¹ Bentham, J., Of Laws in General, ed. Hart, H. L. A. (London, 1970), p. 15 n. hGoogle Scholar.

² Or, in Benthamite argot, between ‘expository’ and ‘censorial’ jurisprudence. See Bentham, J., The Works of Jeremy Bentham, 11 vols., ed. Bowring, J. (New York, 1962), vol. 1, p. 238Google Scholar.

³ Bentham, Of Laws, p. 1.

⁴ There is, to be precise, more than one way a party can be affected by a law: ‘by being exposed at least to suffer by it, [and] by being favoured or intended to be favoured by it’ (Bentham, Of Laws, p. 53). To save words, however, I will focus exclusively on the former. But nothing I say in what follows is incompatible with motivating through some favourable enticement.

⁵ Bentham, Of Laws, pp. 95–7.

⁶ Bentham, Of Laws, pp. 95.

⁷ Bentham, Of Laws, pp. 97.

⁸ Bentham, Of Laws, pp. 97.

⁹ Bentham, Of Laws, pp. 96.

¹⁰ For illustration, see Mullock, P., ‘Logic and Liberty’, Philosophical Studies, 35 (1979), pp. 217–38, at 224CrossRefGoogle Scholar.

¹¹ We can avoid cumbersome locutions by letting ϕ-ing stand for an action applicable to all subjects. A command to ϕ, for example, should be taken as: ‘All subjects shall ϕ’. Were we to limit, as most laws are limited, the law to a class of persons, we would need to add: ‘for all x, if x is of such-and-such a description x shall ϕ’.

¹² The following draws on L. J. Lysaght, ‘Bentham on the Aspect of a Law’, Northern Ireland Legal Quarterly, 24 (1973), pp. 383–98, at 390–6; Lyons, D., In the Interest of the Governed: A Study in Bentham's Philosophy of Utility and Law (Oxford, 1973), pp. 117–20Google Scholar; Mullock, ‘Logic and Liberty’, p. 224; Raz, J., The Concept of a Legal System: An Introduction to the Theory of Legal System, 2nd edn. (Oxford, 1980), pp. 55–9CrossRefGoogle Scholar; and Hart, H. L. A, Essays on Bentham: Jurisprudence and Political Theory (Oxford, 1982), pp. 114–16CrossRefGoogle Scholar.

¹³ Lyons, In the Interest, p. 112.

¹⁴ Bentham, Of Laws, p. 54.

¹⁵ Bentham, Of Laws, p. 99.

¹⁶ The implication here is that all undecided mandates are accompanied by decided ones, as suggested by Lysaght, ‘Aspect of a Law’, p. 398.

¹⁷ Bentham, Of Laws, p. 53.

¹⁸ See Lyons, In the Interest, p. 120; Mullock, ‘ Logic and Liberty’, p. 222; Hart, Essays on Bentham, p. 114.

¹⁹ Lyons, In the Interest, pp. 122–3. Lyons continues: ‘[I]mperational contradiction requires that a restrictive law exists if and only if the corresponding permissive law does not exist’ (Lyons, In the Interest, pp. 122–3). Bentham's logic, hence, denies the very possibility of conflict within a legal system. But, since such conflicts do obtain, ‘Bentham's logic is absurd’ (Lyons, In the Interest, p. 123). This objection is not compelling. Conflicts may obtain within legal systems but these are merely dysfunctional systems. If a person denies the antecedent it does not mean that there is something wrong with logic; there is something wrong with this person's reasoning.

²⁰ Hart, Essays on Bentham, p. 248. For an earlier attempt to address this problem by using descriptions of sovereigns’ attitudes, see Lyons, D., ‘Logic and Coercion in Bentham's Theory of Law’, Cornell Law Review 57 (1972), pp. 335–62Google Scholar, at 341–2.

²¹ Hart, Essays on Bentham, p. 248.

²² Bentham, Works, vol. 8, p. 321.

²³ Bentham, Of Laws, pp. 97–8.

²⁴ Hart, Essays on Bentham, p. 249.

²⁵ Hart, Essays on Bentham, p. 115.

²⁶ For a contemporary overview of the meaning of imperatives, see Charlow, N., ‘The Meaning of Imperatives’, Philosophy Compass 9 (2014), pp. 540–55CrossRefGoogle Scholar.

²⁷ For a proposal to translate all imperations in this disjunctive fashion, see Bohnert, H. G., ‘The Semiotic Status of Commands’, Philosophy of Science 12 (1945), pp. 302–15Google Scholar.

²⁸ When selecting a common appellation for what to call an imperatival utterance, for example, Bentham rejects a number of candidates on the ground that they give ‘no intimation that the will in question is in any manner referable to the sovereign’ (Bentham, Of Laws, p. 10). And nowhere, to my knowledge, does Bentham indicate that the logic of imperation he develops extends to everyday imperations.

²⁹ Bentham, Of Laws, p. 18.

³⁰ Bentham, Of Laws, p. 109, 139.

³¹ Postema, G. J., Bentham and the Common Law Tradition (Oxford, 1986), p. 245Google Scholar.

³² Bentham, Of Laws, p. 31, 133.

³³ Bentham, Of Laws, p. 54. By mischief, Bentham simply means that one is forced to suffer by the coercive sanction attached to the law, through either ‘punishment or vindictive compensation’ (Bentham, Of Laws, p. 55).

³⁴ Hart, Essays on Bentham, p. 222.

³⁵ Bentham, Of Laws, p. 56; see also Lyons, In the Interest, p. 116. Bentham, in The Principles of Morals and Legislation, writes that if the sovereign says: ‘Cause to be hanged whoever in due form of law is convicted of stealing, is, though not a direct, yet as intelligible a way of intimating to men in general that they must not steal, as to say to them directly, Do not steal: and one sees, how much more likely to be efficacious’ (Bentham, Works, vol. 1, p. 151 n. 8).

³⁶ Put differently: the first disjunction is directive; the second is comminative. Laws, Bentham argues, always have this two-part structure; see Bentham, Of Laws, p. 167.

³⁷ Bentham, Of Laws, p. 1.

³⁸ Bentham, Of Laws, p. 1.

³⁹ Bentham, Of Laws, p. 95.

⁴⁰ Understanding Bentham's account in this way has other advantages. For example, Hart charged Bentham's jurisprudence with extensional inadequacy, see Hart, H. L. A., The Concept of Law, 2nd edn. (Oxford, 1994)Google Scholar, ch. 3. Bentham's account cannot, Hart argued, capture all the different varieties of laws, such as the rules for making contracts. Treating mandates as disjunctive, however, provides a first step in meeting Hart's challenge. We can translate such rules into the Benthamite account as follows: for any x, if x wishes to make a contract, x shall follow rule (r) or the sovereign shall intend to bring about a less desirable state of affairs than the state of affairs (with regard to the sovereign's actions) brought about by following r; namely, the sovereign will not treat the contract x desired to make legally binding as legally binding. We can offer similar translations for the conferral of legal powers. Perhaps these translations distort ‘the different social functions which different types of legal rules perform’ (Hart, Concept of Law, p. 38). But that is a different, less serious charge.

⁴¹ Bentham, Of Laws, p. 66.

⁴² Bentham, Of Laws, p. 66.

⁴³ Bentham, Of Laws, p. 19 n.b.

⁴⁴ Bentham, Of Laws, p. 109.

⁴⁵ Bentham, Of Laws, p. 19n.b.

⁴⁶ Bentham MSS in the University College, London Library: UC lxix. 204.

⁴⁷ Postema, Bentham and the Common Law, p. 249. Determining the general habit of obedience, accordingly, is a matter of ‘looking to the general dispositions of the people in the community’ (Postema, Bentham and the Common Law, pp. 242, 237). It is only from this general disposition to obedience that ‘government, and what is called political society, and the only real laws, result’ (Bentham, Works, vol. 3, p. 219).

⁴⁸ Bentham rightly affords disappointed expectations great disutility. For an overview, see Postema, Bentham and the Common Law, pp. 161–2.

⁴⁹ Bentham, Of Laws, p. 16. As Bentham emphasizes, ‘the efficacy of the law . . . depend[s] in a considerable degree on the existence, real or supposed, of some customs to which it is or pretends to be conformable’ (Bentham, Of Laws, p. 109)

⁵⁰ Expectations can be natural (such as expectations that arise spontaneously through habits, customs or convention) or artificial (such as when the sovereign announces that an undesirable state of affairs shall accompany non-compliance); see Bentham, Works, vol. 1, p. 323.

⁵¹ Bentham, Works, vol. 1, p. 323.

⁵² We can, perhaps, better understand Bentham's point by drawing a parallel with Hart's discussion of the internal and external perspective one can take on a legal system. According to Hart, we can look on a legal system, externally, ‘as an observer who does not himself accept [the laws], or [internally] as a member of the group which accepts and uses them as guides to conduct’ (Hart, Concept of Law, p. 89). To create obligations, the subjects must see the sovereign's mandates from the internal point of view. However, the content of certain mandates, as in Covenant-Breaking Successor and Anti-Kosher Mandate, shift subjects’ perspectives from the internal to external point of view. The content of such mandates falls outside the sovereign's authority, and hence cannot qualify as valid laws.

⁵³ Bentham, Works, vol. 1, p. 290.

⁵⁴ Bentham, Works, vol. 1, p. 290.

⁵⁵ Some laws might disappoint expectations, but not sufficiently to make all (or most) subjects willing to disobey the sovereign's other mandates. These laws would not be rendered invalid by this counterfactual test. I thank an anonymous referee for prompting me to clarify this point.

⁵⁶ If not, then sovereignty itself is in jeopardy. As Bentham writes: ‘The true rampart, the only rampart, against a tyrannical government has always been, and still is, the faculty of allowing this disposition to obedience – without which there is no government – either to subsist or to cease . . . Shall this habit of obedience be continued unbroken, or shall it be discontinued upon a certain occasion? Is there more to be gained than to be lost in point of happiness, by its discontinuance? Of the two masses of evil, – intensity, duration, certainty, all included – which appears to be the greatest, that to which one believes one's self exposed from continued obedience, or that to which one believes one's self exposed by its discontinuance?’ (Bentham, Works, vol. 3, p. 219).

⁵⁷ This softens Bentham's positivism significantly. It is possible, for example, that a law allowing one to profit from wrongdoing would fail this counterfactual test.

⁵⁸ A brick cannot be added to an edifice, if adding it would bring the whole structure down.

⁵⁹ This is, perhaps, an understatement. As Green writes, ‘Imperatival theories are now without influence in legal philosophy’ (L. Green, ‘Legal Positivism’, Stanford Encyclopedia of Philosophy, <http://www.plato.stanford.edu/archives/fall2009/entries/legal-positivism/> (2009)).

⁶⁰ Many believe the following objection to Bentham's account is damning: ‘[The] analysis fails entirely to account for, even to recognize, certain striking facts about the attitudes we take toward “the law.” We make an important distinction between law and even the general orders of a gangster. We feel that the law's strictures – and its sanctions – are different in that they are obligatory in a way that the outlaw's commands are not’ (Dworkin, R., ‘The Model of Rules’, The University of Chicago Law Review 35 (1967), pp. 14–46Google Scholar, at 19; cf. Hart, Essays on Bentham, pp. 253–5; Hart, Concept of Law, pp. 50–61). According to this objection, pace Bentham, sovereign authority is more than just adding reasons in favour of obedience; possessing authority consist in offering pre-empting reasons. See, for example, Leiter, B., ‘Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis’, Hart's Postscript, ed. Coleman, J. (Oxford, 2001), pp. 355–70Google Scholar, at 363–4; Raz, J., The Morality of Freedom (Oxford, 1986), pp. 57–61Google Scholar. However, for reasons that go beyond the scope of this article, I do not regard this objection as decisive. In any case, even if this objection shows Bentham's account is, in certain respects, inadequate, the significance of the parity thesis remains.

⁶¹ For the seminal argument in favour of this separation, see Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71 (1958), pp. 593–629.

⁶² As should be clear, the connection between legal validity and morality is not conceptual. It is contingent. The expectations (that happen to be partially informed by a society's moral views) indirectly invalidate the law. This indirectness is a virtue. If we can invalidate a law in this indirect way, we avoid violating the separation thesis. We can thus explain our intuition that the immorality of certain mandates ensures their invalidity. This intuition is tracking the thought that for us, given our expectations, that kind of immoral mandate couldn't be a valid law. If mandated, we would discontinue our general habit of obedience.

⁶³ Many thanks to Luke Semrau, Shannon Fyfe, Larry May and an anonymous referee for helpful comments on earlier drafts.