On Utilitarianism And The Independence Of Jurisprudence

In the history of western legal ideology,utilitarian jurisprudence that take Bentham as representative is of extreme importance regardless of actual affects or its academic value. However,at present the legal science research almost concentrates on the utilitarianism itself. But why we could construct an independent jurisprudence system through the utilitarianism is still a blank area.The independence of jurisprudence is connected with Bentham and Austin. As early as in the last chapter of "Morals And Legislation Principle",Betham distinguishes legislative science and jurisprudence under its utilitarianism ideology. And points out the former is critique. It is a part of ethics. It contains principle of utilitarianism. The later is descriptive,taking positive law as its object. This is the early theory origin of discrimination between"ought"and"is". Through this discrimination,Bentham contends that scientific jurisprudence should be limited in the area of positive law. In his"laws in general",he clearly defines the law as the order of sovereign,and pave the way for Austin's analytic jurisprudence.Austin is a follower of Bentham's utilitarianism,he has developed Bentham's jurisprudence,and establishes a general jurisprudence. He emphasizes the jurisprudence should only study"the law that is"but not"the law that ought to be".Austin thinks that there is no inevitable relation between law and moral. Law is valid because it is the order of sovereign,and has no concern with moral value. In addition,Austin also has analyzed the general legal concept,principle and main classification of law in detail .He has strictly defined the law,and proposed the theory of"the legal order".Just because of Bentham and Austin,jurisprudence becomes an independent science.