Pertinencia y efectividad del taller propuesto

3.4.1 Their general approaches

Bentham is, of course, best known as a utilitarian (see 9.1) and law reformer. But he insisted on the separation (already identifi ed above as the hallmark of legal positivism) between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censo-rial’ jurisprudence respectively. Austin was equally emphatic in maintaining this distinc-tion, but his analysis is now generally regarded as much narrower in scope and objective than Bentham’s. Even Professor Morison (who is Austin’s most prominent contemporary fan) acknowledges this fact, conceding that ‘Austin wished himself to construct a sci-ence of law rather than involve himself in Bentham’s art of legislation’.²⁹ Nevertheless Morison is quick to defend Austin from the charge that Austin’s concern with exposi-tory jurisprudence (as contrasted with Bentham’s inclusion of censorial jurisprudence) renders his work less valuable than Bentham’s; such a conclusion is, in his view, ‘unfair’.

Th e modern view is certainly that Austin was considerably more conservative politically than his mentor.³⁰ In fact, Austin eventually came to disown the principle of utility and to doubt the value of his own ‘expository’ jurisprudence.³¹ Consider Rubin’s argument that Austin’s jurisprudence ‘was designed to defend the stability of a particular economic system and protect the interests of the middle class. A legal theory built on these premises can hardly be called value-free or impartial’.³²

Your reading of both jurists will benefi t from comparing not only their diff erences in respect of the specifi c issues referred to below, but also their respective starting points and achievements. Th ough they both adhere to a utilitarian philosophy (which Bentham, Mills, and others propounded with varying degrees of success) and adopt broadly simi-lar views on the nature and function of jurisprudence and the serious inadequacies of the common law tradition, there are a number of important diff erences in their general approach to the subject. In particular, Bentham pursues the notion of a single, complete law which adequately expresses the will of the legislature. He seeks to show how a sin-gle law creates a sinsin-gle off ence defi ned by its being the narrowest species of that kind of off ence recognized by the law.³³

27 Morison’s notion of naivety is, of course, a diff erent one and applied in a diff erent context. See Morison, John Austin, 189.

28 Cotterrell, Th e Politics of Jurisprudence, 82. Postema does not share this view: ‘Austin, it seems, is closer to the Common Law tradition than would fi rst appear. [Austin’s] approach diff ers in motivation from the traditionalist Common Law approach only in the substitution of the wisdom of the utilitarian elite for the wisdom of the ages. Both defi ne authorities which no individual citizen is regarded as competent to chal-lenge. Th is departs radically from both the letter and the spirit of Bentham’s utilitarian positivism.’ At the same time, however, it is essentially anti-democratic, elitist, and not particularly concerned to postulate a system by which such power might be controlled. At 328.

29 Morison, John Austin, 47.

30 See E Rubin, ‘John Austin’s Political Pamphlets 1824–1859’ in E Attwooll (ed), Perspectives in Jurisprudence (Glasgow: University of Glasgow Press, 1977).

31 For an interesting account of Austin’s politics, see Hamburger and Hamburger, Troubled Lives (Toronto and London: University of Toronto Press, 1985).

32 Rubin, op cit, 38.

33 Bentham, Of Laws in General, 170–6.

Austin, on the other hand, bases his idea of a legal system on the classifi cation of rights;

he is not concerned with the search for a ‘complete’ law.³⁴ Secondly, in his attempt to provide a comprehensive plan of a complete body of laws and the elements of the ‘art of legislation’, Bentham develops a complex ‘logic of the will’ (see 3.4.3). Austin, however, is more concerned to construct a science of law rather than involve himself in Bentham’s art of legislation.³⁵ Similarly, while Bentham sought to formulate, in considerable detail, the means by which arbitrary power (exercised in particular by judges) might be checked, Austin did not really apply his mind to such questions.

Bentham regarded judicial law-making as a form of customary law with all its ambi-guities and uncertainties (see 3.2.2). Austin, however, was willing to accept that judicial legislation was capable of providing a basis for codifi cation of the common law.

3.4.2 The defi nition of law

Bentham’s defi nition of law may be divided into the following six elements:

an assemblage of

● signs;

declaratory of a

● volition;

conceived or adopted by the

● sovereign;

concerning

● conduct to be observed by persons subject to his power;

such volition relying on certain

● events which it is intended such declaration should

be a means of causing; and

the prospect of which it is intended should act as a

● motive upon those whose conduct

is in question.

Austin off ers the following defi nition: ‘a signifi cation of desire by a party with a power to infl ict evil if the desire be disregarded, thereby imposing upon the party commanded a duty to obey’: command and duty are therefore correlatives. While their defi nitions of law are very similar (particularly in respect of their emphasis on the subjection of persons by the sovereign to his power), Austin’s defi nition does not extend very much further than the criminal law. His identifi cation of commands as the hallmark of law leads Austin to a far more restrictive conception of law than is adopted by Bentham who is concerned to arrive at the conception of a single, complete law which suffi ciently expresses the legislative will.

Both jurists share a concern to limit the scope of jurisprudential enquiry (and this is illustrated by the very titles of their works: Austin’s Th e Province of Jurisprudence Determined and Bentham’s Th e Limits of Jurisprudence Defi ned (published under the title, Of Laws in General). Austin is the more doctrinaire (and restrictive) in the map he draws, which may be represented as in Figure 3.1 on p. 66.

3.4.3 Commands

Th e central feature of Austin’s map of the province of jurisprudence is, of course, the notion of law as a command of the sovereign. Anything that is not a command is not law.

Only general commands count as law. And only commands emanating from the sover-eign are ‘positive laws’.

Th is insistence on law as commands has been a major focus of attack on Austin’s theory. Not only does it require the exclusion of customary, constitutional, and public

34 Morison, John Austin, 44. ³⁵ Ibid, 47.

international law from the fi eld of jurisprudence, but it drives Austin to the somewhat artifi cial conceptions of ‘tacit commands’, ‘circuitous commands’ (when a sovereign’s

‘desire’ to require obedience to the commands of his predecessors is eff ected by his refrain-ing from repealrefrain-ing them), and of nullity of, say, a contract, as constitutrefrain-ing a sanction.

Bentham, on the other hand, argues that commands are merely one of four methods by which the sovereign enacts law. In developing his (far more sophisticated) theory of the structure of law, he distinguishes between laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct (permissive laws). In Of Laws in General Bentham is concerned with the distinction between penal and civil laws. Every law has a penal and a civil part; thus, even in the case of title to property there is a penal element. As Bentham puts it:

Let the proprietary subject then be a certain piece of land, a fi eld, the off ence which con-sists in the wrongful occupation of this property will be any act in virtue of which the agent may be said to meddle with this fi eld. . . . Th e off ence then being the act of meddling with the fi eld, the act which is the object of the law, the act commanded is the negative act of not meddling with the fi eld.³⁶

In other words, the owner’s title is derived from a general (penal) prohibition against

‘meddling’ with the fi eld. Th e owner is himself, of course, exempted from this prohibi-tion. What Bentham seeks to show is that laws which impose no obligations or sanc-tions (what he calls ‘civil laws’) are not ‘complete laws’ (in the sense in which Austin uses the term, see below), but merely parts of laws. And, since his principal objective was the creation of a code of law, he argued that the penal and civil branches should be formulated separately.

Th e concept of a command was important for Bentham. It captured, in Professor Postema’s words, ‘the artifi cial character of law’:

Law conceived as command could not be regarded as some mysterious, unalterable fact of nature, as common law theorists oft en tried to portray it. To conceive of law as com-mand invites the questions who issued it? and when? and with what authority? Law is clearly portrayed as an artifi cial creation of human society. Th e paradigm captures the related important idea that law is not just descriptive of social order, but is its ‘cause’—not an expression of some deeper reality, but the instrument by which the social relations necessary for human life are constituted and sustained. Th is has important implications for Bentham. For once this view is adopted, no existing system of law and legal relations can be protected as sacred. All law, social relations, and institutions, are opened to critical assessment, challenge, and reform.³⁷

And Bentham did not, of course, shrink from vigorously pursuing all three.

For Bentham, ‘command’ is merely one of four manners in which the sovereign’s will is manifested. Th ere are two imperative aspects (command and prohibition), and two permissive aspects (non-prohibition and non-command). Hart provides examples of each of these:³⁸

Command: ‘Shut the door!’

●

Non-command: ‘You may refrain from shutting the door!’

●

36 Of Laws in General, 176.

37 Postema, Bentham and the Common Law Tradition, 316.

38 Hart, Essays on Bentham, Ch 5, 113.

Let the proprietary subject then be a certain piece of land, a fi eld, the off ence which con-sists in the wrongful occupation of this property will be any act in virtue of which the agent may be said to meddle with this fi eld. . . . Th e off ence then being the act of meddling with the fi eld, the act which is the object of the law, the act commanded is the negative act of not meddling with the fi eld.³⁶

Law conceived as command could not be regarded as some mysterious, unalterable fact of nature, as common law theorists oft en tried to portray it. To conceive of law as com-mand invites the questions whoissued it? and when? and with what authority? Law is clearly portrayed as an artifi cial creation of human society. Th e paradigm captures the related important idea that law is not just descriptive of social order, but is its ‘cause’—not an expression of some deeper reality, but theinstrumenttby which the social relations necessary for human life are constituted and sustained. Th is has important implications for Bentham. For once this view is adopted, no existing system of law and legal relations can be protected as sacred. All law, social relations, and institutions, are opened to critical assessment, challenge, and reform.³⁷

Prohibition: ‘Do not shut the door!’

●

Non-prohibition: ‘You may shut the door!’

●

Bentham develops a complex system of what Hart suggests might be described by a logi-cian as ‘four imperative operators or deontic modalities’. Th is is diffi cult terrain; even Hart³⁹ confesses that he lacks the ‘technical logical competence’ to explain Bentham’s complete ‘logic of the will’, so you are in distinguished company. You should nevertheless consider the relationship between the permissive aspects and the imperative (they release the subject from previously issued commands or prohibitions and are therefore dis-im-perative) and refl ect on Bentham’s view that all ‘complete’ laws are imperative in form.

For Bentham a law contains two parts: the directive part which announces the conduct to be done, not done, etc, and the incitative part which predicts the sanction. Th e sanc-tion is, at this stage, merely a predicsanc-tion; it becomes a reality only when a subsidiary law is addressed to an offi cial ordering him to impose a sanction in the event of a breach of the fi rst law. Th is subsidiary law requires the support of another law and so on. Every law therefore has a sanction, but unlike Austin’s fairly crude account of sanctions (see 3.4.5) Bentham recognizes that a sanction may be not merely coercive, but may also be in the form of a reward. If it is coercive it may assume one or more of several forms: political, moral, or religious. And if it is a reward sanction (what he calls ‘praemiary laws’) it can-not be said to create an obligation; it is can-not therefore a ‘complete’ law (even though it is suffi ciently similar to coercive sanctions to be called ‘law’).

Th is connection between sanction and obligation (the sanction creates or constitutes the legal obligation) is an important element in Bentham’s theory and is, again, more sophisticated than Austin’s account. You might here explore his distinction between con-trectation (the power to handle persons or property, eg, the owner’s power to walk on his land which is derived from a general prohibition against anyone else doing so) and imper-ation (the power to alter persons’ legal position by making them subject to commands or prohibitions) to demonstrate the manner in which a particular sanction (eg, damages for breach of contract) may be used to make laws ‘complete’.

As far as Austin’s theory is concerned, the relationship between commands and sanc-tions is equally important. In particular, the fact that Austin’s very concept of a com-mand includes the likelihood that a sanction will follow failure to obey the comcom-mand. A sanction is defi ned by Austin as an evil which is conditional upon the failure of a person to comply with the wishes of the sovereign. Th us unless a sanction is likely to follow, the mere ‘expression of a wish’ is not a command. Obligations are therefore defi ned in terms of sanctions: this is a central tenet of Austin’s imperative theory. Th e ‘likelihood’ of a sanction is always uncertain, but Austin is driven to the position that a sanction consists of ‘the smallest chance of incurring the smallest evil’.

His analysis of sanctions is adduced as evidence of the ‘muddled, inconsistent and ambiguous’ theory of Austin in general.⁴⁰ Th e whole question of the effi cacy of sanc-tions in motivating obedience is controversial (you may want to consider Milgram’s experiments and the general question of social and psychological factors explaining obedience).⁴¹ ‘Austin seems to assume’, says Tapper ‘that if evil is certain to be infl icted upon some who disobey, all who disobey run some risk of having it infl icted upon them.

Th is is plainly false.’⁴²

39At 115. ⁴⁰ By Colin Tapper (1965) Cambridge Law Journal 270.

41 See Lloyd’s Introduction to Jurisprudence, 8th edn (London: Sweet & Maxwell, 2008), 264.

42 At 281.

Moreover, if all laws are commands then how is one (or more especially Austin) to explain those rules which confer power on persons to alter their legal position (by con-tract, trust, etc)? Austin attempts to squeeze them into his scheme by suggesting that the sanction is nullity and the likelihood of this makes these rules duty-imposing in com-mon with other commands. Hart, of course, decom-monstrates the artifi ciality of describing these ‘secondary, power-conferring rules’ as duty-imposing. Th is criticism of Austin’s limited account of law as commands is an important element of Hart’s critique in Th e Concept of Law (see 4.2). Despite Hart’s attack on Austin, he acknowledges Th e Province of Jurisprudence Determined as constituting an important statement of legal positivism.

In spite of the importance of sanctions in any account of a legal system, it is highly questionable whether they ought to be accorded so central a place in the defi nition of an individual law and its accompanying obligation. In other words, there are many obliga-tions imposed by the law, the breach of which carries no sanction at all. Th ere are even situations in which there is no likelihood of the sanction being enforced (eg, the off ender has died), yet we would not want to deny that the obligation exists.

You should be familiar with Bentham’s strong views on codifi cation (expressed, in par-ticular, in Of Laws in General).⁴³ It would also be sensible to read the important section in Of Laws in General, pp 176–83, being careful to note that Bentham’s usage of certain terms such as ‘penal’ and ‘off ence’ oft en conveys something considerably broader than their contemporary meaning.

3.4.4 Sovereignty

For both Austin and Bentham, sovereignty is a key concept. Th ey both regard sovereignty as a matter of the social fact of the habit of obedience. Again, Bentham’s views turn out to be more sophisticated and less doctrinaire than Austin’s. First, Austin defi nes sovereignty as follows:

If a determinate human superior, not in a habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sov-ereign in that society, and the society (including the superior) is a society political and independent.⁴⁴

Bentham’s defi nition is strikingly similar (and Austin’s debt to him is plain):

When a number of persons (whom we may style subjects) are supposed to be in the habit of paying obedience to a person, or an assemblage of persons, of a known and certain description (whom we may call governor or governors) such persons altogether (subjects and governors) are said to be in a state of political society.⁴⁵

Notice how Austin refers to ‘a society political and independent’, while Bentham refers to

‘a state of political society’. Th is explains why Austin’s defi nition comprises two elements:

one positive (the bulk of the population habitually obeys the sovereign) and the other negative (the sovereign is not in the habit of obeying anyone). Bentham, however, alludes only to the positive condition. Th is is only a minor diff erence and it is fairly likely that the

43 Especially 183, 232 ff .

44 Th e Province of Jurisprudence Determined (London: Weidenfeld & Nicolson, 1954), 194.

45 A Fragment on Government, 2nd edn (London: W Pickering, 1823), Ch 1, para 10.

If adeterminatehuman superior,nottin a habit of obedience to a like superior, receive habituallobedience from thebulk of a given society, that determinate superior is sov-ereign in that society, and the society (including the superior) is a society political and independent.⁴⁴

When a number of persons (whom we may stylesubjects) are supposed to be in thehabit of payingobedienceto a person, or an assemblage of persons, of a known and certain description (whom we may call governorror governors) such persons altogether (subjects andgovernors) are said to be in a state of politicallsociety.⁴⁵

issue of ‘independence’ (to which he refers elsewhere) is simply not germane to the point Bentham is making here.

Th e second diff erence is more signifi cant. Whereas Austin insists on the illimitabil-ity and indivisibilillimitabil-ity of the sovereign, Bentham (alive to the institution of federalism) acknowledges that the supreme legislative power may be both limited and divided by what he calls ‘an express convention’.

Both writers, by identifying ‘commands’ as an essential element of their theories of law, naturally require to explain who issues these commands and under what circumstances.

For Austin, to the four features of a command (wish, sanction, expression of a wish, and generality) is to be added a fi ft h, namely an identifi able political superior, or sovereign,

For Austin, to the four features of a command (wish, sanction, expression of a wish, and generality) is to be added a fi ft h, namely an identifi able political superior, or sovereign,