utilitarian justification

[6] In particular, Lockes essay Of Property, the fifth chapter of the Second Treatise, offers a justification for the acquisition and enjoyment of private property. 2014). In particular, the rapid proliferation in recent decades of for-profit digital goods, including software, DVDs, E-books, video games, and Internet-enabled entertainment services such as iTunes and Netflix, demonstrates that intangible information-based products can be marketed successfully through for-profit contractual transactions in the marketplace, much as tangible goods and services are marketed. In a utilitarian perspective, criminals are punished because they are morally responsible beings. Utilitarian ethics originated with the idea of making good use of time and resources in medical care, without taking public benefit into consideration. [16] The Federalist No. Basically, there are two justifications for punishment: the utilitarian and the retributive. At least as far as society on the outside is concerned, the criminal cannot offend while locked up, and that is a good thing. Professor Paul Heald has propounded a somewhat different theory, under which patent ownership rules establish a title registration system for certain information assets, thereby significantly lowering transaction costs compared to the available alternative systems of trade secrecy and contract law. In short, IP is justified on natural rights grounds; references to the English legal tradition are mere window dressing. 3035 (July 14, 2015) (concluding that [p]recipitous, unreflective action on legislation is unwarranted, and caution should be the byword, especially since the effects of 2011 legislative changes and recent Supreme Court decisions have not yet been fully absorbed). Photo by Clarissa Williams. In this sense, utilitarian ethics remains to be an appealing area where discourses on the environment shall thrive. Explain the utilitarian justification for IP as an incentive for intellectual work. What might be more open to contention is the question of whether it is all right to punish someone less than he deserves. The constituent elements - hedonism and consequentialism - were present in Greek thought. Next, by answering its questions, I determined whether the utility calculus would permit certain punishments. [52] In particular, a recently published peer-reviewed cross-sectional study covering many countries over two decades finds a strong association among patent rights, economic growth, and increased productivity. In fact, people who kill intentionally may actually be more dangerous. [63] The following discussion draws in part upon Tom Sydnor, Can Economic and Historical Analyses End Copyright Laws Property/Monopoly Disputes? Smart, J. J. C. & Williams, Bernard, Utilitarianism For &' Against (1973) Cambridge: Cambridge University Press The criminal is taught that crime does not pay. Civil laws apply in unique ways to different types of property. Smart & Bernard Williams, Utilitarianism: For and Against. Site content may be used for any purpose without explicit permission unless otherwise specified. Smart (1973). [8] He saw government as existing to protect the property persons claim by individual right of acquisition through their labor, which is the source of the value that is created. Google Scholar. I included a fine in my hypothetical sentencing guideline to serve as a deterrent to engaging in substance abuse, both to prevent the offender from engaging in substance abuse in the future and to serve as a threat to prevent the general public from engaging in such criminal behavior. The idea of utilitarianism is tightly intertwined with the philosophy of consequentialism. Utilitarian Justification: Seeing that the aspect of the environment as valuable because it benefits people either economically or is necessary for human survival. [51] See Intellectual Property and the U.S. Economy: Industries in Focus, U.S. Department of Commerce (Mar. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. The US criminal justice system does not operate under a single clear ideology. Labour . It is a form of consequentialism. 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. 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. Total loading time: 0.195 its chance of not being followed by sensations of the opposite kind (pleasure by pain, pain by pleasure). ) or https:// means youve safely connected to the .gov website. If we focus on the good of the community to justify our Given these problems, I wanted to see if Benthams utility calculus could provide a beneficial alternative to current policies for drug sentencing in the United States. He has published two books on his studies of the meaning and role of apologies in justice and contributes regularly to interviews in national media outlets. The fact that statutory grants of IP rights have unquestioned utility and promote the public good is not a denigration of these natural rights; to the contrary, it should be seen as an acknowledgment that these particular natural rights also have the added merit of advancing broad social goals. 4. The bad patents policy argument has influenced public policy. 2011), https://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf. Utilitarianism is an ethical theory that indicates that we should make the first heap as small as possible and the second one as large as possible. The American patent and copyright law systems, bulwarks of American leadership in technological innovation and the creative arts, are under unprecedented attack. May & Seth L. Cooper, The Constitutional Foundations of Intellectual Property (2015). 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. Utilitarian Justification. In a recent book, Randolph May and Seth Cooper provide a clear summary explication of the Framers understanding that IP rights are a legitimate form of property that is entitled to protection by government much as traditional forms of tangible property are protected. Bentham, Jeremy, Principles of International Law in Bowring, John, Works of Jeremy Bentham. Primarily an ethical system that should govern human conduct in the society, utilitarianism is much broader in its scope since several theorists from Bentham . What I learned from all this was that probation is no mere slap on the wrist. Thus it is that in Texas, capital punishment has to be justified on both utilitarian and retributive grounds. The word utility is used to mean general well-being or happiness, and Mill's view is that utility is the consequence of a good action. 02 January 2018. Binder, Guyora, and Nicholas J Smith. [22] Robert Thibadeau, Thomas Jefferson and Intellectual Property Including Copyrights and Patents, Saturday Afternoon Adventures on the Internet (Aug. 28, 2004), http://rack1.ul.cs.cmu.edu/jefferson/. The U.S. Patent and Trademark Office provides the following definition of a copyrighted work: Computer software is also protected by copyright. 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 . I created hypothetical utilitarian guidelines based on my knowledge of how drug crimes are currently categorized (e.g., crimes for possession of drugs are separated from crimes for drug use) and punished (e.g., mandatory minimums and three-strikes laws). 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. A discussion on punishment in a recent diary started me thinking about the subject in general, and as some remarks I wanted to make became too unwieldy for the comment section, I decided to express my thoughts here. Utilitarian Justification Utilitarianism is the moral theory that holds that the rightness or wrongness of an action is determined by the balance of good over evil that is produced by that action. Utilitarians are consequentialists, always forward-looking, insisting that an action or a practice is justified only if its future benefits outweigh its future cost. 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. Utilitarian Justification are those that assign value to the environment as a function of its economic or survival benefits for humans Ecological Justifications Emphasize the value of community life support functions over direct individual benefits based on self interest Aesthetic Justifications based on human appreciation of natural beauty What objections can be raised against this approach? Corporate raids have always been accepted in your culture. 477 (1850). (23) In short, utilitarianism is consequentialist and welfarist. New Media Rights (2015), http://www.newmediarights.org/business_models/artist/what_are_major_criticisms_copyright_laws_us; Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harvard L. Rev. More specifically, the only effects of actions that are relevant are the good and bad results that they produce. Rationale of Judicia1 Evidence in Works of Jeremy Bentham, vol VI in a collection edited by Bowring, John (1843) Edinburgh, p 238. [58] See Intellectual Property and the U.S. Economy, supra note 51, ch. To support my research, I received funding from a Research Experience and Apprenticeship Program (REAP) grant through the University of New Hampshires Hamel Center for Undergraduate Research. , which are essentially the same thing, both having a notion that the consequence of the act is the most important . The IP Clause of the U.S. Constitution empowers Congress [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. There is little direct evidence bearing on the Clauses original meaning: It was not a major structural innovation that sparked debate at the Constitutional Convention, and it did not have great historical significance (unlike, for example, habeas corpus).[4]. Although this approach differs from typical US punishments, which rely heavily on incarceration, utilitarians often believe reform might be better achieved by early education and by drug rehabilitation than by incarceration (Binder and Smith, 2000: 116). As a philosophy and political science double major interested in political theory, I found Bentham and Mills goal of valuing happiness in government to be intriguing and inspiring. Karl Popper has noted: "Only a minority of social institutions are consciously designed while the vast majority at 36 (citing a discussion of Blackstones legal philosophy found in Daniel J. Boorstein, The Mysterious Science of Law: An Essay on Blackstones Commentaries (1941)). Google Scholar. See The Heritage Guide to the Constitution, supra note 4, at 152153. Education typically causes minimal pain and has the possibility of creating an extreme amount of long-term happiness if convicts learn to change their behavior. [66] The Supreme Court has deferred to Congresss views of its own powers under the Patent and Copyright Clause, thereby leaving standing broad grants of copyright protection, although it has noted that copyright legislation might burden speech so heavily as to violate the First Amendment. [40] See generally Tom W. Bell, Intellectual Privilege (2014), http://mercatus.org/intellectualprivilege/Intellectual-Privilege.html#.VmXIyLgrK70. In the first case, we allow sentiment to prevail over reason, and let the criminal off easy. I also hope that by contemplating my conclusion, readers will have an increased investment in understanding the methodology of punishment and how this methodology could be improved and clarified in the United States. [52] The empirical and law and economics research summarized below is discussed and cited in Abbott, supra note 39, at 810. However, utilitarian ethics evolved to mean a decision based on the maximum benefit for the greatest number of human beings [ 1 ]. Furthermore, given the grave problem of global copyright theft, this is precisely the wrong time to weaken U.S. copyright protection. Despite the extenuating circumstances of the case, a judge in a utilitarian system would have little choice but to issue the standard sentence recommended by the utility calculus. The ultimate utilitarian objection to torture is that it corrosively delegitimizes the state. Utility, in turn, can be specified in accordance with one's preferred utilitarian theory (e.g., hedonistic utilitarianism, preference utilitarianism, and so on). [47] These initiatives are discussed in sources cited in Abbott, supra note 39, at 6 n.28. to. In the seventeenth century John Evelyn wrote of the effects of impure atmosphere on man's biological functions. Trade Commn, Antitrust Guidelines for the Licensing of Intellectual Property (1995), http://www.justice.gov/atr/public/guidelines/0558.htm. No property rights system is perfect, and concerns about defective or uncertain rights affect real and personal property as well. [49] See Abbott & Malcolm, supra note 36. In this case, the relevant clause actually presents a simple argument, and is worth quoting in full: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . With that said, a more consistent ethical system should be put in place. Utilitarianism is one of the best known and most influential moral theories. Other laws that generally strengthened copyright were enacted in 1819, 1834, 1846, 1855, 1856, 1859, and 1861. It is also egalitarian in that it takes everyone's welfare . But his happiness and well-being are secondary to what is best for the law-abiding members of society, who are more deserving of happiness, and thus come first in our considerations. [26] Particularly noteworthy are statements by the two greatest legal treatise writers of the period, Chancellor James Kent and Justice Joseph Story, who viewed both patents and copyrights as property acquired by individuals through their labor. [27] Joseph Story, A Familiar Exposition of the Constitution of the United States 118 (1842). It did not always work. Utilitarianism is one of the most powerful and persuasive approaches to normative ethics in the history of philosophy. Punishment for crimes are decided according to the impact they will have in our society. Google Scholar.). [50] See, e.g., Steve Brachmann, Will the Obama Administration Continue to Seek Amendments to the Innovation Act? Some strong as well as weak or poor patents stand to be erroneously rejected or struck down due to inevitable error costs associated with patent application reviews and with judicial review of litigated patents. Utilitarianism was not an entirely new philosophy introduced by Jeremy Bentham. The proposition that weakening copyright protection would somehow be socially beneficial lacks significant empirical support. Such a weakening would make it harder for U.S. officials to argue credibly for reasonable copyright protection overseas and would discourage efforts to root out piracy around the world. Alden Abbott served as Deputy Director of Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Philosophers have argued over exactly how the resulting good and evil may be identified and to whom the greatest good should belong. [59] See, e.g., International Copyright Protection, Encyclopedia.com (2005), http://www.encyclopedia.com/topic/International_Copyright.aspx. They are rational beings and thus have to obey the universal law (moral law) according to Categorical Imperative. (Sen, p. 1 page, 397 words. Peter's act of stealing is . The first hypothesis states that each person's utility or well-being depends on his or her income, but that this relation is governed by the diminished rate principle. And they were miserable. Specifically, I would like to thank Professor Smith for his guidance throughout the REAP process, including mentoring me on the complexities of utilitarianism and the US criminal justice system and guiding me throughout the process of creating an extensive philosophical research paper. At the end of the 20th century, torture thrives most in societies characterized by gross inequalities of power or where one ethnic or religious community seeks to repress, through force, the interests of another. The first (or individual) justification for free speech is that the human individual has an inalienable right to express his or her thoughts and feelings, even if others disagree. Principles of Morals.Early Modern History, 1789. www.earlymoderntexts.com/assets/pdfs/bentham1780.pdf. In addition, Jefferson wrote in his 1807 letter to Oliver Evans that [c]ertainly an inventor ought to be allowed a right to the benefit of his invention for a certain time, and [n]obody wishes more than I do that ingenuity should achieve a liberal encouragement[23] These are hardly the statements of someone opposed to IP rights. [17] George Washington called on the First Congress to pass legislation securing IP rights,[18] and it did so, enacting the nations first Copyright and Patent Acts in 1790. 21. Many studies highlight the value of IP in general and patents in particular to the American economy. for this article. An official website of the United States government, Department of Justice. At the University of New Hampshire (UNH) she is working toward a bachelor of arts degree, with a double major in political science and philosophy and a minor in classics. Ecological Justification: An ecosystem that is necessary needed for the survival of some species that interest us, or that the system provides itself some benefit. 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. The utilitarian justification of harm reduction is useful insofar as it helps us to confront these questions. Figure 1. The drug dealer, on the other hand, said that having to forgo all drugs, including marijuana, was so onerous a requirement, that some guys would refuse probation and serve out their full sentence instead. 10 (Memoirs Part I and Correspondence),1843. In 1831, encouraged by such statesmen as Daniel Webster and Henry Clay, Congress passed a significant expansion of copyright terms and enabled heirs to claim a right in renewal of those terms. hasContentIssue true, Copyright Society of Legal Scholars 1992. Far from being inefficient, monopolistic drags on economic efficiency as some critics have suggested, however, the patent and copyright systems are vital to innovation, wealth creation, and economic growth. For example, a comprehensive 2012 U.S. Department of Commerce study concluded that virtually every industry relies on some form of IP; that IP-intensive industries accounted for over $5 trillion in value added in 2010 alone; that a sample of 26 patent-intensive industries accounted for 3.9 million jobs in 2010; that IP-intensive jobs paid significantly better than other jobs; and that IP-intensive industries contribute substantially to U.S. merchandise and services exports.[51]. The utility of this power will scarcely be questioned. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. . Wilder.[25]. Aesthetic Justification: All of them were on probation. The second is retributive. debate within utilitarianism which began over half a century ago and is still going strong. I came to the conclusion that implementing utilitarian values within the US justice system, rather than applying the utility calculus or utilitarian standard sentencing guidelines, would have the most beneficial effect. This punishment is supported by utilitarianism because the happiness of the taxpayers would increase in proportion to the decrease of their taxes. It is interesting, as a practical example of this dichotomy, that in Texas, in order for a jury to decide in favor of the death penalty in a murder case, two conditions must be met: (1) The criminal must be regarded as being a continuing threat to society, and (2) the murder must not have been merely intentional, but deliberate. Part 1: Utilitarian Justifications for Punishment Our first theoretical foray into punishment is the utilitarian perspective. According to this theory, the moral nature of an action can be deduced by calculating its net utility. Inst. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. He has been at UNH since 2002. Views about IP expressed by the courts during the early American Republic are in accord with the Founders high regard for IP as seen through the lens of natural rights. It is summed up in the principle that the punishment should fit the crime. For example, the airline industry offers first class, business class and economy class seats on many of their airplanes. After rehabilitation, the individual would be in an improved physical and mental state; therefore, the temptation to use the illicit drug would be reduced and the happiness of the offender would increase. Aesthetic Justification: Appreciation of the beauty of nature. The U.S. conception of punishment is a combination of the utilitarian, retributive, and denunciation theories. 32 references, Territories Financial Support Center (TFSC), Tribal Financial Management Center (TFMC). Utilitarian View On Abortion. The broad-based international acceptance of copyright protection. Just so everyone is familiar with the exact meaning of the word, abortion can be defined as "the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus." (Merriam-Webster . For an interesting debate on utilitarianism see Running head: UTILITARIAN JUSTIFICATION Utilitarian Justification for Work Behavior: Exploring the Role of Peer 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 . Smith has mentored many undergraduate researchers at UNH and considers it one of the genuine highlights of teaching at UNH. Dr. Smith first met Piper when she was a junior high school student attending the Future Leaders Institutea summer philosophy camp he directed with classics professor Scott Smith. Utilitarianism is an ethical theory that determines right from wrong by focusing on outcomes. Kieff and James Daily have critiqued recent U.S. Supreme Court decisions narrowing the scope of patentable subject matter, arguing that these changes have undermined the goals of invention commercialization and competition. Painting of Jeremy Bentham, the founder of Utilitarianism, by Henry William Pickersgill 1829. https://www.npg.org.uk/collections/. A number of international organisations like World Health Organisation, Food and Agriculture Organisation, International Maritime Organisation are engaged in drawing up legislations protecting the environment which are to have global effect. The fine would also be designed to cover the costs associated with the arrest and punishment of the convict to alleviate this financial burden on taxpayers. } The reward for labour and personality theories are from the deontological/normative school of thought, while the incentive-oriented theory is from the consequentialist school of thought. Descartes, Rene, Discourse on Method (1960) Harmondsworth: Penguin, pp 8081.Google Scholar. The millions of U.S. jobs and hundreds of billions of dollars in annual contributions to U.S. GDP by copyright-intensive industries. Chan, Wing-Tsit, Sources of Chinese Philosophy (1969) Princeton: Princeton University Press . For many people the value of a pleasure or a pain will be greater or less according to seven circumstancesthe six preceding ones and one other, namely. To a person (considered by himself) the value of a pleasure or pain (considered by itself) will be greater or less according to: These are the circumstances that are to be considered when estimating a pleasure or a pain considered by itself. 15. The old saying, Let justice be done, though the heavens fall, is an instance of the contempt that retributive justice has for utilitarian considerations. . Not believing in free will, utilitarians are likely to believe that crime is a function of societal conditions or mental illness, either of which tends to elicit sympathy for the criminal; and so much so, that of the three types of utility found in punishment, only rehabilitation seems to them to be justified. Oh yeah. The final theoretical justification for utilitarian punishment is incapacitation. Story, in his Familiar Exposition of the Constitution, wrote that it is a poor reward, to secure to authors and inventors, for a limited period, only, an exclusive title to that, which is, in the noblest sense, their own property.[27] With regard to the role of the IP Clause in promoting patents and copyrights, Story wrote that it is impossible to doubt its justice, or its policy, so far as it aims at their protection and encouragement.[28] Likewise, In his Commentaries on American Law, Kent praised the justice and the policy of securing to ingenious and learned men the profit of their discoveries and intellectual labor.[29]. To provide a mechanism for utilitarianism to be applied to governmental policy, Benthem created the utility calculus.

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