🪴 Oak Hu

W5: Justice & Rights

13 min read

Justice & Rights

Is Mill’s utilitarianism capable of satisfying our intuitions about justice and rights? If not, does it matter?

(January 2025): Since writing, I’ve become much more sympathetic to a sort of objective-list theory, and slightly less sympathetic to sophisticated subjectivism (think Railton); so, I’d probably change some of the wording / framing. But I do think that consequentialism more broadly isn’t as counterintuitive as you’d initially think! Obviously, there’s the worry that consequentialists may pursue a degenerating research program of adding epicycles to accommodate unfriendly intuitions (something like this, I think, is a problem with sophisticated subjectivisms). But I don’t think this holds.

If our pretheoretic intuitions are inconsistent, no ethical theory can satisfy all of them, and so it is no problem if Mill’s utilitarianism in particular cannot.1 However, Mill’s utilitarianism might not satisfy our refined intuitions nearly as well as competing ethical theories do; if so, this would count against it. I take the conceptions of justice and rights defended by Rawls and Nozick respectively to be the most threatening for Mill, so I address those here:

Justice, broadly, ‘gives each person his due’ both in a distributive sense (which may include basic rights due to all) and in a retributive sense. Justice is also intrinsically, not just instrumentally, valuable. Naive utilitarianism does not treat justice as an intrinsic good; it places no inherent value on how happiness is distributed or whether wrongdoers are punished. In fact, the suffering of wrongdoers is bad, and their happiness is good.

Rights do not merely take lexical priority over other considerations. They represent side-constraints: I cannot violate someone’s rights even to minimize overall rights-violations. Naive utilitarianism allows no side-constraints to the greatest happiness principle, so it outright rejects this core intuition.

I argue that Mill’s utilitarianism does much better than this naive picture suggests, and that it is capable of satisfying our intuitions about justice and rights. In particular, given a reading (MU) which takes Mill seriously about higher pleasures, competent judges, and secondary rules, Mill’s utilitarianism does satisfy these intuitions.

Intrinsic Value

Under MU (emphasis mine),

the ultimate end… is an existence exempt as far as possible from pain, and as rich as possible in enjoyments, both in point of quantity and quality.

Quality is determined by ‘the majority among’ competent judges, who

give a most marked preference to the manner of existence which employs their higher faculties… no intelligent human being would consent to be a fool. These higher faculties are employed in the moral faculty: By virtue of his superior intelligence, even apart from his superior range of sympathy, a human being is capable of apprehending a community of interest between himself and the human society of which he forms a part.

Finally, Mill takes

the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality.

So, the ultimate end of MU is an existence which employs the higher faculties, such as the moral faculty; and to employ the moral faculty means chiefly to act justly. Similarly, enjoyments which require one to understand the concept of justice (e.g., the satisfaction of knowing that I’ve been treated justly) require the higher faculties, and thus are also higher pleasures with intrinsic value. Note that what’s important is the manner of existence, e.g. being an intelligent person or being a fool, rather than merely feeling intelligent or feeling foolish. So, it’s not enough that people are deceived into believing that they’ve been treated justly, or are treating people justly. So, under MU, justice (in particular, an existence which involves justice) has intrinsic value in addition to its instrumental value.2

This intrinsic value is sensitive to our intuitions about it, and rightly so.3 Suppose that all Martians are well-acquainted with both (Earthling) justice and injustice, and all strongly prefer the latter (both treating others unjustly and being treated unjustly). Then the above argument would fail to establish the intrinsic value of justice among Martians, since justice would not be preferred by a majority of competent Martian judges. Justice among Martians would not be intrinsically valuable. In fact, the above argument would show that injustice among Martians is intrinsically valuable (as it would by preferred by a majority of competent Martian judges). But this is a point in favor of MU. Intuitively, it seems too chauvinistic for us to maintain that (Earthling) justice among Martians is intrinsically valuable. MU gives justice intrinsic value in accordance with the value placed on it by a majority of competent judges. These judgements are precisely the refined intuitions that need to be satisfied.

Distributive Justice

Rawls’ difference principle requires that inequalities must be ‘to the greatest expected benefit of the least advantaged’. As Parfit argues, this implies that given the following choices in treating one thousand moderately sick patients and one extremely sick patient Blue, it would be better for Blue to live to 26 and the thousand others to 30 than for Blue to live to 25 and the thousand others to live to 80. Since this seems like the wrong answer, our intuitions about distributive justice are, intuitively, easier to override than Rawls would have it. His theory of justice, if applied to morality generally, is calibrated too far toward egalitarianism. Thus, it could be a mark in favor of MU if it trades off intuitions in favor of distributional justice more than the difference principle does: the extent to which intuitions supporting distributive justice can be overridden is itself an intuition about distributive justice which would be better satisfied.

Naive utilitarianism already satisfies some of our intuitions about distributive justice by appealing to considerations such as diminishing marginal utility.4 An extra thousand dollars yields far more pleasure for the beggar than for the billionaire. More generally, it’s plausible that the pleasure than anyone gets from an additional amount of some good is a decreasing function of how much they already have. This means that if we have a fixed amount of some good with diminishing marginal utility, distributing it equally maximizes utility.

However, diminishing marginal utility and fixed amounts of goods are assumptions that might not always obtain. Under MU, we can get substantially more support for distributively just outcomes by appealing to higher pleasures about treating others justly and being treated justly. Thus, MU calibrates distributional outcomes precisely to the preferences of competent judges, i.e., to our intuitions about distributive justice. It trades off equality precisely when it would be overall better to do so, with not only the instrumental but also the intrinsic benefits of equality taken into account.

This, of course, still allows situations that resemble Nozick’s description of a utility monster. But if these are restricted by, e.g., any potential higher-order objections to being treated unjustly, then the resulting cases might not be so unintuitive. For instance, if a great-grandmother has (among many other heirlooms) a chess set and 32 great-grandchildren (two of whom love to play chess), it’s plausibly better to gift that pair the full chess than to gift them (and 30 other children) a single chess piece each.

Retributive Justice

Next, Mill writes that

We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it.

This seems in line with our intuitions about retributive justice. But for Mill, justice ‘implies something… which some individual person can claim from us as his moral right.’ If such punishment involves pain (e.g., ‘the reproaches of his own conscience’) without yielding further pleasure, then MU seems committed to judging it bad. So, for MU to fulfill our intuitions about retributive justice in the case of wrongdoing, it must be that (a) there is someone who can claim the punishment as a moral right, and (b) the punishment is not overall bad. An initial response is that victims of wrongdoing fulfill (a), and that their satisfaction outweighs the wrongdoer’s suffering to fulfill (b). But Crisp raises the especially problematic case of victimless crimes such as insider dealing. Here are three responses.

Firstly, any truly victimless crime is not actually wrong under MU: if nobody is made worse off by some act, then is not bad and therefore not wrong. Insider trading harms one’s competitors, and thus is not victimless. Punishment in the case of a genuinely victimless crime would satisfy neither (a) nor (b), but this is because such a crime would not merit retribution!

The second response is that the wrongdoer is the individual who can claim their own punishment as a moral right, satisfying (a). Crisp finds this absurd. But it’s plausible that, e.g., the punishment helps the wrongdoer to become once more capable of the higher pleasure of acting morally. Thus the bad of the punishment is outweighed by the good for the wrongdoer, satisfying (b).

The final response is that those who act rightly are the individuals who can claim the wrongdoer’s punishment as a moral right, satisfying (a). For the higher pleasure of acting rightly to exist, there must be some conception of acting wrongly. So, more carefully, their moral right is the avoidance of punishment, which is only meaningful if they would have otherwise received punishment. Without punishment, the wrongdoer would effectively receive better treatment. The punishment for wrongdoing (or at least the potential punishment for potential wrongdoing, if we have full compliance) is bad, but overall balanced by the fact that it gives meaning to doing right, satisfying (b).

So, MU endorses punishment for wrongdoing and thus satisfies our intuition about retributive justice. However, there is a worry that some of the responses prove too much: is it really the case that satisfaction at someone’s suffering can outweigh the suffering itself, in any circumstance? If so, MU seems to endorse, say, combat between unwilling gladiators for the enjoyment a sufficient numbers of sufficiently sadistic spectators.

Rights as Side-Constraints

An appeal to a higher pleasure (e.g., the satisfaction of knowing that my rights have been respected) might establish the lexical priority of rights. After all, it seems as though given the choice between this and any other pleasure, most competent judges would choose this. This means that one can’t violate rights for any other purpose (e.g., their own pleasure). This addresses our concerns at the end of the previous section (about gladiators, for instance). But it doesn’t rule out violating rights to minimize overall rights-violations. As Nozick writes,

A mob rampaging through a part of town killing and burning will violate the rights of those living there. Therefore, someone might try to justify his punishing another he knows to be innocent of a crime that enraged a mob, on the grounds that punishing this innocent person would help to avoid even greater violations of rights by others, and so would lead to a minimum weighted score for rights violations in the society.

Someone who acts in this way seems to misunderstand what rights are: intuitively, their respect is not just part of some goal, but a side-constraint on pursuing any goal. The innocent person cannot be framed in Nozick’s mob case.

Mill endorses the idea that rights are (at least practically) side-constraints to the goal of benefiting individuals:

The great majority of good actions are intended, not for the benefit of the world, but for that of individuals, of which the good of the world is made up; and the thoughts of the most virtuous man need not on these occasions travel beyond the particular persons concerned, except so far as is necessary to assure himself that in benefiting them he is not violating the rights—that is, the legitimate and authorized expectations—of any one else.

Mill also accommodates the idea that rights are side-constraints to the greatest happiness principle essentially by denying that there would ever be genuine conflict between the two. In the context of telling the truth, Mill writes that ‘the violation, for a present advantage, of a rule of such transcendent expediency, is not expedient’ as the harm it does to the institution of truth-telling overwhelms any plausible gain from lying. Mill’s argument straightforwardly applies to rights more broadly. As Rawls writes:

Even the excessive zeal with which we are apt to affirm these precepts and to appeal to these rights is itself granted a certain usefulness, since it counterbalances a natural human tendency to violate them in ways not sanctioned by utility… utilitarianism seeks to account for them as a socially useful illusion.

Thus, if it is never actually best to violate rights, and treating rights as inviolable makes decision-making easier, then MU recommends treating rights as side-constraints.

Of course, if we weaken the claim about it never being best to violate rights, we may answer Nozick’s ‘question of whether these side-constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror.’ This allows MU to accommodate our intuitions (that violations are okay) in that case.

References

  • Crisp, Roger. Routledge Philosophy Guidebook to Mill on Utilitarianism. Abingdon, Oxon: Routledge, 2009.
  • Mill, John Stuart. Utilitarianism. Luton: AUK Classics, 2014.
  • Nozick, Robert. Anarchy, State, and Utopia. New York, NY: Basic Books, 2013.
  • Parfit, Derek. Reasons and Persons. Oxford: Clarendon, 1984.
  • Rawls, John. A Theory of Justice. Revised edition. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1999.
  • West, Henry R. An Introduction to Mill’s Utilitarian Ethics. Cambridge: Cambridge University Press, 2003.

Footnotes

  1. As Rawls notes: ‘Mill argued correctly that so long as one remains at the level of common sense precepts, no reconciliation of these maxims of justice is possible… It does not follow, though, as Mill seems to suppose, that one can find a satisfactory conception only by adopting the utilitarian principle. Some higher principle is indeed necessary; but there are other alternatives.’ ↩

  2. This mirrors Mill’s writing on virtue: ‘The principle of utility does not mean that any given pleasure, as music, for instance, or any given exemption from pain, as for example health, are to be looked upon as means to a collective something termed happiness, and to be desired on that account. They are desired and desirable in and for themselves; besides being means, they are a part of the end. Virtue, according to the utilitarian doctrine, is not naturally and originally part of the end, but it is capable of becoming so; and in those who love it disinterestedly it has become so, and is desired and cherished, not as a means to happiness, but as a part of their happiness.’ ↩

  3. Or perhaps our intuitions are sensitive to this intrinsic value; and of course different things may be intrinsically valuable for Martians and humans. (January 2025). ↩

  4. These considerations about the distribution of means to happiness are surveyed by West. ↩

Backlinks