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<p>Hart thinks that Bentham believes that judicial review achieves legally limited sovereignty, but he argues that Bentham fails to account for it. He criticises that Bentham’s discussion of laws in principem confuses their validity and efficacy when he treats them as ‘the correlate’ of the people’s disposition to limited obedience. Postema agrees with Hart that Bentham considers laws correlative to that disposition. I argue that Bentham thinks that judicial review is an arrangement of conjunctive sovereignty, and that laws <i>in principem</i> cannot be implemented by judicial review. For Bentham, laws <i>in principem</i> are not correlative to the people’s disposition to limited obedience; their efficacy is guaranteed by the public opinion tribunal, which consists in the people’s disposition to criticise the violations of laws <i>in principem</i>. The people’s disposition to limited obedience, the validity of laws <i>in principem</i>, and their efficacy are kept distinct from each other by Bentham.</p>

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Bentham on Laws in principem, Judicial Review, and the Public Opinion Tribunal: A Critique of Hart’s and Postema’s Criticisms

  • 期刊论文

  • 发表日期：

    2025年5月19日

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  • Xiaobo Zhai

摘要

Hart thinks that Bentham believes that judicial review achieves legally limited sovereignty, but he argues that Bentham fails to account for it. He criticises that Bentham’s discussion of laws in principem confuses their validity and efficacy when he treats them as ‘the correlate’ of the people’s disposition to limited obedience. Postema agrees with Hart that Bentham considers laws correlative to that disposition. I argue that Bentham thinks that judicial review is an arrangement of conjunctive sovereignty, and that laws in principem cannot be implemented by judicial review. For Bentham, laws in principem are not correlative to the people’s disposition to limited obedience; their efficacy is guaranteed by the public opinion tribunal, which consists in the people’s disposition to criticise the violations of laws in principem. The people’s disposition to limited obedience, the validity of laws in principem, and their efficacy are kept distinct from each other by Bentham.