Introduction

2First, Hart has elucidated five major meanings of the word “positivism”:

• (1a) Laws are commands of human beings;

• (2a) There is no necessary connection between law and morals or law as it is and law as it ought to be;

• (3a) The analysis of legal concepts is worth pursuing and is to be distinguished from historical enquiries, from sociological inquiries, and from the criticism or appraisal of law;

• (4a) A legal system is a closed legal system in which correct legal decisions can be deduced by logical means from predetermined legal rules;

• • 2  H.L.A. Hart, « Positivism and the Separation of Law and Morals », in Id., Essays in Jurisprudence (...)

  (5a) Moral judgements cannot be established or defended, as statements of fact can, by rational argument, evidence or proof2.

3Hart points out that Bentham holds the first three views, i.e. (1a), (2a), and (3a). One can also say that Austin agrees with Bentham in this respect.

4Secondly, Bobbio has distinguished three independent meanings of positivism:

• (1b) An approach to the study of law, i.e. the will to build a science of law;

• (2b) A theory of law, i.e. a set of assertions with which to understand and describe a set of phenomena linked to the emergence of the modern state;

• • 3  N. Bobbio « Sur le positivisme juridique », in Id., Essais de théorie du droit, pref. R. Guastini, (...)

  (3b) An ideology according to which the law must, qua law, be obeyed3.

5It is well known both that Bentham and Austin do not hold the third view, and that they adopt a positivist theory of law in the sense of law as a set of commands. They also delineate a positivist approach to law, first of all by their distinction between law as it is and law as it ought to be, and next by their reflection on the various legal disciplines.

6In this and another, forthcoming, paper, I will try to elucidate the various meanings in which Bentham and Austin can be said to be positivists. Though each aspect will not be equally examined, I will lay the emphasis on positivism as a theory of law i.e. (1a) and (2b). But the pervading objective of my paper will most of all be to highlight some important aspects of Bentham’s and Austin’s approaches to the legal phenomena i.e. (3a) and (1b). This will allow to substantiate the widely held view according to which Bentham’s work is superior to Austin. My aim is to underline some of the differences between their two positivisms, so as to be able to understand why Bentham’s reflection can be said to be more fruitful and what makes his writings astonishingly relevant for modern legal theory.

9At this point, I would like to introduce a remark regarding my methodology and the claims of my paper. One can distinguish between two main approaches to a given author. First, one can try to discover what the author actually wanted to say. Secondly, one can try to reconstruct the thought of an author in a systematic form. I readily embrace here the second, reconstructive, conception. By the way, I want to make clear that criticizing my paper for lack of any historical consciousness is perfectly well grounded. But it will miss the point. My point of view here will be a kind of dogmatics of Bentham’s writings, aiming at highlighting in his reflections what is of use for contemporary legal theory. Evidently, this is not to dismiss historical studies about Bentham. I regard my choice, most of all, as the acknowledgement of the limits in which I find myself intellectually competent to speak about Bentham. I want to present a few elements in order to prove Bentham’s relevance for some aspects of a specific problematics of contemporary legal theory. I also intend this paper as a contribution to underline the usefulness of Bentham’s legal theory not only from a historical point of view, but also from a strictly conceptual and juristic one.

10I will first elaborate on the basic idea that Bentham is a leading figure of universal jurisprudence, and focus on some basic elements of his legal theory. This will lead to stress different aspects of Bentham’s and Austin’s positivisms, and to examine the causes and the fundamental aspects of their approaches to the concept of a legal power

A. A Few Truisms About Bentham's Legal Theory

11One has to be conscious of a distinction between two linguistic levels. The level of Bentham’s own legal theory is not to be confused with his theory of various types of legal discourses, and especially with his program regarding how to construct a legal theory. The second discourse takes the first for its object. I will firstly and briefly try to elucidate Bentham’s theory of jurisprudence. This will allow to assess his concept of a law, i.e. an element of his theory of law, i.e. what a theory of universal jurisprudence bears upon.

1. Bentham's Theory of Jurisprudence

12I will successively examine Bentham’s definition of universal expository jurisprudence and one of the main topics it has to deal with, namely the problem of the individuation of laws.

a. The Definition of Universal Expository Jurisprudence

• 11  J. Bentham, An Introduction to the Principles of Morals and Legislation, J.H. Burns, H.L.A. Hart ( (...)

A book of jurisprudence can have but one or the other of two objects: 1. to ascertain what the law is: 2. to ascertain what it ought to be. In the former case it may be styled a book of expository jurisprudence; in the latter, a book of censorial jurisprudence: or, in other words, a book on the art of legislation. […] A book of expository jurisprudence is either authoritative or unauthoritative. It is styled authoritative, when it is composed by him who, by representing the state of the law to be so and so, causeth it so to be; that is, of the legislator himself: unauthoritative, when it is the work of any other person at large. […] in point of extent, what is delivered concerning the laws in question, may have reference either to the laws of such or such a nation or nations in particular, or to the laws of all nations whatsoever: in the first case, the book may be said to relate to local, in the other, to universal jurisprudence. […] Now of the infinite variety of nations there are upon the earth, there are no two which agree exactly in their laws: certainly not in the whole; perhaps not even in any single article; and let them agree to-day, they would disagree to-morrow. This is evident enough with regard to the substance of the laws: and it would be still more extraordinary if they agreed in point of form; that is, if they were conceived in precisely the same strings of words. What is more, as the languages of nations are commonly different, as well as their laws, it is seldom that, strictly speaking, they have so much as a single word in common. However, among the words that are appropriated to the subject of law, there are some that in all languages are pretty exactly correspondent to one another: which comes to the same thing nearly as if they were the same. Of this stamp, for example, are those which correspond to the words power, right, obligation, liberty, and many others. […] It follows, that if there are any books which can, properly speaking, be styled books of universal jurisprudence, they must be looked for within very narrow limits. Among such as are expository, there can be none that are authoritative: nor even, as far as the substance of the laws is concerned, any that are unauthoritative. To be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words: to be, strictly speaking, universal, it must confine itself to terminology11.

15In spite of the shortcomings of his distinctions, which are, as may be clear, quite easily removed, Bentham provides a very precise characterization of universal expository jurisprudence. Bentham’s universal expository jurisprudence is a formal enquiry, aiming at elucidating the concepts that are common to any possible legal system. It is not a strictly intellectual enterprise, but a reflection that has to meet deep and strong practical and concrete aims. As the final chapter of Of Laws in General clearly proves, his conception of jurisprudence is, as a consequence, radically instrumental. In his view, it has not to be pursued for its own sake, but only as a preliminary to the reforms that will promote his political goals. This definition of universal expository jurisprudence belongs to a metalanguage relative to the linguistic level at which Bentham is to develop his own legal theory. The first question to be dealt with by Bentham’s newly coined universal expository jurisprudence, and that which is also dealt with at length by Austin in The Province of Jurisprudence Determined, is that of the individuation of a law.

b. The Problematics of the Individuation of a Law

16Bentham’s thought on the individuation of laws intends to meet the needs for a complete body of law that would allow for a successful utilitarian direction of behaviours. In the Introduction to the Principles of Morals and Legislation, he writes:

To ascertain what sort of a thing a law is; what the parts are that are to be found in it; what it must contain in order to be complete; what the connection is between that part of a body of laws which belongs to the subject of procedure; and the rest of the law at large:–All these, it will be seen, are so many problems, which must be solved before any satisfactory answer can be given to the main question above mentioned [that of the limits between the civil and the penal branch of the law].

• 13  J. Bentham, An Introduction to the Principles of Morals and Legislation, op. cit., p. 282.

Nor is this their only use: for it is evident enough, that the notion of a complete law must first be fixed, before the legislator can in any case know what it is he has to do, or when his work is done13.

17In the concluding note of this book, he continues:

• 14 Ibid., p. 301; Id., Of Laws in General, H.L.A. Hart (ed.), London, The Althone Press, 1970, p. 299 (...)

What is a law? What the parts of a law? The subject of these questions, it is to be observed, is the logical, the ideal, the intellectual whole, not the physical one: the law and not the statute. […] By the word law then, as often as it occurs in the succeeding pages, is meant that ideal object, of which the part, the whole, or the multiple, or an assemblage of parts, wholes, and multiples mixed together, is exhibited by a statute ; not the statute which exhibits them14.

• 15  J. Bentham, Of Laws in General, op. cit., p. 12.

The idea for which I want to find an expression is that of so much the matter of which laws and statutes are made as constitutes one entire command or countermand and nothing more. […] The idea of a law (in its primary sense) is the idea of an object which may be purely intellectual existing nowhere but in the mind of him who speaks of it: the idea of a statute is constantly the idea of a material object […]. The idea of a law as thus determined is what must previously be formed in order to serve as a pattern to which the contents of a statute or any number of statutes may be reduced, and the several parts they consist of referred to the several stations they belong to in the system. Laws in short are the elements out of which statutes are composed, and into which in order to be understood they must be resolved15.

19I have thus far examined Bentham’s reflections relative to his conception of jurisprudence and some of the subjects it has to deal with. These considerations – what the discourse of universal expository jurisprudence is, and the topics it has to deal with – were situated on a metalinguistic level, and Bentham’s answer to this question, on a linguistic level simpliciter, is the next thing to examine.

2. An Element of Bentham's Universal Jurisprudence: The Concept of a Law

20The evident primacy of the concept of command or imperative law in Bentham led many scholars to associate – or even to confuse – his reflections and those of his disciple. Nevertheless, a noticeable difference is to be noticed between the two authors. Bentham indeed offers some detailed reflections on the concept of power, whereas Austin does not.

a. The Primacy of Commands in Bentham and Austin

• 18  J. Bentham, Of Laws in General, op. cit., p. 1. See also Id., Chrestomatia, Fr. trans., Intro. J.- (...)

A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question18.

• 20  J. Bentham, Of Laws in General, op. cit., p. 3.

the definition being such as is applicable to various objects which are not commonly characterized by that name. Taking this definition for the standard it matters not whether the expression of will in question, so as it have but the authority of the sovereign to back it, were his by immediate conception or only by adoption: whether it be of the most public or of the most private or even domestic nature: whether the sovereign from whom it derives its force be an individual or a body: whether it be issued propter quid as the phrase may be, that is on account of some particular act or event which is understood to warrant it (as is the case with an order of the judicial kind made in the course of a cause); or without the assignment of any such special ground: or whether it be susceptible of an indefinite duration or whether it be suâ naturâ temporary and undurable: as is most commonly the case with such expressions of will the uttering of which is looked upon as a measure of administration: whether it be a command or a countermand: whether it be expressed in the way of statute, or of customary law. Under the term “law” then if this definition be admitted of, we must include a judicial order, a military or any other kind of executive order, or even the most trivial and momentary order of the domestic kind, so it be not illegal: that is, so as the issuing of it be not forbidden by some other law20.

• 22 Ibid., p. 6.

Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme22.

26In a comprehensive and properly organised body of law, non-obligative norms are not necessary. They are implicit in the relative scope, limitations and exceptions of the obligative laws. As a consequence,

• 30 Ibid., pp. 169-170.

To have a clear conception however of the state of the whole system of legislation at any period it is upon the obligative laws alone that the spectator should fix his eye: it is by them that he should measure the number and extent, of the laws that are in force during a given period in a given state, and thereby of the obligations to which the members of that state are subject. It is owing merely to the changes which the will of the legislator is liable to undergo with respect to the same act at different periods that laws of the de-obligative kind are susceptible of any separate consideration: were it not for this, the effect produced by them might be produced in a better manner by more simple methods: where the primordial law or any determinate part of it is destroyed, declare it repealed and throw it out of the code: where the former is made to receive a qualifying clause, insert the clause in the same manner as if that and the rest of the law so qualified had from the very beginning made but one30.

b. Bentham's Reflections on the Concept of Power

• 40 Ibid., p. 138 n. h.

the power which a man exercises over the land he walks over or cultivates: the bread he bakes or eats: the coat he wears of brushes: the child or the servant he feeds, beats or reprimands: in public dominion, the power of the soldier over the persons, and occasionally over the property, of those whom he is commanded or allowed to treat as enemies. Of the executioner or other inferior ministers of justice over the persons and properties of those who come under the control or censure of the law: and indirectly the power of the public gunsmith, the public gunpowder maker, the public storekeeper, and so forth, over the things they make or keep or use for the benefit of the public40.

33This is another illustration of Bentham’s modernity, for the discussion about power-conferring norms is very important nowadays. Once more, this proves the fullness of Bentham’s thought, for he not only showed the perspective and problematics of general jurisprudence, but he defined it in a very precise and fruitful manner. He also worked most of the problems that occupy nowadays scholars in this field: the concept of legal norm, the concept of legal order, the possibility and construction of deontic logic, the theory of argumentation, all this with a very powerful analytic, philosophical, logical, linguistic apparatus he himself had elaborated for mist of its elements.

B. Bentham's Concentration on the Concept of a Legal Power

35I will try to show how, due to the internal constraints of the theories the two authors are building, Austin could do without a concept of power, whereas Bentham had to build one.

1. The Absence of any Concept of a Legal Power in Austin

36The absence of any concept of a legal power in Austin’s writings must be explained relatively to the sovereign and to the subordinate power-holders.

a. The Sovereign's Power

37Austin’s reflection on this topic is constructed in empirical terms. The sovereign’s power is a strictly factual phenomenon.

• 44  J. Austin, The Province of Jurisprudence Determined, op. cit., p. 18.

Taken with the meaning wherein I here understand it, the term superiority signifies might: the power of affecting others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one’s wishes44.

39The very structure of Austin’s reflection on the normative power of the sovereign does not allow him to think of a law conferring that power. Let’s thus turn to the subordinate power holders.

b. The Subordinate Legal Powers

40Austin admits that courts can create law:

• 49  J. Austin, The Province of Jurisprudence Determined, op. cit., p. 23.

All judge-made law is the creature of the sovereign or state. […] When judges transmute a custom into legal rule (or make a legal rule not suggested by a custom), the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at his disposition is merely delegated. The rules which he makes derive their legal force from authority given by the state: an authority which the state may confer expressly, but which it commonly imparts in the way of aquiescence49.

41A command can be express or tacit, which allows to account for legal custom:

• 50  J. Austin, Lectures on Jurisprudence or the Philosophy of Positive Laws, op. cit., pp. 19-20.

When custom are turned into legal rules by decisions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereign legislature. The state, which is able to abolish, permits his ministers to enforce them: and it therefore signifies its pleasure, by that its voluntary acquiescence, ‘that they shall serve as law to the governed’. […] It appears then that the positive law styled customary as well as all positive law made judicially, is established by the state directly or circuitously, and therefore is imperative50.

45On the contrary, his concept of a law compelled Bentham to ponder over the concept of power, and to construct a concept of legal power.

2. Bentham's Reflection on the Concept of a Legal Power

46According to Bentham,

• 56  J. Bentham, Pannomial Fragments, op. cit., p. 222.

Power may be defined to be the faculty of giving determination either to the state of the passive faculties, or to that of the active faculties, of the subject in relation to and over which it is exercised56.

a. The Sovereign's Power

• 59 Ibid., p. 64.

there are laws to which no other persons in quality of passible subjects can be envisaged than the sovereign himself. […] The business of this transcendant class of laws is to prescribe to the sovereign what he shall do. […] Laws of this latter description may be termed, in consideration of the party who is their passible subject, laws in principem: in contradistinction to the ordinary mass of laws which in this view may be termed laws in subditos or in populum59.

b. The Subordinate Legal Powers

• 69 Ibid., p. 21. See also Id., Anarchical Fallacies, in Id., Selected Writings on Utilitarianism, op. (...)

where the sovereign holds himself thus in readiness to adopt the mandates of another person whensoever they shall happen to have been issued, he may thereby be said to invest that person with a certain species of power, which may be termed a power of imperation69.

54Bentham’s definition of universal expository jurisprudence is thus a seminal moment in the history of legal thought, from an epistemological, i.e. metalinguistic, point of view. His impressive and suggestive reflections on the concept of a legal power are the specific mark of the framework of his legal positivism as a theory of law, i.e. at the level of the object language. It is now necessary for another paper to examine specifically how Bentham apprehends the legal material that confers legal powers, in apparent opposition to the basic tenets of his concept of a law as a command, and how he can meet the challenge of giving fruitful answers to the questions he is able to raise.