It has been commonly accepted that Bentham, in his theory of constitutional law, aimed to replace the natural opposition of interests which existed between rulers and subjects with an artificial identification or junction of interests. This was brought about by making it the self-interest of rulers to act in such a way as to promote the general interest. In other words, any sinister interest to which the ruler was exposed, that is any desire he might feel to sacrifice the general (...) interest to his own particular interest, had to be nullified: this would leave that part of his interest which coincided with the general interest as the only interest by which his conduct could be determined. (shrink)

Ratio Juris, Volume 35, Issue 1, Page 71-91, March 2022.

According to a well-established interpretive line, the Benthamic judge would be allowed no room for autonomous calculations of utility and his or her task would only be that of mechanically applying substantive law, which expresses the legislator's will. For Gerald Postema, in contrast, Bentham's judge would be granted ample power to decide cases by directly applying the principle of utility. This article criticizes both views, by showing that a adjudication was for Bentham utterly impossible, although this does not mean that (...) judges should be free to decide according to direct utility calculations. Judges must be the tutors of the citizens’ expectations, which, under a system of statute law, will focus on the code. However, they can avoid suboptimality in cases where applying a general rule would not maximize utility, without preponderant damage for law-induced expectations: Bentham's suggestion is that they do so by proposing amendments of the code to the legislature. (shrink)