著者

戒能 通弘

出版者

日本法哲学会

雑誌

法哲学年報 (ISSN:03872890)

巻号頁・発行日

vol.2007, pp.80-90, 2008 (Released:2021-03-31)

---

The legal thought of Jeremy Bentham (1748-1832) is, like his political theory, developed to respond for the modernization of the British society by the industrial revolution. Also, Bentham can be depicted as a typical modern theorist who thought to develop a universally applying prescriptive theory. The purpose of this paper is to reexamine the theoretical, social background and the substance of Bentham’s legal positivism and utilitarianism by the viewpoint of the ‘autonomy of law’ and the ‘universality’, which are particularities of the modernity. In this paper, at first, I want to show the modernity of Benham’s legal thought by comparing it with the preceding classical common law theory. The difference between Bentham’s legal thought and the classical common law theory depends on the difference of the respective view of the community or the society. Bentham perceived that the gemeinschaft or the ‘society of a same value’, which the classical common law theory presupposed, has fallen after the Industrial revolution and proposed the autonomy of law to resolve the ‘co-ordination problem’. In this paper, I also want to argue the codification theory of Bentham, which has been my mainresearch project. To accomplish the greatest happiness of the greatest number, Bentham tried to replace the common law with his Pannomion (comprehensive code of laws), which is thought to be universal. If one of the features of the modernity is the pursuit of the universality, we can find a typical example in Bentham’s theory of codification.