Bentham And Austin: Utilitarianism Two Face,

Begin with historical foundation of England law, this thesis aims at displayingthe problems which England law faced with in modern history, so as to carding aknowledge pedigree of modern evolution of England law. Among the pedigree, thefollowing important people cannot be ignored: Coke, Hobbes, Blackstone,Bentham, Mill and Austin, whereas, the main focus of this paper is the relationbetween Bentham and Austin.With profound historical base, English common law is latterly honored as aspontaneously law which is really conform to rationality. The common law respectcustom law efficiently by using case system and it is also pay attention to justice ofprocedure. But the disadvantages are just behind its advantages: for stare decisis, thelaw is tardy to the changes of time; and it attaches importance to procedure causesignorance of substantial justice sometimes. Therefore, England law, which with longhistory, had been fierce attacked and been regarded as a system hindersimprovement in the beginning of enlightenment movement and rapid developmentof industrial and commercial circles. Coke's delicate compilation of cases and hissafeguard to rationality of common law embodies the above problem; whereasHobbes's critics on Coke is an overall challenge to historical foundation of commonlaw from the respect of nature reason in the first time. In the end of 18th century andbeginning of 19th century, the difficult problem of education of common law wasunprecedented appeared. We can say that the modernization difficulty faced withEngland law is the same historical language situation Bentham and Austinconfronted, and their difference is from their different answers to the problem.For a long time, it has been considered that Bentham and Austin shared theschools of legal utilitarianism and legal analytical positivism, but this classificationsimples the relation betwcen them. The difference goes beyond the superficial samethey shared as utilitarianism, furthermore, their distinctness is thorough.Confronted with modernization of England law, Bentham gives a solution ofdisserting common law and devoting into codification. His masterpieces are startingwith critics, and Fragment on Government is directly point out the conservative ofBlackstone. He believes that Blackstone's defense for common law by using concepts of Roman law system could be useful to deal with technical issue of casescompilation, although it couldn't solve the problem once and for all. The cardinalproblem of England law is how people can realize these laws with long history andhow we can match them with our modern life. After criticism, we can find rationalconstruction in An Introduction to Principles of Morals and Legislation. In the abovemasterpiece, Bentham elaborates his principle of utilitarianism, putting forward a setof method to calculate happiness and pain, and ultimately classifies the bound ofcriminal law and gives general classification of law. Succeeded Beccaria's traditionallegislature reform, Bentham starts codification.Faced with radical reform and urgent political and social problem, Austinchooses a method which is differ from Bentham's. Austin considers that the mostimportant task is not radical reform, but political science education of the public.Starting with the rational recognition of law, Austin constructs the public the way tounderstand political phenomena. Austin chooses theory of utilitarianism just for hisrealistic purpose. Not insisting on changing the default of common law, Austin givesthis task to rulers, and the common law can be transformed into positive law eventhrough laws made by judges. Austin combines utilitarianism with divine law, so asto mixture the obedience of law and search for god will, which is absolutely differentfrom Bentham's.Therefore, Austin's theory displays the obedience to govemment, butBentham's radical reform places the govemment in a status of conservative andeven backward. Austin considers that Bentham's thought of legislative reformcouldn't be succeed without rulers' support in Britain, whereas as a symbol ofBritain freedom, common law could not been replaced by perfect code, and weshould make gradual improvement of common law in order to make it adaptable tothe development of society. Generally speaking, on the issue of modernization ofEngland law, Bentham takes an attitude of progressive based on rationality, whereasAustin has an opinion of conservative in view of history standpoint in completelydifference.