1. Bertolt Brecht, The Caucasian Chalk Circle, ed. by J. Willett & R. Manheim, trans. J. & T. Stern with W.H. Auden (New York: Arcade Publishing, 1994) (orig. 1955) at 75. Further citations to The Caucasian Chalk Circle in this Introduction and in Part I shall appear parenthetically by page number in the text.

2. Ibid, at 80.

3. Ibid, at 25 (emphasis added).

4. Francis Hutcheson’s book, Illustrations on the Moral Sense in Francis Hutcheson, Philosophical Writings, R.S. Downie, ed., (London: J.M. Dent, 1994) (orig. 1728) at 132.

5. The Caucasian Chalk Circle, supra note 1 at 91.

6. Ibid, at 80.

7. Ibid, at 96.

8. E.g., Plato, Republic, F.M. Cornford, ed. (Oxford: Oxford University Press, 1941) at III 401d-402a (noting that in morality as in art, those with sound judgment are guided to a great extent by “instinct,” often exhibiting the ability to “rightly condemn and abhor while [they are] still too young to understand the reason”).

9. See, e.g., Aristotle, On Rhetoric, trans. G.A. Kennedy (New York: Oxford University Press, 1991) at 143-58 (discussing moral shame and the natural human feelings of benevolence, pity, and indignation); Aristotle, Nicomachean Ethics, trans. M. Ostwald (New York: Macmillan Publishing Co., 1962) at 20-21, 36-37 (arguing that pleasure and pain provide indices into the goodness of a person’s character).

10. Hutcheson’s writings on moral and legal philosophy are found principally in five books: An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good (1725), An Essay on the Nature and Conduct of the Passions and Affections (1728), Illustrations on the Moral Sense (1728), A Short Introduction to Moral Philosophy in Three Books, containing the Elements of Ethics and the Law of Nature (1747), and A System of Moral Philosophy (1755). All references herein will be to the editions of these works that are found in the collected volume, Francis Hutcheson, Philosophical Writings, R.S. Downie, ed. (London: J.M. Dent, 1994).

11. See Hutcheson, An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 67, 75, 110; Illustrations on the Moral Sense, supra note 4 at 124, 130-34, 139-42.

12. See, e.g., Hutcheson, An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 71-72, 95-96.

13. See ibid, at 99.

14. Ibid.; accord An Essay on the Nature and Conduct of the Passions and Affections, supra note 10 at 123.

15. See e.g., An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 99; An Essay on the Nature and Conduct of the Passions and Affections, supra note 10 at 123.

16. An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 95 (emphasis in original).

17. Ibid, at 90 (emphasis in original).

18. See ibid, at 99; Illustrations on the Moral Sense, supra note 4 at 132-38.

19. See An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 75, 108; Illustrations on the Moral Sense, supra note 4 at 137-38.

20. See An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 75, 103.

21. See ibid, at 75; Illustrations on the Moral Sense, supra note 4 at 130-34, 140-42.

22. See An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 75-76,99,107-08; An Essay on the Nature and Conduct of the Passions and Affections, supra note 10 at 123; Illustrations on the Moral Sense, supra note 4 at 131-33, 140-42.

23. David Hume, An Enquiry Concerning the Principles of Morals, J.B. Schneewind, ed. (Indianapolis, IN: Hackett Publishing Co., 1983) (orig. 1751) at 19 (emphasis added).

24. See ibid, at 18-20, 38-40, 75-76.

25. Ibid, at 83.

26. Ibid, at 85; accord ibid, at 15; David Hume, A Treatise of Human Nature, L.A. Selby-Bigge, ed., 2d ed., rev. by P.H. Nidditch (Oxford: Oxford University Press, 1978) (orig. 1739-1740) at 471-72.

27. A Treatise of Human Nature, supra note 26 at 470-76.

28. An Enquiry Concerning the Principles of Morals, supra note 23 at 87.

29. See ibid, at 40-42; A Treatise of Human Nature, supra note 26 at 470-73.

30. An Enquiry Concerning the Principles of Morals, supra note 23 at 34,93; A Treatise of Human Nature, supra note 26 at 477-501.

31. An Enquiry Concerning the Principles of Morals, supra note 23 at 96 n.64; A Treatise of Human Nature, supra note 26 at 496 and 499-500.

32. An Enquiry Concerning the Principles of Morals, supra note 23 at 96 n.64; A Treatise of Human Nature, supra note 26 at 483-84.

33. An Enquiry Concerning the Principles of Morals, supra note 23 at 34.

34. See ibid.; A Treatise of Human Nature, supra note 26 at 499-500.

35. See An Enquiry Concerning the Principles of Morals, supra note 23 at 22-23,27-31,94-95; A Treatise of Human Nature, supra note 26 at 501-13.

36. See An Enquiry Concerning the Principles of Morals, supra note 23 at 23, 93-95; A Treatise of Human Nature, supra note 26 at 531.

37. See An Enquiry Concerning the Principles of Morals, supra note 23 at 34; A Treatise of Human Nature, supra note 26 at 500-01.

38. See, e.g., Adam Smith, The Theory of Moral Sentiments, D.D. Raphael & A.L. Macfie, eds. (Indianapolis, IN: Liberty Press, 1982) (orig. 1759) at 9-10, 320-21. All further citations to The Theory of Moral Sentiments in this Section shall appear parenthetically by page number in the text.

39. Accord ibid, at 87 (“[S]ociety cannot subsist unless the laws of justice are tolerably observed….”); ibid, at 88 (“Injustice necessarily tends to destroy [society].”).

40. Smith suggests that this moral call for the punishment of wrongdoers is so strong in human nature that it leads many people to hope that God will avenge in an afterlife those injustices that elude human punishment. See ibid, at 91 (“But if [a] murderer should escape from punishment, it would excite [an impartial spectator’s] highest indignation, and he would call upon God to avenge, in another world, that crime which the injustice of mankind had neglected to chastise upon earth”).

41. See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, E. Cannan, ed. (New York: Random House, 1937) (orig. 1776).

42. See Jeremy Bentham, The Principles of Morals and Legislation (New York: Prometheus Books, 1988) (orig. 1781).

43. See Immanuel Kant, Critique of Practical Reason, trans. L.W. Beck (Indianapolis, IN: Bobbs-Merrill, 1956) (orig. 1788); Immanuel Kant, Foundations of the Metaphysics of Morals, trans. L.W. Beck 2d ed. (New York: Macmillan Publishing Co., 1990) (orig. 1785).

44. In his final two works, A Short Introduction to Moral Philosophy in Three Books, containing the Elements of Ethics and the Law of Nature (1747), and A System of Moral Philosophy, written from 1733 to 1737 and published posthumously in 1755, Hutcheson dealt extensively with legal philosophy. See Hutcheson, Philosophical Writings, supra note 10 at 155.

45. Hume’s writings in jurisprudence went principally to the nature of justice and property, and are found nestled within broader topics in some of his major works. See A Treatise of Human Nature, supra note 26 at 477-573; An Enquiry Concerning the Principles of Morals, supra note 23 at 20-34,93-98. The second volume of his final work, Essays and Treatises on Several Subjects, addresses political philosophy generally, with some discussion of jurisprudential matters. See David Hume, Essays, Moral, Political, and Literary, E.F. Miller, ed., rev. ed. (Indianapolis, IN: Liberty Press, 1987) (orig. 1777).

46. Smith taught jurisprudence at Glasgow University for several years. Lecture notes from courses he taught during 1762-1764 have been retained and published. See Adam Smith, Lectures on Jurisprudence, R.L. Meek, D.D. Raphael, & P.G. Stein, eds. (Indianapolis, IN: Liberty Press, 1978) (orig. 1762-1766).

47. See Carl Joachim Friedrich, The Philosophy of Law in Historical Perspective, 2d ed. (Chicago: University of Chicago Press, 1963) at 154-64 (noting that the principal nineteenth century continental legal philosophers, especially Rudolph von Ihering and Rudolf Stammler, were neo-Kantians).

48. See J.M. Kelly, A Short History of Western Legal Theory (Oxford: Clarendon Press, 1992) at 287-90,313-20; O.F. Robinson, T.D. Fergus, & W.M. Gordon, An Introduction to European Legal History (Abingdon, UK: Professional Books, Ltd., 1985) at 414-16.

49. E.g., H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) at 126 (calling legal formalism a “vice”). Early in the twentieth century, critics often referred to legal formalism as an unrealistic “mechanical” jurisprudence. See, e.g., Roscoe Pound, “Mechanical Jurisprudence” (1908) 8 Columbia L. Rev. 605.

50. See, e.g., Everett V. Abbot, “Keener on Quasi-Contracts II” (1897) 10 Harv. L. Rev. 479 at 481-82.

51. See, e.g., Eugen Ehrlich’s book, Judicial Freedom of Decision: Its Principles and Objects in Science of Legal Method: Selected Essays by Various Authors, trans. E. Bruncken & L.B. Register (Boston: Boston Book Co., 1917) at 47, 65,73-74; Jerome Frank, Law and the Modern Mind (New York: Tudor Publishing Co., 1936) at 133-38.

52. See Ehrlich, Judicial Freedom of Decision: Its Principles and Objects, supra note 51 at 52-54; François Gény, Judicial Freedom of Decision: Its Necessity and Method in Science of Legal Method: Selected Essays by Various Authors, trans. E. Bruncken & L.B. Register (Boston: Boston Book Co., 1917) at 1,2.

53. Ehrlich, Judicial Freedom of Decision: Its Principles and Objects, supra note 51 at 72 (“No rule is just for all times.”).

54. See ibid, at 73.

55. See ibid, at 79 (“One of the duties of legal science is to examine the origin, nature, effect, and value of the tendencies that become apparent in legal decisions, and thus to furnish a picture of what is going on in the administration of justice and what the causes thereof may be.”).

56. Gény, Judicial Freedom of Decision: Its Necessity and Method, supra note 52 at 6.

57. Johann Georg Gmelin’s book, Dialecticism and Technicality: The Need of Sociological Method in Science of Legal Method: Selected Essays by Various Authors, trans. E. Bruncken & L.B. Register (Boston: Boston Book Co., 1917) at 85. Further citations to Dialecticism and Technicality in this Section shall appear parenthetically by page number in the text.

58. See ibid. (“The judge ought to perform his duty not with his head merely but also with his heart.”).

59. Ibid, at 89 (emphasis added).

60. Accord ibid, at 125 (“subjective or individual sense of justice”).

61. Ibid, at 125 (“all men in ordinary life draw their conclusions as to what is just from this inborn sentiment [of justice]”).

62. See ibid, at 88 (the sense of justice is “implanted in all of us”).

63. See ibid, at 125 (Noting that the sense of justice “may be increased and strengthened by practice and training,” and that the “calling [of the judge] makes it his duty to cultivate and develop this feeling in himself.”).

64. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at 112.

65. Ibid, at 114.

66. Ibid, at 35. Cardozo explained:

If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights.

Ibid, at 33-34 (quoting W.G. Miller, The Data of Jurisprudence (1909) at 335).

67. Joseph C. Hutcheson, Jr., “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision” (1929) 14 Cornell L.Q. 274 at 279.

68. Ibid, at 275 (emphasis added).

69. Ibid.

70. Ibid, at 277 (Claiming that that result “seems desirable to the judge which, according to his training, his experience, and his general point of view, strikes him as the jural consequence that ought to flow from the facts.”).

71. Ibid, at 278 (“For while the judge may be, he cannot appear to be, arbitrary. He must at least appear reasonable…”).

72. E.g., ibid, at 278 (“[W]hat gives the judge the struggle in the case is the effort so to state the reasons for his judgment that they will past muster.”); ibid, at 279 (Noting that once the judge ‘feels’ which result is just and right, he then “struggles to bring up and pass in review before his eager mind all of the categories and concepts which he may find useful directly or by analogy, so as to select from them that which in his opinion will support his desired result.”).

73. Ibid, at 278 (“[T]he judge really feels or thinks that a certain result seems desirable, and he then tries to make his decision accomplish that result.”).

74. Jerome Frank, Law and the Modern Mind, supra note 51 at 104; accord Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton, NJ: Princeton University Press, 1949) at 170. All further citations in this Section to Frank, Law and the Modern Mind shall be given parenthetically in the text as LMM, followed by the page number. References to Courts on Trial shall similarly appear in the text as CT, with page number.

75. Frank repeatedly emphasised that the judge’s personality is the most critical factor injudicial decision. See, e.g., Law and the Modern Mind, supra note 51 at 136 (“[N]ot the rules but the personalities of the judges are of transcendent importance in the working of the judicial process.”); ibid, at 138 (“Efforts to eliminate the personality of the judge are doomed to failure. The correct course is to recognize the necessary existence of this personal element and to act accordingly.”).

76. Accord Courts on Trial, supra note 74 at 412.

77. Brecht, The Caucasian Chalk Circle, supra note 1 at 80.

78. Hutcheson, An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 99; accord Hume, An Enquiry Concerning the Principles of Morals, supra note 23 at 15; Hume, A Treatise of Human Nature, supra note 26 at 470-76; Adam Smith, The Theory of Moral Sentiments, supra note 38 at 320-21.

79. E.g., Hutcheson, An Inquiry Concerning the Original of Our Ideas of Virtue or Moral Good, supra note 10 at 95-97.

80. E.g., Hume, An Enquiry Concerning the Principles of Morals, supra note 23 at 19,75-76.

81. See ibid, at 20.

82. Ibid, at 19.

83. See ibid, at 32 (“[PJroperty… is the object of justice.”) (emphasis added).

84. Ibid, at 27.

85. See ibid, at 28.

86. See Smith, The Theory of Moral Sentiments, supra note 38 at 340.

87. See Smith, Lectures on Jurisprudence, supra note 46 at 314.

88. See The Theory of Moral Sentiments, supra note 38 at 341.

89. Lectures on Jurisprudence, supra note 46 at 314.

90. See ibid, at 282, 315, 433-34.

91. See, e.g., ibid, at 314-15 and 434; The Theory of Moral Sentiments, supra note 38 at 340.

92. See Lectures on Jurisprudence, supra note 46 at 282-83, 314.

93. See Gmelin, Dialecticism and Technicality: The Need of Sociological Method, supra note 57 at 89.

94. See Hutcheson, supra note 67 at 277-78.

95. See Courts on Trial, supra note 74 at 17-24, 175-81.

96. Ibid, at 170-74, 183-84; Law and the Modern Mind, supra note 51 at 103-04, 145.

97. Courts on Trial, supra note 74 at 180.

98. See, e.g., ibid, at 176-81.

99. Ibid, at 173.

100. Ibid, at 174.

101. See, e.g., ibid, at 410-12; Law and the Modern Mind, supra note 51 at 133-43.

102. The essay question posed by the Royal Danish Society read:

Is the source and foundation of morality to be looked for in an idea of morality which lies immediately in consciousness (or conscience), and in the analysis of the other principal notions of morality springing from this, or is it to be sought in another ground of knowledge?

See Arthur Schopenhauer, On the Basis of Morality, trans. E.F.J. Payne, 2d ed. rev. (Providence, RI: Berghahn Books, 1995) (orig. 1860) at 37 (emphasis in original). All further citations to On the Basis of Morality in this Section shall appear parenthetically in the text as OBM, followed by the page number.

103. Schopenhauer appended the Judgement of the Royal Danish Society to his essay upon its later publication. See ibid, at 215-16. It reads in part:

[T]he author … has not satisfied us by the form of his essay, nor has he in point of fact shown that [his] foundation [of morality] is adequate…. Finally, we cannot pass over in silence the fact that several distinguished philosophers of recent times are mentioned in a manner so unseemly as to cause just and grave offense.

Ibid, at 216.

104. Increasingly isolated and resentful in his later years at the general lack of appreciation he received for his philosophical writings, Schopenhauer continued throughout his life to refer to On the Basis of Morality as his “prize essay.” See Arthur Schopenhauer, The Wisdom of Life and Counsels and Maxims, trans. T.B. Saunders (Amherst, NY: Prometheus Books, 1995) (orig. 1851) at 43.

105. Arthur Schopenhauer, The World as Will and Representation, 2 vols., trans. E.F.J. Payne, 3d ed. (New York: Dover Publications, 1969) (orig. 1859). Further citations to The World as Will and Representation in this Section shall appear parenthetically in the text as WWR, followed by volume and page number.

106. For a succinct and well-balanced account of Schopenhauer’s criticism of Kant, as well as the influence Kant’s ethics held for Schopenhauer’s work, see Christopher Janaway, Schopenhauer (Oxford: Oxford University Press, 1994) at 73-76.

107. See also Arthur Schopenhauer, On the Fourfold Root of the Principle of Sufficient Reason, trans. E.F.J. Payne (La Salle, IL: Open Court Publishing Co., 1974) (orig. 1813) at 146-54.

108. See also The World as Will and Representation, supra note 105 at 177 (Claiming that “the foundation of every man’s real wisdom and actual insight does not consist in concepts and in abstract knowledge, but in what is perceived, and in the degree of acuteness, accuracy, and profundity with which he has apprehended this.”); On the Fourfold Root of the Principle of Sufficient Reason, supra note 107 at 155 (“[E]very true and original piece of knowledge and every geniune [sic] philosopheme must have as their innermost kernel and root some intuitive apprehension.”).

109. Schopenhauer also called the cardinal virtue of loving-kindness “philanthropy”. See On the Basis of Morality, supra note 102 at 148, 151, 162.

110. See ibid, at 166 (Loving-kindness “happen[ed] on a large scale when, after long deliberation and difficult debates, the magnanimous British nation gave twenty million pounds to purchase the freedom of the Negro slaves in its colonies.”).

111. See ibid, at 152 (noting that as opposed to the legion of acts of justice or benevolence that are grounded in prudence or self-interest, genuinely worthy acts of justice or loving-kindness “always occur[] only as a surprising exception”).

112. Schopenhauer described eternal justice as that realm of justice that “rules not the State but the world; [that] is not dependent on human institutions, not subject to chance and deception, not uncertain, wavering, and erring, but infallible, firm, and certain.” The World as Will and Representation, supra note 105 at 1350. Characterizing it as philosophical, not mythical, he maintained that “eternal justice is actually to be found in the inner nature of the world,” ibid, at 1351, and as such is capable of being “known to everyone, at least as an obscure feeling.” Ibid, at I 357.

113. See Aristotle, Nicomachean Ethics, trans. M. Ostwald (New York: Macmillan Publishing Co., 1962) at 47 (“The righteously indignant man feels pain when someone prospers undeservedly…”).

114. Brecht, The Caucasian Chalk Circle, supra note 1 at 77.

115. Lectures on Jurisprudence, supra note 46 at 314 (emphasis added).

116. The Caucasian Chalk Circle, supra note 1 at 79.

117. Ibid. at 63.

118. Ibid. at 83.

119. See Schopenhauer, The World as Will and Representation, supra note 105 at 1355.

120. Ibid.

121. See “Leftists Converge on Bolivia to Remember Revolutionary Che Guevara” Idaho Spokesman-Review (Oct. 8, 1997) at A7.

122. Frank, Courts on Trial, supra note 74 at 173.

123. Gmelin, supra note 57 at 125.

124. Ibid, at 89 (emphasis added).

125. Frank, Courts on Trial, supra note 74 at 252.

126. See Ludwig Wittgenstein, Philosophical Investigations, trans. G.E.M. Anscombe, 3d ed. (New York: Macmillan Publishing Co., 1958) at §§ 68-71, 76-77; Wittgenstein, Philosophical Grammar, R. Rhees, ed. (Berkeley: University of California Press, 1974) at 112-14, 120.

127. Hutcheson, supra note 67 at 275.

128. William James, Pragmatism (Cambridge, MA: Harvard University Press, 1975) (1907) at 110.

129. Schopenhauer, On the Basis of Morality, supra note 102 at 120-21.