Legal Philosophy in the
English Tradition
Zhang Fan
Characteristics of English Legal
Tradition
Empiricism
 Utilitarianism
 Inductive – Analogical legal
reasoning
 Positivism
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Major Thinkers
Francis Bacon
 John Locke
 William Blackstone
 Jeremy Bentham
 John Stuart Mill
 John Austin
 H.L.A. Hart
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Empiricism
In legal philosophy an approach to legal theory
which rejects all judgments of value and regards
only those statements which can be objectively
verifiable as being true propositions about the
nature of law. Legal empiricism is based on an
inductive process of reasoning requiring the
empirical observation of facts and the
formulation of a hypothesis, which is then
applied to the facts before an explanatory theory
of legal phenomena can be postulated.
British Empiricism
Reaction to Descartes's rationalism (innate
ideas)
 Stressed importance of experience
 Skeptical of absolute certainty
 Accepted Bacon's view of starting with
observations
 Followed Newton in creating laws of
nature
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Frances Bacon
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Knowledge is Power.
Inductive way of
learning
Beginning of
Empiricism
Many faces of Bacon
Essays
Experience
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Sir Frances Bacon was the son of Sir Nicholas
Bacon, born at York House, the Strand in 1561.
He was ambitious, wise and to all accounts a
little mean. At the age of 12 he studied at Trinity
College, Cambridge and at the age of 15 he was
studying law at Grays Inn, London. He then
spent three years in France attached to the
British Embassy but returned home when his
father died. He furthered his studies in law and
was admitted to the bar in 1582. He became a
Member of Parliament in 1584.
Experience
In 1606 he married the 14 year old heiress Alice
Barnham. There were no children to the
marriage and there is some evidence that Bacon
was homosexual.
 He was appointed solicitor-general of England
(1607), Treasurer of Gray's Inn (1608), Attorney
General (1613), Lord Keeper of the Great Seal
(1616-17) and created Baron Verulam, Lord
Chancellor (1617-1618). In 1621 he received his
greatest honor being made Viscount St Albans.
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Induction
The method of reasoning that moves from
the particular to the general. After a large
number of individual instances are
observed, a theme of principle common to
all of them might be inferred. Deductive
reasoning starts with some assumption,
whereas inductive reasoning does not.
Inductive reasoning proceeds from the
particular to the general.
Writings
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Bacon wrote on law, government, science and
philosophy . Publications include his Essays in
1597, The Advancement of Learning 1605,
Novum Organum 1620, Historia Ventorum, 1622,
Historia Vitae et Mortis and De Augmentis
Scientium an expansion to The Advancement of
Learning, (1623) and Apothegms 1624. He died
in 1626. New Atlantis and Island of Scientists
were published in this year and in 1629 The
World was published.
Bacon and Empiricism
“This kind of degenerate learning did chiefly reign
amongst the Schoolmen: who having sharp and
strong wits, and abundance of leisure, and small
variety of reading, but their wits being shut up in
the cells of a few authors (chiefly Aristotle their
dictator) as their persons were shut up in the
cells of monasteries and colleges, and knowing
little history, either of nature or time, did out of
no great quantity of matter and infinite agitation
of wit spin out unto those laborious webs of
learning which are extant in their books. “
Against Aristotle
Note that Bacon is arguing against the kind of
learning based simply on studying words (books)
that have already been written--against simply
chewing over and over the old texts, in his case,
the writings of Aristotle--rather than studying
"matter" itself. Bacon is arguing that people in
his time (1605) should be studying nature itself,
not arguing over what Aristotle and his
Renaissance followers and interpreters (called
the Scholastics) meant in his essays about
nature and the world. Hence, Bacon is arguing
for empiricism.
John Locke (1632-1704)
Born at Wrington, a village
in Somerset, on August 29,
1632
 Son of a country solicitor
and small landowner
 Delicate health
 No significant publication
until at the age of 57
 Made trips to France,
Holland and Germany
(didn’t like Germany b/c
“cold weather and warm
drinking”)
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Birth of an Essay
In the winter of 1670, five or six friends were
conversing in his room, probably in London. The topic
was the "principles of morality and revealed religion,"
but difficulties arose and no progress was made. Then,
as he recalled, "it came into my thoughts that we took
a wrong course, and that before we set ourselves
upon inquiries of that nature, it was necessary to
examine our own abilities, and see what objects our
understandings were, or were not, fitted to deal with."
At the request of his friends, Locke agreed to set
down his thoughts on this question at their next
meeting, and he expected that a single sheet of paper
would suffice for the purpose.
The Essay
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The Essay is divided into four books; the
first is a polemic against the doctrine of
innate principles and ideas. The second
deals with ideas, the third with words, and
the fourth with knowledge.
Ideas
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All the objects of the understanding are
described as ideas, and ideas are spoken of as
being in the mind (Intro. 2; Bk. 2:1:5; Bk. 2:8:8).
Locke's first problem, therefore, is to trace the
origin and history of ideas, and the ways in
which the understanding operates upon them, in
order that he may be able to see what
knowledge is and how far it reaches. This wide
use of the term "idea" is inherited from
Descartes.
Origin of Ideas
Locke tried to apply the Baconian methods to the
pursuit of his own philosophical aims. In order to
discover how the human understanding achieves
knowledge, we must trace that knowledge to its
origins in our experience.
 Locke's investigation into human knowledge
began by asking how we acquire the basic
materials out of which that knowledge is
composed, our ideas. Ideas, then, are the
immediate objects of all thought, the meaning or
signification of all words, and the mental
representatives of all things.
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Ideas of Sensation and Ideas of
Reflection
Locke proposed the fundamental principle of
empiricism: all of our knowledge and ideas arise
from experience. (Essay II i 2) The initially empty
room of the mind is furnished with ideas of two
sorts: first, by sensation we obtain ideas of
things we suppose to exist outside us in the
physical world; second, by reflection we come to
have ideas of our own mental operations. Thus,
for example, "hard," "red," "loud," "cold," "sweet,"
and "aromatic" are all ideas of sensation, while
"perceiving," "remembering," "abstracting," and
"thinking" are all ideas of reflection.
Tabula Rasa

As understood by Locke, tabula rasa meant
that the mind of the individual was born "blank",
and it also emphasized the individual's freedom
to author his own soul. Each individual was free
to define the content of his character -- but his
basic identity as a member of the human species
cannot be so altered. It is this presumption of a
free, self-authored mind combined with an
immutable human nature, from which the
Lockean doctrine of "natural" rights derives.
Tabula Rasa- Another View
The modern definition of tabula rasa, however,
is fundamentally altered from the Lockean
meaning. While the idea that the individual can be
changed remains, the power to effect that change
is now ascribed to society, not the self -- and that
power extends to the whole of human nature.
Under this view, one can shape the individual with
few, if any, restrictions by changing the
individual's environment, and thus sensory
experiences.
Scottish View
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It cannot be denied that Locke does proceed
very largely in the way of observation; but it is
a curious circumstance that he nowhere
professes to follow the method of induction;
and his great work may be summarily
represented as an attempt to establish by
internal facts the preconceived theory, that all
our ideas are derived from sensation and
reflection. To the Scottish school belongs the
merit of being the first, avowedly and knowingly,
to follow the inductive method, and to employ it
systematically in psychological investigation. --James McCosh
Legal Ideas
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Two Treatises of Government had two purposes:
to refute the doctrine of the divine and absolute
right of the Monarch and to establish a theory
which would reconcile the liberty of the citizen
with political order.
Natural law and natural rights
Constitutional Monarchy
Early version of social Contract
Unity of power
Blackstone, Sir William
(1723-1780)
British jurist and legal
scholar, whose work
Commentaries on the
Laws of England was
used for more than a
century as the
foundation of all legal
education in Great
Britain and the United
States.
Blackstone, Sir William
(continued)
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Father died 4 months after his birth, mother
died when he was 12, raised by his uncle
Entered Oxford at the age of 15, was some
sort of a poet
Had a small law firm- unsuccessful
Appointed to many governmental positions
First Professor of English Law at Oxford
Obese, near-sighted, bad health
Justice of the Court of King’s Bench till
passed away
Intellectual Circle
Blackstone spoke and wrote in the times of
Oliver Goldsmith and Samuel Johnson,
Edward Gibbon and Adam Smith, David
Hume and Benjamin Franklin. Cultural
institutions such as the British Museum, that
today seem ancient, were in their infancy.
The law then, as now, was rooted in
everyday life but removed by lawyers and
courts from most people's lives.
Blackstone's task, and his ultimate
accomplishment, was to open the law to
many for whom it had been closed.
Blackstone

On October 25, 1758 as William
Blackstone approached the podium in the
Oxford lecture hall he knew he was a
failure. The thirty year old lawyer,
nearsighted, already portly, chronically ill,
now ready to read his notes in his grating
voice, had spent the last seven years
before the Bar in London with, a
sympathetic biographer wrote, "little
notice or practice."
Success
Despite his initial misgivings, the lectures
were an immediate success, breathing life
into a dry and poorly taught subject.
Blackstone's lectures were published as
the Commentaries in England between
1765 and 1769. An American edition
published in Philadelphia between 1771-72
sold out its first printing of 1,4OO and a
second edition soon appeared. The
Commentaries were translated into French,
German and Russian. During his lifetime
the work earned an estimated 14,OOO
pounds, an enormous amount of money at
the time.
URL
Blackstone's Commentaries Introduction
The document is located at this URL :
http://www.yale.edu/lawweb/avalo
n/blackstone/introa.htm#1.
On Individual Freedoms
"To bereave a man of life, or by violence to
confiscate his estate, without accusation or
trial, would be so gross and notorious an
act of despotism, as must once convey the
alarm of tyranny throughout the whole
kingdom. But confinement of the person,
by secretly hurrying him to goal, where his
sufferings are unknown or forgotten, is a
less public, a less striking, and therefore a
more dangerous engine of arbitrary
government."
Themes of the Commentaries
Book I covered the "Rights of Persons," a
sweeping examination of British government,
the clergy, the royal family, marriage, children,
corporations and the "absolute rights of
individuals." Book II, on the "Rights of
Things," should more properly have been
called the Rights that people have in Things.
Book III covers "Private Wrongs," today
known as torts. Book IV covers "Public
Wrongs," crimes and punishment, including
offenses against God and religion.
Reason and Freewill
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Law flowed from the superior to the inferior,
be it God, monarch or nation, and the
inferior was compelled to obey. He
acknowledged humans as "the nobelest of
all sublunary beings, a creature endowed
with both reason and freewill" but decreed
that there were "certain immutable laws of
human nature, whereby freewill is in some
degree regulated and restrained" and that
God gave "the faculty of reason to discover
the purport of those laws."
Illogical law open to criticism
"The king," he wrote, "is not only
incapable of doing wrong, but even
of thinking wrong: in him there is no
folly or weakness." A law could,
however, could be illogical and
therefore irrational and open to
criticism.
Criticism by Bentham
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Philosopher Jeremy Bentham attended
Blackstone's lectures as a student.
Blackstone, he wrote, was a "formal,
precise and affected lecturer - just what
you would expect from the character of
his writings: cold, reserved and wary."
Blackstone's comments on the King,
Bentham said "stuck in my stomach."
Bentham went on to be Blackstone's
harshest enemy, denouncing his work
as "ignorance on stilts."
Influence
American Revolution
 “Inalienable rights”
 Torts
 American Constitutionalism
 Study of Common Law
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Utilitarianism
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The approach of moral philosophy which regards
an act, measure or social or legal arrangement
as being good or just if its overall effect is to
advance the happiness or general welfare of the
majority of persons in society. Utilitarianism is a
goal-based approach to the problem of justice in
the distribution of the benefits and burdens of
society, in that it gives precedence to the
advancement of the collective good or welfare,
even if this may involve extinguishing or
curtailing the rights and political and other
liberties of the individual.
Rule utilitarianism v Act
Utilitarianism
Rule utilitarianism maintains that a
behavioral code or rule is morally right if
the consequences of adopting that rule
are more favorable than unfavorable to
everyone. It is contrasted with act
utilitarianism which maintains that the
morality of each action is to be
determined in relation to the favorable or
unfavorable consequences that emerge
from that action.
Rule Utilitarianism v Act
utilitarianism (continued)
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Rule-utilitarianism attempts to avoid some of the
problems with act-utilitarianism. For example,
with act-utilitarianism it seems that we should
have to give up television for charity work if it
was determined that each of our leisure
moments would yield greater social benefit if we
did charity work instead. With rule-utilitarianism,
though, a rule prohibiting leisure time is not
socially beneficial; hence we are not required to
abandon leisure for charity.
Jeremy Bentham (1748-1832)
Jeremy Bentham
Quotation
 Life
 Utilitarianism
 Principle of Utility
 Hedonic Calculus
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Quotation
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"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."
Life
Eccentric man, critic of Blackstone his
teacher, father of Utilitarianism,critical
of the “natural language” of Declaration
of Independence and French Bill of
rights, Social Reformer, visited Russia,
firs student was French and made him
known, a good friend of economist
Richardo, mummified body, inventor of
words (international, maximize,
codification, post-prandial vibrations),
friend of JS Mill’s father.
Utilitarianism
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Maximum felicitas - "greatest happiness for the
greatest number“
 (In 1768 that Bentham came across a political
tract by Joseph Priestley in which the the phrase
"the greatest happiness for the greatest
number" was invoked. Intrigued, Bentham
followed this up by reading Hume, Helvetius and
Beccaria and slowly began forming his utilitarian
ideas.)
Principle of Utility
"that property in any object, whereby it
tends to produce benefit, advantage,
pleasure, good, or happiness...or...to
prevent the happening of mischief, pain,
evil, or unhappiness"
– Jeremy Bentham
Introduction to the Principles of Morals and Legislation
(1789)
Hedonic Calculus
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a method of working out the sum total of pleasure
and pain produced by an act, and thus the total
value of its consequences; also called the felicific
calculus; sketched by Bentham in chapter 4 of his
Introduction to the Principles of Morals and
Legislation 1789. When determining what action is
right in a given situation, we should consider the
pleasures and pains resulting from it, in respect of
their intensity, duration, certainty, propinquity,
fecundity (the chance that a pleasure is followed by
other ones, a pain by further pains), purity (the
chance that pleasure is followed by pains and vice
versa), and extent (the number of persons affected).
Comments by others
William Hazlitt, "Bentham has lived for the
last forty years in a house in
Westminster...like an anchorite in a cell,
reducing law to a system, and the mind of
man to a machine."
 Karl Marx regarded him as a "purely
English phenomenon" and "a genius by
way of bourgeois stupidity." (Marx, 1867).
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John Stuart Mill
(1806 - 1873)

John Stuart Mill, born
in London on May 20,
1806, the eldest of
son of James Mill,
educated entirely by
his father, and was
deliberately shielded
from association with
other boys of his age.
J.S. Mill
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He learned Greek at three, Latin a little later; by the
age of 12, he was a competent logician and by 16 a
well-trained economist. At 20 he suffered a nervous
breakdown that persuaded him that more was
needed in life than devotion to the public good and
an analytically sharp intellect. Having grown up a
utilitarian, he now turned to Coleridge, Wordsworth
and Goethe to cultivate his aesthetic sensibilities.
From 1830 to his death, he tried to persuade the
British public of the necessity of a scientific
approach to understanding social, political and
economic change while not neglecting the insights
of poets and other imaginative writers.
Major Works
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System of Logic 1843
Principles of Political
Economy 1848
On Liberty 1859
Utilitarianism 1861
The Subjection of
Women 1869
Three Essays on Religion
1874
On Liberty
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Mill lays down "one very simple principle" to
govern the use of coercion in society - and by
coercion he means both legal penalties and the
operation of public opinion; it is that we may only
coerce others in self-defense - either to defend
ourselves, or to defend others from harm.
Crucially, this rules out paternalistic interventions
to save people from themselves, and ideal
interventions to make people behave "better".
Mill on Law
Law is a means to protect individual freedoms:
law should specify individual rights and protect
them; protection of individual rights should be
written into the constitution
 Law should not encroach individual freedoms
 Abuse of law means violation of individual
freedoms
 Law should not interfere with freedom of
thought and expression, and relations that only
affect one’s own interest
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System of Logic
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His System of Logic 1843 was an ambitious
attempt to give an account not only of logic, as the
title suggests, but of the methods of science and
their applicability to social as well as purely natural
phenomena. Mill's conception of logic was not
entirely that of modern logicians; besides formal
logic, what he called "the logic of consistency", he
thought that there was a logic of proof, that is, a
logic that would show how evidence proved or
tended to prove the conclusions we draw from the
evidence. That led him to the analysis of causation,
and to an account of inductive reasoning that
remains the starting point of most modern
discussions.
Principles of Political Economy
A work that tried to show that economics was not the
"dismal science" that its radical and literary critics
had supposed. Its philosophical interest lay in Mill's
reflections on the difference between what
economics measured and what human beings really
valued: leading Mill to argue that we should sacrifice
economic growth for the sake of the environment,
and should limit population as much to give
ourselves breathing space as in order to fend off the
risk of starvation for the overburdened poor. Mill also
allowed that conventional economic analysis could
not show that socialism was unworkable, and
suggested as his own ideal an economy of workerowned cooperatives.
Utilitarianism
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Utilitarianism remains the classic defense of the
view that we ought to aim at maximizing the
welfare of all sentient creatures, and that welfare
consists of their happiness. Mill's defense of the
view that we ought to pursue happiness
because we do pursue happiness, has been the
object of savage attack by, among others, F. H.
Bradley in his Ethical Studies 1874 and G. E.
Moore in Principia Ethica 1903.
The Subjection of Women
It was thought to be excessively radical in Mill's time
but is now seen as a classic statement of liberal
feminism. Its essential case is that if freedom is a
good for men, it is for women, and that every
argument against this view drawn from the
supposedly different "nature" of men and women
has been superstitious special pleading. If women
have different natures, the only way to discover what
they are is by experiment, and that requires that
women should have access to everything to which
men have access. Only after as many centuries of
freedom as there have been centuries of oppression
will we really know what our natures are.
Three Essays on Religion
He chose not to have his Three Essays on
Religion 1874 published until after his death. They
argued, among other things, that it is impossible
that the universe is governed by an omnipotent
and loving God, but not unlikely that a less
omnipotent benign force is at work in the world.
They thus tended to disappoint those of Mill's
admirers who looked for a tougher and more
abrasive agnosticism, while doing nothing to
appease critics who deplored the fact that he was
any kind of agnostic. But they remain models of
the calm discussion of contentious topics, and
highly readable to this day.
Methods of Induction
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Mill formulates five guiding methods of
induction the method of agreement, that
of difference, the joint or double method
of agreement and difference, the method
of residues, and that of concomitant
variations. The common feature of these
methods, the one real method of scientific
inquiry, is that of elimination. All the other
methods are thus subordinate to the
method of difference.
Cause or Necessary Part
Here we have a case of the occurrence of
the phenomenon under investigation and
a case of its nonoccurrence, these cases
having every circumstance in common,
save one, that one occurring only in the
former; and we are warranted in
concluding that this circumstance, in
which alone the two cases differ, is either
the cause or a necessary part of the cause
of the phenomenon.
Inductive Method
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It is only in the simpler cases of casual
connection, however, that we can apply
these direct methods of observation and
experiment. In the more complex cases,
we have to employ the inductive method,
which consists of three operations:
induction, ratiocination or deduction, and
verification.
Syllogistic Reasoning
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Syllogistic reasoning is a circuitous way of
reaching a conclusion which might have been
reached directly, like going up a hill and down
again when we might have traveled along the
level road. There is no reason why we should be
compelled to take the high priori road except by
the arbitrary fiat of logicians. "Not only may we
reason from particulars to particulars without
passing through generals, but we perpetually do
so reason. All our earliest inferences are of this
nature" (Ibid., II. III. 3).
Positivism
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The approach to the study of law which
regards valid laws as being only those
laws that have been “posited”, that is,
created and put forward by human beings
in positions of power in society. Generally,
Positivism rejects the attempt of Natural
Law theory to link law to morality.
English Positivism
Insistence on a sharp distinction between is and ought
has characterized the English analytical tradition from
Bentham, through Austin, Holland, Pollock, Buckland,
Hart and Raz. The connecting thread has been
"clarity," but the predominating reasons behind this
insistence have been quite varied. For example, Bentham
distinguished the "is" and the "ought" for the sake of the
"ought": in order to criticize and construct (universal
censorial jurisprudence). Austin and Holland
distinguished the "is" and the "ought" for the sake of the
"is": as a foundation for an objective general science of
positive law distinct from the science or art of legislation
(general expository jurisprudence).
Hart’s views on Positivism
In the definition of law: expression as human will,
command of the ‘sovereign’
 As a theory of a form of legal study: clarification of
meanings of legal concepts, like analytical jurisprudence
 As a theory of judicial process: closed logical system,
correct answer can be deduced for general rules
 As a theory of law and morality
 Moral judgments cannot be established by rational
argument, evidence or proof
 There is unconditional obligation to obey law, regardless
of content
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Formalism
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An approach which seeks to minimize the
element of choice in the interpretation of terms
contained in legal rules and emphasizes the
necessity and predictability in the meaning of
such rules. Legal formalists would advocate the
attribution of specific meanings to certain terms,
from which the interpreter of a legal rule could
not deviate, and would require that such terms
should have those same meanings in every case
where the rule is applicable.