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Command theory of law

Jeremey Bentham.

The life of Philosopher Jeremy Bentham: Summary


The philosopher Jeremy Bentham is both the Father of Utilitarianism ("the
greatest happiness principle
He was an English lawyer, economist and philosopher who was born in
London 15th February, 1748, and died there 6th June, 1832.
He was a child prodigy who read Latin at the age of 4 and attended Oxford
at the age of 12, graduating at the age of 15 having studied political and
social institutions.
He then studied law at Lincolns Inn and his father hoped that he would
become an eminent lawyer of the establishment. However, his observations
of the moral and intellectual defilement of the courts as centres of lying,
hypocrisy, greed, corruption and fraud, turned him from the practise of law
to philosophical enquiry where he found the offer of better values and
methods for security, justice and social progress. As medicine should
relieve pain and make pleasure possible, so, by analogy, Bentham believed
that institutions and the legal system should be structured to remove pain
and produce pleasure.
The Hedonic Calculus
The pursuit of happiness is the fundamental purpose of human
life. Bentham consisted in promoting whatever factors led to the increase
of pleasure and in suppressing those which produced pain (Costigan, 1967,
p. 8). In chapter 4 of his Introduction to the Principles of Morals and
Legislation (1789), Bentham sketched his idea of hedonistic calculus. As his
theory implied, law should enforce actions and dispose sentences whereby
this maximizing of pleasure and minimizing of pain could be most
effective. In short, Bentham stated that pleasures and pains, which exist
only in individuals, could be constructed into a calculus of value Hedonic
calculus considers seven factors which include:

1. The intensity of the pleasure or pain


2. The duration of the pleasure or pain
3. The certainty or uncertainty of the pleasure or pain
4. The remoteness of any pleasure or pain. (Propinquity)
5. The chances of the same effects being repeated. (Fecundity)
6. The chances of the same effects not being repeated. (Purity)
7. The number of people who will be affected by any pleasure or pain
arising as a result of the action(s) in question.
The Principle of Utility
The Principle of Utility is the very basis of Utilitarianism. It states that
something is morally right if it produces pleasure, and morally wrong if it
produces pain. As you can see this is the basis of both Act and Rule
Utilitarianism: the maximisation of pleasure and the minimisation of pain;
The difference is the way in which they go about achieving this.
Strengths

Utilitarianism dictates our current society. Its principles are useful in


reality; we do live according the needs and wants of our society. You
only have to look at our democratic voting and ruling system to see
this.
The theory is subjective and relative and so remains flexible and
applicable to the greatest number of people.
The theory looks at consequences, and, as most people judge the
merits of an action based on its outcome, this means that most people
can access and use the basic principles.
As a theory based on the majority, it encourages people to take on an
attitude of moral responsibility as what they do to each other reflects
on the society in which they live.
It's in line with the philosophical principles of Democracy. In a
Democracy, we are all considered equal. Thus, acting in the interests

of the many rather than the interests of the few could be argued to be
a very Democratic, egalitarian ethical theory.

This way of understanding law was made famous during the


nineteenth century by the 'command' theories of law espoused by
Jeremy Bentham and John Austin.
According to these theories, something is law if it has been
commanded by a Sovereign, and is backed up by the threat of a
sanction in case of non-compliance.

John Austin (1790 1859)


Theorist Background
Benthams views about law and jurisprudence were popularized by
his student John Austin.
His most famous book The Province of Jurisprudence Determined
(1832)
Austin in 1819 married Sarah Taylor: the Austins became neighbours
in London of Bentham and the Mills, and for twelve years they lived
at the intellectual centre of the movement for reform. Austin was the
first holder of the chair of jurisprudence since 1826, when the new
University of London was founded. In preparation of his lectures he
spent two years in Germany, mainly in Bonn. There he read the newly
discovered Institutes of Gaius, the Pandects, the works of Hugo,
Thibaut and Savigny.
His opening lectures in jurisprudence in 1828 were attended by John
Stuart Mill and many others of the Benthamites circle, but after the
initial success he failed in attracting new students and in 1832 he
resigned the chair. The first part of the lectures was published in
autumn 1832, entitled The Province of Jurisprudence Determined.
A second edition of this work was published by Sarah Austin in 1861.
From her husbands notes she also reconstructed the main Lectures

on Jurisprudence or the Philosophy of Positive Law, publishing them


in 1863.

Definition of law
Basic building-stones of Austins theory of law are,
That law is commands backed by threat of sanctions; from a
sovereign, to whom the people have a habit of obedience (The
Province of Jurisprudence Determined, 1832).
Orders backed by threats. This meant that going against the
command of the sovereign brought threat of an evil.
For Austin law strictly so called consists of a command given by
a sovereign enforced by sanctions.
The three crucial components of this definition are the words
i.

Command; If you are able and willing to harm me in case I comply


not with your wish, the expression of your wish amounts to a
command, although you are prompted by a spirit of courtsey to utter
it in the shape of a request.
ii.
Sanction; the command is backed by threats, i.e. punishment and
iii. Sovereign. (law was sovereign, moreover, if it emanated from an
authority which was subject to no other, such as a king or parliament,
who was habitually obeyed. The sovereign is habitually obeyed.
Austin defined sanctions as some evil or harm or pain that is conditional
upon the failure to obey the command.
Difference between' Austin and Bentham:
Austin insists on the sovereign being one, but Bentham allows for the
possibility of a divisible sovereign (eg under a federal system)

The aspects of Austins concept are:


1. The common superior must be determinate. A body of persons is
determinate if all the persons who compose it are determinated
(having defined limits) and assignable. Determinate bodies are of
two kinds. (a) In one kind the body is composed of persons
determined specifically or individually
2. The society must be in the habit of obedience. If obedience be rare
or transient and not habitual or permanent the relationship of
sovereignty and subjection is not created and no sovereign exists.
3. Habitual obedience must be rendered by the generality or bulk of the
members of a society to one and the same determinate body or
persons.
4. In order that a given society may form a political society, the
generality or bulk of its members must habitually obey a superior
determinate as well as common.
5. The common determinate superior to whom the bulk of the society
renders habitual obedience must not himself be habitually obedient
to determine human superior.
6. The power of the sovereign is incapable of legal limitation. Supreme
power limited by positive law is a flat contradiction in terms.
Command theories help us how?
Command theories help us to understand the posited nature of law, allow
us to identify and understand what law is before considering whether it is
morally good or bad, and foreground the role which coercion plays in the
law, and so furnishes us with a legal theory which attempts to tell citizens
subject to the law exactly the sort of thing they are dealing with.

Austin believed that law is a species of command. He further defined


a command as an intimation or expression of a wish to do or
forbear from doing something, backed up by the power to do harm
to the actor in case he disobeys. Furthermore, the person to whom
the command is given is under a "duty" to obey it, and the threatened
harm is defined as a "sanction."
Unfortunately, however, the command theory makes it difficult to
understand how legal systems work as a system. Each law is a law because
it is posited by an act of the Sovereign, and so each law appears to be selfcontained and self-sufficient, unified only in that all laws have in fact been
commanded by the present Sovereign in the way explained by the
command theory. This, however, fails to explain the way in which legal
systems seem to have a life of their own, independently of the lives of the
Sovereigns, or legislatures, which posit their laws. Legal systems remain in
force, and are capable of altering the laws which comprise them, and of
creating new laws, across time, and they retain these characteristics even
when one Sovereign dies or one legislature dissolves and a new one ascends
to the throne or is reconvened. Twentieth century legal theorists H.L.A.
Hart and Hans Kelsen both criticised these weaknesses in Austin's
command theory of law, and, in their own separate ways, set out to explain
what it is that unifies laws into legal systems, and which allows legal
systems to regulate their own creation: to determine which laws belong to
the system, alter existing laws, and make new ones, according to their own
internal procedures for so doing. How can legal systems pull off this
amazing trick of regulating their own composition and creation?
The 'Internal Aspect' of Law Another important way in which both Kelsen
and Hart tried to improve upon Austin's legal positivism was to give a
better account of law's "internal aspect". Austin presented those who were
subject to the law as being passive in the face of an external force: law was
the command of a Sovereign backed up by sanctions in the face of which the
population had a habit of obedience. In Hart's view, this account of law only
explained how law looked on the surface, and from the 'outside' and was
akin to an account of cars stopping at traffic lights such as a Martian
sociologist might offer. A Martian sociologist could state that cars have a
habit of stopping in the face of traffic lights turning red. This way of looking
at the situation, however, fails to tell us how things appear 'from the inside'
to those who use legal rules to guide their conduct in their daily lives. Cars

do not merely happen to have a habit of stopping at red lights. Rather,


those people in the cars understand that there is a rule requiring them to
stop which they are using to guide their conduct, and which they take as a
reason for stopping when the traffic light turns red. The point which Hart
wanted to make was that legal theorists will miss some of the most
important things about the

nature of law unless they understand law as it is understood by those who


are subject to it and use it as a guide to conduct. Hart dubbed this insiders
perspective the internal aspect of law, and insisted that law had to be
understood taking into account this internal point of view if it was to be
understood adequately. Hart and Kelsen gave different accounts of this
internal aspect of law, but both wanted to stop short of turning it into an
intrinsically moral aspect, which would cast doubt on their legal positivism.
According to Hart and Kelsen, then, legal theorists must understand law
from the internal point of view, but that point of view must not be so
internal as to entail a moral endorsement of the law. For Hartian and
Kelsenian legal theorists, having an internal attitude toward the law, then,
does not entail accepting the law as a morally good thing which creates
moral reasons to do as it says because it says so.