Discussion on Bentham's Views on Property and Law

“Property and the law are born together and die together.” (Jeremy Bentham)

Discuss this view on law’s functions by reference to Hart, The Concept of Law (3rd edn, OUP 2012) 91-106 and ONE judgment in Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616.

Jeremy Bentham’s philosophical argument that “property and the law are born together and die together,” [1] is one which stands from a point of view that property is a product of civil society and not a natural right.[2] As Bentham was a strict legal positivist,[3] it is no surprise that he viewed the law and morality as separate entities, creating the dichotomy between natural law and legal positivism.[4] He believed that the law was a social construct as “[Laws were] enacted by legitimate authority and accepted by the society as such”.[5] The idea of ‘property’ in Bentham’s eyes is not meant to be taken literally as he uses the legal theory of ‘dephysicalisation’ [6] where an emphasis is placed on a person-person model of property rather than a person-thing model of property. In this regard, property is defined as the relation between persons creating exclusive socio-political relations. Therefore, according to Bentham, people are considered the sole beneficiaries of property relations – the idea of property is eclipsed.[7] In this essay, I will discuss Jeremy Bentham’s belief [8] that property (using the aforementioned definition) and law are conceptually dependant on each other, with an emphasis that property is vested in positive law rather than in natural law.[9] Additionally, I will apply this rationale to Judge Foster’s verdict in ‘The Case of the Speluncean Explorers’. [10]Lastly, I will refer to Hart’s ‘The Concept of Law’[11] in considering how the elements of law could debunk Bentham’s argument due to the ‘defects’ [12] which arise from applying the law in a regimented fashion to all societies, regardless of differing and unforeseen circumstances. With both opinions, I will conclude if property and law do coexist synonymously.

Bentham’s argument that “Property and the law are born together and die together,”[13] was based on legal positivism in which he believed all laws created were merely expressing the will of a specific authority which created them. [14] In this regard, he determined laws to be nothing more or less than a social construct of society, dispelling the idea that there was no inherent connection between law and morality.[15] As he believed in the positivist theory of law, it is understood that property rights could not be altered in terms of its enforcement on a case-by-case basis, even though property serves utilitarian ends.[16] With the ‘positivist rules’ of property in place, Bentham also regarded property entirely as the work of law in which the function of law was reconsidered [17]as it now protected “the security of the individual citizen and the government by protecting the institution of property rights”. [18]His philosophical argument made a difference to the development of modern property in redefining the traditional notion of property from the natural rights theory to a person-person relation and integrating both the distinct principles of personal property and real property into property rights (in accordance to the person-person model of property). [19] This, in turn, managed to alter the locus of social wealth from land to law or legal rights. It is clear that the ‘dephysicilisation’ of law and property exist in his eyes as abstract logistic forms which are not mutually exclusive. [20]

Despite Bentham’s argument broadening the scope of property and the function of law, this theory has its limitations as the idea of property rights is rooted in strict legal positivism without reference to moral considerations. In absolutely rejecting natural rights referring to them as ‘anarchical fallacies’, [21]Bentham discounts the fact that his thesis is contingent on the content of the law and societal circumstances to which it applies.[22] The rigidity in not considering various societal structures, status quo or the person in question expresses the idea that the obedience to the law is paramount, coming across radically egalitarian.[23] In applying his argument to Justice Foster’s verdict in ‘The Case of the Speluncean Explorers,’ [24] to a certain extent, Bentham’s argument is true at face value as Justice Foster believes that “When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents has ceased to exist.” However, Justice Foster’s judgement does contend the semantics (in terms of the law’s application) of Bentham’s strict positivist based theory on property as he expresses that the law is considered ‘inapplicable’ due to the applicability of the “law of nature” despite statutes and precedents of the Commonwealth that are based on positive law. In this regard, Justice Foster believes that ‘legal positivism’ should have exceptions where natural law can be applied.

He expressed this view saying:

“These defendants…they were…not in a ‘state of civil society’ nut in a ‘state of nature’. This has the consequence that the law applicable to them is not the enacted and established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition.” [25]

In addition to the first ground of Justice Foster’s decision to set aside the conviction of the explorers, he asserts that the law needs a moral justification [26]regardless of its philosophical nature as “if we can find no higher source for our legal order, what higher source should we expect these starving unfortunates to find for the order they adopted for themselves”. Justice Foster’s judgement also points out the irony in the intransigent nature of Bentham’s philosophical argument regarding the compulsory applicability of property rights regardless of the scenario.

He provided this perspective saying:

 “Ten workmen were killed in the process of removing the rocks from the opening to the cave. Did not the engineers and government officials who directed the rescue effort know that the operations they were undertaking were dangerous and involved a serious risk to the lives should be sacrificed to save the lives of five imprisoned explorers, why then are we told it was wrong for these explorers to carry out an arrangement which would save four lives at the cost of one?”[27]

Justice Foster’s statement upholds the contradiction of Bentham’s argument by proving how even if a positive law is implemented, it does not make it necessarily utilitarian. [28] In applying Bentham’s philosophical thesis to Justice Foster’s judgement in ‘The Case of the Speluncean Explorers,’ it is evident that the idea that property and law are synonymous is only applicable to traditional societies as it is based purely on strict legal positivism.

Although Hart was a legal positivist, he recognised the challenges faced in the implementation of legal positivism in societies particularly primitive communities due to his awareness on varying societal structures which could affect the outlook towards legal positivism. In other words, he was a soft positivist. Under ‘the elements of law’,[29]  Hart divided laws into primary rules and secondary rules. This distinction was useful in understanding the nature of law as the latter would be considered mechanisms to create, change or repeal the former.[30]  Hart sharply contrasted Bentham in believing that the ‘rules make the sovereign’ rather than the idea that the sovereign was the prime ‘rule-maker’. [31]In this regard, although Hart was a legal positivist, he recognised the challenges faced in the implementation of legal positivism across all societies, particularly primitive communities [32] as he recognised the limitations in doing so. Hart developed the idea that any community or type society could have a legal system in which he acknowledged that even if ‘defects’ were to arise in that group, there were remedies available to resolve most difficulties. ‘Defects’ such as uncertainty, static character and inefficiency could be easily rectified through the introduction of ‘rule(s) of recognition’, ‘rule(s) of change’, and authoritative determinations respectively. [33] The ‘rule of recognition’ was implemented due to the ‘defect’ of uncertainty meaning that doubts, disagreements or misunderstandings could be solved through the creation of written rules to acknowledge the existence of a rule to clear up doubts. In an established legal system, the rules of recognition would be more complex in which uncertainty would most likely get resolved through dispute resolution. Additionally, the ‘static character’ of the customary rules rendered individuals’ faulty tools to be regulated all except for the smallest human communities. In this regard, the simplest solution to this issue would be the ‘rule of change’ in conferring power to selected individuals to change the rules unless the group was governed by custom solely (in which this option would be unavailable). Lastly, in resolving the defect of ‘inefficiencies’, Hart suggested that all legal systems regardless of society should provide the ‘rules of adjudication’ for certain bodies to determine whether a rule has been violated. [34]Through the incorporation of the elements of law in terms of its primary and secondary rules, Hart presented the idea that to impose positive law on any society, it required an understanding of ‘natural law’ in which defects always had remedies.

To conclude, I believe that Bentham’s philosophical statement that “property and the law are born and die together” does reflect the true notion of property. However, although I do agree that Bentham did widen the idea of property and the function of law, the rigidity of his argument in his failure to completely consider natural law as a strict legal positivist is an indication that he did not recognise the challenges embedded in legal positivism when it is applied to all societies. Unlike Hart, Bentham’s approach to his argument is one that does not recognise that the law does not need to reference morality nor consider it a necessary aspect: it is only relevant when the law encompasses moral criteria for identification.[35] This was evident when his argument was compared to the verdict of Judge Foster in “The Case of the Speluncean Explorers,” in which his belief could only be taken at face value and was contradictory to the idea of being utilitarian. In comparison, looking at Hart’s objective line of reasoning, he does not discredit natural law and instead, accepts that certain jurisdictions may avail themselves of moral principles in their rule of recognition which would allow for a connection between law and morality – it does not justify the law. Hart’s argument based on soft legal positivism captures the essence of what the law’s function is by serving a reminder that legal rights and duties can be imposed by serving the noble function of the law of both providing freedoms and liberties to individuals while concurrently restraining them.[36]

It is important to remember that the essence of property and the law being contingent is a reminder that ‘no one is above the law’ and as Lord Bingham argues:

 “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and administrated in the courts,” [37] unless when an objective difference requires differentiation.

Bibliography

Books

• Bentham J, Principles of the civil code in Theory of Legislation (trans R Hildreth, 8th edn, London, 1894)
• Berry, Property and Possession: Two Replies to Locke-Hume and Hegel (J. Pennock & J. Chapman eds., Nomos No. 22, 1980) 89-95
• Hart H, The Concept of Law (2nd edn, Clarendon Press 1994)
• Lord Bingham, The Rule of Law (2007) 66 CLJ 67,69

Articles

• Brian Leiter, ‘The Radicalism of Legal Positivism’ (University of Chicago Public Law & Legal Theory Working Paper No.303, 2010)
• David Lyons, Founders and Foundations of Legal Positivism [Michigan Law Review 82, no. 4 (1984)] 722-739
• George H. Smith, ‘Jeremy Bentham’s Attack on Natural Rights’ (26 June 2012) <https://www.libertarianism.org/publications/essays/excursions/jeremy-benthams-attack-natural-rights> accessed 20 January 2020
• Henry E. Smith, The Morality of Property [(with Thomas W. Merrill), William & Mary Law Review 1849] 48
• John A. Bruegger, ‘Freedom, Legality, and the Rule of Law’ [9 WASH U. JUR. REV. 081 (2016)]
• Joseph Raz, ‘The Authority of Law: Essays in Law and Morality’ (Oxford: Clarendon Press, 1979) 37
• Keith William, Diener, ‘A Defense of Soft Positivism: Justice and Principle Processes’ (Thesis, Georgia State University, 2006)
• Lon L Fuller, The Case of Speluncean Explorers (1949) 62 Harv L Rev 616
• PG Turner, ‘Degrees of Property’ (University of Cambridge Faculty of Law Research Paper No. 01/2011) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1735953> accessed 20 January 2020
• Robert Loring, ‘The Role of Universal Jurisprudence in Bentham’s Legal Cosmopolitanism’ (October 2014) <http://journals.openedition.org/etudes-benthamiennes/749> accessed 20 January 2020
• Scott J. Shapiro, ‘What is the Rule of Recognition (And Does It Exist)?’ (Public Law & Legal Theory Research Paper Series) No.181
• William N. Eskridge Jr, ‘The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell’ (1993)

Websites & Blogs

• All Answers ltd, 'Legal Positivism' (Lawteacher.net, January 2020) accessed 20 January 2020
• ‘Conceptual Developments’ (7 Nov 2015) <https://lawexplores.com/conceptual-developments/> accessed 20 January 2020

Dictionaries

• legal positivism,’ (Business Dictionary)<http://www.businessdictionary.com/definition/legal-positivism.html> accessed 20 January 2020

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[1] Jeremy Bentham, Principles of the civil code in Theory of Legislation (trans R Hildreth, 8th edn, London, 1894)

[2] Berry, Property and Possession: Two Replies to Locke-Hume and Hegel (J. Pennock & J. Chapman eds., Nomos No. 22, 1980) 89-95

[3] David Lyons, Founders and Foundations of Legal Positivism [Michigan Law Review 82, no. 4 (1984)] 722-739

[4] John A. Bruegger, ‘Freedom, Legality, and the Rule of Law’ [9 WASH U. JUR. REV. 081 (2016)]

[5] ‘legal positivism,’ (Business Dictionary) <http://www.businessdictionary.com/definition/legal-positivism.html> accessed 20 January 2020

[6] PG Turner, ‘Degrees of Property’ (University of Cambridge Faculty of Law Research Paper No. 01/2011)

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1735953> accessed 20 January 2020

[7] ibid

[8] Bentham (n 1)

[9] Turner (n 6)

[10] Lon L Fuller, The Case of Speluncean Explorers (1949) 62 Harv L Rev 616

[11] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994)

[12] ibid

[13] Bentham (n 1)

[14] All Answers ltd, 'Legal Positivism' (Lawteacher.net, January 2020) accessed 20 January 2020

[15] ibid

[16] Henry E. Smith, The Morality of Property [(with Thomas W. Merrill), William & Mary Law Review 1849] 48

[17] Robert Loring, ‘The Role of Universal Jurisprudence in Bentham’s Legal Cosmopolitanism’ (October 2014) <http://journals.openedition.org/etudes-benthamiennes/749> accessed 20 January 2020

[18] ‘Conceptual Developments’ (7 Nov 2015) < https://lawexplores.com/conceptual-developments/> accessed 20 January 2020

[19] ibid

[20] Turner (n 6)

[21] George H. Smith, ‘Jeremy Bentham’s Attack on Natural Rights’ (26 June 2012)

<https://www.libertarianism.org/publications/essays/excursions/jeremy-benthams-attack-natural-rights> accessed 20 January 2020

[22] Joseph Raz, ‘The Authority of Law: Essays in Law and Morality’ (Oxford: Clarendon Press, 1979) 37

[23] Brian Leiter, ‘The Radicalism of Legal Positivism’ (University of Chicago Public Law & Legal Theory Working Paper No.303, 2010)

[24] Fuller (n 12)

[25] ibid

[26] William N. Eskridge Jr, ‘The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell’ (1993)

[27] Fuller (n 12)

[28] Bentham (n 1)

[29] Hart (n 10)

[30] Bruegger (n 4)

[31] Scott J. Shapiro, ‘What is the Rule of Recognition (And Does It Exist)?’ (Public Law & Legal Theory Research Paper Series) No.181

[32] Bruegger (n 4)

[33] Hart (n 10)

[34] Ibid; Bruegger (n 4)

[35] Keith William, Diener, ‘A Defense of Soft Positivism: Justice and Principle Processes’ (Thesis, Georgia State University, 2006)

[36] ibid

[37] Lord Bingham, The Rule of Law (2007) 66 CLJ 67,69