Abstract

Legal utilitarianism is attractive for practice because this field of legal thought and philosophy of law sets out a particular direction of legal policy and statutory regulation (focus on the utility principle in decision-making) that can, under certain reservations, be used to improve people's lives. Most scholars conclude that the first utilitarian was J. Bentham. However, scientific studies prevalently do not involve the analysis of earlier legal doctrines in relation to the use of utility principle. Thus, the relevance and scientific novelty of analysis of the origin of legal utilitarianism is associated with the need to develop a theoretical component of this doctrine that is of current interest for the legal policy and to enlarge the underdeveloped - in our opinion - theoretical framework of legal utilitarianism genesis. The purpose is to identify the first theory in the history of legal thought, which can be classified as legal utilitarianism, and, if such theory is the J. Bentham's utilitarianism, to determine the reasons why earlier theories based on the utility principle cannot be classified as legal utilitarianism. The theoretical basis of the article is materials such as original sources by various thinkers whose works are based on the utility principle and scientific papers of European and the US researchers. For the purpose of the article, the following methodological tools were used: metaphysical (dialectic method), general (analysis and synthesis, deduction and induction, analogy, comparison) and specific (historical and legal-historical) scientific methods. The main outcome of the research is identification of distinct features of pre-Bentham legal thought based on the utility principle and identification of pre-requisites and basis (provisions which had formed the basis) for J. Bentham's utilitarianism, as well as the answer to the question: Was J. Bentham the first legal utilitarian?.

Highlights

  • Utilitarianism is based on the assessment of actions, acts, phenomena or other events judging how useful they are

  • While events and actions are evaluated from the standpoint of utility, the utilitarianism deems it reasonable to make such evaluation in respect of universally binding rules of conduct used by legal actors when making decisions, committing acts; that is it is essential to look at evaluation of law as a regulator of social relations in order to determine whether certain legal regulation increases happiness and decreases pain and whether the utility function reaches its maximum

  • Bentham’s legal thought continues ideas of antique philosophers, who concentrate on the notion of pleasure and its role for an individual (Aristippus, Democritus, Epicurus and others), on the one hand, and early modern period philosophers, who proceed from the need to achieve happiness, which should be ensured by implementation of certain legal regulation

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Summary

Introduction

Utilitarianism is based on the assessment of actions (omissions), acts, phenomena or other events judging how useful they are. One of utilitarianism founders (together with J.S. Mill), was the first to pay attention to the necessity of evaluation of legal affairs, their consequences, including legal rules regulating social relations, from the standpoint of utility, and to develop the respective concept. Bentham developed the legal utilitarianism in sufficient detail The significance of his works for the development of legal thought is beyond any questions. Can it be supposed that he was not the first to develop the legal doctrine based on the utility principle? Beccaria and some other philosophers and legal theorists of the early modern period, and the first preconditions of utilitarianism and the utility principle application in legal doctrines appeared much earlier. In order to determine whether the doctrine of utility principle in legal affairs was sufficiently developed early second half of the 18th century and to state that J. Bentham was not the first legal utilitarian, we should conduct an in-depth study of pre-Bentham legal thought based on the utility principle

Utility principle in the legal thought of the Ancient World
Utility principle in the legal thought in Early modern period
Conclusion
Научная статья
Принцип пользы в правовой мысли Древнего мира
Принцип пользы в правовых учениях Нового времени
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