Jeremy Bentham and the Origins of Legal Positivism

Abstract

H. L. A. Hart is generally recognised as the most influential twentiethcentury exponent of the doctrine of legal positivism. According to Hart, Jeremy Bentham (1748–1832), the philosopher and reformer, ‘opened the long positivist tradition in English jurisprudence’. Stephen Perry points out that Hart’s legal positivism contains two doctrines, namely substantive and methodological legal positivism, though Hart himself did not explicitly distinguish them. The former consists in the claim that there is no necessary connection between morality and the content of law and the latter in the claim that there is no necessary connection between morality and legal theory. Hart in effect attributed both doctrines to Benthamwhen referring to ‘Bentham’s sharp severance . . . between law as it is and law as it ought to be and his insistence that the foundations of a legal system are properly described in the morally neutral terms of a general habit of obedience’. Bentham’s view that there was no necessary connection between law and morality (his ‘sharp severance . . . between law as it is and law as it ought to be’) and his description of a legal system in ‘morally neutral terms’ were equivalent to Hart’s substantive and methodological doctrines respectively. Hart, moreover, indicated that Bentham’s methodological legal positivism had been subservient to his substantive legal positivism: ‘[Bentham] insisted on a precise, morally neutral vocabulary for use in the discussion of law and politics as part of a larger concern to sharpen men’s awareness . . . of the distinction between what is and what ought to be.’