Jeremy Bentham & John Austin Bentham lived end of 18th and beginning of 19th C Disgusted at inequities and

nd wished to have them remedied Developed constitutional ideas in various European States FOCUS on Austin b/c Bentham wrote voluminously BUT did not publish as result Austin MUCH more single minded/narrow focus Benthams manuscripts discovered at UCL not until 20th C The command theory of law and the theory of sovereignty John Bentham 2 important works: o Introduction to the principles of Morals and Legislation 1789 o Of laws in General [book published in 1945; 1970] Bentham wrote at time of French Revolution one of guiding forces was demand for rights of man/citizen French Revolutionists drafted a declaration GREAT charter of liberty of modern age BUT guillotine/execution/terror/arbitrary application of power did NOT work as intended o UK witnessed conservative thinkers thought that declaration - words on paper NOT for us just words on paper not words that count RATHER tribunals/police etc what matters o Bentham NOT conservative thinker BUT shared such view Natural Law thought to be fraud meaningless declaration included Natural Ideas what laws should do how to serve human beings- Natural Law wrong AND iniquitous could be fraudulent to pull wool over peoples eyes BUT in fact what is important is WHAT is being done with use of political power o Benthams enemy Sir William Blackstones of 18th C who wrote commentaries on Laws of England attempt to survey whole of English law end of 18th C and much 19th C all lawyers had volumes BUT Bentham studied it and opposed it view was extremely complacent Blackstone that that English law distillation of Natural Law for a particular time and place NOT really critical of law simply expression of what is right how things should be in a way Blackstone English law was best of all law for best of all possible laws mild criticism o Bentham found problems with costs, inefficiencies, etc Bentham also drew important distinction to aid him in task of analyzing law realistically between expository and sensorial jurisprudence o Sensorial evaluation of the law VERY important when engaged in reform trying to improve it o IMPORTANT claim cannot do sensorial properly UNLESS clear understanding of what law IS nature of law human law as set down by human beings for other human beings NEED for different kind of jurisprudence

o Expository NOT concerned with evaluation RATHER scientifically analyze and describe nature of law as it exists AUSTIN adopts exact same distinction Positive law FOCUS involves above all analytical separation of law and morals o NOT a claim that morality does not matter it is HUGELY important o NOT moral philosophy The common law Bentham hates the common law thinks that if trying to devise MOST inefficient form law would be production through common law and judicial precedence o Does NOT proceed from rational and logical way rather to wait for particular problem to arise and THEN deal with it o Deal with another problem in another case NO rationality RATHER reacting to circumstances in purely ad hoc way o General principles developed by pure accident o US Judge - Oliver Holmes wilderness of single instances = law o Disparaging term used dog law to train dog wait for him to do something wrong and hit him with stick basically what courts do issue judgment and wait till next case o SOLUTION essentially to say that law SHOULD be codified rationalized into codes beginning of 18th C argued consistently and was first o Creation of law to be taken OUT of hands of judges matter of legislators to codify principles into principles and legal form Science of Legislation Sensorial are to be guided by SPECIFIC principles on how to improve the law utilitarianism SIMPLE idea that all law reform/policy SHOULD be aimed at maximizing the welfare/happiness of greatest # of people

RECOGNISED the need for a coherent doctrine to guide the rational reform of law Found this in principle of utility Required that law-making and legal institutions be designed to promote the greatest happiness of the greatest # of people. CENTRAL to Bentham BUT Austin rather than focus on the science of legislation he preferred to focus on law as it is (science of law) AUSTINS 3 source of comparison: (i) The untidy raw material provided by common law judicial decisions (ii) The Romanist example of how to rationalize order out of gradually evolved legal doctrine, and (iii) the modern experience of systematic codification John Austin 1790-1859 MOST important books: o The Province of Jurisprudence Determined 1832 o Lectures on Jurisprudence 1863

FIRST professor of jurisprudence in London MUCH later devoted widow felt he had NOT secured reputation that should have THUS put together lectures and published BENTHAMs distinction reappears Science of Law descriptive Law as it is vs. Science of Legislation law as it ought to be Austins views heavily criticized DIFFERS significantly in that does NOT take same view of common law does not think judges should not create/develop law thinks that Bentham is unrealistic that CAN have system where judges do not develop law JUST fact of life o What offended Austin was the TOTAL lack of systematic organization or of a structure of clearly definable rational principles in common law. IMPORTANT that we should be open about all this recognize that judges dont just interpret law ALSO make and develop law and IMPORTANT things to give them means to train and be rational and consistent as possible o Utilitarianism should be developed as guide as to HOW to develop when developing new law through new cases SPECIAL significance ideas PUBLISHED 1832 when first published BUT by mid 19th C and by 1860s when all lectures published lawyers felt AT LAST someone who gave scientific underpinning MAPPING the province of jurisprudence DIAGRAM of map of law in Schiff, Penner

WHY have map? SIMPLE lectures Province determined thus he mapped out therefore answers what and what not to focus on PROPER subject matter is POSITIVE law law set by humans by other humans BUT law can mean many things FIRST Law Properly vs. Law improperly (law of gravity, laws of etiquette, Law Properly Laws of God NOT completely disappeared in biggest overall view of law part of idea of law NOT jurisprudence BUT in practice when thinking about it all about Utilitarianism REALLY important Human Law Positive Law not laid down by political legal authority (the State) rather can be for example rules guardian sets for his/her ward EVEN rules teacher lays out discipline RECOGNISES that form of legal pluralism BUT as soon as recognized it is dismissed since NOT part of jurisprudence RATHER focus is on political manner o On BOTTOM positive morality encompasses many things rules set by public opinion NOT by law maker o Rules of Constitutional law ( thinks that Positive Morality laid down by humans BUT not politically not the State) Positive law set by political superiors acting as such or by people acting in pursuance of legal rights conferred on them by political superiors The Command Theory Every true law is a kind of command 2 aspects of theory BOTH Bentham + Austin

To be law rule MUST be general applies to anyone applies at any time generality as to acts generality to persons o Generality can be of two kinds: (i)as to acts required or prohibited (ii) as to person addressed by the command

Law as Government In a sense, law is, for him, effective government Duties are MORE fundamental than rights Fears that liberty used as slogan that can get out hand RATHER government is to serve common good SOMETIMES may be necessary to limit liberty as it follows the utility (due to experiences from French Revolution and mobs) Austin states command need NOT be general as to persons COULD have law which ONLY applies to 1 person ODD but have statute which operates the regulation of Bank of England also law that regulates post office THUS reasonable assertion HOW to tell what is a command compared to expression of desire for Austin/Bentham command MUST be supported by sanctions to make command stick o A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and purpose of the party commanding to inflict an evil or pain in case the desire is disregarded o BUT smallest chance of SMALLEST evil is enough to constitute sanction thereby answering qs that not only criminal law something that is not pleasant which want to avoid hopefully avoid by NOT breaking the law o Contract/Law BUT awful lot of law NOT about inflicting pain RATHER to allow people to do things to do Law of Contract necessary to enable people to make o SIMILAR with Law of Wills this provides secured means by which can rely to transfer property after death o AUSTIN deals with simply persuasively KEY thing about sanctions NOT only result of public pressure/opinion BUT sanctions which are created officially by the commander/ the legal system Law of Contract law provides for many unpleasant consequences if DONT comply with rules for formation and execution of contracts ie. without formalities could be invalid law provides specifically for such sanctions Official acts judge makes ultra vires decision beyond authority of court ANOTHER example in which sanction operates to support the command command to judge is to decide within terms of jurisdiction if NOT result most likely to be null and void sanction to judge suffers in that his decision affected could have knock on effects effective sanction

Duties and Rights focus on duties NOT on rights logic in this law is a command tells people what people ought to do/ought not to do and THIS backed up by sanctions IF subject to command and liable to sanction UNDER a duty to obey the command Command Sanction Duty all follow from each other o Rights is FURTHER stage of analysis since subject to duties MEANS other people can benefit from that ie. Law of Contract duty to pay what promised FOLLOWS that person contracting with has advantage has a right o Politics Austin o era of French Revolution Austin living in Paris in 1840s at a time when ANOTHER French Revolution of 1848 Austin living in Paris saw mob on street lawless mobs Austin in old age became VERY conservative thinker hostile to democracy fearful of the mob thought that liberty can get out of hand GOOD thing within careful constraints b/c liberty can turn into license o DRAWN thus to emphasize Duty MORE than Rights

BUT Austin is NOT concerned with WHY people obey law! o Sanctions important for Austin NOT view that is why people obey probably obey because of that BUT he believes that due to habit habitual response people get along better o NOT concerned with WHY people obey the law sociological jurisprudence look at motivation NOT looking at law anymore -