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 call 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.”