Bentham's Limits and Hohfeld
Guillaume Tusseau (ed), The Legal Philosophy and Influence of Jeremy Bentham: Essays on Limits of the Penal Branch of Jurisprudence, Routledge, 2014, Forthcoming
23 Pages Posted: 17 Nov 2013
Date Written: November 14, 2013
This chapter of a forthcoming book edited by Guillaume Tusseau, The Legal Philosophy and Influence of Jeremy Bentham, provides a comparative study of the analytical schemes of Bentham and Hohfeld and the component concepts (right, duty, liberty, power, command, permission, etc) of these schemes. Previous studies by Joseph Singer and Leopold Rosdorff are criticised for incorrectly exaggerating the technical differences between Bentham and Hohfeld. The relationships between their concepts are represented with the aid of the traditional square of opposition, revealing greater commonality between the two schemes as forms of deontic logic. However, attention is drawn to the essential instability and analytical incompleteness of subcontraries within the square of opposition. This develops into a common critique of Bentham and Hohfeld concerning their failure to present a full picture of practical legal positions, notably those involving legal liberty. The specific failings of Bentham’s analytical scheme are then related to his general understanding of law, leaving Bentham vulnerable over his scientific methodology, his view of the Common Law, and his treatment of legal rights; and, ultimately, unable to overcome a lurking conflict between fact and value in the law.
Keywords: Bentham, Hohfeld, logic of imperation, aspects of the will, fundamental legal conceptions, deontic logic, legal liberty, science of law, fact and value
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