Adjudication and Expectations: Bentham on the Role of Judges

Abstract

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.