utilitarian justification

(23) In short, utilitarianism is consequentialist and welfarist. Inc., 134 S. Ct. 1744 (2014) (making the determination of whether a case is exceptional to justify the award of fees a matter of trial court discretion). 29, 1792, available at http://www.heritage.org/initiatives/first-principles/primary-sources/madison-on-property. A. I, 8, cl. [42] Uruguay Round Agreement: TRIPS (Trade-Related Aspects of Intellectual Property Rights), World Trade Organization, https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm. For utilitarians, stealing in itself is neither bad nor good; what makes it bad or good is the consequences it produces. [30] See May & Cooper, supra note 5, at 137138. It is important to understand utilitarianism as it forms the basic tenants of legal theory and function of laws. 75 (Apr. Rather, it is that the deliberate murder is the greater evil, and therefore deserving of the greater punishment. The author, Piper Gibson. Daily Kos moves in solidarity with the Black community. Lastly, I would like to thank my friends and family for always supporting me. 2014). Within the American constitutional tradition, patents and copyrights are highly respected natural property rights that merit robust governmental protection. When the truth emerges, the repercussions go beyond citizens asking themselves whether there is an essential difference between the threat posed to persons subject to the presumption of innocence at the hands of the state and the threat posed by criminals, against whom the state purports to offer protection to its citizens. Customers who fly in first or business class pay a . On the other hand, those who believe in free will tend to disregard utilitarian considerations, and lean more heavily on the retributive principle instead, since they believe that with free will, one can rise above such things as heredity and environment. In this sense, utilitarian ethics remains to be an appealing area where discourses on the environment shall thrive. Punishment, according to Bentham was an evil that should only be permitted if it prevented the greater evil of crime. Affirmative action is wrong. The broad-based international acceptance of copyright protection. See Rationale of Judicia1 Evidence in Works of Jeremy Bentham, vol VI in a collection edited by Bowring, John (1843) Edinburgh, p 238. [36] See generally Alden F. Abbott & John G. Malcolm, A Measured Approach to Patent Reform Legislation, Heritage Foundation Backgrounder No. [24] The Supreme Court unanimously affirmed Justice Marshalls judgment in Evans v. Jordan, 13 U.S. (9 Cranch) 199 (1815). The utilitarian justification of harm reduction is useful insofar as it helps us to confront these questions. There should be no limit on how many shares one can buy. Federal legislation enacted in 2011 made it easier to challenge patents in post-grant administrative proceedings and arguably was responsible for a diminution in the value of U.S. patents and a substantial reduction in GDP. Stuart, John If there is a public policy problem that needs solving, it is not the need to reduce overly strong copyright protection, but rather the imperative to combat copyright piracy more effectively. [43] See generally Mark A. Lemley & Carl Shapiro, Probabilistic Patents, 19 J. Econ Persp. For these felons, asking them to give up smoking pot bordered on cruel and unusual. When we put someone in prison, his ability to injure society with further criminal activity is limited. 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. Much additional empirical research by independent scholars supports a strong association between patents and faster economic growth and innovation. I took issue with the concept of retribution, specifically when used in cases of nonviolent crimes, such as drug offenses, and found retribution morally questionable because of its reliance on punishment regardless of extenuating circumstances. [20] Moreover, ambiguity surrounds Jeffersons views on IP and on property in general. to. 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). 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. 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. James Madisons acceptance of Lockean concepts of property is revealed in his 1792 National Gazette essay On Property. In that essay, he states that property [i]n its larger and juster meaning embraces everything to which a man may attach a value and have a right and which leaves to everyone else the like advantage.[11] IP, as well as physical property, possesses this grounding in natural right: The concept of rights in an authors writings and an inventors discoveries is implicitly encompassed within this broad understanding of property. That is to say, there is a tendency for them to arrive at the conclusion that incapacitation and deterrence are fine, provided they are mere accompaniments to our rehabilitative efforts to reform the criminal. "displayNetworkTab": true, 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. Despite the utility calculuss appealing goal of creating happiness, I was unhappy with the results when I applied these hypothetical sentencing guidelines to specific examples of drug crimes. For an interesting discussion on the various social forces in operation in relation to environmental issues see * I wish to thank Dr Brian Carr, Nottingham University for his comments on an earlier draft of this paper. [47] These initiatives are discussed in sources cited in Abbott, supra note 39, at 6 n.28. 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. Utilitarianism in collection edited by Warnock, Mary (1969) London: Fontana, pp 3334 Admittedly, the fact that IP rights have solid constitutional backing does not address the question of how Congress should deal with them today. Treating offenders in a humane fashion dedicated to reintegration into society, by means such as education or job training, would result in happier offenders with lower recidivism rates and a better chance of future success (Zoukis 2017). He said it was a relief to get it over with. When the utilitarian and retributive principles lead us to the same conclusion, that is a most felicitous circumstance; for the fact is that no one can be absolutely certain as to what punishment will be most beneficial to society, and even if we believe in free will, it is hard to say sometimes just what a person deserves. 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. Government officials need to keep that in mind when setting public policy. 2015-5 (Dec. 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704028. An intentional murder is one that is done impulsively, in the heat of the moment; as when a man gets into a fight in a bar, and becomes so angry that he hits someone over the head with a chair and kills him. Labour . [7] Locke viewed property as a broad referral to the exclusive rights that individuals hold in their own selves and their own labor. Consistent with that acknowledgment, the Founding generation wasted no time in ensuring that IP rights were given their due. He was not worried. Constitution. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. I, 8, cl. 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. 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. 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. The constituent elements - hedonism and consequentialism - were present in Greek thought. This breaks down into three parts: The first is incapacitation. Jeremy Bentham designed the utility calculus as a mechanism to apply utilitarian values to government policies; however, I discovered that the utility calculus is incredibly complex and relative. One can nevertheless glean important insights into how the Framers of the Constitution viewed patents and copyrights by reviewing their writings on property and the political philosophy that animated the Founding Generation. 16. So, if the criminal shows remorse, and it was his first offense, and he just fell in with evil companions, then we opt for a lighter sentence, and that is as it should be. 34 Equal treatment by the state means that individuals in similar comparable positions should receive similar comparable treatment. 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. 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]. (6) its purity, i.e. That is to say, we can all agree that no one should be punished more than he deserves, no matter how useful it may be to society to do so. Total loading time: 0.195 Oxford University Press. [3] U.S. Const. 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. The conclusion, then, is that since capital punishment is not useful in producing a better world, it should be abolished. Basically, there are two justifications for punishment: the utilitarian and the retributive. He has been at UNH since 2002. The proposition that weakening copyright protection would somehow be socially beneficial lacks significant empirical support. 1860). Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, para 3, pp 3435 Smart, J. J. C. & Williams, Bernard, Utilitarianism For &' Against (1973) Cambridge: Cambridge University Press I answered these questions, such as those asking about the duration and extent of pain caused by each respective punishment, to the best of my ability, considering the subjectivity and difficulty associated with using the utility calculus. Close this message to accept cookies or find out how to manage your cookie settings. [17] Paul Schwartz & William Treanor, Eldlred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property, 112 Yale L. J. Explain Moore's distinction between "thin" and "thick" consent. The first one is the principle of utility ignores or disrespects human dignity. "Kos" and "Daily Kos" are registered trademarks of Kos Media, LLC. I liked the burglar. [52] The empirical and law and economics research summarized below is discussed and cited in Abbott, supra note 39, at 810. These forms have received less critical attention lately and are beyond the scope of this commentary. In a utilitarian perspective, criminals are punished because they are morally responsible beings. The utilitarian theory of justice follows a consequentialist logic. Examples of Utilitarian Ethics. 10 (Memoirs Part I and Correspondence),1843. Utilitarianism is one of the best known and most influential moral theories. Implicit in this analysis was the premise that the current patent system unnecessarily restricts competition and imposes excessive costs on society. (1972) ch CVII, para 4, pp 282283 32 references, Territories Financial Support Center (TFSC), Tribal Financial Management Center (TFMC). Utilitarian Justification- conservation of nature is important because the environment, ecosystem, habitat, or species provides individuals (aka humans) with direst economic benefits. [48] See Joshua D. Wright, Commissioner, Fed. . Legislative proposals directed at allegedly abusive patent assertions and costly lawsuits filed by patentees are being considered in Congress. 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. Google Scholar. An ethical dilemma today in society is that of abortion, which one would define as a deliberate end to a pregnancy. Photo by Clarissa Williams. [5] The following discussion draws in substantial part on Randolph J. The man who is a mean drunk, losing his temper every time he gets liquored up, might kill people on a regular basis, if not restrained by incarceration; while the deliberate murderer might kill just once, collect his inheritance, and never break the law again. Even if one assumes that there is something to that argument, however, far more serious than copyright expansionism is copyright piracy: the proliferation of unauthorized reproductions of copyrighted works, which has continued to grow in severity despite the existence of statutory civil and criminal penalties for copyright infringement. [55] Jay P. Kesan, Economic Rationales for the Patent System in Current Context, 22 Geo. The need for different rules regarding different kinds of intangible property is akin to the need for different rules for different kinds of tangible property, whether real property, minerals, water, or personal property, but this in no way suggests that in a foundational sense, intangible property rights are any less grounded in natural right or in our constitutional order than tangible property rights are. 5. 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. Supporters of robust IP rights can therefore claim the force of history and constitutional political philosophy, while critics fail in their claims that IP rights are special privileges that should be deemed second-class property rights (if they qualify as rights at all). utilitarian justification. [29] James Kent, 2 Commentaries on American Law 502 (10th ed. Cambridge 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. A criminal should be punished according to what he deserves, neither more nor less, and what is useful to society is irrelevant. I will, however, make the case of rule utilitarianism. 12. These DOJFTC guidelines were part of a broad bipartisan American consensus that generally favored strong IP rights. Bentham, Jeremy in Bowring, John, Works of Jeremy Bentham, vol IV. It is a continuous process integral to understanding human life as advanced by Utilitarianism, where humans are continuously pursuing happiness, 33 under the influence 'of two sovereign masters, pain and pleasure'. 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. Those who favor retributive justice, on the other hand, will agree with Immanuel Kant that happiness is not an unqualified good: we want people to be happy only to the extent that they deserve to be happy. Civil laws apply in unique ways to different types of property. 2 Hardin 1988, Goodin 1995. In the second case, we take into consideration extenuating circumstances. Google Scholar, ch XVII, paras 2 & pp 282-283. The financial cost of education typically is not extravagant and does not outweigh the long-term positives and happiness that education produces. [27] Joseph Story, A Familiar Exposition of the Constitution of the United States 118 (1842). CrossRefGoogle Scholar. All of them were on probation. If we focus on the good of the community to justify our Copyright Office, http://www.copyright.gov/circs/circ38a.pdf. What objections can be raised against this approach? A lock ( When we apply this basic moral philosophy into the case of punishment, the utilitarian justification fails to respect human dignity. In short, IP is justified on natural rights grounds; references to the English legal tradition are mere window dressing. Driver, Julia. 3, at 45. Secure .gov websites use HTTPS But the paring back of patent rights spurred by a fashionable bad patents philosophy does more than threaten to have significant negative side effects: It flies in the face of a large and growing economic literature that highlights the economic benefits of patents. In a criminal law perspective, punishment is regarded as a form of retaliation for the actions of the criminal. Copyright Office. Google Scholar. Alden Abbott served as Deputy Director of Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. [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. 477 (1850). Intellectual property and physical property both share this necessary connection to the laws of society, and both copyrights and patents fit within the meaning of property in this narrower sense of the term. Yahweh ordered the Heebrews to raid the residents of Canaan. This article makes it clear that the Founders recognized the importance of patents, making sure to discuss them in the Constitution. To the contrary, the robust protection of patents and copyrights is consistent with the American constitutional tradition and with sound economic policy. Although scholarly opinion is not unanimous and correlation does not necessarily imply causation, the weight of recent empirical findings by and large lends solid backing to strong patent protection. Trade Commn (Oct. 2003), https://www.ftc.gov/sites/default/files/documents/reports/promote-innovation-proper-balance-competition-and-patent-law-and-policy/innovationrpt.pdf; The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition, Fed. 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). [6] U.S. Congress Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information 258 (Apr. Chan, Wing-Tsit, Sources of Chinese Philosophy (1969) Princeton: Princeton University Press He eventually failed his drug test, and had to go to jail for six months. 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]. With that said, a more consistent ethical system should be put in place. 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. Binder, Guyora, and Nicholas J Smith. Corporate raids have always been accepted in your culture. 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. And they were miserable. Next, by answering its questions, I determined whether the utility calculus would permit certain punishments. Thus it is that in Texas, capital punishment has to be justified on both utilitarian and retributive grounds. compared to the available alternatives. It did not always work. Better put, the justification of character, and whether an action is good or not, is based on how the . In Chapter I, Mill makes several methodological remarks about the proof or justification of which utilitarianism admits. [45] See Richard Baker, Guest Post: America Invents Act Cost the US Economy over $1 Trillion, PatentlyO (June 8, 2015), http://patentlyo.com/patent/2015/06/america-invents-trillion.html. J.J.C. 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. Over the past decade or so, however, naysayers have focused on the allegedly poor quality and uncertain nature of existing patents in the United States. only in virtue of the well-being of the lives of particular individuals . "displayNetworkMapGraph": false, The millions of U.S. jobs and hundreds of billions of dollars in annual contributions to U.S. GDP by copyright-intensive industries. No property rights system is perfect, and concerns about defective or uncertain rights affect real and personal property as well. Peter Singer & Katarzyna de Lazari-Radek (2017). [7] John Locke, The Second Treatise of Government (1690), in Lee Stimpson and Betsy Glade, Democratic Citizenship: Documents in the History of Democracy and Citizenship in America 1928 (1999).

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