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Constitutional Limits and the Public Sphere - A Critical Study of Bentham's Constitutionalism (Hardcover)
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Constitutional Limits and the Public Sphere - A Critical Study of Bentham's Constitutionalism (Hardcover)
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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Bentham's unpublished and recently published texts, the argument in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.
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