Adjudication and Expectations
Bentham on the Role of Judges
Bibliographic Data
| ID | 12228481 |
|---|---|
| Authors | Francesco Ferraro (0000-0003-4879-2177, University of Milan, corresponding author) |
| Year | 2013 |
| Volume | 25 |
| Issue | 2 |
| Pages | 140-160 |
| Publication date | 2013-05-14 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | Utilitas (JOURNAL) |
| Journal identifiers | ISSN: 0953-8208 • E-ISSN: 1741-6183 |
| Publisher | Cambridge University Press (CUP) (PUBLISHER) |
| DOI | 10.1017/s0953820812000349 |
| OpenAlex | W1991872650 |
| Language | EN |
| Citations received | 4 |
| References cited | 14 |
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 ‘mechanical’ 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
Adjudication · Code (set theory · Economics · Law and economics · Legislation · Legislator · Legislature · Political science · Power (physics · Set (abstract data type · Statute · Computer Science · Judicial and Constitutional Studies · Law · Legal principles and applications
The Gift of Science
General theory of law and state
The Collected Works of Jeremy Bentham: 'Legislator of the World': Writings on Codification, Law, and Education
The Province of Legislation Determined
Napoleon and His Code
Utility and Democracy
Bentham on the Public Character of Law
Adjudication under Bentham's Pannomion
Law & Geometry
| Unique citing works | 4 |
|---|---|
| Citations per year | 0,57 |
| Citation span | 2019 - 2022 (4) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 4 |