On The Logical Status Of Utilitarianism In The Early Empirical Analysis Of Law

Jeremy Bentham (1748-1832) and John Austin (1790-1859) have been considered as the most significant source of jurisprudence who created the empirical analysis of law, especially, The Province of Jurisprudence Determined has been regarded as the programmatic and modal work of the empirical analysis of Law. When we look through the complicatedly connected texts and the complex logical argument, we can make a conclusion that the utilitarian Bentham and Austin put the Legislative principles of utilitarianism into practice rather than made a dichotomy of the existing law and the will-be law. The division of positive law and the Natural law is the inevitable result of applying the utilitarianism into legislation. The principle of utilitarianism is the soul and foundation on which the early empirical analysis of law relies and depends.This article attempts to explain the logical status of utilitarianism in the early empirical analysis of law from the following three aspects: the social, historical and ideological background, the theoretical approach of utilitarianism becoming the guiding principle of the empirical analysis of law and the status of utilitarianism in the early empirical analysis of law. The utilitarianism thoughts had been raised and developed in the society before the birth of empirical analysis of law. Especially, the United Kingdom, first place of the industrial revolution, is the special place for accelerating utilitarianism, and the development of capitalism is a resourceful social nutrition; adding the change of theological belief since the Enlightenment, the earthly "good credit" has the meaning of God's purpose, while the economic order of "life" constituted the earthliness labor is for the purpose of livelihood of living for all the people including themselves(the so-called common benefits for the majority of people), which is the law of religious ethics for the Protestant doing "good credit" in the earthly society. It was against this ideological background that Bentham and Austin put utilitarianism into the empirical analysis of Law and regarded it as the soul and foundation of the existence of law.As a pioneer of utilitarianism, Bentham elaborated the utilitarianism in detail regarded as the guiding principle of the empirical analysis of Law in his Introduction to Principles of Morals and Legislation. The essence of his understanding of utilitarianism lies in his definition of the meaning of happiness and suffering, both of which are the Lord of the human spirit. And he understands the general consideration of human behavior lies in the interest consideration and the actuarial gains and losses of the previous acts.Bentham's wish is how to conduct the general thinking of people into the legislation, when legislators formulate the specific regulations guiding the living arrangements of staff, while Austin's aspiration is teaching the earthly public to know that the actual existence of the law submitted to and complied with (the law which is in line with the utilitarian principle, actually exists and is enacted by people) is in line with interest consideration.If we split the proposition utilitarianism from the logical aspects, that is the concept, judgment and reasoning of utilitarianism, the following three problems must be addressed by the utilitarian: how to define the accuracy of a concept, how to ensure the truth of a judgment and how to conduct the comprehensibility of reasoning. These are also the necessary prelude of taking the utilitarianism as the guiding principle of the empirical analysis of Law.Therefore, the logical argument by Bentham and Austin on utilitarianism is most important part which can not avoided when we research how the empirical analysis started. Because of this logical argument, empirical analysis of law has its source and spirit.