Introduction
This essay examines whether Jeremy Bentham’s theory of utilitarianism can be considered an example of legal positivism, a central debate within legal philosophy. Bentham, an influential 18th- and 19th-century thinker, is often credited as a foundational figure in both utilitarian ethics and legal positivism. His utilitarian principle of achieving the greatest happiness for the greatest number seemingly intertwines with his views on law as a product of sovereign command, a hallmark of legal positivism. However, while there are overlaps, these theories are conceptually distinct in their aims and implications. This essay will first outline Bentham’s utilitarianism and legal positivism as separate frameworks. It will then analyse the extent to which utilitarianism underpins or aligns with legal positivism in Bentham’s thought, before considering critical perspectives on their relationship. Ultimately, it will argue that while Bentham’s utilitarianism informs his legal philosophy, it is not synonymous with legal positivism, as the latter focuses on the nature and sources of law rather than its moral content.
Bentham’s Utilitarianism: The Foundation of Moral and Legal Thought
Jeremy Bentham’s utilitarianism, articulated in works such as *An Introduction to the Principles of Morals and Legislation* (1789), centres on the idea that actions are right or wrong based on their tendency to promote happiness or prevent pain. Bentham proposed that the ultimate goal of human action, including legislation, should be to maximise pleasure and minimise suffering for the greatest number of people (Bentham, 1789). This principle is often summed up as “the greatest happiness of the greatest number,” a measure he believed could be calculated through a felicific calculus, assessing factors such as intensity, duration, and extent of pleasure or pain.
In the context of law, Bentham’s utilitarianism suggests that laws should be evaluated and designed based on their utility—that is, their capacity to enhance societal well-being. For instance, he argued that punitive laws should deter harmful behaviour while still ensuring that the punishment itself does not create unnecessary suffering. This pragmatic approach to law reflects Bentham’s broader ethical framework, where moral value is tethered to tangible outcomes rather than abstract principles. However, while utilitarianism provides a normative basis for evaluating law, it does not inherently address the question of what constitutes valid law—a central concern of legal positivism.
Legal Positivism: Law as Sovereign Command
Legal positivism, as developed by Bentham and later refined by thinkers like John Austin, posits that law is a set of rules or commands issued by a sovereign authority, irrespective of their moral content. In Bentham’s view, law derives its validity from the will of the legislator or sovereign, not from any inherent moral truth or divine origin (Bentham, 1782). This perspective explicitly separates law from morality, focusing on law as it is (positive law) rather than as it ought to be. Bentham famously critiqued natural law theories, which tie legal validity to moral principles, as “nonsense upon stilts,” arguing that such views conflate descriptive and prescriptive accounts of law (Bentham, 1843).
Bentham’s positivist stance is evident in his emphasis on codification and clarity in law. He believed that laws should be systematically written and accessible, free from the ambiguities of customary or moral interpretations. For Bentham, the role of the jurist was to analyse and improve existing legal systems based on their structure and effectiveness, often invoking utilitarian principles as a guide for reform. This raises the question of whether utilitarianism, as a moral theory, is intrinsic to his positivism or merely a complementary tool for legislative improvement.
The Overlap Between Utilitarianism and Legal Positivism in Bentham’s Thought
There is undeniable overlap between Bentham’s utilitarianism and his legal positivism, particularly in his approach to legal reform. Bentham advocated for laws to be rational and based on utility, suggesting that good laws are those that promote societal happiness. His critique of common law, for example, was rooted in its perceived inefficiency and failure to deliver consistent outcomes for the public good. In this sense, utilitarianism serves as a criterion for evaluating and shaping law within a positivist framework, where laws remain valid as sovereign commands regardless of their moral alignment (Postema, 1986).
Moreover, Bentham’s positivism can be seen as a practical extension of his utilitarian desire for clarity and predictability in human affairs. By stripping law of moral speculation and grounding it in sovereign authority, Bentham sought to create a system where laws could be reliably understood and applied, thus reducing uncertainty and, arguably, suffering. This pragmatic linkage suggests that utilitarianism and positivism are, for Bentham, interrelated rather than entirely distinct. Indeed, his insistence on separating law from morality in a positivist sense does not preclude using utility as a guide for legislators—an important nuance in understanding his work (Hart, 1982).
Critical Distinctions and Limitations
Despite these overlaps, it would be inaccurate to conflate Bentham’s utilitarianism with legal positivism. Legal positivism, at its core, is a descriptive theory about the nature of law, concerned with its source and validity rather than its content. Utilitarianism, by contrast, is a normative ethical theory that prescribes how laws ought to be made or judged. While Bentham uses utilitarian principles to critique and reform laws, his positivist framework does not require laws to align with utility to be considered valid. A law issued by a sovereign is legally valid regardless of whether it promotes happiness or causes harm—a point of divergence between the two theories (Hart, 1961).
Furthermore, critics argue that Bentham’s utilitarianism introduces a moral dimension that is at odds with the strict separation of law and morality advocated by later positivists like Hart. For instance, Bentham’s focus on utility as a legislative guide could be seen as reintroducing a moral criterion into law, undermining the positivist insistence on neutrality. This tension highlights a limitation in viewing utilitarianism as an inherent part of legal positivism, suggesting instead that it operates as a parallel or supplementary framework in Bentham’s thought (Postema, 1986).
Conclusion
In conclusion, while Jeremy Bentham’s theory of utilitarianism shares significant connections with his legal positivism, it cannot be fully considered an example of the latter. Utilitarianism provides a moral and normative basis for evaluating and reforming law, whereas legal positivism describes law as a product of sovereign command, independent of moral content. The overlap lies in Bentham’s application of utility as a guide for legislative improvement within a positivist understanding of law’s validity. However, the conceptual distinction between the descriptive focus of positivism and the prescriptive nature of utilitarianism remains critical. This analysis underscores the complexity of Bentham’s legal philosophy, where ethical and analytical frameworks intersect but do not merge. The implications of this discussion extend to broader debates in jurisprudence, particularly regarding the role of morality in law—a question that continues to shape legal theory and practice today.
References
- Bentham, J. (1782) Of Laws in General. Edited by H.L.A. Hart. Athlone Press.
- Bentham, J. (1789) An Introduction to the Principles of Morals and Legislation. Oxford University Press.
- Bentham, J. (1843) The Works of Jeremy Bentham, Vol. 2. Edited by John Bowring. William Tait.
- Hart, H.L.A. (1961) The Concept of Law. Oxford University Press.
- Hart, H.L.A. (1982) Essays on Bentham: Studies in Jurisprudence and Political Theory. Oxford University Press.
- Postema, G.J. (1986) Bentham and the Common Law Tradition. Oxford University Press.
