UTILITARIAN GENERALIZATION Sometimes an act is criticized just because the results of everyone's acting similarly would be bad. The generalization test ...

An introduction to the philosophy of law, which offers a modern and critical appraisal of all the main issues and problems. This has become a very active area in the last ten years, and one on which philosophers, legal practitioners and theorists and social scientists have tended to converge. The more abstract questions about the nature of law and its relationship to social norms and moral standards are now seen to be directly relevant to more practical and indeed pressing questions (...) about the justification of punishment, civil disobedience, the enforcement of morality, and problems about justice, rights, welfare, and freedom. David Lyons is a shrewd, clear and systematic guide through this tangled area. The book presupposes no formal training in law or philosophy and is intended to serve as a textbook in a range of introductory courses. (shrink)

What determines whether an action is right or wrong? Morality, Rules, and Consequences: A Critical Reader explores for students and researchers the relationship between consequentialist theory and moral rules. Most of the chapters focus on rule consequentialism or on the distinction between act and rule versions of consequentialism. Contributors, among them the leading philosophers in the discipline, suggest ways of assessing whether rule consequentialism could be a satisfactory moral theory. These essays, all of which are previously unpublished, provide students in (...) moral philosophy with essential material and ask key questions on just what the criteria for an adequate moral theory might be. (shrink)

Some forms of ethical relativism seem to endorse strict contradictions. Various forms of relativism are distinguished, And their vulnerability to such charges compared. Means of avoiding incoherence are considered. Relativistic justification seems either innocuous but nonrelativistic or else unintelligible. Relativistic analyses of moral judgments are implausible and seem required for no other purpose than to avoid charges of incoherence.

This volume collects David Lyons' well-known essays on Mill's moral theory and includes an introduction which relates the essays to prior and subsequent philosophical developments. Like the author's Forms and Limits of Utilitarianism (Oxford, 1965), the essays apply analytical methods to issues in normative ethics. The first essay defends a refined version of the beneficiary theory of rights against H.L.A. Hart's important criticisms. The central set of essays develops new interpretations of Mill's moral theory with the aim of determining how (...) far rights can be incorporated in a utilitarian framework. They Mill's analysis of moral concepts promises to accommodate the argumentative force of rights, and also provide a significant new reading of Mill's theory of liberty. The last essay argues that the promise of Mill's theory of justice cannot be fulfilled. Utilitarianism is unable to account for crucial features of moral rights, or even for the moral force of legal rights whose existence might be justified on utilitarian grounds. (shrink)

David Lyons challenges us to confront grave injustices committed in the United States, from the colonists' encroachments on Indian lands to slavery and the legacy of racism. He calls upon legal and political theorists to take these social wrongs seriously in their approaches to moral obligation under law and the justification of civil disobedience.

David Lyons is one of the pre-eminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses 'formal' justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)

J s mill's principle of liberty is often thought to say that the only good reason for interfering with a person's conduct is that it is harmful to others. An alternative interpretation is defended: that the only good reason for interfering is to prevent harm to others. Harm-Prevention is the aim, But the latter principle allows that conduct affected not be harmful; interference must be calculated to prevent harm to others, Perhaps indirectly. This accords with mill's official statement of his (...) principle, Accommodates his own otherwise troublesome examples of cooperation and good samaritan requirements, And fits as well with the texts. (shrink)

Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read but often caricatured. The present book offers a reinterpretation of Bentham's main philosophical doctrines, his principle of utility and his analysis of law, philosophical doctrines, as they are developed in Bentham's most important works. A new reading is also given to his theory of law, which suggests Bentham's insight, originality, and continued interest for philosophers and legal theorists. First published in 1973, (...) this revised edition contains a new Preface, a revised Bibliography, and two new Indexes, one of Names and one of Subjects, which together replace the original index. (shrink)

John Stuart Mill's Utilitarianism continues to serve as a rich source of moral and theoretical insight. This collection of articles by top scholars offers fresh interpretations of Mill's ideas about happiness, moral obligation, justice, and rights. Applying contemporary philosophical insights, the articles challenge the conventional readings of Mill, and, in the process, contribute to a deeper understanding of utilitarian theory as well as the complexity of moral life. Visit our website for sample chapters!

I. CONSTITUTIONAL ORIGINALISM By “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.

Philosophers of law generally appear to assume that there is a very close connection between a judicial decision’s being required by law and its being justified. In this paper I shall try to show that this assumption is mistaken.

Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read but often caricatured. The present book, based on a study of Bentham's most important works, offers a reinterpretation of Bentham's main philosophical doctrines, his principle of utility and his analysis of law. The evidence indicates that Bentham was no `universalist' in morals, but embraced a dual standard - in politics the community's interest, in `private ethics' the agent's interest - which may (...) in turn be based on the idea that government should serve the interests of those who are `governed'. The argument challenges many common assumptions about Bentham's view of human nature and of political institutions. A new reading is also given to his theory of law, which suggests Bentham's insight, originality, and continued interest for philosophers and legal theorists. In the Interest of the Governed was first published in 1973. This revised edition contains a new Preface, a revised Bibliography, and two new Indexes, one of Names and one of Subjects, which together replace the original index. (shrink)

Compares formalism and instrumentalism and evaluates their general claims. “Part of what is meant by formalism is this: The law provides sufficient basis for deciding any case that arises. There are no “gaps” within the law, and there is but one sound legal decision for each case.” The formalist also holds that law is traceable to an authoritative source. “…sound legal decisions can be justified as the conclusions of valid deductive syllogisms. Because law is believed to be complete and univocal, (...) all cases that arise can in principle be decided in this way. This is the formalistic model for legal justifications.” Moderate instrumentalism also accepts the notion that the law has sources and that past political events can determine what the law is for the future. However, they also maintain that the law has gaps. “Moderate instrumentalists and positivists alike embrace a source-based conception of the law as well as a formalistic model for legal justification; partly because of this combination, they reject the formalistic notion that law is complete and univocal. Instrumentalists, like positivists, emphasize that because the interpretation of authoritative legal texts and their application to cases are often controversial, reasonable arguments are often possible on both sides of a legal issue. Since there are no hard and fast rules for adjudicating such disputes, positivists conclude that law in such cases is indeterminate – not yet fully formed, needing judicial legislation. Instrumentalists most likely have a similar view of the law. They assume that law is determinate on an issue at a given time only if its identification and application are, roughly speaking, mechanical.” [Must keep in mind the distinction between determinate and conclusive.] “The instrumentalists make the decisive assumption that law is not determinate if it is controversial, for law is thought to be gappy and indeterminate only when reasonable legal arguments are possible on both sides of a legal question…This reasoning exposes a more fundamental assumption of formalism, instrumentalism, and positivism: Nondeductive reasoning is incapable of adequately establishing any conclusion.” This, though, is a radical thesis given that all scientific hypotheses are unproven deductively. [But it might be a claim restricted to legal reasoning. Moreover, it seems legitimate to wonder whether legal reasoning is really comparable to offering scientific hypotheses.] We should, however, reject the mechanistic model of legal and judicial reasoning that assumes a given major premise captured in authoritative legal texts that deductively produces conclusions in a situation to which a law applies. Take a law that requires some activity to be “economically efficient” but fails to specify economic efficiency. The text assumes that there is such a thing as economic efficiency, that some activities are so efficient and others not, that some judgments about economic efficiency are true and others false, and that the criteria of efficiency are determinable in principle. “[I]f there really are reasons for preferring one conception of economic efficiency to others in a given context, the assumption of the law in question would be true; if the court correctly identifies and applies that conception, it is simply carrying out its legal mandate. It would be faithful to the text, but it would not be limited to the four corners of the text and its literal implications.” Thus, a judge may employ non-mechanical reasoning in arriving at the meaning of legal requirements such as economic efficiency. Moral reasons are constitutive of the law. A judge must, in deciding the appropriate conc ption of economic efficiency, offer reasons for preferring that conception in the given context. (shrink)

This paper discusses non-ideal theory as guidance for making bad situations better by morally permissible means. It distinguishes constructive theorizing, which suggests ways of improving specific kinds of bad situation, from cautionary theory, which concerns moral risks of actions under bad conditions. Reflective moral judgment yields cautionary precepts, identifying presumptively unjustifiable modes of action. The paper illustrates the application of precepts cautioning about coercion and the exposure of others to significant risks, by considering the 1955–1956 bus boycott in Montgomery, Alabama, (...) and the ‘Children’s Crusade’ of the 1963 Birmingham desegregation campaign. All such campaigns involve coercive elements, but the paper argues that coercion was not a morally significant factor in either case. Endangerment is another matter: given the violent, sometimes lethal, reactions to civil rights actions under Jim Crow, those two campaigns’ endangerment of innocent persons must be taken very seriously, especially as it concerns Birmingham. And, in fact, potentially lethal anti-reform violence occurred during each campaign. Relevant factors include the preparation and understanding of young participants and the difference in risk that is assumed by engaging in peaceful, nonviolent public actions. (shrink)

David Lyons; VII*—The Internal Morality of Law, Proceedings of the Aristotelian Society, Volume 71, Issue 1, 1 June 1971, Pages 105–120, https://doi.org/10.1093.

David Lyons; VII*—The Internal Morality of Law, Proceedings of the Aristotelian Society, Volume 71, Issue 1, 1 June 1971, Pages 105–120, https://doi.org/10.1093.