ABSTRACT
A central tenet of modern Legal Positivism is the claim that "the existence of the law is one thing, its merit or demerit another.'" I shall ca" this "the Positivist dictum." Jeremy Bentham, the first and perhaps the greatest of the English Positivists, announced this doctrine in his early Fragment on Government, when he distinguished the "Expositor" of the law-who "explains what the law is" and "shows what the Legislator and Judge have done" -from the "Censor" -who instructs us in "what the law ought to be."2 According to Professor Hart,
This view of Bentham's approach to the general theory of law is taken a step further in arecent article by Kar! Olivecrona. He maintains that Bentham attempted a strictly "empirical investigation of the facts to which the term 'Iaw' pointed;" he "sought to establish a purely sociological theory of law, unencumbered by the fictions and moralizing of earlier Natural Law theory." But he failed, argues Olivecrona. His empiricism was marred
This, it is safe to say, is the standard interpretation of the project and intentions behind Bentham's theoretical reflections on law. The interpretation seems plausible until we realize that the "empirical facts" over wh ich Bentham's theory is thought to falter are those constituting common law-that form of law which, Bentham himself admitted, 5 could be found to some extent in al/ legal systems, and was the dominant element in English law. But, then, how can a theory, which refuses to recognize as law a phenomenon which figures prominently in all legal systems, be taken seriously at all, let alone praised as a "magnificent attempt to reconcile the will-theory to empirical facts"? Is not Bentham's refusal to recognize common law as paradoxical and puzzling as the Natural Lawyer's refusal to recognize as law sovereign commands which fail to meet standards of justice?
