Jeremy Bentham and John Austin

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The analytical jurisprudence and legal theories of Jeremy Bentham and John Austin were in their time revolutionary and influential. However it is in the steadfast rejection of the non rational and the metaphysical in law, that Bentham and Austin’s true legacy as founding fathers of positivism rests. Critically evaluate this assertion. I agree with this assertion, through their rejection of the non rational and the metaphysical in law, Bentham and Austin’s true legacies rest as founding fathers of positivism. Positivism rejects the ideas of Natural law where laws come from a higher being and there is no external truth. To positivists, there is no metaphysical deity. The positivists therefore have an implicit faith that they can capture what the essence of law is; the plain fact theory of law. Bentham wrote in 1791 an impassioned attack upon the notion of natural rights, evidently by way of reply to Tom Paine’s Rights of Man, in which the Anglo-American revolutionary had listed the “natural and imprescriptible rights of man” as “liberty, property, security and resistance of oppression”: such talk, said Bentham, was nonsense: “Natural rights is simple nonsense; natural and imprescriptible rights, rhetorical nonsense-nonsense upon stilts”. Bentham’s objection to natural rights theory was partly rational; he thought it made no sense to speak about a “right” which could not be presented in terms of a duty (to respect such a “right”) imposed by the command of law upon others; and that in any case to speak about, say a “right of property” was contradictory, since any such “right” of mine implies a corresponding ouster of the right of all others in the same object. Betham’s only concern was whether the law was effective or not. Jeremy Bentham was a genuine “child of the Enlightment” described so by H.L.A. Hart. His starting point, though, was very different from that of
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