Positivism Or Naturalism?

H.L.A Hart defined Bentham's jurisprudence as legal positivism, methodologicallegal positivism as well as substantivel legal positivism, and recoginized him as thegreat originator of legal positivism. The general academia has accepted H.L.A Hart'sthesis , and H.L.A Hart's thesis still possesses the authority even if half a century haspast. However, within the Bentham study circle, H.L.A Hart's thesis has encounteredchallenges. Gerald Postema,seeing the normative foundation of Bentham'sjurisprudence, criticized Hart's position that the reason of legal validity is peremptory,and defined Bentham's jurisprudence as normative positivism. Phillip Schofield caughtBentham's naturalistic ontology , and took it as the basis of Bentham's jurisprudence.He also saw that pain and pleasure are the unique fundamental element , and thatBentham's thought is of dynamic character. All these contribute to a splendid critiqueof H.L.A Hart's definition of legal positivism: Bentham's jurisprudence is neithersubstantive legal positivism, nor methodological legal positivism; instead, it isnaturalism. However, unfortunately, Phillip Schofield's argument is not complete andsufficient, because he did not advance to Bentham's epistemology which is the mostfundamental basis, nor did he explore Bentham's intellectual sources and theintellectual tradition to which he belonged. This dissertation is dedicated to accomplishthe theoretical basis of Bentham's jurisprudence with a complete and sufficientargument by exploring Bentham's ultimate intellectual basis and its sources and thecore claims of positivism and naturalism in light of the intellectual history.The main dissertatin consists of four parts of five chapters, in addition to theintroduction and epilogue.Chapter 1 , the introduction of the whole dissertation, consists of the confirmationof the subject, the history and status of the research, the research principle and methodwhich this dissertation will apply, and the framework of this dissertation. This dissertation points out that an in-depth study of the theoretical basis of Bentham'sjurisprudence will recover the ultimate intellectual basis of the greatest jurist ofEngland, discover its potential contribution to legal theory and philosophy, and pushforward the contemporary legal theory.Chapter 2 provides an analysis of Berkeley's epistemology and legal philosophy,in oder to provide a reference framework for an analysis of Bentham's epistemology,positivism and naturalism. Berkeley is perhaps the philosopher who has been mostseverely misunderstood ever in history. Indeed, Berkeley puts forward this thesis"tobe, is to be perceived", but actually he does not denign the existence of external bodies.What he wanted to emphasize is the fact that subjective perception is primary andexternal bodies are only the inferences from the subjective perceptions. Berkeleyprojected an institution of knowledges of different levels within which metaphysicsand theology are the first philosophy and natural philosophy lies in a lower level, andhigher level knowledge enlightens and governs the lower level knowledge. Cognitionand emotion are from different psychological faculties ,but cognition is subservient toemotion. Therefore Berkeley's epistemology cannot be positivism, but is naturalism.Goodness is pleasure, and badness is pain. Public good is ordained by God, andhuaman being's moral goodness is the natural law ordained by God and the eternalrules of reason. Natural law requires certainty and passive obedience in order toprocure the greatest pleasure and good. But the so-called absolute passive obediencedoes have implicit limits. When cruel tyrants are dangerous to life and fortune, thepeople have the right to resist. This is also the requirements of natural law. Berkeley'slegal philosophy is theological utiltarianism.Chapter 3 explores the core claims of legal positivism, positivism and naturalism.With the separation thesis of fact and value as its core, legal positivism must beunderstood and defined in the fundamental sense of epistemology, otherwise it will notresolve the problem that legal positivism and natural law have many similar or evensame claims. It is commonly held that legal positivism claims that in order to be lawthe substance of the law or its procedures are not necessarily conform to a particularset of moral principles; to wit, law is fact. However, it is necessarily value-laden to recognise law, to distingush between law and non-law. The separation thesis is derivedfrom G. E. Moore's doctrine of the separation of cognition and emotion, whichcontributes to his naturalistic fallacy. G. E. Moore's separation is the result of amisunderstanding of Hume's thesis of is-ought which separates reason and emotion,not cognition and emotion. Hume firmly claimed that reason did not possess autonomy,and reason was and ought to be subservient to passion. In Hume's view, passion,will,and action are original facts or existences. Hume's fact is not the fact of the modernthinkers; it is not the objective observation. Hume pointed out clearly that thepropositions of is or is not and the propositions of ought or ought not expressed verydifferent relations, the former cooresponding to reason, and the later cooresponding tomorals. In Humean epistemology, idea which is empiricist is not the all, and theantecedent and original is impressiom which also produces passion. Humeanepistemology is naturalist. Following G. E. Moore's doctrine of the separation ofcognition and emotion , H.L.A. Hart projected his legal positivism, but his claim ofmorally independent law and legal study is not sound in epistemology, only tantamountto practical reason.Chapter 4 explores the utilitarian philosophy of Bentham's jurisprudence.Bentham's jurisprudence takes his ontology and epistemology as its basis. Pleasuresand pains , the only real entities, are the basis of all the other entities which arefictitous entities. It is the universal human nature to pursue pleasure and avoid pain.Action and emotion are fictitious entities, correspondent to each other and inseperable.There is no action without emotion.Interest is the source of thought and action,becauseInterest is to procure pleasue and avoid pain. Pleasure and pain are the originalfundamental elements of any action, and thus naturally, in Bentham's view, morallyneutral or value-free actions cannot exist at all. Therefore, human's intellectualactivities are necessarily morally laden and governed by interest, even if the activitiesof those common law jurists and natural law jurists who claim to pursue justice andtruth. Pleasure and pain are the standard of right and wrong, and the two sovereignmasters. Bentham's ontology and epistemology are naturalistic, and according toBentham there is nothing like the separation of morals and fact created in 20th centuary.Chapter 5 and 6 provide a history of the study of the theoretical basis ofBentham's jurisprudence, an in-depth and delicate analysis of the milestone studies ofJohn Austin, H.L.A Hart, Gerald Postema and Philip Schofield, and an outline of thepath of the development of the study of the theoretical basis of Bentham'sjurisprudence. As to Bentham's jurisprudence, John Austin, an enthusiastic disciple ofBentham's utilitarian principle, inherited and criticized Bentham, and explicated anddefended Bentham against the interpretation of historical school jurists. But then thetheoretical basis of Bentham's jurisprudence was not clear and was not undetakenconsciously. Put aside the matter of right or wrong, Hart's definition is no doudt themost influential one. It is just because of Hart that Bentham's jurisprudence andBentham Project have made great progress , and it is just because of Hart that Benthamhas procured superb reputation which must be envied by any great thinker in history.According to Hart Bentham held three doctrines: the separation of law and morals; themorally neutral analysis of legal concepts; and the imperative theory of law. ThusBentham's jurisprudence is positivism in methodology as well as substance. Howeverin light of Bentham's epistemology , ontology and linguistics, Hart's grasp ofBentham's utilitarian philosophy is far from sufficient, and his interpretation is wrong.Bentham's jurisprudence is not positivist at all. This misinterpretation lead to fatalmistakes in Hart's edition of Bentham's most important work Of Laws in General, andthis in turn brings bad consequences to Bentham studies. Even half a centuary has pastHart's positivist defintion of Bentham's jurisprudence still enjoys the authority. UnlikeHart's recognition of Bentham's morally neutral lingusitics, Postema emphasized thenormative dimension of Bentham's jurisprudence, and defined it as normativepositivism. However, Postema did not see the fundamental position which pain andpleasure occupy in Bentham's jurisprudence, because he did not have a sufficient graspof Bentham's epistemology and ontology. This lead to a purely empiricistinterpretation with the separation of utilitarianism and epistemology. ConsequentiallyPostema's recognition of a self -sufficient and and self-contained law in Bentham isnot Bentham's law. According to Postema, Bentham's project of positivism comesfrom utilitarianism, or moral considerations, if so, then Postema's definition ofBentham's legal posivism cannot agree with the positivism in epistemological sense.The recognition of legal positivism will not make any sense at all if it is regarded asvery different from the positivism in epistemology, because it is far from sufficient to calculate utility within the framework of law, for it has implicitly presupposed thatpeople must obey the law unconditionally. This peremptotriness, Bentham will neveraccept. With a deep understanding of the basic philosophical thesis, Philip Schofield isremoving the accepted positivist interpretation of Bentham's juriprudence, based onhis discovery of Bentham's utilitarian principle and his unrivalled grasp of Bentham'smanuscripts from thirty years of constant and whole-hearted Bentham study. His studyis a great contribution to and a milestone in Bentham studies .Phillip Schofield caughtBentham's naturalistic ontology , and took it as the basis of Bentham's jurisprudence.He also saw that pain and pleasure are the unique fundamental element , and thatBentham's thought is of dynamic character. According to Schofield, whether it is therecognition of law or the study of law, it is necessarily governed by pain and pleasure,therefore, Bentham's jurisprudence is neither substantive legal positivism, normethodological legal positivism; instead, it is naturalism. However, unfortunately,Phillip Schofield's argument is not complete and sufficient, because he did not advanceto Bentham's epistemology which is the most fundamental basis, nor did he exploreBentham's intellectual sources and the intellectual tradition to which he belonged.Generally speaking, as to the theoretical basis of Bentham's jurisprudence, it startedfrom Austin's inductive utilitarian jurisprudence, through H.L.A Hart's legalsubstantive legal positivism and methodological legal positivism, Gerald J Postema'snormative positivism, at last to Philip Schofield's naturalism. It seems that H.L.AHart's interpretation left far away from Bentham, and Gerald J Postema and PhilipSchofield have tried go back to Bentham with reference to Hart. This also shows thatthe researcher's own thought determines his Bentham study, as justly demonstratesLon Fuller's metaphor of prism and the impossiblity of morally neutral study.Chapter 6 is the conclusion of the whole dissertaton.It makes a summary of thehistory and the development of the study and resaerch methods, and reiterates that inBentham's jurisprudencethe Bentham's naturalistic epistemology occupies the ultimatebasis and therefore Bentham's original utilitarian jurisprudence is naturalism.