Jurisprudence And Bentham Essay

 THEIR GENERAL APPROACHES

Bentham is best known as a utilitarian and law reformer. But he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is now generally regarded as much narrower in scope and objective than Bentham’s. The modern view is certainly that Austin was considerably more conservative politically than his mentor. In fact, Austin eventually came to disown the principle of utility and to doubt the value of his own ‘expository’ jurisprudence.

There are a number of important differences in the general approach to the subject.

• Bentham pursues the notion

His identification of commands as the hallmark of law leads Austin to a far more restrictive conception of law than is adopted by Bentham who is concerned to arrive at the conception of a single, complete law which sufficiently expresses the legislative will.

 COMMANDS

The central feature of Austin’s map of the provided of jurisprudence is the notion of law as a command of the sovereign. Anything that is not a command is not law. Only general commands count as law. And only commands emanating from the sovereign are ‘positive laws’.

Bentham, on the other hand, argues that commands are merely one of four methods by which the sovereign enacts law. In developing his theory of the structure of law, he distinguishes between laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct (permissive laws).

For Bentham, ‘command’ is merely one of four manners in which the sovereign’s will is manifested. There are two imperative aspects (command and prohibition), and two permissive aspects (non-prohibition and non-command). Hart provides examples of each of these.

• Command: ‘Shut the door!’

• Non-command: ‘You may refrain from shutting the door!’

• Prohibition: ‘Do not shut the

subjects are supposed to be in the habit of paying obedience to a person, or an assemblage of persons, of a known and certain description i.e. governors such persons altogether subjects and governors are said to be in a state of political society.

Austin bases his ideas to sovereignty on the habit of obedience adopted by members of society. It has been suggested that Austin may have confused the de facto sovereign (or the body that receives habitual obedience) with the de jure sovereign (or the law-making body).

Thus, Austin refers to ‘a society political and independent’, while Bentham refers to ‘a state of political society’. This explains why Austin’s definition comprises two elements: one positive (the bulk of the population habitually obeys the sovereign) and the other negative (the sovereign is not in the habit of obeying anyone). Bentham’s however, alludes only to the positive condition. This is only a minor difference and it is fairly likely that the issues of ‘independence’ (to which he refers elsewhere) is simply not germane to the point Bentham is making