This book offers a philosophical interpretation of the historical debate between Bentham and classical Common Law Theory, a debate that is fundamental to philosophical thought and has shaped contemporary conceptions of nature, tasks, and limits of law and adjudication. The author explores the philosophical foundations of Common Law theory, focusing particularly on the writings of Sir Mathew Hale and David Hume.

The basic concept of Bentham's moral and political philosophy was public utility. He linked it directly with the concept of the universal interest, which comprises a distinctive partnership of the interests of all members of the community. The ultimate end of government and aim of all of morality is ‘the advancement of the universal interest’. This essay articulates the structure of Bentham's notion of universal interest and locates it in his theory of value.

The thesis of this essay is that social conventions of the kind Lewis modeled are generated and maintained by a form of practical reasoning which is essentially common. This thesis is defended indirectly by arguing for an interpretation of the role of salience in Lewis’s account of conventions. The remarkable ability of people to identify salient options and appreciate their practical significance in contexts of social interaction, it is argued, is best explained in terms of their exercise of what I (...) call “salience reasoning,” a form of common practical reasoning. The more widely accepted understanding of salience competence, the “natural salience” understanding, fails as an interpretation of the notion at work in Lewis and Schelling (on whom Lewis relied) and is inadequate as an explanation of salience competence. (shrink)

The key to unlocking the mystery of human passions, according to Hume, lay in the interaction between two fundamental psychological mechanisms or principles: sympathy and comparison. Both our sociality and our asociality find their psychic origins in the complex interaction of these principles. Due to the operation of these principles, justice is necessary for social life. It channels and controls the passions in contexts of social interaction; they in turn generate resources from which the structures of justice and the foundations (...) of political society can be built by intelligent and sympathetic human beings. This essay explores Hume’s account of sympathy and comparison and some of the passions they generate, in the hope of gaining a better understanding of his unsentimental and unblinkered view of our social asociality. (shrink)

Kant argues that the “discipline” of reason holds us to public argument and reflective thought. When we speak the language of reasoned judgment, Kant maintains, we “speak with a universal voice,” expecting and claiming the assent of all other rational beings. This language carries with it a discipline requiring us to submit our judgments to the forum of our rational peers. Remarkably, Kant does not restrict this thought to the realm of politics, but rather treats politics as the model for (...) reason's authority in all the provinces that rational beings inhabit. (shrink)

Bentham belongs to a long tradition of reflection on law according to which the nature of law can best be understood in terms of its distinctive contribution to the solution of certain deep and pervasive problems of collective action or collective rationality. I propose to take a critical look at Bentham's unique and penetrating contribution to this tradition. For this purpose I will rely on the interpretation of the main lines of Bentham's jurisprudence and its philosophical motivations which I have (...) developed in Bentham and the Common Law Tradition. will not attempt further to defend it here. I wish, rather, to reflect on themes and arguments which this interpretation of Bentham's jurisprudence has uncovered. (shrink)

. A structured awareness of time lies at the core of the law's distinctive normativity. Melody is offered as a rough model of this mindfulness of time, since some important features of this awareness are also present in a hearer's grasp of melody. The model of melody is used, first, to identify some temporal dimensions of intentional action and then to highlight law's mindfulness of time. Its role in the structure of legal thinking, and especially in precedent‐sensitive legal reasoning, is (...) explored. This article argues further that melody‐modeled mindfulness of time is evident also at a deeper and more pervasive level, giving structure to the distinctive mode of law's normative guidance. The article draws one important theoretical consequence from this exploration, namely, that the normative coherence of momentary legal systems depends conceptually on their coherence over time. (shrink)

Nowhere has H.L.A. Hart's influence on philosophical jurisprudence in the English-speaking world been greater than in the way its fundamental project and method are conceived by its practitioners. Disagreements abound, of course. Philosophers debate the extent to which jurisprudence can or should proceed without appeal to moral or other values. They disagree about which participant perspective—that of the judge, lawyer, citizen, or “bad man”—is primary and about what taking up the participant perspective commits the theorist to. However, virtually unchallenged is (...) the view that jurisprudence is fundamentally interpretive or “hermeneutic”; that it takes for its subject a certain kind of social practice, constituted by the behavior and understandings of its participants; that its task is to explain this practice and its relations to other important social practices; and that it can properly be explained only by taking full account of participant understandings. It is, perhaps, some measure of the hegemony of Hart's influence that Ronald Dworkin mounts his fundamental challenge to Hart's positivism squarely from within this jurisprudential orthodoxy. Dworkin may have exceeded the limits of the method as Hart conceived it, but, as Stephen Perry has argued, “the seeds of Dworkin's strong version of inter-pretivism were sown by Hart himself.”. (shrink)

Rosen argues that Bentham's utilitarian doctrine was sensitive to distributive concerns and would not countenance sacrifice of fundamental individual interests for aggregate gains in happiness in society. This essay seeks to extend and deepen Rosen's argument. It is argued that Bentham's equality-sensitive principle of utility is an expression of an individualist conception of human happiness which contrasts sharply with the orthodox utilitarian abstract conception. Evidence for this interpretation of the basic motivation of Bentham's doctrine is drawn from his view of (...) the relationship between happiness and expectations, from various expressions of his formula, and from his reformulations of the principle of utility itself late in his career. (shrink)

Hume's account of the roots of justice focuses on the need to secure possession against the corrosive effects of unrestrained avidity. The reasons for this focus lie deep in his understanding of human psychology, especially, the mimetic passions shaped by the principles of sympathy, social referencing, and reversal comparison. The need for esteem drives human beings to attach their pride to those things they think are especially valued by those whom they especially admire. Most predominant among these goods are riches (...) and possessions. Intense competition for these scarce goods puts the material and psychological survival of all in jeopardy. Conventions of justice are needed to civilize and channel avidity, transforming it from open and deadly violence and secret envy and malice into productive and public emulation. (shrink)

Hume’s account of the roots of justice focuses on the need to secure possession against the corrosive effects of unrestrained avidity. The reasons for this focus lie deep in his understanding of human psychology, especially, the mimetic passions shaped by the principles of sympathy, social referencing, and reversal comparison. The need for esteem drives human beings to attach their pride to those things they think are especially valued by those whom they especially admire. Most predominant among these goods are riches (...) and possessions. Intense competition for these scarce goods puts the material and psychological survival of all in jeopardy. Conventions of justice are needed to civilize and channel avidity, transforming it from open and deadly violence and secret envy and malice into productive and public emulation. (shrink)

Bentham belongs to a long tradition of reflection on law according to which the nature of law can best be understood in terms of its distinctive contribution to the solution of certain deep and pervasive problems of collective action or collective rationality. I propose to take a critical look at Bentham's unique and penetrating contribution to this tradition. For this purpose I will rely on the interpretation of the main lines of Bentham's jurisprudence and its philosophical motivations which I have (...) developed in Bentham and the Common Law Tradition. will not attempt further to defend it here. I wish, rather, to reflect on themes and arguments which this interpretation of Bentham's jurisprudence has uncovered. (shrink)

Annette Baier was the dean of contemporary Hume studies and one of the most insightful and influential philosophers writing on Hume. Since the late 1970s, her writings and the example of her distinctive mode of scholarship have inspired generations of scholars to look with fresh eyes at Hume's work. The special turn of her philosophical mind and personal style of writing are especially well-suited to uncover, appreciate, and effectively communicate the rich, nuanced, and humane dimensions of Hume's moral philosophy. Her (...) masterpiece, A Progress of Sentiments (Cambridge, MA: Harvard University Press, 1991), for example, taught us that Hume's moral psychology underwrites his moral and social philosophy. The Cautious .. (shrink)

Rosen argues that Bentham's utilitarian doctrine was sensitive to distributive concerns and would not countenance sacrifice of fundamental individual interests for aggregate gains in happiness in society. This essay seeks to extend and deepen Rosen's argument. It is argued that Bentham's equality-sensitive principle of utility is an expression of an individualist conception of human happiness which contrasts sharply with the orthodox utilitarian abstract conception. Evidence for this interpretation of the basic motivation of Bentham's doctrine is drawn from his view of (...) the relationship between happiness and expectations, from various expressions of his ‘each to count for one’ formula, and from his reformulations of the principle of utility itself late in his career. (shrink)

The key to unlocking the mystery of human passions, according to Hume, lay in the interaction between two fundamental psychological mechanisms or principles: sympathy and comparison. Both our sociality and our asociality find their psychic origins in the complex interaction of these principles. Due to the operation of these principles, justice is necessary for social life. It channels and controls the passions in contexts of social interaction; they in turn generate resources from which the structures of justice and the foundations (...) of political society can be built by intelligent and sympathetic human beings. This essay explores Hume’s account of sympathy and comparison and some of the passions they generate, in the hope of gaining a better understanding of his unsentimental and unblinkered view of our social asociality. (shrink)

Nowhere has H.L.A. Hart's influence on philosophical jurisprudence in the English-speaking world been greater than in the way its fundamental project and method are conceived by its practitioners. Disagreements abound, of course. Philosophers debate the extent to which jurisprudence can or should proceed without appeal to moral or other values. They disagree about which participant perspective—that of the judge, lawyer, citizen, or “bad man”—is primary and about what taking up the participant perspective commits the theorist to. However, virtually unchallenged is (...) the view that jurisprudence is fundamentally interpretive or “hermeneutic”; that it takes for its subject a certain kind of social practice, constituted by the behavior and understandings of its participants; that its task is to explain this practice and its relations to other important social practices; and that it can properly be explained only by taking full account of participant understandings. It is, perhaps, some measure of the hegemony of Hart's influence that Ronald Dworkin mounts his fundamental challenge to Hart's positivism squarely from within this jurisprudential orthodoxy. Dworkin may have exceeded the limits of the method as Hart conceived it, but, as Stephen Perry has argued, “the seeds of Dworkin's strong version of inter-pretivism were sown by Hart himself.”. (shrink)