Chapter

<i>The Benthamite Constitution—Decline and Fall?</i>

Neil MacCormick

in Questioning Sovereignty

Published in print October 1999 | ISBN: 9780198268765
Published online January 2010 | e-ISBN: 9780191713118 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198268765.003.0005

Series: Law, State, and Practical Reason

The Benthamite Constitution—Decline and Fall?

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Thinkers like David Hume and Jeremy Bentham questioned why utility is only a residual principle, and argued that our attachment to the principle of utility can be accounted for in terms of human psychology. Rather than calling Bentham himself a legal positivist, this chapter suggests that it is more appropriate to characterize him as an anti-naturalist, building a practical philosophy for law reform and remodelling one element in the traditional descriptive account as an element in his overall project. Legal positivism is in intellectual descent from this or from the strands of Germanic neo-Kantian thought that flow into English-language theorizing through scholars such as Hans Kelsen. This chapter considers such thinking particularly in the context of present discussions about Benthamite constitution and constitutional reform in the United Kingdom. Institutional normative order and legal pluralism are also discussed, along with the balance between might and right.

Keywords: Jeremy Bentham; David Hume; utility; constitution; constitutional reform; institutional normative order; legal pluralism

Chapter.  9098 words. 

Subjects: EU Law

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