Macias on Utilitarian Constitutionalism: A Comparison of Bentham & Madison @SIUSchoolofLaw

Steven J. Macias, Southern Illinois University School of Law, is publishing Utilitarian Constitutionalism: A Comparison of Bentham & Madison in volume 11 of the NYU Journal of Law & Liberty (2018). Here is the abstract.

Jeremy Bentham (1748–1832), the father of modern utilitarianism, had much in common, ideologically, with James Madison (1751–1836), the father of the U.S. Constitution. This Article is an attempt to bridge the literature on the two figures and to show that knowledge of Bentham’s constitutional theory is useful in understanding the intellectual environment that produced the U.S. Constitution. Although lawyers’ knowledge of Bentham might be limited to catchphrases such as, “nonsense upon stilts,” or concepts associated with modern surveillance technology like the Panopticon (his design for a prison), Bentham was a serious legal and political philosopher. His interests extended to the United States, so much so, that he engaged in serious analysis of the U.S. Constitution and communicated with leading American politicians, including Madison, Benjamin Franklin, John Jay, Aaron Burr, and John Quincy Adams. This Article demonstrates the similarities of thought between Bentham and Madison and argues that the Constitution is best viewed as a document inspired by, and compatible with, the rationalism represented by English utilitarianism.

Download the article from SSRN at the link.

Postema on Meaning, Analysis, and Exposition: Bentham on the Technology of Thought

Gerald J. Postema, University of North Carolina, Philosophy and Law, is publishing Meaning, Analysis, and Exposition: Bentham on the Technology of Thought in Utility, Publicity, and Law: Essays on Bentham's Moral and Legal Philosophy (Oxford: Oxford University Press, forthcoming). Here is the abstract.

First and foremost a social and legal reformer, Bentham undertook philosophical reflection on language—its nature, use and abuse—in an effort to understand and improve the world. His intellectual energy was trained primarily on law and political ordering, but he looked to every mode of inquiry (“science”) available for analytic and normative tools with which to “rear the fabric of felicity.” The most important of his theoretical innovations, in his view, was his theory of meaning, the heart of which was his analysis of language in terms of “real” and “fictitious” entities. This theory mapped the relations between the domain of thought and physical reality and devised a method of analysis—definition by “paraphrasis”—that enabled systematic ordering of thought. Late in his life, Bentham set out the metaphysical and epistemological foundations of his life’s work, articulating and grounding the philosophical principles that had governed his thinking from the beginning of his career. Reflecting on language and its relation to thought and reality, he produced sophisticated theories of meaning and of the technology of thought—the techniques and principles by which the active mind populates and orders the domain of thought. With this technology, Bentham sought to discipline potentially wayward language and thereby to deprive arbitrary power of one of its favorite weapons.

Download the essay from SSRN at the link.

Galic, Timan, and Koops on Bentham, Deleuze, and Beyond: An Overview of Surveillance Theories From the Panopticon to Participation

Maša Galič, Tjerk Timan, and Bert-Jaap Koops, all of Tilburg University, Tilburg Institute for Law, Technology, and Society, have published Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation at Philos. Technol. (2016), DOI: 10.1007/s13347-016-0219-1. Here is the abstract.

This paper aims to provide an overview of surveillance theories and concepts that can help to understand and debate surveillance in its many forms. As scholars from an increasingly wide range of disciplines are discussing surveillance, this literature review can offer much-needed common ground for the debate. We structure surveillance theory in three roughly chronological-thematic phases. The first two conceptualise surveillance through comprehensive theoretical frameworks, which are elaborated in the third phase. The first phase, featuring Bentham and Foucault, offers architectural theories of surveillance, where surveillance is often physical and spatial, involving centralised mechanisms of watching over subjects. Panoptic structures function as architectures of power, not only directly but also through (self-)disciplining of the watched subjects. The second phase offers infrastructural theories of surveillance, where surveillance is networked and relies primarily on digital rather than physical technologies. It involves distributed forms of watching over people, with increasing distance to the watched and often dealing with data doubles rather than physical persons. Deleuze, Haggerty and Ericson, and Zuboff develop different theoretical frameworks than panopticism to conceptualise the power play involved in networked surveillance. The third phase of scholarship refines, combines, or extends the main conceptual frameworks developed earlier. Surveillance theory branches out to conceptualise surveillance through concepts such as dataveillance, access control, social sorting, peer-to-peer surveillance, and resistance. With the datafication of society, surveillance combines the physical with the digital, government with corporate surveillance, and top-down with self-surveillance. 

Download the article from SSRN at the link.

The Law and Jeremy Bentham

Philip Schofield, University College London, Faculty of Laws, has published The Legal and Political Legacy of Jeremy Bentham at 9 Annual Review of Law and Social Science 51 (2013). Here is the abstract.

The study of Jeremy Bentham (1748–1832), the English legal philosopher and reformer, is being transformed by the appearance of volumes in the new authoritative edition of The Collected Works of Jeremy Bentham. Following revisionist studies in the 1980s and 1990s that reasserted Bentham's credentials as a key figure in the emergence of the liberal tradition, more recent work has explored an increasingly varied range of topics from the perspective of an increasing variety of disciplines, including literary studies, sociology, and history of political thought, as well as law and philosophy. The view of Bentham as a crude authoritarian behaviorist is no longer tenable, and Bentham's place as a major philosopher with relevance for the twenty-first century is being increasingly recognized.

The full text is not available from SSRN.