The Age of Reason

The Age of Reason culminated in the Enlightenment of the eighteenth century, and was a period of European geographical, cultural and intellectual expansion. During the Age of Reason scientific advances were made, the New World discovered (and colonised), and nation states emerged across Europe. The authority of the Catholic Church continued to diminish, though the astronomical theories and discoveries that demonstrated Earth was not the centre of the universe resulted in the execution of Giordano Bruno among others.

These advances were reflected in philosophy. Empiricism, exemplified by John Locke’s Essay Concerning Human Understanding, rejected the validity of innate ideas imparted by God and instead ‘established the objective source of thought in sensations derived from the external world.’1 In this paradigm, human moral character was a ‘reflexive product’ of the human environment, able to be changed by improvements in humans’ social environments, and no longer permanently constrained by notions of ‘original sin.’2 Such improvement could be achieved through the juggernaut of human reason: ‘The motto of the Enlightenment, as Kant (1724–1804) wrote, was: “Dare to know!”’3

The effect of this reframing of philosophical thought on legal theory was that new source were required to underpin the state’s authority — human, rather than divine.4

Thomas Hobbes

Thomas Hobbes’ (1588–1679) Leviathan (1651) was a reaction to the so-called ‘Cromwellian Revolution’ in England that, as Head and Mann describe, was a period ‘which had seen a civil war, a king lose his head, the establishment of a parliamentary dictatorship and the emergence of radical egalitarian tendencies such as the Levellers.’5 According to Hobbes, government and law had the primary purpose of guaranteeing peace and order.

Hobbes’ two basic principle were: firstly, that all should aim for peace but, if peace is impossible, may resort to self-defence; and secondly, that liberty shall be taken in equal measures — the people can only be satisfied with as much liberty as they are willing to extend to others.6 According to Hobbes, the obligation to obey was constant unless the sovereign failed to maintain the order that was their duty under the social contract; in such circumstances ‘the individual right of self-defence will abrogate the duty of obedience’.7

John Locke

John Locke (1632–1704) ‘provided the theoretical underpinning for the 1688 “Glorious Revolution”’ in which parliament and the emerging capitalist capitalist class ousted the monarchy for the second time that century by inviting the Protestant William of Orange and Mary Stuart to invade England and oust James II.8 Head and Mann describe him as ‘a seminal figure in political and legal philosophy, with two principal, interlinked influences. He provided initial rationale for the concepts of liberty and private property, while leaving the underlying tensions between the two unresolved.’9

Locke rejected the notion of ‘absolute power’ in preference to a limited sovereign and promoted the ‘natural rights’ of life, health, liberty and property held by all individuals.10 The breach of these principles gave the people the right to ‘resume their original liberty’; Locke proclaimed conditions for the ‘right of revolution’, but did not oppose political authority per se.11 Locke suggested that remaining within a state was sufficient to establish ‘tacit consent’ to obey its laws due to the benefited resulting from the actions of its sovereign.12 ‘He declared that to disturb government was also to breach the law of nature — it could only be justified when the sovereign had betrayed this trust.’13

Through his promotion of property as a natural right, Locke aided the emergence of the capitalist class: it helped establish exclusive property rights in contrast to the common property rights that existed during, and as a consequence of, feudalism.

This new form of property of property had to establish itself against the conception that land should be held in common and its fruits available to all. The forms of property, based on exclusion, which are considered as emanating from human nature today, were once regarded as so ‘unnatural’ that they had to be argued for.14

Locke argued that

it seems to some a very great difficulty, how any one should ever come to have a Property in any thing … I shall endeavour to show how Men might come to have property in several parts of that which God gave to Mankind in common, and that without any express Compact of the Commoners.15

This insistence on the ‘inviolability of property against tyranny … was the classic bourgeois outlook’ and the notion took root in the judiciary. Pratt CJ remarked in Entinck v Carrington that ‘The great end for which men entered into society was to secure their property.’16 It is important to note that Locke’s notions of property extended beyond ‘privately held assets [and] included the right to the fruits of one’s own labour.’17 In Locke’s view, inequality was to be avoided and a right to physical subsistence was elevated above property rights:

if a man insisted on the market price for food for a man dying of hunger, he was guilty of murder.18

Jean-Jacques Rousseau

Jean-Jacques Rousseau (1712–1778) wrote in the period prior to the French Revolution. Rousseau also adopted the social contract approach to natural law, and postulated rights to life and liberty, but, unlike Locke, not property rights.19 In The Social Contract, he observed ‘human beings are born free but are everywhere in chains’.20 Expanding upon this in his Discourse on the Origin and Foundation of Inequality Among Men (1755), Rousseau explained:

The first man who, having fenced off a plot of land, thought of saying, ‘This is mine,’ and found people simple enough to believe him was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race have been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men, ‘Beware of listening to this imposter; you are lost, if you forget that the fruits of the earth belong to all and that the earth belongs to no one.21

Without property there could be no inequality, and without civilisation there would be no property: property oppresses the poor and ‘the struggle to obtain, keep and augment’ property /morally and intellectually disfigure[s]’ those who posses it.22

Classical positivism

Scottish philosopher David Hume (1711–1776) grounded his theories in rationalism and secularism, conflicting with theories of universal natural law. One of Hume’s most notable contributions is his discussion of the ‘is-ought’ problem: Hume argued that it is impossible to derive prescriptive statements about what ought to be from empirical observations of what is, or through ordinary processes of logic and reason.23 Further, ‘Hume asserted that governments and laws were the creation of men and reflected “human interests” and “conventions”, not the laws of nature.’24

Hume perceived natural laws as being those which were ‘as old and universal as society and the human species, but prior to government and positive law’, and observance of which is ‘palpable and evident, even to the most rude and uncultivated of the human race’, creating an unclear divide between positive and natural law.25

The American and French revolutions of the late-eighteenth century divided English jurisprudence especially into two forms: a natural law revival lead by Edmund Burke (1729–1797) and William Blackstone (1723–1780), and the emerging positivist school of thought lead by Jeremy Bentham (1748–1832) and John Austin (1790–1859).

Burke used appeals to natural law to oppose the French Revolution’s egalitarian aims and to support the wage system. Burke ‘appealed to the “eternal principles of truth and justice” to denounce arbitrary rule and interference with the rights of property and employers.’26 Burke opposed the ‘poor relief’ measures of the Speenhamland system that involved paying labourers a ‘supplement related to the cost of bread and the size of their families.’27 The capitalist market and wage system were, in Burke’s view, a reflection of the ‘divine and natural order’ of subordination,28 and capitalism ‘had in fact been the traditional order of England for a whole century’.29

Along similar lines, Blackstone used ‘natural law’ to sanctify English common law in his Commentaries. In response, Bentham criticised Blackstone on the basis that natural law impels disobedience of laws people do not like, and called natural law ‘nonsense on stilts.’30

Bentham established classical legal positivism, that describes law with regard to formal (rather than moral or ethical) criteria, and drew a Hume-like distinction between the questions ‘what is the law?’ and ‘what ought to be the law?’31 Thus, classical positivism considered law as separate from morality and other factors (for example, economics), and attempted to define law by a command theory.32 The command theory suggested by Bentham is a simple model by which laws can achieve legitimacy by fulfilling three criteria: a command, a sovereign and a sanction.33

To avoid a ‘right to rule’, Bentham characterised sovereignty as a ‘fact of rulership’: a sovereign is ‘any person or assemblage of persons to whose will a whole political community are (no atter on what account) supposed to be in a disposition to pay obedience.’34 Authority to legislate and govern in this structure is based on actual or supposed habitual obedience to the sovereign.35

Sanctions, imposed by the sovereign, could be coercive (inflicting some form of penalty) or alluring (providing some kind of reward) measures.36 While Bentham acknowledged other motivations existed for complying with the law, the imposition of a sanction is ‘a definitive characteristic of law.’37

Immanuel Kant and Sir William Ross

In contrast to utilitarianism (in which, apart from the maximisation of happiness, there are no absolute or unconditional moral rules), Immanuel Kant’s deontological theory supports absolute principles of action.38 As such, while utilitarians only value consequences (that is, ends), Kantians value only principles of action (that is, means).39 The moral value of an action is determined by its conformity to certain maxims.

Such maxims must conform to Kant’s categorical imperative ‘requires universality and respect for the autonomy of other people’:40

Act only on that maxim whereby you can at the same time will that it should become a universal law.41

Under this, ‘moral rules can be discovered through application of the purely rational, logical requirement of avoiding contradiction.’42 The universal law aspect essentially asks ‘what if everyone did this?’ when evaluating an action. For example:

When I think about lying in a particularly sort of situation … I will then find that in some sense I would contradict myself by lying. Lying presupposes people trusting each other to tell tell the truth. But with lying as a universal law there can be no such trust. I am relying on an institution I am simultaneously destroying.43

This contradiction extends also to using other people as means to our own ends: to control other people in such a way subverts the use of their own rational faculties to determine their own moral and practical ends; what would happen if they did the same to us? Respect for individuals’ rational autonomy is necessary.

The requirement of universality is generally agreed upon by ethicists as a necessary condition of valid moral judgment: ‘We cannot morally act for a reason unless we accept that everyone else in the same situation should act in the same way.’44 This does pose some issues, as Head and Mann point out: ‘it seems to come into conflict with respect for others’ autonomy. The way we might want others to treat us might not be the way others want others to treat them. Perhaps we should rather treat others as they would want us to treat them.’45

Ethicists, while generally agreeing with the centricity of respect for autonomy as a moral value, characterise that autonomy in different ways. This may manifest itself in an emphasis on freedom from external coercion, while others promote an approach that facilitates genuine freedom of choice between viable alternatives.46 A further perspective is the absence of internal obstructions on effective deliberation and the best course to take, both in terms of ends and the means used to achieve them (perhaps ‘in the form of an oppressive and infantile superego’ or an impairment caused by ‘drugs, trauma or mental illness’).47 Further, if ‘other people, in a position to do so, fail to provide us with appropriate information, where they lie to use or otherwise deceive us, this too limits the effective exercise of the abilities required for rational deliberation.’48

Head and Mann provide examples of the value of autonomy being recognised in law: requirements of ‘informed consent’ in medical procedures; consumer protection laws requiring consumers receive accurate information; the potential for a radical imbalance in bargaining power or knowledge to render a contract unconscionable and unenforceable; duress as a defence for committing otherwise illegal actions where the individual ‘will is overborne by another’.49

Nevertheless, in many regards, the law does not consider the broad social situation that may place a person under duress and restrict their available options for action, such as ‘in a radically unequal and class-divided society’, and ‘fails to consider the ways in which real life options are more or less narrowly restricted for individuals and groups by virtue of their class positions’, and where this is neither complete absence of free will nor total autonomy.50 ‘At the other end of the social scale … the rich and powerful … can come to take it for granted that they can “do whatever they want”’ and thus experience their own form of social pressure.51

Sir William David Ross (1877–1971) held that consequences and intentions are both important in moral decision-making, but his theory ‘is distinguished by its emphasis on the centrality of special relationships in creating particular moral rights and duties.’52 In utilitarian theory, everyone is treated equally as a beneficiary or victim of others’ actions, but this is a clear simplification: in Ross’ view, particular relationships carry ‘different and specific moral values, commitments and responsibilities’ — such as between friends, doctors and patients, spouses, teachers and students, and parents and children — these relationships can impart values and commitments important enough to override the ‘happiness maximisation’ of utilitarianism.53

Ross’ theory identifies six ‘prima facie duties’ based on individuals’ past actions and social relationships. The duties are: fidelity (being truthful, and honouring promises and other commitments); reparation (compensating for wrongdoings); fair distribution of goods; improving the condition of others; self-improvement; and refraining from harming others. Each of these duties is prioritised based on the situation: it might be better to breach the duty of fidelity if the result would be a greater breach of the duty to refrain from harming others.54 This contrasts with Kant’s universal and immutable duty to fidelity.

Ross holds that these duties, and which are prioritised based on the situation, are ‘generally evident to our faculties of moral intuition’, but this is not a universally accepted premise of ethics. Other philosophers may prefer this as a general rule of thumb, supported with the application of a utilitarian-like calculation to determine decisions in difficult cases of conflict.55.

  1. Michael Head and Scott Mann, Law in Perspective (UNSW Press, 2012) 205.

  2. Ibid.

  3. Ibid.

  4. Ibid.

  5. Ibid.

  6. Ibid 205–206.

  7. Ibid 206.

  8. Ibid.

  9. Ibid.

  10. Ibid.

  11. Ibid.

  12. M Freeman, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell, 6th ed, 1994) 114–115.

  13. Head and Mann, above n 1, 206.

  14. Ibid 207.

  15. C B Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon Press, 1962) 199-200.

  16. Entinck v Carrington (1765) 19 How St Tr 1029.

  17. Head and Mann, above n 1, 207.

  18. Freeman, above n 12, 116–117.

  19. Head and Mann, above n 1, 207.

  20. H McCoubrey and N White, Textbook on Jurisprudence (Blackstone Press, 3rd ed, 1999) 81.

  21. D North, Equality, the Rights of Man and the Birth of Socialism (Mehring Books, 1996) 10–11.

  22. Head and Mann, above n 1, 208.

  23. Freeman, above n 12, 120–121.

  24. Head and Mann, above n 1, 208.

  25. Freeman, above n 12, 28.

  26. Head and Mann, above n 1, 209.

  27. Ibid.

  28. Ibid.

  29. Freeman, above n 12, 122–123.

  30. Freeman, above n 12, 250.

  31. Head and Mann, above n 1, 209.

  32. Ibid.

  33. Ibid.

  34. Ibid.

  35. Ibid.

  36. Ibid.

  37. Ibid.

  38. Michael Head and Scott Mann, Law in Perspective (UNSW Press, 2012) 159.

  39. Ibid.

  40. Ibid 160.

  41. Immanuel Kant, Groundwork of the Metaphysics of Morals (H J Paton, Harper and Row, 1964) 70 [trans of Grundlegung zur Metaphysik der Sitten (first published 1785)].

  42. Head and Mann, above n 1, 160.

  43. Ibid.

  44. Ibid.

  45. Ibid.

  46. Ibid.

  47. Ibid 160–161.

  48. Ibid 161.

  49. Ibid.

  50. Ibid.

  51. Ibid.

  52. Ibid.

  53. Ibid 161–162.

  54. Ibid 162.

  55. Ibid.