Utility, Predictability, and Rights: Bentham’s Utilitarianism and Constitutional Entitlements
Articolo
Data di Pubblicazione:
2022
Citazione:
Utility, Predictability, and Rights: Bentham’s Utilitarianism and Constitutional Entitlements / F. Ferraro. - In: RATIO JURIS. - ISSN 0952-1917. - 35:1(2022), pp. 38-54. [10.1111/raju.12335]
Abstract:
In Utility, Publicity, and Law, Postema reconstructs Bentham’s attack on the concept of
constitutional and fundamental rights, seen as conditions of legal validity to be employed in the
judicial review of legislation. From his viewpoint, the main reason for this attack was Bentham’s
endorsement of a “demonstrability thesis,” according to which the indeterminacy of constitu-
tional rights hindered their publicity as standards for evaluating judicial decisions. This article
contends that, regarding the grounds of judicial decisions, Bentham’s main concern was with
legal certainty and predictability rather than publicity per se. Moreover, it reveals that although
constitutional entitlements may not comply with Bentham’s analysis of legal rights, they can
fulfill functions that meet the basic requirements of his utilitarianism. Finally, a puzzling aspect
of Bentham’s theory of rights, which regards his rejection of moral entitlements even when it
comes to positive morality, will be disclosed.
Tipologia IRIS:
01 - Articolo su periodico
Elenco autori:
F. Ferraro
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