Does Mill's utilitarianism take adequate account of
our ordinary intuitions about justice?

One of the stock criticisms of Mill's Utilitarianism is that it fails to take adequate account of our ordinary intuitions about justice.  In Chapter V of Utilitarianism, Mill recognizes that on first impressions, justice would seem to conflict with the principle of utility.  The principle of utility is concerned with the aggregation of happiness (a.k.a. utility or welfare), and is blind to the distribution amongst persons.  Justice, on the other hand, is concerned with relative distributions of happiness (utility or welfare) and is blind to the aggregate across all persons.  But he proceeds to argue that contrary to first impressions, there is no conflict between our intuitions about justice and the successful achievement of the greatest aggregate utility (happiness or welfare).

The classic example offered to demonstrate this conflict is the "Sherriff and the Lynch Mob" (which comes in many different guises).  The lynch mob believes that Smith is guilty of murdering and raping a child.  And the Sherriff has arrested Smith and locked him in jail.  But Smith is innocent, and the Sherriff has established this to his own satisfaction.  In the Sherriff's mind there is no question about it.  (Variations in the scenario have it that the Sherriff is correct, or that he is mistaken.  But these differences do not matter.)  The lynch mob, however, is unaware of the evidence upon which the Sherriff is basing his judgement.  Moreover, due to the nature of that evidence, the Sherriff knows the mob would be disinclined to believe it (you can here insert reasons of race, colour, religion, or whatever else might better suit your own notion of bias).  The lynch mob demands that the Sherriff surrender Smith to the mob.  The mob has already caused damage to local buildings and businesses, and should the Sherriff resist the mob there will likely be more damage and some deaths -- possibly including that of the Sherriff.  So what is the Sherriff to do?  Our intuitions about justice dictate that the Sherriff defend Smith at all costs.  Critics of Utilitarianism suggest that Utilitarianism would recommend that the Sherriff surrender Smith to the mob as that would be the means to the greatest aggregate happiness -- despite the resulting unjust death of Smith.

In Chapter V of Utilitarianism, however, Mill lays out an argument that renders the critic's understanding of the recommendations of Utilitarianism incorrect.  While Mill argues that his principle of utility (or principle of aggregate happiness) is the proper criterion of right action, he is not a single-level act-utilitarian.  Using utilitarianism as a single-level decision procedure for determining the morally right thing to do requires both that one be entirely impartial between people at all times, and be constantly calculating the best course of action.  In Chapter III of Utilitarianism, Mill clearly acknowledges that relying on act utilitarianism as a moral theory does not require the adoption of act utilitarianism as a single-level decision procedure. 

Mill recognizes that what he calls "customary morality" consists of rules that have been learned over time through trial and error.  He writes:

"There has been ample time, namely, the whole past duration of the human species.  During all that time, mankind have been learning by experience the tendencies of actions; on which experience all the prudence, as well as all the morality of life is dependent . . ."
                             Mill, Utilitarianism, Chapter II.

These rules of customary morality can be shown, in most cases, to have a suitable foundation in utility when analyzed according to the utilitarian moral theory.  Only where the rules of customary morality conflict, or where those rules are clearly not appropriate to the circumstances, or when one has the luxury of being able to engage in abstract and disinterested philosophical reflection, does Mill recommend conscious resort to the principle of utility and the resulting calculations of aggregate happiness.  Hence it is clear that Mill is setting up the principle of utility as a criterion, but only occasionally as a decision procedure, for right action.  In most practical cases of moral decision making, Mill recommends reference to the rules of customary morality as a guide.  And it is within this multi-levelled conception of how the principle of utility is to be applied in the usual circumstances, that Mill positions his Utilitarian analysis of justice.

Within his analysis of how the personalized demands of justice can be reconciled with depersonalized demands of the principle of utility, one of the first things he does is separate the emotional reactions (what he calls "sentiments") associated with issues of justice from the analysis of the utilitarian foundations of justice.

Mill's analysis positions justice clearly amongst the rules of customary morality.  His argument is that the demands of justice are in fact consistent with the principle of utility when they are viewed as social rules integral to customary morality.  His argument is that there is a high degree of utility that accrues to each individual within a social setting when each individual is guaranteed personal security.  When the rules of customary morality are established so that each individual is assured of his/her own security the aggregate of happiness is greater than when these rules are absent.  There may be unusual circumstances where the principle of utility may recommend these rules of customary morality (and justice) be violated.  But because we are not normally blessed with the luxury of sufficient time and an infallible knowledge of consequences to undertake a detailed analysis from first principles, the rules of justice (like other rules of customary morality) form a good basis for a decision procedure in most situations. 

Mill argues for the utility of the rules of justice by way of duties, obligations, and rights.  For Mill, a duty is an obligation imposed by the rules of customary morality.  He starts by dividing all the rules of customary morality into those which impose a "perfect obligation" and those which impose an "imperfect obligation".  A perfect obligation is a duty imposed by customary morality to do (or refrain from doing) something to or for some specific individual.  An imperfect obligation is a duty imposed by customary morality to do (or refrain from doing) something without a specific person in mind.

With that bifurcation in hand, Mill then examines the "perfect obligation" from the perspective of the recipient and calls that obligation a "right" from the recipient's perspective.  Every perfect obligation imposed on an agent entails a right due to the recipient (and vice versa of course).  The recipient has a right to demand that you fulfill the perfect obligations of which he is the recipient.  For example, paying a debt is a perfect obligation because there is a specific benefactor (the lender) who is the recipient.  But being charitable is an imperfect obligation because there is no one in particular that is the recipient.  There is no one who has a corresponding right to demand the fulfillment of the duty.

Seen now as an asset of the recipient, perfect obligations can be seen as obvious utilities for the recipient.  And it becomes obviously to the benefit of the recipient to establish systems of formal and informal rewards (social commendations) and penalties (social punishments) to reinforce the fulfillment of these perfect obligations.  When then aggregated over the entire population, it becomes clear that the net aggregate utility is greater when these obligations are generally fulfilled than when they are not.  (Perhaps a debateable point, but this at least is Mill's argument.)  Mill then argues that by analogy with the analysis of perfect obligations, the net aggregate utility is greater when the imperfect obligations are generally fulfilled than when they are not.  Our intellectual capabilities allow us to appreciate that the net aggregate utility is enhanced when imperfect obligations are generally fulfilled, and this motivates similar systems of formal and informal reward and penalties to reinforce their fulfillment.  This, in turn, enhances the net aggregate utility of their general fulfillment.

The emotional attachment that we have formed for the rules of justice, Mill derives from our instinct for self-defence.  To update his argument somewhat -- evolution has equipped us with a strong emotional reaction when our welfare is threatened.  Through the avenue of sympathy with our family and friends, we extend that strong emotional reaction to situations when the welfare of our family and friends is threatened.  And through the avenue of our intellectual appreciation of the benefits of being a part of a social group, we extend that emotional reaction to situations where the welfare of our social group is threatened.  Having evolved as a social species for several million years, we have become well equipped with instinctive emotional responses that urge us to repay "evil for evil" and "good for good".  The former encourages us to penalize those who would harm us (or our social environment), while the later encourages us to engage in reciprocal altruism.  Thus we arrive at the strong emotional attachments we experience to our notions of what is just.

"Justice remains the appropriate name for certain social utilities which are vastly more important, and therefore more absolute and imperative, than any others as a class. . . . and which, therefore, ought to be, as well as naturally are, guarded by a sentiment not only different in degree but also in kind., . . ."
                        Mill, Utilitarianism, Chapter V

If we apply Mill's Utilitarian analysis of justice to a scenario like the "Sherriff and the Lynch Mob", we can see that a proper interpretation of Utilitarian principles does not in fact support the critic's suggestion that Utilitarianism would recommend that the Sherriff surrender Smith to the mob.  Mill would argue that our ordinary intuitions about justice and the Sherriff's defence of Smith are supported by a proper Utilitarian analysis for a number of reasons:

(a) the rules of "customary morality" as they apply to the justice of legal rights, moral rights and just desert demand that the Sherriff defend Smith, and those rules have been "learned" by society over many generations of trial and error to be the best means of achieving the Utilitarian standard of the greatest aggregate utility;

(b) none of the players in (or observers of) the scenario are sufficiently equipped with the necessary knowledge of consequences to complete a thorough Utilitarian analysis from first principles, and would therefore likely reach an erroneous conclusion.  The net aggregate utility is likely to be better served by following the secondary Utilitarian principle that the dictates of "customary morality" (our ordinary intuitions about justice) are to be adhered to when in doubt;

(c) because of the importance that rules of justice have within our "customary morality" and within our social environment, there will be attached to any violation of Smith's rights (the Sherriff's and the Mob's obligations) sufficient penalties and sanctions that any alleged net aggregate utility from surrendering Smith to the mob would probably be over-balanced.  Should Smith be surrendered, the Sherriff and members of the Mob would probably face prison, fines, social disgrace, loss of job and family, etc.;

(d) and finally, because Utilitarianism is thoroughly impartial in its evaluation, the Sherriff must not weigh the potential threat to his own life any more or less than the threat to Smith's life.  And because Utilitarianism presumes that individual utilities (happiness, welfare) are comparable and summable, any Utilitarian analysis of the scenario must not just count the individual lives that may be threatened.  The (net) sum total of utilities across all affected individuals, and across all relevant time frames must be considered.  The potential social costs of lawlessness can be and must be balanced against any potential loss of life. 

Only by outrageously gerrymandering the details of the scenario can a critic rig the consequences to reverse Mills' conclusions.  So the recommendations of Utilitarianism are in fact in sync with our intuitions about justice within the scenario.

On balance then, given Mill's conception of the principle of utility as the basis for a multi-level act-utilitarian decision procedure, and his conception of justice as a set of rules-of-thumb within customary morality, his moral theory of Utilitarianism successfully resolves the alleged conflict between the distributory nature of justice and the aggregate nature of principle of utility.  General obedience to the rules of justice is clearly (at least according to Mill) to the greater net aggregate benefit (happiness, utility, or welfare) of all.  Our ordinary intuitions about justice are adequately accounted for as the consequence of many millennia of trial and error discovery of workable rules-of-thumb that successfully achieve the Utilitarian standard of right action without consciously pursuing that standard.

 

Notes & References

Ashford, Elizabeth: "Utilitarianism, Integrity, and Partiality" in The Journal of Philosophy, Vol 97, No. 8 (Aug 2000), pp 421-439

Crisp, Roger; Routledge Philosophy Guidebook to Mill on Utilitarianism, Routledge, London, England. 1997. ISBN 0-415-10978-7

Brink, David, "Mill's Moral and Political Philosophy", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL=

Mill, John Stuart; The Basic Writings of John Stuart Mill, Random House, New York, New York, 2002. ISBN 0-375-75918-2

West, Henry R.; Mill's Utilitarianism, Continuum Books, London, England. 2007. ISBN 0-826-49302-5

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