Bentham Was Right. Was He?

• Main Author: JOSÉ J. JIMÉNEZ SÁNCHEZ
• Format: Article
• Language: English
• Published: Universidad de Jaén 2015-06-01
• Series: Age of Human Rights Journal
• Subjects: general will; civil society; democracy and rule of majority
• Online Access: http://revistaselectronicas.ujaen.es/index.php/TAHRJ/article/view/2314

The importance that the majority principle occupies in Bentham’s theory reveals how it was in tune with what others thought about this principle. I will discuss only the role that this principle holds in Kelsen. For him, the majority principle is central to his articulation of the legal-political order and will have an essential place within the state in shaping the rules of the normative will of the state. The same will not occur with the act of foundation, in which the majority will be relegated by the requirement for unanimity. The difficulty of the problem does not lie in the recognition of the importance of the role that the majority principle occupies but in the way that it is justified. The major differences appear in terms of its legitimacy. This will eventually lead us to ask whether Bentham was right or not in his approach to the majority principle.