Chapter 10 Chapter 6 Utilitarianism

Utilitarianism is a philosophical movement popular in Britain in the 19th century. Although it has also spread to other countries, it always has a distinctly British color.Some sources of utilitarianism can be traced to the writings of the 18th-century Scottish philosopher David Hume (1711-1776 AD).Hume is the founder of the empirical theory of value based on human value experience.But we cannot think that Hume is the typical representative and thorough advocate of utilitarianism.We must focus on the writings of Jeremy Bentham (AD 1748-1832) and John Stuart Mill (AD 1806-1873) in order to understand the utilitarian doctrine. To achieve a fully detailed and systematic understanding.

Bentham's theory proceeds from the axiom that nature has placed man under the dominion of two masters, pain and pleasure.Only these two masters can tell us what should be done and what should not be done.He believes that the good and evil of an action should be measured according to the degree of pain and pleasure caused by the action itself. Bentham defined utility as "the principle which decides for or against each action according to its tendency to increase or decrease the happiness of the party in whose interest it is concerned".If the agent is a particular individual, the principle of utility is concerned with promoting the happiness of that person; if the agent is society, the principle of utility is concerned with the welfare of that society.Bentham emphasized, however, that society has interests which cannot be independent of or opposed to those of the individual.In his view, the interest of society means only "the sum of the interests of the individual members who make up the society".

Bentham believed that the duty of government is to promote the happiness of society by avoiding suffering and seeking pleasure. "The greatest happiness of the greatest number of people is the criterion for judging right from wrong."He was convinced that if the individuals who made up the society were happy and fulfilled, the nation as a whole would be happy and prosperous. According to Bentham, if legislators want to ensure the happiness of society, they must strive to achieve four goals: to ensure the livelihood of citizens (rations), prosperity, equality and security.He pointed out that "the whole role of law can be summed up in the following four aspects: supplying rations, achieving prosperity, promoting equality and maintaining safety." Among the above four goals that laws try to achieve, Bentham believes that safety is the main and basic goals.Security, he argues, requires the protection of a person's person, reputation, property, and status, and the maintenance of human expectations—that is, expectations created by the law itself.Although in his view liberty is a very important component of security, there are times when liberty must also be subordinated to considerations of general security, since no law can be made without sacrificing liberty.

Second only to the goal of security was the equality that Bentham demanded that legislators should seek to promote.He insisted that "equality should be promoted so long as it does not intrude on security, prevent the fulfillment of the expectations created by the law itself, and disturb the established order." In Bentham's mind, equality is not a conditional equality , but an equality of opportunity.It is equality that allows everyone to seek happiness, pursue wealth, and enjoy life. Bentham never doubted the desirability of economic individualism and private property rights.He pointed out that the only way a nation can get rich is by upholding the sanctity of property rights.Society should encourage private creative effort and enterprise.He pointed out that the laws of the state do not directly provide for citizens' livelihoods, all they can do is create drives, namely punishments and rewards, by which people are directed to provide for themselves.Nor can laws direct individuals to seek prosperity. All they can do is create conditions to stimulate and reward people to strive to possess more wealth.

Despite Bentham's preference for economic liberalism, there is a connection between his legislative theory and the thinking of modern social reformers. AV Dicey has demonstrated this connection.He pointed out that the principle of greatest happiness can be adopted by those who support the welfare state as well as admirers of laissez-faire.It is particularly worth pointing out that, in Bentham's view, the main purpose of legal control is not freedom, but security and equality.Bentham did not recognize natural rights, nor any limitations on parliamentary sovereignty.Therefore, his legislative theory opened the door for state intervention and social reform.Some of the legislation appreciated by Bentham and his disciples (such as the Poor Law of 1834, the creation of specialized agencies for the enforcement of public health laws, and other measures) may be said to have been the first steps in this direction.

John Stuart Mill agreed with Bentham's view that "the 'yes' of actions are in proportion to the happiness they tend to promote, and the 'no's to actions are in proportion to the unhappiness they tend to produce".On the other hand, he attempts to refute the accusation of utilitarianism as crude hedonism by the view that man has higher faculties than animal desires and that he has no Will regard anything that fails to satisfy it as happiness.He concluded that intellectual pleasures (such as enjoyment of art, poetry, literature, and music), emotional and imaginative pleasures, and moral sentiments must be of higher value than mere sensual pleasures.He also insisted that the utilitarian principle of happiness is altruistic rather than egoistic, since its ideal is "the happiness of all concerned."

Mill takes a different approach than Bentham in addressing a major problem in legal philosophy: how much importance should be given to the idea of ​​justice.Bentham speaks of justice in a disproportionate way, and places justice entirely under the dictates of utility.Although Mill believes that the standard of justice should be based on utility, he also believes that the source of the sense of justice must be found in two emotions rather than in utility. These two emotions are the impulse of self-defense and sympathy. .According to Mill, justice is "an animal desire to rebel against or avenge, according to man's vast sympathy and rational conception of self-interest, injury or injury to himself or to anyone deserving of sympathy".In other words, generally speaking, the sense of justice is the desire to avenge evil.The above-mentioned feeling of resistance to hurtful behavior is not only due to personal considerations, but also because it hurts other members of society with whom we sympathize and which we regard as ourselves.Mill pointed out that the sense of justice includes all moral requirements that are indispensable to human happiness and are considered sacred and mandatory.

In his masterpiece (On Liberty), John Stuart Mill put forward the guiding principle that a state should follow when defining and restricting individual liberty, that is, "the reason why men are justified, individually or collectively, to the freedom of action of any member of it The sole purpose of interfering is self-preservation. That is to say, the sole purpose of preventing harm to others is the sole purpose of which power can be justified over any member of a civilized community against his will. Self-interest, whether material or moral, does not constitute sufficient justification for such intervention.”

In his influential book "Law as a Means to an End" (Law as a Means to an End), the German jurist Rudolph von Jhering (1818-1892 A.D.) Exhaustively criticizes this argument put forward by Mill.For example, he pointed out that, according to this formula, the Chinese government could not prohibit the importation of opium into China, because this would violate the freedom of buyers without reason.He went on to ask, "Does the Chinese government have no right to prohibit the opium trade? When its own nation is destroying itself physically and morally, the Chinese government is only out of pedantic respect for freedom, in order not to Violate the vested right of every Chinese person to buy whatever he wants, and stand by?"

Jhering believes that the protection of individual liberty is not the only purpose of the law.Jhering rejects any attempt to solve the problem of controlling individual liberty in an abstract, all-encompassing formula.He believed that the purpose of law was to strike a balance between individual principles and social principles.He argues that the individual exists both for himself and for society, and that the law should be seen as "an established partnership between the individual and society" whose main purpose is to achieve a common cultural purpose. “To make the labor of the individual—whether physical or mental—as useful as possible to others, and thus indirectly to himself, even if every power is at the service of humanity, is every problems that every civilized nation must solve and cope with, and adjust its entire economy to according to.According to this fundamental philosophical attitude of Jhering, Rothko Pound saw him as a "social utilitarian".

The central concept of Jhering's legal philosophy is purpose.In the preface to one of his important works on jurisprudence, he pointed out, "The basic point of view of this book is that the end is the creator of all laws. Every rule of law arises from an end, that is, a practical motivation".Laws, he claimed, are consciously made according to the will of men to achieve certain desirable results.He admits that there are parts of the legal system that are rooted in history, but he rejects the historical legal school's contention that law is the product of unintentional, unconscious, purely historical forces.According to him, laws are largely made by the state consciously to achieve a specific purpose. In his often-quoted definition of law, Jhering pointed out the purpose or intention of legal control, "From the broadest point of view, law is the sum of social living conditions that the state protects through external coercive means."This definition contains both a substantive and a formal element.Jhering believes that the protection of social living conditions is the substantive purpose of law.He pointed out that the conditions or basis of social life include not only the material existence and self-continuation of society and its members, but also "all those good and pleasant things that are judged by the nation to give life its real value"-including honor , love, activity, education, religion, art and science.He believed that the means and methods used by law to protect these values ​​could not be consistent and invariable.These means and methods must be adapted to the needs of the time and the degree of civilization achieved by a nation. The formal element in Jhering's legal definition is found in the concept of compulsion.The state implements coercive power to ensure that people obey legal norms.A legal rule without force is, Jhering declared, "a fire that does not burn, a light that does not shine."International law is rather lacking in coercive force, so Jhering believes that international law is only an incomplete form of law. A theory that sees law as a tool for utilitarian purposes tends to believe that the activities of the legislator are conscious and systematic."All radical reforms of procedural forms and substantive law can be traced back to legislation," said Jhering. If the purpose is the creator of the law, then the purposeful formulation of rules in the form of statutes is the best way to produce a legal system that meets the requirements of the times.It is no accident, then, that Bentham, the English utilitarian reformer, insisted on the complete codification of the law.Bentham's efforts to advocate codification were at least partially successful.In the year of his death (1832), some of his suggestions for improving the law were realized in the British legislative reform at that time.Germany also adopted a civil code four years after Jhering's death.Although Jhering did not play a decisive role in the formulation of this code, his general attitude to law and his insistence on "purpose" as the driving force of legal control laid the foundation for this legislative work and created atmosphere.