Bentham

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Jeremy Bentham was an extremely forthright and influential 19th century philosopher, with wide-ranging philosophical interests. In law, his most influential writings argued that the principles of Positivism could, and should, be applied to law. He is therefore regarded as the spiritual father, if not the actual founder, of the doctrine of Legal positivism. Bentham had no time at all for the notions of Natural law, least of all the idea that law should be based on 'higher' principles than social good. He famously described the concept of natural rights as 'nonsense on stilts'. In politics, Bentham promoted a system of government based on Utilitarianism, and believed that similar philosophical principles should guide the reform of law. Law, in Bentham's view, was to be developed without regard to 'higher principles, purely on the basis of what would maximize social good. There was to be no room in his system for judicial creativity; courts would simply apply an exhaustive and logical legal code. In fact, Bentham demonstrated a high degree of contempt for both judge and jury, and referred to the court system in his writings as 'Judge and Co.'

Although Bentham repudiated the notion that law should be based on morality, the whole principle of utilitarianism is, in effect, a moral standpoint. Moreover, his abrogation of ethics in law did not stop his taking an ethical stance on a whole range of issues. As Hart has pointed out, Bentham and Austin did not want a law that was without ethical foundation; what they wanted was a general recognition that law as it is, and law as it should be were separable concepts. Real, valuable reform was been hindered by peoples' inability to separate them. If you argue that law is derived from morals, then clearly a radical reform of the law is a departure from morals. Bentham's clear thinking on matters of law and ethics was in stark contrast to the muddle that many of his contemporaries had got themselves into. Consider, for example, the debate, a live issue at the time, about whether there were certain peoples whose innate reasoning abilities were so poorly developed that they were suited only to be the slaves of other people. Bentham cut right across the lines of the argument with his statement 'it matters not whether the slave reasons. What matters is whether he suffers'.

Jeremy Bentham (15 February 1748 – 6 June 1832) was an English jurist, philosopher, and legal and social reformer. He was the brother of Samuel Bentham. He was a political radical, and a leading theorist in Anglo-American jurisprudence. He is best known for his advocacy of Utilitarianism and his opposition to the ideas of Natural law and Natural rights, calling them "nonsense upon stilts". Austin also influenced the development of welfarism. He is probably best known in popular society as the originator of the concept of the 'panopticon'.

Austin 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; Mill's son John Stuart Mill; and several prominent political leaders of his day including Robert Owen (who later became a founder of modern socialism). Austin is also considered the 'intellectual godfather' of University College London.

Bentham's position included arguments in favour of individual and economic freedom, the separation of church and state, freedom of expression, early feminism or equal rights for women, the end of slavery, the abolition of physical punishment (including that of children), the right to divorce, free trade, moderate forms of usury (i.e. the practice of lending money and charging the borrower interest), and the decriminalization of homosexuality and homosexual acts. Austin also made two distinct attempts during his life to critique the capital punishment.

Theory of Law