Legal Positivism

LEGAL POSITIVISM

Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law. Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law. Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which study the concrete prevailing circumstances of statutory interpretation in society. The word “positivism” was probably first used to draw attention to the idea that law is “positive” or “posited,” as opposed to being “natural” in the sense of being derived from natural law or morality.

LEGAL POSITIVISM vs NATURAL LAW In many discussions of the nature of law, the terms “legal positivism” and “natural law” are assumed to be the names of rival theories. In fact, each of these designations stands for a number of different and logically distinct doctrines, with the unfortunate result that in many disputes between “positivism” and “natural law”. There are two “natural law” theories about two different things: i) a natural law theory of morality, or what’s right and wrong, and ii) a natural law theory of positive law, or what’s legal and illegal. The two theories are independent of each other: it’s perfectly consistent to accept one but reject the other. Legal positivism claims that ii) is false.

Legal positivism and the natural law theory of positive law are rival views about what is law and what is its relation to justice/morality. Natural Theory of Morality a. Even things which are not man-made (e.g. plants, rocks, planets, and people) have purposes or functions, and the “good” for anything is the realization of its purpose or function. b. The good for us human beings is happiness, the living of a flourishing life. Happiness or flourishing consists in the fulfillment of our distinctive nature, what we “by nature” do best. That involves the development and exercise of our capacities for rationality, abstract knowledge, deliberative choice, imagination, friendship, social cooperation based on a sense of justice, etc. The moral virtues (e.g. courage, justice, benevolence, temperance) are character traits that help us fulfill our true nature. The life of the heroin addict or of the carnal hedonist is not a good one, because it is inconsistent with our natural function. c. Natural law is the set of truths about morality and justice; they are rules that we must follow in order to lead a good or flourishing life. We can know what these principles are by means of unaided human reason. [The natural law theory of morality rejects ethical subjectivism (“right and wrong are all a matter of opinion”) and affirms ethical objectivism (“some moral opinions are more valid, reasonable, or likely to be true than others”)]. Immoral acts violate natural law. Hence, immoral behavior is “unnatural” (in the sense of “contrary to our function,” not “nowhere to be found in the natural world”), whereas virtuous behavior is “natural.” For example, lying is unnatural, Aquinas holds, because the function of speech is to communicate to others what is in our minds. When we use words to mislead others, we are using them contrary to their proper function. Natural Law Theory of Law Legal systems have a function—to secure justice. Grossly unjust laws (e.g. “White people may own Black people as slaves,” “women may not own property or vote”) are not really laws at all, but a perversion of law or mere violence. As St. Augustine put it, lex injustia non est lex. Aquinas’s way of stating this point: positive law has as its

purpose the common good of the community. Any positive law which conflicts/is inconsistent with either natural law or divine law is not really law at all. Hence, not only is there no moral obligation to obey it, but there is no legal obligation to obey it, either. Augustine, Aquinas, and Martin Luther King are supporters of this view. Lon Fuller argued there is some necessary overlap between legality and justice, because it’s impossible to have a legal system without fidelity to the rule of law and formal justice. (Fuller would probably have cited Iraq under Saddam Hussein as a good example of a society that violated the rule of law so much that it really had no genuine legal system at all). But Fuller does not go as far as Augustine or Aquinas, because he admits that a society can have a genuine legal system that satisfies the demands of formal justice (“like cases must be treated alike”) yet still have particular laws that are unjust. In such a society, judges are independent of the other branches of government and decide cases on their merits, the society honors the principles “no punishment without a crime” and “no crime without a pre-existing, public law,” the accused receives a fair trial with due process of law, etc. But still, some of the laws that are consistently and fairly enforced are unjust (e.g. “women may not own property or vote”). Ronald Dworkin, whom will talk about more later, defends a view of legal interpretation (by judges) that he claims is in the tradition of the natural law theory of positive law. Dworkin argues it is proper for Supreme Court justices to interpret the Constitution in light of the correct principles of justice that our country tries to honor. Legal Positivism Whether a certain rule is a law, creating legal obligations to comply with it, all depends on its source. Valid laws are simply rules that come from certain people (kings, city councils, etc.), in accordance with certain procedures, that the society enforces. A rule can be a genuine, valid law even though it is grossly unjust. According to H.L.A. Hart, a contemporary legal positivist, the essence of legal positivism is the “separation thesis.” Separation thesis is having a legal right to do x doesn’t entail having a moral right to do it, and vice versa; having a legal obligation to do something doesn’t entail having a

moral right to do it, and vice versa; having a legal justification to do something doesn’t entail having a moral justification, and vice versa; etc. In order to know what your legal rights are, you need to look at what laws your society has. In order to know what your moral rights are, you need to figure out what is the true morality. You might have legal rights that the true morality says you shouldn’t have (e.g. the right to own slaves), and your society might deny you legal rights that the true morality says you should have (e.g. the right to be free, to own one’s own body and labor power). Some of the most influential defenders of legal positivism are the 19 th century philosophers John Austin and Jeremy Bentham, and the 20 th century legal philosophers, Hans Kelsen and H.L.A. Hart. POSITIVISM AS A THEORY OF A FORM OF LEGAL STUDY The positivists, while differing, agreed that there is an important branch of legal study distinguished by two features: that it is not concerned with any ideal law or legal system but only with actual or existent law and legal systems; and that its concern with law is morally, politically and evaluatively neutral. The object of this form of legal study is the clarification of the meaning of law, the identification of the characteristic structure of legal system, and the analysis of pervasive and fundamental legal notions, such as right, duty, ownership, or legal personality. POSITIVISM IN THE DEFINITION OF LAW The definition of law as the command of the “sovereign” is no doubt the most prominent example of a form of positivism. But the expression “positivist” is also used in a wider sense to include any doctrine according to which law is defined as the expression of human will or as manmade, even if it does not take the form of a command. Thus, both the doctrines known in American jurisprudence by the loose title of “legal realism,” according to which only decisions of courts and the predictions of such decisions are law, and those theories of international law which insist that it is composed exclusively of rules originating in custom or in agreements between states are usually described as positivist.

POSITIVISM AS A THEORY OF THE JUDICIAL PROCESS Sometimes the term “legal positivism” is used to refer to the view that correct legal decisions are uniquely determined by pre-existing legal rules and that the courts either do or should reach their decisions solely by logical deduction from a conjunction of a statement of the relevant legal rules and a statement of the facts of the case. This is sometimes referred to as the “automatic” or “slot-machine” conception of the judicial process. POSITIVISM AS THEORY OF LAWS AND MORALS All writers classed as positivist have subscribed to the view that unless the law itself provides to the contrary, the fact that a legal rule is morally iniquitous or unjust does not entail that it is invalid or not law. This view may also be expressed as the claim that no reference to justice of other moral values enters into the definition of law. “The existence of law is one thing; its merit or demerit another” (Austin). “Legal norms may have any kind of content” (Kelsen). Such a denial of a necessary or definitional connection between law or legal validity and morality is perhaps the principle point of conflict between legal positivism and natural law. JOHN AUSTIN John Austin was born on 3 March 1790 at Creeting St. Mary. He was a noted English legal theorist who strongly influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing traditional "natural law" approaches, Austin argued against any necessary connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way. In his work, Austin outlines the basic theory, originated by Bentham, underlying what has since come to be called legal positivism due to its implicit argument that the law is based on no higher authority than the will of the sovereign power. Austin's utilitarian beliefs also inform his argument, for he further maintains that a law's utility is based on its general application rather than application to a specific instance or action. While a procedural matter may result in one guilty man being set free, it is

nonetheless a just law if by its continued application it results in most guilty men being convicted. Austin’s particular theory of law is often called the “command theory of law” which states that: law is the command of the sovereign, backed by a threat of sanction in the event of non-compliance. Austin’s best known work is The Province of Jurisprudence Determined, published in 1832. Here, in order to clarify the distinction between law and morality, which he considered to be blurred by doctrines of Natural Law, he elaborated his definition of law as a species of command. According to Austin, commands are expressions of desire that another shall do or avoid from some act and are accompanied by a threat of punishment for disobedience. Commands are laws simply and properly so-called when they prescribe courses of conduct, not specific acts, and are set by the sovereign. This is the mark distinguishing positive law both from the fundamental principles of morality, which are the law of God, and from positive morality, or manmade rules of conduct, such as etiquette, conventional morality, and international law, which do not arise from a sovereign. The Province of Jurisprudence Determined also contains a version of Utilitarianism in which “utility” is regarded as the index of God’s commands and the test of the moral quality of general rules of conduct rather than of particular actions. Austin's basic approach was to ascertain what can be said generally, but still with interest, about all laws. Austin's analysis can be seen as either a paradigm of, or a caricature of, analytical philosophy, in that his discussions are dryly full of distinctions, but are thin in argument. The modern reader is forced to fill in much of the metatheoretical, justificatory work, as it cannot be found in the text. Where Austin does articulate his methodology and objective, it is a fairly traditional one: he “endeavoured to resolve a law (taken with the largest signification which can be given to that term properly) into the necessary and essential elements of which it is composed”. As to what is the core nature of law, Austin's answer is that laws (“properly so called”) are commands of a sovereign. He clarifies the concept of positive law (that is, manmade law) by analysing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar: • “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with. • Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink

wine”). • Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God's general commands, and the general commands of an employer to an employee. • The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign. • Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics). 
 (Austin 1832: Lecture I). Austin also wanted to include within “the province of jurisprudence” certain “exceptions,” items which did not fit his criteria but which should nonetheless be studied with other “laws properly so called”: repealing laws, declarative laws, and “imperfect laws”—laws prescribing action but without sanctions (a concept Austin ascribes to “Roman [law] jurists”) (Austin 1832: Lecture I, p. 36). In the criteria set out above, Austin succeeded in delimiting law and legal rules from religion, morality, convention, and custom. However, also excluded from “the province of jurisprudence” were customary law (except to the extent that the sovereign had, directly or indirectly, adopted such customs as law), public international law, and parts of constitutional law. Within Austin's approach, whether something is or is not “law” depends on which people have done what: the question turns on an empirical investigation, and it is a matter mostly of power, not of morality. Of course, Austin is not arguing that law should not be moral, nor is he implying that it rarely is. Austin is not playing the nihilist or the skeptic. He is merely pointing out that there is much that is law that is not moral, and what makes something law does nothing to guarantee its moral value. “The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals”. In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial lawmaking as “highly beneficial and even absolutely necessary”. Nor did Austin find any difficulty incorporating judicial law-making into his command theory: he characterized

that form of law-making, along with the occasional legal/judicial recognition of customs by judges, as the “tacit commands” of the sovereign, the sovereign's affirming the “orders” by its acquiescence.

HERBERT LIONEL ADOLPHUS HART

As a legal philosopher, Hart drew heavily on the tradition of legal positivism, especially the works of Jeremy Bentham and John Austin, as well as their follower John Stuart Mills.

Legal

positivists

based

their

theories

on

three

basic

tenets.

First, they argued that what the law is and what the law should be are two separate questions; therefore, there is no connection between legality and morality. A law can be legitimized by a society but also be immoral, and an evil regime can still institute a system of laws. Second, they held that the analysis of legal concepts, such as a legal system, rules, and rights, is an important endeavour. Third, they argued that laws are commands issued by a sovereign whom the public obeys out of habit. Hart concurred on the first two points. However, he disagreed that the foundation of a legal system rests in the power of a sovereign to command. Hart’s theory started by pointing out Austin’s mistakes. For Austin, laws imply a threat created by a sovereign. For Hart however, law makers are not above the law, they have to respect the laws they create. Laws are not obeyed because of the coercive demands of the government, rather, obligation stems from the social rules of a given society. And that a

legal

system

is

not

a

compilation

of

individual

laws.

He challenged Austin’s representation of law specifically as a tool of coercion on two grounds:

Primary rules

The division of commander and commanded is not as straightforward as Austin suggests. Parliament makes laws and these laws apply equally to the members of the public/citizens and the parliament itself.

Example: Parliamentarians pays taxes just like everyone else.

Power-conferring

The process is not as arbitrary as Austin suggest. Rather than imposing duties or obligations laws will frequently confer power and privilege. For Hart, not all laws will coerce us in doing something.

Examples: 

Freedom of speech. The right to free speech doesn’t require us to speak nor does it prohibits us from speaking. It provides us the freedom to do so, if we so choose.



Marriage



writing a will

These don’t impose obligations, don’t imply any threat, and don’t bring out any punishment if we break them. They are legal rules; however, they don’t seem to have one of the key elements from Austin’s theory. H. L. A. Hart famously held that “brute force alone does not make for law”. To Hart it’s not simply a choice between coercive orders or moral commands, but that laws will ultimately serve a variety of purposes.

Laws serve so many rules; Some laws are commands: wear seatbelts. Some laws are moral: the prohibition of a romantic sexual relationship between an adult and a child or the prohibition of an incestuous marriage. Some laws are administrative: Certificate of live birth. Some laws are opportunistic. Laws punish, laws rewards, laws organize contracts, laws establish courts, and laws clarify how laws are to be enacted, amended, and abrogated. Laws can be suggestive, and laws can be coercive.

Hart believes Austin is mistaken in saying that obedience is the foundation of the legal System. To Hart it is a manner of acceptance.

Hart decided to classify the legal rules into two sets: 

Primary rules- Primary rules are those that regulate behaviors directly. It refers to people’s conduct and gives permission or prohibition (to do or not to do).

The citizens are bound by these rules not because the state will punish them if they do not comply, but the citizens themselves will consent to being bound by the law.

Example: People feel obligate to follow the rules on the road. Most people refrain from speeding, stop at red lights, give pedestrians right of way. Not because they are afraid of being punished, but because they accept that it is a sensible way of regulating driving.

We believe that following the rules on the road is the right thing to do for us and for others, 

we

therefore

accept,

our

duty

to

obey

the

law.

Secondary rules- Refers to the Law making rules that public officials accept. It states how the “primary rules” are to be created.

In this way the law will be valid if there is a procedure that can be used to identify how the law was enacted and whether it followed the correct procedures. If we can identify that, then the law will be valid.

Hart distinguishes three types of secondary rules that mark the transition from primitive forms

of

law

to

full-blown

legal

systems:

(1) The rule of recognition, which "specifies some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts". (Hart 1994, p. 92) (2) The rule of change, which enables a society to add, remove, and modify valid rules.

(3) The rule of adjudication, which provides a mechanism for determining whether a valid rule has been violated.

Every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity that include provisions for making, changing and adjudicating law. Law is, to use Hart's famous phrase, "the union of primary and secondary rules" (Hart 1994, p. 107). For him, to enjoy a full legal formed legal system, both primary and secondary rules of obligations must be in effect. Austin theory fails, on Hart's view, because it fails to acknowledge the importance of secondary rules in manufacturing legal validity. To sum up, for Hart, there are two minimum conditions sufficient and necessary for the existence of a legal system; on one hand, those rules of behavior which are valid according to the system's ultimate criteria of validity must be generally obeyed. And on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials.

Moral and legal rules may overlap, because moral and legal obligation may be similar in some situations. However, moral and legal obligation may also differ in some situations. Moral and legal rules may apply to similar aspects of conduct, such as the obligation to be honest and truthful or the obligation to respect the rights of other individuals. However, moral rules cannot always be changed in the same way that legal rules can be changed. According to Hart, there is no necessary logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification. For him legality is never determined by morality but by social practice. If a judge must resort to morality to issue a ruling the content of law becomes arbitrary. If morality is the basis of law, whose morality

is

the

judge

to

apply

when

resolving

a

conflict?

A citizen must be able to distinguish between the demands of their conscience and the demands of the state. Morality is difficult to pinpoint. Unlike a law which is contained in a statute of a judgment.

Herbert Lionel Adolphus Hart became a leading scholar in the field of legal philosophy after publishing his most influential work, The Concept of Law, in 1961. Hart was a foremost proponent of legal positivism.

HANS KELSEN Hans Kelsen was an Austrian Jurist, a Legal and Political Philosopher who is broadly known for The Pure Theory of Law. As expressed by Hartney, M. (1997), the most fascinating component of the pure theory of law is its “purity” from both morals and sociological considerations, philosophically. It rejects any type of the Natural Law Theory since it denies the objectivity of values and norms and expels all moral considerations from the domain of “legal science”. Hans Kelsen wishes to free the law from the magical fog of Natural Law, he desires to create a pure science of Law, stripped of all insignificant material and to isolate law. Hans Kelsen wishes his hypothesis to wind up plainly absolutely objective.

The Pure Theory of Law is a theory of Positive Law. As a theory, its select intention is to know and to depict its protest. The Theory endeavours to answer the inquiry what and how Law is and not how it should be. It is, in this way, an investigation of law ( statute ), not legitimate governmental issues. Furthermore, It is called “pure” theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. The Law should not attempt to describe, it shall lay down standards of action men ought to follow.

As indicated by Kelsen's Theory, Law is described by a fundamental shape and essential standard. The form of every law is that of a conditional order, directed at the courts, to apply sanctions if a certain behavior is performed. On this view, the law is a backhanded arrangement of direction: it doesn't instruct subjects; it advises authorities what it should do to its subjects under specific conditions. Thus, what we ordinarily regard as the legal duty not to steal is for Kelsen merely a logical effect of the primary norm, which we know prescribes a sanction for stealing.

Norm

Kelsen's most important contribution is He maintains that law is normative and must be understood as such. "Might don't make right - not in any case legitimate right - so the logic of law must clarify the way that law is taken to force however not constrain commitments regarding its matters. In addition, the law is a standardizing framework: "Law isn't, as it is now and again stated, a rule. It is an arrangement of guidelines having the sort of solidarity the sovereign complies with and acknowledges to comprehend as a framework" (Green, 2003)

As upheld by (Kelsen) "Norm" is the significance of a demonstration by which a specific conduct is instructed, allowed, or approved. The judgment that a demonstration of human conduct, performed in time and space, is "legitimate" ( or "unlawful" ) is the consequence of a particular, regularizing, translation. Norms which have the character of lawful standards and which make certain demonstrations legitimate or unlawful are the objects of the science of law. The legal order is a normative order of human behavior- a system of norms regulating human behavior. By “norm” we mean something ought to be or ought to happen.

In any case, According to Kelsen, regardless of whether an entire group consistently consents to acknowledge a specific constitution, that assention has no lawful impact until the point that a constitution is received which will then make how a law will be set down.

Grundnorm

In the Pure Theory of Law, the bases is the Grundnorm, this is the place all principles or standards are gotten from. Under Kelsen’s theory, no standard is impartially legitimate. The 'source' of legitimacy, along these lines, must be a standard that is thought to be substantial: the essential standard or Grundnorm. The Grundnorm isn't a legitimate standard, it is rather a standard that is thought to be substantial by the lawful researcher inspecting the lawful framework. A lawful standard is then any standard got from this Grundnorm. Where there is a composed Constitution the

Grundnorm is simply the Constitution. The essential lead at that point is that the Constitution must be complied, The constitution at that point can be said to be the unifying component and thererfor is the Grundnorm. For the order to be qualified as a substantial legitimate framework, the standard must be obeyed more often than not and should be viable collectively for it to be acknowledged as a standard. This implies a lawful scholar's decision of Grundnorm isn't subjective – we need to pick the Grundnorm that offers legitimacy to the administrative expectation of the Grundnorm, which in the present case is the Constitution. In Kelsen's framework there are no impartially substantial standards and along these lines there is no unbiasedly right or wrong approach to get a standard from a higher standard on the grounds that in the lead position all that is critical is the legitimacy of the standard. The legitimacy of the source is controlled by regardless of whether the individual who inferred the legitimate standard was approved to do as such. It is accepted in this hypothesis that each deduction made by an approved and authorised lawful organ is consequently legitimate. (McCarthy, 2014)

JEREMY BENTHAM Jeremy Bentham was an English philosopher and political radical. He is primarily known today for his moral philosophy, especially his principle of utilitarianism, which evaluates actions based upon their consequences. The relevant consequences, in particular, are the overall happiness created for everyone affected by the action. Influenced by many enlightenment thinkers, especially empiricists such as John Locke and David Hume, Bentham developed an ethical theory grounded in a largely empiricist account of human nature. He famously held a hedonistic account of both motivation and value according to which what is fundamentally valuable and what ultimately motivates us is pleasure and pain. Happiness, according to Bentham, is thus a matter of experiencing pleasure and lack of pain.

An Introduction to the Principles and Morals of Legislation Jeremy Bentham's most important theoretical work is the “An Introduction to the Principles of Morals and Legislation” originally printed in 1780, and first published in 1789. Bentham's "most important theoretical work, it is where Bentham develops his

theory of utilitarianism and is the first major book on the topic. Bentham used this text to outline a process of moral decision-making that depends only on the consequences of actions. Utility, or happiness, is valued. This work was provided moral justification and guidance for lawmakers who are formulating a penal code (i.e., creating laws to specify punishment for crimes). The idea that criminals deserve punishment, retributive justice, is popular among lawmakers and so Bentham addresses it. Similarly, the role for restorative, distributive and procedural justice can be evaluated from a utilitarian perspective.

GREATEST HAPPINESS PRINCIPLE Utilitarianism is based off of the Greatest Happiness Principle which states that actions are considered moral when they promote utility and immoral when they promote the reverse. Utility itself is defined by Mill as happiness with the absence of pain. The main elements of this philosophy are one's actions and their resulting utility. A person is considered moral when their actions tend to promote utility of the general public in accordance with the Greatest Happiness Principle. However, just an action increasing utility does not necessarily imply a moral action. In order for the action to be moral it must be the optimal choice in increasing utility and minimizing pain. Since it is difficult to determine the superior of two vastly different results, Mill provides us with a system to determine which choice would have the higher quality. This system has the proper judges of the actions determine which they prefer. Whichever is preferred by a majority is considered the action with a higher quality result and thus would be more moral to perform than the action with a lower quality result. In the result of a tie, both choices are considered equally moral. The judges for the actions are those who have had sufficient experience to be able to give a preference. They must have experienced the utility of outcomes to a certain extent in order to properly weigh them.

THE PRINCIPLE OF UTILITY Utilitarianism states that actions or behaviors are right in so far as they promote happiness or pleasure, wrong as they tend to produce unhappiness or pain. Hence, utility is a teleological principle. This once again raises some of the same basic issues of associated with hedonism, as discussed in the earlier section on Teleological Theories. Recall that a hedonist believes that the good life consists solely in the pursuit

and experience of pleasure or happiness. The feelings of pleasure and pain are biological events involving our central nervous system, which are controlled by our cerebral cortex. We obviously experience pleasure when we perform certain acts that fulfill biological functions such as eating, drinking, and having sex. We also experience pleasure when we perform certain intellectual activities, such as reading a philosophy textbook, playing guitar, or drawing a picture. We sometimes, but not always, experience pleasure when we do the right thing. Conversely, we experience pain when these functions are left unfulfilled.

PAIN AND PLEASURE 1. Recognizes the fundamental role of Pain and Pleasure in human life. 2. Approves or disapproves of an action on the basis of the amount of pain or pleasure brought about (“consequences”). 3. Equates the good with the pleasurable and evil with pain. 4. Asserts that pleasure and pain are capable of “quantification”-and hence of measure. There are two main people that talked about the principles of utility and they were Jeremy Bentham and John Stuart Mill. First off I’ll talk to you about Mr. Bentham. It is helpful to see Bentham’s moral philosophy in the context of his political philosophy, his attempt to find a rational approach to law and legislative action. He argued against “natural law” theory and thought that the classical theories of Plato and Aristotle as well as notions such as Kant’s Categorical Imperative were too outdated, confusing and/or controversial to be of much help with society’s ills and a program of social reform. He adopted what he took to be a simple and ‘scientific’ approach to the problems of law and morality and grounded his approach in the “Principle of Utility.” As with the emerging theory of capitalism in the 18th and 19th Century England, we could speak of “pleasure” as “pluses” and “pains” as “minuses.” Thus the utilitarian would calculate which actions bring about more pluses over minuses. In measuring pleasure and pain, Bentham introduces the following criteria: It’s intensity, duration, certainty (or uncertainty), and its nearness (or fairness). He also includes its “fecundity” (more or less of the same will follow) and its “purity” (its pleasure won’t be followed by pain & vice versa). In considering actions that affect numbers of people, we must also account for their extent. As a social reformer, Bentham applied this principle to the laws of England– for example, those areas of the law concerning crime and

punishment. An analysis of theft reveals that it not only causes harm to the victim, but also, if left unpunished, it endangers the very status of private property and the stability of society. In seeing this, the legislator should devise a punishment that is useful in deterring theft. But in matters of “private morality” such as sexual preference and private behavior, Bentham felt that it was not at all useful to involve the legislature. “Measurement of Pleasure and Pain” In measuring pleasure and pain, Bentham introduces the following criteria: its intensity, duration, certainty (or uncertainty), and its nearness (or fairness). He also includes its “fecundity” (more or less of the same will follow) and its “purity” (its pleasure won’t be followed by pain & vice versa). In considering actions that affect numbers of people, we must also account for their extent. As a social reformer, Bentham applied this principle to the laws of England– for example, those areas of the law concerning crime and punishment. An analysis of theft reveals that it not only causes harm to the victim, but also, if left unpunished, it endangers the very status of private property and the stability of society. In seeing this, the legislator should devise a punishment that is useful in deterring theft. But in matters of “private morality” such as sexual preference and private behavior, Bentham felt that it was not at all useful to involve the legislature. John Stuart Mill adjusted the more hedonistic tendencies in Bentham's philosophy by emphasizing (1) It is not the quantity of pleasure, but the quality of happiness that is central to utilitarianism, (2) the calculus is unreasonable -- qualities cannot be quantified (there is a distinction between 'higher' and 'lower' pleasures), and (3) utilitarianism refers to "the Greatest Happiness Principle" -- it seeks to promote the capability of achieving happiness (higher pleasures) for the most amount of people (this is its "extent").

ACT AND RULE UTILITARIANSIM We can apply the principle of utility to either PARTICULAR ACTIONS or GENERAL RULES. The former is called "act-utilitarianism" and the latter is called "rule-utilitarianism."

Act-utilitarianism -- The principle of utility is applied directly to each alternative act in a situation of choice. The right act is then defined as the one which brings about the best results (or the least amount of bad results). 

Criticisms of this view point to the difficulty of attaining a full knowledge and certainly of the consequences of our actions.



It is possible to justify immoral acts using AU: Suppose you could end a regional war by torturing children whose fathers are enemy soliders, thus revealing the hide outs of the fathers.

Rule-utilitarianism -- The principle of utility is used to determine the validity of rules of conduct (moral principles). A rule like promise-keeping is established by looking at the consequences of a world in which people broke promises at will and a world in which promises were binding. Right and wrong are then defined as following or breaking those rules. 

Some criticisms of this position point out that if the Rules take into account more and more exceptions, RU collapses into AU.

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More general criticisms of this view argue that it is possible to generate "unjust rules" according to the principle of utility. For example, slavery in Greece might be right if it led to an overall achievement of cultivated happiness at the expense of some mistreated individuals.

RUDOLPH VON JHERING Rudolf von Jhering, Jhering also spelled Ihering (born August 22, 1818, Aurich, Hanover, Germany - died September 17, 1892, Göttingen, Germany), German legal scholar, sometimes called the father of sociological jurisprudence. He developed a philosophy of social utilitarianism that, in emphasizing the needs of society, differed from the individualist approach of the English utilitarian philosopher Jeremy Bentham. Jhering taught Roman law at Giessen at Göttingen (from 1872), and at four other universities for briefer periods. In his most ambitious work, Geist des römischen Rechts, he elaborated the relation of law to social change. Even more influential in the

20th century was his Law As a Means to an End, 2 vol. (1877–83; originally in German), which maintained that the purpose of law was the protection of individual and societal interests by coordinating them and thus minimizing occasions for conflict. Where conflict was unavoidable, he assigned greater weight to societal interests, thereby inviting the criticism that he subordinated the individual to society. His ideas were important to the subsequent development of the “jurisprudence of interests” in Germany. LAW AS A MEANS TO AN END The driving force behind the human will is purpose. A man does an act in order to attain in something. Law is but a part of human conduct. Laws spring from purpose. Their purpose is to further and protect the interests of the society. The problem of society is to reconcile selfish with unselfish purpose and to suppress the former when they clash with the latter. Jhering stressed that law does not exist for the individual as an end in himself, but serves his interest with the good of society in view. THE CONFLICTING INTERESTS Jhering stressed on balancing between various interests. He said that social interest must be given priority over individual interest. He grouped interests into 3 categories: individual, state and social. The social activities of man need to be encouraged. The following principles direct men towards social ends: Principle of Reward, Principle of Coercion, Principle of Duty, Principle of Law. The first two, reward and coercion, seek to identify the selfish interest of man with some larger social interest. The other two, duty and law, are altruistic principles.

THE STRUGGLE FOR LAW The end of the law is peace. The means to that end is war. So long as the law is compelled to hold itself in readiness to resist the attacks of wrong—and this it will be compelled to do until the end of time—it cannot dispense with war. The life of the law is a struggle,—a struggle of nations, of the state power, of classes, of individuals. All the law in the world has been obtained by strife. Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force. And hence it is that Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. The scales and the sword belong together, and the state of the law is perfect only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales. The entire life of the law, embraced in one glance, presents us with the same spectacle of restless striving and working of a whole nation, afforded its activity in the domain of economic and intellectual production. Every individual placed in a position in which he is compelled to defend his legal rights, takes part in this work of the nation, and contributes his mite towards the realization of the idea of law on earth. Doubtless, this duty is not incumbent on all to the same extent. Undisturbed by strife and without offense, the life of thousands of individuals passes away, within the limits imposed by the law to human action; and if we were to tell them: The law is a warfare, they would not understand us, for they know it only as a condition of peace and of order. And from the point of view of their own experience they are entirely right, just as is the rich heir into whose lap the fruit of the labor of others has fallen, without any toil to him, when he questions the principle: property is labor. The cause of the illusion of both is that the two sides of the ideas of property and of law may be subjectively separated from each other in such a manner that enjoyment and peace become the part of one, and labor and strife of the other. If we were to address ourselves to the latter, he would give us an entirely opposite answer. And, indeed, property, like the law, is a Janushead with a double face. To some it turns only one side, to others only the other; and hence the difference of the picture of it obtained by the two. This, in relation to the law,

applies to whole generations as well as to single individuals. The life of one generation is war, of another peace; and nations, in consequence of this difference of subjective division, are subject to the same illusion precisely as individuals. A long period of peace, and, as a consequence thereof, faith in eternal peace, is richly enjoyed, until the first gun dispels the pleasant dream, and another generation takes the place of the one which had enjoyed peace without having had to toil for it, another generation which is forced to earn it again by the hard work of war. Thus in property and law do we find labor and enjoyment distributed. But the fact that they belong together does not suffer any prejudice in consequence. One person has been obliged to battle and to labor for another who enjoys and lives in peace. Peace without strife, and enjoyment without work, belong to the days of Paradise. History knows both only as the result of painful, uninterrupted effort. That, to struggle, is, in the domain of law, what to labor, is, in that of economy, and, that, in what concerns its practical necessity as well as its moral value, that struggle is to be placed on an equal footing with labor in the case of property, is the idea which I propose to develop further below. I think that in so doing I shall be performing no work of supererogation, but, on the contrary, that I shall be making amends for a sin of omission which may rightly be laid at the door of our theory of law; and not simply at the door of our philosophy of law, but of our positive jurisprudence also. Our theory of law, it is only too easy to perceive, is busied much more with the scales than with the sword of Justice. The one-sidedness of the purely scientific standpoint from which it considers the law, looking at it not so much as it really is, as an idea of force, but as it is logically, a system of abstract legal principles, has, in my opinion, impressed on its whole way of viewing the law, a character not in harmony with the bitter reality. This I intend to prove. The term Recht is, it is well known, used in our language in a twofold sense,—in an objective sense and in a subjective sense. Thus Recht, in the objective sense of the word, embraces all the principles of law enforced by the state; it is the legal ordering of life. But Recht, in the subjective sense of the word, is, so to speak, the precipitate of the abstract rule into the concrete legal right of the person. In both directions the law meets with opposition. In both directions it has to overcome that opposition; that is, it has to fight out or assert its existence through a struggle. As the real object of my consideration, I have selected the struggle in the second direction, but I must not omit to demonstrate that my assertion that to struggle is of the very essence of the law, in

the former direction also, is correct. In regard to the realization of the law, on the part of the state, this is not contested, and it, therefore, does not call for any further exposition. The maintenance of law and order by the state is nothing but a continual struggle against the lawlessness which violates them. But it is otherwise in regard to the origin of law, not only as to the origin of the most primitive of all law, at the beginning of history, but also the rejuvenescence of law which is taking place daily under our eyes, the doing away with existing institutions, the putting to one side of existing principles of law by new ones; in short, in regard to progress in the domain of the law. For here, to the view which I maintain, that the principles of jurisprudence are subject to the same law in their origin as in the rest of their history, there is, nevertheless, another theory opposed, one which is still, at least in our science of Roman law, universally admitted, and which I may briefly characterize after its two chief representatives as the Savigny-Puchta theory of the origin of the law. According to this theory, the formation of the body of principles of jurisprudence is effected by a process as unnoticed and as painless as is the formation or growth of language. The building up of the body of principles of jurisprudence calls for no strife, no struggle. It is not even necessary, according to this theory, to go in search of them, for the principles of jurisprudence are nothing but the quiet working power of truth which, without any violent effort, slowly but surely makes its way; the power of conviction to which minds gradually open and to which they give expression by their acts: a new principle of jurisprudence comes into being with as little trouble as any rule of grammar. The principle of the old Roman law, that the creditor might sell his insolvent debtor as a slave in foreign parts, or that the owner of a thing might claim it from any one in whose possession he found it, would have been formed in ancient Rome, according to this view, scarcely in any other manner than that in which the grammatical rule that cum governs the ablative was formed. This is the idea of the origin of the law which I myself had when I left the university, and under the influence of which I lived for a good many years. Has this idea any claim to truth? It must be admitted that the law, like language, has an unintended, unconscious development, or, to call it by the traditional expression, an organic development from within outward. To this development, we owe all those principles of law which are gradually accumulated from the autonomous balancing of the accounts of the legal rights of men in their dealings with one another, as well as all those abstractions, consequences and rules deduced by science from existing laws, and

presented by it to the consciousness. But the power of these two factors, the intercourse of man with man, and science, is a limited one. It can regulate the motion of the stream, within existing limits, and even hasten it; but it is not great enough to throw down the dikes which keep the current from taking a new direction. Legislation alone can do this; that is, the action of the state power intentionally directed to that end; and hence it is not mere chance, but a necessity, deeply rooted in the nature of the law, that all thorough reforms of the mode of procedure and of positive law may be traced back to legislation. True it is, that the influence of a change made by the legislative power in the existing law may possibly be limited entirely to the sphere of the abstract, without extending its effects down into the region of the concrete relations which have been formed on the basis of the law hitherto—to a new change in the machinery of law, a replacing of a worn out screw or roller by a more perfect one. But it very frequently happens that things are in such a condition that the change can be effected only at the expense of an exceedingly severe encroachment on existing rights and private interests. In the course of time, the interests of thousands of individuals, and of whole classes, have become bound up with the existing principles of law in such a manner that these cannot be done away with, without doing the greatest injury to the former. To question the principle of law or the institution, means a declaration of war against all these interests, the tearing away of a polyp which resists the effort with a thousand arms. Hence every such attempt, in natural obedience to the law of self-preservation, calls forth the most violent opposition of the imperiled interests, and with it a struggle in which, as in every struggle, the issue is decided not by the weight of reason, but by the relative strength of opposing forces; the result being not infrequently the same as in the parallelogram of forces—a deviation from the original line towards the diagonal. Only thus does it become intelligible, that institutions on which public opinion has long since passed sentence of death continue to enjoy life for a great length of time. It is not the vis inertiæ which preserves their life, but the power of resistance of the interests centering about their existence.