Justice, Punishment, Ethics: Philosophy and the Law I

Philosophy of Law at Waseda University Law School, 2007

Saturday, February 17, 2007

Week 7: Utilitarianism: Bentham and Legal Reform

Week 7: Utilitarianism: Bentham and Legal Reform

5.1 What is Utilitarianism?
Utilitarianism is an ethical theory that holds that the only good thing is welfare (or 'happiness', or 'utility.'). The central idea here is that one should act to maximize happiness, whether that of humans or other sentient beings. The Utilitarian approach to ethics has early origins. Plato discussed welfare as the best balance of pleasure and pain. Both Stoicism and Christianity held to similar principles. During the Enlightenment (the 18th Century), three theorists in particular promoted Utilitarianism. These were Jeremy Bentham (1748-1832), John Stuart Mill (1806-1873), and Claude Adrien Helvétius (1715-1771). (The latter thinker is almost totally forgotten now, but is interesting as he largely anticipated the scenario of Aldous Huxley's novel Brave New World [1932] in which the State is essentially an apparatus for maximizing pleasure through the careful administration of sex and drugs ).Bentham and Mill are essentially similar in that they are hedonistic utilitarians ― that is, they consider pleasure to be the only intrinsic good. Other, important Utilitarians are British philosopher Henry Sidgwick (1838-1900) and Peter Singer (b.1946), an Australian, who is still writing.
Utilitarianism is to be understood in the context of the massive shift in worldview that occured in the West during the 18th Century. Religion was no longer considered the sole arbiter of right and wrong. New cultures had been discovered which appeared to many to be morally equivalent, or superior, to those of Europe. Ethics had to be based on something other than religious authority. For the Utilitarians, ethics was about making the world as happy a place as possible.

5.2 Main Features of Utilitarianism
In its original formulation, Utilitarianism is hedonistic act consequentialism. That is, it endorses the maximization of happiness; it is based on the evaluation of particular acts, and as a is a consequentialist theory, it considers as relevant the outcomes of one's
actions (and not the ethics of the means used to bring about an outcome).
Hedonism claims that pleasure is the only intrinsic good and that pain is the only intrinsic bad. Together, these claims imply that an act is morally right if and only if that act causes “the greatest good for the greatest number. ”

5.3 Implications
As Rachels notes, Utilitarianism seems to give standard answers to two key moral problems- euthanasia and animal rights (Rachels pp.93-101).

5.4 Arguments for Utilitarianism
Mill's 'proof' (1861).
1.Happiness is Desirable
2.The general happiness is desirable (that is, everyone's happiness is desirable)
3.Nothing other than happiness is desirable.

Mill's whole theory rests on these claims, and each one of them has been criticized. The second claim appears to overlook the distinction between egoistic and universalistic hedonism.
(That is- how does making other people happier necessarily make yourself happy?)

5.5 Psychological Assumptions
'Classical', Hedonistic Utilitarianism assumes that you could actually compare people's lives and decide on whose life is more pleasurable. That is, it assumes that we can compare welfare across people's lives. (To decide on a moral decision, we need to be able to decide on which outcome is the more beneficial; that is, which will increase welfare). Bentham actually thought that you could chart any given pleasure on an x-y axis, according to duration and intensity. He also assumed that people enjoy things in much the same way.
Utilitarianism seems to assume that happiness can be distributed in some way, but psychological studies suggest otherwise. Some studies show that happiness seems to be based on relative, rather than absolute wealth. In one study, Harvard students were given two options:
Option 1: 50,000 dollars a year for me; 25,000 for my friends
Option 2 : 100,000 dollars a year for me; 200,000 a year for my friends.
Most students chose 1.
5.6 Value Assumptions
Utilitarianism assumes that only pleasurable states are valuable. Hence, Utilitarians were accused of hedonism. Mill attempted to excape this objection by distinguishing between higher and lower pleasures, arguing that the quality of pleasure had to be taken into account. How to choose between two pleasures? Mills writes:

On a question which is the best worth having of two pleasures, or which of two modes of existence is the most grateful to the feelings, apart from its moral attributes and from its consequences, the judgement of those who are qualified by knowledge of both, or, if they differ, that of the majority among them, must be admitted as final. (in Rachels RTTD:69).



Is this a good test? Or is it merely elitist? Or is he sneaking some other criterion, besides 'happiness,' into the decision?


5.7 Is Happiness the Only Good?
The bigger problem is the assumption that pleasure is the only good. The following scenario is from Robert Nozick (1938-2002 ), an American philosopher.

“ Suppose there were an experience machine that would give you any experience you desired. Superduper neuropsychologists could stimulate your brain so that you would think and feel you were writing a great novel, or making a friend, or reading an interesting book. All the time you would be floating in a tank, with electrodes attached to your brain. Should you plug into this machine for life, preprogramming your life experiences? [...] Of course, while you are in the tank, you don't know that you're there; you'll think that it's actually happening... would you plug in? ”

(The similarity to the plot of The Matrix is probably not a coincidence- Larry Wachowsky, one of the script writers, is a serious philosophy reader). So would you get into the experience machine, or not? And what would a Utilitarian say? Similarly, is Neo a hero, or a villain, for wanting to unplug the human race? What goods are we missing out on if we have perfectly happy, but illusory lives? What of reality?

5.8 A related problem.
Consider this: according to recent studies, there is only a vague relationship between happiness and wealth, or such goods as rights and justice. Consider the following argument.
People in Japan are no happier in 2006 than they were in 1950, although income in Japan has increased five-fold in that period. According to Utilitarianism, life in Japan has not improved.
Why? Because the level of happiness is the same.

Women's Liberation.
Women haven't become happier since the 1950 's. Does this mean that things haven't
improved?
Yes, I'm afraid so (Bentham).

No, but not because women's lives have improved, but rather because the
situation has improved in other respects. Women are better off in other ways.

So, what other 'goods' are there, that cannot be reduced to 'happiness?' Truth? Freedom? knowledge? Friendship? Autonomy? Achievement? Justice? Fairness?

Samuel Brittan " 'Happiness' is not enough” Samuel Brittan: Templeton Lecture Inst. of Economic
Affairs 22/11/01. URL: www.samuelbrittan.co.uk/spee22_p.html
Shankar Vedantam “You really can't buy happiness, study confirms” Washington Post, Sunday
July 9th, 2006 URL: www.sfgate.com/cgi-bin/article.cgi?f=/ c/a/2006/07/09/MNG02JPKK61.

In response, we could replace 'happiness ' with some other overrarching value. Preference- maximalization, for example. Or desire- fulfillment.

The Desire- Fulfillment Theory.

-What matters is if people get what they want, achieve their aims and realize their projects.
-A person is benefitted by getting his or her desires or preferences satisfied, and harmed by having them frustrated.
-The extent to which a life is a good life for the person leading it depends entirely on the extent to which his or her desires are fulfilled.
-Preference- satisfaction is the only thing that has positive intrinsic value, whereas the only thing that has negative intrinsic value is preference- frustration.

Desire- Fulfillment theory is attractive. It gives the right verdict about women's liberation, it gives the right verdict about Nozick's Experience Machine, and it is non- paternalistic.


5.9 Utilitarianism has no conception of Justice
Utilitarianism is incompatible with any notion of justice. Consider the cases in Rachels EMP: the case of the sheriff who allows the lynching of an innocent black man to prevent a race war; medical experiments of the unwilling; the use of torture in interrogations to save others; the peeping tom case (Rachels EMP:106-107).
If a benefit can be given to either a rich person, through no fault of his own, or a poor person, through no fault of his own, and the benefit is only slightly more beneficial to the rich man than to the poor man, Utilitarianism requires that it go to the rich man.
(The homework Question concerns this problem).


5.10 Utilitarianism does not recognize Agent- Specific Duties
W.D. Ross argued that, if breaking a promise created only slightly more happiness overall than keeping the promise, then you ought to break the promise, according to Classic Utilitarianism.
Similarly, critics of Utilitarianism might argue that Utilitarians cannot be good friends, because a good friend places more weight on the happiness of his or her friends than on the welfare of complete strangers. This is because Utilitarianism requires impartiality towards all people.
One response is to suggest agent- relative consequentialism. An agent- relative consequentialist gives more importance to the welfare of a friend when assessing the consequences of that person's acts.


5.11 Utilitarianism is Too Demanding

Utilitarianism requires that you consider the interests of total strangers as being equal to that of your own family, your friends, or, indeed, yourself. Utilitarianism dictates that you give up all of your projects, and dedicate all of your ressources and time to, say, famine relief. Teaching philosophy just isn't as important as simply spending my time working for OXFAM, or UNICEF, so I should quit teaching philosophy.
Some Utilitarians might simply bite the bullet. In "Famine, Affluence, and Morality", one of Peter Singer's best-known philosophical essays, he argues that the injustice of some people living in abundance while others starve is morally indefensible. Singer proposes that anyone able to help the poor should donate part of their income to aid poverty and similar efforts. Singer reasons that, when one is already living comfortably, a further purchase to increase comfort will lack the same moral importance as saving another person's life. Singer himself donates 20% of his salary to Oxfam and UNICEF. In "Rich and Poor", the version of the aforementioned article that appears in the second edition of Practical Ethics,[8] his main argument is presented as follows: If we can prevent something bad without sacrificing anything of comparable significance, we ought to do it; absolute poverty is bad; there is some poverty we can prevent without sacrificing anything of comparable moral significance; therefore we ought to prevent some absolute poverty. (from Wikipedia article on Peter Singer).

5.12 Other Bizarre Implications
The Repugnant Conclusion
Derek Parfit (Reasons and Persons, 1984) gives the following argument. Suppose that you had to choose between two different scenarios: a world (World A) in which everyone is very happy, but there are only a million people, or a world (World B) in which there are a trillion people, each of whom is just comfortable enough to not want to kill themselves. Because the 'overall utility' in
World B is higher, you should act to create such a world (you would ban condoms in the Third World, for example). It has also been suggested that, on Utilitarian grounds, it might be moral to kill people to minimize pain (Asahara's 1992 sarin gas attack on the Tokyo subway may have had some sort of rationalization like this).

5.13 Utilitarianism places moral importance on Consequences, not on Intentions
Suppose that Alice meets a runaway teenager, and decides to help her. Alice reasonably believes that giving Alice a bus ticket to go back to her home will help her, so buys her a ticket. Unfortunately, the bus is involved in a freak accident, and the runaway is killed; If actual consequences are what determine wrongness, then it was morally wrong for Alice to buy the bus ticket for this runaway. Opponents think that this result is absurd enough to refute Classical Utilitarianism.

Lecture 5 :What You Need To Know
You should be able to give a definition of Hedonistic Utilitarianism
You should be able to give a definition of Consequentialism
You should be able to understand the psychological assumptions, value assumptions and counterintuitive implications of Hedonistic Utilitarianism.
You should be able to offer counterarguments to Hedonistic Utilitarianism.
Readings:
Walter Sinnott-Armstrong “ Consequentialism ,” plato.stanford.edu/entries/consequentialism/
wsa@dartmouth.edu
Brad Hooker “ Rule Consequentialism ” plato.standord.edu/entries/consequentialism-rule/

Homework for Week 3
Think about the following case.
Imagine that each of five patients in a hospital will die without an organ transplant. The patient in room 1 needs a heart, the patient in room 2 needs a liver, the patient in room 3 eedgs a kidney, and so on. Also, the patient in room 1 is a critically acclaimed novelist, the patient in room 2 is a mother of five young children, and the patient in room 3 is a human rights activist. The person in room 6 is a tramp, and needs immediate assistance or he will die soon. Nobody knows the tramp, but his life seems quite unhappy and empty. Coincidentally, the tramp's organ tissue is compatible with that of the other patients.

Question 1.
What would be the consequences of the doctor allowing the patient to die, and transplanting his organs to save the other five patients?
Question 2.
Would this decision be in keeping with Act Utilitarianism?


Lecture 6
Utilitarianism: Problems and Suggestions
Summary of Objections to Utilitarianism, that appeal to its Counterintuitive Implications
1).CU does not acknowledge agent- relative duties
2).In evaluating actions, CU assigns no weight to the intentions behind them
3).CU says that it can be right to sacrafice one in order to save others
4).CU says that it can be right to harm one in order to benefit others
5).CU does not attach weight to considerations relating to justice; how the sum total of welfare is distributed is irrelevant
6).CU is too demanding, it says we should do things that can only be expected of saints
7).CU makes no distinction between acts and omissions.


6.1 Act Utilitarianism vs. Rule Utilitarianism
Act- Utilitarianism holds that the right action is that which brings 'the greatest good to the greatest number ' (note the double- maximand problem- you can't maximize both). As was clear from Lecture 5, this formulation brings up all sorts of problems, and has been rejected by many philosophers as being impractical.

As such, Rule- Utilitarianism has been proposed. According to Rule- Utilitarianism, the right action is that which is consistent with those rules which maximize utility. The corollary: Rule- Utilitarianism claim that an act is morally wrong if and only if it is forbidden by rules justified by their consequences.

Decision Procedure: In normal circumstances, people should decide what to do by applying rules whose acceptance would produce the best consequences. Examples of such rules: ‘don't harm innocent people,’ ‘don't steal or vandalize property, ’ ‘ don't break promises. ’

Objections to Rule- Utilitarianism
-Rule Utilitarianism collapses into Act Utilitarianism in Difficult Cases
It has been argued that Rule Utilitarianism can collapse into incoherence, as it can end up saying that an act is immoral though it maximizes the expected good. Examples: you lie to the secret police to save an innocent person from being killed, or you borrow your friend's money and send it all to charity. (Or: you borrow money from a total stranger and give it all to a charity).


6.2 Criterion of Rightness vs. Decision Making Procedure
There is a further option that a Utilitarian might have to save the theory. We could retain Utilitarianism as a theory of what moral rightness is, but not use it in decision making. Rule- Utilitarianism, or even Kantian ethics, might be used to make decisions, but what is morally right is defined by Act Utilitarianism. (That is, if someone accidentally causes unhappiness by following Utilitarianism, this does not contradict Utilitarianism, as Utilitarianism itself says that unhappiness is bad).
To make this distinction clear:

Classical Utilitarianism has two components:

Normative Component :
1). Act always so as to make the outcome best.

Evaluative Component:
2) Whether an outcome is better than other depends entirely on how much pleasure (and pain) it contains or brings about

Problems for Rule- Utilitarianism

Suppose that the best set of rules (those the universal adherence of which brings about the best consequences) involves an absolute prohibition against violence. That is, suppose that if everyone were to adhere to this rule, then the outcome would be best. Then it can never be right to use violence, according to rule utilitarianism.

Now, suppose also that one person does not in fact adhere to it, and as an effect causes enormous suffering. And suppose also that that person cannot be stopped unless we use violence. Then, intuitively, and contrary to what Rule Utilitarianism has to say, it is legitimate to use violence against him or her.


What You Need to Know
You should be able to explain the distinction between Act Utilitarianism and Rule Utilitarianism.
You should be able to explain how maximizing preference- satisfaction might make better sense than maximizing pleasure- satisfaction.
You should see that there is a danger, in difficult cases, of Rule Utilitarianism of collapsing into Act Utilitarianism.

Homework for Week 4
By now you should be thinking about Essay 1. As soon as you have time, please try to email me a brief outline of your essay for commentary, or bring it in during the office hour. We'll start Lecture 7 with an overview of the essay writing process. Essay 1 is due October 6th. Essay length is no less than 1000 words, and no more than 1,500 words.

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