Analytical positivism I: Bentham's utilitarianism and Austin's command theory
LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit II: Command theory of law: utilitarianism (John Austin). · LLB · 60 min
The first of the schools: the analytical or positivist school founded in England by Jeremy Bentham and John Austin. The lecture covers topic 0 of the unit (positivism's claim that law is what the sovereign lays down and that there is no legal limit on the legislature) and topic 1: Bentham's utilitarianism, his expositorial and censorial jurisprudence and his plea for codification, and Austin's theory of law as the command of the sovereign backed by a sanction, with its standard criticisms by Maine, Bryce, Salmond and Hart. It closes with the Austinian moment of Indian law: preventive detention, the Emergency and A.D.M. Jabalpur. Some part of Austin is asked in every paper.
Objectives
- Explain what legal positivism claims and why Bentham and Austin separated law as it is from law as it ought to be.
- Explain Bentham's principle of utility, his felicific calculus and his case for codification, and assess the claim that he is the true father of modern jurisprudence.
- State Austin's definitions of law, command, duty, sanction and sovereign and classify laws properly and improperly so called.
- Apply the standard criticisms of the command theory (Maine, Bryce, Salmond, Hart, Olivecrona) to customs, constitutional law, international law and permissive laws.
- Evaluate the claim that the Emergency of 1975 and the preventive detention laws are examples of Austin's sovereign at work.
Slides
- Positivism's claim: law as it is, and no limit on the legislature
- Jeremy Bentham (1748-1832): the reformer's jurisprudence
- Utilitarianism: pleasure, pain and the greatest happiness
- Bentham's concept of law and the 'true father' claim
- John Austin (1790-1859): the army, the Bar and the Chair
- The command theory: command, duty and sanction
- The sovereign
- Criticism I: Maine, Salmond, Bryce and the laws that are not commands
- Criticism II: Hart's 'gunman writ large' and the others
- The Austinian moment of Indian law: preventive detention, the Emergency and A.D.M. Jabalpur
- Bentham and Austin compared; summary
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