From Positivism to Idealism: A Study of the Moral Dimensions of Legality (Applied Legal Philosophy)

The history of empiricism in Britain from Hobbes to Hume is also the history of the attempt to re-establish human knowledge, but not from above from indubitable principles of reason but from below from experience and especially the experience of the senses. Thomas Hobbes — said that all reality is bodily including God , and all events are motions in space. Willing, then, is a motion, and is merely the last act of desire or aversion in any process of deliberation.

His view is that it is natural, and so reasonable, for each of us to aim solely at our own preservation or pleasure. The second precept is that each of us should be willing to lay down our natural rights to everything to the extent that others are also willing, and Hobbes concludes with the need to subordinate ourselves to a sovereign who alone will be able to secure peace.

He argues for the authority in the interpretation of Scripture to be given to that same earthly sovereign, and not to competing ecclesiastical authorities whose competition had been seen to exacerbate the miseries of war both in Britain and on the continent Ibid. John Locke — followed Hobbes in deriving morality from our need to live together in peace given our natural discord, but he denied that we are mechanically moved by our desires. He agreed with Hobbes in saying that moral laws are God's imposition, but disagreed by making God's power and benevolence both necessary conditions for God's authority in this respect Treatises , IV.

He also held that our reason can work out counsels or advice about moral matters; but only God's imposition makes law and hence obligation , and we only know about God's imposition from revelation The Reasonableness of Christianity , 62—5. He therefore devoted considerable attention to justifying our belief in the reliability of revelation.

Frances Hutcheson — was not a deist, but does give a reading of the sort of guidance involved here. He distinguished between objects that are naturally good, which excite personal or selfish pleasure, and those that are morally good, which are advantageous to all persons affected. He took himself to be giving a reading of moral goodness as agape , the Greek word for the love of our neighbor that Jesus prescribes. Because these definitions of natural and moral good produce a possible gap between the two, we need some way to believe that morality and happiness are coincident.

This moral sense responds to examples of benevolence with approbation and a unique kind of pleasure, and benevolence is the only thing it responds to, as it were the only signal it picks up. It is, like Scotus's affection for justice, not confined to our perception of advantage. God shows benevolence by first making us benevolent and then giving us this moral sense that gets joy from the approbation of our benevolence.

To contemporary British opponents of moral sense theory, this seemed too rosy or benign a picture; our joy in approving benevolence is not enough to make morality and happiness coincident. We need also obligation and divine sanction. Joseph Butler —, Bishop of Bristol and then of Durham held that God's goodness consists in benevolence, in wanting us to be happy, and that we should want the same for each other.

He made the important point that something can be good for an agent because it is what he wants without this meaning that the content of what he wants has anything to do with himself Fifteen Sermons , — David Hume —76 is the first figure in this narrative who can properly be attached to the Enlightenment, though this term means very different things in Scotland, in France and in Germany. Hume held that reason cannot command or move the human will. The denial of motive power to reason is part of his general skepticism. He accepted from Locke the principle that our knowledge is restricted to sense impressions from experience and logically necessary relations of ideas in advance of experience in Latin, a priori.

From this principle he derived more radical conclusions than Locke had done. For example, we cannot know about causation or the soul.

Jeremy Bentham

The only thing we can know about morals is that we get pleasure from the thought of some things and pain from the thought of others. Hume thought we could get conventional moral conclusions from these moral sentiments, which nature has fortunately given us. Probably he included premises about God's will or nature or action. This does not mean he was arguing against the existence of God. Some scholars take this remark like similar statements in Hobbes as purely ironic, but this goes beyond the evidence.

The Enlightenment in France had a more anti-clerical flavor in part because of the history of Jansenism, unique to France , and for the first time in this narrative we meet genuine atheists, such as Baron d'Holbach —89 who held not only that morality did not need religion, but that religion, and especially Christianity, was its major impediment.

He accepted from the English deists the idea that what is true in Christian teachings is the core of human values that are universally true in all religions, and like the German rationalists he admired Confucius. Jean-Jacques Rousseau said, famously, that mankind is born free, but everywhere he is in chains The Social Contract , Ch. This supposes a disjunction between nature and contemporary society, and Rousseau held that the life of primitive human beings was happy inasmuch as they knew how to live in accordance with their own innate needs; now we need some kind of social contract to protect us from the corrupting effects of society upon the proper love of self.

Nature is understood as the whole realm of being created by God, who guarantees its goodness, unity, and order. Rousseau held that we do not need any intermediary between us and God, and we can attain salvation by returning to nature in this high sense and by developing all our faculties harmoniously. Our ultimate happiness is to feel ourselves at one with the system that God created. Immanuel Kant — is the most important figure of the Enlightenment in Germany, but his project is different in many ways from those of his French contemporaries.

He was brought up in a pietist Lutheran family, and his system retains many features from, for example, Crusius. But he was also indebted through Wolff to Leibniz. He accepted from Hume that our knowledge is confined within the limits of possible sense experience, but he did not accept skeptical conclusions about causation or the soul. Reason is not confined, in his view, to the same limits as knowledge, and we are rationally required to hold beliefs about things as they are in themselves, not merely things as they appear to us.

In particular, we are required to believe in God, freedom and immortality. Kant thought that humans have to be able to believe that morality in this demanding form is consistent in the long run with happiness both their own and that of the people they affect by their actions , if they are going to be able to persevere in the moral life without rational instability. He did not accept the three traditional theoretical arguments for the existence of God though he was sympathetic to a modest version of the teleological argument.

But the practical argument was decisive for him, though he held that it was possible to be morally good without being a theist, despite such a position being rationally unstable. In Religion within the Boundaries of Mere Reason he undertook the project of using moral language in order to translate the four main themes of Biblical revelation accessible only to particular people at particular times into the revelation to Reason accessible to all people at all times.

This does not mean that he intended to reduce Biblical faith to morality, though some scholars have taken him this way. Humans have an initial predisposition to the good, which is essential to them, but is overlaid with a propensity to evil, which is not essential to them. One key step in departing from the surviving influence in Kant of Lutheran pietism was taken by Johann Gottlieb Fichte — , who identified as Kant did not the will of the individual with the infinite Ego which is ordering the universe morally.

He thought that Geist moves immanently through human history, and that the various stages of knowledge are also stages of freedom, each stage producing first its own internal contradiction, and then a radical transition into a new stage. The stage of absolute freedom will be one in which all members freely by reason endorse the organic community and the concrete institutions in which they actually live Phenomenology , BB, VI, B, III. One of Hegel's opponents was Arthur Schopenhauer — , the philosopher of pessimism. Schopenhauer thought that Hegel had strayed from the Kantian truth that there is a thing-in-itself beyond appearance, and that the Will is such a thing.

It is, moreover, one universal Will that underlies the wills of all separate individuals. The intellect and its ideas are simply the Will's servant. On this view, there is no happiness for us, and our only consolation is a quasi-Buddhist release from the Will to the limited extent we can attain it, especially through aesthetic enjoyment.

Right Hegelians promoted the generally positive view of the Prussian state that Hegel expressed in the Philosophy of Right.

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Left Hegelians rejected it, and with it the Protestant Christianity which they saw as its vehicle. In this way Hegel's peculiar way of promoting Christianity ended up causing its vehement rejection by thinkers who shared many of his social ideals. Feuerbach thought religion resulted from humanity's alienation from itself, and philosophy needed to destroy the religious illusion so that we could learn to love humankind and not divert this love onto an imaginary object.

Karl Marx —83 followed Feuerbach in this diagnosis of religion, but he was interested primarily in social and political relations rather than psychology. He became suspicious of theory for example Hegel's , on the grounds that theory is itself a symptom of the power structures in the societies that produce it. Marx returned to Hegel's thoughts about work revealing to the worker his value through what the worker produces, but Marx argues that under capitalism the worker was alienated from this product because other people owned both the product and the means of producing it. Thus he believed, like Hegel, in progress through history towards freedom, but he thought it would take Communist revolution to bring this about.

Kierkegaard mocked Hegel constantly for presuming to understand the whole system in which human history is embedded, while still being located in a particular small part of it. On the other hand, he used Hegelian categories of thought himself, especially in his idea of the aesthetic life, the ethical life and the religious life as stages through which human beings develop by means of first internal contradiction and then radical transition. Kierkegaard's relation with Kant was problematic as well.

On the other hand, his own description of the religious life is full of echoes of Kant's Religion within the Boundaries of Mere Reason. Kierkegaard wrote most of his work pseudonymously, taking on the names of characters who lived the lives he describes. This life deconstructs, because it requires in order to sustain interest the very commitment that it also rejects. The transition is accomplished by making a choice for one's life as a whole from a position that is not attached to any particular project, a radical choice that requires admitting the aesthetic life has been a failure.

But this life too deconstructs, because it sets up the goal of living by a demand, the moral law, that is higher than we can live by our own human devices. Friedrich Nietzsche — was the son of a Lutheran pastor in Prussia. He was trained as a classical philologist, and his first book, The Birth of Tragedy , was an account of the origin and death of ancient Greek tragedy.

The breaking point seems to have been Wagner's Parsifal. Nietzsche saw clearly the intimate link between Christianity and the ethical theories of his predecessors in Europe, especially Kant. It is harder to know what Nietzsche was for, than what he was against. This is partly an inheritance from Schopenhauer, who thought any system of constructive ethical thought a delusion.

To return to Britain, Hume had a number of successors who accepted the view which Hume took from Hutcheson that our fundamental obligation is to work for the greatest happiness of the greatest number. Four are especially significant.

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William Paley — thought he could demonstrate that morality derived from the will of God and required promoting the happiness of all, that happiness was the sum of pleasures, and that we need to believe that God is the final granter of happiness if we are to sustain motivation to do what we know we ought to do The Principles of Moral and Political Philosophy , II.

Jeremy Bentham — rejected this theological context. He thought he could provide a scientific calculus of pleasures, where the unit that stays constant is the minimum state of sensibility that can be distinguished from indifference. Discarding the theological context made moral motivation problematic, for why should we expect without God more units of pleasure for ourselves by contributing to the greater pleasure of others?

John Stuart Mill —73 was raised on strict utilitarian principles by his father, a follower of Bentham. Unlike Bentham, however, Mill accepted that there are qualitative differences in pleasures simply as pleasures, and he thought that the higher pleasures were those of the intellect, the feelings and imagination, and the moral sentiments.

He observed that those who have experienced both these and the lower pleasures, tend to prefer the former. He realized that his education had neglected the culture or cultivation of feelings , of which hope is a primary instance Autobiography , 1. Mill did not believe, however, that God was omnipotent, given all the evil in the world, and he insisted, like Kant, that we have to be God's co-workers, not merely passive recipients of God's assistance. Henry Sidgwick — in Methods of Ethics distinguished three methods: Intuitionism which is, roughly, the common sense morality that some things, like deliberate ingratitude to a benefactor, are self-evidently wrong in themselves independently of their consequences , Egoistic Hedonism the view that self-evidently an individual ought to aim at a maximum balance of happiness for herself, where this is understood as the greatest balance of pleasure over pain , and Utilitarianism or Universalistic Hedonism, the view that self-evidently she ought to aim at the maximum balance of happiness for all sentient beings present and future, whatever the cost to herself.

Of these three, he rejected the first, on the grounds that no concrete ethical principles are self-evident, and that when they conflict as they do we have to take consequences into account in order to decide how to act. But Sidgwick found the relation between the other two methods much more problematic. Each principle separately seemed to him self-evident, but when taken together they seems to be mutually inconsistent. He considered two solutions, psychological and metaphysical.

The psychological solution was to bring in the pleasures and pains of sympathy, so that if we do good to all we end up because of these pleasures making ourselves happiest. Sidgwick rejected this on the basis that sympathy is inevitably limited in its range, and we feel it most towards those closest to us, so that even if we include sympathetic pleasures and pains under Egoism, it will tend to increase the divergence between Egoistic and Utilitarian conduct, rather than bring them closer together. The metaphysical solution was to bring in a god who desires the greatest total good of all living things, and who will reward and punish in accordance with this desire.

He thought this solution was both necessary and sufficient to remove the contradiction in ethics. But this was only a reason to accept it, if in general it is reasonable to accept certain principles such as the Uniformity of Nature which are not self-evident and which cannot be proved, but which bring order and coherence into a central part of our thought. Sidgwick did not commit himself to an answer to this, one way or the other. Towards the end of the century, however, there were more philosophers who could speak the languages of both traditions. The beginning of the analytic school is sometimes located with the rejection of a neo-Hegelian idealism by G.

One way to characterize the two schools is that the Continental school continued to read and be influenced by Hegel, and the Analytic school with some exceptions did not. Another way to make the distinction is geographical; the analytic school is located primarily in Britain, Scandinavia and N. America, and the continental school in the rest of Europe, in Latin America and in certain schools in N.

We will start with some figures from the Continental school, and then move to the analytic which is this writer's own. Martin Heidegger — was initially trained as a theologian, and wrote his dissertation on what he took to be a work of Duns Scotus. He took an appointment under Edmund Husserl — at Freiburg, and was then appointed to succeed him in his chair.

In this sense he is the first existentialist, though he did not use the term. On the other hand he is unlike Kierkegaard in thinking of traditional Christianity as just one more convention making authentic existence more difficult.

Auguste Comte

In Heidegger, as in Nietzsche and Schopenhauer, it is hard to find a positive or constructive ethics. Heidegger's position is somewhat compromised, moreover, by his initial embrace of the Nazi party. In his later work he moved increasingly towards a kind of quasi-religious mysticism. He denied like Scotus that the moral law could be deduced from human nature, but this was because unlike Scotus he thought that we give ourselves our own essences by the choices we make.

On this view there are no outside commands to appeal to for legitimation, and we are condemned to our own freedom. Sartre thought of human beings as trying to be God on a Hegelian account of what God is , even though there is no God. Moreover, we inevitably desire to choose not just for ourselves, but for the world. Therefore, I am responsible for myself and for everyone else. I am creating a certain image of man of my own choosing. One form of bad faith is to pretend that there is a God who is giving us our tasks.

To live authentically is to realize both that we create these tasks for ourselves, and that they are futile. The twentieth century also saw, within Roman Catholicism, forms of Christian Existentialism and new adaptations of the system of Thomas Aquinas. Gabriel Marcel — , like Heidegger, was concerned with the nature of Being as it appears to human being, but he tried to show that there are experiences of love, joy, hope and faith which, as understood from within , give us reason to believe in an inexhaustible Presence, which is God.

Jacques Maritain — developed a form of Thomism that retained the natural law, but regarded ethical judgment as not purely cognitive but guided by pre-conceptual affective inclinations. He gave more place to history than traditional Thomism did, allowing for development in the human knowledge of natural law, and he defended democracy as the appropriate way for human persons to attain freedom and dignity.

Natural law theory has been taken up and modified more recently by three philosophers who write in a style closer to the analytic tradition, John Finnis, Alastair MacIntyre and Jean Porter. Finnis holds that our knowledge of the fundamental moral truths is self-evident, and so is not deduced from human nature. His Natural Law and Natural Rights was a landmark in integrating the modern vocabulary and grammar of rights into the tradition of Natural Law. MacIntyre, who has been on a long journey back from Marxism to Thomism, holds that we can know what kind of life we ought to live on the basis of knowing our natural end, which he now identifies in theological terms.

In After Virtue he is still influenced by a Hegelian historicism, and holds that the only way to settle rival knowledge claims is to see how successfully each can account for the shape taken by its rivals. A different account of natural law is found in Porter, who in Nature as Reason retains the view that our final motivation is our own happiness and perfection, but rejects the view that we can deduce absolute action-guiding moral principles from human nature.

They are not Roman Catholic but they are strongly influenced by Aristotle and Aquinas. They emphasize the notion of virtue which belongs to human nature just as bees have stings. Hursthouse ends her book by saying that we have to hold onto the hope that we can live together, not at each other's expense, a hope which she says used to be called belief in God's Providence On Virtue Ethics , One final contribution to be mentioned here is Linda Zagzebski's Divine Motivation Theory which proposes, as an alternative to divine command theory, that we can understand all moral normatively in terms of the notion of a good emotion, and that God's emotions are the best exemplar.

We will return to the rebirth of divine command theory at the end of this entry. We select the desires, acts, and thoughts that we attend to morally, we recognize ourselves as morally bound by some particular ground, e. Foucault criticized Christian conventions that tend to take morality as a juristic and often universal code of laws, and to ignore the creative practice of self-making. Even if Christian and post-Christian moralists turn their attention to self-expression, he thought they tend to focus on the confession of truth about oneself, a mode of expression which is historically linked to the church and the modern psycho-sciences.

He did not, however, tell us much more about what these new forms would be like. By analyzing the structure of communication using speech-act theory developed in analytic philosophy he lays out a procedure that will rationally justify norms, though he does not claim to know what norms a society will adopt by using this procedure. The two ideas behind this procedure are that norms are valid if they receive the consent of all the affected parties in unconstrained practical communication, and if the consequences of the general observance of the norms in terms of how each person's interests are affected are acceptable to all.

Habermas thinks he fulfills in this way Hegel's aim of reconciling the individual and society, because the communication process extends individuals beyond their private perspectives in the process of reaching agreement. Religious convictions need to be left behind when entering the public square, on this scheme, because they are not communicable in the way the procedure requires.

In recent work he has modified this position, by recognizing that certain religious forms require their adherents to speak in an explicitly religious way when advancing their prescriptions for public life, and it is discriminatory to try to prevent their doing so. Within contemporary Jewish ethics mention should be made of Martin Buber — and Emmanuel Levinas — Buber's form of existentialism emphasized the I-You relationship, which exists not only between human beings but out of that between human beings and God.

When we reject I-You relationship, we return to I-It relations, governed by our impositions of our own conceptualizations on objects. Buber said these two relations are exhaustive. Levinas studied under Husserl, and knew Heidegger, whose work he first embraced and then rejected. To meet the Other is to have the idea of Infinity Ethics and Infinity , 90—1. This term is problematic in various ways. As used within architectural theory in the 's and 's it had a relatively clear sense. There was a recognizable style that either borrowed bits and pieces from styles of the past, or mocked the very idea in modernist architecture of essential functionality.

In philosophy, the term is less clearly definable. The effect on philosophical thinking about the relation between morality and religion is two-fold. On the one hand, the modernist rejection of religion on the basis of a foundationalist empiricism is itself rejected. This makes the current climate more hospitable to religious language than it was for most of the twentieth century. But on the other hand, the distaste for over-arching theory means that religious meta-narratives are suspect to the same degree as any other, and the hospitality is more likely to be towards bits and pieces of traditional theology than to any theological system as a whole.

Mention should be made of some movements that are not philosophical in a professional sense, but are important in understanding the relation between morality and religion. The civil rights movement drawing heavily on Exodus , feminist ethics, animal liberation, environmental ethics, and the gay rights and children's rights movements have shown special sensitivity to the moral status of some particular oppressed class. The leadership of some of these movements has been religiously committed, while the leadership of others has not.

At the same time, the notion of human rights, or justified claims by every human being, has grown in global reach, partly through the various instrumentalities of the United Nations. There has, however, been less consensus on the question of how to justify human rights. There are theological justifications, deriving from the image of God in every human being, or the command to love the neighbor, or the covenant between God and humanity see Wolterstorff, Justice: Rights and Wrongs , chapter Whether there is a non-theological justification is not yet clear. Finally, there has also been a burst of activity in professional ethics, such as medical ethics, engineering ethics, and business ethics.

This has not been associated with any one school of philosophy rather than another. The connection of religion with these developments has been variable. In some cases e. The origin of analytic philosophy can be associated with G. In the second half of the 17 th century, the Royal Society had emphasized the role of experiment and generally empiricist epistemology in the development of the natural sciences. Suitably impressed by the progress made in this department of knowledge, Bentham carried over into moral science the basic principle that people can only know, in any certain or scientific sense of that term, that which can be observed and verified.

He rejected all forms of idealism in philosophy and insisted that in principle all matter is quantifiable in mathematical terms, and this extends to the pains and pleasures that we experience—the ultimate phenomena to which all human activity and social concepts, such as rights, obligation, and duty could be reduced and explained. Some fictitious entities are necessary for human discourse, but their meaning can only be revealed through their connection to real entities , n; b, —88, —18 ; if a fictitious entity proves impervious to this paraphrastic technique it is shown to be a meaningless abstraction unrelated to demonstrable reality.

All are dismissed on the grounds that they are merely empty phrases that express nothing beyond the sentiment of the person who advocates them. Not representing verifiable reality, such phrases could not be considered useful. At the beginning of IPML Bentham offered the famous declamation that underscores the primacy of pains and pleasures in utilitarian theory:. There are two forms of hedonism expressed in this seminal passage: As such, pain and pleasure are the final cause of individual action and the efficient cause and means to individual happiness. Nor, can they talk?

But, can they suffer? But how is the legislator to influence individual actions and gain conformity to his decisions? In effect, there is no such thing as a good or bad motive.

Legal philosophy as practical philosophy

The utility of an act—its goodness or badness—is determined solely by its consequences: When deciding whether to act or which act to undertake, a person must calculate as best as he can the pains and pleasures that may reasonably be expected to accrue to the persons including himself affected by the acts under consideration. A similar calculation should guide the legislator in formulating laws.

However, Bentham recognised that it was not normally feasible for an individual to engage in such a calculation as a preliminary to undertaking every act. For this reason he spoke of the general tendencies of actions to enhance happiness suggested by past experience as a sufficient guide in most situations. To this end he developed rules to guide the lawmaker in the construction of a penal code, including the elements involved in the calculation of the mischief caused by offences and the appropriate punishments.

In general he followed Adam Smith in believing the individual to be the best judge of his or her own interests, but the simplicity of this proposition is deceptive see Engelmann This involves the individual in imagining what will occur if she were to act in a certain manner. For Bentham, the most important elements of the external environment in which a person imagines outcomes are the penalties and rewards laid down by law and those deriving from other educative and moral institutional arrangements and practices, including the sanction exercised by public opinion. In this sense, law and other agencies may be used to construct interests by providing individuals with the motives to pursue courses of action beneficial to the community.

It is the individual who then must correctly perceive where her interests lie; she must imagine the expected outcomes the legislator has determined.

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Second, Bentham recognised that explaining action in terms of interest is potentially circular. If we mean, acting to pursue our interest in the widest sense, then the statement is tautological b, 93n. Bentham recognised the possibility of altruistic actions, and frequently alluded to his own philanthropy when recommending schemes to further the public good. However, if not all action is motivated by self-interest in the narrow or strict meaning of the term, then how far can the self-preference principle be considered a reliable guide for the legislator in constructing motives?

While it is not true that everyone always acts in his or her self-interest, it is best that the legislator design institutions and law as if this were in fact true. Self-interested acts are the norm; altruism is the exception. Third, although individuals may in general be the best judges of their own interests, they may not always judge wisely. But if people incorrectly perceive their interests, then the legislator may be misled in constructing the appropriate motivation. This means that assessing the value of the constituent elements of interest pains and pleasures is a tricky business for the legislator; he must accurately observe the ways people behave, deduce the motives behind their actions, and encompass this knowledge in the sanctions of law.

The aim is to tell individuals what they should not do, but also to provide them with motives pains and pleasures in prospect sufficient to divert their desires into channels best designed to serve the public interest. In this way government could educate its citizens to make more effective choices, or at least guide them into more appropriate paths to achieve their real interests —43, I, Where the object is to measure the value of a pleasure or pain in terms of the tendency of an act, there are two additional circumstances to be taken into account: Bentham recognised that neither the individual nor the legislator could strictly follow the process he described.

As is well known, while adhering to the basic Benthamic analysis of motives, in Utilitarianism J. This tended to undermine the aggregative dimension of the theory laid down by Bentham. Bentham occasionally suggested that pains and pleasures might be evaluated in relation to income or wealth, but he was aware of the limitations of this approach. It is in the nature of the case that the amount of increase in happiness will not be as great as the increase in wealth; the addition of equal increments of money will eventually bring successively less of an increase in happiness.

One of its practical consequences for a utilitarian such as Bentham is that, where choices present themselves between giving an additional increment to a rich man or to a poor man, more happiness will result from giving it to the poorer of the two. Also, the analysis underscores why money cannot be a direct measure of utility, since the utility represented by a particular sum of money will vary depending on the relative wealth of the person who receives it. Moreover, it is evident that diminishing marginal utility is also a feature of the additional increments of pleasure a person may experience beyond a certain point; equal increments of pleasure will not necessarily add to the stockpile of happiness if a person has reached a saturation point.

For Bentham, the unhappiness created by the loss of something will usually have a greater impact on a person than the happiness brought about by its gain to someone else —43, I, —7. Of course, if the loser is a wealthy person and the gainer a poor man, this will not hold. But in the normal run of things, this is why Bentham gave a higher priority to the protection of property by law and why he held that the alleviation of suffering demands more immediate attention than plans to produce wealth —54, III, , Raising public funds through taxation for vital services would be justified by the principle, as would emergency expropriation of property in times of war or famine, usually with compensation paid to the property owner.

For Bentham, the significance of this principle as a practical guide could hardly be overstated. He came to see that such a principle could justify inordinate sacrifices by a minority, however that minority might be composed, in the interest of enhancing the happiness of a majority. He considered this a false conclusion, but one that needed to be addressed.

The less the numerical difference between the minority and majority, the more obvious the deficiency in aggregate happiness will be a, Logically, then, the closer we approximate the happiness of all the members of the community, the greater the aggregate of happiness. The universal interest relates to interests that are shared by everyone, and only when it is impossible for government to contrive policies to achieve this end is a distribution of happiness less than universal or less than equal justified b, However, the number of decisions made by governments that are genuinely of universal reach are relatively few and may be limited to national defence and the framework of individual rights securities.

Beyond that, redistributive policies invariably involve unequal sacrifices and benefits. This means that the legislator must employ a utilitarian calculation in which the pain experienced by the few is reduced to the minimum necessary to produce benefits for the many; only on this basis may pleasures be summed and pains subtracted in order to produce the rationale to justify the best policy.

Related to this conception of the universal interest is the egalitarian commitment that in arriving at the appropriate law or policy the interests of each and all must count, and count equally , I, This does not mean that optimal utility is not the goal, but simply stresses that optimal utility will be more likely achieved where there is an approximate equality in the distribution of the basic requirements of happiness Postema Green forward, argue that calculations of total utility fail to respect the distinctiveness of persons and thereby place their interests at perpetual risk Rawls , 22—27; Nozick , 28—35; see the discussions in Ten , 13—37; Rosen , Chs.

If deterrence can be achieved by punishing an innocent bystander when the real culprit cannot be caught or brought to justice, then why should the bystander not be punished? Because public utility would be maximised by making an example of an innocent bystander just as much as by punishing the person who was actually guilty of the offence but who has not been apprehended, it seems the utilitarian ought to support the punishment. But this is not only intuitively wrong, it is also wrong because there is a real danger that violations of security would lead to other such violations, with no principled basis to cease inflicting them.

Bentham was emphatic on this score: Basic securities must be afforded to each and every member of the community, and violations of these vital interests are not justified, whether they be perpetrated by other individuals or government, since they contravene the distributive elements of utilitarian theory. From early on in his utilitarian theorizing, Bentham understood that the achievement of utilitarian objectives in practice required the translation of the utility principle into elements amenable to implementation in ways that the philosophically abstract principle itself could not be.

Concrete manifestations of happiness, for example, could be found in personal security and reduced crime rates, enhanced health and declining death rates, broader opportunities for education, the reduction of diseases caused by sewage pollution, and so on. This deficiency did not, however, prevent him from developing the theoretical apparatus to direct the formulation of such laws.

This was more than the Humean observation that utility is embedded in customary rules that have evolved over time. Where the jurist detects deficiencies, new rules and precepts must be developed that demonstrably accord with the utility principle. The greatest happiness principle sets the over-arching objective and is the critical standard against which existing practices are to be judged. As such, it stands ever ready to be summoned forth whenever new guidelines are needed, subordinate ends conflict, or existing laws require amendment, refinement, or further elaboration.

However, in practice it is the secondary elements of the theory that do the work of producing beneficial outcomes. In this way, they give practical concreteness to the philosophically abstract end of the greatest happiness. The subordinate ends of civil law are security, subsistence, abundance, and equality, in this order of priority. This is entirely consistent with the view that, properly understood, the utility principle entails a presumption in favour of an equal distribution, unless there is compelling empirical evidence that utility would not be served by such a policy.

However, he refused to countenance the idea that policies to redistribute wealth at the cost of security would be beneficial either to social prosperity or individual wellbeing. In the long run the key to achieving a more equal distribution of property lay in abundance: Bentham believed that facilitating individuals in the pursuit of their interests in a free market is what government should do, because this is the proven best way to maximise the public good.

Where laissez-faire does not produce the best result, however, the legislator must act in other direct and indirect ways to produce the optimal outcome. But radical schemes for property re-distribution are ruled out; the axiomatic requirement that each be treated equally, that the happiness of each be counted, justified policies to equalize the distribution of goods only where this could be achieved without disappointing legitimate expectations. Just as the primary purpose of civil law is economic security and national prosperity, so it draws powerful support from the protection afforded persons, property and expectations by the threat of punishment —43, III, To this end, utilitarian penal law is framed in terms of the principal objective of deterrence, but it also embraces the secondary ends of disablement, moral reformation, and compensation see Crimmins b.

The effectiveness of the theory in practice depends on two additional features: This includes the tensions that exist between the efficacy of power or authority and substantive validity; between justice and legal security; between dura lex, sed lex and summum ius, summa iniuria ; between the political limits of law and the aspirations of universal rights; between the sociocultural, idiosyncratic uniqueness of each legal community and the demands of universal critical morality; between the institutional values of legal technique associated with the continuity of past operations, formal equality, specific interpretative patterns, etc.

This is the result of interpretations that entail questioning the legal category as a whole in light of values, while it also leads to the restoration of the unity of practical reason around these values. This need to evaluatively interpret the legal category in terms of totality based on the entire practical realm explains that the doctrinal concept of law has epistemological priority over all other concepts sociological, economic, logical, etc.

And ultimately, this is also the reason there must be an uninterrupted, substantial continuity between the two. This would precisely be a philosophy in which the values that concern law are not considered as transcendental. That is, they are viewed either as values purely external to legal rationality belonging to moral or political philosophy but not to legal philosophy or as values that are purely internal to the legal institution not connected to morality and politics, that is, not transcendental. In other words, as long as it is concerned with values, philosophy of law would no longer refer to law.

Hart even considers this the nuclear positivist thesis. Both assumptions entail the liquidation of the philosophy of law, the former because it would not be properly a legal philosophy but a moral or political philosophy, and the latter because its study would no longer be philosophical but rather scientific or technical , as legal concepts could be reconstructed, it is said, away from any justificative value judgement. The values that make law a normative and justificative institution are only transferred theoretical or epistemological values, but not necessarily practical values either shared or rejected.

On the one hand, this criticism must show that the philosophical attempt of conceptually reconstructing legal validity as stripped of value is based on an erroneous understanding of the epistemology of the legal-normative discourse and its conditions of scientific validity. Any metalinguistic or metatheoretical discourse that deals with the legal concepts in which these values are captured performs functions internally to the object language of legal practice as it belongs to the grammar of this praxis.

These are functions of legitimation or criticism that make it more a meta-language of law i. Is such an evaluatively committed character of legal rationality what determines then that, despite its categoricity, it is neither scientific nor can it be qua tale scientifically reconstructed. They involve practical engagement in substantive conceptions of justice articulated through different combinations and specifications of those principles.

Only in this way do they allow for the ethical-political criticism of established law, a kind of criticism that is then both internal and external, that is, transcendental or philosophical. The pragmatics of legal theory is yet another dimension of legal practice: This not only renders philosophically inconsistent any axiological scepticism or radical criticism which strives to deny the objectivity or validity of the evaluative reasons of law by reducing values to facts e. This entails a normative conception of legal theory and therefore an understanding of this as practical philosophy.

This would be nothing other than an inherited prejudice from the positivistic view of law, and not only a prejudice but also a hindrance. The conception that is most coherent with the true position that law occupies within the political-moral space —precisely because values are so central to it—, that is, the post-positivistic conception which we call constitutionalism or the argumentative view of law, means transcending this methodical view of free-value positivism and instead envisioning the philosophy of law as a practical philosophy integrated in moral and political philosophy.

The categoricity of legal institutions and norms is contextual, always fragmented into idiographic and idiorhythmic regional circles national states, legal families, cultural traditions, etc. Only values would be susceptible to true universalisation, as they play their justificatory role in objective terms and so become the genuine ideas that make legal practice a rational, universalisable practice. Law will lose what actually makes it rational if these ideas cease to be present. The Revised Oxford Edition. Princeton University Press Interpretazioni anglosassoni della filosofia del diritto.

Rivista internazionale di filosofia del diritto. Why Jurisprudence is not Legal Philosophy. Justice in Robes , Cambridge, Mass.: La sintassi del diritto. Issues in Contemporary Legal Philosophy. The Ideals of Greek Culture []. The Mind of Athens. Alabanza de la ley. Centro de Estudios Constitucionales. Die Metaphysik der Sitten []. Archives de Philosophie du Droit 7 Carlos Santiago nino, The Concept of a Philosophical Jurisprudence []. The Concept of a Philosophical Jurisprudence: Essays and Reviews Jurisprudence as Practical Philosophy.

Legal Theory 4 Jurisprudence, the Sociable Science. Virginia Law Review 4. The Ideal Element in Law []. Practical Reason and Norms. Ethics in the Public Domain. Essays in the Morality of Law and Politics. Between Authority and Interpretation. On the Theory of Law and Practical Reason. On Law and Justice.

University of California Press. T he Idea of Justice. Mito y pensamiento en la Grecia antigua []. Vagueness in Law and Language: California Law Review 82 3. Normative or Ethical Positivism. Essays on the Postscript to The Concept of Law. A similar perspective can be found in Nagel What characterises this working style is the primacy attached to analysis over synthesis, a primacy grounded upon the conviction that even though analysis and synthesis are necessary steps in all inquiry, analysis without synthesis which is what philosopher-jurists are often blamed for is preferable to synthesis without analysis which is a common vice among jurist-philosophers , because the former at least seeks good materials to construct, and because the latter only builds houses of sand where no one wants to live.

As is well known, Bobbio was also very influenced by logical positivism in his understanding of the relations between science and philosophy.