Juridical Individualism and State Power: Utilitarianism in the Twentieth Century

  • Alan W. Norrie
Part of the Law and Philosophy Library book series (LAPS, volume 12)


In Chapter I it was argued that the relationship between law and the historical development of the state in the era of monopoly capitalism meant that philosophical ideologies developed from the nature of juridical ideology in that period would exhibit an uneasy coexistence and tension between contradictory elements of individualistic and interventionist doctrine. Pashukanis argued that in the sphere of legal theory, the result of the historical development of the state was that the principle of legal subjectivity was no longer seen as ‘an absolute attribute of the human personality’ but rather ‘as a purely technical determinant’ or as a ‘speculative hypothesis lacking any material basis’. This led to particular problems in the area of public law, where an overweening state had undercut the classical individualism of the law: the more consistently the principle of authoritarian regulation is applied, excluding all reference to separate autonomous wills, the less ground there remains for applying the category of law. This is particularly noticeable in the realm of so called public law. It is here that legal theory encounters the most serious difficulties.1


Legal Theory State Punishment Philosophical Principle Voluntary Acceptance Individual Justice 
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  1. 1.
    Pashukanis, op.cit., p.101.Google Scholar
  2. 2a.
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    E. Halevy, The Growth of Philosophical Radicalism (London, 1972). It is not the aim of this chapter to provide a tour d’horizon of utilitarian theories of punishment. I focus on the twentieth century debate, which I argue has developed on the back of the revision of late nineteenth century retributivism, and which has had to confront the question of the justice of punishment in a particular way because of retributivism’s decline and fall. Of course, utilitarianism is very important as a theory of state activity from the early nineteenth century onwards, but in the earlier period, it remains essentially individualistic in its approach. Bentham’s Introduction to the Principles of Morals and Legislation (New York, 1962) and Theory of Legislation (New York, 1975) are essentially juridical formulae for the resolution of social problems since they rely on the activities of calculating individuals confronted by the threat of punishment, rather than the effects of extended state intervention.Google Scholar
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    Mabbott’s famous injunction to ‘keep it dark’, (in Acton, op.cit., p.44). J. Hampton, ‘The Moral Education of the Criminal’ (1984) Philosophy and Public Affairs, 208 is a recent attempt to tread this ground, but she cannot avoid these same problems. Her argument that the punishment of the innocent would send a wrong message to the community assumes that its wrongness will not be kept dark. The further argument that we know the criminal needs a lesson but are less sure about the community, and that therefore punishing the guilty individual has lexical priority, assumes that society can be divided in advance into two discrete groups of criminals and non-criminals. If society contains potential criminals, which must be a premise, then a general educational function cannot be denied or given a lower priority on the educational theory.Google Scholar
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    He continues: ‘Perhaps the sheriff should hang the innocent man in order to prevent the riot in which there will be many deaths, if he knows that the man’s innocence will never be discovered and that the bad indirect effects will not outweigh the good direct effects; but in practice he never will know this’ (Ibid., p.164). However, the problem is not whether or not the innocent should be punished but the general question of knowing what the future effects of one’s acts will be, a question that applies to all utilitarian calculations, and which is not, therefore, a specific objection to punishing the innocent.CrossRefGoogle Scholar
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    The linguistic approach has some early support in the work of Bradley, Rashdall and Ewing (see Acton, op.cit., p.16), but is best argued by A. Quinton in ‘On Punishment’ in Acton, op.cit. Google Scholar
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    The original argument is Flew’s: ‘though Mabbott claims to ‘reject absolutely all utilitarian considerations from its justification’, he is prepared to appeal to these to justify systems of punishment. But if a system is to be justified even partly on such grounds, some cases within that system must be partly justifiable on the same grounds: the system surely could not have effects to which no case within it contributed’. (The Justification of Punishment’ in Acton, op.cit., p.94).Google Scholar
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    See above, Chapter I, pp.10–11.Google Scholar
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    In Chapter VIH, it will be argued that criminal justice cannot provide a bulwark against utilitarian actions because criminal justice itself, as a legal form, is founded upon the antithesis between individual right and state power. Criminal justice is implicated in political compromise. The simple example of exemplary sentencing illustrates this, but I will also argue that the existence of this antithesis makes any rationalistic account of the nature of legal reasoning in the criminal law untenable. A further dramatic illustration of the contradictory character of the criminal justice process is revealed in the recent exposure of the judicial role in the UK in relation to ‘miscarriages of justice’, in which the judges have consistently defended ‘the system’ against claims of false conviction by individual prisoners. See B. Woffinden, Miscarriages of Justice (Sevenoaks, 1989) for a summary of cases.Google Scholar
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    As a final illustration, consider Mundle’s amendment of Mabbott so as to avoid his legal descriptivism’:….’punishment of a person by the State is morally justifiable, if and only if he has done something which is both a legal and a moral offence, and only if the penalty is proportionate to the moral gravity of his offence.’ (‘Punishment and Desert’ in Acton, op.cit., p.79). But this provides no better defence of individual right, for Mundle argues for both the moral right of the individual to disobey an unjust law and for his moral duty to obey the law, since legal regulation ‘is a necessary condition of civilised life’ (p.78). Thus he only succeeds in re-establishing the clash between individual right and state power, for the individual has a right to disobey at the same time as he has a duty to obey.Google Scholar
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    See for example Hart’s response to Wootton’s attack on the principles of criminal liability in op.cit., chs. 1 and 7.Google Scholar

Copyright information

© Kluwer Academic Publishers 1991

Authors and Affiliations

  • Alan W. Norrie
    • 1
  1. 1.School of LawUniversity of WarwickCoventryUK

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