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Nussbaum, Martha C. --- "Janus-faced law: A philosophical debate" [2017] ELECD 559; in Fagan, Frank; Levmore, Saul (eds), "The Timing of Lawmaking" (Edward Elgar Publishing, 2017) 249

Book Title: The Timing of Lawmaking

Editor(s): Fagan, Frank; Levmore, Saul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785364327

Section: Chapter 11

Section Title: Janus-faced law: A philosophical debate

Author(s): Nussbaum, Martha C.

Number of pages: 31

Abstract/Description:

Should law look backward toward time-honored traditions, or forward toward the promotion of social welfare? In this chapter I study the debate between Burkean traditionalists (along with their legal allies) and the British Utilitarians, who find in tradition not wisdom but irrationality and exclusion, and who propose to remodel law along lines of scientific rationality, counting each person equally and promoting aggregate welfare. I examine the strongest arguments for each side and propose a compromise. Keywords: common law, Utilitarianism, Burke, Bentham, Mill, Sidgwick, Holmes, Cardozo