Ben-Dor, Oren Isaac Moshe; (1997) Constitutional limits and the public sphere: A critical study of Bentham's legal and constitutional theory. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

This thesis is a reconstruction of Jeremy Bentham's legal and constitutional theory. It is based on a close reading of Bentham's unpublished and newly published texts, as well as on a re-reading of his better known works. It is argued that an analysis of constitutionally limited government formed a central theme of Bentham's theoretical arguments, whilst the establishment of a constitutionally limited government, based on representative democracy, was a major practical concern for him. The theme of constitutional limits brings together many of Bentham's specific preoccupations during his lifetime. Scholarship in legal, constitutional, and political theory, has hitherto failed to establish a unified conception of Bentham's thought. The main argument of this thesis is that, for Bentham, constitutional limits were socially dynamic in nature. These limits were determined and effectuated by a popular collective judgement with regard to the imposition of obligations within a given community. The people themselves demarcated the extent to which centralised coercion might be exercised. A popular collective judgement also signified a change in the locus of obligations from centralised institutions to the community. It is argued that the connection between constitutional limits and the public sphere constituted the common, unifying rationale of Bentham's legal and political enterprise. Constitutional limits were established as a result of an interaction between, on the one hand, officials, who were responsible for enacting a system of legislation and rules, and, on the other hand, the people, who passed judgement on the activities of these officials. This interaction determined the social justification, and hence the limits, of authority in any social group. The limits of authority, in turn, determined the sphere of individual inviolability. The relationship between constitutional limits and the public sphere is discussed in relation to Bentham's ideas about sovereignty, the duty to obey the law, and the dichotomy between legislation and private ethics. The connections which are established and defended between constitutional limits and private ethics, as well as between private ethics and communal consensus formation, are novel for legal and political theory in general, and for Bentham scholarship in particular. The idea of constitutional limits is, moreover, discussed in the context of the potential evolution of communities. In this context, constitutional limits are conceived as a medium through which a community might evolve from being a community of law into what Bentham called a "community of sympathy", the latter being largely based on self-government.

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