Question 1
Introduction
Jeremy Bentham was a leading figure in classical legal positivism and a founder of utilitarianism. His legal philosophy was driven by a desire for law to be a rational and scientific instrument for promoting social utility, defined as the greatest happiness for the greatest number of people. Central to this project was the need for legal certainty. This analysis will apply Bentham’s theory to the dispute of a student suspended for conduct not expressly forbidden by written rules, where the university relied on a prior decision. It will be argued that from a Benthamite perspective, the university's action is an example of the arbitrary and uncertain nature of 'judge-made' law, which he strongly condemned. The student's complaint that it is unfair to be punished for conduct not clearly prohibited finds strong support in Bentham’s insistence on legal certainty and his advocacy for comprehensive codification.
Bentham’s Critique of Common Law and the Need for Certainty
For Bentham, law is fundamentally an expression of the will of a sovereign legislator (Wacks, 2020). Its purpose is to guide human conduct in a way that maximises happiness and minimises pain. To achieve this, law must be clear, publicised, and prospective (i.e., applying to future conduct). Citizens cannot be expected to obey laws they do not know or understand. Legal certainty is therefore not merely a technical ideal but a precondition for a rational and utilitarian legal system.
The scenario presented directly engages with Bentham’s most famous critique of the common law system, which relies on precedent. He famously described judge-made law as "dog-law," arguing: "When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me" (Bentham, 1843). In this view, relying on precedent is a form of retrospective law-making. The ‘rule’ is only made clear at the moment of punishment, meaning the person being punished had no clear and advance warning that their conduct was prohibited.
Applying this to the university scenario, the university disciplinary body is acting like a common law judge. By relying on an "earlier disciplinary decision involving similar conduct," it is creating or applying a rule retrospectively. The student, like the subject of Bentham’s "dog-law," is punished for an action that was not ‘clearly prohibited beforehand’. For Bentham, this is an unacceptable basis for imposing a sanction. It creates uncertainty and fear, rather than providing the clear guidance necessary for students to regulate their own behaviour in a way that aligns with the university’s objectives. Such a system is irrational and fails the utilitarian test because it inflicts pain (the suspension) without having provided a clear rule that could have prevented the mischief in the first place.
Precedent and the Solution of Codification
Bentham’s opposition to precedent was not just about its retrospective nature but also its general obscurity and inaccessibility. He argued that case law is a chaotic and incomprehensible mass, known only to a small circle of lawyers, which he termed "Judge & Co." (Freeman, 2014). This creates a system where citizens are dependent on legal experts to understand their obligations, which Bentham saw as undemocratic and inefficient. The student’s argument is essentially a layperson’s articulation of this problem: if the rule is not written down and accessible, how can it be fair to enforce it?
Bentham’s proposed solution was the creation of a complete and determinate code of laws, which he called a ‘pannomion’. This code would be a rational and comprehensive legal framework, drafted in clear and simple language, that would prospectively declare all rights, duties, and punishments. Its aim was to replace the confusing web of common law with a single, authoritative source of law that could be known and understood by all.
In the context of the university dispute, a Benthamite approach would find the root of the problem in the university's failure to codify its rules properly. The university should have a comprehensive student code of conduct that clearly and exhaustively lists all prohibited behaviours and their corresponding sanctions. If the student's conduct was not listed in this code, then from Bentham’s standpoint, no punishment should be applied. The correct response from the university would be to amend the code to prohibit such conduct in the future, thus ensuring the rule is prospective and provides clear notice to all students. Punishing the student based on an unwritten standard established by a previous case is precisely the kind of arbitrary judicial power that Bentham sought to eliminate.
Conclusion
In conclusion, Jeremy Bentham’s legal theory provides a powerful critique of the university's disciplinary action. The university's reliance on precedent exemplifies the "dog-law" that Bentham condemned: it is retrospective, uncertain, and fails to provide the clear, prospective guidance that a rational legal system requires. The student’s argument that it is unfair to be punished for conduct not clearly prohibited aligns perfectly with Bentham's core demand for legal certainty. For Bentham, the validity and utility of a law are tied to its ability to be known in advance. The university’s failure to have a clear, written rule is a failure of its law-making function. The only legitimate course of action, according to this theory, would be to absolve the student and amend the written rules to prohibit the conduct in the future, thereby fulfilling the utilitarian goal of creating clear laws for the good of the community.
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Question 2
Introduction
John Austin, a pupil of Bentham, developed a different but equally influential version of classical legal positivism known as the ‘command theory’ of law. His primary goal was to provide a clear, scientific definition of what law is, separating it from questions of what law ought to be (morality). This analysis will use Austin’s theory to assess a student’s argument that a university rule is invalid because it is unfair and was made without consultation. It will be argued that from an Austinian perspective, these arguments are entirely irrelevant to the legal validity of the rule. The rule, having been issued by an authorised body and backed by a sanction, qualifies as a ‘positive law’, and its perceived fairness or the procedure of its creation does not affect this status.
Austin’s Command Theory of Law
Austin’s central proposition is that law, in its strict sense, is a command of a sovereign backed by a sanction. For a rule to be considered ‘positive law’, it must meet three conditions: (1) it must be a command, which is an expression of a wish or desire by a superior to an inferior; (2) it must be issued by a sovereign, defined as a determinate human superior who receives habitual obedience from the bulk of a given society and is not in a habit of obedience to a like superior; and (3) it must be backed by a sanction, which is the threat of an evil or harm that will be inflicted for non-compliance (Austin, 1832).
Applying this framework to the university scenario, we can analyse the rule prohibiting mobile phones in examinations.
- Command: The rule is a clear expression of a wish from the university administration that students should not use their phones during exams. It is a general command directed at the entire student body.
- Sovereign: The problem states the rule was "issued by the University Council, which has legal authority to make rules governing students." Within the specific context of the university community, the Council acts as the ‘sovereign’ or a subordinate legislative authority empowered by the sovereign. It is a "determinate human superior" in relation to the students, who are in a "habit of obedience" to its rules (e.g., by attending classes, paying fees, and following academic regulations).
- Sanction: The student who broke the rule was suspended. This suspension is a clear "evil" or "pain" that serves as the sanction for violating the command.
Since the rule meets all three of Austin’s criteria, it qualifies as a valid positive law within the university’s legal system. The student's subsequent punishment is simply the logical and necessary enforcement of that law.
Positive Law versus Positive Morality
The core of the student's challenge rests on two claims: that "students were never consulted" and that "many students consider it unfair." Austin’s theory provides a clear basis for dismissing both arguments by distinguishing sharply between 'positive law' and 'positive morality'.
'Positive law' is the law "as it is," set by political superiors to political inferiors (Wacks, 2020). Its validity depends solely on its source (the sovereign’s command), not its content or the procedure by which it was made. Austin's is a top-down model of law-making; there is no requirement for consultation, consent, or democratic participation for a command to be a valid law. Therefore, the argument that students were not consulted is legally irrelevant from an Austinian viewpoint.
The student’s second argument, that the rule is "unfair," falls into the category of what Austin termed 'positive morality'. This refers to the moral codes, opinions, and customs held by a particular group of people – in this case, the student body (Freeman, 2014). Austin was insistent that the existence of law is one thing; its merit or demerit is another. Whether a law is good or bad, fair or unfair, is a moral question, not a legal one. The student is confusing the question of the rule’s validity (an 'is' question) with the question of its justice (an 'ought' question). For Austin, a law may be widely considered unfair or immoral, but if it is a command from the sovereign backed by a sanction, it remains a law until it is repealed by that sovereign. The student’s personal or a collective moral objection to the rule does not remove its legal force.
Authority, Power, and the Validity of Law
The scenario highlights the Austinian connection between law, authority, and power. The University Council has the "legal authority to make rules," which gives it the power to issue commands and enforce them through sanctions. This power is the foundation of the law's validity. The student's argument fundamentally misunderstands the source of legal validity in a positivist framework. It assumes that validity depends on moral acceptance or popular consent. For Austin, validity comes from the apex of the political power structure. The student is subject to the university's rules not because they agree with them, but because they are part of a community in which the University Council is the recognised authority. As long as that authority structure remains, its commands are law.
Conclusion
In conclusion, when analysed through the lens of John Austin’s command theory, the student’s arguments against the validity of the mobile phone rule are without legal foundation. The rule is a classic example of a positive law: a command issued by a sovereign (the University Council) backed by a credible sanction (suspension). The student’s complaints about a lack of consultation and the rule's perceived unfairness are matters of positive morality, which Austin’s jurisprudence strictly separates from the question of legal validity. For Austin, a law does not need to be fair or consultative to be a law. It simply needs to be a command from a recognised authority with the power to enforce it. Therefore, the rule is valid, and the university is acting within its legal power to suspend the student for its violation.
References
Austin, J. (1832) The Province of Jurisprudence Determined. London: John Murray.
Bentham, J. (1843) The Works of Jeremy Bentham, vol. 5. Edinburgh: William Tait.
Freeman, M.D.A. (ed.) (2014) Lloyd's Introduction to Jurisprudence. 9th edn. London: Sweet & Maxwell.
Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford: Oxford University Press.
