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This second edition of a classic in Anglo-American legal philosophy reopens the dialogue between Bentham's work and contemporary legal philosophy. Gerald Postema revisits the themes of the first edition in light of the latest scholarly criticism and provides new insights into the historical-philosophical roots of international law.
List of contents
- Part I: Law, Custom, and Reason
- 1: Elements of Classical Common Law Theory
- 2: Law, Social Union, and Collective Rationality
- 3: Hume's Jurisprudence: Law, Justice, and Human Nature
- 4: Hume's Jurisprudence: Common Law Conventionalism
- Part II Bentham's Critique of Common Law: The Roots of Positivism
- 5: Utilitarian Justice and the Tasks of Law
- 6: Bentham as a Common Law Revisionist
- 7: Custom, Rules, and Sovereignty
- 8: Plucking Off the Mask of Mystery
- 9: Utilitarian Positivism
- Part III: Law, Utility, and Adjudication
- 10: The Judge as Paterfamilias
- 11: Judicial Virtues and the Sanctions of Public Opinion
- 12: Utilitarian Adjudication within the Shadow of the Code
- 13: The Coherence of Bentham's Theory of Law
About the author
Gerald J. Postema is Professor Emeritus of Philosophy at the University of North Carolina at Chapel Hill. He is a Fellow of Corpus Christi College, Cambridge; a Guggenheim Fellow (2005-6); a Rockefeller Fellow, Bellagio (2001); and a Fellow of the Netherland Institute for Advanced Studies (1996-7). He has held visiting posts at the University of Cambridge, the European University Institute (Florence), the University of Athens, Yale University, and the University of California, Berkeley.
Summary
This work explores the relationship between Bentham's utilitarian practical philosophy and his positivist jurisprudence. These theories appear to be in tension because his utilitarian commitment to the sovereignty of utility as a practical decision principle seems inconsistent with his positivist insistence on the sovereignty of the will of the lawmaker.
Two themes emerge from the attempt in this work to reconcile these two core elements of Bentham's practical thought. First, Bentham's conception of law does not fit the conventional model of legal positivism. Bentham was not just a utilitarian and a positivist; he was a positivist by virtue of his commitment to a utilitarian understanding of the fundamental task of law. Moreover, his emphasis on the necessary publicity and the systemic character of law, led him to insist on an essential role for utilitarian reasons in the regular public functioning of law. Second, Bentham's radical critique of common law theory and practice convinced him of the necessity to reconcile the need for certainty of law with an equally great need for its flexibility. He eventually developed a constitutional framework for adjudication in the shadow of codified law that accorded to judges discretion to decide particular cases according to their best judgment of the balance of utilities, guaranteeing the accountability and appropriate motivation of judicial decision-making through institutional incentives.
The original text of this work, first published in 1986, remains largely unchanged, but an afterword reconsiders and revises some themes in response to criticism.
Additional text
Scholars have much to thank Professor Postema for, in mapping out so clearly the relationship between Bentham's thoughts on substantive law and procedure, and for placing it so firmly in the context of eighteenth century common law thought. It is rare to find a book which changes the way one thinks about great jurists: this is one such book.
