Lecture #5: Rights & Justice in

Utilitarianism

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Bentham’s Challenge

• If one is not going decide what to do by reference to the pleasure & pain, by what principle is one going to decide?

– What else could be relevant?• In argument form:

– If Utilitarianism is not correct, then there would have to be some other consideration so important that the general happiness should be sacrificed in order to achieve it.

– There is nothing so important that the general happiness should be sacrificed in order to achieve it.

– So Utilitarianism is correct• The focus of anti-Utilitarian arguments: rights (& justice)

– So, utilitarians try to show how to derive rights & justice from their general moral principle

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Distinguishing Kinds of Rights

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Hohfeld’s Analysis

• Rights are, in the first instance, a legal relation between one individual & another

– by extension, they could be between an individual & a group

– by extension, they could be a moral relation (grounded in “moral law”)

• Hohfeld distinguished four basic kinds of rights– Claims– Liberties– Powers– Immunities

• Each has a correlate & an opposite• A particular “right” in the broader sense of the term

could be composed of several kinds of Hohfeldian rights as elements

Wesley Newcomb Hohfeld (1879-1918)

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Claims

• a claim-right is a legal relation that is correlated with (or, imposes) a duty of someone else to do something

• The Sixth Amendment says “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” What does this mean?

– the government may not do in a criminal trial what some colleges do in disciplinary hearings: not permit an accused student to bring a lawyer

– minimal interpretation of the Amendment: if the defendant has an attorney, the attorney may be present at the trial

• In civil trials, a litigant may ordinarily bring an attorney– but would not be provided one if he cannot afford one

– if the defendant cannot afford a lawyer, does the state have a duty to provide one?

• in 1942, the Supreme Court said “no” (Betts v. Brady)• in 1963, it said “yes” for felonies (Gideon v. Wainwright)• in 1972, it extended this to misdemeanor cases (Argersinger v. Hamlin)

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Liberties

• A liberty is a legal relation which allows the right-holder to do something– i.e. someone has a liberty to do what they have no duty to abstain from doing – it exists without imposing a duty on anyone else– its correlate is “no-right” in the sense that no one has a right (a claim) against the right-

holder doing whatever he has a right to do• Since the First Amendment says, “Congress shall make no law … abridging the freedom of

speech, or of the press” citizens in effect have a liberty to say what they want– it is not a claim—no positive duties are imposed on anyone else

• no one has to listen• the government has no duty to provide a press to someone who cannot afford one

– Note: a liberty can be limited• freedom of speech does not allow libel or inciting a riot

• Liberties do not protect against everything– an individual may have a liberty-right to open a business

• others (ordinarily) have no right to demand that he not do so• but the liberty to open the business does not protect anyone from competitors

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Powers

• A power is a legal relation by which the right-holder may create duties or liberties (for himself or in others)

– its correlate of one person’s power is another person’s liability • when one person has the power to, say, create a duty in someone else, the second

person is liable to have the duty imposed on him• The Constitution (Art. I, Sec. 8) enumerates 18 things that the Congress may do: “The Congress

shall have Power To lay and collect Taxes, &c.”– in writing tax law, the Congress creates duties

• A landowner has the right (power) to grant or restrict hunting on his land• Adults have the right (power) to make a contract with another person

– the contractors may created libertied, duties, &c. which did not exist before– children do not have this power—they cannot bind themselves, &c.

• the right to marry is a power– unmarried adults may create the rights & liberties that are the legal “incidents of marriage”

• though not with their near relatives– children cannot

• nothing they do will create such duties, &c.• a “power of attorney” grants the agent powers & liberties that he would not otherwise have

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Immunities

• An immunity is a legal relation that protects the right-holder from being treated in a certain way

– its correlate is a disability in someone else (i.e., the duty of someone else not to do something

• The Fourth Amendment provides “The right of the people to be secure in their persons, houses, papers, and effects”

– the government may not• conduct searches and seizures without good reason• issue search Warrants without probable cause,

• Some of the powers denied to Congress in Art. I, sec. 9, disable Congress, thereby creating immunities in citizens

– Citizens are immune from ex post facto criminalization of things that they have done in the past

• Libel law, right to privacy, &c. articulate immunities from defamation, &c.• Diplomats have immunity from prosecution in the host country

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Another Distinction: Bentham’s Critique of Natural Rights

• Bentham’s famous dismissal of natural rights:“Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical

nonsense, nonsense upon stilts.”Bentham’s Targets• The Declaration of Independence (1776)• “all men … are endowed by their Creator with certain unalienable Rights, that

among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men,”

• The “Declaration of the Rights of Man and of the Citizen” (France, 1789)• “The goal of any political association is the conservation of the natural and

imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression.”

His Alternative• Utility, not natural rights, is the basis of law• He has no objection to the establishment of legal rights as a means to promoting

the greatest happiness of the greatest number.– e.g., Congress has the right to create copyrights & patents:

• “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

• creating a right because it will achieve a public benefit

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Can Utilitarianism Account for Rights & Justice?

Solution № 1: Refining our Interpretation of the Utility Principle (Or, Distinguishing Two Kinds of Utilitarianism)

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Consider a Case

• Consider the following case– On 18 August 2004, a US Army patrol in Sadr City, acting on a tip that

insurgents were using dump trucks to plant roadside bombs, opened fire on what turned out to be a garbage truck picking up trash.

– After the attack, an Iraqi teenager, Qassim Hassan, lay on the road, severely wounded and moaning in pain.

– One soldier, judging him to be in great pain & beyond the possibility of medical help, killed the teenager.

– “I wanted to end his suffering,” the soldier later said. “With my weapon I fired a shot to his head. His attempts to breathe ceased.”

• How would a utilitarian judge this action?

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An Interpretive Problem:To What does the Principle of Utility Apply?

Act Utilitarianism

1. Any act which promotes the greatest happiness for the greatest number of people is good [or the right thing] to do.

2. Killing the boy (for example) would promote the greatest happiness for the greatest number of people.

3. So, killing the boy is good [or the right thing] to do.

Rule Utilitarianism

1. Any rule which promotes the greatest happiness for the greatest number of people is the right rule to follow.

2. The rule “Don’t kill even the severely wounded” would promote the greatest happiness for the greatest number of people.

3. So, the rule “Don’t kill even the severely wounded” is the right rule to follow.

There are two distinguishable ways of applying the principle of utility, which leads to two distinct versions of utilitarianism

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• On one view (“act utilitarianism”), the deliberator would ask whether killing this boy would promote the greatest happiness for the greatest number of people and shoot him or not on the basis of that judgment.

• On another view (“rule utilitarianism”), the deliberator would ask whether a practice of killing the severely wounded in cases like this would or would not promote the greatest happiness for the greatest number of people and would strive to act in accordance with the rule that would promote that happiness, even in this case, exceptionally, killing the victim would promote utility.

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Objection to this Solution: A Dilemma

• Applying the utility principle to acts forces one to abandon the weight of ordinary moral rules.

– The violation of any moral rule is at least imaginably productive of good consequences:

• Selling one’s friends into slavery?– Perhaps that would promote the greatest happiness in some

situation• Applying the utility principle to rules is hard to justify by the utility principle.

– How could the utility principle justify acting on the basis of a rule that fails in all cases to promote utility.

• So the utilitarian must either give up firm rules against killing the innocent people or abandon the utility principle that was supposed to be the foundation of his theory.

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The Slide from Rule to Act Utilitarianism

• The moral rule against lying (to take another example) seems to many people to admit of some exceptions—e.g., lying to conceal a potential victim from a murderer

• But a rule like “Never lie except to inquiring murderers” might also sometimes fail to maximize utility.

• Why must all the exceptions be specified in advance? Why not just “Never lie except when it promotes utility.

• But that is just the same as “Never act except so as to promote utility.”

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Can Utilitarianism Account for Rights & Justice?

Solution № 2: Mill’s Derivation of Rights & Justice

from the Utility Principle

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Introduction to Mill on Justice

• The question as he puts it– Whether justice is

• an inherent quality in things [acts]?– i.e., something generically distinct from every variety of the

Expedient;• Or a particular kind or branch of general utility?

• He sets two tasks [I will focus on the first]:– to ascertain what is the distinguishing character of justice, or of injustice– to determine whether that character is capable of generating the strength of

feeling that we have about injustice

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What makes acts just or unjust?

• To answer this, – He decides to focus on “injustice”

• he surveys various examples of injustice looking for – a common element shared by all cases of injustice– lacking in all actions that are not unjust

– He identifies a broad genus—“guides to action” • & divides it into various kinds

– To determine what constitutes injustice, he asks what various examples of unjust acts (listed below) have in common

• violating legal rights• violating moral rights• not giving someone what they deserve• breaking faith with someone• being partial in matters where favor & preference do not apply• treating equals unequally

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What makes acts just or unjust? I

• First distinction: – Morality (Right & Wrong)

• wrong action = action for doing which a person ought to be punished in some way

– either by law– by the opinion of his fellow-creatures– or by the reproaches of his own conscience

• duty (right action) = an action which may be exacted from a person

– Prudence (“the provinces of Expediency and Worthiness”)

• NB: this is a modern sense of prudence• actions which we may desire people to do, and

encourage by praise, but not compel by punishment or blame

• e.g., thriftiness & the cultivation of talents?• Justice & injustice are a part of morality

Guides to Action

Morality Prudence(e.g., Thrift)

Justice & InjusticeOther Obligations

of Morality(e.g., Generosity)

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Some Notes on Prudence

• The word prudence (φρονήσις, prudentia) has undergone a change in meaning– For Aristotle & St. Thomas (& in Catholic moral theology)

• “right reason applied to practice”– For Mill (& other modern authors)—

• “a correct foresight of consequences, a just estimation of their importance to the object in view, and repression of any unreflecting impulse at variance with the deliberate purpose.”—Mill, System of Logic

• “skill in the choice of means to his own greatest well-being may be called prudence [note], in the narrowest sense. And thus the imperative which refers to the choice of means to one’s own happiness, i.e., the precept of prudence, …

– “[Note: The word prudence is taken in two senses: in the one it may bear the name of knowledge of the world, in the other that of private prudence. The second is the sagacity to combine all these purposes for his own lasting advantage.]”

– from Immanuel Kant, Laying the Foundations of the Metaphysics of Morals (1785)

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Dictionary Definitions: English I

Samuel Johnson, Dictionary of the English Language(1755)

Noah Webster, American Dictionary of the English Language(1828)

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Dictionary Definitions: English II The Oxford English Dictionary (1909)

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Dictionary: English I French

• Littré, Dictionnaire de la langue française (1863–1877)– Vertu qui fait connaître et pratiquer ce qui convient dans la conduite de la

vie.• Trésor de la langue française (1971–1994)

– A. 1. a) Qualité, attitude d’esprit de celui qui prévoit, calcule les conséquences d’une situation, d’une action qui pourraient être fâcheuses ou dangereuses moralement ou matériellement, et qui règle sa conduite de façon à les éviter. …

– B. Spécialement 1. HIST. DE LA PHILOS. Première vertu cardinale, celle qui allie force d’esprit, faculté de discernement, connaissance de la vérité dans la conduite de la vie. … 

– MOR. CATH.Prudence humaine, mondaine, de la chair, du siècle. Habileté dans les affaires du monde. … Prudence chrétienne. Vertu de celui qui sait discerner et choisir ce qui conduit au salut de son âme.…

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Dictionary Definitions: Spanish Diccionario de la Real Academia Española

1st ed. 1780

22d ed. 2001

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Mill’s Three Modes of Compulsion (see ch. 3)

• [Case: Compelling men to perform military service]– By law

• e.g., conscription (below: draft card of Alvin C. York, awarded a Congressional Medal of Honor for single-handedly capturing 112 Germans soldiers on 8 Oct 1918)

– By the opinion of his fellow-creatures• e.g., The Order of the White Feather, in which people presented English men out of

uniform a white feather, symbol of cowardice, during World War I– By the reproaches of his own conscience

• cultivated as part of moral & patriotic education & reinforce by posters (as below)

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What makes acts just or unjust? II

• Second distinction (Justice & other duties): – justice

• “duties of perfect obligation”– “duties in virtue of which a correlative

right resides in some person or persons”

• then, an “injustice “ is …– [genus]: “a wrong done” and – [specific difference]: in which “some

assignable person is wronged”– other moral duties

• e.g., charity & beneficence• duties of imperfect obligation

– duties “in which, though the act is obligatory, the particular occasions of performing it are left to our choice.”

• these “we are indeed bound to practice, but not towards any definite person”

Guides to Action

Morality Prudence(e.g., Thrift)

Justice & InjusticeOther Obligations

of Morality(e.g., Generosity)

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Mill on Rights

• Mill defines “justice” with reference to “rights”– So, what does he mean by a right?

• Definition– “a right is a valid claim on society in the

possession of some good”• Examples

– we have a right to keep the potatoes we dig up in our garden

– and not the wallet we see falling out of someone’s pocket

– but what about archeological artifacts (or treasure troves generally)?

• The existence of rights—What validates a claim?– (for Mill) general utility, of course.– Not the fact that we found something or that it

was given to us except insofar as it is useful to allow finders or beneficiaries to keep what they find or are given.

Jean-François Millet, “Potato Planters” (c. 1861)

824 gold staters about 2000 years old, found in a Suffolk field in 2008

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Case № 1: A Utilitarian Defense of Property Rights in the Product of our Labor

1. Protecting farmers in the possession of the food they produce promotes utility (See statistics on Soviet agriculture: Private plots (2% of arable land) produced 25% of the value of agricultural production.)

2. Whatever promotes utility should be done by society [= the Utility Principle]3. So, Protecting farmers in the possession of the food they produce should be

done by society.=Farmers should be protected by society in the possession of the food

they produce.4. Anyone who should be protected by society in the possession of what they

produce has a valid claim on society for protection in the possession of that product.

5. So, farmers have a valid claim on society for protection in the possession of the food they produce.

6. Anyone who has a valid claim on something has a right to it.7. So, farmers have a right to society’s protection in the possession of the food

they produce.8. More generally, people have a right to the product of their labor.

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Utilitarianism & Property Rights

• Do we have the kind of property right that is characteristic of capitalist economies?

• “There are now reports of severe food shortages in Venezuela, including milk, bread, sugar, poultry, dairy products and cooking oil. … Shortages are inevitable when socialist governments interfere with free markets through price and other controls.”—Otto Reich, Wall Street Journal, 11 February 2013

• If Reich is right about free markets, Utilitarians should support property rights

Butcher Shop, Poland, 1982

Grocery Store, Venezuela, 2013

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Case № 2: Archeological Treasures

• Two examples– The Sutton Hoo Helmet: A ceremonial helmet

found in ship burial site at Sutton Hoo, Suffolk, 1939

– The Hoxne Hoard: 14,865 Roman coins, 200 items of silver tableware and gold jewelry, discovered buried in 1992

• Who should get possession of archeological treasures?– The original owner can be presumed dead & the

heirs unidentifiable– Some options

• The finder?• The landowner?• The community?

The Sutton Hoo helmet

Items from the Hoxne Hoard

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Illinois Law(Michael v. First Chicago Corp. (1985)

citing Paset v. Old Orchard Bank & Trust Co. (1978))

• Distinction– Mislaid property is that which is intentionally put in a certain place and

later forgotten– property is lost when it is unintentionally separated from the dominion of

its owner– property is abandoned when the owner, intending to relinquish all rights to

the property, leaves it free to be appropriated by any other person. • Rights

– A finder of property acquires no rights in mislaid property, – is entitled to possession of lost property against everyone except the true

owner, and – is entitled to keep abandoned property.

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English Law of Finders

• English Common Law– Treasure hidden & then rediscovered (treasure trove)

• belonged to the original owner (or heirs) if one could be found• otherwise, to the Crown

– Lost treasure belonged to the finder (or the landowner)• The Treasure Act of 1996

– ignores the distinction between lost objects & treasure trove– requires that found “treasure” be offered for sale to museums (at a price set by the Treasure

Valuation Committee)– with the finder & landowner being paid for the objects

• Which law is best?– why?– does one do a better job of maximizing utility? does that matter?

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Applications

• Common Law Solution– The Hoxne Hoard

• carefully packed into an oak chest (so, buried with intent to recover it later)• “treasure trove” under the Common Law• (the owner dead & the heirs untraceable) so, property to the crown

– The Sutton Hoo Helmet• grave goods from a burial site• presumably no intent to recover the helmet (so, abandoned)• property to the landowner

– The Portsdown Hill Hoard (of coins from the reign of King Stephen, found 1995)• found without container, so presumably lost• property to the finder

• Treasury Act Solution– Ringlemere Cup

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Mill’s Reply to his Critics on Rights

• There are many conflicting principles about matters of justice.– Cf. Mill’s discussion of punishment, wages, and taxation.

• The only way to sort out these conflicts is by appeal to the principle of utility. Or, Utilitarianism seems to give a good account of what rights we have and their limits. E.g.,

– We have a right to own land and to decide whether to keep or sell it (in general) because in general allowing private ownership of land promotes utility,

• but we don’t have a right to refuse to sell to the government when it needs that land for a highway, because allowing people to prevent the construction of highways in that way does not promote utility.

• Should we have a right to refuse to sell to a private party which would make better use of the land? (See Kelo v. New London, next slide)

– How should this matter be decided?

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Property Rights & their Limits: Kelo v. City of New London

• In 2000, the economically depressed city of New London, Conn., used the power of eminent domain to force owners of residential & commercial property in the Fort Trumbull neighborhood to sell their land to a private entity in order to put the land to a use deemed beneficial to the city as a whole.

• Suzette Kelo & 14 other owners sued to block the condemnation of their property.

• Should they have the right to refuse to sell?– The Utilitarian answer: To what extent does

allowing a property owner to refuse to sell to another private party, even for the economic benefit of the community, promote utility?

• The US Supreme Court upheld the city’s use of eminent domain (as a point of law) in 2005.

– Libertarians proposed state taking of Justice Souter’s home to build a “Lost Liberty Hotel,” a kind of museum on property rights

– Many states quickly outlawed using eminent domain in this way.

Pfizer development associated with the New London condemnation.

Suzette Kelo, homeowner.

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Another Case: Freedom of Speech

• What do we have a legal right to do & say in the United States?• What do we not have a legal right to do & say?• Does it promote utility to allow & forbid speech as American law in fact does?

– Are there cases where the Utility Principle would require a change in law?– Do you agree that the law should be changed in those cases?

• Is there some other principle that does as well or better in sorting those speech?

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A General Argument that Utilitarians Should not have Problems with Rights & Justice

• Imagine being given a choice between living in two communities– R, in which everyone’s rights are scrupulously respected but no one is

happy, or– H, in which no attention is ever paid to anyone’s rights (indeed people’s

rights are constantly and flagrantly violated) but everyone is happy• Which would one choose?

– Presumably, no one would choose R. No one is happy there.– Anyone who prefers H implicitly acknowledges that happiness is more

important than rights.– Anyone who says that the question does not make sense (how could

people be happy if their rights were constantly being violated?), seems to acknowledge a close causal relation between respecting rights and happiness, which is all Mill needs.

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Why Utilitarianism Cannot Account for Justice

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The Silver Mines of Athens & the Utility of Slavery

• The cultural product of Athens has played a formative role in Classical, Islamic, & Western Civilizations, to the benefit of mankind for 2½ millennia.

• The power of Athens, and arguably, its very existence was based on its silver mines at Laurion. These mines produced some 1000 talents of silver per year. (One talent is about 26 kg, was enough to pay 6000 days’ wages.)

– In 482, a rich new vein was discovered and the silver produced there was used to pay for the ships with which the Athenians defeated the Persians at Salamis, one of the decisive battles of history and to pay for the reconstruction of the city (which Persian land forces had sacked).

– During the Peloponnesian War, Sparta cut Athens off from its silver supply, which played an important role in Sparta’s ultimate victory.

• But the mines were worked by tens of thousands of slaves. Their working and living conditions were terrible and they did not live long.

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Thesis: Utilitarians have Inherent Problems with Distributive Justice

Argument1. Any case of making some people slaves

to be used for the exclusive benefit of others is an injustice.

2. Some cases of making some people slaves to be used for the exclusive benefit of others promote the greatest happiness of the greatest number of people.

3. So, some acts that promote the greatest happiness of the greatest number of people are injustices.

4. Anything which promotes the greatest happiness of the greatest number of people is approved by utilitarianism.

5. So, some injustices are approved by utilitarianism.

CommentaryDistributive Justice—giving to each his due

share of the benefits & no more than his due share of the burdens of community life

Explanation of the Problem—Utilitarianism could be expected to have problems here, since it a fundamentally an aggregative principle (concerned only with maxima), where the duty of being just is concerned with distribution.

Utilitarian Reply—The declining marginal utility of ever–larger shares shows that “fair” distribution maximizes utility (and thus explains why we care so much about it).

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Lord Mansfield’s (Alleged) Worries about Denying the Legality of Slavery in England

• The Somersett Case: – James Somersett, an African, was brought to England by Charles

Stewart. When, in 1771, Stewart decided to send Somersett to Jamaica (presumably to work on the sugar plantations), Somersett refused to go and Stewart resorted to force. Somersett’s friends applied for a writ of habeas corpus.

• Steven M. Wise, Though the Heavens May Fall, p. 76, offers the following guess as to what the judge was thinking:

– “In determining English slave law, Mansfield would have to confront the clash between principle and policy. He walked the streets, visited the wealthiest and most dignified homes, and knew there were blacks everywhere, many of whom belonged to friends and social equals, even to his betters. Setting them free in their thousands might be viewed as little more than judicial robbery and might make England, especially London, a magnet for every oppressed African in the English-speaking world. Such a judgment might burden the wards and intensify the economic struggle in an underclass already groaning beneath an influx of Irish.”

• Why are the concerns Wise attributes to Mansfield not utilitarian concerns?

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• There must doubtless be an unhappy influence on the manners of our people produced by the existence of slavery among us.  The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other.   Our children see this, and learn to imitate it; for man is an imitative animal.  This quality is the germ of all education in him.  From his cradle to his grave he is learning to do what he sees others do. …The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to his worst of passions, and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped by it with odious peculiarities.  The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. 

• With the morals of the people, their industry also is destroyed.  For in a warm climate, no man will labour for himself who can make another labour for him. This is so true, that of the proprietors of slaves a very small proportion indeed are ever seen to labour. 

Jefferson against Slavery (Utilitarian considerations from his Notes on Virginia)

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Bentham’s Dictum

• “Every individual in the country tells for one; no individual for more than one”

• Mill’s wording:– “Every man to count for one and no one to count for more than one.”

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Justice in Tito’s Yugoslavia: The Utility of Punishing the Innocent

“Tito believed that only drastic measures could erase the memory of hate [between ethnic groups in Bosnia]. As a consequence, until the late 1980s, if a Bosnian Serb were tried in Sarajevo for political crimes then surely, in a few weeks, there would be a trial of a Bosnian Croat and a Bosnian Muslim regardless of whether the latter two had been involved in any political activity or not. Similarly, if a Moslem fundamentalist were sentenced…, then a Serb and a Croat would soon hear the prison gates closing behind them. This was, of course, a despicable abuse of human rights but the theory assumed that a few judicial indiscretions were preferable to a fratricidal blood-bath.”

—Misha Glenny, The Fall of Yugoslavia (1992), p. 147

Ethnic Map of Bosnia before 1991

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The Bloodbath Tito Feared: The Bosnian War (1992-1995)

• Above Left: Burial (July 2006) of some 500 of the nearly 8000 Bosniak men murdered by Serbian militias at Srebrenica in July 1995.

• Above: Vedran Smailović playing the cello in Sarajevo’s National Library (1992).

• Left: Mostar’s Old Bridge, a gem of Ottoman architecture, built in 1566, deliberately destroyed by Croatian artillery fire in November 1993.

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Thesis: Utilitarians have Inherent Problems with Retributive Justice

Argument1. Any case of punishing the innocent is

an injustice.2. Tito’s “Parity in Punishment” policy

was a case of punishing the innocent.3. So, Tito’s “Parity in Punishment”

policy was an injustice.4. Tito’s “Parity in Punishment” policy

promoted the greatest happiness of the greatest number of people.

5. So, some injustices promote the greatest happiness of the greatest number of people.

6. Anything which promotes the greatest happiness of the greatest number of people is approved by utilitarianism.

7. Some injustices are approved by utilitarianism.

CommentaryRetributive Justice—punishing each on the

basis of desert (a fortiori, not punishing the innocent)

Explanation of the Problem Utilitarianism could be expected to have problems here, since

utilitarianism is fundamentally forward-looking (asking about the conse-quences of the punishment), &

the duty of punishing justly has a backwards-looking element (looking back to see how serious the crime was).

Utilitarian ReplySurely an institution which sometimes punished the innocent would cause general insecurity, since everyone would be afraid of being victimized by it.

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Evaluation of the Utilitarian Replies about Justice

• Do utilitarian replies point us to what is important about justice?– Even if distributive & retributive justice do promote utility, injustice is

wrong, not because of its effect on the general happiness, but because of the way it treats individuals.

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