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Indirect Utility and Fundamental Rights

Published online by Cambridge University Press:  13 January 2009

John Gray
John Gray
Affiliation:
Politics, Jesus College, Oxford University
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Extract

A TRADITIONAL VIEW OF UTILITY AND RIGHTS

According to a conventional view, no project could be more hopelessly misconceived than the enterprise of attempting a utilitarian derivation of fundamental rights. We are all familiar – too familiar, perhaps – with the arguments that support this conventional view, but let us review them anyway. We may begin by recalling that, whereas the defining value of utilitarianism – pleasure, happiness or welfare – contains no mention of the dignity or autonomy of human beings, it is this value which utilitarianism in all its standard forms invokes as the criterion of right action. Worse, insofar as utilitarian policy must have as its goal the maximization of welfare conceived as an aggregate summed over the utilities of everyone affected, legal and political utilitarianism seems bound to have a collectivist bias, trading on the dangerous fiction of a social entity and ignoring the distinctness of separate selves with their several incommensurable claims.

It seems that, if individuals can appear in the utilitarian calculus at all, it will only be as ciphers, abstract place-holders for units of welfare. For, as an aggregative value, utility must be indifferent to distribution, and insensitive to the preeminently distributive considerations marked by claims about rights. So, if whatever has utility can be broken down into units or elements which are subject to measurement or at least comparison by a common standard, then it will always be possible that a very great loss of welfare for one man or a few men can be justified if it produces a great many small increments of welfare for a vast multitude of men.

Type
Research Article
Information
Social Philosophy and Policy , Volume 1 , Issue 2 , Spring 1984 , pp. 73 - 91
Copyright
Copyright © Social Philosophy and Policy Foundation 1984

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References

1 See Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977Google Scholar), Chapter Twelve.

2 See Hare, R. M., “Ethical Theory and Utilitarianism”, in Contemporary British Philosophy 4, ed. Lewis, H. D. (London: Allen & Unwin, 1976Google Scholar) and more recently, Hare's, Moral Thinking (Oxford: Clarendon Press, 1981)CrossRefGoogle Scholar.

3 Hume, David, A Treatise of Human Nature, Book Three, Part Two, Section II, 547 (Pelican, ed.: London, 1969)Google Scholar.

4 A Treatise of Human Nature, Book Three, Part Two, Section VI, 5.

5 A Treatise of Human Nature, 548–549.

6 David Hume, An Enquiry Concerning The Principles of Morals, Appendix III. See 179–280 of Essential Works of David Hume, ed. R. Cohen (New York: Bantan Books).

7 A System of Logic, Bok 6, Chapter 12. I have examined Mill's indirect utilitarianism in much greater detail in my paper “ J. S. Mill on liberty, utility and rights ”, which appears in Nomos XXIII eds. J. Roland Pennock, J. W. Chapman (New York: New York University Press). A complete statement of my interpretation of Mill on liberty and utility appeared in February 1983 as Mill On Liberty: A Defense (London: Routledge and Kegan Paul, International Library of Philosophy Series).

8 Henry Sidgwick, The Methods of Ethics (London: Macmillan, 1893), 487–489.

9 Sidgwick, Methods of Ethics, 489.

10 I refer especially to Hodgson's, D. H. pioneering Consequences of Utilitarianism (Oxford: Clarendon Press, 1967).Google Scholar A good guide to this area is Regan's, D. H. excellent Utilitarianism and Cooperation (Oxford: Clarendon Press, 1980)CrossRefGoogle Scholar.

11 See G. J. Warnock, The Object of Morality, 31, 24.

12 Hodgson, op-cit. footnote 10 above.

13 On this, see several useful references in Mackie's Ethics: Inventing Right and Wrong, bibliographical notes.

14 See especially, Rees's, J. C. contribution, “A Re-reading of Mill on Liberty”, Political Studies 8 (1960): 113–129CrossRefGoogle Scholar, reprinted with an important postscript (1965) in Radcliff, P. (ed.), Limits of Liberty, (Belmont, CA: Wadsworth, 1966) 88–107.Google Scholar See also Brown, D. G., “Mill on Liberty and Morality,” Philosophical Review 81 (1972): 133–158CrossRefGoogle Scholar; Brown, D. G., “What is Mill's Principle of Utility?”, Canadian Journal of Philosophy, 3 (1973): 1–12CrossRefGoogle Scholar; Brown, D. G., “Mills Act-Utilitarianism,” Philosophical Quarterly, 24 (1974): 67–68CrossRefGoogle Scholar; Brown, D. G., “John Rawls: John Mill,” Dialogue, 12 (1973)CrossRefGoogle Scholar: No. 3; Brown, D. G., “Mill on Harm to Others' Interests,” Political Studies, 26 (1978): 395–399CrossRefGoogle Scholar.

For Lyons', David cotributions, see his “Mill's Theory of Morality,” Nous, 10 (1976): 101–120CrossRefGoogle Scholar; Lyons', David “Human Rights and the General Welfare,” Philosophy and Public Affairs, 6 (1977): 113–129.Google Scholar His recent paper, “Mill's Theory of Justice,” which appears in Goldman, A. I. and Kim, J. (eds.), Values and Morals (Dordrecht, D. Reidel Publishing Company, 1978), 1–20CrossRefGoogle Scholar; and his Lyons', David “Mill on Liberty and Harm to Others,” Canadian Journal of Philosophy, Supplementary Volume V (1979): 1–19CrossRefGoogle Scholar, are also important sources. Of crucial importance in developing the interpretation of Mill as an indirect utilitarian is Wollheim's, Richard “John Stuart Mill and Isaiah Berlin: the Ends of Life and the Preliminaries of Morality,” in Ryan, Alan (ed.), The Idea of Freedom (Oxford: Oxford University Press, 1979), 253–269Google Scholar, and Wollheim's The Sheep and the Ceremony: The Leslie Stephen Lecture, 1979 (Cambridge: Cambridge University Press), 28–33.

An extremely valuable source of recent interpretations is Cooper, W. E., Kai, Nielson, Patten, S. C. (eds.), New Essays on John Stuart Mill and Utilitarianism, published as Supplementary Volume V (1979)Google Scholar, Canadian Journal of Philosophy, in which the papers by David Lyons, J. P. Dryer, David Copp L. W. Sumner and Fred Berger are particularly noteworthy.

15 I employ the term “perfectionist” here in Rawls's sense. For an argument that J. S. Mill espoused a perfectionist morality, see Haksar, V., Equality, Liberty and Perfectionism (Oxford: Clarendon Press, 1979)Google Scholar.

16 Mill's argument was disputed on grounds of psychological realism by James Fitzjames Stephen in his Liberty, Equality, Fraternity (Cambridge: Cambridge University Press, 1967).

17 See Robert Nozick, Anarchy, State and Utopia, 30 et seq.

18 Leibnitz's notion of compossibility is used in the content of rights theory by Steiner, Hillel in his “The Structure of a Set of Compossible Rights” Journal of Philosophy 74 (1979), 767–775CrossRefGoogle Scholar.

19 This latter point is made by Sen, A. K. in his “Utilitarianism and Welfarism”, Journal of Philosophy 74 (1979): 463–488CrossRefGoogle Scholar.

20 See especially Sen's, “Plural Utility”, Proceedings of the Aristotelian Society, 1980/1981Google Scholar.

21 I have in mind here, especially, Bernard Williams as an important sceptic about the systematizing aspirations of moral theory. See Williams', Problems of the Self (Cambridge: C.U.P., 1973)CrossRefGoogle Scholar and Williams', Moral Luck (Cambridge: C.U.P., 1981)CrossRefGoogle Scholar.

22 For their comments on a previous draft of this paper, I am indebted to David Gordon, Lester Hunt, Loren Lomasky, Murray Rothbard, Douglas Rasmussen, Jeremy Shearmur, Henry Veatch, and the participants in the Conference on Human Rights held at the Social Philosophy and Policy Center at Bowling Green, October 7–8, 1982. I am particularly grateful to my commentator, Prof. Robert Kocis, for his profound and subtle criticisms of my paper. I wish finally to thank Professor R. M. Hare for his detailed comments on my paper, and for his encouragement of the enterprise it attempts. None of those I have here acknowledged as helpful to me has any responsibility for my final argument.