Chapter 2: Justifications, in Utilitarianism: A Very Short Introduction. The practice of torture will arguably best be countered by confronting the subterranean utilitarian justifications of torture on their own terms; over the long term it does not work, but rather undermines the legitimacy of the state itself. . I then evaluated whether each proposed utilitarian punishment, recommended by the standard sentencing guidelines, would have a positive or negative effect on society. The Utilitarian Justification of Torture: Denial, Desert and Disinformation ROD MORGAN First Published April 1, 2000 Research Article https://doi.org/10.1177/14624740022227944 Abstract Torture is prohibited by customary international law. utilitarianism, in normative ethics, a tradition stemming from the late 18th- and 19th-century english philosophers and economists jeremy bentham and john stuart mill according to which an action (or type of action) is right if it tends to promote happiness or pleasure and wrong if it tends to produce unhappiness or painnot just for the 2011), https://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf. Finally, the natural rights case for IP was recognized by Abraham Lincoln, and IP rights continued to be highly respected during Reconstruction. [16] The Federalist No. I realized that although standard sentencing guidelines based on utilitarian values could not be applied uniformly to every individual case, they could effectively outline punishments for each category of crime and maximize utility in a practical manner. This empirical work is in accord with recent theoretical law and economics analyses that explain why the patent system functions as an engine of economic growth and innovation. As a utilitarian justification for capital punishment, the reform theory recommends the reform of society at large through the elimination of threatening individuals in the community. [4] See The Heritage Guide to the Constitution 153 (David F. Forte and Matthew Spalding eds., 2d ed. its chance of not being followed by sensations of the opposite kind (pleasure by pain, pain by pleasure). Enter. The popular notion that U.S. IP rights, especially patents and copyrights, are special privileges that merit less protection than more traditional property rights, both on constitutionalist grounds and on pragmatic economic policy grounds, is deeply flawed. Therefore, they argued that antitrust, patent grant, and patent litigation policy should be reoriented to reduce patent grants (with a focus on higher quality) and subject patents to greater legal restrictions, including easier limitation and invalidation. It is summed up in the principle that the punishment should fit the crime. The final theoretical justification for utilitarian punishment is incapacitation. You see, a probated sentence is typically longer than the time they would have to spend in prison, so they felt it would be better to do a short stretch and be done with it. only in virtue of the well-being of the lives of particular individuals . Bentham believed that when a government is based on utilitarianism, a system of law and reason is created that values happiness as its foremost principle (Bentham 1789). These forms have received less critical attention lately and are beyond the scope of this commentary. I once had a job working with five convicted felons, and with a woman whose son had been charged with aggravated assault. The University of New Hampshire Copyright 2022 Main Street, Durham, NH 03824 603-862-1234 400 Commercial Street, Manchester, NH 603-641-4101 USNH Privacy Policies USNH Terms of Use ADA Acknowledgement Contact the Webmaster, www.earlymoderntexts.com/assets/pdfs/bentham1780.pdf, https://oll.libertyfund.org/titles/bentham-the-works-of-jeremy-bentham-vol-10-memoirs-part-i-and-correspondence. 477 (1850). Incapacitation appears to be straightforward, and has a specific fit with the basic role of imprisonment (Zimring and Hawkins, 1995), which in turn removes the ability to engage in further crime. The last three chapters are purely analytical and focus on what I believe to be the three most important areas of concern for contemporary utilitarian moral theorists: the definition of a philosophically viable concept of utility; the justification of . This Antebellum experience was evidence of a common conceptual understanding about copyright and patent protection rooted in natural rights principles, according to May and Cooper. [18] See George Washington, First Annual Message to Congress on the State of the Union (Jan. 8, 1790) (I can not forbear intimating to you the expediency of giving effectual encouragementto the introduction of new and useful inventions from abroad as to the exertions of skill and genius in producing them at home and there is nothing which can better deserve your patronage than the promotion of science and literature), http://www.presidency.ucsb.edu/ws/?pid=29431. (6) its purity, i.e. In short, IP is justified on natural rights grounds; references to the English legal tradition are mere window dressing. ), On the Utilitarian and Retributive Justifications of Punishment, Ways to get involved in the 2022 Election. This and other evidence of strong support for IP rights during the First Congress demonstrates that the First Congresss securing of copyrights and patents amidst all its other constitution-implementing business is indicative of IPs consistency with the logic of American constitutionalism.[19]. Another important justification is the utilitarian or consequentialist argument for intellectual property rights. Because of the influence that utilitarianism and drug-related problems have on the political and philosophical world, I hope that my research will help both fields address some of the complex issues the world is facing. View utilitarian-justification-copy.docx from POLITICAL 2702 at Harvard University. [1] See, e.g., N. Stephan Kinsella, Against Intellectual Property (2008), file:///C:/Users/abbotta/Downloads/Against%20Intellectual%20Property_2%20(1).pdf. Introduction: Utilitarian Social Philosophy. Moreover, a low recidivism rate would increase the happiness of society because taxpayers do not have to pay for multiple prison sentences and can benefit from the offender becoming a productive member of society. Implicit in this analysis was the premise that the current patent system unnecessarily restricts competition and imposes excessive costs on society. This implies that the value of morality and ethics can be easily evaluated by the effect . Affirmative action was set up to improve the educational . [38] See generally Adam B. Jaffe & Josh Lerner, Innovation and Its Discontents (2011). For them, rehabilitation is fine, if it can be achieved in the process of making sure the criminal gets what is coming to him. Utilitarianism holds that the most ethical choice is the one that will produce the greatest good for the greatest number. Congress and the executive branch should enhance rather than lessen the protection of American IP rights both in the United States and around the world. 3, at 45. Other statutes that generally enhanced patent rights were passed in 1832, 1837, 1839, 1842, 1848, 1849, 1851, and 1861. Explain Moore's distinction between "thin" and "thick" consent. It asserts that even if the natural law argument can be challenged, it is still the case that without the monetary incentives which come with the monopoly rights from intellectual property, rational agents . Explain the Lockean "labor/desert" approach to justifying IP. The third component of my hypothetical guideline, rehabilitation or medical care, would be used in cases where the offender exhibited signs of addiction or suffered health problems related to drug use. (1972) ch CVII, para 4, pp 282283 Even in more simplistic cases, such as one in which no coercion is involved but a family relies upon the mothers income, giving the mother a large fine would unjustly affect her dependents. For example, Chief Justice John Marshall, writing for a federal district court in 1813 in Evans v. Jordan,[24] stated that an inventor possesses an inchoate property [which] is vested by the discovery and perfected by the patent. The Supreme Court of the United States used similar language in 1850 in Gayler v. This judgment was made according to the principle of utility, where an action provides greater happiness and benefit for society than if the action was not taken.773 Utilitarian justifications are often Abstract One of the main barriers against a Utilitarian justification of punishment is a widespread criticism that if punishment is evil justified by the good it can achieve, then the state could. It is important to understand utilitarianism as it forms the basic tenants of legal theory and function of laws. "displayNetworkMapGraph": false, The philosophy of consequentialism is based on the belief that the moral and ethical value of one's action should be judged by the consequence of such action. 3. Bentham, Jeremy in Bowring, John, Works of Jeremy Bentham, vol IV. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. I would like to thank the Hamel Center for Undergraduate Research for their consistent dedication to ensuring that UNH students receive amazing research opportunities throughout their undergraduate experience. Stated somewhat differently, in the broad understanding of property held by Madison and the Founding Fathers, a person has a natural right to the fruits of his or her labor. Civil laws apply in unique ways to different types of property. Second, after undergoing governmental education programs on the harmful repercussions of consuming illicit drugs, the offender would be less likely to engage in substance abuse in the future. With that said, a more consistent ethical system should be put in place. Where was I? At this point, I cannot resist a parenthetical aside. The fact that IP rights are defined through a specific constitutional provision and positive statutory law does not make them any less worthy of protection than more traditional forms of tangible property are. Over the past decade, Organisation for Economic Co-operation and Development studies have found a positive association between the strengthening of IP rights (including patents) and important economic indicators as well as a positive relationship between the strengthening of patent rights and increased innovation. Three main justifications offered for intellectual property rights (IPRs) are: reward for labour (John Locke), personality-based (GWF Hegel) and incentive-oriented (Jeremy Bentham/Utilitarian) theories. The utilitarian justification for punishment appeals to what is best for society in general, and over the long run. The Supreme Court has constrained the scope of patent protection in recent decisions; Some economists have decried the quality of patents that are issued, suggesting that additional devaluation of patents might be appropriate; Federal enforcement agencies have begun to use antitrust law in an attempt to limit returns to patents that cover key standardized technologies; Various copyright critics have denigrated statutory copyright protection as a form of economically wasteful special privilege that should be curbed or even eliminated. Photo by Clarissa Williams. This justification is based on the calculation that the benefits of the theft outweigh the losses caused by the theft. Even though I designed my sentencing guidelines using utilitarian principles, as described for a drug-use crime above, it is impossible for any standard sentencing guideline to properly address the complexities of every criminal case. Aesthetic Justification: It did not always work. [3] U.S. Const. This implementation would be drafted by legislators aiming to include the utilitarian value of creating happiness when possible as a comprehensive goal for the US criminal justice system, similar to how many Scandinavian countries have the goal of humane treatment and reintegration into society (Zoukis 2017). Various arguments exist questioning if an abortion is morally justifiable. In fact, people who kill intentionally may actually be more dangerous. Utilitarianism is one of the most powerful and persuasive approaches to normative ethics in the history of philosophy. (Sen, p. 1 page, 397 words. "Kos" and "Daily Kos" are registered trademarks of Kos Media, LLC. . Even worse, an attenuation of American copyright not only would prove harmful to the U.S. creative community in the domestic market, but also would undermine efforts to ensure a reasonable international copyright regime. I began contemplating whether the utilitarian goal to create happiness could provide a solution to problems such as high recidivism rates, a retributionist theme, and a lack of consideration for convicts futures. Utilitarian ethics is a normative ethical system that is primarily concerned with the consequences of ethical decisions; therefore it can be described as a. teleological theory or consequentialist theory. This leads him to suggest an apparent methodological symmetry between science and ethics. An ethical dilemma today in society is that of abortion, which one would define as a deliberate end to a pregnancy. Examples of Utilitarian Ethics. The utilitarian standard is not the agent's own greatest happiness but the greatest amount of happiness altogether; and even if it can be doubted whether a noble character is always happier because of its nobleness, such a character certainly makes other people happier, and the world in general gains immensely from its existence. As Bentham himself acknowledged, an accompanying set of sentencing guidelines, similar to modern mandatory minimums, must be used when applying utilitarianism to government policies (Burton 1843). This is easier to see in the case of more than it is in the case of less. For example: In 2014, Professor Daniel Spulber produced a broad overview of three important ways in which patents support the market for inventions: (1) by increasing transaction efficiencies and stimulating competition; (2) by allowing owners to control how inventions are turned into innovations and guiding incentives for invention and innovation; and (3) by promoting the financing of invention and innovation.[53] These explanations go far beyond and are entirely separate from the traditional reward theory justification for patents, which viewed patent law as a vehicle that enables the inventor to capture rewards from an investment in an invention. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. 14. [30] See May & Cooper, supra note 5, at 137138. 21. The U.S. Patent and Trademark Office provides the following definition of a copyrighted work: Computer software is also protected by copyright. 10. The effects of industrial activity on man's well-being was not unknown before this century. Admittedly, however, this essay does little to explore the implications of the distinctions that exist among various types of property. Basically, utilitarianism states that every action has a consequence, which is more significant than the action itself. In Chapter I, Mill makes several methodological remarks about the proof or justification of which utilitarianism admits. Now, lets see. Piper enjoyed applying philosophical theories to real-life scenarios. Utilitarians are consequentialists, always forward-looking, insisting that an action or a practice is justified only if its future benefits outweigh its future cost. The burglar used to become agitated every time he was due to see his probation officer, for fear he would end up having to serve his full sentence. Rather, it is that the deliberate murder is the greater evil, and therefore deserving of the greater punishment. The death penalty does permanently incapacitate the criminal, but so does life without parole, so that seems to be a wash. As for rehabilitation, the remaining utilitarian justification, that does not apply to capital punishment. Therefore, the first kind of mercy violates the principle of retributive justice, whereas the second kind of mercy allows us to satisfy that principle by taking all the relevant facts into consideration. Utilitarianism is one of the best known and most influential moral theories. U.S. Patent and Trademark Office, http://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright. Economics emerged as a distinct, self-conscious science or discipline in the nineteenth century, and hence this development unfortunately coincided with the dominance of utilitarianism in philosophy. Aesthetic Justification: Appreciation of the beauty of nature. (See compared to the available alternatives. In any event, Jefferson as President oversaw a modest expansion of IP rights. Utilitarianism has important implications for how we should behave toward nonhuman animals, which to a large extent can coincide with those of other theories. A deliberate murder is one that is planned and thought out well in advance, before being carried out; as when a man gets tired of waiting for his mother to die in order to inherit her money, and decides to shoot her while she sleeps, hoping to make it look like a burglary. In particular, arguments about punishment are sometimes a disagreement about the means, but more often than not, are a disagreement about the ends. It is also egalitarian in that it takes everyone's welfare . 4. The most important thing is that the action taken to achieve a certain outcome has to be of the greater benefit of the society at large. For this reason, statistics measuring such things as recidivism or the incidence of certain crimes are useful in assessing the effectiveness of different kinds of punishment. 34 Equal treatment by the state means that individuals in similar comparable positions should receive similar comparable treatment. This means that the less one's income is, the more utility he or she will get from a . v. CLS Bank Intl, 134 S. Ct. 2347 (2014) (claims regarding computer-implemented inventions, including systems, machines, processes, and items of manufacture, are not patent-eligible subject matter); Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S. Ct. 2111 (2014) (a defendant is not liable for inducing infringement of a patent when no one has directly infringed the patent); Octane Fitness LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014) (making it easier for district court judges to find exceptional circumstances justifying the award of fees to the prevailing party); and Highmark Inc. v. Allcare Health Mgmt. The Obama Administration has appointed officials to senior policy positions whose views gibe with the problematic patents trope. In general, May and Cooper conclude that: In sum, ample evidence supports the proposition that IP rights, embodied in the Constitutions IP Clause, were understood by the Framers of the Constitution as natural rights worthy of strong protection. Rather, as Sir William Blackstone observed in his Commentaries on the Laws of England, the purpose of civil law is to fulfill natural rights of property by expanding property, creating new forms of property as society progresses, and ensuring mutual enjoyment of property rights by all persons.[14]. Moreover, the concept of pain is subjective; each person experiences pain differently. 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