Bentham / Aust(i)n connections

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Bentham / Aust(i)n connections

Post by retroactiveman on Sat Jun 07, 2008 12:14 am

Legal positivism and natural law are the two big modern jurisprudential schools (legal positivism represented by HLA Hart, Joseph Raz, Hans Kelsen, Jules Coleman...; natural law represented by Ronald Dworkin, John Finnis, Lon Fuller...). Both schools have different sources or holy founders.

What positivism essentially advocates is that law is of human creation, and that their is no necessary connection between law and morals. (Compare this to Finnis's fundamental prerequisites for human flourishing or Kant's categorical imperative.)

Positivism's two big dudes are jeremy bentham and john austin. Both offered empircal counts of law. Bentham's utilitarianism looks at the world, figures out what would constituted maximum utility, and prescribes law on this basis. Austin's account, the command theory, merely offered a descriptive account of the law. Per the command theory law is distributed by a sovereign who is above the law, whom the law cannot account for--law draws its authority from the sovereign being sovereign, because the sovereign can impose punishment on this basis.

Ok, if you are still reading, sorry for all that nonsense, but the interesting thing is that a majority of Bentham's thoughts on law were not discovered until about the middle of the 20th century. Thus positivisms main influence is Austin, although Bentham's account is incredibly more nuanced and more sensitive as a descriptive account. It is Austin that Hart treats as his whipping boy in reformulating postivism in "Concept of Law". Hart commented on and published the posthumous works of Bentham, but the ball had already been set rolling, Concept of Law, the most influential jurisprudential work of the 20th century, had been written as a response to Austin, the "rules of recognition" describing the core features of law in a top down system had already been postulated, leaving Bentham as this kind of strange annomaly as what could have been.

So this is a long winded way of saying that Bentham is more interesting dead that alive. And that maybe the world has been usurped by Austin, which might possibly might explain her reticence in the FF...this world was made for her.

Kate's character is above the law. That can be observed. I have no basis for suggesting that Kate "makes" law, but she definetly benefits from the system in place.


Last edited by retroactiveman on Sat Jun 07, 2008 12:16 am; edited 1 time in total (Reason for editing : additional content)
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Re: Bentham / Aust(i)n connections

Post by nino_1 on Sat Jun 07, 2008 12:33 am

good research
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Re: Bentham / Aust(i)n connections

Post by TheHolyStickman on Sun Jun 08, 2008 10:52 am

Some good reseach Retro, but I didnt quite catch the meaning. The group follows Kate while she's alive and dont listen to Locke. But when he dies he becomes more important? Right??
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Re: Bentham / Aust(i)n connections

Post by retroactiveman on Sun Jun 08, 2008 5:08 pm

Holy, I hear you, who knows. All I know is

A) Bentham/Locke is dead (or might be, I like the hokey spider bite arguments as well)

B) Bentham was saying to Jack prior to his death, that bad things had happened post O6 departure,;

C) Kate is above the law, she is above justice;

and if you assume, and it is a big assumption, that the island moved back in time from where the island was prior to the location of the island was before, the new island becomes the new foundational point of the world...

the bad things that happened on the island benefit Kate....

So, all Im trying to say is historically Bentham disappeared re his descriptive account of the law. It died with him.

Austin's descriptive account, the command theory survived. And turned out to be influential (in its stupidity).

Maybe on the island the representative democracy model that Locke/Bentham seem to represent (oppossed to autocratic, self stylized, divine right ruler represented by Ben post abdication) is overcome.

Maybe a figure or corporate interests overcome democracy and use it to impose their individual will. This is one way that things could go wrong,

Oh well.
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Re: Bentham / Aust(i)n connections

Post by TheHolyStickman on Sun Jun 08, 2008 5:49 pm

Ok I get it a bit more now. Maybe foreshadowing Kate becoming a 'bad person'.
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Re: Bentham / Aust(i)n connections

Post by retroactiveman on Sun Jun 08, 2008 6:17 pm

Simpler is definetley better Holy.

[retroactiveman says to himself "damn yyou jurisprudence"]
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Re: Bentham / Aust(i)n connections

Post by StitchExp626 on Mon Jun 09, 2008 11:54 am

The correct spelling is definitely.

Not definately.

Not definatly.

Not definantly.

Not definetly.

Not definently.

And certainly not definetley

The correct spelling is definitely


Source: http://www.d-e-f-i-n-i-t-e-l-y.com/
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