James Robson

Jurisprudence Essay 1

Can Utilitarianism Satisfactorily Account for our Intuitions About Rights? Does it need to?
Utilitarianism is a consequentialist ethical theory which (at its most basic level) states that pleasure and pain are the indicators of moral rightness and wrongness. Not only that but, as J.S. Mill stated in his Utilitarianism1, pleasure and freedom from pain are the only things that are desirable as ends in themselves. Utilitarians (such as Jeremy Bentham2) view the principle of utility as being of absolute value. This has recently come into clash with a conception of individual rights because utilitarianism is always willing to value the happiness (or utility) of the aggregate community over that of the individual. Thus in this essay I will argue that utilitarianism cannot satisfactorily account for our intuitions about rights because, as H.L.A. Hart3 points out, utilitarianism refuses to acknowledge individual persons and therefore I propose it cannot account for a language of rights. I will also argue that utilitarianism has no reason to concern itself with rights because that is not the aim of the ethical theory, but that some critics (myself included) would consider that then it would be a theory lacking in respect for human individuals and values. I will concede that rule-utilitarianism could contain a conception of rights but I will argue David Lyons4 point and state that this will inevitably collapse into act utilitarianism and thus become a theory that does not support a rights based conception. Within this essay I shall define the notion of rights as being the moral (natural) rights of individual sentient beings such as the right to life, liberty, etc. First I will argue that utilitarianism ignores the moral importance of the separateness of individuals. If this is true it will mean that utilitarianism cannot even begin to have a language of rights let alone satisfactorily account for our intuitions about them. Hart5 suggest some modern criticisms of utilitarianism. The first is that under classical utilitarianism, separate individuals are of no intrinsic importance and the only important thing is that some sentient being experiences the happiness or the pain. As a result this means that individuals are only empty vessels of moral good or bad; being merely the locations of where this takes place. Yet in contrast, our intuitions about rights state that individuals have constant rights that are independent of calculations of utility and that human beings are not simply vehicles of pleasure and pain but holders of rights. The second criticism is that utilitarianism treats people as having the same equal worth of zero. It matters not to the utilitarian if someone dies or is tortured if no pain or happiness is experienced by that person or by auxiliary persons. This utilitarianism equality means that while the experiences of utility by each person are viewed equally, the rights of the individual are ignored. This goes against a common conception of rights, which generally states that individuals have inherent worth which is reflected through the holding of rights. What these criticisms tell us about utilitarianism is that it cannot begin to account for a conception of rights because it does not value anything above the primary principle of utility. Of course there could be postulates of rights proved by positive law. Bentham himself argued that the idea of a right not created by positive law was a contradiction in terms6. There are no rights anterior to law and no rights contrary to law. Mill7 stated that rights are a secondary principle from that of utility and that Bentham8 was wrong in his overly zealous dismissal of rights as nonsense upon stilts; but I argue that Mill was being myopic in his conception of rights. To have a right secured by the higher principle of utility is not a right at all. It is a postulate that is attempting to achieve the highest level of utility. Because the right is not an absolute then it can always be overridden by the utility principle. For example, how could Mill argue that utilitarianism could secure the right to liberty of person X when if by locking up X it would generate net happiness experienced by Y? Thus because utilitarianism seeks happiness as the only thing desirable as an end in itself as opposed to human value or integrity then I argue that utilitarianism cannot have a conception of rights and thus cannot satisfactorily account for any intuitions about rights.

James Robson

Jurisprudence Essay 1

Secondly I will argue that utilitarianism produces hypothetical examples that do not fit comfortably with most peoples intuitions on rights and therefore this means the theory does not satisfactorily account for them. For example, it would be perfectly in line with the principle of utility and morally correct to allow ten sadistic prison guards to torture one innocent prisoner so long as the pleasure that the ten guards derive from the torture outweighs the pain experienced by the prisoner. I propose that this would go against most peoples intuitions about the moral right not to be subject to torture. The problem utilitarianism has here is its consequentialist basis. Utilitarianism, by defining acts by their consequences as opposed to defining the acts by the acts themselves, goes against common intuitions that states that some actions (such as freedom from torture for the gratification of the torturers) are always morally wrong. Another ramification of this consequentialist stance is that it undermines the stability of rights. As far as general intuitions about rights go, the right to life or the right to freedom of speech are not rights that exist on Monday and do not exist on Tuesday. These rights are intuitively perceived to exist at all times. However utilitarianism would be willing to sacrifice these rights at one point for utility and at other times, to enforce these rights when they are in line with the principle of utility. Bernard Williams9 has advanced a theory stating that utilitarianism does not satisfactorily account for the right of people to their own integrity. His famous example of Jim and the Indians; a scenario simple where a man named Jim can either choose to act positively to kill one Indian to save twenty Indians, or omit to act and allow twenty Indians to die as a result of his refusal to murder one Indian. In this case, simple act-utilitarianism would condone anything other than Jim actively killing the one Indian, but Williams argues that utilitarianism reduces people to nothing other than empty vessels (much like Harts criticism above, where sentient beings are merely loci for where pleasure and pain are experienced) and that it ignores the distinction between consequence X occurring out of an omission to do an act and consequence X occurring out of a positive action by Jim. Williams states that it would be misleading to think of Jim as having an effect on the world through the medium of the person who chooses to kill the twenty Indians. It is better to think of the situation as the killer looking to realise his projects through Jims refusal. I think that this is a good critique of utilitarianism and it also highlights the inadequacy in the theory in its regard for respect for peoples intuitions about rights to integrity and self-determination. A utilitarian might argue that J.S. Mill advanced a different strand of utilitarianism to that of classical utilitarianism, which would not be subject to all of the above criticisms. Mill proposed ruleutilitarianism, which derives general rules to be followed from the higher principle of utility. Mill thus said that rights could have a place within the utilitarian framework through rules such as deciding that the right not to be tortured would generate the greatest happiness. However I argue that ruleutilitarianism would still not account for general intuitions about rights because it still only addresses rights from a utility perspective. Rule-utilitarianism could ignore or bypass a key right because it was calculated not to generate maximum utility and as such it would not satisfactorily account for general intuitions about rights. Furthermore, David Lyons10 has argued that rule-utilitarianism will collapse into act-utilitarianism because whereby breaking a rule (R) more utility is created; Lyons argues that this merely leads to the creation of a sub-rule (R1) to handle that particular circumstance. This logic holds for all cases of exceptions and as a result the rules cease to have any authoritative, binding presence and the theory collapses back into act-utilitarianism. As a result of these criticisms it is clear that utilitarianism does not have the capacity to account for our intuitions about rights.

3 Finally, does utilitarianism need to account for our intuitions about rights? This question can be interpreted in two distinct ways. The first being a question of whether utilitarianism itself requires to satisfactorily account for our intuitions about rights in order for it to be a cogent ethical theory. The second is whether or not utilitarianism, as an ethical theory, should account for our intuitions about rights. As regards to the first interpretation; I argue that utilitarianism does not require a conception of rights for it does not view anything other than the principle of utility as being an end in itself. Also, one should bear in mind that Benthamite utilitarianism (amongst other forms of utilitarianism) was formulated with an aim to be applied from a governmental perspective. Bentham11 himself wrote that the only proper and correct aim of government was to seek the greatest happiness of the greatest number. Utilitarianism is well formulated to care for the needs of a society but as numerous critics point out (such as Williams12 or Rawls13), utilitarianism does not recognise any inherent worth or value in a single person. This makes the theory useful for ticking time bomb situations and other situations where our intuitions suggest to us that it would be better for one person to die than millions to die and therefore from a government perspective, where it pays regard to the aggregate as opposed to the individual, utilitarianism need not satisfactorily account for our intuitions about rights.
James Robson Jurisprudence Essay 1

However in respect of the second interpretation, I argue that utilitarianism is deficient as an ethical theory in itself because it has no respect for the person. Utilitarianism creates black and white situations in which intuitions about rights surface. For example, ten sadistic prison guards torturing one prisoner to derive more utility than the prisoner derives disutility or where one psychopath murders another person to derive more utility than the victim derives disutility. These are clearly situations where intuitions about rights step in and feel that utilitarianism does not produce a morally correct result. I propose that the quantitative formulation utilitarianism adopts is not incorrect, but that it must have a certain respect for some basic rights and for those rights to be comparable. For example, I would argue that it is morally correct (independent of the principle of utility) to kill/allow one person to die to save one million. This is because of the comparable the right to life of one person versus one million peoples right to life. However in the situation of the sadistic guards the right to gain pleasure from torture would never amount to or have the capacity to outstrip the right to freedom from torture. Thus utilitarianism, in paying sole attention to the maximisation of utility, is a deficient ethical theory in respect of adhering to respect for rights of persons, which I view as being an important aspect of any normative ethical theory. Word Count: 1,964
J.S. Mill Utilitarianism 2nd ed. Hackett Publishing Company Inc. 2001 J. Bentham An Introduction to the Principles of Morals and Legislation http://www.utilitarianism.com/jeremybentham/index.html 3 H.L.A. Hart, Essays in Jurisprudence and Philosophy, Clarendon Paperbacks OUP 1983 4 D. Lyons: Forms and Limits of Utilitarianism, 1965 5 Ibid 3 6 Jeremy Bentham, Supply Without Burthen Hart p. 185 7 Ibid 1 8 Harrison, Ross (1995) Jeremy Bentham. In Honderich, Ted. The Oxford Companion to Philosophy. OUP pp. 85-88. 9 J.J.C. Smart and B. Williams: Utilitarianism: For & Against, Cambridge University Press (2008) pp.93 - 108 10 Ibid 4 11 Ibid 2 12 Ibid 9 13 John Rawls, A Theory of Justice (revised ed.), Harvard University Press (2003)
1 2