Rights and Utility

This article aims to evaluate the contribution of Bentham’s ideas to the jurisprudential debate in view of their relevance vis a vis their contemporary reception. The focus is on Bentham’s revolutionary idea of publicity with its spill-over effects on contemporary debates on the rule of law and accountable and transparent governance. As far as the method is concerned, after having examined Bentham’s ideas on the rule of law and the debate they raised, the focus in the second section of this (...) article is specifically on his conception of publicity. Some critical remarks then show that Bentham’s focus on publicity and transparency has been rightly interpreted in the contemporary debate as an important contribution. However, it is their justification that it is judged to be problematic. In fact, the assessment of the fundamental importance of publicity for the rule of law and transparent and accountable governance leads to a critical engagement with contemporary readings of Bentham’s scholarship, in primis that of Gerald Postema, with a development of the latter’s republican interpretation. The direction of travel that is proposed is towards a more liberal republicanism. The article not only shows how Bentham’s contribution should be revaluated in view of contemporary interpretations, but also proposes directions for further research developments according to which contemporary conceptions of regulation need to take a reflexive turn while aiming at legitimate legality at the same time. (shrink)

I suggest a new role for authority and interest in the theory of right: Rights can be explicated as sets of prohibitions, permissions and commands, and they must be justified by interests. I argue as follows: (1) The two dominant theories of right—“Will Theory” and “Interest Theory”—have certain standard problems. (2) These problems are systematic: Will Theory’s criterion of the ability to enforce a duty is either false or empty outside of its original legal context, whereas Interest Theory includes in (...) the definition of a right what actually belongs to the justification of the practice within which that right is assigned. (3) I recast the connection between authority, interests and rights in a way that avoids each theory’s standard problem. (4) The resulting theory also has three further advantages: It analyzes rights in terms of very basic and familiar concepts; it mirrors the understanding of rights in actual public discourse, and it is compatible with a wide selection of moral theories. Since its core is about a specific use of modal auxiliary verbs, I call this new theory the “Modal Theory of Right.”. (shrink)

In a recent article, Xiaofei Liu seeks to defend, from the standpoint of consequentialism, the Doctrine of Doing and Allowing: DDA. While there are various conceptions of DDA, Liu understands it as the view that it is more difficult to justify doing harm than allowing harm. Liu argues that a typical harm doing involves the production of one more evil and one less good than a typical harm allowing. Thus, prima facie, it takes a greater amount of good to justify (...) doing a certain harm than it does to justify allowing that same harm. In this reply, I argue that Liu fails to show, from within a consequentialist framework, that there is an asymmetry between the evils produced by doing and allowing harm. I conclude with some brief remarks on what may establish such an asymmetry. (shrink)

Leslie Allan demonstrates how human rights are unproblematic for utilitarian moral theory and how, upon consideration, utilitarianism turns out to be the best theory for justifying human rights. Using case studies of historical and contemporary human rights conventions and recent psychological research, he argues how our concept of human rights is founded on the satisfaction of fundamental human needs and the consequences for human happiness.