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How did Bentham distinguish the question of what the law is from the question of what the law ought to be?

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The Greek philosopher Plato — Philosophy of law Plato, marble portrait bust copied from an original of the 4th century bce; in the Capitoline Museums, Rome.

Jeremy Bentham distinguished between the question of what the law is and what it ought to be to combat the confusion he observed in common-law theory, particularly in the work of William Blackstone.1

Bentham argued that common-law theorists conflated these two inquiries, a mistake he believed stifled necessary legal reform by granting existing laws a false sense of legitimacy based on long-standing acceptance. By failing to separate the descriptive question (what the law is) from the normative question (what the law ought to be), these theorists hindered the ability of the law to adapt to the changing social and economic conditions of the late 18th century.1

Bentham’s insistence on this distinction was foundational to his critique of the common law, which he viewed as an inaccessible system controlled by a professional elite. He maintained that for law to effectively guide human behavior, it must be clearly declared by a sovereign rather than developed through the retrospective, case-by-case methods of judges, which he mockingly termed "dog law". This separation of existence and merit became a central tenet of legal positivism, later echoed by his follower John Austin, who famously declared that the existence of law is one thing and its merit or demerit is another.12