Theory of legislation

The Theory of Legislation and Introduction to the Principles of Morals and Legislation are companion works, articulating some of the fundamental ideas of Bentham's message. The Theory, like the Principles, has generally been viewed as enunciating Bentham's moral and legal philosophy: namely, utilitarianism. But the Theory and Principles also provide a manual of instructions to a conscientious legislator. In addition, and, perhaps more importantly too, the Theory and Principles are suffused with insights relevant, and often central, to the sociology of law.
Of these three aspects, it is usual to emphasize only the first one. Utilitarianism as foundation of moral and legal philosophy has engaged more scholarly attention than have the practical or sociological aspects of Bentham's work. In this brief essay, we seek to reverse the emphasis. We do not mean thereby to belittle the significance of Bentham's principle of utility or the single mindedness with which students of Bentham have variously defended, destroyed and resurrected the principle. Nor do we wish to suggest that the three aspects of Bentham's work are not in constant interplay. Our aim, how ever, is to emphasize the actual and potential sociological contributions, both in approach and substance, which the Theory presages. We shall leave out an evaluation of the principle of utility." and concern ourselves in the main part of the essay with two questions: How feasible and adequate is the Theory (read with the Principles) as an instrument of instructions to the conscientious legislator? In what senses can we regard Bentham's preoccupations in these works as being distinctively sociological? These questions are interrelated but also somewhat distinct.