Legal Philosophy in Legal Philosophy in the English Traditionthe English Tradition

Zhang FanZhang Fan

Characteristics of English Characteristics of English Legal TraditionLegal Tradition

EmpiricismEmpiricism UtilitarianismUtilitarianism Inductive – Analogical legal Inductive – Analogical legal

reasoningreasoning PositivismPositivism

Major ThinkersMajor Thinkers

Francis BaconFrancis Bacon John LockeJohn Locke William BlackstoneWilliam Blackstone Jeremy BenthamJeremy Bentham John Stuart MillJohn Stuart Mill John AustinJohn Austin H.L.A. HartH.L.A. Hart

EmpiricismEmpiricism

In legal philosophy an approach to legal In legal philosophy an approach to legal theory which rejects all judgments of value theory which rejects all judgments of value and regards only those statements which can and regards only those statements which can be objectively verifiable as being true be objectively verifiable as being true propositions about the nature of law. Legal propositions about the nature of law. Legal empiricism is based on an inductive process empiricism is based on an inductive process of reasoning requiring the empirical of reasoning requiring the empirical observation of facts and the formulation of a observation of facts and the formulation of a hypothesis, which is then applied to the facts hypothesis, which is then applied to the facts before an explanatory theory of legal before an explanatory theory of legal phenomena can be postulated.phenomena can be postulated.

British EmpiricismBritish Empiricism

Reaction to Descartes's rationalism Reaction to Descartes's rationalism (innate ideas) (innate ideas)

Stressed importance of experience Stressed importance of experience Skeptical of absolute certainty Skeptical of absolute certainty Accepted Bacon's view of starting Accepted Bacon's view of starting

with observations with observations Followed Newton in creating laws of Followed Newton in creating laws of

nature nature

Frances BaconFrances Bacon

Knowledge is Knowledge is Power.Power.

Inductive way of Inductive way of learninglearning

Beginning of Beginning of EmpiricismEmpiricism

Many faces of Many faces of BaconBacon

EssaysEssays

ExperienceExperience

Sir Frances Bacon was the son of Sir Nicholas Sir Frances Bacon was the son of Sir Nicholas Bacon, born at York House, the Strand in 1561. Bacon, born at York House, the Strand in 1561. He was ambitious, wise and to all accounts a liHe was ambitious, wise and to all accounts a little mean. At the age of 12 he studied at Trinity ttle mean. At the age of 12 he studied at Trinity College, Cambridge and at the age of 15 he waCollege, Cambridge and at the age of 15 he was studying law at Grays Inn, London. He then ss studying law at Grays Inn, London. He then spent three years in pent three years in FranceFrance attached to the Briti attached to the British Embassy but returned home when his fathesh Embassy but returned home when his father died. He furthered his studies in law and was r died. He furthered his studies in law and was admitted to the bar in 1582. He became a Memadmitted to the bar in 1582. He became a Member of Parliament in 1584.ber of Parliament in 1584.

ExperienceExperience

In 1606 he married the 14 year old heiress Alice In 1606 he married the 14 year old heiress Alice Barnham. There were no children to the marriBarnham. There were no children to the marriage and there is some evidence that Bacon waage and there is some evidence that Bacon was homosexual.s homosexual.

He was appointed solicitor-general of England He was appointed solicitor-general of England (1607), Treasurer of Gray's Inn (1608), Attorney (1607), Treasurer of Gray's Inn (1608), Attorney General (1613), Lord Keeper of the Great Seal General (1613), Lord Keeper of the Great Seal (1616-17) and created Baron Verulam, Lord Ch(1616-17) and created Baron Verulam, Lord Chancellor (1617-1618). In 1621 he received his grancellor (1617-1618). In 1621 he received his greatest honor being made Viscount St Albans.eatest honor being made Viscount St Albans.

InductionInduction

The method of reasoning that moves The method of reasoning that moves from the particular to the general. from the particular to the general. After a large number of individual After a large number of individual instances are observed, a theme of instances are observed, a theme of principle common to all of them might principle common to all of them might be inferred. Deductive reasoning be inferred. Deductive reasoning starts with some assumption, whereas starts with some assumption, whereas inductive reasoning does not. inductive reasoning does not. Inductive reasoning proceeds from Inductive reasoning proceeds from the particular to the general.the particular to the general.

WritingsWritings

Bacon wrote on law, government, science and Bacon wrote on law, government, science and philosophy . Publications include his philosophy . Publications include his EssaysEssays in in 1597, 1597, The Advancement of LearningThe Advancement of Learning 1605, 1605, NovNovum Organumum Organum 1620, 1620, Historia Ventorum,Historia Ventorum, 1622, 1622, HHistoria Vitae et Mortis istoria Vitae et Mortis and and De Augmentis ScientDe Augmentis Scientiumium an expansion to The Advancement of Lear an expansion to The Advancement of Learning, (1623) and ning, (1623) and ApothegmsApothegms 1624. He died in 1 1624. He died in 1626.626. New Atlantis New Atlantis and and Island of ScientistsIsland of Scientists were were published in this year and in 1629 published in this year and in 1629 The WorldThe World w was published. as published.

Bacon and EmpiricismBacon and Empiricism

““This kind of degenerate learning did chiefly reign This kind of degenerate learning did chiefly reign amongst the Schoolmen: who having sharp and stramongst the Schoolmen: who having sharp and strong wits, and abundance of leisure, and small varieong wits, and abundance of leisure, and small variety of reading, but their wits being shut up in the celty of reading, but their wits being shut up in the cells of a few authors (chiefly Aristotle their dictator) ls of a few authors (chiefly Aristotle their dictator) as their persons were shut up in the cells of monastas their persons were shut up in the cells of monasteries and colleges, and knowing little history, eitheeries and colleges, and knowing little history, either of nature or time, did out of no great quantity of r of nature or time, did out of no great quantity of matter and infinite agitation of wit spin out unto thmatter and infinite agitation of wit spin out unto those laborious webs of learning which are extant in tose laborious webs of learning which are extant in their books.heir books. “ “

Against AristotleAgainst AristotleNote that Bacon is arguing against the Note that Bacon is arguing against the kind of learning based simply on studying kind of learning based simply on studying words (books) that have already been words (books) that have already been written--against simply chewing over and written--against simply chewing over and over the old texts, in his case, the writings over the old texts, in his case, the writings of of Aristotle-Aristotle--rather than studying "matter" -rather than studying "matter" itself. Bacon is arguing that people in his itself. Bacon is arguing that people in his time (1605) should be studying nature time (1605) should be studying nature itself, not arguing over what itself, not arguing over what Aristotle and his Renaissance followers anAristotle and his Renaissance followers and interpreters (called the Scholastics)d interpreters (called the Scholastics) meant in his essays about nature and the meant in his essays about nature and the world. Hence, Bacon is arguing for world. Hence, Bacon is arguing for empiricism.empiricism.

John Locke (1632-1704)John Locke (1632-1704)

Born at Wrington, a village Born at Wrington, a village in Somerset, on August in Somerset, on August 29, 1632 29, 1632

Son of a country solicitor Son of a country solicitor and small landowner and small landowner

Delicate healthDelicate health No significant publication No significant publication

until at the age of 57until at the age of 57 Made trips to France, Made trips to France,

Holland and Germany Holland and Germany (didn’t like Germany b/c (didn’t like Germany b/c “cold weather and warm “cold weather and warm drinking”)drinking”)

Birth of an EssayBirth of an EssayIn the winter of 1670, five or six friends were In the winter of 1670, five or six friends were conversing in his room, probably in London. The conversing in his room, probably in London. The topic was the "principles of morality and revealed topic was the "principles of morality and revealed religion," but difficulties arose and no progress was religion," but difficulties arose and no progress was made. Then, as he recalled, "it came into my made. Then, as he recalled, "it came into my thoughts that we took a wrong course, and that thoughts that we took a wrong course, and that before we set ourselves upon inquiries of that before we set ourselves upon inquiries of that nature, it was necessary to examine our own nature, it was necessary to examine our own abilities, and see what objects our understandings abilities, and see what objects our understandings were, or were not, fitted to deal with." At the were, or were not, fitted to deal with." At the request of his friends, Locke agreed to set down request of his friends, Locke agreed to set down his thoughts on this question at their next meeting, his thoughts on this question at their next meeting, and he expected that a single sheet of paper and he expected that a single sheet of paper would suffice for the purpose. would suffice for the purpose.

The The EssayEssay

The The EssayEssay is divided into four books; is divided into four books; the first is a polemic against the the first is a polemic against the doctrine of innate principles and doctrine of innate principles and ideas. The second deals with ideas, ideas. The second deals with ideas, the third with words, and the fourth the third with words, and the fourth with knowledge. with knowledge.

IdeasIdeas

All the objects of the understanding are All the objects of the understanding are described as described as ideasideas, and ideas are spoken , and ideas are spoken of as being in the mind (Intro. 2; Bk. 2:1:5; of as being in the mind (Intro. 2; Bk. 2:1:5; Bk. 2:8:8). Locke's first problem, therefore, Bk. 2:8:8). Locke's first problem, therefore, is to trace the origin and history of ideas, is to trace the origin and history of ideas, and the ways in which the understanding and the ways in which the understanding operates upon them, in order that he may operates upon them, in order that he may be able to see what knowledge is and how be able to see what knowledge is and how far it reaches. This wide use of the term far it reaches. This wide use of the term "idea" is inherited from Descartes. "idea" is inherited from Descartes.

Origin of IdeasOrigin of Ideas

Locke tried to apply the Baconian methods to Locke tried to apply the Baconian methods to the pursuit of his own philosophical aims. In the pursuit of his own philosophical aims. In order to discover how the human order to discover how the human understanding achieves understanding achieves knowledgeknowledge, we must , we must trace that knowledge to its origins in our trace that knowledge to its origins in our experience. experience.

Locke's investigation into human knowledge Locke's investigation into human knowledge began by asking how we acquire the basic began by asking how we acquire the basic materials out of which that knowledge is materials out of which that knowledge is composed, our composed, our ideasideas. Ideas, then, are the . Ideas, then, are the immediate objects of all thought, the meaning immediate objects of all thought, the meaning or signification of all words, and the mental or signification of all words, and the mental representatives of all things. representatives of all things.

Ideas of Sensation and Ideas of Sensation and Ideas of ReflectionIdeas of Reflection

Locke proposed the fundamental principle of Locke proposed the fundamental principle of empiricismempiricism: : all of our knowledge and ideas arise from expall of our knowledge and ideas arise from experienceerience. (. (EssayEssay II i 2 II i 2) The initially empty room of the ) The initially empty room of the mind is furnished with ideas of two sorts: first, mind is furnished with ideas of two sorts: first, by by sensationsensation we obtain ideas of things we we obtain ideas of things we suppose to exist outside us in the physical suppose to exist outside us in the physical world; second, by world; second, by reflectionreflection we come to we come to have ideas of our own mental operations. have ideas of our own mental operations. Thus, for example, "hard," "red," "loud," Thus, for example, "hard," "red," "loud," "cold," "sweet," and "aromatic" are all ideas of "cold," "sweet," and "aromatic" are all ideas of sensation, while "perceiving," "remembering," sensation, while "perceiving," "remembering," "abstracting," and "thinking" are all ideas of "abstracting," and "thinking" are all ideas of reflection. reflection.

Tabula RasaTabula Rasa As understood by Locke, As understood by Locke, tabula rasatabula rasa

meant that the mind of the individual was meant that the mind of the individual was born "blank", and it also emphasized the born "blank", and it also emphasized the individual's freedom to author his own soul. individual's freedom to author his own soul. Each individual was free to define the Each individual was free to define the content of his character -- but his basic content of his character -- but his basic identity as a member of the human species identity as a member of the human species cannot be so altered. It is this presumption cannot be so altered. It is this presumption of a free, self-authored mind combined with of a free, self-authored mind combined with an immutable human nature, from which an immutable human nature, from which the Lockean doctrine of "natural" rights the Lockean doctrine of "natural" rights derives. derives.

Tabula Rasa- Another ViewTabula Rasa- Another View

The modern definition of The modern definition of tabula rasatabula rasa, , however, is fundamentally altered from the however, is fundamentally altered from the Lockean meaning. While the idea that the Lockean meaning. While the idea that the individual can be changed remains, the individual can be changed remains, the power to effect that change is now ascribed power to effect that change is now ascribed to society, not the self -- and that power to society, not the self -- and that power extends to the whole of human nature. Under extends to the whole of human nature. Under this view, one can shape the individual with this view, one can shape the individual with few, if any, restrictions by changing the few, if any, restrictions by changing the individual's environment, and thus sensory individual's environment, and thus sensory experiences. experiences.

Scottish ViewScottish View It cannot be denied that Locke does It cannot be denied that Locke does

proceed very largely in the way of proceed very largely in the way of observation; but it is a curious observation; but it is a curious circumstance that he nowhere professes circumstance that he nowhere professes to follow the method of induction; and his to follow the method of induction; and his great work may be summarily great work may be summarily represented as an attempt to establish by represented as an attempt to establish by internal facts the preconceived theory, internal facts the preconceived theory, that all our ideas are derived from that all our ideas are derived from sensation and reflection. To the Scottish sensation and reflection. To the Scottish school belongs the merit of being the first, school belongs the merit of being the first, avowedly and knowingly, to follow the avowedly and knowingly, to follow the inductive method, and to employ it inductive method, and to employ it systematically in psychological systematically in psychological investigation. ---James McCosh investigation. ---James McCosh

Legal IdeasLegal Ideas

Two Treatises of Government had two Two Treatises of Government had two purposes: to refute the doctrine of the purposes: to refute the doctrine of the divine and absolute right of the Monarch divine and absolute right of the Monarch and to establish a theory which would and to establish a theory which would reconcile the liberty of the citizen with reconcile the liberty of the citizen with political order. political order.

Natural law and natural rightsNatural law and natural rights Constitutional MonarchyConstitutional Monarchy Early version of social ContractEarly version of social Contract Unity of powerUnity of power

Blackstone, Sir William Blackstone, Sir William (1723-1780)(1723-1780)

British jurist and British jurist and legal scholar, legal scholar, whose work whose work Commentaries on Commentaries on the Laws of Englandthe Laws of England was used for more was used for more than a century as than a century as the foundation of the foundation of all legal education all legal education in Great Britain and in Great Britain and the United States. the United States.

Blackstone, Sir William Blackstone, Sir William (continued)(continued)

Father died 4 months after his birth, Father died 4 months after his birth, mother died when he was 12, raised by his mother died when he was 12, raised by his uncleuncle

Entered Oxford at the age of 15, was some Entered Oxford at the age of 15, was some sort of a poetsort of a poet

Had a small law firm- unsuccessfulHad a small law firm- unsuccessful Appointed to many governmental positionsAppointed to many governmental positions First Professor of English Law at OxfordFirst Professor of English Law at Oxford Obese, near-sighted, bad healthObese, near-sighted, bad health Justice of the Court of King’s Bench till Justice of the Court of King’s Bench till

passed awaypassed away

Intellectual CircleIntellectual Circle

Blackstone spoke and wrote in the times of Blackstone spoke and wrote in the times of Oliver Goldsmith and Samuel Johnson, Oliver Goldsmith and Samuel Johnson, Edward Gibbon and Edward Gibbon and Adam SmithAdam Smith, David , David Hume and Hume and Benjamin FranklinBenjamin Franklin. Cultural . Cultural institutions such as the British Museum, that institutions such as the British Museum, that today seem ancient, were in their infancy. today seem ancient, were in their infancy. The law then, as now, was rooted in The law then, as now, was rooted in everyday life but removed by lawyers and everyday life but removed by lawyers and courts from most people's lives. courts from most people's lives. Blackstone's task, and his ultimate Blackstone's task, and his ultimate accomplishment, was to open the law to accomplishment, was to open the law to many for whom it had been closed.many for whom it had been closed.

BlackstoneBlackstone

On October 25, 1758 as William On October 25, 1758 as William Blackstone approached the podium in the Blackstone approached the podium in the Oxford lecture hall he knew he was a Oxford lecture hall he knew he was a failure. The thirty year old lawyer, failure. The thirty year old lawyer, nearsighted, already portly, chronically ill, nearsighted, already portly, chronically ill, now ready to read his notes in his grating now ready to read his notes in his grating voice, had spent the last seven years voice, had spent the last seven years before the Bar in London with, a before the Bar in London with, a sympathetic biographer wrote, "little sympathetic biographer wrote, "little notice or practice."notice or practice."

SuccessSuccessDespite his initial misgivings, the lectures Despite his initial misgivings, the lectures were an immediate success, breathing life were an immediate success, breathing life into a dry and poorly taught subject. into a dry and poorly taught subject. Blackstone's lectures were published as Blackstone's lectures were published as the Commentaries in England between the Commentaries in England between 1765 and 1769. An American edition 1765 and 1769. An American edition published in Philadelphia between 1771-72 published in Philadelphia between 1771-72 sold out its first printing of 1,4OO and a sold out its first printing of 1,4OO and a second edition soon appeared. The second edition soon appeared. The Commentaries were translated into French, Commentaries were translated into French, German and Russian. During his lifetime German and Russian. During his lifetime the work earned an estimated 14,OOO the work earned an estimated 14,OOO pounds, an enormous amount of money at pounds, an enormous amount of money at the time.the time.

URLURL

Blackstone's Commentaries - Blackstone's Commentaries - IntroductionIntroduction

The document is located at this The document is located at this URL : URL : http://www.yale.edu/lawweb/avalon/http://www.yale.edu/lawweb/avalon/blackstone/introa.htm#1blackstone/introa.htm#1..

On Individual FreedomsOn Individual Freedoms

"To bereave a man of life, or by violence to con"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, wfiscate his estate, without accusation or trial, would be so gross and notorious an act of despoould be so gross and notorious an act of despotism, as must once convey the alarm of tyranny tism, as must once convey the alarm of tyranny throughout the whole kingdom. But confinemethroughout the whole kingdom. But confinement of the person, by secretly hurrying him to gont of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgottal, where his sufferings are unknown or forgotten, is a less public, a less striking, and thereforen, is a less public, a less striking, and therefore a more dangerous engine of arbitrary governe a more dangerous engine of arbitrary government."ment."

Themes of the Themes of the CommentariesCommentaries

Book I covered the "Rights of Persons," a sweeping Book I covered the "Rights of Persons," a sweeping examination of British government, the clergy, the examination of British government, the clergy, the royal family, marriage, children, corporations and royal family, marriage, children, corporations and the "absolute rights of individuals." Book II, on thethe "absolute rights of individuals." Book II, on the "Rights of Things," should more properly have bee "Rights of Things," should more properly have been called the Rights that people have in Things. Boon called the Rights that people have in Things. Book III covers "Private Wrongs," today known as torts.k III covers "Private Wrongs," today known as torts. Book IV covers "Public Wrongs," crimes and punis Book IV covers "Public Wrongs," crimes and punishment, including offenses against God and religion.hment, including offenses against God and religion.

Reason and FreewillReason and Freewill Law flowed from the superior to the inferior, Law flowed from the superior to the inferior,

be it God, monarch or nation, and the be it God, monarch or nation, and the inferior was compelled to obey. He inferior was compelled to obey. He acknowledged humans as "the nobelest of acknowledged humans as "the nobelest of all sublunary beings, a creature endowed all sublunary beings, a creature endowed with both reason and freewill" but decreed with both reason and freewill" but decreed that there were "certain immutable laws of that there were "certain immutable laws of human nature, whereby freewill is in some human nature, whereby freewill is in some degree regulated and restrained" and that degree regulated and restrained" and that God gave "the faculty of reason to discover God gave "the faculty of reason to discover the purport of those laws."the purport of those laws."

Illogical law open to Illogical law open to criticismcriticism

"The king," he wrote, "is not only incapa"The king," he wrote, "is not only incapable of doing wrong, but even of thinking ble of doing wrong, but even of thinking wrong: in him there is no folly or weaknewrong: in him there is no folly or weakness." A law could, however, could be illogiss." A law could, however, could be illogical and therefore irrational and open to cal and therefore irrational and open to criticism.criticism.

Criticism by BenthamCriticism by Bentham

Philosopher Jeremy Bentham attended Philosopher Jeremy Bentham attended Blackstone's lectures as a student. Blackstone's lectures as a student. Blackstone, he wrote, was a "formal, Blackstone, he wrote, was a "formal, precise and affected lecturer - just what precise and affected lecturer - just what you would expect from the character of you would expect from the character of his writings: cold, reserved and wary." his writings: cold, reserved and wary." Blackstone's comments on the King, Blackstone's comments on the King, Bentham said "stuck in my stomach." Bentham said "stuck in my stomach." Bentham went on to be Blackstone's Bentham went on to be Blackstone's harshest enemy, denouncing his work harshest enemy, denouncing his work as "ignorance on stiltsas "ignorance on stilts."."

InfluenceInfluence

American RevolutionAmerican Revolution ““Inalienable rights”Inalienable rights” TortsTorts American ConstitutionalismAmerican Constitutionalism Study of Common LawStudy of Common Law

UtilitarianismUtilitarianism The approach of moral philosophy which The approach of moral philosophy which

regards an act, measure or social or legal regards an act, measure or social or legal arrangement as being good or just if its arrangement as being good or just if its overall effect is to advance the happiness overall effect is to advance the happiness or general welfare of the majority of or general welfare of the majority of persons in society. Utilitarianism is a goal-persons in society. Utilitarianism is a goal-based approach to the problem of justice in based approach to the problem of justice in the distribution of the benefits and burdens the distribution of the benefits and burdens of society, in that it gives precedence to the of society, in that it gives precedence to the advancement of the collective good or advancement of the collective good or welfare, even if this may involve welfare, even if this may involve extinguishing or curtailing the rights and extinguishing or curtailing the rights and political and other liberties of the individual.political and other liberties of the individual.

Rule utilitarianism v Act Rule utilitarianism v Act UtilitarianismUtilitarianism

Rule utilitarianism maintains that a behRule utilitarianism maintains that a behavioral code or rule is morally right if the avioral code or rule is morally right if the consequences of adopting that rule are consequences of adopting that rule are more favorable than unfavorable to evermore favorable than unfavorable to everyone. It is contrasted with yone. It is contrasted with act utilitarianiact utilitarianismsm which maintains that the morality of which maintains that the morality of each action is to be determined in relatieach action is to be determined in relation to the favorable or unfavorable conseon to the favorable or unfavorable consequences that emerge from that action.quences that emerge from that action.

Rule Utilitarianism v Act Rule Utilitarianism v Act utilitarianism (continued)utilitarianism (continued)

Rule-utilitarianism attempts to avoid some of Rule-utilitarianism attempts to avoid some of the problems with act-utilitarianism. For examthe problems with act-utilitarianism. For example, with act-utilitarianism it seems that we shple, with act-utilitarianism it seems that we should have to give up television for charity work ould have to give up television for charity work if it was determined that each of our leisure mif it was determined that each of our leisure moments would yield greater social benefit if we oments would yield greater social benefit if we did charity work instead. With rule-utilitarianisdid charity work instead. With rule-utilitarianism, though, a rule prohibiting leisure time is nom, though, a rule prohibiting leisure time is not socially beneficial; hence we are not required t socially beneficial; hence we are not required to abandon leisure for charity.to abandon leisure for charity.

Jeremy Bentham (1748-Jeremy Bentham (1748-1832)1832)

Jeremy BenthamJeremy Bentham

QuotationQuotation LifeLife UtilitarianismUtilitarianism Principle of UtilityPrinciple of Utility Hedonic CalculusHedonic Calculus

QuotationQuotation

"Nature has placed mankind under "Nature has placed mankind under the governance of two sovereign the governance of two sovereign masters, pain and pleasure. It is for masters, pain and pleasure. It is for them alone to point out what we them alone to point out what we ought to do as well as to determine ought to do as well as to determine what we shall do.  On the one hand, what we shall do.  On the one hand, the standard of right and wrong, on the standard of right and wrong, on the other the chain of causes and the other the chain of causes and effects, are fastened to their throne." effects, are fastened to their throne."

LifeLifeEccentric man, critic of Blackstone his Eccentric man, critic of Blackstone his teacher, father of Utilitarianism,critical teacher, father of Utilitarianism,critical of the “natural language” of of the “natural language” of Declaration of Independence and Declaration of Independence and French Bill of rights, Social Reformer, French Bill of rights, Social Reformer, visited Russia, firs student was French visited Russia, firs student was French and made him known, a good friend and made him known, a good friend of economist Richardo, mummified of economist Richardo, mummified body, inventor of words (international, body, inventor of words (international, maximize, codification, post-prandial maximize, codification, post-prandial vibrations), friend of JS Mill’s father.vibrations), friend of JS Mill’s father.

UtilitarianismUtilitarianism

Maximum felicitasMaximum felicitas - "greatest happiness - "greatest happiness for the greatest number“for the greatest number“

(In 1768 that Bentham came across a (In 1768 that Bentham came across a political tract by Joseph Priestley in which political tract by Joseph Priestley in which the the phrase "the greatest happiness for the the phrase "the greatest happiness for the greatest number" was invoked.  the greatest number" was invoked.  Intrigued, Bentham followed this up by Intrigued, Bentham followed this up by reading Hume, Helvetius and Beccaria and reading Hume, Helvetius and Beccaria and slowly began forming his utilitarian ideas.) slowly began forming his utilitarian ideas.)

Principle of UtilityPrinciple of Utility

"that property in any object, whereby it ten"that property in any object, whereby it tends to produce benefit, advantage, pleasure,ds to produce benefit, advantage, pleasure, good, or happiness...or...to prevent the ha good, or happiness...or...to prevent the happening of mischief, pain, evil, or unhappinppening of mischief, pain, evil, or unhappiness" ess"

– Jeremy BenthamJeremy BenthamIntroduction to the Principles of Morals and LegislationIntroduction to the Principles of Morals and Legislation (1 (1789) 789)

Hedonic CalculusHedonic Calculus a method of working out the sum total of pleasure a method of working out the sum total of pleasure

and pain produced by an act, and thus the total and pain produced by an act, and thus the total value of its consequences; also called the value of its consequences; also called the felicific felicific calculuscalculus; sketched by Bentham in chapter 4 of his ; sketched by Bentham in chapter 4 of his Introduction to the Principles of Morals and Introduction to the Principles of Morals and LegislationLegislation 1789. When determining what action is 1789. When determining what action is right in a given situation, we should consider the right in a given situation, we should consider the pleasures and pains resulting from it, in respect of pleasures and pains resulting from it, in respect of their their intensity, duration, certainty, propinquity, intensity, duration, certainty, propinquity, fecundityfecundity (the chance that a pleasure is followed by (the chance that a pleasure is followed by other ones, a pain by further pains)other ones, a pain by further pains), purity, purity (the (the chance that pleasure is followed by pains and vice chance that pleasure is followed by pains and vice versa), and versa), and extentextent (the number of persons affected). (the number of persons affected).

Comments by others Comments by others

William Hazlitt, "Bentham has lived William Hazlitt, "Bentham has lived for the last forty years in a house in for the last forty years in a house in Westminster...like an anchorite in a Westminster...like an anchorite in a cell, reducing law to a system, and cell, reducing law to a system, and the mind of man to a machine." the mind of man to a machine."

Karl Marx regarded him as a "purely Karl Marx regarded him as a "purely English phenomenon" and "a genius English phenomenon" and "a genius by way of bourgeois stupidity." by way of bourgeois stupidity." (Marx, 1867). (Marx, 1867).

John Stuart MillJohn Stuart Mill(1806 - 1873)(1806 - 1873)

John Stuart Mill, born John Stuart Mill, born in London on May in London on May 20, 1806, the eldest 20, 1806, the eldest of son of James Mill, of son of James Mill, educated entirely by educated entirely by his father, and was his father, and was deliberately shielded deliberately shielded from association with from association with other boys of his other boys of his age. age.

J.S. MillJ.S. Mill He learned Greek at three, Latin a little later; by the He learned Greek at three, Latin a little later; by the

age of 12, he was a competent logician and by 16 a age of 12, he was a competent logician and by 16 a well-trained economist. At 20 he suffered a nervous well-trained economist. At 20 he suffered a nervous breakdown that persuaded him that more was breakdown that persuaded him that more was needed in life than devotion to the public good and needed in life than devotion to the public good and an analytically sharp intellect. Having grown up a an analytically sharp intellect. Having grown up a utilitarian, he now turned to Coleridge, Wordsworth utilitarian, he now turned to Coleridge, Wordsworth and Goethe to cultivate his aesthetic sensibilities. and Goethe to cultivate his aesthetic sensibilities. From 1830 to his death, he tried to persuade the From 1830 to his death, he tried to persuade the British public of the necessity of a scientific British public of the necessity of a scientific approach to understanding social, political and approach to understanding social, political and economic change while not neglecting the insights economic change while not neglecting the insights of poets and other imaginative writers. of poets and other imaginative writers.

Major WorksMajor Works

System of LogicSystem of Logic 1843 1843 Principles of Political Principles of Political

EconomyEconomy 1848 1848 On LibertyOn Liberty 1859 1859 UtilitarianismUtilitarianism 1861 1861 The Subjection of WomenThe Subjection of Women

1869 1869 Three Essays on ReligionThree Essays on Religion

18741874

On LibertyOn Liberty

Mill lays down "one very simple principle" to Mill lays down "one very simple principle" to govern the use of coercion in society - and by govern the use of coercion in society - and by coercion he means both legal penalties and the coercion he means both legal penalties and the operation of public opinion; it is that we may only operation of public opinion; it is that we may only coerce others in self-defense - either to defend coerce others in self-defense - either to defend ourselves, or to defend others from harm. ourselves, or to defend others from harm. Crucially, this rules out paternalistic interventions Crucially, this rules out paternalistic interventions to save people from themselves, and ideal to save people from themselves, and ideal interventions to make people behave "better".interventions to make people behave "better".

Mill on LawMill on Law Law is a means to protect individual Law is a means to protect individual

freedoms: law should specify individual freedoms: law should specify individual rights and protect them; protection of rights and protect them; protection of individual rights should be written into the individual rights should be written into the constitutionconstitution

Law should not encroach individual freedomsLaw should not encroach individual freedoms Abuse of law means violation of individual Abuse of law means violation of individual

freedomsfreedoms Law should not interfere with freedom of Law should not interfere with freedom of

thought and expression, and relations that thought and expression, and relations that only affect one’s own interestonly affect one’s own interest

System of LogicSystem of Logic His His System of LogicSystem of Logic 1843 was an ambitious 1843 was an ambitious

attempt to give an account not only of logic, as the attempt to give an account not only of logic, as the title suggests, but of the methods of science and title suggests, but of the methods of science and their applicability to social as well as purely natural their applicability to social as well as purely natural phenomena. Mill's conception of logic was not phenomena. Mill's conception of logic was not entirely that of modern logicians; besides formal entirely that of modern logicians; besides formal logic, what he called "the logic of consistency", he logic, what he called "the logic of consistency", he thought that there was a logic of proof, that is, a thought that there was a logic of proof, that is, a logic that would show how evidence proved or logic that would show how evidence proved or tended to prove the conclusions we draw from the tended to prove the conclusions we draw from the evidence. That led him to the analysis of causation, evidence. That led him to the analysis of causation, and to an account of inductive reasoning that and to an account of inductive reasoning that remains the starting point of most modern remains the starting point of most modern discussions. discussions.

Principles of Political EconomyPrinciples of Political EconomyA work that tried to show that economics was not the A work that tried to show that economics was not the "dismal science" that its radical and literary critics "dismal science" that its radical and literary critics had supposed. Its philosophical interest lay in Mill's had supposed. Its philosophical interest lay in Mill's reflections on the difference between what reflections on the difference between what economics measured and what human beings really economics measured and what human beings really valued: leading Mill to argue that we should sacrifice valued: leading Mill to argue that we should sacrifice economic growth for the sake of the environment, economic growth for the sake of the environment, and should limit population as much to give and should limit population as much to give ourselves breathing space as in order to fend off the ourselves breathing space as in order to fend off the risk of starvation for the overburdened poor. Mill also risk of starvation for the overburdened poor. Mill also allowed that conventional economic analysis could allowed that conventional economic analysis could not show that socialism was unworkable, and not show that socialism was unworkable, and suggested as his own ideal an economy of worker-suggested as his own ideal an economy of worker-owned cooperatives.owned cooperatives.

UtilitarianismUtilitarianism

UtilitarianismUtilitarianism remains the classic defense of the remains the classic defense of the view that we ought to aim at maximizing the view that we ought to aim at maximizing the welfare of all sentient creatures, and that welfare welfare of all sentient creatures, and that welfare consists of their happiness. Mill's defense of the consists of their happiness. Mill's defense of the view that we ought to pursue happiness because view that we ought to pursue happiness because we do pursue happiness, has been the object of we do pursue happiness, has been the object of savage attack by, among others, F. H. Bradley in savage attack by, among others, F. H. Bradley in his his Ethical StudiesEthical Studies 1874 and G. E. Moore in 1874 and G. E. Moore in Principia EthicaPrincipia Ethica 1903. 1903.

The Subjection of WomenThe Subjection of WomenIt was thought to be excessively radical in Mill's time It was thought to be excessively radical in Mill's time but is now seen as a classic statement of liberal but is now seen as a classic statement of liberal feminism. Its essential case is that if freedom is a feminism. Its essential case is that if freedom is a good for men, it is for women, and that every good for men, it is for women, and that every argument against this view drawn from the argument against this view drawn from the supposedly different "nature" of men and women supposedly different "nature" of men and women has been superstitious special pleading. If women has been superstitious special pleading. If women have different natures, the only way to discover what have different natures, the only way to discover what they are is by experiment, and that requires that they are is by experiment, and that requires that women should have access to everything to which women should have access to everything to which men have access. Only after as many centuries of men have access. Only after as many centuries of freedom as there have been centuries of oppression freedom as there have been centuries of oppression will we really know what our natures are. will we really know what our natures are.

Three Essays on ReligionThree Essays on ReligionHe chose not to have his He chose not to have his Three Essays on Three Essays on ReligionReligion 1874 published until after his death. They 1874 published until after his death. They argued, among other things, that it is impossible argued, among other things, that it is impossible that the universe is governed by an omnipotent that the universe is governed by an omnipotent and loving God, but not unlikely that a less and loving God, but not unlikely that a less omnipotent benign force is at work in the world. omnipotent benign force is at work in the world. They thus tended to disappoint those of Mill's They thus tended to disappoint those of Mill's admirers who looked for a tougher and more admirers who looked for a tougher and more abrasive agnosticism, while doing nothing to abrasive agnosticism, while doing nothing to appease critics who deplored the fact that he was appease critics who deplored the fact that he was any kind of agnostic. But they remain models of any kind of agnostic. But they remain models of the calm discussion of contentious topics, and the calm discussion of contentious topics, and highly readable to this day.highly readable to this day.

Methods of InductionMethods of Induction

Mill formulates five guiding methods of Mill formulates five guiding methods of induction the method of agreement, that induction the method of agreement, that of difference, the joint or double method of difference, the joint or double method of agreement and difference, the of agreement and difference, the method of residues, and that of method of residues, and that of concomitant variations. The common concomitant variations. The common feature of these methods, the one real feature of these methods, the one real method of scientific inquiry, is that of method of scientific inquiry, is that of elimination. All the other methods are elimination. All the other methods are thus subordinate to the method of thus subordinate to the method of difference. difference.

Cause or Necessary PartCause or Necessary Part

Here we have a case of the occurrence Here we have a case of the occurrence of the phenomenon under investigation of the phenomenon under investigation and a case of its nonoccurrence, these and a case of its nonoccurrence, these cases having every circumstance in cases having every circumstance in common, save one, that one occurring common, save one, that one occurring only in the former; and we are only in the former; and we are warranted in concluding that this warranted in concluding that this circumstance, in which alone the two circumstance, in which alone the two cases differ, is either the cause or a cases differ, is either the cause or a necessary part of the cause of the necessary part of the cause of the phenomenon. phenomenon.

Inductive MethodInductive Method

It is only in the simpler cases of It is only in the simpler cases of casual connection, however, that we casual connection, however, that we can apply these direct methods of can apply these direct methods of observation and experiment. In the observation and experiment. In the more complex cases, we have to more complex cases, we have to employ the employ the inductive method,inductive method, which which consists of three operations: consists of three operations: induction, ratiocination or deduction, induction, ratiocination or deduction, and verification. and verification.

Syllogistic ReasoningSyllogistic Reasoning Syllogistic reasoning is a circuitous way of Syllogistic reasoning is a circuitous way of

reaching a conclusion which might have reaching a conclusion which might have been reached directly, like going up a hill been reached directly, like going up a hill and down again when we might have and down again when we might have traveled along the level road. There is no traveled along the level road. There is no reason why we should be compelled to take reason why we should be compelled to take the the high priori roadhigh priori road except by the arbitrary except by the arbitrary fiat of logicians. "Not only fiat of logicians. "Not only maymay we reason we reason from particulars to particulars without from particulars to particulars without passing through generals, but we passing through generals, but we perpetually do so reason. All our earliest perpetually do so reason. All our earliest inferences are of this nature" (inferences are of this nature" (IbidIbid., II. III. 3). ., II. III. 3).

PositivismPositivism

The approach to the study of law The approach to the study of law which regards valid laws as being which regards valid laws as being only those laws that have been only those laws that have been “posited”, that is, created and put “posited”, that is, created and put forward by human beings in positions forward by human beings in positions of power in society. Generally, of power in society. Generally, Positivism rejects the attempt of Positivism rejects the attempt of Natural Law theory to link law to Natural Law theory to link law to morality.morality.

English PositivismEnglish Positivism

Insistence on a sharp distinction between is and Insistence on a sharp distinction between is and ought has characterized the English analytical ought has characterized the English analytical tradition from Bentham, through Austin, Holland, tradition from Bentham, through Austin, Holland, Pollock, Buckland, Pollock, Buckland, Hart and Raz.Hart and Raz. The connecting The connecting thread has been "clarity," but the predominating thread has been "clarity," but the predominating reasons behind this insistence have been quite reasons behind this insistence have been quite varied. For example, Bentham distinguished the "is" varied. For example, Bentham distinguished the "is" and the "ought" for the sake of the "ought": in order and the "ought" for the sake of the "ought": in order to criticize and construct (universal censorial to criticize and construct (universal censorial jurisprudence). Austin and Holland distinguished the jurisprudence). Austin and Holland distinguished the "is" and the "ought" for the sake of the "is": as a "is" and the "ought" for the sake of the "is": as a foundation for an objective general science of foundation for an objective general science of positive law distinct from the science or art of positive law distinct from the science or art of legislation (general expository jurisprudence). legislation (general expository jurisprudence).

Hart’s views on PositivismHart’s views on Positivism In the definition of law: expression as human will, In the definition of law: expression as human will,

command of the ‘sovereign’command of the ‘sovereign’ As a theory of a form of legal study: clarification of As a theory of a form of legal study: clarification of

meanings of legal concepts, like analytical meanings of legal concepts, like analytical jurisprudencejurisprudence

As a theory of judicial process: closed logical As a theory of judicial process: closed logical system, correct answer can be deduced for system, correct answer can be deduced for general rulesgeneral rules

As a theory of law and moralityAs a theory of law and morality Moral judgments cannot be established by rational Moral judgments cannot be established by rational

argument, evidence or proofargument, evidence or proof There is unconditional obligation to obey law, There is unconditional obligation to obey law,

regardless of contentregardless of content

FormalismFormalism

An approach which seeks to minimize the An approach which seeks to minimize the element of choice in the interpretation of element of choice in the interpretation of terms contained in legal rules and terms contained in legal rules and emphasizes the necessity and predictability emphasizes the necessity and predictability in the meaning of such rules. Legal formalists in the meaning of such rules. Legal formalists would advocate the attribution of specific would advocate the attribution of specific meanings to certain terms, from which the meanings to certain terms, from which the interpreter of a legal rule could not deviate, interpreter of a legal rule could not deviate, and would require that such terms should and would require that such terms should have those same meanings in every case have those same meanings in every case where the rule is applicable.where the rule is applicable.