Jeremy Bentham and HLA Hart's 'Utilitarian Tradition in Jurisprudence'

TitleJeremy Bentham and HLA Hart's 'Utilitarian Tradition in Jurisprudence'
Publication TypeJournal Article
Year of Publication2011
AuthorsSchofield, P
JournalJurisprudence
Volume1
Pagination147-167
Abstract

Hart identified a utilitarian tradition in jurisprudence, which he associated with Jeremy Bentham and John Austin. This tradition consisted in three doctrines: the separation of law and morals; the analysis of legal concepts; and the imperative theory of law. I argue, contrary to Hart, that Bentham did not adopt a 'positivist' conception of law whether understood in terms of the separation of legal theory and morality or in terms of the separation of law and morals. Misinterpreting Bentham's approach to the analysis of language, Hart was wrong to assume that Bentham's jurisprudential project was a precursor to his own attempt to provide a morally neutral description of a legal system. It was this assumption that led to mistakes in Hart's editing of Of Laws in General. Bentham's utilitarian theory of law should be recognised as a distinct alternative to Common Law and Natural Law theories