Hart, Bentham, and Constitutionalism

Hart claims that Bentham’s theory of law is a command theory; and that Bentham’s theory cannot explain ‘legally limited supreme legislature’ [LLSL]. His claim assumes that judicial review is the archetype of LLSL. I attempt a threefold task. First, I will present Bentham’s explanation of judicial review, and argue that for Bentham, judicial review is not a case of LLSL, but only an example of conjunctive sovereignty. Second, I agree with Hart that Bentham’s command theory cannot explain the phenomenon of LLSL, but I disagree with Hart’s analysis. I will demonstrate that Bentham’s command theory can explain the power-conferring provisions, and that Bentham’s idea that legality determines validity is correct. Third, I will argue that Bentham realizes that his command theory cannot explain LLSL. He developed a theory of leges in principem to explain LLSL. I will offer an account of Bentham’s theory of leges in principem, and argue that this theory is better than Hart’s theory.