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Vol 23 No 6 June/July 2018

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

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Oren Ben-DorLecturer in Law, University of Southampton

ISBN13: 9781841131115
ISBN: 1841131113
Published: December 2000
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £75.00

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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.

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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.