On Bentham's Legal Thought Of Analytical Positivism

Jeremy Bentham(1748-1832)was not only a famous philosopher,economist,but also a great jurist,the founder of the analysis of positivist jurisprudence,and a pioneer and leader of the law-reform movement in the UK.Bentham,famous for his theory of utilitarianism,he not only used this utilitarianism as a criterion to judge individual and government behavior,but also took it as a starting point to think about many legal issues.Firstly,Bentham criticized the theory of natural law and the common law tradition of Britain with the weapon of utilitarianism,pointed out the way for legal reform of Britain,tried to make the law scientific at the same time.Secondly,Bentham also creatively used the method of logical analysis and language analysis to analyze some ambiguous legal concepts which appeared in the legal practice,and pioneered the tradition of analytical jurisprudence.This paper interprets Bentham's analytical positivist legal thought,based on Bentham's representative works in different periods,supplemented the study of Bentham's legal thought by domestic and foreign scholars,and then explored the position and role of Bentham in the history of the legal positivism,even in the history of western law.This paper is composed of six chapters.Chapter one: Introduction.This section mainly introduces the origin of this study and the main text of this paper,then discusses the development of Bentham's legal thought,and tries to staging Bentham's legal thought.Chapter two: Utilitarianism as the starting point of Bentham's legal thought.Firstly,it briefly introduces the origin,the process of putting forward,and the main content of Bentham's utilitarianism theory.Secondly,it discusses Bentham?s criticism which based on utilitarianism of the natural law theory and the English common law tradition.Thirdly,it analyses the intention of Bentham's utilitarianism theory,which was to reform the British law from two aspects of form and substance under the criterion of utilitarianism principle.To sum up,Bentham tried to reconstruct the British law on the basis of his utilitarianism theory,to maximize the welfare of the whole society.This chapter also reveals the internal relationship between Bentham's utilitarian theory and his legal thought.Chapter three: The main content of Bentham?s legal thought of analytical positivism.First of all,it systematically analyzes Bentham's analytical positivist legal thought.Secondly,it focuses on the three important aspects of Bentham's legal thought of analytical positivism:(1)"separation proposition",which means the separation between the law of reality and the law as it ought to be;(2)"the theory of sovereignty",as the precondition of Bentham?s "legal command";(3)Bentham?s "legal command".Thirdly,it explores Bentham's concept analysis method,to reveal that Bentham's effort to achieve the scientific law through his conceptual analysis.Chapter four: The influence of Bentham's legal thought on Austin and Hart.Firstly,it focuses on Austin's comprehensive inheritance and absorption from Bentham about the legal thought,and explores the similarities and differences between them above their legal thought.Secondly,it explores Hart's criticism,inheritance and transformation above Bentham's legal thought.The meaning of this chapter is to lay a foundation for the accurate evaluation of Bentham's position in the legal positivism school and the western jurisprudence history,through the analysis of Bentham's influence to the following legal positivism.Chapter five: Utilitarianism and conceptual analysis: an untimely research method? This chapter firstly lists out some scholars' criticisms of Bentham's two core tools——utilitarianism and conceptual analysis,then criticizes the criticism from these scholars,to a certain extent,it's the maintenance of Bentham's legal positivism.Chapter six: The conclusion.It summarizes Bentham's contribution to analytical jurisprudence,and discusses Bentham's status in the analytical school and the western jurisprudence history.