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Constitutional Limits and the Public Sphere

A Critical Study of Bentham's Constitutionalism

By: Oren Ben-Dor
Media of Constitutional Limits and the Public Sphere
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Published: 05-12-2000
Format: PDF eBook (?)
Edition: 1st
Extent: 350
ISBN: 9781847310163
Imprint: Hart Publishing
RRP: £76.50
Online price : £61.20
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Loren Epson

About Constitutional Limits and the Public Sphere

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 Based on a close reading of Bentham's unpublished and recently published texts, the argument in the first part shows that a critical analysis of constitutionally limited government formed a central theme of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.

Table Of Contents

Chapter 1. Introduction

Part 1. A Reconstruction of Bentham's Constitutionalism

Chapter 2. Sovereignty and the Nature of the Normativity of Law
Chapter 3. The Relativity and Plurality of Sovereignty
Chapter 4. The Role of the People in determining Constitutional Limits I
Chapter 5. The Role of the People in determining Constitutional Limits II
Chapter 6. The Public Opinion Tribunal-an Analysis of Consensus Formation and the Evolution of Communities

Part 2. Utility, Indeterminacy and Harm

Chapter 7. The Dynamic Connection between Ethics and Politics
Chapter 8. Contemporary Attempts to Bridge the Gap between Ethics and Politics


“This is a sophisticated, densely-argued, original book, which engages in current jurisprudential debates in an informed and subtle manner. [] The interpretation offered demonstrates breadth and imagination and will inevitably be controversial.

...this is a stimulating and thought-provoking book, one which gives ample evidence of the vibrancy of current work on the thought of Jeremy Bentham, and which makes an important contribution to Bentham studies and to jurisprudence in general.

” –  Michael Lobban, University of London, Dublin University Law Journal

“This is a strikingly original piece of work that makes a welcome contribution to legal theory, political theory and Bentham studies. It makes rich use of the new Collected Works and of unpublished manuscripts....well-written ...this excellent book succeeds in its main purpose: it confirms Bentham's importance as a resource for contemporary political-theoretical reflection” –  Stephen G. Engelmann, Political Studies

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