Class notes
lecture 4. Early Legal Positivism - Bentham
- Course
- Institution
Lecture notes of 3 pages for the course Jurisprudence at QMUL (FIRST CLASS NOTES!)
[Show more]
Seller
Follow
MxyWxri
Reviews received
Content preview
Reading – PSN chapter 3, C chapter 3Lecture 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
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller MxyWxri. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $7.09. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
67474 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now