Bentham’s Laws in Principem and his Command Theory: a Critique of Hart’s Criticisms

When writing Limits, Bentham introduced the idea of laws in principem: they are duty-imposing commands, receiving determination from a sovereign, and prescribing to him what he shall do. Hart argues that Bentham’s laws in principem are not duty-imposing, but power-conferring or disability-imposing, which courts accept as reasons for invalidating enactments conflicting with them. After presenting several major criticisms, he concludes that Bentham’s idea of laws in principem cannot be reconciled with his command theory, and that a ‘fundamental transformation’ of the latter is required to accommodate the former. I show that Bentham correctly regards laws in principem as essentially duty-imposing, and that his command theory can easily survive Hart’s criticisms. I conclude that it not only can accommodate laws in principem, but can better explain their nature and operation.