Bentham and Austin

What did they view law as dependent on?

They viewed law as a social phenomenon, dependent on human actions and thought, something that is “posited” into existence

Why are their theories often labelled “imperative theories”

Their theories are often labelled imperative theories of law because they fundamentally conceive law in terms of commands issued by a political sovereign and backed by sanctions.

Who’s contribution is more widely known and why?

Austin's contribution to the command theory is perhaps the more widely known, especially in common law countries, where his work helped establish the autonomy of jurisprudence on a factual and scientific basis

How does Austin define positive law?

In The Province of Jurisprudence Determined, Austin defines positive law as "law simply and strictly so called: or law set by political superiors to political inferiors". For Austin, all laws are commands from the sovereign

How does Austin define a command?

He defines a command as a signification of desire, distinguished by the fact that the party to whom it is directed is liable to evil (a sanction) if they do not comply.

What is the connection between a command and a duty according to Austin?

Crucially, Austin posits that command and duty are correlative terms: wherever a duty lies, a command has been signified, and whenever a command is signified, a duty is imposed.

Austins defintion of a sanction?

Austin's definition of a sanction is primarily an “evil” that follows from a failure to obey. He views law as inherently coercive, with legal obligations grounded in the fear of punishment or threat of "evil".

What do the authors of Lloyd say about Bentham in comparison to Austin

Bentham's contribution to the command theory, though less known for a time due to delayed publication of Of Laws in General, is considered by some to be deeper, more nuanced, and with far greater subtlety and flexibility than Austin's

How does Bentham define law?

Bentham defines law as an "assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed... by a certain person, or class of persons... subject to his power".

What does Benthams definition of law encompass?

His conception of law is significantly wider than Austin's, including not only laws directly made by the sovereign but also those approved or adopted by them. This encompasses general laws from the legislature, judicial orders, administrative orders, military orders, and even domestic orders, provided they are ultimately referable to the sovereign's will. Bentham employed a “rational reconstruction” approach, wider than Austin’s "model," which is seen as having anticipated modern analytical jurisprudence.

How does Bentham wrestle with laws like contract law, which do not seem like a command?

He used an early "deontic logic" to explain how laws permitting or prohibiting could still be viewed within an imperative framework. He reasoned that seemingly descriptive laws, like those about property, have hidden commands or threats attached underneath. Property rights, for example, are seen as permissions carved out from a broader prohibition, essentially an exception to a general rule. Laws about ownership and contracts, while not containing punishments themselves, are considered by Bentham to be parts of laws that need to be understood together with the rules that enforce them with penalties.

What did Bentham consider the four sources that can motivate obedience?

Physical, political, moral, religious

What did Bentham say about sanctions?

He explicitly stated that motives could be coercive (punishment) or take the form of a reward. Although he found threats (punishment) far more effective in practice, he argued that a law offering only rewards still expresses the legislator's will and serves the same ends,

What is the primary critique of their theory?

. A primary critique, notably by H.L.A. Hart, is that their emphasis on law as coercive commands fails to account for the full range of legal rules found in modern legal systems. Hart argues that laws conferring public and private legal powers (e.g., rules relating to wills, contracts, marriage, jurisdiction of courts, legislative powers) are fundamentally different from criminal prohibitions and cannot be adequately explained by a command model derived from the criminal law pattern. These rules don't impose duties backed by sanctions but rather provide individuals with the means to achieve certain legal outcomes.

what is the critique of Austin’s focus on coercion and fear?

Hart contends that people often obey laws because they see them as legitimate and have internalized their authority, not solely out of fear of punishment. The Milgram experiments are cited as suggesting that obedience can stem from a belief in legitimate authority even without explicit threats. While Lloyd notes that critics of Hart still see a need for sanctions for those who disobey, the idea that fear is the sole or primary motivator is challenged.

What does Hart say about Austin’s attempt to extend his ideas to contract law?

Austin's attempt to extend the notion of a sanction to cover the nullity of a transaction (e.g., an invalid contract) is deemed absurd by Hart. Hart explains that in criminal law, the purpose of a sanction is to discourage conduct, whereas the purpose of legal rules conferring power is to provide for the implementation of certain acts; nullity is a failure to achieve a desired legal outcome, not a penalty designed to deter. Bentham's framework is seen by Lloyd as avoiding issues Austin faced, such as needing to treat "nullity as a sanction" or using the fiction of "tacit command".

Why does Hart critique Bentham in light of modern legal systems?

Hart specifically critiques Bentham's idea that smaller legal powers are just the sovereign "adopting" them, arguing this confuses illegality with invalidity. Hart suggests that in modern systems, legal authority is based on accepted rules and procedures, not just sovereign commands.

What did Bentham and Austin contribute to jurisprudence?

The command theories of Bentham and Austin were instrumental in founding legal positivism in the English-speaking world. They successfully steered the study of law towards a more analytical, factual, and "scientific" basis, moving away from non-positivist notions like natural law and custom. Austin's work, despite its rigidities, was significant for establishing jurisprudence as a distinct field and providing a powerful, albeit criticised, framework for understanding legal rules that heavily influenced subsequent legal thought. Bentham's work, considered the "master", provided a broader conceptual foundation, was more methodologically self-aware, and anticipated later developments in analytical jurisprudence.