Utility, Predictability, and Rights: Bentham’s Utilitarianism and Constitutional Entitlements

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 constitutional 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.