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.
Our 2020 Annual Conference was scheduled to be held at the University of Wrocław in Poland on July 9-11, 2020.
Due to the COVID-19 pandemic, our next Annual Conference will take place from July 8-10, 2021. The conference, "ICON•S Mundo", will be held online. Details regarding the organization of the 2021 Conference will follow soon.Join ICON•S