Constitutional Limits and the Public Sphere: A Critical Study of Bentham's Constitutionalism

Constitutional Limits and the Public Sphere: A Critical Study of Bentham's Constitutionalism

By: Oren Ben-Dor (author)Hardback

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The place of utility as a critical theory of human existence has been largely discredited and its potential undermined in the course of modern debates in ethical,political and legal theory. The central intuition that guides the argument of this book is that both the technical and reductionist methodology associated with utilitarianism do not do justice to the theory which identifies the maximisation of pleasure as the most fundamental self-interest of man. Enlarging upon this intuition, the book is mainly concerned with critical constitutionalism. Based on a close reading of Bentham's unpublished and recently published texts, the argument in the first part shows that a critical analysis of constitutionally limited government formed a central theme of Bentham's utilitarian enterprise. The theme of the author's reconstruction is that, for Bentham, constitutional limits signified socially dynamic relationships within the public sphere and between this sphere and a centralised coercive authority. Because this relationship is socially dynamic, the ever-changing communal-based conception of harm constantly transforms the relationship between law and the community which it governs. This feature reappears in many layers of Bentham's thought, such as his theory of sovereignty, the duty to obey the law, and the motivational basis for forming and transforming a conception of harm within the public sphere. Even the most revisionist of Bentham scholars fail to capture this central unifying theme in Bentham's writings. The second part of the book further develops this reconstruction. It argues that an underdeveloped insight of critical importance characterised Bentham's utilitarianism. This insight helps to elucidate the transient and dynamic connection of ethics to politics. In critically reviewing five contemporary accounts of this connection, utility is shown to have closer affinities with communitarianism. However as a critical theory, utility has more in common with the Habermasian notion of communication and inter-subjectivity than with Humean conventionalism. The utilitarian critic is in a position to transcend not only the simple hedonism with which utilitarianism has always been associated, but also the historically-ridden perspectives which potentially dogmatise the range of human possibilities under a received conception of harm.

About Author

Oren Ben-Dor is a Lecturer in Law at the University of Southampton.


Part 1 A reconstruction of Bentham's constitutionalism: sovereignty and the nature of the normativity of the law - the split nature of sovereignty, the trust which constitutes political authority, the nature of the investing body's judgement, summary and implications for Bentham's legal positivism; the relativity and plurality of sovereignty; the role of the people in determining constitutional limits 1 - a democratic reading of "A Fragment on Government" - Bentham's theory of obligations, the status of a moral duty to obey the law; the role of the people in determining constitutional limits 2 - mature constitutional theory - constitutional law as part of a system of legislation, an analysis of an individual constitutional measure, the relationship between constitutional law and other branches of law, effectiveness and validity/legality and validity; the public opinion tribunal - an analysis of consensus formation and the evolution of communities - the idea of influence, the sympathetic sanction, probity and consensus formation; utility, indeterminacy and harm; the dynamic connection between ethics and politics - the relationship between ethics and politics, negative liberty/positive freedom, intuition, identity and identification, self and community, ethics and politics - a short summary; contemporary attempts to bridge the gap between ethics and politics - Rawl's political liberalism, Dworkin's foundations of liberal equality, Kymlicka's cultural membership, Raz's liberal perfectionism, Tully's politics of cultural recognition, utility, indeterminacy and harm.

Product Details

  • ISBN13: 9781841131115
  • Format: Hardback
  • Number Of Pages: 350
  • ID: 9781841131115
  • weight: 680
  • ISBN10: 1841131113

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