Hart identified a utilitarian tradition in jurisprudence, which he associated with Jeremy Bentham and John Austin. This tradition consisted in three doctrines: the separation of law and morals; the analysis of legal concepts; and the imperative theory of law. I argue, contrary to Hart, that Bentham did not adopt a 'positivist' conception of law whether understood in terms of the separation of legal theory and morality or in terms of the separation of law and morals. Misinterpreting Bentham's approach (...) to the analysis of language, Hart was wrong to assume that Bentham's jurisprudential project was a precursor to his own attempt to provide a morally neutral description of a legal system. It was this assumption that led to mistakes in Hart's editing of Of Laws in General. Bentham's utilitarian theory of law should be recognised as a distinct alternative to Common Law and Natural Law theories. (shrink)

Combining the methods of the modern philosopher with those of the historian of ideas, Knud Haakonssen presents an interpretation of the philosophy of law which Adam Smith developed out of - and partly in response to - David Hume's theory of justice. While acknowledging that the influences on Smith were many and various, Dr Haakonssen suggests that the decisive philosophical one was Hume's analysis of justice in A Treatise of Human Nature and the second Enquiry. He therefore begins with a (...) thorough investigation of Hume, from which he goes on to show the philosophical originality of Smith's new form of natural jurisprudence. At the same time, he provides an over all reading of Smith's social and political thought, demonstrating clearly the exact links between the moral theory of The Theory of Moral Sentiments, the Lectures on Jurisprudence, and the sociohistorical theory of The Wealth of Nations. This is the first full analysis of Adam Smith's jurisprudence; it emphasizes its normative and critical function, and relates this to the psychological, sociological, and histroical aspects which hitherto have attracted most attention. Dr Haakonssen is critical of both purely descriptivist and utilitarian interpretations of Smith's moral and political philosophy, and demonstrates the implausibility of regarding Smith's view of history as pseudo-economic or 'materialist'. (shrink)

This article surveys four approaches to moral obligation to non-Muslims found in Islamic legal thought. The first three approaches I refer to in this article as the "revelatory-deontological," the "contractualist-constructivist" and the "consequentialist-utilitarian." The main argument of this article is that present in many of the contemporary works on the "jurisprudence of Muslim minorities" (fiqh al-aqalliyyat) is an attempt to provide an Islamic foundation for a relatively thick and rich relationship of moral obligation and solidarity with non-Muslims. This (...) attempt takes the form of a fourth "comprehensive-qualitative" approach to political ethics in that it appeals not to juridical reasoning of the type "is x permissible and in which conditions?" but rather to Islamic ideals of what it means to live a good life, of what believing, normatively-committed Muslims want to pursue in this world, not only what they may pursue without fear of punishment. This meta-ethical approach builds on and goes beyond the first three. The force of this argument is that this fourth "comprehensive-qualitative" approach to moral obligation to non-Muslims is novel, emergent and not found not in the writings of outright reformers but in those of conservative, "neo-classical," shari'a-minded - even Muslim Brotherhood-affiliated - Islamic scholars. What also adds to the force of this argument is that the other meta-ethical discourses, particularly of contract and utility (maslaha), already get these scholars quite far towards a doctrine of "loyal resident alienage" in non-Muslim societies. That even orthodox Islamic scholars go further shows that they have some interest in giving a theological or principled foundation to a much thicker and richer form of moral obligation to non-Muslims, a relationship which involves recognizing non-Muslims qua non-Muslims and contributing to their well-being. (shrink)

Subsequent to the crystallization of the legal schools, Muslim jurists felt the need to consolidate the massive corpus of legal opinion in order to aid students and practitioners of the law. The result was legal maxims, concise theoretical statements that captured the objectives of the Sharia. An example is al-ḍarar yuzāl, which is based on the hadith lā ḍarar wa-lā ḍirār. This article analyzes the role of legal maxims in Yūsuf al-Qaraḍāwī’s jurisprudence and fatwas, as found in his numerous (...) books and articles. Its preliminary assumption is that Qaraḍāwī uses legal maxims to control and systematize the use of considerations of public welfare, especially in the field of “the jurisprudence of reality”. Because this fiqh deals mainly with political topics on which there are hardly any guidelines in scripture, and stems therefore from mostly nontextual benefits, it is an area vulnerable to undisciplined use of utilitarian considerations by jurists. Legal maxims then come in handy when weighing the relevant benefit and harm related to each topic. (shrink)

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism. Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems. Mr. Turton is the local district collector whose job is to pander to both British and Indian (...) interests; positioned as such, Turton is a site for critique and comparison. Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration. Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence. But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation. Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India. A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress. (shrink)

El presente escrito expone las ideas generales en torno al derecho de los padres de la jurisprudencia analítica o utilitarista inglesa, Jeremy Bentham y John Austin. La intención del trabajo es eminentemente pedagógica, considerando que es necesario contar con textos introductorios que le permitan al neófito adentrarse con mayor seguridad en la complejidad del pensamiento de Bentham y Austin. Igualmente, se expondrán algunas diferencias entre ambos autores, con el fin de dejar en claro que, si bien son cercanos, no son (...) idénticos en sus concepciones del derecho. (shrink)

The utilitarian construct of two alternative criteria of human death increases the supply of transplantable organs at the end of life. Neither the neurological criterion (heart-beating donation) nor the circulatory criterion (non-heart-beating donation) is grounded in scientific evidence but based on philosophical reasoning. A utilitarian death definition can have unintended consequences for dying Muslim patients: (1) the expedited process of determining death for retrieval of transplantable organs can lead to diagnostic errors, (2) the equivalence of brain death with (...) human death may be incorrect, and (3) end-of-life religious values and traditional rituals may be sacrificed. Therefore, it is imperative to reevaluate the two different types and criteria of death introduced by the Resolution (Fatwa) of the Council of Islamic Jurisprudence on Resuscitation Apparatus in 1986. Although we recognize that this Fatwa was based on best scientific evidence available at that time, more recent evidence shows that it rests on outdated knowledge and understanding of the phenomenon of human death. We recommend redefining death in Islam to reaffirm the singularity of this biological phenomenon as revealed in the Quran 14 centuries ago. (shrink)

Bentham's best-known book stands as a classic of both philosophy and jurisprudence. The 1789 work articulates an important statement of the foundations of utilitarian philosophy — it also represents a pioneering study of crime and punishment. Bentham's reasoning remains central to contemporary debates in moral and political philosophy, economics, and legal theory.

The new critical edition of the works and correspondence of Jeremy Bentham (1748-1832) is being prepared and published under the supervision of the Bentham Committee of University College London. In spite of his importance as jurist, philosopher, and social scientist, and leader of theUtilitarian reformers, the only previous edition of his works was a poorly edited and incomplete one brought out within a decade or so of his death. Eight volumes of the new Collected Works, five of correspondence, and three (...) of writings on jurisprudence, appeared between 1968 and 1981, published bythe Athlone Press. Further volumes in the series since then are published by Oxford University Press. The overall plan and principles of the edition are set out in the General Preface to The Correspondence of Jeremy Bentham, vol. 1, which was the first volume of the Collected Works to bepublished.An Introduction to the Principles of Morals and Legislation, Jeremy Bentham's best-known work, is a classic text in modern philosophy and jurisprudence. First published in 1789, it contains the important statement of the foundations of utilitarian philosophy and a pioneering study of crime andpunishment, both of which remain at the heart of contemporary debates in moral and political philosophy, economics, and legal theory. Printed here in full is the definitive edition, edited by the distinguished scholars J. H. Burns and H. L. A. Hart. An introductory essay by Hart, first published in1982 and a widely acknowledged classic in its own right, is reprinted here. It contains an important analysis of Bentham's principle of utility, theory of action, and an account of the relationship between law and morality.A new introduction by the leading Bentham scholar F. Rosen, specially written for this Clarendon Paperback edition, provides students with a helpful survey of Bentham's main ideas and an extensive bibliographical study of recent critical work on Bentham. Professor Rosen's essay also contains a newanalysis of the principle of utility in Bentham's philosophy which is compared with its use in Hume and J. S. Mill. (shrink)

The new critical edition of the works and correspondence of Jeremy Bentham is being prepared and published under the supervision of the Bentham Committee of University College London. In spite of his importance as jurist, philosopher, and social scientist, and leader of the Utilitarian reformers, the only previous edition of his works was a poorly edited and incomplete one brought out within a decade or so of his death. Eight volumes of the new Collected Works, five of correspondence, and (...) three of writings on jurisprudence, appeared between 1968 and 1981, published by the Athlone Press. Further volumes in the series since then are published by Oxford University Press. The overall plan and principles of the edition are set out in the General Preface to The Correspondence of Jeremy Bentham, vol. 1, which was the first volume of the Collected Works to be published.An Introduction to the Principles of Morals and Legislation, Jeremy Bentham's best-known work, is a classic text in modern philosophy and jurisprudence. First published in 1789, it contains the important statement of the foundations of utilitarian philosophy and a pioneering study of crime and punishment, both of which remain at the heart of contemporary debates in moral and political philosophy, economics, and legal theory. Printed here in full is the definitive edition, edited by the distinguished scholars J. H. Burns and H. L. A. Hart. An introductory essay by Hart, first published in 1982 and a widely acknowledged classic in its own right, is reprinted here. It contains an important analysis of Bentham's principle of utility, theory of action, and an account of the relationship between law and morality.A new introduction by the leading Bentham scholar F. Rosen, specially written for this Clarendon Paperback edition, provides students with a helpful survey of Bentham's main ideas and an extensive bibliographical study of recent critical work on Bentham. Professor Rosen's essay also contains a new analysis of the principle of utility in Bentham's philosophy which is compared with its use in Hume and J. S. Mill. (shrink)

Jeremy Bentham, the founder of utilitarianism, made a powerful impact on several major areas of thought and policy: ethics, jurisprudence, political and constitutional theory, and social and administrative reform. Yet from the start his ideas have been subject to misunderstanding and caricature. John Dinwiddy's Bentham is regarded as the best introduction to this important jurist and reformer. Dinwiddy examines the various components of Bentham's philosophy and shows how each was shaped by the radical rethinking entailed by the utilitarian (...) approach. He also discusses interpretations of Benthamism and its contemporary significance and the controversial question of Bentham's influence on reform. Bentham is reproduced here in full together with three classic essays that deal with key issues in understanding Bentham: his conversion to political radicalism, the relations between private and public ethics, and his theory of adjudication. A new introduction and select bibliography by William Twining set the context and survey the developments in Bentham studies since the book's original publication in 1989. (shrink)

Jeremy Bentham, the founder of utilitarianism, made a powerful impact on several major areas of thought and policy: ethics, jurisprudence, political and constitutional theory, and social and administrative reform. Yet from the start his ideas have been subject to misunderstanding and caricature. John Dinwiddy's _Bentham_ is regarded as the best introduction to this important jurist and reformer. Dinwiddy examines the various components of Bentham's philosophy and shows how each was shaped by the radical rethinking entailed by the utilitarian (...) approach. He also discusses interpretations of Benthamism and its contemporary significance and the controversial question of Bentham's influence on reform. _Bentham_ is reproduced here in full together with three classic essays that deal with key issues in understanding Bentham: his conversion to political radicalism, the relations between private and public ethics, and his theory of adjudication. A new introduction and select bibliography by William Twining set the context and survey the developments in Bentham studies since the book's original publication in 1989. (shrink)

This review article offers a European perspective on the pluralistic, principles-based model of intellectual property (IP) advanced by Robert Merges in his book Justifying Intellectual Property. After introducing Merges’s model and theory of IP with reference to IP theories generally, other pluralistic legal models, and patterns of judicial reasoning in the patent and copyright fields, the article argues that European jurisprudence offers broad support for Merges’s operational model of IP, while also challenging certain aspects of his wider analysis. They (...) include his ‘one size fits all’ foundational theory of IP, his account of key IP rules and practices, and his choice and conception of IP’s midlevel principles. Through this critique the article draws attention to the utilitarian bias of Merges’s model; a bias which undermines its pluralistic claims, in part by undermining Merges’s own foundational theory of IP. The result is to underline the limits of a regime unconcerned with its own normative basis, and the need for more rather than less discussion of IP theory, including more work of the type that Merges’s book undertakes. (shrink)

Jeremy Bentham, the founder of utilitarianism, made a powerful impact on several major areas of thought and policy: ethics, jurisprudence, political and constitutional theory, and social and administrative reform. Yet from the start his ideas have been subject to misunderstanding and caricature. John Dinwiddy's Bentham is regarded as the best introduction to this important jurist and reformer. Dinwiddy examines the various components of Bentham's philosophy and shows how each was shaped by the radical rethinking entailed by the utilitarian (...) approach. He also discusses interpretations of Benthamism and its contemporary significance and the controversial question of Bentham's influence on reform. Bentham is reproduced here in full together with three classic essays that deal with key issues in understanding Bentham: his conversion to political radicalism, the relations between private and public ethics, and his theory of adjudication. A new introduction and select bibliography by William Twining set the context and survey the developments in Bentham studies since the book's original publication in 1989. (shrink)

Willem Van der Muelen, jurist and member of the Dutch urban elite, was the author of a huge and widely read commentary on Hugo Grotius’s De iure belli ac pacis. Defined by the Neapolitan philosopher Giambattista Vico as a simple ‘embellisher’ of Grotius, but in recent times hailed as ‘the Dutch Locke’, Van der Muelen certainly deserves more attention. The essay will focus on the justification of political resistance to the sovereign, a particularly controversial issue both in early-modern political thought (...) and in Grotius himself. I argue that Van der Muelen, far from being a simple ‘embellisher’ of Grotius, adopts a more radical view based on a strong individualistic and utilitarian anthropology, bridging the Scholastic and monarchomach ideas of resistance – to which he is still indebted – with modern natural law jurisprudence. Thus he offers an interesting companion to Locke as well as a source of inspiration for later commentators such as Jean Barbeyrac. (shrink)

The essays in this volume offer a reassessment of Jeremy Bentham's strikingly original legal philosophy. Early on, Bentham discovered his 'genius for legislation' - 'legislation' included not only lawmaking and code writing, but also political and social institution building and engineering of public spaces for effective control of the exercise of political power. In his general philosophical work, Bentham sought to articulate a public philosophy to guide and direct all of his 'legislative' efforts. 0Part I explores the philosophical foundations of (...) his public philosophy: his theory of meaning and framework for analysis and definition of key concepts, his theory of human affections and motivations, and his utilitarian theory of value. It is argued that, while concepts of pleasure and happiness play nominal roles in his theory of value, concepts of publicity, equality, and interests emerge as the dominant concepts of his public philosophy. Part II explores several dimensions of Bentham's jurisprudence, including his radically revised command model of law, his early reflections on justice and law in adjudication, his theories of judicial evidence, constitutional rights, the rule of law, and international law. The concluding essay demonstrates the centrality of the notion of publicity in his moral, legal and political thought. Emerging from this study is a positivist legal theory and a utilitarian moral-political philosophy that challenge in fundamental ways contemporary understandings of those doctrines. (shrink)

One of the ways by which Gerald Postema’s Bentham and the Common Law Tradition revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very (...) much against the grain, but this view has since gained considerable support. In my paper I seek to refine it. As I see it, Bentham did not think of utilitarianism as a moral theory. Rather, he is best understood as advancing utilitarianism as a public philosophy—an end for the legislator, and only indirectly applicable for individuals in their everyday lives. This makes Bentham’s utilitarianism tied to his legal philosophy in an even deeper sense than Postema suggested. Law is not there to imitate and help enforce an already existing utilitarian morality that tells people (independently of the law) what they should do. Instead, we should think of law as a mechanism (or a technology) for generating normative guidelines (where those do not otherwise exist). The effect of this is to reverse the familiar way of understanding the relationship between law and morality. (shrink)

This Article considers the moral and legal status of practices that aim to modify traits in human offspring. As advancements in reproductive biotechnology give parents greater power to shape the genetic constitution of their children, an emerging school of legal scholars has ushered in a privatized paradigm of genetic control. Commentators defend a constitutionally protected right to prenatal engineering by appeal to the significance of procreative liberty and the promise of producing future generations who are more likely to have their (...) lives go well. This 'new eugenics,' however, confronts us with ethical challenges that neither liberal arguments about autonomy, fairness, and consent, nor utilitarian arguments about preferences, happiness, and equality, are able to capture. I begin by analyzing the Supreme Court's modern substantive due process jurisprudence, as it bears on recent advancements and controversies in genetic science. After developing a doctrinal framework that could support an asserted right to genetic engineering, I draw on empirical research in behavioral psychology to examine the influence of eugenic norms on egalitarian attitudes and institutions. I predict that if parents become accustomed to choosing the genes of their children, it would be radically more difficult to give an influential account for why the successful should adopt a charitable posture toward those who are less fortunate. I argue that by shifting control over offspring DNA from chance to choice, enhancement will inflate a sense of individual entitlement for social and economic outcomes. I conclude that increasing willingness to prevent the birth of abnormal children distracts attention from institutions that fail to accommodate the limitations of imperfect people. Some may reply that producing people who better fit the roles society chooses to reward need not deter us from providing for people whose abilities fail to meet the demands of modern society. However, this reply misses the way that changes in reproductive practices can bring about changes in the way that we understand our identities and relationships. Eugenic solutions to social problems such as poverty, crime, and unemployment reshape the challenge of genetic disadvantage so that it is no longer one we address through collective measures such as public education, social services, and income redistribution, and instead becomes one for individual parents to prevent through donor screening, embryo discard, or selective abortion. (shrink)

The author discusses the thesis proposed by H. Hazlitt that jurisprudence has developed such methods and principles of solving legal problems that could also serve as a guide in solving ethical problems. The article critically reviews the reasoning behind this thesis made by H. Hazlitt and L. Yeager. A special attention is paid to the influence of J. Bentham’s utilitarian ideas on the formation of Hazlitt’s conception. Not being a lawyer, Hazlitt in the work The Foundations of Morality (...) argued that the law affects morality. In Hazlitt’s ethical theory judicial precedents affect the formation of moral rules. Hazlitt compares the formation of general rules in the sphere of morality and law. Using the formula of evaluation of moral rules proposed by Hazlitt, situations should be considered from three positions: subject of action, object of action, and impartial observer. Even though Yeager develops the ideas of Hazlitt, the former uses different arguments to substantiate the main thesis. Yeager believes that the laws have to declare the norms of morality. However, the arguments of Hazlitt and Yeager should be considered critically, as some researchers have done. As an additional argument to support the article’s main thesis, it is proposed to use the mechanism of conciliation procedures as a model for solving ethical problems. The article concludes that the thesis proposed by Hazlitt is valid but requires further reasoning and research by the philosophers of law. (shrink)

Two deficiencies characterize the vast critical literature that has accumulated around Dworkin's theory of law. On the one hand, the main lines of the debate tend to get lost in the crossfire of objections by critics and rejoinders by Dworkin — with little dialogue between the critics, or any systematic interrelation or resolution of these largely isolated disputes. On the other hand, such arguments on various points of Dworkin's Jurisprudence tend to neglect or obscure underlying issues in philosophical ethics. (...) The present essay is a critical analysis addressing each of these deficiencies in an attempt both to clarify and to advance the debate. The analysis hinges on three basic propositions: (1) that this debate in Jurisprudence has overlooked relevant issues about the nature of moral values; (2) that theories of law, in general, are best assessed in terms of separate descriptive and normative issues, corresponding to a fact/value distinction in ethics; and (3) that the debate on Dworkinian rights has assumed a confused and historically superficial contrast with the utilitarian tradition, in ethical theory as well as in philosophy of law. (shrink)

Though it involves significant harms and is a widespread and entrenched practice, legal punishment lacks a sure philosophical footing. In spite of frequent attempts by utilitarians, retributivists and so called "mixed solution" advocates the problem of justifying punishment remains. This book aims to redress this shortcoming by turning to the German thinkers Kant and Hegel and their idealism to fashion punishment's justification. In the case of Kant this is achieved by developing his construction of justice, while for Hegel it involves (...) taking seriously his theory of recognition and aspects of his logic. In applying ideas from this tradition to a contemporary problem, this book will appeal to both those interested in Kant and Hegel scholarship and its recent resurgence, as well as to students of jurisprudence. (shrink)

Where a man foresaw that through its consequences his action would violate a law, is he for that reason to be judged responsible for the violation of the law? The principle that such a man is responsible, and thus that foresight is sufficient for responsibility, has long been accepted in both legal and moral theory. But in recent years anxieties about this principle have been expressed by both philosophers and lawyers. What one commonly finds in older books, both legal and (...) ethical, is the thesis that foresight is proof of intention. Given that intention is sufficient for responsibility, this thesis has as consequence the principle that foresight is sufficient for responsibility, but it is only required by that principle if one wants to keep the view that intention is also necessary for responsibility in all cases where negligence is not involved. Miss Anscombe made the extraordinary suggestion that this thesis that foresight is proof of intention originates with Sidgwick, and she took him severely to task on this account; indeed, she even implied that Sidgwick's introduction of this thesis is the source of the shallowness of ‘modern’ moral philosophy. While it is true that Sidgwick did endorse this thesis, in a somewhat qualified manner, he was only following an established tradition of utilitarian thought to which the thesis belongs . Thus this thesis occurs in John Austin's 1828 lectures on Jurisprudence and the best early discussion of it is to be found in Bentham's Introduction to the Principles of Morals and Legislation . Bentham, it is true, introduces a distinction between ‘directly intentional consequences’ and ‘obliquely intentional consequences’ which we might describe as a distinction between consequences that are intended and those that are foreseen but not intended. But for Bentham, foresight is proof of intention, and thus for him obliquely intentional consequences are intended: ‘Advisedness with respect to the circumstances, if clear from the mis-supposal of any preventive circumstance, extends the intentionality from the act to its consequences’. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Poetic Justice: The Literary Imagination and Public LifeDavid GormanPoetic Justice: The Literary Imagination and Public Life, by Martha C. Nussbaum; xii & 143 pp. Boston: Beacon Press, 1995, $20.00.This volume, a revision of lectures given in 1991, is a philosophical study comparing aspects of law and literature. The law in question is contemporary American case law (hence the reference to “Public Life” in the book’s subtitle). The literature (...) to which it is juxtaposed consists primarily of “realist social novels” (p. 87), represented chiefly by Dickens’s Hard Times, though with some attention also given to E. M. Forster’s Maurice, Richard Wright’s Native Son, and to passages from Whitman’s poetry (quoted, characteristically, at some length). Nussbaum’s thesis is that both this kind of legal discourse and this kind—or kinds—of literary discourse constitute, involve, or otherwise rely upon an imaginative vision of human life and its possibilities. Thus lawyers have a great deal to learn from literature, insofar as contact with the capacious imaginations of a Dickens or a Whitman can only enlarge the sensibilities of those who read them in a sufficiently open-minded, reflective way.It may be both too kind and overly reductive to ascribe to Poetic Justice such a thing as a thesis. On the contrary, this compact book, like all of Nussbaum’s writings, teems with theories and theses. This is the main reason, I suppose, for the dichotomy of responses to Nussbaum: some find this pullulating quality of her work exhilarating, while others just find it annoying. One advantage that I think both parties will recognize in the compactness of Poetic Justice (due to the constraints of the lecture format) is that it inhibits the author’s native prolixity, which makes her previous books—The Fragility of Goodness (1986), Love’s Knowledge (1990), and The Therapy of Desire (1994)—something of an effort even for Nussbaum’s biggest fans to stay with through every last qualification, tertiary argument, and cross-reference. [End Page 196]The opening pages of these lectures seem, if anything, all too simple. Nussbaum’s initial target is the economistic, deterministic school of social analysis associated with the University of Chicago generally and with Richard Posner in particular, which has lately exercised a disproportionate influence in American jurisprudence and—especially during the Reagan-Bush era—in public policymaking. Against this kind of thinking, which attempts to treat human beings and their actions and decisions as much as possible in terms of quantifiable, statistical measures, Nussbaum emphasizes the autonomy, the irreducible singularity of each human being and the qualitative aspects of each person’s experience, which is the kind of cautionary lesson that she sees literary works as driving home—hence their value as a counterweight, or even a vaccine, against reductive economism. Thus readers will tend to assume from the first lecture (“The Literary Imagination”) that what they are in for, pretty much, is something like Bob Cratchit’s comeback to Ebenezer Scrooge. The Dickensian comparison is not fortuitous, of course, because although the text of reference is Hard Times and not A Christmas Carol, the moral antithesis is familiar enough: a coldly, blindly all-embracing utilitarianism versus a warm, empathetic humanism.Yet, as Nussbaum develops her account, things are not so simple. What emerges is that her aim is not simply to mount an attack on the economic-determinist approach to analyzing (and thus judging) human behavior, but in the first place to understand it, to get inside this worldview. This empathetic response to Chicago-style social analysis, in turn, weaves itself into the texture of Nussbaum’s book in two ways. For one thing, it supports her call to treat literature as making a potentially significant contribution to public life, since what better path can there be to understanding neo-utilitarians like Posner than via imaginative portrayals of such paleo-utilitarians as Mr. Gradgrind? For another thing, moreover, the very gesture of trying to empathize with economic determinism rather than trying to bury it serves the purpose of showing up the latter’s limitations, because this kind of other-directed response is just what the utilitarian approach is least... (shrink)

In The Foundations of Private Law James Gordley argues that the modern private law in common and civil law jurisdictions is best explained on the basis of a neo-Aristotelian theory first developed by a group of 16th century Spanish thinkers known as the ‘late scholastics’. The concepts of distributive and commutative justice that, according to Gordley, lay at core of the scholastics’ theory and that explain, respectively, modern property law and the law of obligations , though ignored and disparaged for (...) much of the 19th and 20th centuries, are today familiar to most private law scholars . Yet Gordley’s understanding of these concepts and, in particular, of their relationship both to one another and to the apex idea of ‘living a distinctively human life’ is unique, setting his account apart not just from utilitarian and other ‘modern’ accounts of private law, but also from other neo-Aristotelian theories . In Gordley’s presentation, commutative justice is derived from distributive justice and distributive justice is derived from the idea of the distinctively human life. Confidently traversing a wide range of historical, comparative and theoretical materials, the book’s argument is at once ambitious, learned, and elegantly presented. But as a theoretical account of the foundations of the modern private law it is unpersuasive. The book’s own account of property law suggests that in practice the idea of distributive justice does little, if any, work in explaining the rules we actually have. Nor is it clear how, if at all, distributive justice flows from the allegedly foundational idea of the ‘distinctively human life’. As for commutative justice, it is not clear why, if is derived from distributive justice in the way Gordley believes, the courts should care about it. Finally, but perhaps most significantly, Gordley’s conception of commutative justice is unable to account for central features of the law of obligations. (shrink)

I come to grips with the deontological critique of constitutional proportionality that asserts that this doctrine ignores rights and slips into the utilitarian maximisation of societal interests. I...

A critical analysis of theories of commercial impossibility and frustration of purpose is best undertaken in conjunction with a theoretical analysis of contract in general. Contracts function as a means of transferring social benefit, which can be subcategorised into subjective and objective benefit. Contracts also regulate the transfer or risk, which is inherent in property and hence any contractual relationship. In the light of the transfer of subjective and objective benefit and risk, contracts can be shown to be by definition (...) ex ante Pareto superior for both parties. Frustration of purpose or commercial impossibility is pleaded where the ex post overall benefit differs greatly from the ex ante expected value. This difference results from the manifestation of a risk which one party bears under the terms of the original contractual risk/benefit equilibrium. Considering the various subjective and objective risks and benefits involved in the contract, it is possible to classify frustrating eventualities under eight heads. In at least six cases the importance of the principle of security of exchange clearly precludes the operation of frustration. One of the remaining cases corresponds with the controversial Krell v Henry; there appears to be a temptation to regard frustration as the most socially utilitarian solution. Given however the dynamics of contractual risk and benefit, allowing frustration there would be unworkable because it would entail placing a subjective risk burden on the party which is in a worse position to evaluate it. There should be no place in the law for a doctrine of frustration of contract on the grounds of commercial impossibility orchanged circumstances. (shrink)

Our reactions to actual crime-disbelief about the act committed, anger at the hurt caused, a desire to get even, and fear for ourselves and our children-arrive in an indecipherable rush of emotion. We perceive strong, intuitive, and sometimes oppositional reactions at once. So it is little wonder that no single traditional moral justification for punishment is satisfactory. Traditional theories, both retributive and utilitarian, are grounded in a priori truths that ignore the convergence of the theoretical, the practical and the (...) emotional that gives rise to the need to punish. In their stead, we should embrace an advertently pragmatic theoretical approach, which recognize the primary need to protect ourselves against danger, but looks as well to providing reformation wherever possible. Such an approach does not ignore the traditional rationales. To eschew retribution entirely is to deny a deeply-rooted moral intuition and forego efforts to tame it. To jettison utility is to condemn the victim and community to perpetual fear; just to the extent that retributive impulses, by any name, undermine necessary forward-looking concerns about our future's safety, they poorly serve our needs, which include service to the victim, the community and the offender. (shrink)

The psychological and neurobiological processes underlying moral judgement have been the focus of many recent empirical studies1–11. Of central interest is whether emotions play a causal role in moral judgement, and, in parallel, how emotion-related areas of the brain contribute to moral judgement. Here we show that six patients with focal bilateral damage to the ventromedial prefrontal cortex (VMPC), a brain region necessary for the normal generation of emotions and, in particular, social emotions12–14, produce an abnor- mally ‘utilitarian’ pattern (...) of judgements on moral dilemmas that pit compelling considerations of aggregate welfare against highly emotionally aversive behaviours (for example, having to sacrifice one person’s life to save a number of other lives)7,8. In contrast, the VMPC patients’ judgements were normal in other classes of moral dilemmas. These findings indicate that, for a selective set of moral dilemmas, the VMPC is critical for normal judgements of right and wrong. The findings support a necessary role for emotion in the generation of those judgements. (shrink)

Recent research has relied on trolley-type sacrificial moral dilemmas to study utilitarian versus nonutili- tarian modes of moral decision-making. This research has generated important insights into people’s attitudes toward instrumental harm—that is, the sacrifice of an individual to save a greater number. But this approach also has serious limitations. Most notably, it ignores the positive, altruistic core of utilitarianism, which is characterized by impartial concern for the well-being of everyone, whether near or far. Here, we develop, refine, and validate (...) a new scale—the Oxford Utilitarianism Scale—to dissociate individual differences in the ‘negative’ (permissive attitude toward instrumental harm) and ‘positive’ (impartial concern for the greater good) dimensions of utilitarian thinking as manifested in the general population. We show that these are two independent dimensions of proto-utilitarian tendencies in the lay population, each exhibiting a distinct psychological profile. Empathic concern, identification with the whole of humanity, and concern for future generations were positively associated with impartial beneficence but negatively associated with instrumental harm; and although instrumental harm was associated with subclinical psychopathy, impartial beneficence was associated with higher religiosity. Importantly, although these two dimensions were independent in the lay population, they were closely associated in a sample of moral philosophers. Acknowledging this dissociation between the instrumental harm and impartial beneficence components of utilitarian thinking in ordinary people can clarify existing debates about the nature of moral psychology and its relation to moral philosophy as well as generate fruitful avenues for further research. (shrink)

Traditional theories of moral development emphasize the role of controlled cognition in mature moral judgment, while a more recent trend emphasizes intuitive and emotional processes. Here we test a dual-process theory synthesizing these perspectives. More specifically, our theory associates utilitarian moral judgment (approving of harmful actions that maximize good consequences) with controlled cognitive processes and associates non-utilitarian moral judgment with automatic emotional responses. Consistent with this theory, we find that a cognitive load manipulation selectively interferes with utilitarian (...) judgment. This interference effect provides direct evidence for the influence of controlled cognitive processes in moral judgment, and utilitarian moral judgment more specifically. (shrink)

ABSTRACT:Many scholars and managers endorse the idea that the primary purpose of the firm is to make money for its owners. This shareholder wealth maximization objective is justified on the grounds that it maximizes social welfare. In this article, the first of a two-part set, we argue that, although this shareholder primacy model may have been appropriate in an earlier era, it no longer is, given our current state of economic and social affairs. To make our case, we employ a (...) utilitarian moral standard and examine the apparent logical sequence behind the link between shareholder wealth maximization and social welfare. Upon close empirical and conceptual scrutiny, we find that utilitarian criteria do not support the shareholder model; that is, shareholder wealth maximization is only weakly linked to social welfare maximization. In view of the dubious validity of this sequential argument, we outline some of the features of a superior corporate objective—a variant of normative stakeholder theory. In the second article, we will advance and defend our preferred alternative and then discuss some institutional arrangements under which it could be implemented. (shrink)

Fichte argues that the conclusion of Kant’s transcendental deduction of the categories is correct yet lacks a crucial premise, given Kant’s admission that the metaphysical deduction locates an arbitrary origin for the categories. Fichte provides the missing premise by employing a new method: a genetic deduction of the categories from a first principle. Since Fichte claims to articulate the same view as Kant in a different, it is crucial to grasp genetic deduction in relation to the sorts of deduction that (...) Kant offers. I propose to interpret genetic deduction as the simultaneous fulfillment of two tasks: answering the question quid facti by deriving the categories from the I and answering the question quid juris by establishing our entitlement to the categories as conditions of experience. While the second task represents Fichte’s agreement with Kant’s transcendental deduction, the first reflects his correction of Kant’s metaphysical deduction. (shrink)

In this book, Omar Farahat presents a new way of understanding the work of classical Islamic theologians and legal theorists who maintained that divine revelation is necessary for the knowledge of the norms and values of human actions. Through a reconstruction of classical Ashʿarī-Muʿtazilī debates on the nature and implications of divine speech, Farahat argues that the Ashʿarī attachment to revelation was not a purely traditionalist position. Rather, it was a rational philosophical commitment emerging from debates in epistemology and theology. (...) He further argues that the particularity of this model makes its distinctive features helpful for contemporary scholars who defend a form of divine command theory. Farahat's volume thus constitutes a new reading of the issue of reason and revelation in Islam and breaks new ground in Islamic theology, law and ethics. (shrink)

In four experiments, we asked subjects for judgements about scenarios that pit utilitarian outcomes against deontological moral rules, for example, saving more lives vs. a rule against active killing. We measured trait emotions of anger, disgust, sympathy and empathy, asked about the same emotions after each scenario. We found that utilitarian responding to the scenarios, and higher scores on a utilitarianism scale, were correlated negatively with disgust, positively with anger, positively with specific sympathy and state sympathy, and less (...) so with general sympathy or empathy. In a fifth experiment, we asked about anger and sympathy for specific outcomes, and we found that these are consistently predictive of utilitarian responding. (shrink)

There is currently an unrecognised conflict between the utilitarian nature of the overall NHS and the basic deontology of the doctor-patient interaction. This conflict leads to mistrust and misunderstanding between managers and clinicians. This misunderstanding is bad for both doctors and managers, and also leads to waste of time and resources, and poorer services to patients. The utilitarian thinkers tend to value finite, short term, evidence based technical interventions, delivered according to specifications and contracts. They appear happy to (...) break care up into smaller pieces, which can then be commissioned from multiple providers. The deontological thinkers tend to think about care delivered through a long term continuous relationship, and regard that relationship as therapeutic and salutogenic in itself. To them breaking care up into smaller fragments is a denial of what caring is really about. Very rarely are either or both sides of this debate fully aware of where their powerfully felt and often well argued positions start from. In this paper we offer an appraisal of the strengths and weaknesses of both moral viewpoints as applied in the UK NHS context and we suggest a way in which they can be reconciled, provided neither is pushed too far or too hard against the other. We believe this reconciliation would be good for patients, doctors, managers and improve the service as a whole. (shrink)

We distinguish and review aspects of the history of two models of triage: egalitarian and utilitarian. Egalitarian triage is widely and successfully practiced in battlefield medicine, as well as in the emergency room and the ICU. Utilitarian triage has been sporadically practiced and typically collapses under the pressure of public scrutiny. Unfortunately, the two models tend to be conflated, confusing our understanding of the past and confounding our ability to plan for the future.

This impressive volume is the first attempt to look at the intertwined histories of jurisprudence and science in early modern Europe. Taking an interdisciplinary approach these articles stimulate new debate in the areas of intellectual history and the history of philosophy, as well as the natural and human sciences in general.

Bovine tuberculosis is an important animal health policy issue in Britain, which impacts farmers, the public, domestic farmed cattle and the wild badger population. The Westminster government’s badger culling policy in England, which began in 2013, has caused considerable controversy. This is in part because the Independent Scientific Group advised against culling, based on the Randomised Badger Culling Trial. Those opposed to badger culling support more stringent cattle-based measures and the vaccination of badgers. This paper argues for ethical analysis of (...) public policy options which impact sentient species. It provides a summary Animal Welfare Impact Assessment of a do-nothing approach, badger culling, and badger vaccination. A utilitarian analysis is then applied to these policy options considering human wellbeing and animal welfare. The analysis compares a badger culling policy that achieves a 19% reduction in bovine TB incidence, a badger vaccination model achieving a 12.5% reduction, and a do-nothing approach. Policy options are assessed over 9 years and a longer timeframe, and uncertainty is considered. The analysis finds that non-culling approaches, particularly badger vaccination, result in greater total utility, compared to badger culling. Badger culling causes 30% reduction in the badger population in England as well as substantial harms due to the culling process. Culling is opposed by public opinion and is associated with considerable risks and uncertainty. In contrast, non-culling approaches, such as cattle-based measures and badger vaccination, are supported by public opinion and are not associated with such risks. (shrink)

Doctors occasionally make diagnoses in strangers outside of formal medical settings by using the medical skill of visual inspection, such as noticing signs of melanoma or the symptoms of hyperthyroidism. This may cause considerable moral unease and doubts on the side of the diagnosing physician. Such encounters force physicians to consider whether or not to intervene by introducing themselves to the stranger and offering an unsolicited medical opinion despite the absence of a formal doctor-patient relationship. A small body of literature (...) has addressed the topic of the unsolicited medical opinion, often with a primary focus on practical advice. This article seeks to establish an ethical-theoretical basis for physicians' ethical obligation to offer an unsolicited medical opinion when they make a diagnosis by visual inspection in a stranger outside of the formal medical context. Using a utilitarian approach, it is argued that, if it is in the physicians' power to prevent a possible loss of well-being, without thereby sacrificing anything of equal value, physicians have an ethical obligation to intervene. (shrink)