LAW 302 Jurisprudence: Course Instructor: Dr. Nabaat Tasnima Mahbub

LAW 302
Jurisprudence
Course Instructor: Dr. Nabaat Tasnima Mahbub
Schools of Jurisprudence
Analytical/Positivist School
•Jeremy Bentham & John Austin – Two
main proponents of the Analytical School.
•The proponents of this school consider
that the most important aspect of law is
its relation to the State. They consider
‘Law’ as a command emanating from the
sovereign i.e. the State.
Bentham and Analytical School of Jurisprudence
• Bentham argues that the true goal of society ought to be the
achievement of ‘the greatest happiness of the greatest
number’—a concept derived from his interpretation of the
‘principle of utility’.
• ‘Utility’ is the character of an object to produce benefit, good
or happiness, or to prevent mischief, pain or evil.
• Bentham’s utilitarianism says that the proper end of every
law is the promotion of the greatest happiness of greatest
number.
• According to Bentham’s legal philosophy, the function of law
is to make human being free from restraint upon his
freedom.
• ‘Law’ was defined by Bentham 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.”
• ‘Law’, therefore, is viewed as the command of a
Sovereign.
• ‘Sovereign’ is defined further as:

“any person or assemblage of persons to whose
will a whole political community are supposed to
be in a disposition to pay obedience: and that in
preference to the will of any other person.”
• This is a statement of the ‘command theory’ of law.
• This theory views law as the command of a
Sovereign (a person or body), or supreme governor.
His authority is not infinite, but it must be accepted
as indefinite.
• The task of the legislator is to study the law so
as to recognise and realise ‘the good’.
• Legislation should have the following goals:
• To provide subsistence.
• To provide security.
• To diminish inequalities.
• Bentham suggests that his definition of ‘law’ allows
consideration of -
• its source (the person or persons of whose will it is
the expression);
• its subjects (persons to whom it is to apply);
• its objects (the circumstances to which it may apply);
• its extent; its aspects; its force;
• its expression (the nature of the signs by which it
becomes known).
• Bentham rejected natural law as ‘nothing but a
phrase’. Its claims to authority based on its
supreme/divine nature were meaningless.
• Bentham devoted much of his time to an application of
utilitarian principles to the criminal law, the punishment of
offenders and the reform of conditions in which prisoners
were held.
• The following general principles emerge from his
consideration of the criminal law:
• The mischief of an act (i.e., the pain or evil produced by the act)
must be taken into account. The law must discourage those acts
which tend to produce evil.
• An act cannot be wrong in itself; and the quality of its
‘wrongness’ emerges only from its consequences. Where there
is a high probability of an act producing harm, it ought to be
prohibited by legislation; where it is unlikely to produce harm,
there can be no justification in its prohibition.
• To punish is to inflict suffering on an offender.
• The overall object of the criminal law ought to be an
increase in the community’s total happiness.
• Therefore, if punishment is to be administered, it must
be demonstrated that the resulting pain will help to
prevent greater general pain. Hence, punishment is
‘valuable’ or ‘useful’ only if its eventual outcome results
in greater happiness for the community as a whole.
• There is no gain in the infliction of punishment where an
offender can be ordered to give compensation.
• The quantum of punishment should not exceed what is
required to make it effective.
• Punishment in a given case ought to be severe enough to
outweigh any profit likely to be gained by the offender. In
general, the greater the offence, the greater the punishment
it ought to attract.
• Punishment ought to act as a general deterrent, ought to be
reformatory and ought to have popular support.
Bentham’s Analytical School of Jurisprudence - Some
Objections
• The main objections to Bentham’s utilitarianism include the
following points:
• It is impossible to make a ‘quantitative evaluation’ of pain or
happiness.
• Men are not always motivated solely by pleasure or pain.
Motivation is a much more complex phenomenon than
Bentham seems to suggest.
• Underestimates individual discretion in the application of law
and overestimates the power of legislator.
• Bentham’s theory suggests that interests of the individual is
conducive to the interest of the community. However, the
relationship between individual and communal happiness is not
as direct as Bentham imagined it to be.
Bentham’s Analytical School of Jurisprudence -
Contributions
• Bentham’s theory marked a new era in the
history of legislation making legislation the
most popular method of law-making.
• Bentham’s definition and analysis of law and
legal terms inspired jurists to improve or lay
foundations for other schools. John Austin
developed his theory of analytical positivism
borrowing from Bentham.

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• ‘Sovereign’ is defined further as:

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