Benthem Theory

Benthem’s Theory
• By
• Dr. D Ganesh Kumar

Assistant Professor
Benthem’s Positivism
• Bentham Positivism:- (1749 - 1832)
• Was born in 1749. He graduated from
oxford in 1763 and was called to the bar,
became a bencher in 1817. He had no
success at the bar and early developed a
critical attitude to law. the tools, techniques,
philosophy and methods of analytical
positivism is evident from his treatise(Work)
“The limits of Jurisprudence Defined” written
in 1782 but published only in 1945. His era
was called Benthamite era.
Contd...
• Bentham classified Jurisprudence into
Censorial and Expositional Jurisprudence.
He made a sharp distinction between ‘law
as it is'(Expository Jurisprudence) and
‘law (as it) that ought to be’ (Censorial
Jurisprudence) or Science of Legislation
or law reform.(Critical evaluation of Law or
criticizing the law)
Bentham Utilitarianism Principles
• His concept of jurisprudence, he called it as
mandatory and not imperative.
• Doctrine of Utility:- Bentham’s legal philosophy
is “individualism” (Laissez-faire).
• He drew a catalogue of pleasures and pains on

the basis of his understanding of human
psychology which he described as psychological
hedonism. These various kinds of pleasures and
pains are what he called as Sanctions.
Contd...
• He enumerated four kinds of sanctions.
• 1. Physical
• 2. Political
• 3.Moral
• 4. Religious
• The purpose of Law is to bring Pleasure
and avoid pain. i.e., greatest advantage of
the greatest number. He was against
judicial discretion. A relentless enemy of
judge made law. he believed that the
legislation or law must be complete.
Judicial discretion should be limited.
According to him, judges make law for
individual as man makes laws for dogs.
Contd....
• Benthem’s Utilitarian Principle of Positivism:- deals

with minimum interference of State in individual
economic activities.
• Benthem defined Law as “A law may be defined as an
assemblage of signs declarative of a volition
conceived or adopted by the sovereign in a State,
concerning the conduct to be observed in a certain
case by a certain person or class of persons, who in
the case in question are or are supposed to be subject
to his power; such volition trusting for its
accomplishment to the expectation of certain events
which it is intended. Such declaration should upon
occasion by a means bringing to pass, and the
prospect of which it is intended should act as a motive
upon those whose conduct is in question”.
Contd...
• His concept of law is imperative one which
means that ‘law is an assemblage of signs,
declaration of volition conceived or adopted by
sovereign in a State.
• In his Theory of Legislation, Benthem defines

the main functions of Law as being to provide
subsistence, abundance, equality and security.
Of these security being the most important, as
it emphasizes on the protective function of law.
8 Aspects
• Every law, according to him, may be

considered in the light of 8 different aspects:-
• Sources- Law as the will of the Sovereign/
State. Sovereign power is indefinite unless it
is expressly limited by conventions, religion or
political motivations.
• Subjects- may be persons or things.
• Objects- are the acts, situations or
forbearances.
• Extent- Law covers a portion of Land on
which acts have been done.
Contd..
• Aspect- It may be directive (Incitative) or Sanctional (it
is obligative). Command or prohibition to do or not to
do a certain act or forbearance.
• Force- dependent on motivations for obedience
supported by sanctions.
• Remedial State Appendages- Sanctions are provided
by Subsidiary laws which require further set of
Subsidiary laws. Remedial appendages are addressed
to judges for curing the evils/ stopping evils and
preventing further evils.
• Expression – It should be complete, the matter to be
regulated coincides with one law. In all cases a judge
should adopt a literal interpretation, where expression
is incomplete he may adopt a liberal interpretation.
Contd..
• According to Benthem, Judiciary cannot
make any law of its own.
• According to the jurist of this School Law
is treated as a command or imperative
emanating from the State and hence this
school is also called/ known as imperative
school.
Important contributions
• The important contributions made by this School are :-
• All Positive law is deduced from a determinate law

giver – i.e., a Sovereign.
• This school has kept Positive law and Ideal law strictly
distinct. It has analyzed the concept of civil law and
established its relationship with other forms of law.
• It has laid down the essential elements that make the
whole fabric of law like State, Sovereignty and
administration of Justice.
• The Legal sources from which law proceeds viz.,
Legislation, Judicial Precedent, Customary Common
law.
Contd....
• It has analyzed the Concept of Legal Rights, their
division into various classes, their extinction, and
creation transfer etc, together with the investigation
into the theory of legal liability both civil and criminal.
• Inquiring into the Scientific divisions of the whole
fabric of law and the allied problems which directly
or indirectly affect the fabric of law such as
Contracts, Possession, Property, Obligationa etc.
• It favours Codification of law and was a champion of
Codified law, and regards law as a command with
legal sanctions behind it.
• Thank you

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Benthem’s Theory

• Dr. D Ganesh Kumar

• He drew a catalogue of pleasures and pains on

• Benthem’s Utilitarian Principle of Positivism:- deals

• In his Theory of Legislation, Benthem deﬁnes

• Every law, according to him, may be

• All Positive law is deduced from a determinate law

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