I can do it in TWO commandments.

Utilitarianism


Utilitarianism is a philosophy of jurisprudence whose adherents believe that law must be made to conform to its most socially useful purpose. Although utilitarians differ as to the meaning of the word useful, most agree that a law's usefulness, or utility, may be defined in terms of its ability to increase happiness, wealth, or justice in society. Alternatively, some utilitarians measure a law's utility by its ability to decrease unhappiness, poverty, or injustice.

The utilitarianism movement originated in Great Britain during the eighteenth and nineteenth centuries when philosophers Jeremy Bentham, John Austin, John Stuart Mill, and Henry Sidgwick began criticizing various aspects of the common law. Bentham, the progenitor of the movement, criticized the law for being written in dense and unintelligible prose. He sought to cut through the thicket of legal verbiage by reducing law to what he thought were its most basic elements—pain and pleasure.

Bentham believed that all human behavior is motivated by a desire to maximize pleasure and avoid pain. Yet he observed that law is often written in vague terms of rights and obligations. For example, a law might say that a person has a right to take action under one set of circumstances but an obligation to refrain from action under different circumstances. Bentham thought that law could be simplified by translating the language of rights and obligations into a pain-pleasure calculus.

Utilitarians have tried to apply Bentham's hedonistic calculus to criminal law. They assert that punishment is a form of government-imposed pain. At the same time, utilitarians believe that criminals break the law only because they do not fully comprehend the confusing language of rights and obligations. Accordingly, utilitarians conclude that law must be stripped of such confusing terms and redrafted in language that equates socially undesirable conduct with pain and socially desirable conduct with pleasure.

Utilitarians measure the desirability of human conduct by the amount of happiness it generates in society. They maintain that the ultimate aim of any law should be to promote the greatest happiness for the greatest number of people. Utilitarians would permit conduct that produces more happiness in society than unhappiness and would proscribe conduct that results in more unhappiness than happiness. Some utilitarians envision a democratic society where the happiness and unhappiness produced by a particular measure would be determined precisely by giving everyone the right to vote on the issue. Thus, those in power would know exactly how the citizenry felt about every issue.

Although the application of utilitarian principles may strengthen majority rule, unfettered democracy can lead to tyranny. Utilitarians are frequently criticized for sacrificing the interests of minorities to achieve majoritarian satisfaction. In a pure utilitarian form of government, a voting majority could pass laws to enslave minority groups so long as the institution of slavery continued to satisfy a preponderance of the population. Concepts such as equal protection, human dignity, and individual liberty would be recognized only to the extent that a majority of the population valued them.

Modern utilitarians have attempted to soften the harshness of their philosophy by expanding the definition of social utility. Law and economics is a school of modern utilitarianism that has achieved prominence in legal circles. Proponents of law and economics believe that all law should be based on a cost-benefit analysis in which judges and lawmakers seek to maximize societal wealth in the most efficient fashion. Here the term wealth possesses both pecuniary and nonpecuniary qualities. The nonpecuniary qualities of wealth may include the right to self-determination and other fundamental freedoms that society deems important, including freedom of speech and religion. Under such an analysis, institutions like slavery that deny basic individual liberties would be declared illegal because they decrease society's overall nonpecuniary wealth.

Economic analysis of law has more practical applications as well. Richard A. Posner, chief judge for the Seventh Circuit Court of Appeals, is a pioneer in the law and economics movement. He advocates applying economic analysis of law to most legal disputes. For example, in negligence actions Posner believes that liability should be imposed only after a court weighs three factors: the pecuniary injury suffered by the plaintiff, the cost to the defendant in taking precautions against injurious behavior, and the probability that a particular injury could have been avoided by the defendant. This cost-benefit analysis is widely accepted and is applied in negligence actions by both state and federal courts. Thus, through economic analysis of law, utilitarianism and its permutations continue to influence legal thinking in the United States.

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