Bentham's Theory of the Nature of Law

In this thesis, I present an original account of Bentham’s theory of the nature of law. Beginning with Bentham’s methodology, I dispute H.L.A. Hart’s claim that Bentham’s method consists of ‘morally neutral description’. I argue that Bentham’s method is founded on a natural arrangement of law, which requires the legal philosopher to describe the true properties of legal materials according to their influence on people’s pleasure and pain. A natural arrangement is, therefore, based on utility, and not ‘morally neutral’. Bentham’s theory is widely labelled as a command theory. As such, Hart claims that Bentham’s theory is inadequate, because it cannot explain three major phenomena, namely the existence of legal materials that are not commands, the nature and working of the common law, and legally limited sovereignty. I argue that laws, for Bentham, are binding norms that are attributable to the sovereign, and that these norms include laws in populum and laws in principem: the latter are the laws that limit the sovereign. I argue that command theory is only one part of Bentham’s wider theory of law, and characterizes laws in populum alone, and not laws in principem. I show how those legal materials that are not expressed as commands can be translated into commands, and how the rules of common law arise and work as the sovereign’s commands. Finally, Hart argues that Bentham’s command theory contains the germ of the idea of a peremptory reason. I claim that Bentham’s notion of command does not equate to a peremptory reason. According to Bentham, a commander intends that the punishment assigned by him be accepted by the person to whom he issues his command as the overriding, rather than as a peremptory, reason to obey it