Legal positivism is a theory explaining the nature of the legal system and laws. Law does not involve value judgments; such judgments belong to philosophy and theology. Law is not to indulge in such supposedly speculative matters. Instead, the law is a science dealing with nothing but positive legal facts. Jeremy Bentham was one of the first legal philosophers who developed a utilitarian approach in the legal sphere. Bentham supported natural laws and naturalism in legal matters following Moore’s naturalistic fallacy (Conklin 156). He never made clear how a subject such as law, in which even the judges of the positive law are inescapably engaged in decision-making, can thus separate itself in this ivory-tower manner from the ethical and ideological content of the concrete problems which judicial decisions are attempting to resolve.
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Jeremy Bentham to legal matters was influenced by utilitarianism which states that happiness is the main end of all actions and decisions. Following Bentham, nature has placed humankind 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 hand, the chain of causes and effects is fastened to their throne (Bentham 66).
Even the legal positivists themselves were forced to face the fact of norms and attempt some theory of legal obligation. Bentham saw (a) that there are no positive rules of law ever sufficiently positive to be effective which do not presuppose a legal norm carrying with its obligations; and (b) that consent and obligation are incompatible (Sebok, 24, 26). This preserves the fiction of the independence of law from ethics, providing one (a) identifies law with legal rules or with merely hypothetical propositions specifying the implications of the natural principles for the legal rules and the judge’s decision in applying them to a particular case and (b) assigns the natural principles themselves to some non-legal subject such as ethics or politics. (Conklin 159). Bentham underlines that to assert either of these naturalistic fallacies is to admit explicitly that the positivistic philosophy of law can make no contribution to the bringing of disputes between nations under the rule of law to an extent greater than is, or has been, done. A more convincing demonstration of the impotence of legal positivism in international law can hardly be imagined. Bentham not only demonstrates these consequences but also, because of his a priori assumption of legal positivism, acquiesces in the result (Conklin 165).
This result is quite independent of the particular branch of law which Bentham has chosen to investigate. The demonstration that a theory of law that bases legal obligation on assent can never justify the application of law to dissenters holds as much for criminal law in the domestic field as it does for dissenters in the legal arena (Sebok 27). Hence, were this positivistic theory of legal obligation correct, domestic law which sends murderers to the electric chair without asking them whether they assent to the court’s jurisdiction should not exist. A law in which the individual reserves the right to decide whether the court has jurisdiction would place the private citizen in the same position in which nations now stand with regard to natural law (Conklin 171). For instance, Bentham supposed that slavery and segregation should be driven by laws without ethical concern and principles derived from natural laws and traditions.
There are also suggestions that Bentham’s legal positivism is compatible with and even presupposes the living law of sociological jurisprudence. Any legal system is a system of norms. Furthermore, any system of norms derives its more particular norms from more basic general normative postulates, which might appropriately be termed the natural fallacies. His interpretation derives its validity and its ethical content, however, from the living law of sociological jurisprudence (Sebok 29). Clearly, then, his pure theory of law does not presuppose the living law of sociological jurisprudence as a part of itself. In fact, it would be self-contradictory for the pure theory of law to derive its natural laws from something outside itself. The essence of the pure theory of law is that the legal norms with their ethical “imputation” is not a mere hypothetical a priori but is instead a primitive, and hence irreducible a priori (Conklin 205).
To provide any judge with a basic postulate of legal science containing the words “the good life” is of little use to him since any case involving a moral issue results from a conflict between at least two different conceptions of what “the good life” is. To put the matter in terms of contemporary symbolic logic, the expression “the good life” is a variable; it is not a material constant. A jurisprudence is inadequate in theory or in practice until the criterion for determining the value of this variable in any instance is specified (Sebok 31). Law is always possessed of specific normative content. Since neither the positive law nor intuitive jurisprudence gives any clue as to why the content of positive law is what it is, positive law must depend, because of its specific content in any given society, on something beyond both itself a priori. Here it is necessary to introduce sociological jurisprudence, with its thesis that the source of the content and the obligation of the positive law is in the underlying structure or living law of the particular society to which it refers.
Bentham’s procedure consisted in accepting not merely the fact that the basic postulates of positive law are normative but also that they are norms with a specific content which is only one of many possible specific contents. From this, it follows that the natural law postulates of positive law cannot be true a priori but must find their content and validation in some subject outside both the positive law and autonomous ethics. Bentham identified this subject with the living law of sociological jurisprudence; that is, the inner order of society as determinable empirically by sociological science (Sebok 34). His problem then became that of providing an objectively determinable specification of the content of the living law in any given state of any given social system. He believed, quite correctly, that previous sociological jurisprudence had failed because, although it assumed the living law to be objective for a given community, its methods of determining it were so intuitive and various that little agreement existed among different sociological jurists upon what the objective living law is. Too often, the objective living law of a given sociological jurist was nothing but the image of this jurist’s pet, arbitrarily chosen, positive law reform. This made sociological jurisprudence as arbitrary as Bentham’s theory of law (Conklin 205).
Bentham achieved this required objective specification of the content of the living law by assuming that whatever the subjective ethical norms of the many individual people making up the living law may be, these norms, to the extent that they are socially and legally significant, will show in their overt temporal behavior. Ethical action is a publicly determinable objective thing quite independent of any observer’s normative preference and laws. Hence Bentham solved the problem of providing an objectively determinable specification of the living law of a given society at a given time by identifying it with the high-frequency overt behavior of all the people in that society. This amounted to an identification of the living law with the common norms of the majority of its people (Sebok 41). The positive legal norm, which corresponds to the high-frequency behavior of the living law, is the positive law norm which ought to be. The positive legal norm which does not correspond to the high-frequency behavior of the living law is the one that ought not to be. This provides the judge, confronted with a specific case and two possible norms for deciding it, with a scientifically verifiable and objective criterion of the norm to be chosen. A positive legal norm that exists but does not correspond to the high-frequency behavior of the living law is a positive ethical and legal norm which “is” but not one which “ought” to be (Conklin 171).
In sum, Bentham created a framework for legal positivism and underlined that an ethical and legal science that cannot provide meaning and a criterion for designating the high-frequency behavior of the living law of a given society as bad or in need of reform is defective. Otherwise, good law and conduct would always have to be the de facto high-frequency behavior of the present status quo. One can, of course, wait for the living law to change and then bring the positive law into accord with this change. In accepting this negative result, it is necessary to avoid the error of concluding that the meaning of the word “ought” as applied to the living law is an ethical principle. This error concerning ethical norms with respect to the living law is similar to that of Bentham with respect to the positive law.
Conklin, W.E. The Invisible Origins of Legal Positivism: A Re-Reading of a Tradition (Law and Philosophy Library). Springer; 1 edition, 2001.
Sebok, A. J. Legal Positivism in American Jurisprudence (Cambridge Studies in Philosophy and Law). Cambridge University Press, 1998.
Bentham, J. The Works of Jeremy Bentham: Published under the Superintendence of His Executor, John Bowring. Volume 1. BookSurge Publishing, 2001.