The Role of Fictions in Law: Hume, Adam Smith and Bentham

In: Filozofski vestnik: FV, Band 15, Heft 2, S. 151-168

Abstract

Three important legal & political theorists operant during the transformation of legal theory from natural law to utilitarianism are examined, namely those of David Hume, Adam Smith, & Jeremy Bentham. All stressed the role of "fictions" in law & understand their theories as an answer to "fictitious" ideas of their opponents, so that their theories could be understood as an attempt to come to terms with "fictivity" of natural law theories. While Hume & Smith developed the idea of unintended consequences of human actions as an explanation for the functioning of modern society, Bentham's frontal critique of common law as existing legal practice laid foundations for utilitarian theory of law & modern legal positivism. Adapted from the source document.