Bentham (The Critiquing Reformist)

Question 1

What is Bentham’s Command Theory of Law?

Answer 1

Law is:

1) A set of commands;
2) Issued by a political superior; and
3) Obeyed by majority of the population

Question 2

Why is Bentham a normative Legal Positivist?

Answer 2

He thinks of how law ought to be:
‘Good law’ should function adhere to utilitarianism, but law itself need not be

EXTRA:
Bowring: “once a stable framework of social relations is established and expectations fixed upon it… it is possible to alter, reform, and revise it better to meet the demands of maximum general welfare”

Question 3

What are the key principles behind Bentham’s theory of law?

Answer 3

1. RATIONALITY/SECURITY: Security is the “distinctive mark of civilisation” that law maintains; law is sensible to self-preservation
2. ACCESSIBILITY: “Judge and Co” make law inaccessible by using legal jargon and rules only know to them; common law should be codified and simpler language used
3. UTILITARIANISM: Law should promote the greater good

Question 4

According to Bentham, why should people obey the law?

Answer 4

It is RATIONAL to do so: “Citizens are loyal because of the ability of the [law] to co-ordinate […] interaction, not because of their intrinsic appeal”

Question 5

According to Bentham, what is the relationship between morality and law?

Answer 5

1. No necessary connection. Utilitarianism is just an additional step to consider.
2. Natural law and common law (“dog law”) should be rejected because they are simply reflections of outdated power relations between the classes (“shackled, rather than liberated, human reason”)

Question 6

According to Bentham, what should judges do when faced with unjust law?

Answer 6

3 steps (attempt at balancing compliance with the law and achieving max utility):
1. Judge to mediate dispute

2. If mediation unfruitful or too costly (less utility than imposed settlement), judges may decide based on legislative code (assume that the code maximises utility of community)
3. Legislation is general: Judges may deviate is more utility will be granted

Question 7

According to Bentham, what are the 4 ways in which the sovereign’s will is manifested?

Answer 7

(Hart’s examples)
1. Command: ‘Shut the door!’
• Imperative •

2. Non-command: ‘You may refrain from shutting the door!’
   • Permissive •
3. Prohibition: ‘Do not shut the door!’
   • Imperative •
4. Non-prohibition: ‘You may shut the door!’
   • Permissive •

Question 8

What did Bentham seek to do in his work?

Answer 8

Create a single, complete system of laws; penal and civil law to be formulated separately

Question 9

How did Bentham see the law?

Answer 9

1. All ‘complete’ laws are imperative in form (laws which impose no obligations/sanctions (‘civil laws’) are not ‘complete laws’)
2. Law has two parts: Directive (what to do) and Incitative ( predicts sanction)
3. Sanction may be coercive or a reward

Question 10

What did Bentham define as sovereign?

Answer 10

“The logical correlate of an assumed factual obedience”: An abstract source of political authority and legitimacy

“any person or assemblage of persons”: One or more sources