Bentham’s Legal Philosophy: A Utilitarian Approach
Bentham’s Legal Philosophy
Similar to Hume, Bentham argues that the only source of law is an expression of will, specifically the will of a sovereign. This perspective is known as an imperativist conception of law.
The Role of Law in Shaping Legal Concepts
Law plays a crucial role in the development of legal concepts. There is a pre-law idea of law, where law precedes the establishment of offenses. Offenses are defined when a law determines that certain actions are considered crimes. Rights do not exist before the law. However, when a law establishes the need to protect certain assets, rights and obligations are created. This ensures that individuals must refrain from actions that may harm others.
Bentham envisions a utilitarian legislator whose goal is to seek the greatest happiness for the greatest number of people through legislation.
Critique of Rationalistic Natural Law
Bentham criticizes rationalistic natural law theorists for considering law as extra-legal fictions resulting from a previous, chimerical law, such as a law of nations or a natural right. He rejects the notion of a natural right existing above positive law. For Bentham, rights and obligations are products of the law and should not be opposed to it, as they are subordinate to it.
According to Bentham, the creator of the law is the sovereign. The sovereign is the person or body of persons whose will is obeyed by the members of a political community.
Validity of the Legal Norm
Bentham’s thought allows us to measure the quality of a legal rule regardless of its validity and effectiveness. Law has a specifically legal character, which is its form, not its content. A rule is a rule of law because it emanates from the authority that holds material power in a given society. The quality of the rule is based on a utilitarian calculation that is teleological and should guide legislative action.
A characteristic of a legal rule is that it proceeds from the will, which is the mandate. From Bentham’s standpoint, a right is an individual interest that should be legally protected.
Positive Morality and the Theory of Law as a Mandate
Bentham agrees with Hume on the existence of positive morality and develops a theory of law as a mandate. The positivist theory of law does not necessarily deny higher moral principles or indiscriminately defend any positive law. However, it maintains the distinction between what the law *is* and what it *ought to be*. The law is created by the sovereign, but obedience should be favored by social agreement, as this agreement is a condition of the norm’s effectiveness.
Sovereign power is supreme and unlimited, but it must be supplemented to some extent. Bentham considers that sovereign will may not be effective without a commonly accepted procedural right.
The Role of Legal Operators
Bentham is important for understanding the role of legal operators. He believes that the practical result of the sovereign’s will depends on the legal circumstances in which it operates and the attitude of members of the legal profession. Bentham is concerned with several central issues:
- Unitary Conception of Law: He argues for an indissoluble unity of the legal system, while also distinguishing between civil law, criminal law, and constitutional law.
- Integrity of the Code: This indissoluble unity is reflected in his defense of the integrity of the Code as the body of laws. Anything not in the Code is not law.