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Home > Law > Law glossary > Law glossary
Bentham
Last modified: Thu Feb 23 16:37:37 2006
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''.
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