Bentham and Austin Criticism on Natural Law PDF

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1. Explain how identification and separation theses in legal positivism developed from Bentham and Austin’s criticisms of natural law. ( words)Firstly, the basis of legal positivism deals with the question of ‘what is law’. It concerns with ascertaining the definition of law as it is in a given time...

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1. Explain how identification and separation theses in legal positivism developed from Bentham and Austin’s criticisms of natural law. (1002 words) Firstly, the basis of legal positivism deals with the question of ‘what is law’. It concerns with ascertaining the definition of law as it is in a given time and place, by reference to formal rather than to evaluate the law based on moral or ethical standards like natural law. Hence, it is known as analytical jurisprudence. One of the important aspects behind the notion of legal positivism is rooted from criticisms on natural law by Bentham and Austin which propounded the separation and identification theses. Bentham begun his criticism on natural law by introducing scientific jurisprudence where he differentiated between the descriptive and the normative. He laid down that the questions as to ‘what is law’ and ‘what law ought to be’ must be separated. The former question is considered under expositorial jurisprudence in which law is analysed in terms of what it meant. Thus, it can be said that expositorial jurisprudence has an analytical and descriptive approach. It disregards whether a law is moral or immoral, concentrating on whether a law fits the identification of law described. Hence, it can be said that expositorial jurisprudence is the main objective for legal positivism. On the other hand, the latter question falls under censorial jurisprudence where it evaluates whether a law is consistent with external standards such as natural law. This type of jurisprudence opens the discourse of reasons on what the law ought to be. It needs the observation of existing law, as without it, it is difficult to assert what law ought to be without having the knowledge of what it is. This brought to another vital, and famous point made by Bentham where he described that the notion of natural rights or natural law as ‘nonsense on stilts’. According to Bentham, there is a fallacy in Blackstone’s theory on natural rights. He further elaborated that the theory behind natural rights as propounded by natural law jurists is not useful, due to the fact that it will not exist until and unless it becomes law. In other words, the idea of natural law needs to be manifested as law or it will remain as just an idea. At the same time, Austin opines that jurisprudence should focus on describing what law is, not evaluating it. Moreover, he argued that the questions as to ‘what law is’ and ‘whether it conforms to certain higher standards’ should be separated, particularly into two different enquiries. Austin rejected the notion of natural law where a valid law is dependent upon its morality, stating that the validity of law is valid as long as it fits the description of law ascertained or to put it simply, the answer to ‘what is law’. This is in contrast to natural law in which echoes the legal maxim, ‘ lex injusta non est lex’, where a law is deemed as invalid if it is unjust. Under natural law, it is necessary for a law to be consistent with the standard of natural law to be valid and legitimate. Meanwhile, legal positivism affirms the morality of a law does not affect its validity. With that said, Austin further introduced the notion that law is command of a sovereign backed by a sanction. This is known as the command theory of law. At this juncture, he further explained that there is sovereignty when a given political society are in the habit of obedience to a determinate common superior. This determinate common superior must not be subordinate to any higher political authority and not subject to legal limitation. Austin narrows further that sanction derives from an implicit threat of coercion,

which is integral to ensure command from the subject to the sovereign. Ergo, the existence of sanction led to conclude that the person to whom the command addressed is obliged to it. Bentham, on the other hand, has a broader approach at this point. He defined law as assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, regarding the conduct to be observed by the subjects to the sovereign. Similarly, the sovereign rule is obeyed and his order is backed by the sanction. To ensure that the command of sovereign is forceful, there must be threat of sanction. This gives binding force to a rule or a law. Bentham then divided sanctions into four, namely: physical, political, moral, and religious. Particularly, political sanction enforces the law. He is also of the view that the efficient cause of behaviour is the threat of pain. Hence, this is reflected in the notion that pain and pleasure as the causes of behaviour, whereby: coercive sanction threatens an unpleasant consequent in case of disobedience while compliance promises beneficial consequence. Therefore, it can be said that these theories reflect the existing position of morality and natural law as separate from law. One of the key contributions derives from this is that it supports the notion that law is free from evaluation according to moral or natural law evaluation. However, it does not mean that the positivists totally reject the influence of morality on law, but they are of the view that, to analyse and understand the law, one must suspend moral judgment until it established to explain the law. With all things considered, the development of legal positivism rooted from Bentham and Austin indicates that separation thesis is about the separation of two enquiries, due to the view of the positivists that jurisprudence concerns with the analysis of law, that is to say analytical jurisprudence and not normative jurisprudence. Identification thesis concerns with the concept and definition of the law based on analysis, with the aim to know the law. The analysis to know the answer to what law is, is important to ensure the validity of law. All in all, the separation and identification theses brought by Austin and Bentham relates to the basis of legal positivism as a whole, which is to identify the law as it is, regardless of its morality or consistency to any higher standard....