John Austin, Jeremy Bentham, and Utilitarianism By: Brittany, Erika, Lauren, Ebony, Mica

1. John Austin, Jeremy Bentham, and Utilitarianism By: Brittany, Erika, Lauren, Ebony, Mica

2. Positive Law • Laws based on human authority, such as political leaders or lawmakers

3. Jeremy Bentham • Founder of utilitarianism; was an English gentleman, jurist, philosopher, and legal/social reformer • Recognized as a child prodigy • Became deeply frustrated with the English legal code as a lawyer, and he proposed many legal and social reforms that he believed would improve the law • Proposed a prison building called the Panopticon, which would allow an observer to observe the incarcerated without them realizing they were being watched • Was in correspondence with many influential people, such as Adam Smith (father of capitalism), as well as leaders of the French Revolution • Associated with the establishment of the University College London, which was the first English university to admit all, regardless of race, creed or political belief; this equality idea was a Bentham brainchild

4. Utilitarianism • The theory that the greatest happiness of the greatest number should guide the formation of all laws • a form of consequentialism, meaning that the moral worth of an action is determined by its outcome • Utility can be defined as happiness or pleasure, although it can be defined as the satisfaction of preferences

5. Criticism • It is not always clear what the outcome of an action will be, or who will be affected by it. • It is very difficult to quantify pleasures for cost/benefit analysis • The calculation required to determine the right is both complicated and time-consuming • Since the greatest good for the greatest number is described in aggregate terms,, that good may be achieved under conditions that are harmful to some, so long as that harm is balanced by a greater good • The theory fails to acknowledge any individual rights that could not be violated for the sake of the greatest good

6. Types of Utilitarianism • Act utilitarianism – each individual action is to be evaluated directly in terms of the utility principle • Rule utilitarianism – behaviour is evaluated by rules that, if universally followed would lead to the greatest good for the greatest number

7. Bentham on Law • The existence of an authoritative body, such as Parliament or the courts, to which citizens are in a “habit of obedience” • Legal pronouncements or commands, for example, statutes and common law; issued by the authoritative body to political inferiors • The imposition of a duty of obedience • Enforcement through the threat of penalties or legal sanctions

8. John Austin • Born into a middle-class family • Developed a somewhat lacking reputation as a lawyer when called to the bar • Was appointed as the first professor of jurisprudence at the University of London by Jeremy Bentham • Published extensively concerning the philosophy of law and jurisprudence, after his departure from academic life

9. Legal Positivism • The main ideas of modern legal positivism include: • 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

10. Austin’s Theory • The law is command issued by the uncommanded commander – the sovereign • Such commands are backed by sanctions • A sovereign is one who is obeyed by the majority

11. Austin’s Contribution • His most notable contribution to British law was his book The Province of Jurisprudence Determined • The book attempted to clarify the difference between proper law (the law that has its basis in the desire of the governmental authority) and moral law • According to Austin, laws can best be interpreted as a type of command: an expressed desire that another party perform or refrain from performing a specific action. This expression is accompanied by the threat of a clearly defined consequence or punishment if not obeyed • To qualify as laws rather than other forms of commands, laws must outline a prescribed course of conduct rather than a specific act and must be set by a “supreme ruler” body: a) a supreme ruler or governing body is one to which an independent society habitually looks for leadership b) sanctions can be positive or negative, and can include reward or punishment by state agencies; natural consequence or the dictate of one’s conscience are not, in this case, legitimate sanctions

12. Questions • What can utility be defined as? a) usefulness b) happiness/pleasure c) unhappiness d) selfish need • What are the two types of utilitarianism, and what is the difference between them? a) useful/act b) law/act c) act/rule d) law/rule • According to Austin, what must law have in order to function? a) inherence b) utility c) morals d) supreme body/rewards/punishments

13. Questions • 1. a) Why did Austin advocate that positive law serves as an objective standard for human conduct? • He advocated that subjective measures such as morality and a divine standard give individuals too much freedom to follow certain laws and ignore others. Positive law, on the other hand, is a legal norm that applies equally and impartially to all individuals. The function of the law is considered more important than its quality. The purpose of law is not to seek justice, but to maintain social order and promote the social good.

14. Questions • 2. Explain the theory of utilitarianism and its relationship to positive law. How does it apply to each of the following positive laws? • Utilitarianism emphasized that laws should be directed toward producing “the greatest happiness of the greatest number”, and in order to achieve this, citizens must obey the laws made by governments and courts. Positive law emphasizes that the context of the law should be judged according to its social utility. The purpose of the law is not to seek justice, but to maintain social order and promote the social good. • a) the prohibition against owning a switchblade Unnecessary injury prevention b) the right to vote at age 18 To make sure that informed decisions are made c) the right to drive an automobile at age 16 Keep inexperienced drivers off the road, preventing motor vehicle accidents d) the freedom of expression Allow everyone’s voice to be heard, and provide everyone with equal opportunities. e) the opportunity of an inmate to be released on parole after serving one-third of a sentence If the inmate has exhibited good behaviour, they should be rewarded for it. f) the forbidding of nudity in a public place To prevent more conservative cultures, as well as the general population, from being offended.

15. Questions • 4. Explain Austin’s conceptions of justice and morality. How do his conceptions differ from those of natural law theorists? Use examples to illustrate the differences. • Austin stated that justice and morality are measured by obedience to the law. He recognized that law may also be judged against the rules of morality or a divine standard, but he considered these to be subjective measures. These gave individuals too much freedom to follow the laws suited to their own purpose. Natural law theorists believed that the law should abide by moral values that were common to all humans. Plato suggested that the ultimate purpose of the law was a moral one, to act as a guide for society. Aristotle believed that humans could conduct themselves rationally according the fundamental rules of nature.