(6) Philosophy of Law


The History of Utilitarianism

Jeremy Bentham




 Justice, according to utilitarian’s, lies in the maximization of happiness. Most famously, Jeremy Bentham argued that, since in our daily lives, we strive to be happy and avoid pain, so too should society be structured to realize this objective:

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. . . . The principle of utility recognizes this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.

The determining factor is thus the outcome of our actions: do they make us happy or sad? Through the application of a ‘felicific calculus’, he argued, we can test the ‘happiness factor’ of any action or rule. Utilitarianism thus looks to the consequences of actions; it is therefore described as a form of ‘consequentialism’ which must be distinguished from deontological systems of ethics which hold that the rightness or wrongness of an action is logically independent of its consequences – ‘Let justice be done though the heavens fall!’ is one of its uplifting slogans.

It is important to note that utilitarian’s distinguish between ‘act utilitarianism’ (the rightness or wrongness of an action is to be judged by the consequences, good or bad, of the action itself ) and ‘rule utilitarianism’ (the rightness or wrongness of an action is to be

judged by the goodness or badness of the consequences of a rule that everyone should perform the action in like circumstances).

Generally, discussions of utilitarianism concern themselves with ‘act utilitarianism’, though legal theorists often appeal to ‘ideal rule utilitarianism’ which provides that the rightness or wrongness of an action is to be judged by the goodness or badness of a rule which, if observed, would have better consequences than any other rule governing the same action. This form of rule utilitarianism has clear advantages in circumstances where a judge is called upon to decide whether the plaintiff should be awarded damages against the defendant. He must obviously disregard the result of his judgment on the particular defendant.

Modern utilitarian’s tend to regard Bentham’s version of hedonistic act utilitarianism as rather quaint. Nor is there a great deal of contemporary sympathy for John Stuart Mill’s form of utilitarianism that distinguishes between higher and lower pleasures – implying that pleasure is a necessary condition for goodness, but that goodness depends on qualities of experience other than pleasantness and unpleasantness. This may be because both Bentham and Mill appear to substitute their own preferences for the preferences they believe people ought to have.

Contemporary utilitarian’s therefore talk of maximizing the extent to which people may achieve what they want; we should seek to satisfy people’s preferences. This has the merit of not imposing any conception of ‘the good’ which leaves out of account individual choice: you may prefer football to Foucault, or Motown to Mozart.

But this approach is afflicted with its own problems; see below. Utilitarianism has the considerable attraction of replacing moral intuition with the congenially down-to-earth idea of human happiness as a measure of justice. But the theory has long encountered resistance from those who argue that it fails to recognize the ‘separateness of persons’. They claim that utilitarianism, at least in its pure form, regards human beings as means rather than ends in them. Separate individuals, it is contended, are important to utilitarian’s only in so far as they are ‘the channels or locations where what is of value are to be found’. Secondly, opponents of utilitarianism claim that, though the approach treats individual persons equally, it does so only by effectively regarding them as having no worth: their value is not as persons, but as ‘experiencers’ of pleasure or happiness. Thirdly, critics query why we should regard as a valuable moral goal the mere increase in the sum of pleasure or happiness abstracted from all questions of the distribution of happiness, welfare, and so on. A fourth kind of attack alleges that the analogy used by utilitarian’s, of a rational single individual prudently sacrificing present happiness for later satisfaction, is false for it treats my pleasure as replaceable by the greater pleasure of others. Some have attacked the assumption at the very heart of utilitarianism: why should we seek to satisfy people’s desires? Certain desires – e.g. cruelty to animals – are unworthy of satisfaction. And are our needs and desires not, in any event, subject to manipulation by advertising? If so, can we detach our ‘real’ preferences from our ‘conditioned’ ones? Is it then acceptable for utilitarian’s to seek to persuade individuals to prefer Dworkin to Doo Wop? If so, how do we justify doing this? If we answer that the principle of utility requires us to do it, are we not suggesting that the felicific calculus includes not only what we want, but also what we may one day decide we want as a result of persuasion or re-education?

A different point is made by John Rawls who argues that utilitarianism defines what is right in terms of what is ‘good’. This means that the theory starts with a conception of what is ‘good’ (e.g. happiness) and then concludes that an action is right in so far as it maximizes that ‘good’.

Should we, in any event, seek to maximize welfare? Some consider it more important that welfare be justly distributed. Another target of critics is the intractable problem of calculating the consequences of one’s actions: how can we know in advance what results will follow from what we propose to do. And how far into the future do – or can – we extend the consequences of our actions?

There are obvious difficulties in attempting to weigh my pleasure against your pain. Similarly, on a larger scale, judges or legislators will rarely find it easy to choose between two or more courses of action, and sensibly balance the majority’s happiness against a minority’s misery.


Evaluating the consequences of our actions


I am stranded on a desert island with no one but a dying man who, in his final hours, entrusts me with $10,000 which he asks me to give to his daughter, Rita, if I ever manage to return to the United States. I promise to do so, and, after my rescue, I find Rita living in a mansion; she has married a millionaire. The $10,000 will now make little difference to her financial situation. Should I not instead donate the money to charity? As a utilitarian, I consider the possible consequences of my action. But what are the consequences? I must weigh the result of my broken promise against the benefit of giving the $10,000 to an animal welfare charity.

Would keeping my promise have better consequences than breaking it? If I break my promise, I may be less likely to keep other promises I have made, and others may be encouraged to take their own promise-keeping less seriously. I must, in other words, attempt to calculate all the likely consequences of my choice. But a non-consequentialist Kantian might argue that the reason why I should give the money to Rita is that I have promised to do so. My action ought to be guided not by some uncertain future consequence, but by an unequivocal past fact: my promise. My reply might be that I do consider the past fact of my promise – but only to the extent that it affects the total consequences of my action of giving the money to the charity instead of to Rita. I might also say that it is absurd to argue that I am obliged to keep every promise I make.


The economic analysis of law


Like utilitarianism, those who champion an economic analysis of law believe that our rational everyday choices ought to form the basis of what is just in society. Each of us, it is argued, seeks to maximize our satisfactions – and if it means paying for something that will achieve this objective, we are generally willing to do so. In other words, if I want a Ferrari badly enough, I will be prepared to find the money to buy one.

The leader of this latter-day form of economic hedonism is the jurist and judge Richard Posner (b. 1939). Although he denies that he espouses a utilitarian position, Posner maintains that a good deal of the common law can be explained as if judges were seeking to maximize economic welfare. In other words, many legal doctrines are based, often unconsciously, on judicial attempts to find the most efficient outcome. Judges, Posner claims, frequently decide hard cases by choosing an outcome which will maximize the wealth of society. By ‘wealth maximization’ Posner means a state of affairs in which goods and other resources are in the hands of those people who value them most; that is to say, those who are willing and able to pay more to have them.

To take a simple example, suppose you buy my copy of this book for $5. The highest price you were willing to pay was $10. Your wealth has therefore been increased by $5. Similarly, Posner argues, society maximizes its wealth when all its resources are distributed in such a way that the sum of everyone’s transactions is as high as possible.

This is, he claims, is exactly as it should be. Economic factors, Posner and his so-called Chicago School claim, explain several doctrinal developments of the law. For instance, in the law of negligence, liability generally depends on what is most efficient economically. The common law method is to allocate responsibilities between those engaged in interacting activities so as to maximize the joint value, or, what amounts to the same thing, minimize the joint cost of the activities. This is achieved by redefining a property right, or by devising a new rule of liability, or by recognizing a contract right. And Posner analyses several aspects of the common law in this manner.

Reading Posner’s prodigious writing does require a fair degree of familiarity with economic theory. In particular, he deploys various concepts of efficiency, especially that of Pareto optimality, and the Kaldor-Hicks test. The former (named after the Italian economist Vilfredo Pareto) describes a situation which cannot be altered without making at least one person worse off than he was prior to the change. A change is said to be Kaldor-Hicks efficient when the increase in value to those who gain exceeds the losses to those who lose. Both are measured in terms of readiness to pay. He applies also the concept of ‘diminishing marginal utility’ which refers to the fact that $1 given to an impoverished beggar would have a major effect on his wealth, whereas to a millionaire $1 would make almost no difference at all.

The celebrated Coase theorem (named after the economist Ronald Coase) postulates a situation in which one outcome is the most ‘efficient’. Real life may, however, be more complex than this simple example suggests. Certain costs would inevitably be incurred in this process.

The straightforward version of the Coase theorem may thus be stated as follows: where there are zero transaction costs, the efficient outcome will occur regardless of the choice of legal rule. What has any of the above to do with justice? It presumes an initial distribution of wealth which may be wholly unjust. ‘Efficiency’ is an instrument by which to maintain existing inequalities. In other words, is the economic analysis of law little more than a particular ideological predilection that fortifies the capitalist, free-market system?

More fundamentally perhaps, can wealth maximization plausibly be equated with justice? It is doubtful whether wealth maximization is a value – in itself or instrumentally – that a society would consider worth trading off against justice. Many would doubt whether increasing social wealth would really improve society, or suggest that our desires are more complex than Posner claims.


Justice as fairness


A Theory of Justice by John Rawls (1921–2002) is widely regarded as a tour de force. It expounds the concept of justice as fairness, and has – justly – become the focal point for contemporary discussions of the subject.

The idea of justice as fairness may, at first blush, strike you as trite. But, in dismissing utilitarianism as a means of determining justice, Rawls rejects the very idea of inequality – even if it secures maximum welfare. Welfare, he argues, is not about benefits, but ‘primary social goods’ which includes self-respect. In particular, he contends that questions of justice are prior to questions of happiness. In other words, it is only when we regard a particular pleasure as just that we can judge whether it has any value. How can we know whether the gratification Tom derives from torture should be counted as having any value before we know whether the practice of torture is itself just? Put another way, utilitarianism defines what is right in terms of what is good, while Rawls considers what is right as prior to what is good.

In A Theory of Justice, he expresses the objective of his project as carrying the social contract to a higher level of abstraction. To do so, he argues, we are to think not that the original contract as one to enter a particular society or to set up a particular form of government, but that the principles of justice for the basic structure of society are the object of the original agreement. They are the principles that free and rational persons seeking to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles regulate all further agreements; they specify the types of social cooperation and the forms of government that can be established. This manner of treating the principles of justice he calls justice as fairness.

He stresses the need to distinguish between people’s genuine judgments about justice and their subjective, self-interested intuitions. The inevitable distinction between the two must be adjusted by re-examining our own judgments so that we ultimately reach a state of affairs in which our considered intuitions are in harmony with our considered principles. This is the position of ‘reflective equilibrium’.

Rawls presents an imaginary picture of the people in the ‘original position’, shrouded in a ‘veil of ignorance’, debating the principles of justice. They do not know their gender, class, religion, or social position. Each person represents a social class, but they do not know whether they are intelligent or dim, strong or weak, or even the country or period in which they are living. And they have only certain elementary knowledge about the laws of science and psychology.

In this state of almost perfect ignorance, they are required unanimously to choose the general principles that will define the terms under which they will live as a society. In this process they are motivated by rational self-interest: each seeks those principles which will give him or her (but they are unaware of their gender!) the greatest opportunity of accomplishing his or her chosen conception of the good life. Stripped of their individuality, the people in the original position will select, says Rawls, a ‘maximin’ principle which is explained by Rawls’s own gain and loss table (slightly adapted).

I am faced with a choice from a number of several possible circumstances. Suppose I choose D1, and C1 occurs. I will lose $700. But if C2 occurs, I will gain $800 and, if I am really fortunate and C3 occurs, I will gain $1,200. And the same applies in the case of both decisions D2 and D3. Gain g therefore depends on the individual’s decision d and the circumstances c. Thus g is a function of d and c. Or, to express it mathematically g = f (d, c).

What would I choose? The ‘maximin’ principle dictates that I opt for D3. In this situation the worst that can happen to me is that I gain $500, and this is clearly better than the worst for the other actions (in which I stand to lose either $800 or $700).

Exercising their choice, the people in the original position, as rational individuals, would also select principles that ensure that the worst condition one might find oneself in, when the veil of ignorance is lifted is the least undesirable of the available alternatives. In other words, I will select those principles which, if I happen to end up at the bottom of the social order, will be in my best interests. Similarly, Rawls argues, the people in the original position will choose the following two principles.

[1] Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

[2] Social and economic inequalities are to be arranged so that they are both:

(a) To the greatest benefit of the least advantaged, consistent with the just savings principle, and

(b) Attached to offices and positions open to all under conditions of fair equality of opportunity.

The first principle has what Rawls calls ‘lexical priority’ over the second. In other words, the people in the original position place liberty before equality. Why? Because of the ‘maximin’ strategy, described above, no one wants to risk his or her liberty when the veil of ignorance is lifted – and it is revealed that they are among the least well-off members of society!

Similarly, each will opt for clause (a) of the second principle, the so-called ‘difference principle’. This ensures that the worst anyone could be is ‘least advantaged’ and, if they do end up as members of this group, they will benefit from this clause. It would be entirely rational to choose this principle – rather than either total equality or some form of greater inequality – because of the respective risks of being worse off or reducing the prospects of improving their lot.

And, in a society that puts liberty above equality, they will be in a better position to improve their lot. Why? Because various ‘social primary goods’ (which Rawls defines to include rights, liberties, powers, opportunities, income, wealth, and especially self-respect) are more likely to be attained in a society that protects liberty.

Rawls argues that the people in the original position will select the difference principle because neither of its two principal competitors (the ‘system of natural liberty’ and the idea of ‘fair equality of opportunity’) offers them the prospect of prosperity should they turn out to be among the least advantaged. The former corresponds to an uncontrolled, free-market economy indifferent to wealth distribution. The people in the original position would jettison this principle, he claims, because it ‘permits distributive shares to be improperly influenced by . . . factors so arbitrary from a moral point of view’. They would regard the accident of being born into an affluent family as morally irrelevant.

They would spur the second arrangement even though it is plainly preferable to the first. While it rewards natural talent and its application, this system suffers from a similar deficiency: it attaches moral relevance to individual talent, but this is no less accidental than being the offspring of a millionaire. In neither situation, do accidents of birth have any association with desert. If they choose the difference principle, however, it guarantees that talented individuals may increase their wealth only if, in the process, they also increase the wealth of the least advantaged.

Note that Rawls’s second principle includes two significant limitations to secure the interests of the least advantaged. First, he introduces the ‘just savings principle’ which requires the people in the original position to ask themselves how much they would be willing to save at each level of the advance of their society, on the assumption that all other generations will save at the same rate.

Remember that they have no idea which stage of civilization their society has reached. Consequently they will save some of their resources for future generations. The second limitation refers to the fact that jobs should be available to all. Rawls’s project is a highly ambitious one and, while it has won enormous praise and generated a huge literature, critics have, not surprisingly, expressed reservations about several features of his theory. For example, some oppose the very idea of any patterned distribution of social goods. Others attack the ‘original position’ as artificial (can people really be wholly stripped of their values?) or as necessarily producing the result that Rawls postulates: why should they prefer liberty to equality? In response to some of this criticism, Rawls published in 1993 another book, Political Liberalism, in which he refines and modifies a number of his original ideas. I cannot here analyze the plethora of critical debate, but an important misunderstanding is clarified in this later work. Rawls explains that ‘justice as fairness’ is not intended to provide a universal standard of social justice. His theory is a practical one that pertains to modern constitutional democracies. His is, in other words, a political and practical – rather than a metaphysical – conception of justice, philosophically neutral, that transcends philosophical argument.

In pursuit of what he calls an ‘overlapping consensus’, Rawls posits his principles of justice as the terms under which members of a pluralistic, democratic community with competing interests and values might achieve political accord. His conception of political liberalism acknowledges that this consensus may be challenged by a state’s establishment of a shared moral or religious doctrine. But the community’s sense of justice would prevail over the state’s interpretation of the public good.


A factory emits smoke which causes damage to laundry hung outdoors by five nearby residents. In the absence of any corrective measures, each resident would suffer $75 in damages, a total of $375. The smoke damage may be prevented in one of two ways: either a smoke-screen could be installed on the factory’s chimney, at a cost of $150, or each resident could be provided with an electric tumble-drier at a cost of $50 per resident. The efficient solution is obviously to install the smoke-screen since it eliminates total damage of $375 for an outlay of only $150, and it is cheaper than purchasing five electric driers for $250. Would the outcome be efficient if the right to clean air were assigned to the residents or if the right to pollute is given to the factory? In the case of the former, the factory has three choices: pollute and pay $375 in damages, install a smoke-screen for $150, or buy five tumble driers for the residents at a total cost of $250. The factory would, naturally, install the smoke-screen: the efficient solution. If there is a right to pollute, the residents have three choices: suffer their collective damages of $375, buy five driers for $250, or buy a smoke-screen for the factory for $150. They, too, would choose to buy the smoke-screen. The efficient outcome would therefore be achieved regardless of the assignment of the legal right.


This assumption is based on the view that the residents would incur no costs in coming together in order to negotiate with the factory. Coase calls this ‘zero transaction costs’.




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