On The Construction Of Bentham's Utilitarian Positivism Legal Thought

Bentham's utilitarian positivist legal thought has a profound historical foundation,and they are inseparable from Bentham's criticism of common law theory.This article separately discusses Bentham's critique of natural law theory,fictional theory and following precedents,and extracts Bentham's utilitarian positivist critique.Bentham believed that many of the shortcomings of the common law were that it cannot satisfy the development and changes of society,and it is necessary to rebuild a new legal system.In the new legal system,Bentham constructed censorship jurisprudence with utilitarian jurisprudence,and constructed interpretative jurisprudence with positivist jurisprudence.They respectively answered the questions of law as it was and law as it ought to be,thus realizing the unity of utilitarianism and legal positivism.This article includes an introduction,a text,and a concluding remark.The main body is divided into two chapters.The first chapter mainly discusses Bentham's dissatisfaction with the operation of the common law,and Bentham put forward the general theory of the law.Firstly,it introduces many crises that Bentham believed the common law existed.Then Bentham criticized common law theory in three aspects.Secondly,it points out that the problems existing in common law were irreconcilable,so Bentham need to rebuild new laws system.In the whole process of criticism,Bentham used utilitarianism and legal positivism to separate the study of pure law from the theory of natural law,to clarify the concept of law with positivism,and to measure the value of law with utilitarianism.The second chapter mainly discusses that in the process of establishing a new legal system,realizing the unity of utilitarianism and legal positivism.In the new legal system,Bentham had established censorship jurisprudence and interpretative jurisprudence.Censorship jurisprudence useed utilitarianism as the guiding ideology to point out the fundamental task of law from a macro perspective,while interpretative jurisprudence used law positivism as an analytical method to study the various elements of law from a microscopic perspective.From Bentham's positioning of examiners and interpreters,it can be seen that the legal form constructed by legal positivism must strictly obey utilitarianism in both substance and task.Therefore,Bentham's legal thought can be called utilitarian positivist legal thought,which was constructed in the process of criticizing the common law.