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Jeremy Bentham on Power-Conferring Laws

Abstract : In a previous paper, I compared Bentham and Austin's positivisms. I showed that the difference between them mostly laid in their concepts of a law. The concepts of a law Bentham and Austin adopted drove them to very different positions as regards the possibility of a conceptualisation of legal powers. Whereas Austin's " imperative " theory does not allow for such a discussion, Bentham's " imperational146 " theory imposes him this reflection. Austin only admits that the sovereign and, in very restrictive conditions, the judges can create laws. On the contrary, according to Bentham, the sovereign, judges, administrators, individuals in their private relations also produce laws. Thus the necessity to explain how they can have such a " normative power " or, in Bentham's terminology, " power of imperation " (...).
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Guillaume Tusseau. Jeremy Bentham on Power-Conferring Laws. Revue d'études benthamiennes, Centre Bentham, 2007, pp.48-77. ⟨hal-01021871⟩



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