Bentham, Courts and Democracy

5 February 2020 at UNSW Law, Sydney

Speaker: David Lieberman, James W. and Isabel Coffroth Professor of Jurisprudence at the University of California, Berkeley.*

Theories of democracy are abundant, and becoming more so, but none seem to incorporate the administrative nature of the modern state.  Either they ignore it, which makes the theory a form of alternative history, akin to The three-volume Constitutional Code comprised Bentham’s most ambitious contribution to political theory and formed the major intellectual project of the final decade of his long career in law reform (1822-32). My paper examines a neglected feature of this design for representative democracy – Bentham’s lengthy plan for the judicial branch of government. Of the many influential advocates for constitutional democracy of his era, Bentham was unique in devoting so much systematic attention to courts and judicial procedure. Likewise, his constitutional program provided exceptional detail and discussion of a plan for a dense network of local courts providing free and rapid adjudication of legal disputes. Bentham rejected judicial functions now associated with liberal constitutionalism, such as the protection of entrenched rights and the preservation of constitutional norms. Instead, he emphasized the institutions and public resources required to ensure equal access to justice for the weakest members of the community. This emphasis helps clarify Bentham’s larger political strategy for advancing the happiness of the community and the manner in which he understood the specifically democratic character of his judicial plan. The latter theme requires special attention since so much of Bentham’s designs for courts and judicial procedure long predated his embrace of democratic radicalism.

Download Professor Lieberman’s working paper.

The event is free but registration is important to secure your seat.

Our project is co-hosting this talk with the Network for Interdisciplinary Studies of Law.

*Professor Lieberman teaches in the Berkeley Law’s doctoral program in Jurisprudence and Social Policy. His research interests and publications address the history of political and legal theory, the history of the social sciences and their connections with Jurisprudence. His paper, “Bentham, Courts and Democracy”, forms part of a larger current study of Jeremy Bentham’s democratic theory.