exchange for the product (based on a money or barter economy, of course). The usefulness in exchange according to Bentham is the key incentive for purchase or exchange. He also suggested a procedure for estimating the moral status of any action, which he called the Hedonistic or felicific calculus. Utilitarianism was revised and expanded by Bentham's student John Stuart Mill. In Mill's hands, "Benthamism" became a major element in the liberal conception of state policy objectives.

In his exposition of the felicific calculus, Bentham proposed a classification of 12 pains and 14 pleasures, by which we might test the 'happiness factor' of any action. Nonetheless, it should not be overlooked that Bentham's 'hedonistic' theory¹⁵, unlike Mill's, is often criticized for lacking a principle of fairness embodied in a conception of justice. In "Bentham and the Common Law Tradition", Gerald J. Postema states, "No moral concept suffers more at Bentham's hand than the concept of justice. There is no sustained, mature analysis of the notion.” Thus, some critics object, it would be acceptable to torture one person if this would produce an amount of happiness in other people outweighing the unhappiness of the tortured individual. However, as P.J. Kelly argued in his book, Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Bentham had a theory of justice that prevented such consequences. According to Kelly, for Bentham the law "provides the basic framework of social interaction by delimiting spheres of personal inviolability within which individuals can form and pursue their own conceptions of well-being." It provides security, a precondition for the formation of expectations. As the hedonic calculus shows "expectation utilities" to be much higher than natural ones, it follows that Bentham does not favour the sacrifice of a few to the benefit of the many.

Bentham's Principles of Legislation focuses on the principle of utility and how this view of morality ties into legislative practices. His principle of utility regards "good" as that which produces the greatest amount of pleasure and the minimum amount of pain and "evil" as that which produces the most pain without the pleasure. This concept of pleasure and pain is defined by Bentham as physical as well as spiritual. Bentham writes about this principle as it manifests itself within the legislation of a society. He lays down a set of criteria for measuring the extent of pain or pleasure that a certain decision will create.

The criteria are divided into the categories of intensity, duration, certainty, proximity, productiveness, purity, and extent. Using these measurements, he reviews the concept of punishment and when it should be used as far as whether a punishment will create more pleasure or more pain for a society. He calls for legislators to determine whether punishment creates an even more evil offence. Instead of suppressing the evil acts, Bentham is arguing that certain unnecessary laws and punishments could ultimately lead to new and more dangerous vices than those being punished to begin with. Bentham follows these statements with explanations on how antiquity, religion, reproach of innovation, metaphor, fiction, fancy, antipathy and sympathy, begging the question, and imaginary law are not justification for the creation of legislature. Instead, Bentham is calling upon legislators to measure the pleasures and pains associated with any legislation and to form laws in order to create the greatest good for the greatest number. He argues that the concept of the individual pursuing his or her own happiness cannot be necessarily declared "right", because often these individual pursuits can lead to greater pain and less pleasure for the society as a whole. Therefore, the legislation of a society is vital to maintaining a society with optimum pleasure and the minimum degree of pain for the greatest amount of people.

CONCLUSION:

Austin's basic approach was to ascertain what can be said generally, but still with interest, about all laws. Austin's analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is forced to fill in much of the meta-theoretical, justificatory work, as it cannot be found in the text. Where Austin does articulate his methodology and objective, it is a fairly traditional one: he “endeavored to resolve a law (taken with the largest signification which can be given to that term properly) into the necessary and essential elements of which it is composed”. Within Austin's approach, whether something is or is not “law” depends on which people have done what: the question turns on an empirical investigation, and it is a matter mostly of power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much that is law that is not moral, and what makes something law does nothing to guarantee its moral value. “The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals”. In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking as “highly beneficial and even absolutely necessary”. Nor did Austin find any difficulty incorporating judicial lawmaking into his command theory: he characterized that form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the “tacit commands” of the sovereign; the sovereign's affirming the “orders” by its acquiescence. It should be noted, however, that one of Austin's later lectures listed the many problems that can come with judicial legislation, and recommended codification of the law instead.

REFERENCES:

1. V.D. Mahajan, Jurisprudence and Legal Theory, Eastern Book Co.

2. Wayne Morrison, Jurisprudence: from the Greeks to post-modernism

3. Salmond on Jurisprudence.

4. Ram Ahuja , Indian Social System, Rawat Publications.

5. Paul B. Horton and Chested L. Hunt, Sixth Edition, Tata Mcgraw Hill Education Private Limited.

6. Bowring edition, vol 8, p 322; Hart Bentham

7. DIAS.

8. See, Austin, John, The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge: Cambridge University Press, 1995) (first published, 1832).

9. Austin John, “The Province of Jurisprudence Determined” p.86.

10. Dias R W M Jurisprudence, 5^th edition, Butterworth and Co. (Publishers) Ltd. 1994, pp.344.

11. Austin John, “The Province of Jurisprudence Determined” p.86.

12. M.D.A. Freemen, Lloyd’s Introduction to Jurisprudence, 8^th ed., Sweet and Maxwell, p. 292.

13. Bix, Brian H., “Legal Positivism,” in The Blackwell Guide to the Philosophy of Law and Legal Theory (Martin P. Golding and William A. Edmundson, eds., Oxford: Blackwell, 2004), pp. 29-49.

14. Cotterrell a term from Justice. J.C. Smart

WEBILIOGRAPHY:

www.wikipedia.com

www.legal archives.com

www.thehindu.com

www.Jstore.org

Received on 11.03.2013 Modified on 01.04.2013

Int. J. Ad. Social Sciences 1(1): July –Sept. 2013; Page 29-33