9 - Jeremy Bentham and the Origins of Legal Positivism

Summary

Schofield explains that Bentham made a fundamental distinction between expository jurisprudence, which concerns the law as it is, and censorial jurisprudence, which concerns the law as it ought to be, and between local and universal expository jurisprudence, and that he took the subject matter of universal expository jurisprudence to be terms (or concepts) such as ‘obligation’, ‘right’ and ‘validity’ that are common to all legal systems. He points out that Bentham introduced a method for analysing or clarifying such terms, namely, the method of paraphrasis, and argues, contrary to Hart, that Bentham was neither a substantive nor a methodological legal positivist. Bentham’s utilitarianism, characterised by its naturalistic basis and its claim to govern every aspect of human action, led him to conceive of value judgements as a form of empirical statement; hence the idea of a conceptual separation of fact and value, as required by substantive legal positivism, would have made no sense to him. Moreover, Bentham would not have accepted the methodological view that expository jurisprudence is a value-neutral enterprise, since it was undertaken just for its utility-promoting value.