Beccaria of Milan was a member of a group of high-powered intellectuals, the self-styled ‘Academy of Fisticuffs’, headed by his patron and mentor Pietro Verri. Unlike the milieu of Pelli, his group was committed to the principles of the European Enlightenment. He admired and was strongly influenced by leading French philosophers, in particular, Montesquieu (the Persian Letters) and Helvétius. Of earlier authorities he was particularly drawn to Francis Bacon and Heineccius, and was influenced by preceding natural jurists including Hobbes. His attack on the death penalty begins with an individual interpretation of the social contract. His argumentation is multi-faceted. It involves, among other things, an in-depth analysis (after Helvétius) of human nature, and a forthright argument in favour of perpetual hard labour as the ultimate penalty, based on the claim that this (long-drawn-out) punishment would be a more effective deterrent than (quick) execution.

Pelli and Beccaria in the 1760s produced the first comprehensive critiques of the death penalty. They did not come from nowhere. For centuries, philosophers, jurists, and religious leaders produced ideas and arguments that would feed into the abolitionist cause, in a way unpredicted by their authors, none of whom were abolitionists. The starting point (ironically, as it became the standard-bearer of retributivism) was the Lex Talionis of the Code of Hammurabi, which aimed at controlling private vengeance, while advancing the principle of crime–punishment proportionality. Plato introduced the idea that punishment must be forward- rather than backward-looking, and dismissed the latter as vengeance. Jesus’s words and actions problematized the practice of capital punishment. Thomas More was the first to argue against the death penalty for a specific crime, namely, theft, while natural jurists such as Pufendorf ruled out Grotius’s assertion that capital punishment was permissible according to the law of nature. Beccaria combined social contract theory and proto-utilitarian considerations, the latter coming into play through the agency of Enlightenment philosophers, English, Scottish, and French. The advance of abolitionism was and is far from inevitable, as illustrated by the obstacles faced in England (for a time) and North America (perhaps lasting).

The character of the State of Nature that humanity sought to escape divided natural philosophers. There was a sharp reaction against the pessimism of Hobbes’s Leviathan and Mandeville’s Fable of the Bees. The end result of a long process was the development of the ethical theory of utilitarianism: ‘it is the greatest happiness of the greatest number that is the measure of right and wrong’ (Bentham). The seed-bed of utilitarianism was the idea of utility; but utility is an empty vessel, with no fixed or clear definition. During the eighteenth century, happiness became its preferred content. The role of Hutcheson was key here: he coined the phrase (in 1725) that became the Benthamite slogan, and pioneered the application of mathematics to moral philosophy. Later thinkers, notably Helvétius, were less optimistic than Hutcheson, arguing that mankind was not by nature benevolent, but self-interested: it was thus incumbent on legislators to raise the sights of the citizenry to embrace the interests of the whole society. In this Beccaria followed the lead of Helvétius.

This chapter concludes the book, but the book concludes only midway through the quiet revolution that modern public trust advocacy has engendered. The Mono Lake litigation advanced public trust principles as a source of environmental law – and even environmental rights – highlighting the role of the doctrine in providing needed support for environmental protection amid weak legal foundations. The Conclusion turns to several open questions, including objections that the judicial role the doctrine invites may threaten the constitutional separation of powers. It considers whether trust-rights claims raise the kind of generalized harms that jurisprudential standing limitations are intended to prevent, but also the counterargument that the doctrine is the original “citizen suit” provision of the common law, deputizing private attorneys general to champion diffuse environmental interests that special interests would otherwise dominate. Finally, it considers what the world might look like without public trust governance – visiting parallel stories unfolding at the Great Salt Lake, Dead Sea, Sea of Galilee, and Aral Sea – before returning at last to the ongoing story at Mono Lake itself.

This chapter reviews the reach of public trust principles across the globe and compares them to a competing model of environmental rights, the rights of nature movement. The former affirms public rights to the environment, while the latter confers rights on the environment itself. Both reflect dissatisfaction with the failure of existing laws to ensure environmental stewardship. The rise of such advocacy responds to the missing foundations for environmental law identified in the Introduction, including weak constitutional foundations in the United States. Exploration begins with a review of public trust principles around the world, followed by a whirlwind tour of global rights of nature initiatives. The rights of nature movement provides an unapologetically biocentric alternative to the inherent anthropocentrism of the public trust and more typical environmental laws, which also premise the value of natural resources on their human beneficiaries – yet they are evolving along similar legal pathways. The chapter concludes with comparative analysis of the two approaches, contrasting the underlying ethics that divide them while recognizing the practical characteristics that unite them.

Between the 1770s and the 1840s, British abolitionism moved from anti-capitalist utilitarianism to free trade. In this process, the identification of the “real slave” was crucial: Not only slave owners, but also some trade unions and workers’ associations considered the wage earner to be the real slave. This process also responded to the development of French abolitionism, which was mostly top-down and less concerned with ethics than with economic and social considerations. The profitability of slavery and the survival of the poor on the continent were constantly intertwined and helped to explain Napoleon’s restoration of slavery and the uncertainties of the 1848 revolution regarding the fate of former slaves.

Bentham gave utilitarianism its name and put it on the map, both as a philosophical theory and as a reforming social and political doctrine. In all of his philosophizing, Bentham was most fundamentally concerned with its relevance for law and, ultimately, for a distinctive kind of legal, social, and political reform. Bentham was unalterably opposed to legal and political doctrines whose only grounding was in tradition and any common sense tradition informs. This extended also to his views about morality. His defense of the principle of is not grounded, as Sidgwick will argue any moral principle must be, in intuition. But neither does Bentham ground his utilitarianism in an empiricist-naturalist metaethics, as do Cumberland and Mill, though his metaphysics certainly has that character. Bentham holds that the ultimate grounding of utilitarianism must be political. According to Bentham, the utility principle is the only one that can play the role that a moral principle must be able to play in informed noncoercive public debate. In this way, Bentham anticipates Rawls’s “political liberalism.” This chapter argues that Bentham could accept Rawls’s an emended version of Rawls’s slogan: “the principle of utility: political, not metaphysical.”

The forms that utilitarianism took before Sidgwick were almost invariably empiricist and naturalist. To such positions, Sidgwick poses a challenge similar to, but ultimately deeper than, Moore’s more famous charge that such positions inevitably commit a “naturalistic fallacy.” In Sidgwick’s version, empiricist-naturalist theories that attempt to understand ethical concepts and properties in empirical-natural terms all fail to account for their normativity. That can be done, Sidgwick argues, only by recognizing that all ethical judgments contain “the fundamental notion represented by the word ‘ought.’” Sidgwick holds, against Mill and his empiricist predecessors like Hutcheson, that the method of ethics must be “intuitive” rather than “inductive,” in Mill’s terms. Sidgwick’s intuitionism is not, however, the sort that Mill most ardently opposes; it is a “philosophical intuitionism,” by contrast with the complacent commonsense intuitions that Mill seeks to reform with his inductive utilitarianism. This is where Sidgwick’s “dualism of practical reason” comes in. Sidgwick holds that there are two potentially conflicting ultimate rational intuitions: (a) the “axiom of Prudence,” which counsels agents to pursue their own greatest good and (b) the “axiom of Rational Benevolence.” And both of these are hedonistic, yielding rational egoistic hedonism and hedonistic utilitarianism, respectively.

Although Mill learned Bentham’s utilitarianism literally at his father James Mill’s knee, Mill’s own version of utilitarianism departed from Bentham’s at key points. When Mill tried to live Bentham’s utilitarian doctrine as a youth, he was sent into a deep depression from which he was saved by reading the Romantic poetry and a romantic relationship with Harriet Taylor. This led him to reject Bentham’s “quantitative hedonism” in favor of a “qualitative hedonism” that emphasized intrinsic differences between different kinds of pleasures and held that some pleasures are “higher,” and therefore more valuable, than others. Here Mill’s view recalls Aristotle’s that pleasures resulting from exercising higher, distinctively human faculties and sensibilities are intrinsically better. Unlike Aristotle, however, Mill persisted in holding that his view is a version of hedonism, defended on nonteleological, empirical naturalist grounds. A second important departure from Bentham, was Mill’s holding that the deontic ideas of moral right and wrong are conceptually connected to accountability. This made him a “modern moral philosopher” by Anscombe’s definition and led him to defend, on these grounds, a utilitarian theory of rights and justice as well as a version of utilitarianism that was more like rule utilitarianism than act utilitarianism.

When Nietzsche disparaged the “English utilitarians” in Beyond Good and Evil in 1886, he was referring to followers of Jeremy Bentham, most prominently to John Stuart Mill, whose Utilitarianism was published in 1861 and 1863. Mill took the term “utilitarianism” from Bentham. There was, however, a lot of utilitarian theorizing before Bentham, much of it quite sophisticated. That is the subject of the present chapter. The leading figures with whom we are concerned are Richard Cumberland, Francis Hutcheson, David Hume, George Berkeley, John Gay, and William Paley. Hutcheson and Hume are especially important figures, although both are known as virtue theorists. Hutcheson was the first to formulate the “greatest happiness principle” in English, and Bentham wrote that he read the proto-utilitarian passages in Hume’s Treatise, he felt as if the “scales had fallen from his eyes.” Another important influence on Bentham was Paley. The inspiration for Mill’s utilitarianism in his turn, however, was decidedly Bentham. This chapter surveys the roots of nineteenth-century utilitarianism in the natural law theory of Cumberland, the theological voluntarism of Berkeley, and the virtue theories of Hutcheson and Hume. Hutcheson put forward a sophisticated utilitarian theory of rights, and Berkeley, a version of rule utilitarianism.

The chapter investigates the complexities of defining the human right to family planning in regards to conflicts between collective and individual rights in the 1960s and 1970s. Various perspectives from such UN organizations as the Commission on the Status of Women, UNESCO, FAO, and ECLA are analyzed regarding responsible parenthood, state intervention in family planning, and the balance between individual rights and communal well-being. The chapter further investigates the relationship between aspirations of sexual liberation and the human right to family planning, the role of the Vatican and Catholic Church, and attempts by the Population Council to establish a form of human rights utilitarianism that justified grave violations of individual reproductive rights by promises of a better future for all. The document also discusses the political conflicts at the 1974 World Population Conference in Bucharest, emphasizing the complex interplay between individual reproductive rights, economic development, and global justice within the framework of human rights discourse.

Hume’s critique and English revulsion at the French Revolution dampened interest in social contract theorizing. The rise of utilitarianism was another factor. The cause of a universal franchise was taken up by Jeremy Bentham, a founding utilitarian who was dismissive of the social contract idea as an “anarchical fallacy.” The Chartists, who demanded universal manhood suffrage, held up both Bentham and Tom Paine as heroes. The Reform Act of 1832 expanded the power of the propertied in the burgeoning English manufacturing centers. The reformed Parliament passed the Poor Law Amendment Act of 1834, which introduced the hated workhouse system. The Chartists’ million-plus petition for universal manhood suffrage was finally received by Parliament, but ignored. John Stuart Mill, another utilitarian, dismissed Locke’s theory as a fiction but found a truth in the social-contract idea: a principle of reciprocity. Reciprocity requires government to benefit all. Mill advocated votes for women and an expanded electorate but retention of the property qualification until workers could be educated sufficiently not to vote for unwise laws favoring their class. As a safeguard, he proposed plural votes for the educated. On the European continent the social contract tradition succumbed to the idealism of Hegel and the materialism of Marx.

Rawls’s primary aim was to show that his two principles are superior to utilitarianism. Utilitarianism does not take individuals seriously, treating them as mere “container persons” in the “calculus of social interests.” Rawls emphasized that the original position was one of uncertainty, not mere risk. Harsanyi had earlier derived the utilitarian principle from an original position much like Rawls’s. The difference was that Rawls applied the maximin principle of choice under uncertainty, which picks the option having the least bad worst outcome. Harsanyi instead assumed the equiprobability of all outcomes and maximized expected utility. Rawls recognized that maximin is not a good choice strategy in general use, but argued that special features of the original position favored it over the equiprobability assumption. Chief among these are those that he argued establish the lexical priority of the equal basic liberties. In the 1999 revision of A Theory of Justice, Rawls recast the argument by appealing to two moral powers – a capacity to share a sense of justice and a capacity to choose and revise one’s life plan – and a highest-order interest in setting one’s own aims and in shaping the social world in which they must be pursued.