Bentham and Austin: utility, command and the birth of analytical positivism

1. The positivist starting point

Legal positivism separates two questions: what the law is and what it ought to be. Bentham called the first expository jurisprudence and the second censorial jurisprudence. Neither denies that law should be good; both deny that badness makes a rule any less law. The thesis is a reaction against Blackstone’s Commentaries, which presented the common law as resting on natural law.

2. Jeremy Bentham (1748–1832)

Works. A Fragment on Government (1776), an attack on Blackstone; An Introduction to the Principles of Morals and Legislation (1789); Of Laws in General, written in the 1780s and published only in the twentieth century (edited by Hart, 1970).

Utility. The Introduction opens by saying that nature has placed mankind under the governance of two sovereign masters, pain and pleasure. The right measure of action is the greatest happiness of the greatest number. Pleasure and pain can be measured by intensity, duration, certainty, propinquity, fecundity, purity and extent (the “felicific calculus”). The legislator’s task is to arrange rewards and punishments so that individual interest coincides with the general interest.

Ends of law. Subsistence, abundance, security and equality, with security the chief: law protects expectations, which is why Bentham defined property as a basis of expectation (see Legal Concepts, property).

Theory of law. In Of Laws in General a law is an assemblage of signs declarative of a volition conceived or adopted by the sovereign, concerning the conduct to be observed by persons subject to his power. This is a command theory, but more refined than Austin’s: Bentham allowed for laws that permit, laws addressed to officials, divided and limited sovereignty, and laws backed by rewards as well as sanctions.

Reformer. Bentham attacked the common law as “dog law” made after the event, called natural rights “nonsense upon stilts”, and urged codification (he coined the word), prison reform (the Panopticon), law of evidence reform and an expanded franchise. Macaulay’s Indian Penal Code (1860) is often described as the most complete realisation of Benthamite codification.

Critical evaluation of Bentham

• Pleasures cannot be measured or compared across persons; the calculus is a metaphor.
• Utility can justify sacrificing the individual to the majority: punishing an innocent if it deters. Rawls’s objection is that utilitarianism does not take seriously the distinction between persons.
• J.S. Mill (Utilitarianism, 1863) distinguished higher and lower pleasures and, in On Liberty (1859), limited state interference to the prevention of harm to others.
• Yet Bentham’s reforming programme, the separation of law and morals, and the idea of law as an instrument of social policy, anticipated both Hart and Ihering. The KSLU syllabus lists him under both positivism and sociological theory for that reason.

3. John Austin (1790–1859)

Work. The Province of Jurisprudence Determined (1832), the first lectures of his course at the new University of London; the fuller Lectures on Jurisprudence appeared posthumously.

The theory. Laws properly so called are commands. A command is a signification of desire by a superior, backed by a threat of evil (the sanction) if the desire is not complied with. The person commanded is under a duty. Positive law is the command set by a sovereign to the members of an independent political society. The sovereign is a determinate human superior who receives habitual obedience from the bulk of a given society and is not in a habit of obedience to any other superior.

What is excluded. Laws by analogy (fashion, honour, international law, which he called positive morality) and laws by metaphor (scientific laws). Custom becomes law only when adopted by the sovereign or courts; judge-made law is tacit command. Constitutional law, which limits the sovereign, is positive morality.

Analytical method. General jurisprudence explains the concepts common to mature legal systems: right, duty, sanction, sovereignty, injury. This gave English jurisprudence its analytical character through Holland and Salmond.

4. The army and the Austinian concept of law

Austin entered the army as a young man and served as an officer for about five years, part of it in Malta, before turning to law. Writers since have read the theory as a soldier’s view of law. The parallels:

• Command and obedience. Law is an order from a superior to an inferior, as in a chain of military command.
• Hierarchy. There is one determinate superior at the top, who obeys no one; authority flows downward.
• Sanction. Every order is backed by punishment for disobedience, as military discipline is backed by court martial.
• Duty as liability to sanction. To be under a duty is to be liable to evil if one disobeys, the soldier’s understanding of duty.
• Indifference to content. A command binds because of who issues it, not because it is just.

A good answer adds that the biography explains the flavour, not the logic. Austin’s immediate influences were Bentham (his neighbour and teacher), Hobbes’s sovereign, and the German Pandectists he studied at Bonn. And the military picture is precisely what the critics attacked.

5. Criticism

• Historical (Maine, Early History of Institutions): Ranjit Singh’s Punjab was ruled by an absolute despot who never made a law; life was governed by custom. Command does not explain customary societies.
• Sociological (Duguit, Ehrlich): law grows from social facts and solidarity, not the will of a sovereign.
• Sovereignty: in federal and constitutional states (the United States, India) no determinate body is illimitable. The Indian Parliament’s amending power is bound by the basic structure (Kesavananda Bharati v. State of Kerala, 1973 INSC 91), and the electorate cannot be a determinate superior. Austin’s suggestion that sovereignty in England lay in King, Lords and electors of the Commons was strained.
• Hart (The Concept of Law, chs 2–4): the gunman situation writ large. Commands cannot explain power-conferring rules (contracts, wills, marriage); habit of obedience cannot explain continuity of law on a change of ruler or its persistence over time; laws bind their makers; and the internal point of view of those who accept rules is missing. See the note on Hart.
• International law is not law on Austin’s test, a conclusion few now accept.

6. What survives

The separation of law and morals; analytical clarity about legal concepts; the link between law and state power, which explains modern criminal and regulatory law well; and the method of treating law as a fact to be described. Kelsen and Hart both kept the positivist core while discarding the command model.

How this is examined

For the army question, write (1) Austin’s definition, (2) the five military parallels, (3) the other influences, (4) the criticisms that target exactly the military features, and (5) a conclusion on what survives. For Bentham, cover utility, the ends of law, his theory of law, his reforms, then critique. A short note on Bentham’s utilitarian theory can use sections 2 and its critique alone.