JURISPRUDENCE LECTURE 4

EARLY LEGAL POSITIVISM

We can identify law without relying on religious authority or tradition

Law is an artefact, something that is created at a certain time and place, by people
We can trace the origin of law to a source
Where positivists differ: what is the source of law?

Jeremy Bentham (1748-1832)

 Background: Utilitarianism
 Theory claims we should maximize happiness and minimize pain
 The principle which approves or disapproves of every action whatsoever, according
to the tendency which it appears to have to augment or diminish the happiness of
the party whose interest is in question
 The creation and administration of law should be guided by this
 Demystifying the Law
o William Blackstone, A commentary of the Laws of England
o Bentham’s target to disprove: the claim that the common law is rational and
coherent and the claim that English law expressed Natural Law
o Criticize that it’s unclear, excluded ordinary people from the process
o We need to see law clearly for what it is so that we can know how to change
it: Pluck the mask of mystery from the face of Jurisprudence
 Censor and Expositor
o To the province of the Expositor it belongs to explain to us what, as he
supposes, the Law is: to that of the Censor, to observe to us what he thinks it
ought to be
o Censor: What should the law be?
o Utilitarianism: the greatest happiness for the great number
o Expositor: How do we describe the law as it is?
 Language and Fictions
o Real Entities
 Things that we can perceive
 Objects, sensory perceptions, pain and pleasure
o Fictitious Entities
 A fictitious entity is an object, the existence of which is feigned by the
imagination, feigned for the purpose of discourse, and which, when so
formed, is spoken of as a real one
  Rights, duties, obligations
 How do we talk about fictitious entities? By Bentham
 Phraseoplerosis
 Use the word to be defined in a sentence
 E.g. Boris and Donald have a friendship.
 Paraphrasis
 The key technique in demystifying fictitious entities
 Translate the sentence using real entities
 E.g. Boris and Donald experience pleasure in each other’s
company
 Paraphrasis: Making sense of ‘Obligation’
o To say that someone has an obligation to conduct themselves in a certain
manner is to say that in the events of his failing to conduct himself in that
manner, pain (or its equivalent, loss of pleasure) is considered as about to be
experienced by him
o E.g. Herbert is under an obligation to keep his promise to Ronald
o Herbert will be punished and will therefore experience pain, if he doesn’t
keep his promise to Ronald
o Having an obligation to do X just means that you are likely to be punished
(and suffer pain) If you do not do X
 Back to Demystifying the Law
o A law may be defined as an assemblage of signs declarative of a volition
conceived or adopted by the sovereign in a state, concerning the conduct to
be observed in a certain case by a certain person or class of persons, who in
the case in question are or are supposed (expected) to be subject to his
power
o A law is the expression of the sovereign’s will, commanding a citizen to do or
refrain from doing something
 Unpacking
o Law is imperative and coercive
 Imperative: In this sense whatever is given for law by the person or
persons recognized as possessing the power of making laws, is law
 Coercive: What has been termed a declaratory law, so far as it stands
distinguished from either a coercive or a discoercive law, is not
properly speaking a law
 Force or threats
o Imperative Nature of Law
 Who counts as the sovereign?
 Any person or assemblage of persons to whose will a whole
political community are (no matter on what account)
supposed to be in a disposition to pay obedience: and that in
preference to the will of any other person
 What counts as a political community?

2
  Where a number of persons (subjects) are supposed to be in
the habit of paying obedience to a person, or assemblage of
persons of a known and certain description (governor) such
persons altogether are said to be a in a state of political
society)
 Split Sovereignty?
 One person/institution or can it be divided?
 Relevant Bentham VS Austin
 For Bentham, sovereignty can be divided and limited
 The Coercive Nature of Law
o Every law, when complete, is either of a coercive or an uncoercive nature. A
coercive law is a command. An unceorcive, or rather a discoercive, law is the
revocation, in whole or in part, of a coercive law
o A non-coercive law is not a law ‘properly so-called’
 Legal Obligation
o Obligation generally: If I don’t follow command X, it is likely that I will be
punished
o Legal obligation: If I don’t follow the command of the sovereign, I am likely to
be punished
 Mixed Theory of Legal Obligation
o Predictive Aspect: The likelihood of punishment
o Imperative Aspect: Sanction provided for by the law

Summary
 The jurisprudence theorist should be clear on the role of the censor and the role of
expositor
 How do we define what the law is?
o An assemblage of signs (communication)
o Imperative: it expresses the will of the sovereign
o Sovereign=the person that a political community obeys
o Coercive: all laws rely on coercive sanctions
 How do we define legal obligation?
o Obligation generally: a fictitious entity
o Use paraphrasis
o Legal obligation: I am likely to be punished if I don’t obey the command of
the sovereign

What is not here?

 Any reference religious tradition or to the moral quality of law
 A positivist theory: it describes the nature of the laws that are posited by humans.
Even obligation is described in predictive terms.