Philosophy 361		Ethics		Darwall		Fall 1997

MILL V

I  Last time we considered two of several objections to utilitarianism that Mill responds 
to in Ch. II.  Another line of criticism is to argue that AU's implications for specific 
cases conflict with moral common sense.  Some examples:
	(a) keeping a (secret deathbed) promise (e.g. Harman, p. 154).  According to 
AU, the promise has no intrinsic bearing on what it is right to do.
	(b) harming one person in order to benefit another.  According to AU, there is 
no greater duty not to harm than there is to benefit--so long as there is compensating 
happiness to others.  
	(c) [a related matter]  since what matters for AU is the total net happiness, how 
the happiness and unhappiness that make up the total is distributed across persons is 
irrelevant, so long as it does not affect the total. Thus, A and B are morally equivalent.
			w	x	y	z
	A	         -2     	2	2	2
	B		1	1	1	1
	
II  Note that all these cases involve issues of justice or rights.  The common complaint 
then becomes that utilitarianism is inconsistent with justice.  In Chapter V Mill 
responds to this complaint direct.  Let us consider how he proceeds.
	A.  Mill begins, "in all ages of speculation one of the strongest obstacles to the 
reception of the doctrine that utility or happiness is the criterion of right and wrong has 
been drawn from the idea of justice." (Ch. V.1)  Mill doesn’t doubt that the sentiment 
of justice is widely shared, or even natural, but what gives this sentiment "binding 
force". "Mankind are always predisposed to believe that any subjective feeling, not 
otherwise accounted for, is a revelation of some objective reality." (V. 2)  
	B.  The first question is "to attempt to ascertain what is the distinguishing 
character of justice." (V.3)  And, "to find the common attributes of a variety of 
objects, it is necessary to begin by surveying the objects themselves in the concrete." 
(V.4)  Mill's list:
	(i) "it is mostly considered unjust to deprive ayone of his personal liberty, or 
any other thing which belongs to him by law."
	but  (ii) if "the legal righs of which he is deprived [are] rights which ought not 
to have belonged to him; in other words, the law which confers on him these rights [is] 
a bad law . . . [then] opinions will differ as to the justice or injustice of infringing it."
	(iii) "it is universally considered just that each person should obtain what he 
deserves."
	(iv) "it is confessedly unjust to break faith with anyone."
	(v) "it is, by universal admission, inconsistent with justice to be partial"
	(vi) justice is often thought to have something to do with equality.

III	Thus our sentiments about justice are complex, and perhaps inconsistent.  So it 
is open to a utilitarian to argue that there is no coherent set of views here at all, only a 
hodgepodge of elements from different and conflicting cultural traditions.  [Also, AU 
can claim that it already encapsulates some idea of justice, in counting each person the 
same.] This is not Mill’s strategy, he looks for a common element. 
		A.  The "idee mere, the primitive element, in the formation of the notion 
of justice, was conformity to law" (V.12)  As, however, critical questions were raised 
about laws themselves, and laws weren't assumed authoritative simply because they 
exist, "the sentiment of injustice came to be attached, not to all violations of law, but 
only to violations of such laws as ought to exist, including such as ought to exist but do 
not . . . " (V.12)
 	B.  Thus, something is unjust if it is contrary to what ought to be the 
law.  This is too restrictive as it stands, Mill thinks, because "mankind consider the 
idea of justice and its obligations as applicable to many things which neither, nor is it 
desired that they should be, regulated by law." (V.13)  There are many areas of life 
where having a law would be too meddlesome and inefficient, even though we think it 
possible, in these areas, for a person to act justly or unjustly.  But even here, Mill says, 
our sentiment of justice is tied to the idea of law and sanction.  "It would always give 
us pleasure, and chime in with our feelings of fitness, that acts which we deem unjust 
should be punished, though we do not always think it expedient that it should be done 
by the tribunals."  And when issues of justice are involved, then we think that either 
formal or informal sanctions--e.g. expressed disapproval, removal of trust, 
disengagement of friendship, feelings of guilt, and so on--will be appropriate.

Mill concludes:  "we do not call anything wrong [N.B. HOW MILL MOVES 
FROM 'UNJUST' TO 'WRONG' HERE] unless we mean to imply that a person ought 
to be punished in some way or other for doing it--if not by law, by the opinion of his 
fellow creatures; if not by opinion, by the reproaches of his own conscience." (V.14)

IV  Now note that prominent in Mill's account of the ordinary notion of justice (and 
indeed now of what it is for something to be wrong) is the idea that something ought to 
be law, or that it ought to be the case that there exists a practice, either formal (in law) 
or informal, of applying sanctions against certain kinds of behavior.  This raises the 
following question:  if this is what being unjust or wrong depends on, what is the 
criterion of whether there ought to be a law, or an informal practice, applying sanctions 
against conduct of a given type?  Mill's answer:  UTILITY.  "To have a right, then, is, 
I conceive, to have something which society ought to defend me in the possession of.  
If the objector goes on to ask why it ought, I can give him no other reason than general 
utility." (V.18)

	Thus:  it is unjust to harm another if, and only if, a general practice of applying 
sanctions to those who harm would maximize total net happiness.
	It is unjust to break a promise if, and only if, a general practice of applying 
sanctions (informal in most cases) to the breaking of promises without justifications or 
excuses of certain standardly recognized kinds would maximize total net happiness.
	and so on.

V 	This suggests a different theory of right and wrong than AU, namely rule-
utilitarianism (RU)
	(RU):  An act is wrong if it is contrary to a rule such that having a practice of 
enforcing that rule (formally or informally) would promote the greatest total net 
happiness (in preference to having a practice enforcing some other conflicting rule).

	As we saw last time, someone who holds AU has a place for rules (the 
"secondary principles" of Ch. II), but only as guides or rules of thumb.  The sort of 
rules that figure in RU are rules of a different sort.  They are what Rawls calls practice 
rules as opposed to summary rules.  [On this distinction, study "Two Concepts of 
Rules" carefully]

VI  A question to leave you with:  should a utilitarian hold AU or RU?  On the one 
hand, RU seems likelier to accord with most people's moral judgments about cases.  
On the other hand, if what matters must is the general happiness, then why should one 
not do what will promote that, even if it conflicts witth some rule, the general 
enforcement of which, would maximize happiness.  As moral agents, what we have in 
our power is simply to act, not to create a rule, so why should we not therefore be 
concerned with which act would best promote the general good?