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Published online by Cambridge University Press: 01 January 2020
The main difficulty utilitarians have faced is the problem of reconciling the dictates of utility with what seem clearly to be moral duties, but based on considerations of Justice. John Stuart Mill addressed this problem in his essay, Utilitarianism, and the result has not served to silence the critics of utilitarianism on this score. In part, this is due to the fact that Mill's position in the chapter on Justice is not entirely clear, nor is it entirely convincing where it is clear. Still, I do not think Mill's views on Justice have been given their due. In this essay, I shall try to show that Mill anticipated recently defended principles that rely on appeal to a notion of fairness or fair play, and that these can be given a utilitarian foundation.
1 The chief exception is the work of Professor David Lyons. I refer below to several papers of his that lead up to his treatment of Mill on Justice. He has very kindly allowed me to read several papers he has written on Mill's theory of Justice, not yet published; and he has given me helpful comments on an earlier version of this paper, for which I am grateful. Also, a part of this paper was developed in a personal exchange of views with Professor Gertrude Ezorsky, to whom I am also grateful.
2 Hart, H.L.A., “Are There Any Natural Rights?” The Philosophical Review, 64 (1955), 185.CrossRefGoogle Scholar
3 Rawls, John, A Theory of Justice (Cambridge, Mass.: Harvard University, 1971), 112.Google Scholar later in the book, Rawls elaborates important qualifications, and distinguishes the principle of fairness from a “natural” duty to support and further Just institutions (pp. 333-355). I shall not be concerned with these finer points.
4 Mill, J.S., Utilitarianism, Vol. XGoogle Scholar of Collected Works, ed. Robson, J.M. (Toronto: Toronto University Press, 1969), 247.Google Scholar (Hereafter, the Collected Works will be abbreviated by “CW”.)
5 Ibid., 246. Mill's analysis of the nature of a moral Judgment raises some problems of interpretation. On the one hand, he may be interpreted as holding that a speaker expresses a moral Judgment only if he or she asserts that someone ought to do something (or has a duty, etc.) and has a moral sentiment that is expressed. On the other hand, he can be taken to hold that a moral Judgment asserts that the speaker has a moral sentiment. This is, roughly, the distinction between a non-cognitivist and subjectivist interpretation of moral language. He may also have accepted both analyses. The relevant discussions in addition to those already cited are in: “letter to William George Ward,” The Later Letters, ed. Francis E. Mineka and Dwight N. Lindley, II, 649, Vol. XV of CW; and A System of Logic, ed. J.M. Robson, 949, Vol. XIII of CW.
6 CW, X, 249-50.
7 Ibid., 250.
8 Mill, James, Analysis of the Phenomena of the Human Mind, ed. Mill, John Stuart (London: Longmans Green Reader and Dyer, 1869), II, 325.Google Scholar
9 CW, X, 249.
10 Ibid., 251.
11 In an introductory essay in Volume X of CW, D.P. Dryer contends that though Mill had taken the notion of duty “in every one of its forms” to imply that the person having it may be compelled to fulfill it, he later exempted duties of imperfect obligation from this connection. (CW, X, xcix-c.) If “compelled to“ can mean “may be subject to moral reproach for violating,” as Mill sometimes did mean,. then Dryer's claim is not clearly true. There is some reason to think, however, that Mill would have limited the “enforcement” of imperfect duties to reproach, recrimination, entreaty, etc., in which case there would be a significant difference in the mode of enforcement to which the two sorts of duty are liable; for, violations of duties of perfect obligation may properly call forth the infliction of harm, limitations on liberty, social ostracism, etc., as well as reproach.
12 CW, X, 338.
13 Ibid.
14 Ibid., 231-33.
15 CW, X, 256. This is almost certainly an incorrect analysis of the morality involved in breach of friendship. It is not merely that expectations are disappointed, but that our friend has done this. I have discussed some of the features of the morality of interpersonal relations, and the possibility of a utilitarian account of them, in my essay “Gratitude,” Ethics, 85 (1975), 298-309. Though Mill himself did not take up these issues at any length, he did complain that Bentham's limited view of human nature disabled him from shedding light on the morality of such interpersonal relations as “the sexual relations, or those of family in general, or any other social and sympathetic connexions of an intimate kind.” (CW, X, 98.)
16 CW, X, 256. David Lyons has suggested that here Mill emphasizes not merely the disappointment of expectation, but also habitual reliance. This suggests that it is expectations on which we base important features of our lives which deserve protection, as this reliance generates needs of important kinds which carry the “wound” beyond mere disappointment. At the least, such considerations would be a basis for distinguishing the different degrees of wrongness of various promise and friendship breaches.
17 J.O. Urmson, “The Interpretation of the Moral Philosophy of Mill, J.S.,” The Philosophical Quarterly, 3 (1953), 33-9.Google Scholar I believe the most plausible version of a rule-related view attributed to Mill is that of Lyons, David, “Mill's Theory of Morality,” Nous, 10 (1976), 101-20.CrossRefGoogle Scholar Lyons contends that the principle of utility is not itself a moral rule, and does not lay down moral obligations. Rather, Mill analyzed the concept of moral duty as applying to acts which may Justifiably be required by a coercive rule, though coercion may take only the form of guilt feelings at the thought of doing the act. On this view, our obligations derive wholely from the rules. The principle of utility specifies an end to be achieved — happiness; and Mill's theory is that happiness is attained by means of the adoption of morality, which is a set of rules laying down rights and duties. I shall claim this fits his analysis of Justice, but not a morality as a whole.
18 Lyons, David, “Human Rights and the General Welfare,” Philosophy & Public Affairs, 6 (1977-8), 113-29.Google Scholar
19 I shall cite Just a small part of the evidence —some passages which are not well known. When commenting on Bentham, he wrote: “Insofar as Bentham's adoption of the principle of utility induced him to fix upon the consequences of actions as the consideration determining their morality, so far he was indisputably in the right path.” (CW, X, 111.) In a review he wrote with George Grote, he wrote: “To admit the balance of consequences as a test of right and wrong, necessarily implies the possibility of exceptions to any derivative rule of morality which may be deduced from that test…. Philosophy commands that in dealing with any particular case, the whole of the circumstances, without exception, should be taken into view … and if a man wilfully overlooks the latter [the special circumstances of the case], when they are pregnant with mischievous consequences, he cannot discharge himself from moral responsibility by pleading that he had the general rule in his favor.” (CW, XIX, 638, 640.) This would seem to imply that in the exceptional cases, we act wrongly if we adhere to the rule. The rule-related theory of obligations that Lyons attributes to Mill also permits violations in these cases. However, Lyons’ Mill would be forced to Justify such violations on non-moral grounds, overriding morality itself by utility. I believe the above statement of Mill's (joined in by Grote), rejects this view. Aside from the further evidence in Utilitarianism that is well-known, there is additional support in his “Carlyle's French Revolution;'’ in Mill's Essays on Literature and Society, ed. with an intro. J.B. Schneewind (New York: The Macmillan Company, 1965), 201-02; and, several years after the publication of Utilitarianism, in “Thornton on Labour and Its Claims,” CW, V, 659.
20 I have not attempted a precise formulation as this would raise interpretive difficulties beyond my present concerns. Mill did not think every act is of moral significance, though most contemporary versions of act-utilitarianism have this consequence. In particular, he appears to have held (in common with his father), that self-regarding conduct does not raise issues of right and wrong. The theory of morality I want to attribute to Mill is act-utilitarian in the sense that it holds that within the class of acts which are morally assessable, rightness or wrongness is a function of an act's consequences.
21 Contrary to some interpreters who hold that John Austin's theory is ambiguous between an act- or rule- utilitarian interpretation, the theory I have sketched seems to me quite clearly to be Austin's. Austin defined the tendency of an act to be “the sum of its probable consequences,” and the test of the tendency to consist in asking what would happen if it were generally done. (John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, intro. H.L.A. Hart [London: Weidenfeld and Nicolson, 1954], 38.) Calculation in every case is not needed because rules are available, moreover, “the true result would be expressed by that rule, whilst the process would probably be faulty if it were done on the spur of the occasion.” (Ibid., 49.) Nonetheless, he contended, there will be special cases in which we must calculate specific consequences “to the best of our knowledge and ability.” (Ibid., 53.)
In a letter responding to the logician, John Venn, John Stuart Mill also endorsed the role of rules as a test of the probable consequences: “I agree with you that the right way of testing actions by their consequences, is to test them by the natural consequences of the particular action, and not by those which would follow if every one did the same. But, for the most part, the consideration of what would happen if everyone did the same, is the only means we have of discovering the tendency of the act in the particular case.“ (The Later Letters, CW, XVIII, 1881.)
More recently, R.M. Hare has outlined an act-utilitarian theory that has many of the features of the theory I attribute to Mill. See, Hare, R.M., “Principles,” Proceedings of the Aristotelian Society, 73 (1972-73), 1–18.CrossRefGoogle Scholar
22 I do not believe this was Mill's view. Alan Ryan, however, has held that Mill was not entirely consistent on this point; he claims that Mill's essay, “Whewell on Moral Philosophy” bears the stricter interpretation. (Alan Ryan, J.S. Mill [London: Routledge & Kegan Paul, 1974], 122.) The essay on Whewell is in CW, X, 165-201.
23 The importance of making this distinction is argued for carefully by R. Eugene Bales. See, “Act-Utilitarianism: Account of Right-Making Characteristics or Decision-Making Procedure?” American Philosophical Quarterly, 8 (1971), 257-65. Though Bales seems unaware of it, the classical utilitarians appear to have recognized the distinction in at least embryonic form.
24 CW, X, 111.
25 E.G., Hodgson, D. H., Consequences of Utilitarianism (Oxford: Clarendon Press, 1967), 48.Google Scholar
26 See, Footnote 15, above. The role of strategies with respect to various principles of Justice is explored at some length in the pioneering work of Professor Torstein Eckhoff. See, Justice: Its Determinants in Social Interaction (Rotterdam: Rotterdam University Press, 1974).
27 The Later Letters, CW, XV, 762. The quotation lends some support to David Lyons’ rule-related interpretation of Mill's moral theory. It is, however, consistent also with my interpretation, especially in light of the qualifying clauses “in most cases” and “generally.” Also, the utilities cited seem to follow from recognized rules, not merely ideal ones.
28 It should be noted that Mill almost never made it clear when he was referring to recognized rules, ideal-if-conformed-with rules, ideal-if-adopted rules, etc. It may well be that he thought it is some sort of ideal rule to which appeal is properly made, however, since he also believed that existing social rules tend to embody the results of utilitarian calculation, these can provide a criterion of action, as approximations to the ideal rules. David Lyons may have something like this in mind; see, “Mill's Theory of Morality,” p. 116.
29 There is some reason to think he was not attempting an account and reconcilation of the ordinary notion of a right with his own. He discussed rights in his essay on Austin, in which he stressed that a right is intended for the benefit of the right-holder. In a much earlier essay he took up the ordinary concept of a right in some detail, in the course of a review of a book by a George Cornewall Lewis. He distinguished several senses of a right in ordinary usage, and made some points that may not be entirely consistent with the theory in Utilitarianism. In particular, he held that there is a difference between having a right and having a right to enforce the right. (“Austin on Jurisprudence,” Dissertations and Discussions [London: Longmans, Green, Reader, and Dyer] Ill, 206-74; and “Use and Abuse of Political Terms,” CW, XVIII, 10.) This latter distinction has come to have some importance in contemporary political philosophy. It is stressed in Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, Inc., 1974), 91ff. Mill's comments, however, suggest that it is only a weak kind of right— one which implies only the absence of a duty on the actor's part—to which this distinction applies. See, also, A System of Logic, CW, VIII, 818.
30 It is of interest to note that the theory Lyons attributes to Mill has a similar result, in that he holds that for Mill, appeal to utility itself is open when rights conflict. However, his Mill seems to have to Justify overriding rights in these cases on non-moral grounds. See, e.g., “Mill's Theory of Morality,” 113-14.
31 I have outlined the most important parts of that theory in my essay “Mill's Concept of Happiness,” Interpretation, to appear.
32 Though the point is a bit sophistical, we can claim that Mill could consistently make the point that society can interfere only with harmful conduct (On Liberty) and still institute a “rule of the road.” The antecedently harmful conduct is unsystematic or unregulated behavior.
33 Principles of Political Economy, Vol. Ill of CW, 956.
34 I presume that Mill supposed the employer would want to pay reduced wages.
35 Principles of Political Economy, 957.
36 Ibid., 959. He went so far as to hold that the criminal law as a whole is based primarily on the consideration that each complying citizen is given some guarantee that his or her restriction of behavior will not be a sacrifice to those who do not comply. A similar view of the law is given in Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961), 193.Google Scholar
37 On Liberty, Vol. XVIII of CW, 289.
38 Ibid., 225.
39 E.g., McCloskey, H.J., John Stuart Mill: A Critical Study (London: Macmillan, 1971), 107-08;CrossRefGoogle Scholar and Brown, D.G., “Mill on liberty and Morality,” The Philosophical Review, 81 (1972), 145-46.CrossRefGoogle Scholar
41 Brown, D.G., “Mill on Harm to Others’ Interest,” Political Studies, 26 (1978), pp. 395-9.CrossRefGoogle Scholar
42 In discussing the sentiments expressed in a moral Judgment, Mill indicated that they are a response to “hurts, which wound us through, or in common with, society at large.” (CW, X, 249. Italics added.)
43 These may still appear to be weak claims, easily overridden. Mill, however, seems not to have thought so. In the letter to John Venn, cited in note 21, he held that the mischievous tendency of an act which violates a rule is shown by considering its effect on the security provided by the rule: “And that this mischievous tendency overbalances (unless in very extreme cases) the private good obtained by the breach of a moral rule, is obvious if we take into consideration the importance, to the general good, of the feeling of security, or certainty; which is impaired, not only by every known actual violation of good rules, but by the belief that such violations every occur.” (The Later Letters, XVII, 1881-82.)
44 CW, X, 255.
45 Principles of Political Economy, 807.
46 Some of the problems to be faced in framing an acceptable principle are canvassed in David Lyons, Forms and Limits of Utilitarianism (Oxford: Clarendon Press, 1965), 161-77. There is some further evidence that Mill would have restricted the punishable duty to cases where voluntary entrance into the scheme had been procured. In “Thornton on Labour and Its Claims,” he considered the case of the propriety of Labor unions forcing workers to pay dues, go on strike, etc. He argued that the law ought not to permit forcing workers to do these things, though some will benefit from the sacrifices of the others. Still, the others may properly feel and express “genuine moral disapprobation.” (CW, V, 659-60.) The discussion has some further importance in that it implies a difference in kind between “social pressure” that takes the form of the expression of disapprobation, and that which consists in inflicting further harms or disadvantages. What is left unclear is whether the non-complying workers do have a duty to comply, but that only the weaker enforcement is appropriate.
47 Lyons, Forms and Limits of Utilitarianism, 175·77. The problem is especially complicated in Mill's case, as he held that an act consists of an intention and a physical movement. Where there are different intentions, there are, presumably, different acts. See, especially, A System of Logic, Vol. VII of CW, 55; and On Liberty, CW XVIII, 219-20.
48 The Later Letters, CW, XV, 600.
49 “Remarks on Bentham's Philosophy,” CW, X, 15.
50 Utilitarianism, CW, X, 232.
51 Ibid. This point is reiterated in “Auguste Comte and Positivism,” CW, X, 339.
