The Bloomsbury Encyclopedia of Utilitarianism by James E. Crimmins

Author:James E. Crimmins
Language: eng
Format: epub
ISBN: 9781350021693
Publisher: Bloomsbury UK

JURISPRUDENCE

“Utility is the mother of justice and equity.” Jeremy Bentham proposed this line from Horace (Satires) as the motto of utilitarian jurisprudence (Bentham, 1983, p. 299). The idea, however, is classical (see Rosen, Ch.1). Epicureans used it to explain the rationality of what sceptics charged was merely conventional and arbitrary. For Epicurus, the ultimate good is a sense of well-being consisting of mental tranquility and the absence of pain. Chief among mental disturbances, he taught, is the prospect of harm inflicted by others. Although the wise are not inclined to harm others, because they understand that refraining from harm sacrifices nothing of value and that mutual forbearance is necessary for tranquility, they are prepared to protect themselves by responding violently to threats of harm. Justice is the product of mutual agreement among parties to refrain from harming each other. Law enforces the agreement to assure the wise that they will not suffer at the hands of those who fail to appreciate the value of compliance. The value of justice and law is strictly instrumental to security achieved through mutual agreement.

Aristotle and Cicero stressed the innate sociability of human beings and identified law with rational ordering of the natural and social world. These ideas dominated medieval legal thought. Aquinas, for example, understood law as an ordinance of reason for the common good made by one who has care of the community (Aquinas, pp. 76–83). Yet, within this framework, he offered a sophisticated understanding of positive law as a social artefact, the product of authoritative law making. Ockham linked this positive aspect of law with expressions of will on the model of commands. Late medieval and early modern philosophers hotly debated the proper roles of reason and will in law, but nearly all thought it to be some complex mix of the two. Marsilio of Padua, blending Epicurean and Stoic themes, argued that the deep human desire for society with others, arising from the necessity of society for individual survival, was met by equally natural countervailing passions that must be tempered and trained by law. Law, he understood, is the product of human design or command, made by the whole community (or its representatives).

In the mid-seventeenth century, Hobbes (1651) synthesized and elaborated these traditions. He argued that the only secure escape from a condition of perpetual, deadly social conflict is for individuals mutually to relinquish their rights of private judgement and deem the judgement of an all-powerful sovereign as public reason for all, on the condition that the sovereign gives its commands the shape of general, publicly accessible, manifestly authentic laws, administered by judges answerable to the sovereign. The sovereign is bound to secure the peace and welfare of individual members of the commonwealth through the instrumentality of law, which those members are bound by their covenant to obey, unless doing so directly risks death. Natural law principles guide these efforts, but the sovereign must be above civil law and answerable to no human judge for them.

Like Hobbes, Hume thought law's primary task was to “cut off all occasions of discord and contention” (Hume, p.

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