The institutionalisation of public opinion: Bentham's proposed constitutional role for jury and judges

Ben-Dor, Oren (2007) The institutionalisation of public opinion: Bentham's proposed constitutional role for jury and judges. Legal Studies, 27 (2), 216-235. (doi:10.1111/j.1748-121X.2007.00050.x).

Abstract

Jeremy Bentham’s constitutional writings are innovative and radical. Unlike constitutional arrangements that sought to attain virtue though the institutional complexity entailed by the doctrine of Separation of Powers, Bentham’s constitution was socially dynamic and designed to facilitate constant and efficient interaction between amorphous public opinion and officials. Furthermore, it was in constant and free interaction between public opinion and officials that Bentham envisioned the determination and effectuation of constitutional limits, namely both the justification and limitation of coercion. The paper begins by outlining Bentham’s principles for a good constitution. It then discusses in detail Bentham’s proposals for incorporating public opinion into legal proceedings through radical reform to the jury. Such incorporation, he believed, would intensify and help to focus public gaze by which officials’ aptitude, and as a result a good government, would be attained with the minimal expense. The proposed institutionalisation of public opinion enabled Bentham to entrust the judiciary with a constitutional role. Judges were conceived as the interface between officialdom and focused manifestations of popular sovereignty. So entrusted, judges could determine constitutional limits, thus protecting against abuse of power. The reforms discussed in this paper are a testimony of the extent to which Bentham saw virtue both in the people and in free public debate.

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