An ethical dilemma today in society is that of abortion, which one would define as a deliberate end to a pregnancy. 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. For instance, a reasonable utilitarian sentencing guideline for drug dealers could include a large fine to cover the rehabilitation costs of those to whom they sold drugs; however, it would be unreasonable and unethical to expect the single mother in poverty to pay this large fine when she was coerced into selling drugs. Positive punishment is adding something to the mix that will result in an unpleasant consequence. Copyright Office. 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. They are rational beings and thus have to obey the universal law (moral law) according to Categorical Imperative. In particular, the rapid proliferation in recent decades of for-profit digital goods, including software, DVDs, E-books, video games, and Internet-enabled entertainment services such as iTunes and Netflix, demonstrates that intangible information-based products can be marketed successfully through for-profit contractual transactions in the marketplace, much as tangible goods and services are marketed. Three professors from Harvard Business School and New York University recently reported empirical research, based on extensive Patent Office data, supporting the proposition that patenting stimulates innovation and job growth by startup companies: Noted patent law professor Jay Kesan has summarized the latest economic thinking on the benefits of the patent system in a recent article: Public officials, courts, and commentators who question the value of strong patents have failed to address this compelling research adequately. [33] Abraham Lincoln, Lecture on Discoveries and Inventions (1858, 1859) (emphasis in the original), http://www.abrahamlincolnonline.org/lincoln/speeches/discoveries.htm. [57] See, e.g., Bell, supra note 40, passim. What objections can be raised against this approach? If we focus on the good of the community to justify our 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. In 1831, encouraged by such statesmen as Daniel Webster and Henry Clay, Congress passed a significant expansion of copyright terms and enabled heirs to claim a right in renewal of those terms. [19] See May & Cooper, supra note 5, at 100. Google Scholar. "shouldUseHypothesis": true, This is easier to see in the case of more than it is in the case of less. Utilitarianism is an ethical theory that indicates that we should make the first heap as small as possible and the second one as large as possible. An examination of the patent and copyright systems reveals that such critiques are both badly misplaced and counterproductive. Utilitarian ethics is a normative ethical system that is primarily concerned with the consequences of ethical decisions; therefore it can be described as a. teleological theory or consequentialist theory. What objections can be raised against this approach? Legislative proposals directed at allegedly abusive patent assertions and costly lawsuits filed by patentees are being considered in Congress. Such reduced returns have diminished incentives for the expanded production of copyright products, many of which rely on costly advertising, promotional, and related expenditures to achieve scale and widespread distribution. Shapiro and Lemley stressed that the scope and validity of patent rights (most of which are not litigated) are uncertain; that patents are merely contingent property rights; and that weak patents can command unjustified premiums. Specific citations to the works referenced in this section may be found in this volume. A patent must meet certain criteria, including novelty and non-obviousness, in order to be granted. He has published two books on his studies of the meaning and role of apologies in justice and contributes regularly to interviews in national media outlets. Google Scholar. debate within utilitarianism which began over half a century ago and is still going strong. I included a fine in my hypothetical sentencing guideline to serve as a deterrent to engaging in substance abuse, both to prevent the offender from engaging in substance abuse in the future and to serve as a threat to prevent the general public from engaging in such criminal behavior. Utilitarianism is one of the most powerful and persuasive approaches to normative ethics in the history of philosophy. A U.S. patent is a statutorily defined property right granted by the U.S. Patent and Trademark Office for a term of 20 years from the date of application. It is also egalitarian in that it takes everyone's welfare . When we put. 32 references, Territories Financial Support Center (TFSC), Tribal Financial Management Center (TFMC). As the authors explain: This particular application or narrower understanding of property was likewise rooted in natural right, but it also depended on civil society: Laws established by governments expanded the scope of protected property and reflected social and technological progress. This judgment was made according to the principle of utility, where an action provides greater happiness and benefit for society than if the action was not taken.773 Utilitarian justifications are often Piper says her lifelong goal is to try to help those who have been left behind by society and governments. When she first learned about utilitarianism in a social and political philosophy class taught by Nick Smith, her interest was piqued and she decided to pursue independent research on the subject. The first hypothesis states that each person's utility or well-being depends on his or her income, but that this relation is governed by the diminished rate principle. Nick Smith, my research mentor and adviser, helped me narrow my research goal: to determine if the philosophy of utilitarianism, and specifically the utility calculus, could have a positive effect on drug sentencing in the United States criminal justice system. 3, at 45. The conclusion, then, is that since capital punishment is not useful in producing a better world, it should be abolished. Rationale of Judicia1 Evidence in Works of Jeremy Bentham, vol VI in a collection edited by Bowring, John (1843) Edinburgh, p 238. The drug dealer, on the other hand, said that having to forgo all drugs, including marijuana, was so onerous a requirement, that some guys would refuse probation and serve out their full sentence instead. 5. It is important to understand utilitarianism as it forms the basic tenants of legal theory and function of laws. Basler et al. Even worse, an attenuation of American copyright not only would prove harmful to the U.S. creative community in the domestic market, but also would undermine efforts to ensure a reasonable international copyright regime. View all Google Scholar citations Painting of Jeremy Bentham, the founder of Utilitarianism, by Henry William Pickersgill 1829. https://www.npg.org.uk/collections/. While the U.S. copyright system certainly merits continued evaluation to ensure that the optimal degree of copyright protection is not exceeded,[66] there is no credible evidence that we have reached that point. It is interesting, as a practical example of this dichotomy, that in Texas, in order for a jury to decide in favor of the death penalty in a murder case, two conditions must be met: (1) The criminal must be regarded as being a continuing threat to society, and (2) the murder must not have been merely intentional, but deliberate. The reason for their misery consisted mostly in the fact that they had to take periodic drug tests, and having to be clean for five years or so was more than they could stand. The old saying, Let justice be done, though the heavens fall, is an instance of the contempt that retributive justice has for utilitarian considerations. Consistent with this observation, May and Cooper view the Constitutions explicit singling out of IP rights as emphasizing their importance, not denigrating them in comparison with other property rights: In sum, both traditional forms of property and categories of property in its particular application, such as IP rights, qualify as natural rights. Published online by Cambridge University Press: A deliberate murder is one that is planned and thought out well in advance, before being carried out; as when a man gets tired of waiting for his mother to die in order to inherit her money, and decides to shoot her while she sleeps, hoping to make it look like a burglary. This justification is based on the calculation that the benefits of the theft outweigh the losses caused by the theft. With that said, a more consistent ethical system should be put in place. Professor Paul Heald has propounded a somewhat different theory, under which patent ownership rules establish a title registration system for certain information assets, thereby significantly lowering transaction costs compared to the available alternative systems of trade secrecy and contract law. Rather, as Sir William Blackstone observed in his Commentaries on the Laws of England, the purpose of civil law is to fulfill natural rights of property by expanding property, creating new forms of property as society progresses, and ensuring mutual enjoyment of property rights by all persons.[14]. U.S. Patent and Trademark Office, http://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright. The last three chapters are purely analytical and focus on what I believe to be the three most important areas of concern for contemporary utilitarian moral theorists: the definition of a philosophically viable concept of utility; the justification of . In a criminal law perspective, punishment is regarded as a form of retaliation for the actions of the criminal. 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. Utilitarian Justification are those that assign value to the environment as a function of its economic or survival benefits for humans Ecological Justifications Emphasize the value of community life support functions over direct individual benefits based on self interest Aesthetic Justifications based on human appreciation of natural beauty It grants the holder the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. Utilitarianism is a philosophy that values the greatest amount of happiness for the greatest number of people (Driver 2014). From a Utilitarian point of view, the suffering inflicted upon the criminal is justifiable on the grounds with the certainty that more happiness is created than suffering. 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. Utility, in turn, can be specified in accordance with one's preferred utilitarian theory (e.g., hedonistic utilitarianism, preference utilitarianism, and so on). As Bentham himself acknowledged, an accompanying set of sentencing guidelines, similar to modern mandatory minimums, must be used when applying utilitarianism to government policies (Burton 1843). Inst. Ecological Justification- conservation of nature is based on the knowledge that a species, ecological community, ecosystem, or the Earth's biosphere provides specific function necessary to the persistence of . What objections can be raised against this approach? The next step in my research was to formulate hypothetical utilitarian sentencing guidelines for the category of crime I wanted to focus on: drug crimes. Explain the utilitarian justification for IP as an incentive for intellectual work. Stuart, John [23] Amy Landers, Understanding Patent Law, 2 LEXIS New Providence 1 (2012). 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. Epicurus, for instance, promotes the idea of happiness as a goal of human action and draws a distinction between lower and higher pleasures. [51] See Intellectual Property and the U.S. Economy: Industries in Focus, U.S. Department of Commerce (Mar. [64] (Admittedly, there is a counterargument that copyright terms may have been extended beyond optimal levels as a result of aggressive rent-seeking by copyright holders.). The Utilitarian Justification of Torture: Denial, Desert and Disinformation ROD MORGAN First Published April 1, 2000 Research Article https://doi.org/10.1177/14624740022227944 Abstract Torture is prohibited by customary international law. It is the only moral framework that can be used to justify military force or war. The proposition that weakening copyright protection would somehow be socially beneficial lacks significant empirical support. utilitarianism, in normative ethics, a tradition stemming from the late 18th- and 19th-century english philosophers and economists jeremy bentham and john stuart mill according to which an action (or type of action) is right if it tends to promote happiness or pleasure and wrong if it tends to produce unhappiness or painnot just for the According to utilitarianism, we should . This breaks down into three parts: The first is incapacitation. Intellectual property (IP) is increasingly important to the American private economy, and a discussion of the appropriate public policy toward IP is timely, particularly given the recent growth in public skepticism toward IP rights. The criminal is taught that crime does not pay. The commonly accepted advantages of utilitarianism include (Mulgan 23-24): Comprehensible principles and clear guidelines for behavior. It asserts that even if the natural law argument can be challenged, it is still the case that without the monetary incentives which come with the monopoly rights from intellectual property, rational agents . 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]. Utilitarianism is one of the best known and most influential moral theories. See The Heritage Guide to the Constitution, supra note 4, at 152153. Utilitarianism is a theory of morality that advocates actions that foster happiness or pleasure and oppose actions that cause unhappiness or harm. 2.2 Utilitarian Ethics. Inevitably the truth about acts of torture emerge, however, as in Turkey, Israel, Algeria, and Northern Ireland. 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]. One of the co-workers had three DWIs, another was a burglar, a third was a drug dealer, and the fourth and fifth were husband and wife, both of whom were guilty of writing hot checks, with the husband having the added offense of assaulting a police officer. I took particular interest in the ideological purpose behind US judicial laws. According to one reading of Jeffersons 1813 letter to Isaac McPherson, Jefferson suggests that even property rights in land require government monopoly protection, since [s]table ownership is the gift of social [not natural] law, and is given late in the progress of society.[22] Accordingly, it would be a huge mistake to rely on Jeffersons views as representing the Founding-era understanding of property in general, let alone IP. The ultimate utilitarian objection to torture is that it corrosively delegitimizes the state. A discussion on punishment in a recent diary started me thinking about the subject in general, and as some remarks I wanted to make became too unwieldy for the comment section, I decided to express my thoughts here. utilitarian justification Essay Examples. I, 8, cl. 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. Oh yeah. A .gov website belongs to an official government organization in the United States. Utilitarianism was created by European philosophers Jeremy Bentham and John Stuart Mill throughout the late eighteenth and nineteenth century. In particular, arguments about punishment are sometimes a disagreement about the means, but more often than not, are a disagreement about the ends. 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