Transcript Utilitarianism emphasized that laws should be directed toward

John Austin, Jeremy Bentham, and Utilitarianism
By: Brittany, Erika, Lauren, Ebony, Mica
Laws
based on
human authority,
such as political
leaders or
lawmakers






Founder of utilitarianism; was an English
gentleman, jurist, philosopher, and legal/social
reformer
Recognized as a child prodigy
Became deeply frustrated with the English legal
code as a lawyer, and he proposed many legal
and social reforms that he believed would
improve the law
Proposed a prison building called the
Panopticon, which would allow an observer to
observe the incarcerated without them realizing
they were being watched
Was in correspondence with many influential
people, such as Adam Smith (father of
capitalism), as well as leaders of the French
Revolution
Associated with the establishment of the
University College London, which was the first
English university to admit all, regardless of
race, creed or political belief; this equality idea
was a Bentham brainchild



The theory that the greatest happiness of the
greatest number should guide the formation
of all laws
a form of consequentialism, meaning that
the moral worth of an action is determined by
its outcome
Utility can be defined as happiness or
pleasure, although it can be defined as the
satisfaction of preferences





It is not always clear what the outcome of an action
will be, or who will be affected by it.
It is very difficult to quantify pleasures for
cost/benefit analysis
The calculation required to determine the right is
both complicated and time-consuming
Since the greatest good for the greatest number is
described in aggregate terms,, that good may be
achieved under conditions that are harmful to some,
so long as that harm is balanced by a greater good
The theory fails to acknowledge any individual rights
that could not be violated for the sake of the greatest
good


Act utilitarianism – each individual action is to
be evaluated directly in terms of the utility
principle
Rule utilitarianism – behaviour is evaluated by
rules that, if universally followed would lead
to the greatest good for the greatest number




The existence of an authoritative body, such
as Parliament or the courts, to which citizens
are in a “habit of obedience”
Legal pronouncements or commands, for
example, statutes and common law; issued
by the authoritative body to political inferiors
The imposition of a duty of obedience
Enforcement through the threat of penalties
or legal sanctions




Born into a middle-class
family
Developed a somewhat
lacking reputation as a lawyer
when called to the bar
Was appointed as the first
professor of jurisprudence at
the University of London by
Jeremy Bentham
Published extensively
concerning the philosophy of
law and jurisprudence, after
his departure from academic
life
The main ideas of modern legal positivism
include:
a) There is no inherent or necessary connection
between the validity conditions of law and
ethics or morality
b) Laws are rules made, whether deliberately or
unintentionally, by human beings




The law is command issued by the
uncommanded commander – the sovereign
Such commands are backed by sanctions
A sovereign is one who is obeyed by the
majority




His most notable contribution to British law was his book The Province
of Jurisprudence Determined
The book attempted to clarify the difference between proper law (the law
that has its basis in the desire of the governmental authority) and moral
law
According to Austin, laws can best be interpreted as a type of command:
an expressed desire that another party perform or refrain from
performing a specific action. This expression is accompanied by the
threat of a clearly defined consequence or punishment if not obeyed
To qualify as laws rather than other forms of commands, laws must
outline a prescribed course of conduct rather than a specific act and
must be set by a “supreme ruler” body:
a) a supreme ruler or governing body is one to which an independent
society habitually looks for leadership
b) sanctions can be positive or negative, and can include reward or
punishment by state agencies; natural consequence or the dictate of
one’s conscience are not, in this case, legitimate sanctions
What can utility be defined as?
a) usefulness
b) happiness/pleasure
c) unhappiness
d) selfish need

What are the two types of utilitarianism, and what is the difference between them?
a) useful/act
b) law/act
c) act/rule
d) law/rule

According to Austin, what must law have in order to function?
a) inherence
b) utility
c) morals
d) supreme body/rewards/punishments


•
1. a) Why did Austin advocate that positive law
serves as an objective standard for human
conduct?
He advocated that subjective measures such as
morality and a divine standard give individuals
too much freedom to follow certain laws and
ignore others. Positive law, on the other hand, is
a legal norm that applies equally and impartially
to all individuals. The function of the law is
considered more important than its quality. The
purpose of law is not to seek justice, but to
maintain social order and promote the social
good.



2. Explain the theory of utilitarianism and its relationship to positive law. How does it
apply to each of the following positive laws?
Utilitarianism emphasized that laws should be directed toward producing “the greatest
happiness of the greatest number”, and in order to achieve this, citizens must obey the
laws made by governments and courts. Positive law emphasizes that the context of the
law should be judged according to its social utility. The purpose of the law is not to seek
justice, but to maintain social order and promote the social good.
a) the prohibition against owning a switchblade
Unnecessary injury prevention
b) the right to vote at age 18
To make sure that informed decisions are made
c) the right to drive an automobile at age 16
Keep inexperienced drivers off the road, preventing motor vehicle accidents
d) the freedom of expression
Allow everyone’s voice to be heard, and provide everyone with equal opportunities.
e) the opportunity of an inmate to be released on parole after serving one-third of a
sentence
If the inmate has exhibited good behaviour, they should be rewarded for it.
f) the forbidding of nudity in a public place
To prevent more conservative cultures, as well as the general population, from being
offended.


4. Explain Austin’s conceptions of justice and morality.
How do his conceptions differ from those of natural law
theorists? Use examples to illustrate the differences.
Austin stated that justice and morality are measured by
obedience to the law. He recognized that law may also be
judged against the rules of morality or a divine standard,
but he considered these to be subjective measures. These
gave individuals too much freedom to follow the laws
suited to their own purpose. Natural law theorists believed
that the law should abide by moral values that were
common to all humans. Plato suggested that the ultimate
purpose of the law was a moral one, to act as a guide for
society. Aristotle believed that humans could conduct
themselves rationally according the fundamental rules of
nature.