Bentham is a pivotal figure in the history of Anglo- American jurisprudence.
He gave both utilitarianism and legal positivism their first detailed
exposition and defence in English, and negotiated a sophisticated marriage
of the two doctrines. But Fitzjames Stephen’s disparaging comment contains
more than a grain of truth. Bentham’s most important jurisprudential work
has lain buried under a great rubble. In this rubble we find the ruins of much
of the practice and ideology of the Common Law system he so mercilessly
and effectively attacked, but also a mountain of inaccessible and largely unpublished
manuscripts, the remains of a very long and curiously undisciplined
writing career. Spent shells are buried here, to be sure, but live ones
with great explosive potential remain.
Among the potentially most explosive are his early reflections on the
foundations of law and adjudication. They introduce us to a jurisprudential
debate of historic dimensions and fundamental philosophical significance.
Bentham’s writings, and the tradition of debate to which they contribute,
raise questions concerning not only the nature and tasks of law, but also the
role of normative moral- political theory in the construction and defence of
conceptions of the nature of law.