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Utilitarian Strategies in Bentham and John Stuart Mill*

Published online by Cambridge University Press:  26 January 2009

P. J. Kelly
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Extract

The argument of this paper is part of a general defence of the claim that Bentham's moral theory embodies a utilitarian theory of distributive justice, which is developed in his Civil Law writings. Whereas it is a commonplace of recent revisionist scholarship to argue that J. S. Mill had a developed utilitarian theory of justice, few scholars regard Bentham as having a theory of justice, let alone one that rivals in sophistication that of Mill. Indeed, Gerald J. Postema in his book Bentham and the Common Law Tradition, argues that Bentham had no substantial concern with the concept of justice, and that what analysis of the concept there is in Bentham's thought is unlike the utilitarian theory of justice to be found in chapter five of J. S. Mill's Utilitarianism Although Postema's interpretation is not the only one that will be addressed in this paper, it serves as an important starting point for any rival interpretation of Bentham's ethical theory for two reasons. Firstly, it is the most comprehensive and most penetrating discussion of Bentham's utilitarian theory, drawing as it does on a wide variety of published and unpublished materials written throughout Bentham's career. Secondly, it is interesting in this particular context because the contrast that Postema draws between Bentham's and Mill's theories of justice depends upon a particular reading of Mill's theory of justice and utility which is derived from recent scholarship and which is by no means uncontroversial. As part of the defence of the claim that Bentham had a sophisticated theory of distributive justice, it will be argued in this paper that the contrast drawn between Bentham and Mill does not stand up to careful scrutiny, for insofar as Mill's theory of justice can be consistently defended it is not significantly different from the utilitarian strategy that Bentham employed for incorporating considerations of distributive justice within his theory. This is not to claim that there are not significant differences between the theories of justice of Bentham and J. S. Mill, but it is to claim that whatever technical differences exist between their theories, both writers saw the need to incorporate the concept of justice within utilitarianism. Therefore, rather than showing that Mill is an interesting thinker to the extent that he abandons his early Benthamism, by demonstrating how close Mill's theory of utility and justice is to that of Bentham, it will be possible to argue that Bentham employed a sophisticated and subtle utilitarian theory that was responsive to the sort of problems which occupied Mill a generation later.

Type
Research Article
Information
Utilitas , Volume 2 , Issue 2 , November 1990 , pp. 245 - 266
Copyright
Copyright © Cambridge University Press 1990

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Footnotes

*

A version of this paper was first presented at the International Bentham Society Conference, King's College, Cambridge, 13–15 July 1989. I am grateful to Professor Gerald Postema and Professor David Lyons for their comments on a subsequent draft.

References

1 For an extended discussion of this interpretation see Kelly, P. J., Utilitarianism and Distributive Justice: Jeremy Bentham and the Civil Law, Oxford, 1990Google Scholar; see also Kelly, P. J., ‘Utilitarianism and Distributive Justice: The Civil Law and the Foundations of Bentham's Economic Thought’, Utilitas, i (1989), 62–81.CrossRefGoogle Scholar

2 See Lyons, D., ‘Mill's Theory of Morality’, Nous, x (1976), 101–20CrossRefGoogle Scholar; ‘Human Rights and General Welfare’, Philosophy and Public Affairs, vi (1977), 113–29Google Scholar; ‘Mill's Theory of Justice’, in Goldman, A. I. and Kim, J. eds., Values and Morals, Dordrecht, 1978, pp. 1–20CrossRefGoogle Scholar; and ‘Benevolence and Justice’, in Miller, H. B. and Williams, W. H. eds., The Limits of Utilitarianism, Minneapolis, 1982, pp. 42–70Google Scholar; also Gray, J., Mill On Liberty: A Defence, London, 1983CrossRefGoogle Scholar, and Berger, F., Happiness, Justice and Freedom: The Moral and Political Philosophy of John Stuart Mill, Berkeley, 1984.Google Scholar

3 For a standard criticism of Bentham's utilitarian theory as being hostile to the concept of justice see Bedau, H. A., ‘Justice and Classical Utilitarianism’, Nomos, vi (1963), 284–305.Google Scholar

4 Postema, G. J., Bentham and the Common Law Tradition, Oxford, 1986, p. 149.Google Scholar

5 Hart, H. L. A., ‘Natural Rights: Bentham and John Stuart Mill’, Essays on Bentham, Oxford, 1982, p. 86.Google Scholar

6 For recent revisionist Mill scholarship see n. 2 above.

7 Hollander, S., The Economics of John Stuart Mill, 2 vols., Oxford, 1985, ii. 645–56Google Scholar, and Rosen, F., ‘Bentham and Mill on Liberty and Justice’, in Feaver, G. and Rosen, F. eds., Lives, Liberties and the Public Good, London, 1987, pp. 121–38.CrossRefGoogle Scholar

8 The literature on utilitarianism is vast, but a good guide to recent debates is to be found in Griffin, J., ‘Modern Utilitarianism’, Révue Internationale de Philosophie, xxxvi (1982), 318–30.Google Scholar

9 Only William Godwin appears to have accepted the ‘anarchical’ implications of such an unrestricted act-utilitarianism. See Godwin, W., Enquiry Concerning Political Justice, ed. Priestley, F. E. L., Toronto, 1946.Google Scholar

10 See note 2 above. I shall concentrate largely on Lyons's account for it is this which Postema uses in drawing his contrast between Bentham and Mill. See Postema, , p. 149.Google Scholar

11 Lyons, , ‘Mill's Theory of Justice’, pp. 3–4.Google Scholar

12 Mill, J. S., Utilitarianism, in Essays on Ethics, Religion and Society, ed. Robson, John M., Toronto, 1969Google Scholar (The Collected Works of John Stuart Mill, vol. x), x. 203–60.Google Scholar

13 Mill writes: ‘Thus the idea of legal constraint is still the generating idea of the notion of justice, though undergoing several transformations before that notion, as it exists in an advanced state of society, becomes complete’ (Essays on Ethics, Religion and Society, CW, x. 246).Google Scholar

14 Ibid.

15 Lyons writes: ‘These considerations suggest that Mill had a view like this. To call an act wrong is to imply that guilt feelings, and perhaps other sanctions, would be warranted against it. But sanctions assume coercive rules. To show an act wrong, therefore, is to show that a coercive rule against it would be justified’ (‘Mill's Theory of Morality’, p. 91).Google Scholar

16 In this Lyons follows an argument made by D. G. Brown. See Brown, D. G., ‘Mill's Act-Utilitarianism’, Philosophical Quarterly, xxiv (1974), 133–58.Google Scholar

17 To be fair to Lyons, his argument is intended as a rational reconstruction of Mill's theory; it is not his intention to assert that all passages throughout Mill's writings can be rendered logically consistent in one general theory.

18 Here Mill writes: ‘The creed which accepts as the foundation of morals, utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain and the privation of pleasure’ (Essays on Ethics, Religion and Society, CW, x. 210).Google Scholar

19 Lyons, , ‘Mill's Theory of Justice’, pp. 3–4Google Scholar, and ‘Mill's Theory of Morality’, p. 103.Google Scholar

20 Lyons, , ‘Mill's Theory of Morality’, p. 111.Google Scholar

21 Postema, , p. 1Google Scholar59. A similar interpretation is adopted by Ross Harrison, who argues that while Bentham employs rules in the application of his utilitarian theory, these are simply generalizations based on the contributions to utility of past actions. See Harrison, , Bentham, London, 1983, pp. 243–4.Google Scholar

22 Postema, , pp. 148–9.Google Scholar

23 Postema writes:

… Bentham is not arguing for a principled restriction of official attention to considerations of expectation utilities, to the exclusion of all other potentially relevant utilities. His utilitarian theory of justice does not mark a departure from the direct act-utilitarian view that the principle of utility is always the sovereign decision principle. Tied to expectation is a species of utilities which in Bentham's view, are especially weighty in contexts of official decision-making, and this is why they tend to override relevant original utilities. But there is no reason to believe that they will do so in every case (p. 154).

24 The Works of Jeremy Bentham, ed. Bowring, John, 11 vols., Edinburgh, 1838–1843, i. 302–64.Google Scholar

25 Ibid, i. 308.

26 Ibid.

27 Postema, , pp. 160–1Google Scholar. Postema is right to argue that these passages present only the barest sketch of an argument. However, the weight and importance attached to them is justified by Bentham's consistent reliance on expectation as a major, if not the major, utilitarian consideration.

28 In the 1829 ‘Article on Utilitarianism’, in Deontology Together with A Table of the Springs of Action and Article on Utilitarianism, ed. Goldworth, Amnon, Oxford, 1983Google Scholar (The Collected Works of Jeremy Bentham), pp. 289–318Google Scholar, Bentham refers to property as including rights to protection of the person, possessions, condition in life and reputation.

29 Postema, , pp. 321–4.Google Scholar

30 Lyons, , ‘Utility and Rights’, Nomos, 24 (1982), 107–38.Google Scholar

31 As Sartorius, Rolf points out in Individual Conduct and Social Norms, Belmont, Ca., 1975:Google Scholar

The act-utilitarian is therefore in fact able to give an account of social norms which bar direct appeals to utility as more than mere rules of thumb in a two-fold sense. Firstly, they perform the central function of directing human behaviour into channels that it would not otherwise take by restructuring the sets of considerations of consequences of which utilitarian moral agents must take account. Secondly, they provide reasons for action in that their conventional acceptance is tantamount to the existence of systems of warranted expectations, the disappointment of which is a disutility according to standard normal cases of their violation (pp. 70–1).

32 Bentham did not accept the conservative position of Hume, that the maintenance of a stable and secure pattern of social rules was all that was required by justice. However, though Bentham introduced the disappointment-preventing principle in his later writings as a means of reconciling security of expectation with the requirements of reform, the principle was intended as a means of minimizing the disutility that necessarily arose from certain required interferences with a given pattern of expectations.

33 It is perhaps not surprising that Bentham's own concerns with Poor Law administration and various economic projects are concentrated in the decade of the 1790s, at the height of the war with France.

34 Dinwiddy, J., Bentham, Oxford, 1989, p. 9.Google Scholar

35 The following reconciliationist account is indebted to Berger, 's Happiness, Justice and Freedom.Google Scholar

36 For a brief summary of some of the passages where Mill acknowledges the ‘proportionality’ criterion, and direct appeals to the principle of utility as an appropriate means of moral decision-making, see Berger, , pp. 155–6Google Scholar. In the following passage Mill appears to suggest that while justice and obligation-creating moral rules are perhaps the most important parts of morality, they do not exhaust its content, thus leaving the possibility for the principle of utility to function as a moral principle.

While I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life (Essays on Ethics, Religion and Society, CW, xz. 255.)Google Scholar

37 Mill, J. S., An Examination of Sir William Hamilton's Philosophy, ed. Robson, John M., Toronto, 1979CrossRefGoogle Scholar (The Collected Works of John Stuart Mill, vol ix), ix. 454 and 460.Google Scholar

38 Mill, J. S., ‘Thornton on Labour and Its Claims’, in Essays on Economics and Society, 2 vols., ed. Robson, John M., Toronto, 1967Google Scholar (The Collected Works of John Stuart Mill, vols, v–vi), v. 651 and 659.Google Scholar

39 Mill, J. S., ‘Bentham’, in Essays on Ethics, Religion and Society, CW, x. 110–11.Google Scholar

40 Robson, J. M., The Improvement of Mankind, Toronto, 1968, p. 140.CrossRefGoogle Scholar

41 Hart, H. L. A., ‘Introduction’, to An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1982, p. xlviii.Google Scholar

42 Hart, , ‘Natural Rights: Bentham and John Stuart Mill’, p. 86.Google Scholar

43 Hart, , ‘Natural Rights: Bentham and John Stuart Mill’, pp. 86–7.Google Scholar

44 Lyons, , ‘Mill's Theory of Morality’, p. 111.Google Scholar

45 UC lxi. 47Google Scholar and BL Add. MSS 33550. fo. 55.

46 A Comment on the Commentaries and A Fragment on Government, ed. Burns, J. H. and Hart, H. L. A., London, 1977Google Scholar (The Collected Works of Jeremy Bentham), p. 399.Google Scholar

47 Postema, , pp. 156–8.Google Scholar

48 Bowring, , x. 511.Google Scholar

49 Deontology (CW), p. 308.Google Scholar

50 Ibid.

51 See UC c. 96–186Google Scholar; UC lxi. 9–10, 19–21, 26–66, 83–97Google Scholar; and BL Add. MS 33550. fos. 48–144.

52 See for example ‘Pannomial Fragments’, Bowring, , ii. 211–30Google Scholar. This work was edited from manuscripts by Richard Smith following Bentham's death.

53 Bowring, , i. 302.Google Scholar

54 UC lxi. 47.Google Scholar

55 Bowring, , ii. 213.Google Scholar

56 BL Add. MS 33,550. fo. 57, and 143.

57 See Postema, , pp. 415–21Google Scholar; Rosen, F., Jeremy Bentham and Representative Democracy, Oxford, 1983, p. 106Google Scholar; and Schwartz, P., ‘Jeremy Bentham's Democratic Despotism’, in Collison, R. D., ed., Ideas in Economics, London, 1986, pp. 74–103.CrossRefGoogle Scholar

58 The four classes of harm are found in An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970Google Scholar (The Collected Works of Jeremy Bentham), pp. 191–4Google Scholar, and Of Laws in General, ed. Hart, H. L. A., London, 1970Google Scholar (The Collected Works of Jeremy Bentham), pp. 200–4Google Scholar. See also the following manuscripts: BL Add. MS 33,550. fos. 50 and 117; UC c. 173Google Scholar; and UC lxi. 30Google Scholar. In these later manuscripts the four categories of harm most commonly feature as an illustration of the scope and boundaries of the legislator's role in providing security.

59 UC c. 186.Google Scholar

60 UC clx. 169–70.Google Scholar

61 Essays on Ethics, Religion and Society, CW, x. 251.Google Scholar

62 For an interesting discussion of Mill and Bentham on moral rights see Sumner, L. W., The Moral Foundation of Rights, Oxford, 1987, p. 140Google Scholar. Sumner argues that Bentham's resolute hostility to using the language of rights for those ideal legal and conventional rights which could be given a utilitarian justification can be traced to Bentham's hostility to the French Revolution, and the shadow that those events cast over his generation. The spectre of the French Revolution and the Terror had considerably receded by the time that Mill, wrote Utilitarianism, two generations later.Google Scholar

63 Bentham's employment of the concept of a security enables him to avoid some of the problems that Hart raises for an account of moral rights within the utilitarian theories of Bentham and Mill. See Hart, , ‘Natural Rights: Bentham and John Stuart Mill’, pp. 79–104CrossRefGoogle Scholar. Firstly, by abandoning the language of moral rights, Bentham is able to avoid the difficulties that arise from Mill's analysis of moral rights as a reason for the creation of a conventional moral or legal right. The problem with such a position is that it precludes the claim that someone has a moral right to x from serving as a ground for a legal right, for this would mean that if the having of a moral right already means that there is a reason for there being a conventional legal or moral right, then the claim that x has a moral right is not itself serving as a reason for there being such a conventional right. This sort of problem can be avoided by adopting a realist methodology where all rights are features of conventional rule systems, and employing the concept of a security to refer to those particularly weighty considerations which may not feature within a given conventional configuration of rights, but which on the grounds of utility ought to be included. Secondly, Bentham's use of the concept of a security enables him to identify a particular set of considerations that ought to be incorporated within the configuration of rights and titles. In the Civil Law writings Bentham uses securities to demarcate a basic realm of personal inviolability which in turn provides the conditions of interest formation and the conditions of personal continuity and coherence. In this way the sort of considerations incorporated in a utilitarian theory of justified legal or conventional rights are able to provide peremptory near stringent constraints on direct appeals to the principle of utility, and they are precisely the sort of considerations which, according to Hart, must be at the root of an adequate notion of moral rights.

64 Essays on Ethics, Religion and Society, CW, x. 255.Google Scholar