Jurisprudence Tutorial 8

Sarah James
1171100446
T3V

1. Explain Hedonism, consequentialism, maximalism and universalism

Hedonism:
The word ‘hedonism’ comes from the ancient Greek for ‘pleasure’. Psychological or
motivational hedonism claims that only pleasure or pain motivates us. Ethical or
evaluative hedonism claims that only pleasure has worth or value and only pain or
displeasure has disvalue or the opposite of worth. Jeremy Bentham asserted both
psychological and ethical hedonism with the first two sentences of his book An
Introduction to the Principles of Morals and Legislation: “Nature has placed mankind
under the governance of two sovereign masters, pain, and pleasure. It is for them
alone to point out what we ought to do, as well as to determine what we shall do”.
Philosophical hedonists tend to focus on hedonistic theories of value, and especially
of well-being (the good life for the one living it).

As a theory of value, hedonism states that all and only pleasure is intrinsically valuable
and all and only pain is intrinsically not valuable. Hedonists usually define pleasure
and pain broadly, such that both physical and mental phenomena are included. Thus,
a gentle massage and recalling a fond memory are both considered to cause pleasure
and stubbing a toe and hearing about the death of a loved one are both considered to
cause pain. With pleasure and pain so defined, hedonism as a theory about what is
valuable for us is intuitively appealing. Indeed, its appeal is evidenced by the fact that
nearly all historical and contemporary treatments of well-being allocate at least some
space for discussion of hedonism.

Consequentialism:
Consequentialism, is simply the view that normative properties depend only on
consequences. It is a theory that says whether something is good or bad depends on
its outcomes. An action that brings about more benefit than harm is good, while an
action that causes more harm than benefit is not. The most famous version of this
theory is utilitarianism. Although there are references to this idea in the works of
ancient philosopher Epicurus, it’s closely associated with English philosopher Jeremy
Bentham. Bentham’s theory of utilitarianism focused on which actions were most
likely to make people happy. If happiness was the experience of pleasure without pain,
the most ethical actions were ones that caused the most possible happiness and the
least possible pain.
He even developed a calculator to work out which actions were better or worse – the
‘felicific calculus’. Because it counted every person’s pleasure or pain as the same,
regardless of age, wealth, race, etc. utilitarianism could be seen as a radically
egalitarian philosophy. Bentham’s views are most closely aligned with act
utilitarianism. This basic form of consequentialism holds an action as ethical if and
only if it produces more beneficial/pleasure-causing outcomes than negative/pain-
causing ones

Consequentialism is the view that morality is all about producing the right kinds of
overall consequences. Here the phrase “overall consequences” of an action means
everything the action brings about, including the action itself. For example, if you think
that the whole point of morality is (a) to spread happiness and relieve suffering, or (b)
to create as much freedom as possible in the world, or (c) to promote the survival of
our species, then you accept consequentialism. Although those three views disagree
about which kinds of consequences matter, they agree that consequences are all that
matters. So, they agree that consequentialism is true.

Maximalism:

the term maximalism brings to mind an excessive degree of complexity. However,

complexity alone does not warrant the name, as forms of complexity may be found in
any work of art or architecture, even in those that appear visually reductive like
minimalism. Therefore, it is better to speak of maximalism’s complexity as an extreme
visual incoherence among its content to the point that nothing can be isolated as a
discrete thing, thus preventing the recognition of a whole, which develops from a
reduction or compilation into singular unité. Maximalism represents a critical degree
of complexity that is abstruse and irreducible.

Universalism:
Universalism is the philosophical and theological concept that some ideas
have universal application or applicability.
A belief in one fundamental truth is another important tenet in universalism. The
living truth is seen as more far-reaching than the national, cultural, or religious
boundaries or interpretations of that one truth. As the Rig Veda ( an ancient Indian
collection of Hindu texts) states, "Truth is one; sages call it by various names." A
community that calls itself universalist may emphasize the universal principles of most
religions, and accept others in an inclusive manner. In the modern context,
Universalism can also mean the Western pursuit of unification of all human beings
across geographic and other boundaries under Western values, or the application of
really universal or universalist constructs, such as human rights or international law.
 2- Distinguish between rule utilitarianism and act utilitarianism

The main difference between act and rule utilitarianism is that act utilitarianism is more focused
on the immediate consequences of an action, while rule utilitarianism looks at long-term
consequences.

Act utilitarianism is the belief that it is the right action that brings the greatest happiness to the
greatest number of people. It is a concept that believes that the morality of an action is
determined by its usefulness to most of the people, that this act is in accordance with the moral
rules since it brings greater good or happiness. Rule utilitarianism on the other hand is the belief
that an action can be morally right if it conforms to the rules that will lead to the greatest good
or happiness. It adheres to the belief that the correctness of an action is determined by the
correctness of its rules and that if the correct rule is followed, the greatest good or happiness is
achieved.

It is a concept that believes that although following the rules does not always produce the
greatest good, not following it will not produce the greatest good either. In the end, rule
utilitarianism can become an act utilitarianism because when breaking a rule produces a greater
good, a sub rule can be made to handle exceptions.

DIFFERENCE:
Definition
Act utilitarianism is a philosophy that judges the Rule utilitarianism is similar but considers not just
morality of an action based on its immediate whether the outcome was good or bad but also
consequences, without concern for future or long- how likely it was that action would produce a good
term effects. outcome.

Intention
Act utilitarians would be more likely to do Rule utilitarians are less likely to take immediate
something immediately, without much action unless it is necessary and with a lot of thought
consideration for the consequences. put into how it will affect others.

Judgement
Act utilitarians would judge an event by its immediate
benefits for oneself or others but not take into account
what might happen as a result of this action in the
future.
Rule utilitarians, however, are more likely to
think about how their actions will affect
themselves and those around them in the long
run.
Actions
Rule utilitarianism is more likely to help someone
Act utilitarians would need to take into account the
else if they are currently suffering from a terrible
immediate physical consequences of their actions
injury or if someone is happy and content, but they
and not worry about other effects that might occur
will not do anything to help them if they are
in the future or how it will affect those around them.
suffering.

Rules
Act utilitarians would need a rule that always helps others in the A rule utilitarian would need a more
same way every time it’s followed. For instance, providing food specific rule, such as “always provide
for people who want it may be an act utilitarian action. food for people who want it.”

3. Discuss theory of pain and pleasure by Jeremy Bentham

According to Bentham, pleasure and pain govern not only how human beings act but also how
human beings ought to act. The principle of utility or the principle of utilitarianism: I ought do
that act which will bring about the greatest happiness (pleasure) for the greatest number of
persons (the community).
Bentham has classified the pleasure and pain on the basis of human psychology which illustrates
as psychological hedonism.

Pleasures
a. Pleasure of riches
b. Pleasure of good reputation
c. Pleasure of friendship
d. Pleasure of knowledge
e. Pleasure of social affection
f. Pleasure of relief from pain which might vary with various kinds of pain, and
g. Pleasure of good friendship and social affection.

Pain
a. Pain of privation,
b. Pain of sense including diseases of all kinds,
c. Pain of skill,
d. Pain of enmity,
e. Pain of piety including feat of divine punishment, and
f. Pain of knowledge and imagination.
Introduction to the Principles of Morals and Legislation, Bentham writes:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure.
It is for them alone to point out what we ought to do, as well as to determine what we shall do.
On the one hand the standard of right and wrong, on the other the chain of causes and effects,
are fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort
we can make to throw off our subjection, will serve but to demonstrate and confirm it.
From this we see that, for Bentham, pleasure and pain serve not only as explanations for action,
but they also define one’s good.

In measuring pleasure and pain, Bentham introduces the following criteria:

Its INTENSITY, DURATION, CERTAINTY (or UNCERTAINTY), and its NEARNESS (or FARNESS). He
also includes its "fecundity" (more or less of the same will follow) and its "purity" (its pleasure
won't be followed by pain & vice versa).
In considering actions that affect numbers of people, we must also account for their EXTENT.
As a social reformer, Bentham applied this principle to the laws of England -- for example, those
areas of the law concerning crime and punishment. An analysis of theft reveals that it not only
causes harm to the victim, but, if left unpunished, it endangers the very status of private property
and the stability of society. In seeing this, the legislator should devise a punishment that is useful
in deterring theft. But in matters of "private morality" such as sexual preference and private
behavior, Bentham felt that was not at all useful to involve the legislature.

It is, in short, on the basis of pleasures and pains, which can exist only in individuals, that Bentham
thought one could construct a calculus of value.

4. Discuss Rawls’ criticism on unilateralism

Rawls says that while utilitarianism allows for the greater gains of some to compensate for the
lesser losses of others, his theory does not.6 This, however, is where he falls into trouble because
he does not take into account rule utilitarianism. Rawls defines utilitarianism, for the purpose of
his argument, as the idea that society is just when its major institutions are arranged so as to
achieve the greatest net balance of satisfaction summed over all the individuals belonging to it.7
By saying that utilitarianism allows the greater gains of some to compensate for the lesser loss
of others, Rawls seems to be implying that this sort of strict utilitarianism would not uphold a
system of equal rights. This is because in many situations, violating someone’s basic right may in
fact be more beneficial than not. As discussed earlier, however, utilitarian reasoning, taken to a
logical conclusion, can be shown to support equal rights. Rawls’s concern in raising this distinction
seems to be that utilitarianism cannot account for equal rights, and thus equal distribution. But,
as has been shown, indirect utilitarianism can account for such rights through utilitarian
reasoning. One could argue, however, that my argument is not convincing and that utilitarian
reasoning, in some situations, could still be shown to support the gain of some at the expense of
others. My response to this is that Rawls’s theory can be shown to do the same thing.
Rawls’s reasoning supports the notion that the advantages of some can justly compensate the
resulting loss of others. Take his first principle of equal rights, and imagine, for example, a
peaceful animal rights march. Rawls would say that the protesters’ right to free speech is more
important that the resulting discomfort onlookers may feel. Here, the lesser loss of some
(namely, the discomfort of onlookers) is justified by the greater benefits of others (namely, the
freedom of the protesters). In fact, it seems that in all cases of equal rights, there is an inherent
assumption that the benefits that rights afford an individual are more important (or are a greater
good) than any losses that may occur as a result of these rights. In this sense, Rawls’s theory can
be shown to support utilitarian reasoning. Another criticism that Rawls brings up is that
utilitarianism does not take seriously the distinction between persons. He argues that utilitarian
thought is basically the reasoning of one man adapted for society as a whole. He says, “just as it
is rational for one man to maximize the fulfillment of his system of desires, it is right for a society
to maximize the net balance of satisfaction taken over all of its members.”8 This interpretation
of utilitarianism leads him to conclude that decisions regarding utility are made by an impartial
observer who identifies with the desires of others as if they were his own. His position is that
utilitarianism requires “conflating all persons into one through the imaginative acts of the
impartial sympathetic spectator.”

5. What is the relationship between law and economics?

A century and a half ago John Stuart Mill said of English philosopher and political radical Jeremy
Bentham, in effect, that he approached the world as a stranger. And, if the world did not fit his
theory, utilitarianism, he dismissed what the world did as nonsense. Mill then said that what
Bentham did not realize was that often that nonsense reflected the unanalyzed experience of the
human race. Sometimes, Mill implied, the theory was right. But sometimes it is the world that is
more sophisticated than the theory.

Law and Economics, today, reflects a similar division. There are many Benthamites—Economic
Analysts of Law—around. These scholars look at the legal world from the standpoint of existing
economic theory. And if the world does not do what that theory seems to suggest it ought to do,
they dismiss the world as irrational. But there are followers of Mill among Law and Economics
scholars as well. These also start out by looking at the world from the standpoint of economic
theory. If the theory and practice don’t mesh, however, they don’t simply dismiss the world. They
instead examine whether it might be the theory that is inadequate. And, having done so, they try
to make the theory more nuanced, while still theoretically sound. They then see if the amplified
theory can explain why the legal world is what it is. And, if it proves out, they go on to use this
more complex theory in analyzing areas of law often far removed from that which first led them
to modify the theory.
The Benthamites have been immensely effective in the last fifty or so years in bringing about
changes in many areas of law. But sometimes these reforms have not been beneficial, because
they have been grounded in the assumption that the theory was necessarily correct and the
world was inadequate, when the opposite was in fact the case. Making law the handmaiden of
economic theory in this way, rather than using the analytical strengths of economics in
conjunction with the empirical data about human wants and needs that the law furnishes,
impoverishes both fields. It can also lead to bad policy results.

Economic theory has long failed to explain adequately why there is so much beneficence around
and why so many non-profit institutions exist. Self-interest, it is said, would be more effective in
getting things done. Why then does so much altruism perdure? There is a good, simple, and
important theoretical answer to this! Similarly, lawyer-economists often criticize our
unwillingness to let certain goods, like education, health care, body parts (kidneys and blood) be
allocated in the market. Why don’t we just let such so-called merit goods be the subject of
individual purchases and sales? Prohibiting such transactions is often decried as unjustifiably
paternalistic. But is it? I think not. If relatively few changes were made in economic theory
changes that are quite consistent with the field—such real world behavior, like altruism and the
treatment of merit goods, can be easily explained and justified. Moreover, that deeper and more
nuanced economic theory can then be used to structure that behavior better and make the rules
that accompany it more effective. Not only that, but that better theory will prove helpful in many,
many other areas as well.

Therefore, Law and Economics lies in this sort of mutual relationship. It lies not in making law
subservient to economics, but in using the analytical strength of economic theory in conjunction
with the empirical insights into people s wishes that the legal system gives. So combined, both
theory and practice will become better able to serve our wants and needs.

6. Critically discuss Posner’s economic analysis of law?

Economic analysis of law applies the tools of microeconomic theory to the analysis of legal rules
and institutions. Richard Posner [1973] brought economic analysis of law to the attention of the general
legal academy; by the late 1970s, his work had provoked a vigorous controversy. This controversy was
both general and doctrinally specific. Posner had claimed generally that the common law was and ought
to be efficient. This latter claim provoked a broad controversy about the evaluation of legal rules.
More specifically, controversy recurred each time economic analysts of law addressed another
doctrinal area. More often than not, the introduction of economic analysis into the study of a
doctrine transformed that area of scholarship. For a time, economic analysis dominated the study
of private law in the United States; arguably it still dominates, though a healthy resurgence of
moral accounts of these areas has recently emerged to challenge economic analysis of private
law.
Many practitioners and critics alike believe that economic analysis of law offers a comprehensive
theory of law. As traditionally understood, a comprehensive theory of law has several
components. Economic analysis of law deploys the tools of micro-economic theory to study legal
rules and institutions. The various approaches and projects within economic analysis of law thus
share a common core.

First, a comprehensive theory of law begins with a characterization of the nature of law. This
component distinguishes law not only from other normative systems such as morality, religion,
and social conventions such as etiquette but also from coercion and politics.
The second part of a comprehensive theory of law characterizes the grounds of law. Dworkin
framed the grounds of law as the truth conditions for a proposition of law. From this perspective,
much of the debate over the concept of law concerns the role that morality plays in these truth
conditions. As discussed in section 3 below, the first and second parts of a comprehensive theory
of law have often been conflated in the debate over the concept of law.

The third part of a comprehensive theory of law identifies the nature of the reasons for action
that law provides. Often, this aspect of a theory of law is subsumed under the second part that
identifies the grounds of law. For purposes of an exposition of the economic theory of law,
however, it is useful to distinguish these two questions.The fourth part of a comprehensive
theory of law identifies the value of legality. The fifth and final part of a comprehensive theory of
law articulates a normative theory of adjudication, a theory of how judges ought to decide cases.
Framed this way, it is not clear that economic analysis of law does provide a comprehensive
theory of law. The questions posed above have rarely been addressed clearly and explicitly by
economic analysts of law. The early debates conflated theories of adjudication with the value of
legality; subsequent debates have largely concerned theories of private law rather than of law
generally. This essay thus offers both an interpretation of the approach to these five questions
implicit in the practice of economic analysis of law and a recharacterization of economic analysis
of law generally.

The rationality in the economic analysis of law is that each agent acts to maximize her
“preferences” in whatever environment she finds herself. Economic analysis of law is not a single,
unitary practice but a set of projects that share a methodological approach. The typical economic
analysis of law does not set its task within the framework of a general legal theory. Rather, it
addresses a specific question about the causes or consequences or social value of a specific legal
rule or set of legal rules. Phrased differently, the typical economic analysis of law investigates a
specific legal rule or institution rather than make general claims about the nature of law.
7. What is meant by Pareto efficiency?

Pareto efficiency, or Pareto optimality, is an economic state where resources cannot be

reallocated to make one individual better off without making at least one individual worse off.
Pareto efficiency implies that resources are allocated in the most economically efficient manner,
but does not imply equality or fairness. An economy is said to be in a Pareto optimum state when
no economic changes can make one individual better off without making at least one other
individual worse off.

Pareto efficiency, named after the Italian economist and political scientist Vilfredo Pareto (1848-
1923), is a major pillar of welfare economics. Neoclassical economics, alongside the theoretical
construct of perfect competition, is used as a benchmark to judge the efficiency of real markets—
though neither perfectly efficient nor perfectly competitive markets occur outside of economic
theory.
• Pareto efficiency is when an economy has its resources and goods allocated to the
maximum level of efficiency, and no change can be made without making someone worse
off.
• Pure Pareto efficiency exists only in theory, though the economy can move toward Pareto
efficiency.
• Alternative criteria for economic efficiency based on Pareto efficiency are often used to
make economic policy, as it is very difficult to make any change that will not make any
one individual worse off.
•
Hypothetically, if there were perfect competition and resources were used to maximum efficient
capacity, then everyone would be at their highest standard of living, or Pareto efficiency.
Economists Kenneth Arrow and Gerard Debreu demonstrated, theoretically, that under the
assumption of perfect competition and where all goods and services are tradeable in competitive
markets with zero transaction costs, an economy will tend toward Pareto efficiency. In any
situation other than Pareto efficiency, some changes to the allocation of resources in an economy
can be made, such that at least one individual gains and no individuals lose from the change. Only
changes in allocation of resources that meet this condition are considered moves toward Pareto
efficiency. Such a change is called a Pareto improvement.

A Pareto improvement occurs when a change in allocation harms no one and helps at least one
person, given an initial allocation of goods for a set of persons. The theory suggests that Pareto
improvements will keep enhancing value to an economy until it achieves a Pareto equilibrium,
where no more Pareto improvements can be made. Conversely, when an economy is at Pareto
efficiency, any change to the allocation of resources will make at least one individual worse off.
Therefore, It is a purely economic concept and has no relationship with the concept of equal or
fair utilization of resources. It has wide applications in the field of economics and engineering.

It is the final optimum solution beyond which any change would directly lead to loss in the
allocation of resources. Pareto's efficiency is, thus, the complete solution in itself. However, it is
almost impossible to achieve.
8. Explain John Rawls theory of justice

A Theory of Justice was published in 1971 by American moral and political philosopher John
Rawls. It attempted to resolve the problem of distributive justice in society. Rawls was opposed
to the traditional philosophical arguments on what constitutes a just institution and the
justification for social actions and policies. The utilitarian argument holds that society should
pursue the greatest good for the greatest number, an argument that is consistent with the idea
of the tyranny of majorities over minorities.

In opposing the utilitarian arguments, Rawls attempted to establish an unbiased version of social
justice based on the social contract approach. The social contract approach holds that society is
in the form of agreement with all those within the society. The approach originated from an 18 th-
century philosophical and intellectual movement called the Age of Enlightenment.
The movement assumes that members of a society have consented to surrender some of their
freedoms and submit to the authority of the ruler in exchange for the maintenance of social rights
and the protection of their remaining rights. Rawls opines the idea of justice as fairness, and he
identifies social justice as the first characteristic of social institutions.

• John Rawls developed A Theory of Justice based on the social contract theory.
• Rawls argued that equal distribution of resources should be the desirable state of
nature instead of following utilitarian philosophies.
• A Theory of Justice holds that every individual has an equal right to basic liberties, and
that they should have the right to opportunities and an equal chance as other
individuals of similar ability.

Rawls introduced the “Original Position” as an artificial device when he developed the Principles
of Justice theory. The device created a hypothetical situation where members of the population
can come to a contractual agreement on the distribution of resources without one party being
seen to be more advantaged than the other.The thought experiment would produce the desired
state of affairs among members of the population behind a veil of ignorance. The veil was a
condition that blinded people to all their personal characteristics such as age, ethnicity, sex, and
income level, which would otherwise cause bias. In the absence of the veil, individuals could align
the principles to their advantage.

Rawls developed the original position to create a reflection of the principles of justice that would
exist in the society, based on the free and fair interactions between the population. In the state
of nature and in the absence of a veil of ignorance, certain individuals such as the privileged and
talented would put pressure on the vulnerable, weak, and disabled since the former is in a better
position in the state of nature. The act of coercing the vulnerable members of the population
invalidates any contractual arrangements that may exist in the state of nature.
9. What is meant by the original position?

Rawls specifies that the parties in the original position are concerned only with citizens' share of
what he calls primary social goods, which include basic rights as well as economic and social
advantages. Original position is a device introduced by Rawls when he developed the Principle
of Justice. This device created a hypothetical situation where members of the population can
come to a contractual agreement on the distribution of resources without one party being seen
to be more advantaged than the other.

The original position is a central feature of John Rawls’s social contract account of justice, “justice
as fairness,” set forth in A Theory of Justice (TJ). The original position is designed to be a fair and
impartial point of view that is to be adopted in our reasoning about fundamental principles of
justice. In taking up this point of view, we are to imagine ourselves in the position of free and
equal persons who jointly agree upon and commit themselves to principles of social and political
justice. The main distinguishing feature of the original position is “the veil of ignorance”: to insure
impartiality of judgment, the parties are deprived of all knowledge of their personal
characteristics and social and historical circumstances. They do know of certain fundamental
interests they all have, plus general facts about psychology, economics, biology, and other social
and natural sciences. The parties in the original position are presented with a list of the main
conceptions of justice drawn from the tradition of social and political philosophy, and are
assigned the task of choosing from among these alternatives the conception of justice that best
advances their interests in establishing conditions that enable them to effectively pursue their
final ends and fundamental interests. Rawls contends that the most rational choice for the parties
in the original position are two principles of justice: The first guarantees the equal basic rights
and liberties needed to secure the fundamental interests of free and equal citizens and to pursue
a wide range of conceptions of the good. The second principle provides fair equality of
educational and employment opportunities enabling all to fairly compete for powers and
positions of office; and it secures for all a guaranteed minimum of the all-purpose means
(including income and wealth) that individuals need to pursue their interests and to maintain
their self-respect as free and equal persons.
10. Describe two principles of justice

John Rawls presented two principles of justice that self-interested and rational individuals would
choose when separated by the veil of ignorance. In other words, The principles of justice are
chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in
the choice of principles by the outcome of natural chance or the contingency of social
circumstances. Since all are similarly situated and no one is able to design principles to favor his
particular condition, the principles of justice are the result of a fair agreement or bargain. For
given the circumstances of the original position, the symmetry of everyone’s relations to each
other, this initial situation is fair between individuals as moral persons, that is, as rational beings
with their own ends and capable, I shall assume, of a sense of justice. The original position is, one
might say, the appropriate initial status quo, and thus the fundamental agreements reached in it
are fair. This explains the propriety of the name “justice as fairness”: it conveys the idea that
the principles of justice are agreed to in an initial situation that is fair. The name does not mean
that the concepts of justice and fairness are the same, any more than the phrase “poetry as
metaphor” means that the concepts of poetry and metaphor are the same.

The principles include:

1. Principle of Equal Liberty

The principle of equal liberty is the first principle of justice to be derived from the original
position. It states that all citizens have an equal right to basic liberties, which, according to Rawls,
entails freedom of conscience, expression, association, and democratic rights.Rawls added the
right of personal property as one of the basic liberties that individuals should have, and that
cannot be infringed or amended by the government. He, however, excluded an absolute right to
unlimited personal properties as part of the basic liberties that people should have.

2. Principle of Equality
The principle of equality holds that economic principles should be arranged in a way that they
meet two requirements. First, the least advantaged in society should receive a greater number
of benefits. Second, the economic inequalities should be arranged in a way that no individual is
blocked from occupying any position or office, regardless of their ethnicity, sex, or social
background. Rawls argued that all individuals in the society should have fair equality of
opportunities and an equal chance as everybody else of similar natural ability.