Contribution of Jeremy Bentham and Hans Kelsen in Legal Theory

Contribution of Jeremy Bentham and Hans Kelsen in Legal Theory

Introduction:

Every living creature is driven by its own interest which ultimately ushers into conflict of interests. Henceforth the necessity of controlling their behaviour arises. Sometimes those controlling regulations are written down and sometimes not. Those regulations are simply known as laws. The primary objective of law is to maintain balance of conflicting interests. But society is not static; in the long course it changes leading to certain variations in the taste and interest of people. New circumstances demand the reformation of previous regulations and adoption of certain new ones. Question arises as to the standard on the basis of which the previous regulations are to be reformed and the new ones to be adopted. Scholars come forward to provide with different formulae. Driven either by blind emotion or by incomplete and biased human reasoning a particular community adopts a specific formula. Few days later men come to know about the fallacies of the previous formula and thereafter search for a new one. Again the scholars appear in the scenario with some new edition or altogether with a new concept. The game goes on. Unfortunately human being is, in most of the cases, the guinea pig – the worst victim of this game.  With a very few rare exceptions this is the common phenomenon of laws and legal theories.

The western jurisprudence is basically the child of Roman law and grand child of Greek philosophy. It is to be noted here that though the Greeks had no formal legal science, and no word for “law” as an abstract concept *[1] they created such a sophisticated form of philosophy and thereby influenced the whole of the western materialistic civilization to such an extent that its impact is still strongly felt in almost all of the branches of western disciplinary sciences. Rome’s most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists  and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science. [2]

Schools of jurisprudence in brief:

The Natural Law School: Rooted in Stoic philosophy and Roman jurisprudence this school was increasingly dominant in Europe from the Reformation (16th century) to the close of the 18th century. The main principle of this school is that law is antecedent to the state, cognizable by pure reason (For example, it is easily understood that since each man has a natural right to survive, flourish, and pursue his own happiness, no other man or group of men should attempt to deprive him of a chosen value or action through the initiation or threat of force. [3] and the expression of applied ethics (i.e. which is not right is not law).  Natural law is the idea that there are rational objective limits to the power of legislative rulers. [4] But with the variation of intellect and merit human being can not unanimously come to the same conclusion in deriving a principle from the nature, because every person looks at the nature with his own eyes and explores something which is quite odd to another person. Thus it leads to more diversity than unity.

The Analytical School: During the Middle Ages (350-1450) law was not so much certain; it was a chaos of varying provincial and local customs, though after the Dark Ages, Roman law was rediscovered around the 11th century by the mediæval legal scholars. But nationalism grew in the 18th and 19th centuries which encouraged the nation states to rid themselves of the chaos of varying provincial and local customs of the Middle Ages and injected the thought of national codes and legislation. Consequently certain famous Codes like Code Napoléon adopted in 1804 and still in effect  [5]and the German Code of 1870s came into existence. In this situation arises a new philosophy of law – Analytical Jurisprudence. The main theme of this school is that law is the creation of the state and command of the sovereign. There is no necessary connection between law and morality. So law that commands what is ethically wrong or forbids what is ethically right is no less a law if it proceeds from the political sovereign. The views of this school, however, did not originate in England. But the theory of this school was first sharply formulated by the English philosopher Thomas Hobbes (1588-1679) in his Leviathan (1659).

The Historical School: This school dates from the 19th century, as a reaction against natural law ideas. Its principles were first clearly defined in 1814 by the German jurist Friedrich Karl von Savigny. According to this school law is neither antecedent nor precedent to the state; rather state and law develop side by side each influencing the other and it (law) is the formulated wisdom of men and women throughout history.

The Comparative School: The leading early opponents of this school were the German legal scholar Rudolf von Jhering, Albert Hermann Post, Henry Maine, Maitland and Sir Frederick Pollock. This school represents a widening of the field of investigation. Each national law is studied historically and the various national systems are compared at similar stages of development. As a result of this process, not only may the course of legal development be discovered, but that which is universal and human may be separated from that which is particular to a single nation or to a special stage of development.

The Sociological School: This school is largely a product of the 20th century. The American jurist Roscoe Pound is a prominent figure in this school. Its approach to the analysis of law differs from that of other schools in that it is concerned less with the nature and origin of law than with its actual functions and end results. The proponents of sociological school of jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. They feel that the practical improvement of the legal system can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences.

Milestones in the evolution of western jurisprudence:

 

v      Egyptian knowledge migrated to Greece forming the foundation pillar of Hellenistic civilization and philosophy (Socrates, Plato, Xenophen, Aristotle)

v      Rise of Roman Empire and its legal science on the relics of Greek city states and philosophy

ü      Twelve Tables: 450 BC

ü      Jesus Christ (1-35 AD): Render to Caesar what the Caesar’s and to God what the God’s

ü      (Gaius (161 AD) )

ü      Conversion of Constantine to Christianity (312 AD) being ensured that Christianity was not to interfere in his affairs on the basis of the formula attributed to Jesus: “Render to Caesar what the Caesar’s and to God what the God’s” [6]  and “My kingdom is not of this world” [7].

ü      Constantine (280-337) moves the Empire’s capital to Constantinople: 330

ü      Roman Empire split into Eastern and Western sections: 395

ü      Western Roman Empire fell to the Barbarians: 476 (Now the Churchmen took the authority to rule the people, began to promulgate laws in the name of their Lord Jesus Christ, though for the last five hundred years they spread the idea that the kingdom of Jesus Christ is not of this world      (“My kingdom is not of this world” [8] ) and Christ himself divided state and religion and ordered to obey the state in the worldly affairs and God only in purely spiritual affairs (“Render to Caesar what the Caesar’s and to God what the God’s” [9] )

ü      Justinian’s Codex Constitutionum: 529

ü      Holy Roman Empire: 800-1806 [popes and emperors had been engaged in a continuous contest for supremacy] founded by Charlemagne in ad 800 and dissolved by Emperor Francis II in 1806

ü      Eastern Roman Empire (Byzantine Empire) fell to the: Turks1453

v      After the fall of Constantinople the Europeans were compelled to discover new sea routes to India- the most enriched area of those days. They compete among themselves to gain naval supremacy which ultimately resulted in serious conflicts in the sea. Portugal was the successful explorer of the new sea route to India and the pioneer of naval exploration of that time. Therefore in exercise of its self proclaimed right of monopoly over the sea, Portugal seized a Dutch ship. Aggrieved with and deprived by the naval supremacy and monopoly of Portugal, Hugo Grotius – a Dutch jurist-  came with the new formula of OPEN SEA (mare liberum) and thereby held the title of ‘father of modern international law’.

v      Envied with the military, scientific and strategic success of the Muslim world particularly that of the Ottoman Turks and disappointed by the fragmented Europe during the Thirty Years’ War (1618-1648) and with a view to strengthening the Christian Commonwealth, Thomas Hobbes published his Leviathan in 1651.

v      An Essay Concerning Human Understanding [1690] by John Lock

v      Deism: the idea of revelation less God (1710).

v      An Introduction to the Principles of Morals and Legislation by Jeremy Bentham

 

The DARK AGES:

from the fall of Western Roman Empire in the hands of Barbars (476) to the fall of Constantinople (the seat of Byzantine Empire) in the hands of Muslim Turks (1453). This period is remembered by the Europeans as the Medieval Age or Dark Ages (It is to be noted that this period is a dark period for Europe and not for Asia because in that period Asia was quite enlightened in terms of intellect, governance and medical science etc. [10]) because of ignorance, lawlessness, arbitrary actions of the feudal lords and the Church Authority and suppression of scientific exploration in the name of religion though the very theses of  the Church Authority were derived from Greek philosophy and not from God’s revelation.

The Renaissance (13th centuryearly 17th century):

The Renaissance is a series of literary and cultural movements in the 13th, 14th, 15th, 16th and early 17th centuries. These movements began in Italy and eventually expanded into Germany, France, England, and other parts of Europe. Participants studied the great civilizations of ancient Greece and Rome and came to the conclusion that their own cultural achievements rivaled those of antiquity. The word renaissance means “rebirth.” The idea of rebirth originated in the belief that Europeans had rediscovered the superiority of Greek and Roman culture after many centuries of what they considered intellectual and cultural decline. [11]  Thomas Aquinas sought to reconcile Aristotelian philosophy with Augustinian theology. He employed both reason and faith in the study of metaphysics, moral philosophy, and religion. But the dominant intellectual movement of the Renaissance was humanism; a cultural impulse characterized by, among many other things, a SHIFT OF EMPHASIS FROM RELIGIOUS TO SECULAR CONCERNS. [12]. During the Renaissance, they (i.e. the humanists) challenged the basis of scholastic education and sought an emphasis on practical experience rather than abstract thought. Humanists such as Desiderius Erasmus rejected religious orthodoxy in favour of the study of human nature. [13]  Humanism reflected some of the changes in values of the new urban society and the townspeople challenged the dominance of the church in everyday life.

The Age of Enlightenment / the Age of Reason (1620 – 1781) :

It refers to the time of the guiding intellectual movement covering about a century and a half in Europe, beginning with the publication of Francis Bacon’s Novum Organum (1620) and ending with Immanuel Kant’s Critique of Pure Reason (1781). From the perspective of socio-political phenomena, the period is considered to have begun with the close of the Thirty Years’ War (1648) and ended with the French Revolution (1789). [14]

 

Primacy of REASON:

The Enlightenment scholars advocated reason as a means to establishing an authoritative system of aesthetics, ethics, government, and even religion, which would allow human beings to obtain OBJECTIVE TRUTH about the whole of reality. Emboldened by the revolution in physics commenced by Newtonian kinematics, Enlightenment thinkers argued that reason could free humankind from superstition and religious authoritarianism that had brought suffering and death to millions in religious wars. [15] But they did not try to understand whether human REASON is competent enough to perform such a difficult and complicated task. Human history has proven its utter failure. Keeping this in mind Hume has correctly regarded REASON ALONE as “the slave of the passions”. Reason can show people how best to achieve their ends, but it can not determine what those ends should be; it is incapable of moving one to action except in accordance with some prior want or desire. [16]   But as a means of strong reaction to the tyranny of the Church authority they themselves went to another extreme position, revolted against religion and ousted the jurisdiction of God regarding human behaviour. They reduced religion to certain basic moral principles and a few universally held beliefs about God. Aside from these universal principles and beliefs, religions in their particularity were largely banished from the public square. Thomas Hobbes, who brought ETHICS into the modern era, developed an ethical position based only on the facts of HUMAN NATURE and the circumstances in which humans live and constructed a philosophical edifice which stands on its own foundations; God merely crowns the apex. [17]  Deism, another movement of the Enlightenment led by John Toland (1670-1722) and Matthew Tindall (1655-1733) in England, Voltaire (1694-1778) in France, and Hermann Samuel Reimarus (1694-1768) and Gotthold Ephraim Lessing (1729-1781) in Germany, expressly denied the necessity of revelation by maintaining that after creating the universe, God does not interfere in its day-to-day runnings. Voltaire envisioned a new, practical deistic religion, according to which one has only to believe in one just God without any ritual and to practice virtue. As a logical consequence the Enlightenment resulted in ATHEISM [18], because those beliefs segregated from practical life are meaningless and people lost their interest in such redundant beliefs. Without coercive power how can an ideology survive in conflict of ideologies? Seeing the violent extremes of the French Revolution (particularly during the Reign of Terror) led by so called enlightened revolutionaries one of the brilliant figures of the Enlightenment Immanuel Kant (1724-1804), who referred to Sapere aude! (Dare to know!) as the motto of the Enlightenment, ended up criticizing the Enlightenment confidence on THE POWER OF REASON. But they continued their blind reliance upon REASON and did not seriously try to explore any other standard of OBJECTIVE TRUTH. This hard line ultimately gave birth to so many extremist movements, such as religious conservatism, postmodernism, and feminism.

Undermining the status of REVELATION:

Primacy of reason reached such a state that the authenticity of revelation was openly questioned and declared unacceptable in case of its contradiction with reason. “In An Essay Concerning Human Understanding [1690], Lock further eroded the intellectual status of religious propositions by making them subordinate to reason in several respects. First, reason can restrict the possible content of propositions allegedly revealed by God; in particular, no proposition of faith can be a contradiction. Furthermore, no revelation can contain an idea not derived from sense experience, we should not believe St Paul when he speaks of experiencing things as “eye hath not seen, nor ear heard, nor hath it entered into the heart of man to conceive…” Another respect in which reason takes precedence over faith is that knowledge based on immediate sense experience is always more certain than any alleged revelation”. [19]  Lock clearly states, “Nothing that is contrary to, and inconsistent with, the clear and self-evident dictates of reason has a right to be urged or assented to as a matter of faith”. He further says, “Reason must be our last judge and guide in everything”. [20]

Development of SOCIAL CONTRACT theory:

The seventeenth century saw the coming into existence of some of the classics of political thought, especially Thomas Hobbes’ Leviathan (1651), and John Locke’s Two Treatises of Government (1690). Hobbes’ main argument was that it is by the social contract that sovereignty is to be transferred to the king or monarch, because it is ultimately derived from the people and not from the divine right. Locke declared that the purpose of authority is not to used arbitrarily by the ruler, rather it is to protect human equality and freedom. According to him, citizens agree to a “social contract” that places an authority over them, but if that authority ceases to care for their welfare, independence, and equality, then the contract is broken and it is the duty of the members of society to overthrow the ruler. This theory decisively influenced the occurrence of the American War of Independence and the French Revolution and got its proper place in the papers that appeared immediately after these two revolutions.

Ground work of UTILITARIAN THEORY:

Hobbes’ definition of good is equally devoid of religious or metaphysical assumptions. A thing is good, according to him, if it is “the object of any man’s appetite or desire”. [21]

According to English theologian William Paley:

Right and wrong are determined by the will of God, but God gives a command or prohibition for the greatest happiness of his creatures. [22]

 

Notwithstanding these predecessors, Jeremy Bentham is properly considered the father of modern utilitarianism. It was he who made the utilitarian principle serve as the basis for a unified and comprehensive ethical system that applies, in theory at least, to every area of life. Never before had a complete, detailed system of ethics been so consistently constructed from a single fundamental ethical principle. [23]

Utilitarianism is the view that the laws should be crafted so as to produce the best consequences. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. [24]

 

Jeremy Bentham: the Utilitarian philosopher 

Jeremy Bentham (1748 – 1832), an English jurist and a leading theorist in Anglo-American philosophy of law has become famous for his advocacy of utilitarianism and his opposition to the ideas of natural law and natural rights.” [25]. On his youth he attended the lectures on law given by Sir William Blackstone and found his fallacy respecting natural rights. According to Bentham there could not be any basis for a theory of ‘natural rights’ which is in reality ‘rhetorical nonsense – nonsense on stilts’. [26]

He became known as one of the most influential of the utilitarians, through his own work and that of his students. These included his secretary and collaborator on the utilitarian school of philosophy, James Mill and his son John Stuart Mill.

When the American colonies published their Declaration of Independence in July 1776, the British government did not issue any official response but instead secretly commissioned London lawyer and pamphleteer John Lind to publish a rebuttal. His 130-page tract was distributed in the colonies and contained an essay titled Short Review of the Declaration authored by Bentham, a friend of Lind’s, which attacked and mocked the Americans’ political philosophy. [27]

Among his many proposals for legal and social reform was a design for a prison building he called the Panopticon.

The areas in which he contributed most

v      separation of church and state

v      equal rights for women,

v      the end of slavery,

v      the abolition of physical punishment (including that of children),

v      the right to divorce, free trade, usury,

v      the decriminalization of homosexual acts and

v      criticism of death penalty

Major Works of Jeremy Bentham

Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law

Judicial Procedure, Anarchical Fallacies, works on Taxation

Usury, Political Economy, Equity, Parliamentary Reform

Panopticon, Constitution, Colonies, Codification

Scotch Reform, Real Property, Codification Petitions

Rationale of Evidence, Rationale of Judicial  Evidence

Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs

Constitutional Code [28]

Fragment on Government (1776). This is basically a criticism of some introductory passages relating to political theory in William Blackstone‘s (1723-1780) Commentaries on the Laws of England. Bentham disagreed with Blackstone’s defence of judge-made law, his theological formulation of the doctrine of mixed government, his appeal to a social contract and his use of the vocabulary of natural law. It also provided an opposing view to the American Declaration of Independence. According to Bentham the document was a confused and absurd jumble of words wherein the authors assumed the very ‘natural rights’ of man. [29]  Bentham was also an outspoken critic of the discourse of ‘natural rights’ by the French revolutionists.

Sir William Blacstone says in his “Commentaries”, that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine original. [30]

But influenced by the theory of positivism- law as a command posited by a mortal GOD- HLA Hart reacts,

“Now he may mean that all human laws ought to conform to the divine laws. If this be his meaning, I assent to it without hesitation. …Perhaps, again he means that human lawgivers are themselves obliged by the Divine laws to fashion the laws which they impose by that ultimate standard, because if they do not, God will punish them. To this also I entirely assent. …But the meaning of this passage of Blackstone, if it has a meaning, seems rather to be this: that no human law which conflicts with the Divine law  is obligatory or binding; in other words, that no human law which conflicts with the Divine law is a law. ” [31]

 

Utilitarianism

John Stuart Mill says, “From the dawn of philosophy, the question concerning … the foundation of morality, has been accounted the main problem in speculative thought, has occupied the most gifted intellects, and divided them into sects and schools, carrying on a vigorous warfare against one another.” [32]

Bentham expounded an underlying moral principle on which legal and social reforms should be based. This philosophy, utilitarianism, argued that the right act or policy was that which would cause “the greatest good for the greatest number of people”, also known as “the greatest happiness principle“, or the principle of utility. He wrote in The Principles of Morals and Legislation:

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think…[33]

Utilitarianism was revised and expanded by Bentham’s student, John Stuart Mill.

Principles of Legislation written by Jeremy Bentham focuses on the principle of utility. His principle of utility regards “good” as that which produces the greatest amount of pleasure and the minimum amount of pain; and “evil” as that which produces the most pain without the pleasure.[34]

According to Bentham our destiny is to become free from the contingencies of religion and historical accident. [35]

Utilitarianism: View point of Islam

 

According to Mawdudi, a leading scholar of Islam in Twentieth century: from Spinoza and his Pantheistic religious rationalism the road finally led to Spencer’s atheism and Mill’s utilitarianism.  [36]

Criticizing the utilitarian theory he says in his Towards Understanding the Quran,

“The fact is that once God and the Hereafter are relegated to oblivion, the only practicable course left for man is to anchor his morality on utilitarianism. All other philosophical ideas which are expounded are merely theoretical embellishments and have no relevance for man’s practical life.
As for utilitarian morality – no matter how hard we might try to broaden its scope – it does not go beyond teaching man that he ought to do that which will yield to him or to his society some worldly benefit. Now since utility is the criterion of all acts, such a philosophy tends to make man cynical, with the result that in order to derive benefits, he will not differentiate between truth and lie; between trustworthiness and treachery; between honesty and dishonesty; between loyalty and perfidy; between observing justice and committing wrong. In short, a person under the spell of utilitarian ideas will be ready to do a thing or its opposite, depending on what serves his interests best. The conduct of the British is illustrative of this stance. It is sometimes contended that though the British have a materialistic outlook on life and generally do not believe in the Hereafter, they are more truthful, fairer, and more straightforward and faithful to their commitment.
The fact, however, is that the tenuous character of moral values under a utilitarian moral philosophy is amply illustrated by the character of the British. For their actual conduct clearly shows that they do not consider moral values to have any intrinsic worth. This is evident from the fact that even those values which are held by the British to be good in their individual lives are brazenly flouted when they act as a nation. Had the qualities of truthfulness, justice, honesty and faithfulness to one’s committed word been regarded as intrinsic virtues, it would have been altogether out of the question for the elected rulers of Britain to cynically violate all moral principles in governmental and international affairs and yet continue to retain the confidence of the British people. Does such a behaviour of a people who do not take the Hereafter seriously prove that they do not believe in absolute moral values? Does it also not prove that, guided by concern for material interests, such people are capable of following mutually opposed views simultaneously? Nevertheless, if we do find some people who, in spite of their not believing in God and the Hereafter, consistently adhere to some moral virtues and abstain from evil, there should be no mistaking that their righteous conduct and piety represents the continuing influence which religious ideas and practices have over them – even if unconsciously – rather than their subscription to a materialistic philosophy of life. If they possess any portion of the wealth of morality, there can be no doubt that it was stolen from the treasure-house of religion. It is ironical that such persons are now using the same wealth derived from religious sources, to promote an irreligious way of life. We consider this an act of theft because irreligiousness and materialism are altogether bereft of morality.” [37]

Karl Marx’s criticisms

Karl Marx says that Bentham fails to take account of the changing character of people, and hence the changing character of what is good for them. He further argues that as human nature is dynamic, the concept of a single utility for all humans is one-dimensional and not useful. [38]

Criticizing the utilitarian principle Karl Marx, in Das Kapital, writes:

Not even excepting our philosopher, Christian Wolff, in no time and in no country has the most homespun commonplace ever strutted about in so self-satisfied a way. The principle of utility was no discovery of Bentham. He simply reproduced in his dull way what Helvétius and other Frenchmen had said with esprit in the 18th century. To know what is useful for a dog, one must study dog-nature. This nature itself is not to be deduced from the principle of utility. Applying this to man, he that would criticise all human acts, movements, relations, etc., by the principle of utility, must first deal with human nature in general, and then with human nature as modified in each historical epoch. Bentham makes short work of it. With the driest naiveté he takes the modern shopkeeper, especially the English shopkeeper, as the normal man. Whatever is useful to this queer normal man, and to his world, is absolutely useful. This yard-measure, then, he applies to past, present, and future. The Christian religion, e.g., is “useful,” “because it forbids in the name of religion the same faults that the penal code condemns in the name of the law.” Artistic criticism is “harmful,” because it disturbs worthy people in their enjoyment of Martin Tupper, etc. With such rubbish has the brave fellow, with his motto, “nulla dies sine line!,” piled up mountains of books.[39]

Social Contract and Utilitarianism:

Bentham explained the social contract theory in the light of utility. Wayne Morrison explains, “Take the social contract theory as an explanation for our obligation to obey the law; apart from the difficulty of determining whether there ever was such a contract or agreement, Bentham argues that the obligation to obey, even in the contract theory itself, rests upon the principle of utility, for it really says that the greatest happiness of the greatest number can be achieved only if we obey the law…….obedience is better because disobedience does more harm than good…. Since we can not know God’s pleasure, we must observe ‘what is our pleasure and pronouncing it to be his’.” [40]

Legal positivism / Secular or ‘positive’ theory of law is a school of thought in philosophy of law and jurisprudence. The principal claims of modern legal positivism are that:

  • There is no inherent or necessary connection between the validity conditions of law and ethics or morality.
  • Laws are rules made, whether deliberately or unintentionally, by human beings. [41]

The earliest ‘modern’ legal theory in England is the imperative or command theory of law, associated with Jeremy Bentham and John Austin. The theory is based in a conception of sovereignty derived from long traditions of political thought in which Thomas Hobbes was a chief contributor but adapted in significant ways to what Bentham and Austin understood as the political and legal conditions of their times. [42] On the other hand legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham drew a sharp distinction between people he called:

  • Expositors – those who explained what the law in practice was; and
  • Censors – those who criticised the law in practice and compared it to their notions of what it ought to be. [43]

Secular or ‘positive’ theory of law: the case of Bentham:

Bentham differentiated the question of what the law was from the question of what the law ought to be. The ‘ought’ part was answered by the key criterion of judging – or as he put it, the ‘sacred truth’ – that ‘the greatest happiness of the greatest number is the foundation of morals and legislation’.

Appreciating Austin’s command theory

Both the common law tradition and natural law theories gave an image of law as something that was not at the government’s behest to use as the government desired. Instead law was ‘other’ than

governmental power. By contrast, Hobbes, Bentham and Austin identified (positive) law as the creation of government (the sovereign) and as part of government’s instruments to achieve (rational, coherent and defendable) rule.

Command theory of law

Commands involve an expressed wish that something be done, and ‘an evil’ to be imposed if that wish is not complied with. Positive law consisted of those commands laid down by a mortal God i.e. human being to be contrasted to other law-givers, such as eternal God’s general commands. In this criterion, Austin succeeded in delimiting law and legal rules from religion and morality.  [44]

 

The question of morality:

Morality is a much talked issue in western thinking. Somebody equated it with religion, some others with natural law and while others have found that morality is actually something that suits the whims of the ruling class. For example, the Russian revolutionary leader Leon Trotsky (1879-1940) says, “The ruling class forces its ends upon society and habituates it into considering all those ends which contradict its ends as immoral. That is the chief function of official morality. It pursues the idea of the ‘greatest possible happiness’ not for the majority but for a small and ever-diminishing minority. Such a regime could not have endured for even a week through force alone. It needs the cement of morality. The production of this cement constitutes the profession of the petty – bourgeois theoreticians and moralists. They radiate all the colours of rainbow but in the final analysis remain apostles of slavery and submission.” [45]

John Dewey (1859-1952), co-author and signer of the Humanist Manifesto 1 (1933), declared, “There is no God and there is no soul. Hence, there are no needs for the props of traditional religion. With dogma and creed excluded, then immutable truth is also dead and buried. There is no room for fixed, natural law or moral absolutes.” [46]

After snatching away the sovereign law making power of the Eternal God or denying his very existence, the only option that seems to be left is to adhere to moral standards we make up for ourselves. Unless we live in a dictatorial society, we are free to choose our own personal moral code. But where does that freedom come from? The view of many who do not adhere to the sovereign law making power of the Eternal God is that morality is a creation of humanity, designed to meet the need of stable societies.  In that case the more important question is: what happens when our choices conflict with each other? What if something I believe I need in order for my life to continue results in death for you? If we do not have an absolute standard of truth, chaos and conflict will result as we are all left to our own devices and desires. [47]

But in the mid-nineteenth century a new movement–known variously as legal positivism, legal formalism, and analytical jurisprudence–sought to reduce the subject matter of law to its most essential core.  If physics could be reduced to “matter in motion” and biology to “survival of the fittest,” then surely law and legal study could be reduced to a core subject as well.  The formula was produced in the mid-nineteenth century–most famously by John Austin in England and Christopher Columbus Langdell in America: Law is simply the concrete rules and procedures posited by the sovereign, and enforced by the courts. Many other institutions and practices might be normative and important for social coherence and political concordance.  But they are not law.  They are the subjects of theology, ethics, economics, politics, psychology, sociology, anthropology, and other humane disciplines.  They stand beyond the province of jurisprudence properly determined. [48]

Legal positivism declares that morality is irrelevant to the identification of what is valid law. [49]

Definition of law:

Bentham substitutes the will of the sovereign for the divine will. According to him law has the following elements:

Law is

1.      an assemblage of signs;

2.      expressive of subjective will;

3.      directly or indirectly attributable to the sovereign in one of the following three ways:

a)      the author of the law is the sovereign himself;

b)      the sovereign has allowed a previous sovereign’s law to continue in existence

c)      the law has been made by a person on behalf of the sovereign who is authorized to do so ;

4.      related to conduct in a given situation ;

5.      directed to persons who are supposed to be subject to the sovereign’s power. [50]

It is important to mention that Bentham’s concept of a sovereign does not carry with it any ‘NATURAL LAW BAGGAGE’. It is simply the people or person to whom a political community are supposed to be in disposition to obey.  [51]

Hans Kelsen: the proponent of Pure Theory of law

Hans Kelsen (October 11, 1881 in PragueApril 19, 1973 in Berkeley, California) an Austrian-American jurist was born to Jewish parents. Although he was resolutely agnostic, he converted to Catholicism in 1905 in an attempt to avoid integration problems. His particular concern was to ensure that his ambition to lecture at university would not be jeopardized by his family’s religious background. Unfortunately, this solution did not prove to be very useful. [52]  After the Nazis came in to power in the early thirties of the last century increasingly strong anti-Semitic sentiments among students, leading to overt cases of harassment, made it impossible for him to continue his courses in Geneva and Prague.  The beginning of the Second World War motivated Kelsen’s decision to leave in 1940 for the United States. Once again, the hurdles he was compelled to cross in settling into a new environment were by no means insignificant. Just on 60 years of age, with a poor knowledge of English, with no certainty regarding his career or his future, Kelsen embarked on yet another new life. [53]  But with the help of the famous American jurist Roscoe Pound he contributed his best in legal thinking through his writing and delivering lectures in different universities of the world.

Kelsen is considered one of the preeminent jurists of the 20th century. His legal theory, a very strict and scientifically understood type of legal positivism, is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and “simple” law are based. [54]

Pure Theory of Law is a book by Hans Kelsen. The theory proposed in this book has probably been the most influential theory of law produced during the 20th century. He is widely regarded as having created the most extreme version of legal positivism in his self-proclaimed ‘pure’ theory of law. Kelsen tried his best to reconstruct ‘legal science as a science of norms. The legal science expounded by him would be ‘pure’ in two senses. Firstly, legal theory would be ‘pure’ in the meaning that it is claimed to be free from any ideological considerations and would set out a priori a ‘pure part’ of legal science which will contain a framework of fundamental concepts. Afterwards this framework would be applied to empirical (sociological, historical and so on) material so as to understand that material as ‘law’. Secondly, as the core subject matter of legal science, for Kelsen, is legal norms, it would be ‘pure’ in being solely descriptive – excluding from the science any element of evaluation or in other words the study of political, economic, or historical influences on the development of law are beyond the purview of pure theory.

Kelsen claims, “The pure theory of law is a theory of positive law. As a theory it is exclusively concerned with the accurate definition of its subject matter. It endeavours to answer the question, ‘what is the law?’ but not the question, ‘what ought it to be?’ It is a science and not a politics of law”. [55]

Critics say that this theory limited the scope of jurisprudence and creates stagnancy in the creative mind of the jurists, “… treats law solely in terms of formal structure leaving all issues of purpose or content beyond the interests of legal scientists, its ‘purity’ labelled as narrowing the role for legal theory in theorizing about the social world. Thus Kelsen’s theory can be charged with weakening the jurisprudential imagination in the face of social power; it turns the jurisprudent or lawyer into the meek servant of whatever political ideology is dominant”. [56]

Pure Theory of Law: one degree ahead in separating law from morality

According to Wayne Morrison legal positivism was not quite successful in freeing itself from the tendency of natural law. Austin’s positivism i.e. separating the science of law from all moral content was nothing but a defense of private property. If the legal science is pure, it should not justify anything. Kelsen says: “In rejecting a justification of the state by the law, the Pure Theory of law does not imply that no such justification is possible. It only denies that legal science can perform that office. Indeed, it denies that it can ever be the task of legal science to justify any thing. Justification implies judgment of value, and judgment of value is an affair of ethics and of politics, not, however of pure knowledge, to the service of that knowledge legal science is dedicated.” [57]

Grundnorm:

Grundnorm or basic norm is a norm ‘presupposed’ in legal science for each order of positive law, to make it possible to understand that material as an order of positive law. ‘The historically first constitution is to be obeyed’ is simply that basic norm. That constitution may have become established by custom or by revolution: the jurist does not evaluate the circumstances whatever those circumstances may be.

Conclusion:

Western jurisprudence evolved in more than two thousand and five hundred years. During this long period different scholars added their varieties of ideas in legal thinking. Among them Jeremy Bentham and Hans Kelsen were particularly mentionable. Bentham’s formulae of utilitarianism finalized by John Stuart Mill, positivism strengthened by John Austin and his much-talked separation of law and morality brought about significant changes in the standards and bases of legal thinking in the west. On the other hand the pure theory and grundnorm of Hans Kelsen have been relatively more successful in drawing the demarcation line between law and other things and putting law in a concentrated area. Simply speaking the changes in legal thinking brought about by these two jurists were of such a nature that they will continue to be very effective for long time in future.

Bibliography

 

 

  • Kelly, A Short History of Western Legal Theory, 5-6
  • THE EVOLUTION OF LAW by Edward W. Younkins Montréal, 2000  /  No 65
  • Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
  • Microsoft ® Encarta ® 2008.
  • The New Testament
  • Britannica Ready Reference Encyclopedia, New Delhi, 2006, 10 volumes
  • Harrison, Ross. Jeremy Bentham, in Honderich, Ted. (ed.) The Oxford Companion to Philosophy, Oxford, 1995
  • Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 186
  • Declaring Independence: The Origin and Influence of America’s Founding Document. Edited by Christian Y. Dupont and Peter S. Onuf. University of Virginia Library (Charlottesville, VA: 2008
  • H.L.A. Hart, Harvard Law Review, vol. 71 (1958)
  • UTILITARIANISM by John Stuart Mill (1863)
  • Bentham, Jeremy. The Principles of Morals and Legislation (1789)
  • Sayyid Abul A’la Maududi,  Towards Understanding the Quran, Vol. 2
  • Karl Marx, Das Kapital Volume I Chapter 24 endnote 50]
  • Professor Wayne Morrison, Review of the idea of Jurisprudence and the contemporary significance of one theory, i.e. the ‘command’ theory of Bentham/Austin, 2009.
  • University of London, External Programme, Jurisprudence and Legal Theories, Imperative or command theories of law
  • Leon Trotsky, Their Morals and Ours: The Moralists and Sycophants against Marxism, Union Books, (1939)
  • John Austin, The Province of Jurisprudence Determined, Being the First of a Series of Lectures on Jurisprudence, or, The Philosophy of Positive Law, 2d. ed., 3 vols. (London: J. Murray 1861-63);
  • Christopher Columbus Langdell, A Selection of Cases on the Law of Contracts, 2d ed. (Boston: Little, Brown, and Company, 1879), preface; id., “Harvard Celebration Speeches,” Law Quarterly Review 3 (1887): 123
  • Jurisprudence: the Philosophy of law, Old Bailey Press, London p. 60)
  • Hans Kelsen Online Biographical Note and Bibliography
  • Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 324
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  • Wikipedia, last visited on 20,12,2009
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  • ·         www.informaworld.com/index/762959893.pdf)


[1] Kelly, A Short History of Western Legal Theory, 5-6 (Wapedia, Origin of Law, last visited on 20, 12, 2009)

[2] Roman Law, Wikipedia, last visited on 20,12,2009

[3] THE EVOLUTION OF LAW by Edward W. Younkins Montréal, 5 août 2000  /  No 65

[4] Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy

[5] Microsoft ® Encarta ® 2008

[6] The New Testament, Mathew, 22:21; Mark 12:17; Luke 20:25

[7] The New Testament, Mathew, 22:21; Mark 12:17; John, 18:36

[8] The New Testament, John, 18:36

[9] The New Testament, Mathew, 22:21; Mark 12:17; Luke 20:25

[10] For detailed information see: Jawaharlal Nehru, Glimpses of World History; Will Durant, The Story of Civilization, vol. III; P.K. Hitti, The History of the Arabs.

[11] Microsoft ® Encarta ® 2008

[12] Britannica Ready Reference Encyclopedia, New Delhi, 2006, Vol. 5, p. 83

[13] Britannica Ready Reference Encyclopedia, New Delhi, 2006, Vol. 8, p. 143

[14] Age of Enlightenment, wikipedia, last visited on 20,12,2009

[15] Age of Enlightenment, wikipedia, last visited on 20,12,2009

[16] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008), p. 238

[17] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008), p. 223

[18] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008), p. 223

[19] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008), p. 241

[20] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008), p. 241-2

[21] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008),  p. 223

[22] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008),  p. 239

[23] The Britannica Guide to The Ideas that Made the Modern World, Constable & Robinson, London (2008),  p. 239

[24] Jurisprudence, wikipedia, last visited on 20,12,2009

[25] Harrison, Ross. Jeremy Bentham, in Honderich, Ted. (ed.) The Oxford Companion to Philosophy, Oxford, 1995, pp. 85-88

[26] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 186

[27] Declaring Independence: The Origin and Influence of America’s Founding Document. Edited by Christian Y. Dupont and Peter S. Onuf. University of Virginia Library (Charlottesville, VA: 2008) pp. 32-33

[28] online library of liberty

[29] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 186

[30] H.L.A. Hart, Harvard Law Review, vol. 71 (1958), p.595

[31] H.L.A. Hart, Harvard Law Review, vol. 71 (1958), p.595

[32] UTILITARIANISM by John Stuart Mill (1863) Chapter 1 General Remarks

[33] Bentham, Jeremy. The Principles of Morals and Legislation (1789) Ch I, p. 1

[34] wikipedia, Bentham last visited on 20,12,2009

[35] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 187

[37] Sayyid Abul A’la Maududi,  Towards Understanding the Quran, Vol. 2 pp 377

[38] wikipedia, utilitarianism

[40] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 189

[41] wikipedia: Legal positivism

[42] Professor Wayne Morrison, Review of the idea of Jurisprudence and the contemporary significance of one theory, i.e. the ‘command’ theory of Bentham/Austin, 2009.

[43] Professor Wayne Morrison, Review of the idea of Jurisprudence and the contemporary significance of one theory, i.e. the ‘command’ theory of Bentham/Austin, 2009

[44] University of London, External Programme, Jurisprudence and Legal Theories, Imperative or command theories of law p. 55

[45] Leon Trotsky, Their Morals and Ours: The Moralists and Sycophants against Marxism, Union Books, (1939) 1994: 8

[46] philosophyallabout.com

[47] philosophyallabout.com

[48] See esp. John Austin, The Province of Jurisprudence Determined, Being the First of a Series of Lectures on Jurisprudence, or, The Philosophy of Positive Law, 2d. ed., 3 vols. (London: J. Murray 1861-63); Christopher Columbus Langdell, A Selection of Cases on the Law of Contracts, 2d ed. (Boston: Little, Brown, and Company, 1879), preface; id., “Harvard Celebration Speeches,” Law Quarterly Review 3 (1887): 123

[49] Jurisprudence: the Philosophy of law, Old Bailey Press, London p. 60

[50] Jurisprudence: the Philosophy of law, Old Bailey Press, London p. 60

[51] Jurisprudence: the Philosophy of law, Old Bailey Press, London p. 60

[52] Hans Kelsen Online Biographical Note and Bibliography

[53] Hans Kelsen Online Biographical Note and Bibliography

[54] Wikipedia, Hans Kelsen last visited on 20,12,2009

[55] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 324

[56] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 324

[57] Wayne Morrison, JURISPRUDENCE: from Greeks to post-modernism, Cavendish Publishing Limited, London, 2000 (reprinted), p. 324

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