(Quasi) Realistic Normative Production. An analysis of Benthamite imperation power

Abstract

This paper aims to reconstruct some of Jeremy Bentham’s theoretical concepts, in particular the notions of Power of Imperation and Power of Concretion. These two notions form the basis of what we shall call here the “Bentham model of legal competence.” As will be seen, this model is quite complex and runs counter to what is normally understood as the creation of law from a classical positivist perspective, as it includes legal interpretation as part of the normative production mechanism. The resulting model turns out to be one of norm creation, particularly in the way it involves judges in the creation of law—something we might classify as “quasi-realist.” That is, not a fully realist model, but one that is partially aligned with what, almost a hundred years after Bentham’s death, came to be known as “legal realism.” This model, like much of Bentham’s work, has not been studied with the seriousness it deserves. For this reason, it is first necessary to underline: i) why Bentham is an author to whom we must return; and ii) to highlight certain problems related to the editing of Bentham’s manuscripts on legal matters (§1). Secondly, the paper will address some terminological issues linked to Bentham’s work and the historical context in which it was produced (§2). Once these clarifications are made, the analysis of the Benthamian model will proceed. First, a basic and general outline of Bentham’s concept of the sovereign will be presented (§3), in order to then address the notion of Power of Imperation, that is, what Bentham understands by normative production (§4). Once this model has been analysed, we will explore in what sense it may be considered “quasi-realist.” This will lead to some general considerations on realism and “quasi-realism,” followed by an examination of how the Benthamian model fits into that framework (§5). The paper concludes with some general remarks (§6).