Priel on Bentham's Children: Intellectual Lineage in Jurisprudence

Dan Priel, City University of Hong Kong; Osgoode Hall Law School, has published Bentham's Children: Intellectual Lineages in Jurisprudence. Here is the abstract.

There is a familiar intellectual line that starts with Jeremy Bentham and ends with contemporary legal positivism. But Bentham also has a good claim to being a founding figure of two other jurisprudential traditions, naturalistic jurisprudence (and within it, law and economics) and realist-critical jurisprudence. This may seem surprising as these three approaches are often seen as antagonistic. At the same time, this may suggest a possible way to reconciling these approaches: if Bentham could be analytic, naturalistic, and critical at the same time, why can't we? In turn, this may suggest that the opposition between these different approaches could be explained away as the result of superficial differences or misunderstandings, and as such as path to reconciliation between these intellectual traditions. Unfortunately, I argue that the source of disagreement is different. It has to do with something that critical jurisprudents got right, and that most analytical jurisprudents got wrong: jurisprudence is political. I argue that at the foundation of analytic jurisprudence has been a commitment to political liberalism, a political stance that most proponents of critical jurisprudents have rejected. If I am right, reconciling the jurisprudential approaches will prove as easy as resolving this political divide.

Download the article from SSRN at the link.