Bentham Positivism

Bentham Positivism:- (1749 – 1832)
he Was born in 1749. He graduated from Oxford in 1763 and was called to the bar, became a bencher in 1817. He had no success at the bar and early developed a critical attitude to the law. the tools, techniques, philosophy, and methods of analytical positivism is evident from his treatise(Work) “The limits of Jurisprudence Defined” written in 1782 but published only in 1945. His era was called the Benthamite era.

Bentham classified Jurisprudence into Censorial and Expositional Jurisprudence. He made a sharp distinction between ‘law as it is'(Expository Jurisprudence) and ‘law (as it) that ought to be’ (Censorial Jurisprudence) or Science of Legislation or law reform.(Critical evaluation of Law or criticizing the law)

Bentham Utilitarianism Principles

His concept of jurisprudence, he called it mandatory and not imperative. The doctrine of Utility:- Bentham’s legal philosophy is “individualism” (Laissez-faire). He drew a catalog of pleasures and pains on the basis of his understanding of human psychology which he described as psychological hedonism. These various kinds of pleasures and pains are what he called Sanctions.

He enumerated four kinds of sanctions.
1. Physical
2. Political
4. Religious

The purpose of Law is to bring Pleasure and avoid pain. i.e., the greatest advantage of the greatest number. He was against judicial discretion. A relentless enemy of judge-made law. he believed that the legislation or law must be complete. Judicial discretion should be limited. According to him, judges make laws for individuals as man makes laws for dogs.

Benthem’s Utilitarian Principle of Positivism:- deals with minimum interference of State in individual economic activities.
Benthem defined Law as “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 to be subject to his power; such volition trusting for its accomplishment to the expectation of certain events which it is intended. Such declaration should upon occasion by a means bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question”.

His concept of law is imperative one which means that ‘law is an assemblage of signs, declaration of volition conceived or adopted by the sovereign in a State. In his Theory of Legislation, Benthem defines the main functions of Law as being to provide subsistence, abundance, equality, and security. Of these security being the most important, as it emphasizes on the protective function of law.

8 Aspects

Every law, according to him, maybe considered in the light of 8 different aspects:-
Sources- Law as the will of the Sovereign/
State. Sovereign power is indefinite unless it is expressly limited by conventions, religion or political motivations.
Subjects- may be persons or things.
Objects- are acts, situations or forbearances.
Extent- Law covers a portion of Land on which acts have been done.

Aspect- It may be directive (Incitative) or Sanction (it is obligative). Command or prohibition to do or not to do a certain act or forbearance.
Force- dependent on motivations for obedience supported by sanctions.
Remedial State Appendages- Sanctions are provided by Subsidiary laws that require a further set of Subsidiary laws. Remedial appendages are addressed to judges for curing the evils/ stopping evils and preventing further evils.
Expression – It should be complete, the matter to be regulated coincides with one law. In all cases, a judge should adopt a literal interpretation, where expression is incomplete he may adopt a liberal interpretation.

According to Benthem, Judiciary cannot make any law of its own. According to the jurist of this School, Law is treated as a command or imperative emanating from the State and hence this school is also called/ known as imperative school.

The important contributions made by this School are:-
All Positive law is deduced from a determinate law giver – i.e., a Sovereign. This school has kept Positive law and Ideal law strictly distinct. It has analyzed the concept of civil law and established its relationship with other forms of law. It has laid down the essential elements that make the whole fabric of law like State, Sovereignty, and administration of Justice. The Legal sources from which law proceeds viz., Legislation, Judicial Precedent, Customary Common law. It has analyzed the Concept of Legal Rights, their division into various classes, their extinction, and creation transfer etc, together with the investigation into the theory of legal liability both civil and criminal. Inquiring into the Scientific divisions of the whole fabric of law and the allied problems which directly or indirectly affect the fabric of law such as
Contracts, Possession, Property, Obligationa, etc. It favors the Codification of law and was a champion of Codified law, and regards law as a command with legal sanctions behind it.

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