The K-Zone: Bentham

Jeremy Bentham was an extremely forthright and influential 19th century philosopher, with wide-ranging philosophical interests. In law, his most influential writings argued that the principles of Positivism could, and should, be applied to law. He is therefore regarded as the spiritual father, if not the actual founder, of the doctrine of LegalPositivism. Bentham had no time at all for the notions of NaturalLaw, least of all the idea that law should be based on `higher' principles than social good. He famously described the concept of natural rights as `nonsense on stilts'. In politics, Bentham promoted a system of government based on Utilitarianism, and believed that similar philosophical principles should guide the reform of law. Law, in Bentham's view, was to be developed without regard to `higher principles, purely on the basis of what would maximize social good. There was to be no room in his system for judicial creativity; courts would simply apply an exhaustive and logical legal code. In fact, Bentham demonstrated a high degree of contempt for both judge and jury, and refered to the court system in his writings as `Judge and Co.'

Although Bentham repudiated the notion that law should be based on morality, the whole principle of utilitiarianism is, in effect, a moral standpoint. Moreover, his abrogation of ethics in law did not stop his taking an ethical stance on a whole range of issues. As Hart has pointed out, Bentham and Austin did not want a law that was without ethical foundation; what they wanted was a general recognition that law as it is, and law as it should be were separable concepts. Real, valuable reform was been hindered by peoples' inability to separate them. If you argue that law is derived from morals, then clearly a radical reform of the law is a departure from morals. Bentham's clear thinking on matters of law and ethics was in stark contrast to the muddle that many of his contemporaries had got themselves into. Consider, for example, the debate, a live issue at the time, about whether there were certain peoples whose innate reasoning abilities were so poorly developed that they were suited only to be the slaves of other people. Bentham cut right across the lines of the argument with his statement ``it matters not whether the slave reasons. What matters is whether he suffers''.

JurisprudenceAndLegalTheory