Hume's two foundations of justice and the nature of law (David Hume).

摘要

A good theory of justice and law must allow for some form of social, economic, and political reform. Any theory of justice that does not allow for reform is significantly lacking in its capacity to adequately apply itself to society. As there are various theories of justice and law, I will explore the notion of justice found in the work of David Hume as it relates to a form of legal realism. Hume's view of reform in civil society will allow me to expound upon his theory of law, which is genuinely a predecessor to 20th century American legal realism and lends itself quite readily to legal and political reform.; I begin with a discussion of the origins of justice in Hume's philosophy and consider its relationship to civil law. The focus here is Hume's exposition of the natural and artificial virtues in the Treatise, the Enquiries, the History of England, and his political essays. We find that there are two foundations of justice. The first foundation regards the origin of justice where the 'rules of justice arise out of a sense of general advantage to be obtained, provided certain conditions hold, from a system of mutual constraints on the pursuits of self interest.' The second foundation of justice is brought to light in Hume's Treatise , in the discussion of how justice becomes a virtue. Here, the standard for moral judgments with respect to justice is the 'impartial sympathy with the interest of all those affected.'; Hume's move to legal realism is relevant here. Legal realism is the position that judicial decisions rest in the hands of 'impartial' judges and their considerations of society, economics, and the like. Law, merely as a system of rules, cannot and does not have final say in judicial decisions. Our ultimate goal is to ascertain the strength of Hume's legal realism and its ability to underwrite social and political reform.