Jeremy Bentham: the expositor and the censor

Jeremy Bentham is known as the father of jurisprudence. John Austin took his work further, and the shape of English analytical jurisprudence is the shape Bentham gave it — with one half of his programme left behind, which is the point of this study.

Bentham was the first to ask, as a separate question, what law is — and he saw that the question splits in two. One may describe the law that exists, or one may judge it against a standard. Confusing the two is how a bad law comes to be defended as though its existence proved its merit.

Bentham divided the study of law into two parts:

| Part | Name | What it asks | |---|---|---| | 1 | The expositorial approach | The examination of law as it is — that is, the command of the sovereign. | | 2 | The censorial approach | The examination of law as it ought to be — that is, the morality of law. |

The expositor describes; the censor judges. Both are necessary, and the separation between them is what allows a jurist to say at once that a rule is law and that it is a bad law.

What happened to the two halves. Austin held to the idea that law is the command of the sovereign. The structure of the English legal system remained with the formal analysis of law — the expositorial half — and never became what it ought to be, the censorial half. The censorial question was not abolished; it was simply not taken up by the tradition that Austin founded. This is why the natural law school, the sociological school and the feminist writers all return to ground Bentham had already marked out.

Bentham against judge-made law. His objection to precedent is the sharpest sentence in the whole subject on the retrospective character of judicial law-making: the judge makes law for men as a man makes law for his dog — waiting until the dog does the thing, and then beating him. The point behind the image is that legislation is prospective, so that once enacted the public can shape its conduct by it, whereas the legality of an act can be pronounced by a court only after the act has taken place.

Bentham and property. The utilitarian argument for private property belongs to this tradition. It runs that the greatest happiness of the greatest number, or the maximisation of satisfied preferences, will be achieved by organising society so that individuals have rights to private allocations of property. Notice carefully what the argument does not say: it asserts no moral right to property in general or to any particular item of property. It says only that society will go better if the institution is maintained. A psychological premise supports it — that people work harder and more productively if they have a private stake in the outcome.

Bentham and Pound. Bentham is one of the two names invoked in defence of Pound's classification of interests: such classifications greatly help to make the legislature, the teacher and the practitioner of law conscious of the principles and values involved in a particular issue, and are an important aid in linking principle to practice.

• Bentham's own writings, and the writings of scholars generally, are not a source of law: they have no legal backing or authority. The exclusion is Salmond's, and it applies to the greatest jurist as much as to the least.
• The censorial approach, being a standard of what ought to be, gives no test that a court can apply. That is precisely why the expositorial half was the half the English system took up.

• The one-mark fact — Bentham is the father of jurisprudence, Austin took the work further.
• The four-mark answer — expositorial and censorial, defined and distinguished, with the observation that English jurisprudence took only the first.
• The essay use. Bentham's division is the cleanest opening for any question that asks about the relation of law to morals, because it lets you state the positivist position without yet endorsing it: the positivist does not deny that law can be judged, only that its existence depends on the judgment.