Legal Philosophy in the English Tradition

1. Legal Philosophy in the English Tradition Zhang Fan

2. Characteristics of English Legal Tradition • Empiricism • Utilitarianism • Inductive – Analogical legal reasoning • Positivism

3. Major Thinkers • Francis Bacon • John Locke • William Blackstone • Jeremy Bentham • John Stuart Mill • John Austin • H.L.A. Hart

4. Empiricism In legal philosophy an approach to legal theory which rejects all judgments of value and regards only those statements which can be objectively verifiable as being true propositions about the nature of law. Legal empiricism is based on an inductive process of reasoning requiring the empirical observation of facts and the formulation of a hypothesis, which is then applied to the facts before an explanatory theory of legal phenomena can be postulated.

5. British Empiricism • Reaction to Descartes's rationalism (innate ideas) • Stressed importance of experience • Skeptical of absolute certainty • Accepted Bacon's view of starting with observations • Followed Newton in creating laws of nature

6. Frances Bacon • Knowledge is Power. • Inductive way of learning • Beginning of Empiricism • Many faces of Bacon • Essays

7. Experience • Sir Frances Bacon was the son of Sir Nicholas Bacon, born at York House, the Strand in 1561. He was ambitious, wise and to all accounts a little mean. At the age of 12 he studied at Trinity College, Cambridge and at the age of 15 he was studying law at Grays Inn, London. He then spent three years in France attached to the British Embassy but returned home when his father died. He furthered his studies in law and was admitted to the bar in 1582. He became a Member of Parliament in 1584.

8. Experience • In 1606 he married the 14 year old heiress Alice Barnham. There were no children to the marriage and there is some evidence that Bacon was homosexual. • He was appointed solicitor-general of England (1607), Treasurer of Gray's Inn (1608), Attorney General (1613), Lord Keeper of the Great Seal (1616-17) and created Baron Verulam, Lord Chancellor (1617-1618). In 1621 he received his greatest honor being made Viscount St Albans.

9. Induction The method of reasoning that moves from the particular to the general. After a large number of individual instances are observed, a theme of principle common to all of them might be inferred. Deductive reasoning starts with some assumption, whereas inductive reasoning does not. Inductive reasoning proceeds from the particular to the general.

10. Writings • Bacon wrote on law, government, science and philosophy . Publications include his Essays in 1597, The Advancement of Learning 1605, Novum Organum 1620, Historia Ventorum, 1622, Historia Vitae et Mortis and De Augmentis Scientium an expansion to The Advancement of Learning, (1623) and Apothegms 1624. He died in 1626. New Atlantis and Island of Scientists were published in this year and in 1629 The World was published.

11. Bacon and Empiricism “This kind of degenerate learning did chiefly reign amongst the Schoolmen: who having sharp and strong wits, and abundance of leisure, and small variety of reading, but their wits being shut up in the cells of a few authors (chiefly Aristotle their dictator) as their persons were shut up in the cells of monasteries and colleges, and knowing little history, either of nature or time, did out of no great quantity of matter and infinite agitation of wit spin out unto those laborious webs of learning which are extant in their books.“

12. Against Aristotle Note that Bacon is arguing against the kind of learning based simply on studying words (books) that have already been written--against simply chewing over and over the old texts, in his case, the writings of Aristotle--rather than studying "matter" itself. Bacon is arguing that people in his time (1605) should be studying nature itself, not arguing over what Aristotle and his Renaissance followers and interpreters (called the Scholastics) meant in his essays about nature and the world. Hence, Bacon is arguing for empiricism.

13. John Locke (1632-1704) • Born at Wrington, a village in Somerset, on August 29, 1632 • Son of a country solicitor and small landowner • Delicate health • No significant publication until at the age of 57 • Made trips to France, Holland and Germany (didn’t like Germany b/c “cold weather and warm drinking”)

14. Birth of an Essay In the winter of 1670, five or six friends were conversing in his room, probably in London. The topic was the "principles of morality and revealed religion," but difficulties arose and no progress was made. Then, as he recalled, "it came into my thoughts that we took a wrong course, and that before we set ourselves upon inquiries of that nature, it was necessary to examine our own abilities, and see what objects our understandings were, or were not, fitted to deal with." At the request of his friends, Locke agreed to set down his thoughts on this question at their next meeting, and he expected that a single sheet of paper would suffice for the purpose.

15. The Essay • The Essay is divided into four books; the first is a polemic against the doctrine of innate principles and ideas. The second deals with ideas, the third with words, and the fourth with knowledge.

16. Ideas • All the objects of the understanding are described as ideas, and ideas are spoken of as being in the mind (Intro. 2; Bk. 2:1:5; Bk. 2:8:8). Locke's first problem, therefore, is to trace the origin and history of ideas, and the ways in which the understanding operates upon them, in order that he may be able to see what knowledge is and how far it reaches. This wide use of the term "idea" is inherited from Descartes.

17. Origin of Ideas • Locke tried to apply the Baconian methods to the pursuit of his own philosophical aims. In order to discover how the human understanding achieves knowledge, we must trace that knowledge to its origins in our experience. • Locke's investigation into human knowledge began by asking how we acquire the basic materials out of which that knowledge is composed, our ideas. Ideas, then, are the immediate objects of all thought, the meaning or signification of all words, and the mental representatives of all things.

18. Ideas of Sensation and Ideas of Reflection Locke proposed the fundamental principle of empiricism: all of our knowledge and ideas arise from experience. (Essay II i 2) The initially empty room of the mind is furnished with ideas of two sorts: first, by sensation we obtain ideas of things we suppose to exist outside us in the physical world; second, by reflection we come to have ideas of our own mental operations. Thus, for example, "hard," "red," "loud," "cold," "sweet," and "aromatic" are all ideas of sensation, while "perceiving," "remembering," "abstracting," and "thinking" are all ideas of reflection.

19. Tabula Rasa • As understood by Locke, tabula rasa meant that the mind of the individual was born "blank", and it also emphasized the individual's freedom to author his own soul. Each individual was free to define the content of his character -- but his basic identity as a member of the human species cannot be so altered. It is this presumption of a free, self-authored mind combined with an immutable human nature, from which the Lockean doctrine of "natural" rights derives.

20. Tabula Rasa- Another View The modern definition of tabula rasa, however, is fundamentally altered from the Lockean meaning. While the idea that the individual can be changed remains, the power to effect that change is now ascribed to society, not the self -- and that power extends to the whole of human nature. Under this view, one can shape the individual with few, if any, restrictions by changing the individual's environment, and thus sensory experiences.

21. Scottish View • It cannot be denied that Locke does proceed very largely in the way of observation; but it is a curious circumstance that he nowhere professes to follow the method of induction; and his great work may be summarily represented as an attempt to establish by internal facts the preconceived theory, that all our ideas are derived from sensation and reflection. To the Scottish school belongs the merit of being the first, avowedly and knowingly, to follow the inductive method, and to employ it systematically in psychological investigation. ---James McCosh

22. Legal Ideas • Two Treatises of Government had two purposes: to refute the doctrine of the divine and absolute right of the Monarch and to establish a theory which would reconcile the liberty of the citizen with political order. • Natural law and natural rights • Constitutional Monarchy • Early version of social Contract • Unity of power

23. Blackstone, Sir William (1723-1780) British jurist and legal scholar, whose work Commentaries on the Laws of England was used for more than a century as the foundation of all legal education in Great Britain and the United States.

24. Blackstone, Sir William (continued) • Father died 4 months after his birth, mother died when he was 12, raised by his uncle • Entered Oxford at the age of 15, was some sort of a poet • Had a small law firm- unsuccessful • Appointed to many governmental positions • First Professor of English Law at Oxford • Obese, near-sighted, bad health • Justice of the Court of King’s Bench till passed away

25. Intellectual Circle Blackstone spoke and wrote in the times of Oliver Goldsmith and Samuel Johnson, Edward Gibbon and Adam Smith, David Hume and Benjamin Franklin. Cultural institutions such as the British Museum, that today seem ancient, were in their infancy. The law then, as now, was rooted in everyday life but removed by lawyers and courts from most people's lives. Blackstone's task, and his ultimate accomplishment, was to open the law to many for whom it had been closed.

26. Blackstone • On October 25, 1758 as William Blackstone approached the podium in the Oxford lecture hall he knew he was a failure. The thirty year old lawyer, nearsighted, already portly, chronically ill, now ready to read his notes in his grating voice, had spent the last seven years before the Bar in London with, a sympathetic biographer wrote, "little notice or practice."

27. Success Despite his initial misgivings, the lectures were an immediate success, breathing life into a dry and poorly taught subject. Blackstone's lectures were published as the Commentaries in England between 1765 and 1769. An American edition published in Philadelphia between 1771-72 sold out its first printing of 1,4OO and a second edition soon appeared. The Commentaries were translated into French, German and Russian. During his lifetime the work earned an estimated 14,OOO pounds, an enormous amount of money at the time.

28. URL Blackstone's Commentaries - IntroductionThe document is located at this URL : http://www.yale.edu/lawweb/avalon/blackstone/introa.htm#1.

29. On Individual Freedoms "To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

30. Themes of the Commentaries Book I covered the "Rights of Persons," a sweeping examination of British government, the clergy, the royal family, marriage, children, corporations and the "absolute rights of individuals." Book II, on the "Rights of Things," should more properly have been called the Rights that people have in Things. Book III covers "Private Wrongs," today known as torts. Book IV covers "Public Wrongs," crimes and punishment, including offenses against God and religion.

31. Reason and Freewill • Law flowed from the superior to the inferior, be it God, monarch or nation, and the inferior was compelled to obey. He acknowledged humans as "the nobelest of all sublunary beings, a creature endowed with both reason and freewill" but decreed that there were "certain immutable laws of human nature, whereby freewill is in some degree regulated and restrained" and that God gave "the faculty of reason to discover the purport of those laws."

32. Illogical law open to criticism "The king," he wrote, "is not only incapable of doing wrong, but even of thinking wrong: in him there is no folly or weakness." A law could, however, could be illogical and therefore irrational and open to criticism.

33. Criticism by Bentham • Philosopher Jeremy Bentham attended Blackstone's lectures as a student. Blackstone, he wrote, was a "formal, precise and affected lecturer - just what you would expect from the character of his writings: cold, reserved and wary." Blackstone's comments on the King, Bentham said "stuck in my stomach." Bentham went on to be Blackstone's harshest enemy, denouncing his work as "ignorance on stilts."

34. Influence • American Revolution • “Inalienable rights” • Torts • American Constitutionalism • Study of Common Law

35. Utilitarianism • The approach of moral philosophy which regards an act, measure or social or legal arrangement as being good or just if its overall effect is to advance the happiness or general welfare of the majority of persons in society. Utilitarianism is a goal-based approach to the problem of justice in the distribution of the benefits and burdens of society, in that it gives precedence to the advancement of the collective good or welfare, even if this may involve extinguishing or curtailing the rights and political and other liberties of the individual.

36. Rule utilitarianism v Act Utilitarianism Rule utilitarianism maintains that a behavioral code or rule is morally right if the consequences of adopting that rule are more favorable than unfavorable to everyone. It is contrasted with act utilitarianism which maintains that the morality of each action is to be determined in relation to the favorable or unfavorable consequences that emerge from that action.

37. Rule Utilitarianism v Act utilitarianism (continued) • Rule-utilitarianism attempts to avoid some of the problems with act-utilitarianism. For example, with act-utilitarianism it seems that we should have to give up television for charity work if it was determined that each of our leisure moments would yield greater social benefit if we did charity work instead. With rule-utilitarianism, though, a rule prohibiting leisure time is not socially beneficial; hence we are not required to abandon leisure for charity.

38. Jeremy Bentham (1748-1832)

39. Jeremy Bentham • Quotation • Life • Utilitarianism • Principle of Utility • Hedonic Calculus

40. Quotation • "Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne."

41. Life Eccentric man, critic of Blackstone his teacher, father of Utilitarianism,critical of the “natural language” of Declaration of Independence and French Bill of rights, Social Reformer, visited Russia, firs student was French and made him known, a good friend of economist Richardo, mummified body, inventor of words (international, maximize, codification, post-prandial vibrations), friend of JS Mill’s father.

42. Utilitarianism • Maximum felicitas - "greatest happiness for the greatest number“ • (In 1768 that Bentham came across a political tract by Joseph Priestley in which the the phrase "the greatest happiness for the greatest number" was invoked. Intrigued, Bentham followed this up by reading Hume, Helvetius and Beccaria and slowly began forming his utilitarian ideas.)

43. Principle of Utility "that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness...or...to prevent the happening of mischief, pain, evil, or unhappiness" • Jeremy BenthamIntroduction to the Principles of Morals and Legislation (1789)

44. Hedonic Calculus • a method of working out the sum total of pleasure and pain produced by an act, and thus the total value of its consequences; also called the felicific calculus; sketched by Bentham in chapter 4 of his Introduction to the Principles of Morals and Legislation 1789. When determining what action is right in a given situation, we should consider the pleasures and pains resulting from it, in respect of their intensity, duration, certainty, propinquity, fecundity (the chance that a pleasure is followed by other ones, a pain by further pains), purity (the chance that pleasure is followed by pains and vice versa), and extent (the number of persons affected).

45. Comments by others • William Hazlitt, "Bentham has lived for the last forty years in a house in Westminster...like an anchorite in a cell, reducing law to a system, and the mind of man to a machine." • Karl Marx regarded him as a "purely English phenomenon" and "a genius by way of bourgeois stupidity." (Marx, 1867).

46. John Stuart Mill(1806 - 1873) • John Stuart Mill, born in London on May 20, 1806, the eldest of son of James Mill, educated entirely by his father, and was deliberately shielded from association with other boys of his age.

47. J.S. Mill • He learned Greek at three, Latin a little later; by the age of 12, he was a competent logician and by 16 a well-trained economist. At 20 he suffered a nervous breakdown that persuaded him that more was needed in life than devotion to the public good and an analytically sharp intellect. Having grown up a utilitarian, he now turned to Coleridge, Wordsworth and Goethe to cultivate his aesthetic sensibilities. From 1830 to his death, he tried to persuade the British public of the necessity of a scientific approach to understanding social, political and economic change while not neglecting the insights of poets and other imaginative writers.

48. Major Works • System of Logic 1843 • Principles of Political Economy 1848 • On Liberty 1859 • Utilitarianism 1861 • The Subjection of Women 1869 • Three Essays on Religion 1874

49. On Liberty • Mill lays down "one very simple principle" to govern the use of coercion in society - and by coercion he means both legal penalties and the operation of public opinion; it is that we may only coerce others in self-defense - either to defend ourselves, or to defend others from harm. Crucially, this rules out paternalistic interventions to save people from themselves, and ideal interventions to make people behave "better".

50. Mill on Law • Law is a means to protect individual freedoms: law should specify individual rights and protect them; protection of individual rights should be written into the constitution • Law should not encroach individual freedoms • Abuse of law means violation of individual freedoms • Law should not interfere with freedom of thought and expression, and relations that only affect one’s own interest