IEJS > Survey of CJ > Chapter 2Survey of Criminal JusticeChapter TwoTheoretical Foundations
--Baron de Montesquieu, The Spirit of Laws In the last two millennia, no agreement has been reached as to exactly what the nature of the law is. In almost every discussion concerning this critical issue, two basic issues have come up. First, we need to identify and describe the nature of man. Second, we need to identify and describe the nature of the political state. These elements permeate the writings of the great legal philosophers, and are the foundation ideas in nearly every system of legal thought. The purpose of this Chapter is to integrate these components of legal philosophy into a succinct comparison. This is done with the views of some of the greatest jurisprudential thinkers of all times in mind. This chapter presents the work of the great legal philosophers. This is a highly subjective process, but it is hoped that a representative cross-section has been achieved. This chapter is by no means a comprehensive coverage of the topic. The purpose of this Chapter is not to provide an in-depth understanding of the theory and philosophy of the criminal law. That would require an encyclopedic tome. The purpose, rather, is to provide a general overview of Western criminological though throughout the ages. This is intended to serve several functions. First, the original material digested here is most always complex reading, written in a highly technical and often antiquated style. The reader new to this subject matter can quickly become bogged down in the text, and fail to grasp the larger picture. A plain English narrative such as this should be helpful in overcoming this obstacle initially. The Philosophical Approach In the classical Greek school of thought as described by Aristotle, there is little difference between Justice and the law, although he does make the distinction. He reasoned that justice is the sum of all virtues, and further reasoned that the business of the law was to compel men to virtuous acts, and forbids vice. The keystone of Aristotelian justice was equity, albeit within one’s own social sphere. Thus, equity was required between those of equal station within society, but lesser persons were not deserving of equal treatment. With all acts of injustice, the unjust man is thought to gain while the victim is though to suffer a loss. It is the duty of the judiciary to rectify this inequality by taking away the wrongful gain by penalty. Thus, justice can be defined by a zero-sum equation where neither party gains or loses. For Aristotle, injustice requires that harm must be done to a known person with a known instrument against that person’s wishes. It follows from this that it is impossible to suffer an injustice voluntarily. Aristotle also points out that legal justice and absolute justice are two different things. Legal justice is subject to flaw because the law is created to deal with the general case and is thus phrased as general statements. There are times when a particular case does not fall under the generalized rule. In such cases, absolute justice may not be served. As Aristotle suggests, to understand the nature of the state we must analyze the factors that constitute it. It is taken as self-evident by Aristotle that the human race cannot survive in a state of unhindered individuality. Therefore, unions must be formed. The first and most basic union is between man and woman, driven by the natural instinct to reproduce. The second union is between a “natural ruler” and his subjects. The suggested dichotomy is rule by the intelligent and slavery for those better suited for labor. These basic associations follow an evolutionary track to the development of the political state. First, families united for mutual aid and protection, thus forming villages. These first villages were usually composed of extended families. As the extended family structure developed, the eldest was chosen as king. When several villages unite for the sake of “continuing existence” and “a good life,” the state comes into existence. Since this progression began with the family, a part of nature, and the state grew up from families, it follows that the state is a creation of nature. Aristotle held that a man without a state was “either above humanity or below it.” For only beasts or gods have the ability to survive without association. In either case, Aristotle suggests that society make war on those that will not be ruled. They are a danger to the existence of the state, because the principle order in political society is the administration of justice. That is, the determination of what is just. While the philosophy of Aristotle seemed to take natural law for granted, the philosophy of Cicero firmly entrenched it in the Western legal tradition. For his explanation of justice, Cicero turns to the nature of man and the state. For Cicero, law was simply the “highest reason” which commands “what ought to be done and forbids the opposite.” This highest reason enters the minds of men through Nature. That is, we as humans are born with an innate knowledge of right and wrong. If we apply reason to the concept of right, we ascertain the law. Cicero also held that right was to be desired for its own sake. Cicero believed that pleasure was the mother of all evil. Pleasure is a distraction from the primal mind of God. The Merger of Natural Law and Christian Faith Laws are designed to protect the safety of citizens and the state, and insure tranquility and happiness for the people. This was to be accomplished in part by the regulation of the morals of the people. Thus, it is the duty of the lawgivers to promulgate the laws of the gods as the laws of man. Saint Thomas Aquinas transferred this link to divinity into the theology of the Christian faith. His adherence to the doctrines of Aristotle irrevocably bound the idea of Natural Law to legal philosophy. For Aquinas, the Natural Law was the foundation upon which his entire philosophy was laid. The knowledge of right and wrong came from God, instilled in the minds of man so that it is revealed to them naturally. Thus, the basic precept of the law is that good should be pursued, and evil should be avoided. Since the Natural Law emanates from God, it is equally valid everywhere. The purpose of sanction is not to punish, but to compel the offender to virtue. Because humans are imperfect, the law should not forbid all vices. Law should only prohibit the more iniquitous vices that the majority of people can resist; chief among these is harm against others. Society simply cannot be maintained if such conduct were not prohibited. In addition, because of the innate imperfection of humanity, lawgivers are prone to make mistakes when promulgating law. If reason should show a new law to be better, the new law should be adopted. The place of the natural law in Western jurisprudential philosophy is exemplified in the writings of Grotius. Grotius well understood the doctrine of hedonism, but rejected it. Such interest in mere good of self was beneath the dignity of man. Man had within him the knowledge of good and was required by God to act accordingly. This was the basis for his rejection of Aristotle’s golden mean theory of justice. For Grotius there could be no middle ground for right action. Men should seek the highest degree of that which is good, and seek not at all that which is evil. Using the principle of Right Reason, the state was to promulgate laws such that the Civil Law is brought into agreement with the Natural Law. Grotius established the right of the state to punish under a rule of Natural Law. His notion of punishment is based on the principle that evil acts must be visited on evildoers. His reasoning, however, stands in stark contrast to the retribution theory proffered by Cicero. Grotius believed that the aim of punishment was not retribution, but prevention and correction. These objectives are met by three general types of action: the removal of the wrongdoer from society, the taking away of his power to do harm, and through suffering teaching him not to offend. Thus, the primary utility of punishment is not the effect of suffering on the lone offender, but the example set for society. Birth of the Social Contract While Aristotle took a shockingly modern evolutionary view of the development of political society, Hobbes considered it more revolution than evolution. This social revolution took place when men entered into what has come to be called the social contract. For Hobbes, the natural state of man is nothing less than an ongoing war with every man against every other man. All of the benefits of society are lost within this warlike state, simply because men are not willing to engage in industry when the outcome is uncertain. The life of such men is nasty, brutish, and short. To abate this disastrous state of affairs, men must be provided one who can “over-awe them all.” A monarch best serves this necessary function. Hobbes offers two general laws as coming from Nature. First, every man is to strive for peace. Second, when peace cannot be achieved, every man has the right to defend himself by all available means. It follows from this that if men, taken together, are willing to give up personal rights that each possesses in a state of nature and claim only those rights that do not harm others, then and only then can a political society be formed. What, in essence, Hobbes is suggesting is that political societies are based on a mutual agreement to adhere to the Golden Rule: “Whatsoever you require that others do to you, that do ye to them.” Hobbes defines injustice as the failed performance of covenants. While man may have within him knowledge of what is right and wrong, he cannot be expected to overcome his natural passions and self-interests for the sake of right. There must be a coercive force whose wrath is far more terrible than anything to be gained by the breach of the covenant. Without such a force, the concept of property is impossible; in a state of nature, every man has a right to everything. From this the nature of the state is defined by the presence of a social contract and a power to enforce it, these things being necessary to achieve and preserve peace among men. Hobbes also believed that it was the duty of the state to protect a man from not only wrongs done by others, but also wrongs done to himself. For Hobbes, men are for the most part little better than sheep. It is the exceptional man that gains sovereignty over the masses. This man-as-follower doctrine is the key to understanding Hobbes philosophy of human nature. He did not hold the nature of man to be evil as may be supposed by only a summary review of his writings. Hobbes suggested that men were selfish, not necessarily evil or malicious. The danger of anarchy that caused Hobbes to support a strong state did not come from the lawlessness of the populace in general, but rather from the rare strongly ambitious and antagonistic individual. Such individuals could easily instigate revolutionary sentiments within certain factions of the people and endanger the peace and serenity of the state. A strong state was not necessary to quell the lawless tendencies of the average person, but the powerful political influence of the exceptional person. For Hobbes, the fault of man’s nature was not his propensity toward evil, but his propensity toward misplaced obedience. Hobbes refutes the more traditional claims to rule by establishing the social contract. In establishing man as free in order to lay the foundation of the social contract, he also established the lack of any Natural Law. Because nature lacks any sanctioning power, man must create this power before the political state is viable. This is accomplished by investing all individual freedoms in the will of one sovereign. Thus, the nature of the social contract is that each member of the body politic gives up all natural freedoms for the sake of peace. This is realized by a promise to obey the commands of the monarch. Under this system, justice is reduced to obedience to the law, and the law is understood to be the will of the monarch. Thus, the Absolute Justice of Aristotle was merely a philosophical construct with no real substance. This doctrine could not exist in reality because before the sovereign’s rule there is no justice, only war. While the ultimate end for which Hobbes established the social contract was never well received among his contemporary legal thinkers, the notion of the contract would become a first principle in the philosophies of many of them. Locke fully agreed with Hobbes in that man was naturally free. He did not, however, agree that there was no natural law. On the contrary, the natural law played a key role in the development of Locke’s legal philosophy. This natural law forbade every man from infringement on the life, health, liberty, and property of another. Nature also gives every person the right to “punish the transgressors of that law by such a degree as may hinder its violation.” Thus, there is a popular right to “bring such evil” on transgressors of the law as may deter them and, by example, deter others from lawbreaking. Locke held that there was a vast difference between a state of nature and a state of war. The primary difference between his view and the view of Hobbes was simply the presence of the Natural Law, which bound men to right action even in a perfect state of nature. The state of nature is understood to be a state of absolute freedom from obligation to the arbitrary will of another man. Locke makes a clear distinction between the state of nature and the political state, this being the concessions made under the social contract. One of the primary rights surrendered to the state upon entering into the social contract is the natural right of retribution. Locke held it necessary to the survival of the state that men give this right over to the state in the name of peace. It follows that if the state is to have the right of punishment for infractions of the law, then the state also has the right to promulgate law. It also follows that no member of the state be exempt from the laws, as this would be a violation of the tenets of the social contract. For if a man, i.e., the monarch, is above the law, then he remains in a state of nature not a member of the state. Thus, a true civil society is one where every individual is equal under the law, and the laws are promulgated by a majority consensus. It is also included in the social contract that even if an individual disagree with the majority will, there remains an obligation to obey it. Without such an obligation to follow the will of the majority, the social contract would be invalidated at every turn. Locke offers three primary reasons why individuals would give up perfect freedom for the limited freedom of civil society. First, the state of nature has no settled law agreed upon by all. Second, the state of nature lacks impartial judges to settle disputes between individuals in an equitable manner according to established laws. Third, men in a state of nature lack the power to support sentences when right. When we agree to the social contract, we agree to be bound by these conditions so that they bind others as well. Another great detractor of the philosophy of Hobbes was Baron de Montesquieu. The following passage from The Spirit of Laws gives us a clear idea of his derision for the position of Hobbes: “To say that there is nothing just or unjust but what is commanded or forbidden by positive law, is the same as saying, that before the describing of the circle, all the radii were not equal.” Again, we are asked to consider the original state of man, that is, the state of nature, before we can explore the nature of the law. Montesquieu held that man, when deprived of association with other men, would be in a perpetual state of fear, plagued by feelings of “impotency and weakness.” This would result not in the belligerent state of affairs suggested by Hobbes, but a state of peace that constitutes the first law of nature. Indeed, Montesquieu found Hobbes’s notion that conquest and dominion where the first of nature’s laws to be nothing less than absurd. A second law of nature requires us to seek for nourishment. The want of necessities and the desire for sexual contact with members of the opposite sex would nullify this initial state of fear and associations would form. This natural affinity for associations with other members of the human species forms Montesquieu’s third law of nature. As a logical consequence of this third law of nature, a fourth law states that humans desire to live in society. It is only after individuals enter into society and lose their sense of weakness that equality vanishes and “then commences the state of war.” This state of war within the newly formed society can only be abated by the promulgation of rules of conduct: the positive law. Montesquieu does not go so far as Locke in holding that a popular government is the only viable form of government. He holds that the best form of government is the one “that best agrees with the humor and disposition of the people in whose favour it is established.” Likewise, the law should be adapted according to the same considerations, namely the disposition of the people. They should also correlate to the degree of freedom that the constitution of the state will abide. Montesquieu holds that both democracies and monarchies (at least well-regulated ones) are tenable to the requirements of civil society, but despotic governments cannot be by their nature. It is clear that he greatly valued civil liberty, but did not confuse this with absolute freedom. Keeping with the doctrine of Natural Law, Montesquieu believed that liberty must be limited to only “doing what we ought to will, and in not being constrained to do what we ought not to will.” Simply put, liberty is the right of doing what the laws permit us to do. This statement can be perplexing from the modern vantage point, but very lucid in the time and place in which it was written. The issue at hand is the abuse of power. States that place law above men eradicate this danger. This is not to say that liberty is protected in the absolute sense, but that civil liberty, by strict definition, is preserved. Indeed, restrictive laws can be far more oppressive to liberty in the absolute sense than the dictates of an enlighten monarch. Montesquieu, as did the vast majority of his contemporaries, ignored this paradox of political power. The Decline of Natural Law If it can be said that the writings of Hobbes foreshadowed the decline of the Natural Law’s importance in great legal thought, then the works of Hume can be regarded as a harbinger of death for this long-standing principle of jurisprudence among mainstream academic thinkers. Hume eloquently and systematically attacked the doctrine of Right Reason, and ultimately rejected the notion of natural law. His doctrine was heretical and humanistic in the eyes of his detractors. Not since Aristotle's time had such a dramatic change occurred in methods of jurisprudential inquiry. Where Aristotle introduced systematic inquiry, Hume introduced scientific inquiry. Before this, the terms “science” and “scientific” were bantered about, but the arcane use of those terms bear little relation to the term as it is used today. The modern reader must remember that science as we know it today grew from philosophy. For a long period (relative to jurisprudential thinking) there was no real distinction between the terms. Hume defined science and reason (apparently the same concept) as the comparing of ideas, and the discovery of their relationships. Hume argues quite convincingly that concepts such as morality and virtue cannot be derived through reason. Hume concludes that morality is more of a “feeling” that a product of reason. “To have the sense of virtue is nothing but to feel a satisfaction of a particular kind from the contemplation of a character.” This feeling is a sense of pleasure, just as one might expect from a work of art. He also argues against Natural Law because it is preposterous to assume that we have within us the basis for a complete and complex system of ethics from birth. Hume takes it for granted that when we evaluate the virtue of an act, we care not for outcomes, but intentions. The outcome of an action merely serves to give us a window into the intent of the actor. He further develops the maxim “that no action can be virtuous, or morally good, unless there be in human nature some motive to produce it distinct from the sense of its morality.” Ultimately our sense of justice is not derived from nature, but emanates artificially from education and human conventions. These conventions are an integral part of the societies that humans choose to live within. We choose to live within such societies, for the most part, out of a sense of expediency. Man alone is weak and ineffectual, but in the aggregate he is strong. It is by the collective force, ability, and security that society becomes advantageous to the individual. Much in agreement with Aristotle and other noted thinkers, Hume sees the family as the basic structural unit of society. This is the first stage in the evolution of the state. Hume’s theory explains all conventions in terms of basic utility; at the core of every societal convention is a command or prohibition that is generally considered useful in a reciprocal context. Hume divides these necessary reciprocal considerations into three major categories: property, right, and obligation. We accept these restrictions and reject the “universal license” of absolute freedom not from some natural affinity for humanity, but simply because it is advantageous to do so. Many of Hume’s critics were (and some remain) indignant at these assertions because to somehow cheapens humanity; a doctrine of self-interest being much less noble than the infinitely more virtuous Natural Law. Hume responds to these critics as follows: “For whether the passion of self-interest be esteemed vicious or virtuous, it is all a case, since itself alone restrains it; so that if it be virtuous, men become social, by their virtue; if vicious, their vice has the same effect.” This wanton disregard for both the higher aspirations of humanity and the amalgamation of legal philosophy with theology so important to previous legal thinking describe the character of the legal thought that was to come. Legal philosophers began to consider law from a humanistic and practical approach—except in Germany. Perhaps the most passionate of all the great legal philosophers was Rousseau. This passion put the defenders of the status quo on guard and sparked much controversy. Chief among his passions was liberty, and this formed the keystone that held his philosophy together. Rousseau opened his Social Contract with the famous line “Man is born free; and everywhere he is in chains . . ..” Again, we start by looking at the nature of the origins of society. The hierarchy begins with the only “natural” association, the family. Rousseau attacks Grotius, Hobbes, and Aristotle as proffering a doctrine whereby men are reduced to “so many herds of cattle, each with its ruler, who keeps guard over them for the purpose of devouring them . . ..” He hotly refutes the notion that certain men rule by natural right. He concedes that Aristotle was right in that some men were born for slavery, but that he took the effect for the cause. Slaves are slaves by nature because they have been made slaves and suffer from what modern behaviorists refer to as learned helplessness. This is very different from the state of nature. Rousseau wrote in a time when economic models of political society were becoming the dominant philosophy. He was disenchanted with this state of affairs, for he felt that the goal of politics was not merely to secure preservation and wealth, but to produce a virtuous, healthy people. This opinion led him to adopt a doctrine that was a modernized version of the Natural Law. For him, nature made men happy and good; it is society that makes him depraved and miserable. The effects of oppression thus explain all that is evil in men. The absolute rule of law was his proposed solution. In a society where everyone is equal (if no one is subject to the will of another but only the law), there is no oppression. Therefore, the greatest problem facing political thinkers was to find a form of government that put law above men. The very essence of Rousseau’s thought was the inherit goodness of man. He took the revolutionary position that all of man’s problems could be reduced to one simple evil: he reduced it to dependence on the will of another, or, more simply put, oppression. Rousseau did not share the hopes of his contemporaries when it came to their faith in a society built on foundation of men’s self-interest. He saw the doctrines of Locke and Montesquieu as a recipe for little cooperation among men and much crime, exploitation, and violence. He found the notion that good politics was possible without public minded men to be irrational. It is ironic that Rousseau borrowed so much of his doctrine from Hobbes when the results of their philosophizing are so vastly different. The primary point of divergence between the two is that Rousseau held virtue to be the adhesive the holds civil society together, while Hobbes held it to be the might of the Monarch. Both Rousseau and Hobbes begin with discrediting all natural titles to sovereignty by showing that all men in a state of nature are solitary, selfish, and free. He systematically refutes the popular doctrines of Divine Right and the Right of the Strongest. It stands to reason, then, that since no man holds a natural right to rule, then there is only one legitimate claim to sovereignty: the social contract. While not subscribing directly to the doctrine of Natural Law, Rousseau did acknowledge the existence of an objective standard of justice. He states, “Whatever is good and in accordance with order is so by the nature of things, independently of human conventions…there is without doubt a universal justice emanating from reason alone.” Perhaps the unique aspect of Rousseau’s philosophy is the notion of rule by the general will. Such a concept seems to demand democracy, but according to Rousseau, it does not. Sovereignty remains in the hands of the aggregate, but a prince may serve as a steward of the people. Rousseau only recommends democracy for very small states, while aristocracies are recommended for medium sized states, and monarchies for the largest states. Thus, a republic is necessary, but a democracy is not. It must be noted that Rousseau does not necessarily refer to the hereditary aristocracy popular in feudal Europe when he uses the term. He would consider the modern government of the United States an elected aristocracy, and highly praises the merits of such a system. Metaphysics Revisited While the scientific paradigm was in its final stages of dominating legal thought during the last years of the sixteenth century, Immanuel Kant was busy sealing himself off from this new cold and calculated world in a vacuum of metaphysics that had no room for such base matter as human experience and observation. Pure reason was the basic element of morals, and it was his aim to get at them by reason alone. Perhaps Kant’s most cited contribution to jurisprudential thought is the categorical imperative. This general expression of obligation is expressed as follows: “Act according to a Maxim which can be adopted at the same time as a Universal Law.” Thus, we are to perform an elaborate calculus for every action we might take. We must put our action to the test of pretending that when we take the action, we are laying down a universal law. If the action is fit material for such a law, then the action stands on firm moral ground. If it does not, the action can be seen as immoral. In this manner, we delve deep into the metaphysical Law of Ought. From this construct, we proceed to the “science” of Right. The science of Right has for its subject matter those moral maxims that are subject to promulgated law. When such legislation comes to pass, we call it positive Right and law. By a lengthy succession of such constructs we come to another maxim: “act externally in such a manner that the free exercise of thy Will may be able to co-exist with the Freedom of all others, according to a Universal Law.” Kant’s most valuable contribution to legal thinking is the establishment of freedom and equality as innate rights of man. He defined Freedom as independence from the compulsory will of another, insofar as this is consistent with the freedom of all. Were it not for the restraint of the universal law, Kant could be considered one of the founding fathers of the Libertarian School. He also advocated the division of government into the three parts so familiar to modern Americans: the executive, the legislative, and the judicial. The Emergence of Positivism In direct contrast to the lofty moral metaphysics of Kant, Bentham was regarded as the Great Utilitarian. The behavioral maxims of human action contained in his philosophy of human nature are still regarded as scientific fact by behavioral psychologists. Bentham’s utilitarian theory was probably the most scientific treatment of legal theory up to that time. It was parsimonious and based on observation, and could be subjected to empirical validation (which psychologist B.F. Skinner would become famous for nearly a century later). Utilitarianism brought human nature out of Kant’s metaphysical vacuum and placed it squarely in the realm of science. His philosophy was bitterly opposed when it was first published, and remains so along with all of behavioral psychology today. There is something intrinsically frightening to some of us in the notion that man is not a superior creature by nature. The basic tenant of the utilitarian doctrine is that man is an animal, and is subject to the same behavioral drives Skinner would later document in his rats. That is, man, like any other creature, will seek pleasure and avoid pain. That is not to say that man is not superior in reason and virtue to the lower creatures, only the most ardent behaviorist would hold this view. Bentham and his fellow utilitarians certainly did not, as is commonly assumed. It is our capacity for reason that makes us superior, and it follows that this capacity makes civil society possible. The utilitarian philosophy does not, in fact, belittle the nobility of man as a general tenet. The central issue is not whether man possesses virtue as is commonly assumed by the detractors of this philosophy. The issue is one of causality; it is a profound restatement of the chicken and egg conundrum. God, as was previously suggested, does not implant virtue (or Morals) in us at birth. Rather, morality can be understood as rules of conduct that have been tried and tested by society and shown to be tenable to the goal general happiness. This evolutionary process springs from the fountainhead of human happiness. Thus, an act is virtuous because we see it as increasing the happiness of the collective or the individual. The doctrine of pleasure seeking is often discredited because many men, under the mental pressure of Christian doctrine, have assumed that what is meant by pleasure amounts to sin. Certainly there are men who find pleasure in such things as gluttony, excess, and lust. This does not, however, preclude the finding of pleasure in what are generally considered virtuous pursuits. Does not the pious man gain satisfaction from prayer and reading the Holy Scriptures? Perhaps the utilitarians would have received a better reception if they had gone the way of modern behaviorists and chose the term “reward” rather than “pleasure.” The terms mean the same thing when used in the present sense, but pleasure has become highly stigmatized by its common association with immediate gratification through acts that Christianity regards as sinful. This is exactly where the faculty of human reason comes into play. Unlike the lower creatures that only comprehend the immediate reward of an action, humans can look forward into the future and calculate the long-term repercussions of their acts. For example, man can see that adultery is not virtuous because there is a real possibility that it will destroy his family. He weighs the immediate gratification of the act against the long-term implications of the loss of his family; both the personal and social implications are considered. Wise men have considered this situation throughout the ages, and have concluded that indeed the long-term pain that is likely to result from the act far outweighs the immediate pleasure. Thus, we regard the act as immoral, or against virtue. This balancing of good and evil is analogous to the cost benefit analyses performed by economists. It is often refereed to as a “calculus” because of the complex interactions of considerations involved. A better analogy would be the discriminate function analysis techniques used by modern statisticians, but the notion of a calculus was more widely known in Bentham’s time, as it probably is today. Discriminate analysis lets the social scientist classify objects (generally people) into two or more groups. In the case of moral actions, let us call the groups simply “bad” and “good;” the moralist may prefer “good” and “evil.” This distinction is not important to the method. Every action a man may take will fall into either one group or the other. The analyst thinks of all the variables (pleasurable consequences and painful consequences) he can that correlate with the proposed action. The predictive value of each variable is then calculated (the surety of the outcome) and a mathematical weight is assigned to it, and the magnitude of the variable (pleasure or pain) is considered. When the analysis is finished, the actor knows with reasonable certainty whether the proposed act will result in a net gain of pleasure or pain. The above analysis is superior to the calculus approach, because the calculus only takes into account the magnitude of the variable (pleasure or pain), and not the strength of the correlation (surety of outcome). It is a key maxim of the utilitarian philosophy that repercussions of an act must be relatively sure for it to weight heavily in the analysis of whether or not to perform the act. The weaker the correlation (surety) the more painful the consequence must be to stall the actor. This is the underpinning logic behind the doctrine that punishment by the state must be swift and sure to be effective. From this, we can derive the proper function of government: “to promote the happiness of the society, by punishing and rewarding.” Thus the subject of penal law the official sanctioning of acts that disturb the happiness. These sanctions offer up tangible pains that will result when an offensive act is committed. As punishment is a pain inflicted by the state, it is a sort of evil within itself. As such, it should only be used to prevent an even greater evil than that of the punishment. This leads Bentham to conclude that it is of little use to punish acts that harm only the actor, namely that which we now consider vice. For those whose reason is so defective as to harm themselves, what fear of pain can the state offer up that would phase them? The converse is true when the act harms another. Bentham states “There are few cases in which it would be expedient to punish a man for hurting himself: but there are few cases, if any, in which it would not be expedient to punish a man for injuring his neighbour.” Bentham tended to view the law proper as that that protected the pursuit of happiness for the whole community. Thus, the “greatest good for the greatest number” serves as a maxim for the legislature. For Bentham, codification of the law was an important element of justice. The law should be set down in plain terms so that each member of the state could be fully aware of his obligations. Codification has been seen by many legal thinkers as a necessary and valuable weapon against tyranny. Savigny stood firmly against codification because the common law was a necessary and prudent legal device. It is important to note that when Savigny wrote of codification he referred not to legislative instruments that aided, clarified, or strengthened the existing body of law, but codes that were designed to supplant all preexisting law and become the sum total of the law. He saw the law as an evolutionary process, much as other authors have described the evolution of human association into the state. The law began with customs among groups of people, and later developed into jurisprudence. Never was the law solely the arbitrary will of the lawgiver. Savigny saw legislation within the vacuum of Reason as a dangerous precursor to “a baneful corruption of the law.” The real law comes from “the proper will of the people” and legislation must always keep this as its foundation. The law, when cut off from its roots, loses its meaning and force shortly thereafter. To hamper the ability of jurists to interpret the law by rigid codification may remove a degree of arbitrariness from the legal system, but this is a double-edged sword. By doing so we arrest the ability of the law to grow and adapt to different times and circumstances. For Savigny, this was an unacceptable trade off. Only a race of gods could sit down and, with no regard given to previous developments in jurisprudence, create a system of laws that have enough specificity to be practical and yet still withstand the test of time. The Last Great Stand of Metaphysics In a time of science and industrialization, which was brought on by increased specialization, Hegel regarded this trend as the bane of wisdom. Proper wisdom could only be gained by seeking a holistic synthesis. He believed much as Kant did that Right is a metaphysical absolute that it independent of human experience and observations. He places great importance on freedom of personal will, expanding on Kant’s philosophy, coming more in line with that of Rousseau. Thus, his imperative of right is a reformulation of the Golden Rule espoused by other great thinkers: “Be a person and respect others as persons.” He stood against Plato’s version of utopian society as a forced contrivance. Universal unity is laudable, but it must be genuine to be virtuous. For him, criminality was defined as the infringement of a right as right. The scientific notion that “man cannot know the truth but has to do only with phenomena” was a dogma “depriving mind not only of intellectual but also of all ethical worth and dignity.” Hegel, like Rousseau, was mistrustful of the average person's ability to master the intricacies of law. Hegel based this notion on the premise that this sort of understanding came from a “profound apprehension and insight, precisely the things which are not popular.” He was critical of constitutions “expatiating about the people.” He believed the “Estates” were necessary to check the passions of the “elementary, irrational, barbarous, and frightful” mob of the aggregate members of the state. On similar grounds, he protested popular suffrage, especially in large states. There is a haunting ring of truth to his statement that “it leads inevitably to electoral indifference, since the casting of a single vote is of no significance where there is a multitude of electors.” While previous legal thinkers concerned themselves primarily with the nature of man and the state in order to explain the basis of the law, Austin was more interested in the law itself. He did not look at it from a metaphysical standpoint as did Kant and Hegel, but as a real and tangible aspect of human life. He begins his Lectures on Jurisprudence not with a discussion of the nature of man, but with a simple definition of jurisprudence: “The matter of jurisprudence is positive law, simply and strictly so called.” The positive law is simply law set by political superiors to political inferiors. More explicitly, a law “may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” The presence of intelligence is of great importance to Austin’s philosophy. Where there is no intelligence (or Reason) there can be no will to act, and where there is no will to act, there can be no duty to incite obedience to the law. Thus, the laws of physics and the like are laws wrongly so called. For a law to be properly so-called there must be a distinct possibility of its breach. Otherwise, it is merely a fact of nature, or sophistry. Another characteristic of law is that it creates an obligation upon the individual, empowered by some evil that will be visited upon him if he fails to honor the obligation. The law must also be a general command, affecting generally the members of a state, or at least a general class of persons within the state. The person or body with the authority to promulgate laws is referred to as the Sovereign authority. Austin held that the sovereign body was superior to the judiciary because the law promulgated by that body binds the judge. In turn, the citizen is inferior to the judge, the judge being armed with the power of enforcing the law. Judge made law, however, is still valid as law proper. This is because the judge, as an agent of the state, has been delegated the authority by the state to promulgate law in a limited manner. If the state wishes, it may at any time alter the judge made law by the creation of positive law. Laws must also be general. That is, they must be applied to a general class of actions and not to specific acts. Thus, when assessing the validity of a law, we must ask, “if acts of the class were generally done, or generally forborne or omitted, what would be the probable effect on the general happiness or good?” He saw utilitarian theory as lacking a central component: Utility may be the source of our rules and laws, but the vast majority of acts performed by humans are not preceded by reference to it. That is, we do not enter into the calculus previously discussed every time we act, or withhold an act. We simply have general feelings associated with general classes of acts. When the possibility of the act presents itself, we immediately decide, based on these feelings, whether or not to act. These reasons are why men of weak mental constitution can still be expected to follow the law. If he understands an act is prohibited, he will usually refrain from it simply because there is a negative feeling associated with the prohibition. This also explains why we have laws that are generally regarded, but even the best minds in the community can no longer explain the utility of them. “They have been taken from preceding generations without examination, and are deeply tinctured with barbarity.” By this cool logical progression does Austin roundly trounce the doctrine of Natural Law and concluded “To affirm ‘that they are alike with all men’ is merely to hazard a bold assertion contradicted by notorious facts.” Austin’s view of constitutional law is perhaps one of his most interesting subjects. He held that “supreme power limited by positive law is a flat contradiction in terms.” That is, its own laws do not bind a supreme body (the sovereign) because it is free to change the law. Thus, the notion that an act of the legislature can be unconstitutional is absurd. Thus, the parliament of England is bound by positive morality, not by constitutional law as many suppose. Austin fails to consider that this does not apply to the United States. The U.S. congress does not wield absolute political power. If such a body ever did wield that power within the United States, it was the Constitutional Convention. This power, however, did not last for long. Once the Constitution was drafted, the framers signed it, swore allegiance to it, and left it in peace to rule over men. For the first time in human history, Rousseau’s dream of a law above men became a reality. Of course, it could still be altered, but by a process that closely approximates the General Will. The government formed by the constitution of the United States is the most sublime creation of human reason to date, but it is not without flaw. There is no built in protection against the sophistry of the Supreme Court, which has the power to bend and twist in into a form that Jefferson would disown. If Bentham can be said to be the father of utilitarian thought, the John Stuart Mill may be called its champion. Mill held simply that actions were good in direct proportion to the happiness they promoted, and bad in direct proportion to the unhappiness they caused. Unhappiness takes two general forms: pain and the deprivation of pleasure. While Bentham’s rather cold explanation of the philosophy tended to alienate moralists, Mill expressed it in terms more compatible with the Christian ethic. He states, “In the golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility. To do as you would be done by, and to love your neighbor as yourself, constitute the ideal perfection of utilitarian morality.” The vast majority of good actions are not intended for the good of the whole, but for the good if the individual. The concerns of every man need not go beyond himself, so long as he respects the rights of others. This is ultimately good for society, because society is nothing more than an aggregate of individuals. Mill agreed with Austin in that generalizations about day-to-day affairs were necessary because the analysis of every human act is improbable and impractical. Mill gets at the nature of society through equality. He reasons that society between equals can only exist on the mutual agreement that the interests of all are to be regarded as equal. He attacks the natural law, stating, “Mankind is always predisposed to believe that any subjective feeling, not otherwise accounted for, is a revelation of some objective reality.” Mill believed that men were naturally free, and that any restriction of this freedom was an injustice. This injustice was abated if the restricted freedom tended to the good of the people. It stands to reason, then, that some laws may be unjust, and the law is no criterion for justice as Hobbes maintained. There are two essential elements to the sentiment of justice. Fist, there is a desire to punish a person who has done some harm. Second, there must be the knowledge of belief that there is some definite individual or individuals to whom harm has been done. This basic desire for retribution is attributed to primal instinct common to animals as well as humans. He modifies Kant’s principle to state “we ought to shape our conduct by a rule which all rational beings might adopt with benefit to their collective interests.” This foundation leads him to the conclusion that a right is anything that the individual has a valid claim on society to protect. Mill applied a large measure of libertarian philosophy to complement his utilitarian doctrine. He was greatly concerned with the balancing of liberty and the interest of the state. He lamented that there was no rational test that could be used to evaluate government interference in this regard. He states a bothersome social paradox as follows: “Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interest amenable to governmental control.” When something as precious as liberty was the price, only the interest of self-protection could justify the expense. That is, the only reason that society may use its collective power to oppress the will of an individual is to protect the rights of others. “His own good, either physical or moral, is not sufficient warrant.” It is wrong for society to compel an individual to act or forbear simply because it is better for him to do so. It is perfectly acceptable, even laudable, to persuade or entreat him, but wrong to compel. Individuality (and Individual rights) was much more to Mill than a lofty political principal. Individuality is what defines us as human, and is necessary for growth. If each of us grows into the mold society sets for us, then there is no innovation, no genius, and there are no heroes. He regarded whatever thwarted individuality as despotism. His greatest fear was collective mediocrity. Cesare Beccaria held many of the same views as Bentham, but constrained most of his writings to the punishment of criminal acts. Beccaria held a view that punishment should be tempered by moderation. Any punishment that was beyond what was necessary to secure the safety of the public was by its nature unjust. He also believed that punishment should only be mandated by the law, and not the whim of the sovereign. He viewed the idea of the death penalty as a terrible irony. He found no logic in the fact that the state, in order to prevent homicide, would commit one of its own. He agreed with Bentham that punishment should be swift and sure as well as moderate. Punishment should always be in proportion to the crime. While Mill espoused the individual as the primary unit of political concern, Ihering concerned himself more with society as a whole. He subscribed fully to the utilitarian model of human behavior, and saw law as necessary to protect life and property. He also attacked Mill’s view of the sanctity of the individual, and placed justice above freedom. Freedom is defined as that which is expedient for the individual. Justice is defined as that which is expedient for society. The former must always supplant the latter. The law is defined as the sum of compulsory rules in force in the state. The practical aim of justice is to establish equality. Equality has no merit of its own, but is necessary for the good order of society. While most jurisprudential thinkers spend a great deal of energy finding the proper place of morals in the law, Oliver Wendell Holmes quickly separates the two. From his years on the bench, he developed an infinitely practical philosophy of the law. He was concerned less with what ought to be than what is. He conceded that law was limited by morality because of the danger of public revolt, but maintained that they were separate disciplines. He is quick to point out that laws are not axioms based on reason, but the commands promulgated by legislative bodies and the judiciary. He defined law as the prophecies of what the courts will do. Thus, the proper place to learn the nature of the law is to study not its theory, but its application. He attacks assertions by Hobbes, Bentham, and Austin that law emanates from the sovereign. The courts always establish the final form of the law. He attacks the notion that the only force at work in the development of the law is logic. For him this is a dangerous fallacy. He does not argue that social science methods can not be used to explain the law, he objects to the notion that a functioning legal system can be explained “like mathematics from come general axioms of conduct.” He sees the law as like a living thing, subject to and emanating from the current opinions held by “the public mind.” No proposition can be considered self-evident. The law does not need to be good in an absolute sense, only in the context of the time in which it is applied. For this reason he was adamantly opposed to accepting laws based historical precedent. If the reason for the law has vanished, then the law should as well. He warns that we should be vigilant against the “pitfall of antiquarianism” and “remember that for our purposes our only interest in the past is the light it throws upon the present.” He suggests that the student of law better serves his interests by studying political economy rather than historical explanation of dogma. He also recommends the diligent study of jurisprudence, which he defines as law in its most generalized parts. In other words, we should look beyond the specifics and seek the general. In this way we can “discern the true basis for prophecy.” Paradigm Shift: From Natural Law to Natural Selection While Holmes maintained that the law flowed from the will of society, Eugen Ehrlich held that the law came from society itself. He attempted to apply sociology to law and, like Holmes, was not concerned “with words but with facts.” His definition of law is perhaps the simplest attempted by any of the authors considered here: “the law is a rule of human conduct.” He holds that only after the state has grown extremely powerful and absolute does it become the sole source of law. Most laws are based on social institutions, and the vast majority of people would follow them if there were no legal sanction in place for their violation. He goes so far as to suggest that official sanctions rarely if ever enter the minds of men when considering their actions. Rather we are driven to obey the law from social pressures from our peer group. He maintains that the vast majority of the cases dealt with by the criminal courts involve those whose station has removed them from human association. Thus, the state is a construct of society designed to protect it from those that are outside the pale of society. He theorizes that the only way to abate criminality is regaining these wayward individuals and returning them to the fold of society, thus subjecting them to social restraint. Ehrlich admits that it is a weakness of science that it cannot discover the ultimate end of law, because that is a truly philosophical question dependent on the ultimate goal of man. Science cannot show us the goal of the law, but it can show us the method by which it can be reached. The mind of man is so complex that is impossible to reduce the concept of justice to a single formula. He suggests that Bentham’s theory of the greatest good for the greatest number is likely the best attempt. Jean Dabin took a more traditional view of the law, defining it as follows: “The sum total of the rules of conduct laid down, or at least consecrated, by civil society, under the sanction of public compulsion, with a view to realizing in the relationship between men and a certain order—the order postulated by the end of the civil society and by the maintenance of the civil society as an instrument devoted to that end.” He agreed with Ehrlich that society was an organic organization of men, and the purpose of this organization was the “perfectioning” of each individual. He held that social morals were a creation of the collective and could not be separated from the law. The law, like society, follows an evolutionary path. Social rules of conduct (morals) find their way into the law once they are firmly established in the society. While the law finds its origins in the morals of a particular society, it does not become law properly so-called until it is adopted as such by the organs of the state. In agreement with Holmes, he holds that it is improper to regard laws as only coming from the legislature because, in the absence of statutory provision, the judiciary fills the void. He holds that the good order of the state requires no separation between politics and economics, morality, culture, health, etc., and that these things are not part of the private order. This aim of the government is the public good, whatever sphere it can aid the individual in this objective is the proper place of the state. The good of the whole was supreme to the good of the individual. When a sacrifice by the individual would serve the good of the state or a segment of its members, it was incumbent on the state to order the sacrifice. He believed that while the public good is not compatible with any sort of immoral law, it does not necessarily require the law to compel respect for morals. The public good is paramount to the individual good, but these will rarely conflict. What is good for the state is good for the individual. While his contemporaries were considering the implications of sociology in jurisprudence, John Dewey applied cognitive psychology (how we think) to the question. He was a scientific scholar, and placed the value of inquiry above all else in his system of thought. He praised Bentham for forcing home the idea that “conscience” was not intelligence or reason, but “veiled caprice.” It was a reflection of class interest, not Right Reason. He starts his inquiry into the science of human action by making the assumption that men act as they do because of impulse or habit, not deliberation as suggested by the utilitarians. Man simply is not logical. “He hangs on to what he can in his old beliefs even when he is compelled to surrender their logical basis. So the doctrine of fixed ends-in-themselves at which human acts are—or should be—directed and by which they are regulated if they are regulated if they are regulated at all persisted in morals, and was made the cornerstone of orthodox moral theory.” He regarded society as organic and thought if foolish not to evaluate principles and test their efficacy under new circumstances. Dewey believed that we do in fact have a moral nature. This, however, is not instilled within us from birth by God, but is etched in us as a byproduct of living within society. Others see our acts and respond to them. This response is real, not abstract philosophy. If we define Right by this relationship, then Right can only lead to good when social relationships become sufficiently reasonable. The remedy, then, is education. Philosophy will always come up short in explaining the nature of the law, because it looks for absolute precepts that are immutable. Society is mutable, so the law is necessarily mutable. Law can not be discussed as a lone entity, but must be discussed in the context of the “social conditions in which it arises and what it concretely does there.” The trend of viewing the law as mutable continued in the work of Cardozo. He regarded the doctrine of stare decisis as only a beginning to legal inquiry, not an end. Rules found in precedent may be adequate to regulate the actions of men in homogeneous communities, but with the growing complexity of social relationships in modern life the invalidity of such a doctrine is revealed. Rules laid down by judges never generate custom, but custom profoundly influences these judgments. He sees a transition from the law concentrating on the individual to the law concentrating on the whole of society. The social value of the law as a test of its value has a growing number of supporters. He holds that the sanctity of the law has been striped away, and that “few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end.” He agrees strongly with Savigny’s assertion that law is a historical growth as an expression of customary morality “which develops silently and unconsciously from one age to another.” If law is to be a means to an end as many modern legal thinkers suggest, what then is that end? This was a central concern of Roscoe Pound. He believed that while we cannot answer the question absolutely (to the satisfaction of thinkers like Kant) we can answer it as a practical matter for the purpose of directing law. This is necessary for the establishment of legal precepts. These precepts in turn guide the jurists, becoming authoritative starting points for legal reasoning. He considers trying to establish specific rules on an a priori basis to be harmful, and uses attempts to do so with the due process clause of the U.S. constitution as an example. By the systematic examination of legal precedent, the social demands of the day, and the balancing of interests within the state we can determine the proper direction of law. When the works of great legal philosophers are analyses as single entities and not taken as a body of literature, it takes an extremely keen intellect to decide what the great legal issues are. The old adage “you can not see the forest for the trees” holds true. If we take this literature in an agglomeration and distill the essence of it, what we come up with is the need to understand the very nature of man. This is little more than a continuum from good to evil, which each thinker places man somewhere along, either consciously or unconsciously. How this continuum affects men’s philosophies of law is the subject of Thomas Sowell’s A Conflict of Visions. A vision is simply a sense of causation. “It is more like a hunch or a “gut feeling” than it is like an exercise in logic or factual verification.” “The ever changing kaleidoscope of raw reality would defeat the human mind by its complexity, except for the mind’s ability to abstract, to pick out parts and think of them as the whole.” When taken together, the vast matrix of ones observations is almost meaningless. We must break reality down into the “first principles” of the philosophers in order to grasp them. Systematic reasoning and theory building come later, and are built on the vision. This is the essence of the weakness of science referred to by Ehrlich. Science can only validate theory. Theory comes from the human mind, and is based on a vision. Once we have abstracted the concept of human nature along a continuum of good and not good (or virtuous and not virtuous) we find that it still explains very little. However, if we dichotomize the continuum, a clear pattern starts to emerge which can explain the origins of the majority of legal thinking. The good versus evil dichotomy is far to stigmatized for the purpose at hand. Sowell chose to use the terms “constrained” and “unconstrained.” The constrained vision is best explained using the works of Adam Smith as an example. The basic premise of this vision is that man is subject to moral limitations and he is egocentric. In short, he follows the utilitarian version of human nature. This is not a terrible course of events that we should endeavor to change. They are constraints placed upon the race of man by God or Nature that we must work within. Thus when the state wishes to achieve a certain behavior it does not appeal to the moral convictions of its members, but offers a tradeoff. In Bentham’s terminology, the state offers a pleasure to offset the desired pain. The unconstrained vision holds that man may not be perfect, but he is perfectible. Any defect within man has a cause, and if we can discover what that cause is and eradicate it, we can make men the moral creatures they are destined to be. Rousseau is a prime example of this vision. According to Rousseau, the problem with man was not his lack of goodness, for this was given to him by Nature. His problem was oppression, and if that were ended, men would all be virtuous. Those who subscribe to this unconstrained vision consider themselves visionaries: thinkers ahead of their time. Man’s ability is limitless (unconstrained), and all we need do is push him toward greatness. Subscribers to the constrained vision hold that men are self-serving, and consider themselves practical and realistic. From the modern political perspective, we call subscribers of the constrained vision conservative (Republican) and subscribers to the unconstrained vision liberal (Democrat). This helps us to explain such paradoxes as the sanctity of life issues in the forefront of politics today. Why do liberals believe that abortion should be legal, but oppose the death penalty, while conservatives feel the opposite way? It has nothing to do with the sanctity of life, but the vision that leads to the political opinion. Sowell notes that some political thinkers do not fall neatly into one vision or the other, but exhibit thinking appropriate to one vision on some issues, and thinking appropriate to the other vision on other issues. Most important among these are the Libertarians, the Marxists, and the Utilitarians. The quantum leap of Bentham’s philosophy from the constrained vision is that he saw man’s intellectual power as limitless, or at least nearly so. He did not weave virtue and reason into an inseparable whole, which was the tradition before his time. Bentham and his followers effectively sprang this trap foisted off on the western legal tradition by Aristotle some two thousand years ago. The libertarians think within a different paradigm than Sowell’s visionaries. They hold freedom and individuality sacrosanct, and generally do not care what the nature of man is, if indeed they are not offended by the notion that men have a nature in common at all. Their legal imperative could be stated as let man be free to be what he will be. When reading the works of great legal thinkers, there is a tendency to not be objective. Each time an author makes a point, we smugly compare it to our particular brand of philosophy and judge it by that standard. I would imagine that it is rare indeed for a person to pause from reading with the force of epiphany pounding in his brain, his view of human nature, the state and the law changed forever. The more likely scenario is that he relished every morsel that supported his personal feelings (beliefs being too strong a word) and used them as stones to buttress his indignation at the thinkers he disagreed with. Men, in general, are not open-minded. This trait is a logical byproduct of faith. This barrier of faith fueled the rise of empiricism and the demand for scientific theories to explain the nature of man. References and Further Reading Morris, C. (1959). The Great Legal Philosophers: Selected Readings in Jurisprudence. Philadelphia: University of Pennsylvania Press.
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