Positivism and Legal Science

Thomas Hobbes and Jeremy Bentham

Hobbes provided the first clear expression of the law as a unitary body of knowledge pertaining to the most general constraints binding on all members of society, typically in spite of their inertial tendencies, often characterized as animal passions. This became the dominant conception of the law in the modern era, even among theorists such as Jürgen Habermas who otherwise share few of Hobbes's substantive assumptions about the nature of society.

Hobbes provided only one (albeit crucial) condition for legal science. He modeled the domain of positive law on the universality of physical law. It remained to be established just how this domain was to be understood and studied, especially the extent to which the methods of science might offer appropriate access.

In this context, the utilitarian philosopher and legal reformer Jeremy Bentham (1748–1832) often appears as a pioneer. However, Bentham's actual contributions to a scientific approach to the law were mostly negative. Rather, in the spirit of the critical-historical approach that was also prominent in early nineteenth-century theology, Bentham succeeded mainly in demystifying the law's metaphysical commitments, or juristic fictions. These included the will of the sovereign and, notoriously, human rights, which Bentham interpreted as symptomatic of undeserved sectarian religious privilege in British politics.

In addition, Bentham aimed to improve legislative practice by requiring that the legislature formulate laws so that their intended consequences would be evident and testable. Utility, understood as an objective [Page 1155]assessment of each individual's balance of pleasure and pain, set the standard for evaluating legislative effectiveness. For Bentham, frequent elections conducted with secret ballots were the best way to access knowledge of utility. While this aspect of his reforms was never completely enacted, it did become the hypothetical starting point of neoclassical economics.

John Stuart Mill

The political career of utilitarianism in Britain illustrates how scientific approaches to the law specifically and society more generally emerged together. For example, if one were to characterize the research agenda of Bentham's most distinguished follower, John Stuart Mill (1806–1873), it would consist of the following. Privately funded agencies (charities) would collect evidence of some standing social problem that would be put before Parliament, which would then draft legislation designed to solve the problem in terms that could be periodically checked, potentially resulting in a change in policy, if not politicians (pending an election). Thus, progress in what Mill called the moral sciences would coincide with progress in morals itself.

...