INTRODUCTION.
ONE of the most characteristic features of twentieth-century jurisprudence has been the development, primarily in the United States but latterly in this and other countries, of sociological approaches to problems of law. This is not surprising as the social sciences have an influence this century almost comparable to that of religious in earlier periods of history. Legal thought has tended to reflect the trends to be found in sociology. So long as functionalist, consensus-oriented approaches dominated the sense in sociology. Sociological jurisprudence mirrored this prevailing paradigm. Roscoe Pound, the most influential sociological jurists, is the leading representative of this approach. More presently conflict theories have tended to dominate the sociological stage and this have been reflected in legal thinking too.[1]
This is one of the reason why it is difficult to identify a central proposition or official philosophy of sociological jurisprudence. Nevertheless, one can pinpoint a number of ideas to be found in the thinking of those who adopt a sociological approach to the legal order. There is a relief in the non-uniqueness of law: a vision of law as but one method of social control. There is also a rejection of a jurisprudence of concepts, the view of law as a close legal order. The short comings of formal, logical analysis were noticed as the twentieth century produced new problems for which existing law did not provide solutions. Further, sociological jurists tend to be sceptical of the rules presented in the textbooks and concerned to see what really happens, ‘the law in action’. Sociological jurists also tend to expose relativism. They reject the belief of naturalism that an ultimate theory of values can be found, they see reality as socially constructed with no natural guide of solution of many conflicts. Sociological jurists also believe in the importance of harnessing the techniques of the social sciences, as well as the knowledge culled from sociological research, towards the erection of a more effective science of law. Lastly, there is an abiding concerned with social justice, though in what this consists, and how it is to attained, views differ. Does law, for example, function as an instrument outside particular interests in some neutral way, as Pound thought, or is it the result of the operation of interests, as contemporary conflicts jurists argue? 1f Upon the answer to this question much demands, including whether law can be used for the purposes of social engineering and, if so, to what effect.[2]
This seminar paper shall focus more on the sociological theory as enunciated by the utilitarian school of jurisprudence, with particular focus on Bentham and Mill. I shall also be analysing other forms of Utilitarian Theory.
COMTE AND SOCIOLOGY
The first serious attempt to apply the scientific method to social phenomena was made by Auguste Comte (1798-1857), who invented the term ‘sociology’[3]. This was part of powerful emphasis in the nineteenth century on science as the royal road to progress. Comte urged that there are four means of social investigation, namely, observation, experiment, comparison, and the historical method; and that it is the last which is peculiar to of special value to sociology. The data of this latter method were to be taken from observation and tested against the known law of human nature. This involved some advance on Bentham who confined his attention to the laws of human nature as a foundation of social science to the virtual neglect of history. John Stuart Mill at any rate, so regarded it, and considered that, by means of this method, empirical generalisations could attain the status of laws and sociology thus become a science.[4]
Unfortunately, Comte did not remain true to his own scientific approach, and in his latter years deserted the empirical method of sweeping a prior affirmations, such as his view that there were invariable natural laws operating in the field of social activity. He laid down that mankind inevitably passes through three stages, the theological (where phenomena are explained in terms of superior beings), the metaphysical (where abstract entities like nature are held responsible) and the scientific or positive (at which stage man is content to observe phenomena). Such was his final dogmatism that he was led to formulate an authoritarian conception of the character of positive society, and also to put forward a new Religion of Human, with an elaborate ritual aimed at achieving an effective means of social cohesion. On this, Mill made the comment Others may laugh, but we would rather weep at this melancholy decadence of a great intellect.[5]
ROSCOE POUND AND SOCIOLOGY.
Nowhere has the study of laws in society been taken up with such industry and enthusiasm as in America. Here, the law school and the jurists enjoy a status akin to that of jurists on the continent as superior to that of their counterparts in Great Britain. These factors have combined to produce an American movement in sociological jurisprudence of great importance which draws it exponents both from the faculty and the bench. Outstanding among this is Pound (1870-164), of the Harvard Law School, As with Bentham, his theme was a constant one, maintained in his extensive writings through out a very long period.[6]
Sociological jurisprudence, according to Pound, should ensure that the making, interpretation and application of laws take accounts of social facts. Towards achieving this end there should be (a) a factual study of the social effects of legal administration, (b) social investigations as preliminaries to legislation, (c) a constant study of the means of making laws more effective, which involves, (d) the study, both psychological and philosophical, of the judicial method, (e) a sociological study of legal history, (f) allowance for the possibility of a just and a reasonable solution of individual cases, (g) a ministry of justice in English-speaking countries, and (h) the achievement of the purposes of the various laws. This comprehensive programme covers, as is evident, every aspect of the social study of laws. It is not possible to follow Pounds elaboration of each of this aspects, and all that can be done here is not to outline his thought.[7]
The common law, he said, still bear the impress of individual rights. So, in order to achieve the purposes of the legal order there has to be (a) a recognition of certain interests, individual, public and social, (b) a definition of the limits within which such interests will be legally recognised and given effect to, and (c) the securing of those interests within the limits as defined. When determining the scope and subject-matter of the system the following five things require to be done: (i) preparation of an inventory of interests classifying them; (ii) demarcation of interests which should be legally recognised; (iii) demarcation of the limits of securing the interests so selected;(iv) consideration of the means whereby laws might secure the interests when these has been acknowledged and delimited ; and (v) evolution of the principles of valuation of the interests.[8]
Pound likened the task of the lawyer to engineering, an analogy which he used repeatedly. The aim of social engineering is to build as efficient a structure of society as possible, which requires the satisfaction of the maximum of wants with the minimum of friction and waste. 2 It involves the balancing of competing interests. For these purpose interests were defined as claims or wants or desires (or, I would like to say, expectations) which men assert de facto, about which the law must do something if organised societies are to endue . it is the task of the jurists to assist the courts by classifying and expatiating on the interests protected by the law.[9]
UTILITARIAN THEORY BY JEREMY BENTHAM
English utilitarian philosopher and social reformer. He first attained attention as a critic of the leading legal theorist in eighteenth century England, Sir William Blackstone. Bentham's campaign for social and political reforms in all areas, most notably the criminal law, had its theoretical basis in his utilitarianism, expounded in his Introduction to the Principles of Morals and Legislation, a work written in 1780 but not published until 1789. In it he formulated the principle of utility, which approves of an action in so far as an action has an overall tendency to promote the greatest amount of happiness. Happiness is identified with pleasure and the absence of pain. To work out the overall tendency of an action, Bentham sketched a felicific ("happiness-making") calculus, which takes into account the intensity, duration, likelihood, extent, etc of pleasures and pains.
In Bentham's theory, an action conforming to the principle of utility is right or at least not wrong; it ought to be done, or at least it is not the case that it ought not be done. But Bentham does not use the word 'duty' here. For Bentham, rights and duties are legal notions, linked with the notions of command and sanction. What we call moral duties and rights would require a moral legislator (a divine being presumably) but theological notions are outside the scope of his theory. To talk of natural rights and duties suggests, as it were, a law without a legislator, and is nonsensical in the same way as talk of a son without a parent. Apart from theoretical considerations, Bentham also condemned the belief in natural rights on the grounds that it inspired violence and bloodshed, as seen in the excesses of the French Revolution.
Bentham at first believed that enlightened and public-spirited statesmen would overcome conservative stupidity and institute progressive reforms to promote public happiness. When disillusionment set in, he developed greater sympathy for democratic reform and an extension of the franchise. He believed that with the gradual improvement in the level of education in society, people would be more likely to decide and vote on the basis of rational calculation of what would be for their own long-term benefit, and individual rational decision-making would therefore, in aggregate, increasingly tend to promote the greater general happiness.
Bentham had first-hand knowledge of the legal profession and criticised it vehemently. He also wrote a highly entertaining Handbook of Political Fallacies 1824, which deals with the logic and rhetoric of political debate.
Bentham figured prominently among the small number of men who became known as phlosophical radicals, but his utilitarianism was not much discussed until the latter half of the nineteenth century. His prolific writings were published in part by devoted disciples, but some were published for the first time in the 1940s and after, and the publication of his complete works is still in progress. Among these writings is an analysis of the logic of denote concepts, and On Laws in General contains a carefully elaborated theory of jurisprudence." [10]
UTILITARIAN THEORY BY STUART MILL
The canonical statement of Mill's utilitarianism can be found in Utilitarianism. This philosophy has a long tradition, although Mill's account is primarily influenced by Jeremy Bentham and Mill's father James Mill.
Mill's famous formulation of utilitarianism is known as the "greatest-happiness principle". It holds that one must always act so as to produce the greatest aggregate happiness among all sentient beings, within reason. Mill's major contribution to utilitarianism is his argument for the qualitative separation of pleasures. Bentham treats all forms of happiness as equal, whereas Mill argues that intellectual and moral pleasures are superior to more physical forms of pleasure. Mill distinguishes between happiness and contentment, claiming that the former is of higher value than the latter, a belief wittily encapsulated in the statement that "it is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question."
Mill defines the difference between higher and lower forms of happiness with the principle that those who have experienced both tend to prefer one over the other. This is, perhaps, in direct contrast with Bentham's statement that "Quantity of pleasure being equal, push-pin is as good as poetry",[20] that, if a simple child's game like hopscotch causes more pleasure to more people than a night at the opera house, it is more imperative upon a society to devote more resources to propagating hopscotch than running opera houses. Mill's argument is that the "simple pleasures" tend to be preferred by people who have no experience with high art, and are therefore not in a proper position to judge. Mill supported legislation that would have granted extra voting power to university graduates on the grounds that they were in a better position to judge what would be best for society. It should be noted that, in this example, Mill did not intend to devalue uneducated people and would certainly have advocated sending the poor but talented to universities: he believed that education, and not the intrinsic nature of the educated, qualified them to have more influence in government.
The qualitative account of happiness that Mill advocates thus sheds light on his account presented in On Liberty. As Mill suggests in that text, utility is to be conceived in relation to mankind "as a progressive being", which includes the development and exercise of his rational capacities as he strives to achieve a "higher mode of existence". The rejection of censorship and paternalism is intended to provide the necessary social conditions for the achievement of knowledge and the greatest ability for the greatest number to develop and exercise their deliberative and rational capacities.[11]
AN OVER VIEW OF UTILITARIAN THEORY
The most famous definition of utilitarianism equates it with the belief, ‘That action is best which procures the greatest happiness of the greatest number’. Although generally associated with Bentham, who quoted it with approval, the statement was first made by Francis Hutcheson in his Inquiry into the Original of our Ideas of Beauty and Virtue (1725). The doctrine that actions should be judged on their capacity to produce happiness is an ancient one, recognizable as the classical Greek eudaemonism. However, it was only in the secular and commercial milieu of eighteenth-century Britain that it became an important and respectable philosophy, if not yet a dominant one. The works of Bentham, especially An Introduction to the Principles of Morals and Legislation, provide the most explicit statement of utilitarianism, but Hume and Burke were also utilitarians to some degree.
The ‘greatest happiness of the greatest number’ is an indication of the spirit and purpose of utilitarianism, but perhaps also a pointer to the intellectual problems which bedevil the philosophy. It seems to imply a prescription to maximize the population, since the maximization of xy is as well achieved by increases in y as in x. In so far as more people means less happiness per capita (as it means less space and fewer resources), then the definition sets up an indeterminate tension between numbers and individual happiness. It is clear that most utilitarians, including Bentham, intend the greatest happiness of a given number of people or of the whole existing population. ‘Happiness’ has not been successfully developed as a concept; nor have ‘pain’, ‘pleasure’, or ‘utility’. Bentham offers a ‘felicific calculus’ to measure these concepts by considering their ‘intensity’, ‘fecundity’, ‘duration’, and so on, but even the most sympathetic contemporary utilitarian would not claim that the calculus actually offers us anything precise or capable of implementation. It is even crucially ambiguous as to whether ‘pain’ refers to states of very low pleasure, tending towards zero, or of negative pleasure, worse than death.
The ‘greatest happiness of the greatest number’ is an indication of the spirit and purpose of utilitarianism, but perhaps also a pointer to the intellectual problems which bedevil the philosophy. It seems to imply a prescription to maximize the population, since the maximization of xy is as well achieved by increases in y as in x. In so far as more people means less happiness per capita (as it means less space and fewer resources), then the definition sets up an indeterminate tension between numbers and individual happiness. It is clear that most utilitarians, including Bentham, intend the greatest happiness of a given number of people or of the whole existing population. ‘Happiness’ has not been successfully developed as a concept; nor have ‘pain’, ‘pleasure’, or ‘utility’. Bentham offers a ‘felicific calculus’ to measure these concepts by considering their ‘intensity’, ‘fecundity’, ‘duration’, and so on, but even the most sympathetic contemporary utilitarian would not claim that the calculus actually offers us anything precise or capable of implementation. It is even crucially ambiguous as to whether ‘pain’ refers to states of very low pleasure, tending towards zero, or of negative pleasure, worse than death.
ECONOMIC AND BROAD UTILITARIANISM
Only biologists and behaviourists, by concentrating on the physical concomitants of pain and pleasure rather than the sensations, have succeeded in making scientific concepts out of pain and pleasure. But these scientific meanings suggest that utilitarian policy-makers should look to pleasure machines or pleasure drugs as their general aggregate which utilitarians would seek to maximize has been given several names including, recently, ‘satisfaction’ and ‘human flourishing’, but in the wake of the failure of the central concept, the philosophy has developed in two different directions, which can be called economic and broad utilitarianism. Economic utilitarianism replaces happiness as the central concept by the extent to which individuals get what they choose (or would choose, if they had a choice). It is thus able to develop a precise and sophisticated theory based on real and hypothetical choices and to allocate monetary values to outcomes; it generates such political and administrative applications as cost-benefit analysis.
Economic utilitarianism uses very different concepts from those used by Bentham, but it can be said to have developed in a Benthamite spirit.
Economic utilitarianism uses very different concepts from those used by Bentham, but it can be said to have developed in a Benthamite spirit.
Broad utilitarianism, as it has been developed by moral philosophers, is more in the spirit of Hume and J. S. Mill in so far as it tends to eschew precise calculation in favour of more general utilitarian judgement and abandons the rigorous uni dimensionality of the Benthamite concept of pleasure (‘the quantity of pleasure being equal, pushpin is as good as poetry’) to allow more qualitative judgements. The weakness of this approach is that it endangers the distinction between utilitarian moral and political philosophy and rival traditions. If we allow the possibility of qualitative judgement such as a presumption in favour of the profundity of the pleasure derived from poetry as against the triviality of that gained from pushpin, then have we not lost the rigorous insistence on the unbiased comparison of all goods which is typically utilitarian? Similarly, there is a problem about rules. Strictly, a utilitarian should acknowledge that ‘rules are made to be broken’ and calculate each individual act of obedience and disobedience on its consequences. But we are likely to be happier if at least some rules are obeyed habitually and generally.
DOCTRINE OF RULE UTILITARIANISM
The doctrine of ‘rule utilitarianism’ suggests that we should always obey the rule which, if always obeyed, would have better consequences than any other rule, always obeyed. Arguably, this cannot be called utilitarianism at all, its insistence on strict adherence to rules having crossed a philosophical boundary into neo- Kantianism. Perhaps a more convincingly utilitarian solution to the problem of rules is John Rawls's conception of ‘summary rules’, practices which we should generally, though not ‘religiously’, conform to in order to avoid the costs of endless calculations and to enjoy the benefits of social order.
A broad utilitarian outlook, by allowing a range of judgements about the quality of pleasure and the consequences of actions, is bound to allow utilitarian judgement to be informed by other philosophies to which the person making the judgement leans, whether traditionalist, libertarian, feminist, or whatever. However, even broad utilitarianism has its boundaries; the limits of what constitutes utilitarianism and what lies clearly in non-utilitarian territory can be delineated by three conditions, individually necessary and collectively sufficient to define it as a distinct form of political philosophy. Utilitarianism is necessarily:
(1) consequentialist. It judges, evaluates, and proposes actions according to their consequences and not, as deontological moralists do, according to conformance to a rule or rules, whether derived from reason, revealed religion, or the human condition.
(2) Aggregative. It sums benefits for a population. This can be a state population (as a kind of summary rule about responsibility) or the global population. It may or may not take account of the interest of creatures other than Homo sapiens, but what it does not do is to allow any individual claims or rights to be wholly immune from inclusion in the aggregate sum.
(3) Sensualist. What is aggregated must be reducible to the feelings of well- and ill-being of living entities. No virtue or advantage shall be counted which is not so reducible.
Utilitarianism entered politics as a radical philosophy, challenging orthodoxy, since its most famous development was stimulated by Bentham's hostility to Sir William Blackstone's lectures on law (published as Commentaries on the Laws of England). Blackstone attempted to derive English law from natural law, while Bentham was keen to establish that laws were made and not discovered by men and therefore could and should be chosen because of their consequences. Nor does utilitarianism necessarily support existing property rights, and early practical utilitarians such as Edwin Chadwick were instrumental in increasing the regulation of industry and the provision of public services. Utilitarianism does, after all, start from an egalitarian premiss: Bentham insisted that ‘each is to count for one and no-one for more than one’.
But it is unlikely that a doctrine which seeks to maximize happiness over a foreseeable future could counsel revolution or even rapid social change. In Anarchical Fallacies Bentham rigorously opposed the natural rights doctrines of the French revolutionaries as ‘nonsense on stilts’, a new version of the old error of natural law. Utilitarianism has been, typically, the basis of liberal-conservative positions, realistic and reformist. With the demise of many of the traditional positions in political theory after 1945, utilitarianism came to hold a dominant position in non-Marxist thought. 1979 Herbert Hart referred to this as ‘the widely accepted old faith that some form of utilitarianism, if only we could discover the right form, must capture the essence of political morality’
A broad utilitarian outlook, by allowing a range of judgements about the quality of pleasure and the consequences of actions, is bound to allow utilitarian judgement to be informed by other philosophies to which the person making the judgement leans, whether traditionalist, libertarian, feminist, or whatever. However, even broad utilitarianism has its boundaries; the limits of what constitutes utilitarianism and what lies clearly in non-utilitarian territory can be delineated by three conditions, individually necessary and collectively sufficient to define it as a distinct form of political philosophy. Utilitarianism is necessarily:
(1) consequentialist. It judges, evaluates, and proposes actions according to their consequences and not, as deontological moralists do, according to conformance to a rule or rules, whether derived from reason, revealed religion, or the human condition.
(2) Aggregative. It sums benefits for a population. This can be a state population (as a kind of summary rule about responsibility) or the global population. It may or may not take account of the interest of creatures other than Homo sapiens, but what it does not do is to allow any individual claims or rights to be wholly immune from inclusion in the aggregate sum.
(3) Sensualist. What is aggregated must be reducible to the feelings of well- and ill-being of living entities. No virtue or advantage shall be counted which is not so reducible.
Utilitarianism entered politics as a radical philosophy, challenging orthodoxy, since its most famous development was stimulated by Bentham's hostility to Sir William Blackstone's lectures on law (published as Commentaries on the Laws of England). Blackstone attempted to derive English law from natural law, while Bentham was keen to establish that laws were made and not discovered by men and therefore could and should be chosen because of their consequences. Nor does utilitarianism necessarily support existing property rights, and early practical utilitarians such as Edwin Chadwick were instrumental in increasing the regulation of industry and the provision of public services. Utilitarianism does, after all, start from an egalitarian premiss: Bentham insisted that ‘each is to count for one and no-one for more than one’.
But it is unlikely that a doctrine which seeks to maximize happiness over a foreseeable future could counsel revolution or even rapid social change. In Anarchical Fallacies Bentham rigorously opposed the natural rights doctrines of the French revolutionaries as ‘nonsense on stilts’, a new version of the old error of natural law. Utilitarianism has been, typically, the basis of liberal-conservative positions, realistic and reformist. With the demise of many of the traditional positions in political theory after 1945, utilitarianism came to hold a dominant position in non-Marxist thought. 1979 Herbert Hart referred to this as ‘the widely accepted old faith that some form of utilitarianism, if only we could discover the right form, must capture the essence of political morality’
Economic utilitarianism is often attacked for the narrowness of its considerations and for its bogus precision. Broad utilitarianism meets two alternative criticisms: either it is treated as so broad and bland that it lacks proper boundaries as a philosophy or it is immoral in that the utilitarian approach to ethics profoundly contradicts our intuitive sense of right and wrong, most often our sense of justice or fairness.
The most important defence of utilitarianism is that there is no alternative to it as a public philosophy—in a secular and ethically pluralist age. Politicians cannot avoid causing the death of innocent people if they try to keep public expenditure in check or to help maintain a semblance of international order. Utilitarianism, uniquely, accepts this and yet makes an important moral demand of those who make policy: they must always consider the ‘bottom line’ of their decisions, who is gaining and who is losing and whether the net aggregate of well-being might not be better served by an alternative. Thus as a ‘government house philosophy’ (as Robert Goodin puts it) utilitarianism retains a leading, even unique, role.[12]
The most important defence of utilitarianism is that there is no alternative to it as a public philosophy—in a secular and ethically pluralist age. Politicians cannot avoid causing the death of innocent people if they try to keep public expenditure in check or to help maintain a semblance of international order. Utilitarianism, uniquely, accepts this and yet makes an important moral demand of those who make policy: they must always consider the ‘bottom line’ of their decisions, who is gaining and who is losing and whether the net aggregate of well-being might not be better served by an alternative. Thus as a ‘government house philosophy’ (as Robert Goodin puts it) utilitarianism retains a leading, even unique, role.[12]
Motive Utilitarianism.
Motive utilitarianism, first developed by Robert Adams (Journal of Philosophy, 1976), can be viewed either as a hybrid between act and rule or as a unique approach all on its own terms. The motive approach attempts to deal realistically with how human beings actually function psychologically. We are indeed passionate, emotional creatures, we do much better with positive goals than with negative prohibitions, we long to be taken seriously, and so on and so forth. Motive utilitarianism proposes that our initial moral task be to inculcate within ourselves and others the skills, inclinations, and mental focuses that are likely to be most useful (or in less perfectionist terms, merely highly useful) across the spectrum of real-world situations we are likely to face, rather than the hypothetical situations seemingly so common in philosophical publications. Indeed, motive utilitarianism can even be seen as a response to this unofficial rule against textured real-world examples. For example, similar to the 80-20 rule in business and entrepreneurship, we might be able to most improve the future prospects of all sentient creatures if we do a large number of activities in open partnerships with others, rather than a few perfect things done sneakily.
Two examples of motive utilitarianism in practice might be a gay person coming out of the closet and a politician publicly breaking with a war. In both cases, there is likely to be an initial surge of power and confidence, as well as a transitional period in which one is likely to be losing old friends before making new friends, and unpredictably so on both counts. Another example might be a doctor who is a skilled diagnostician. Such a physician is likely to spend most of their serious study time or continuing education time on current research, direct skills for running a successful practice, etc., and only occasionally return to first principles—that is, only occasionally do something as an interesting study in biochemistry, and then as much as a hobby as anything else.
NEGATIVE UTILITARIANISM
Most utilitarian theories deal with producing the greatest amount of good for the greatest number of people. Negative utilitarianism (NU) requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. Proponents like Karl Popper, Christoph Fehige and Clark Wolf argue that this is a more effective ethical formula, since, they contend, the greatest harms are more consequential than the greatest goods. Karl Popper also referred to an epistemological argument: “It adds to clarity in the fields of ethics, if we formulate our demands negatively, i.e., if we demand the elimination of suffering rather than the promotion of happiness.”.[5] In the practical implementation of this idea the following versions can be distinguished:
1. R.N.Smart, an advocate of the utilitarian principle, was quick to suggest that the ultimate aim of NU would be to engender the quickest and least painful method of killing the entirety of humanity, as this ultimately would effectively minimize suffering. NU would seem to call for the destruction of the world even if only to avoid the pain of a pinprick.[6]
2. Newer, moderate versions of NU do not attempt to minimize all kinds of suffering but only those kinds that are created by the frustration of preferences.[7] In most supporters of moderate NU the preference to survive is stronger than the wish to be freed from suffering, so that they refuse the idea of a quick and painless destruction of life. Some of them believe that, in time, the worst cases of suffering are defeated and a world of minor suffering can be realized. The principal agents of this direction can be found in the environment of transhumanism and abolitionism (bioethics).[8]
Supporters of moderate NU who do not believe in the promises of technology would prefer a reduction of the world population (and in the extreme case an empty world). This seems to come down to the position of radical NU, but in moderate NU the world could only be sacrificed to prevent extreme suffering and not to avoid the pain of a pinprick. And from the claim that an empty world would be a preferable state of affairs, it does not follow that a political movement should be formed with the aim of achieving such a state of affairs. The latter would definitely (and in analogy to radical NU) be counterproductive. Pessimistic supporters of moderate NU therefore tend towards a retreat oriented way of living.
3. Finally there are theoreticians who see NU as a branch within classical utilitarianism, rather than an independent theory. This interpretation overlooks Derek Parfit's “Repugnant Conclusion”.[9] NU is precisely characterized by overcoming this theoretical weakness of classical utilitarianism.
AVERAGE Vs TOTAL
Total utilitarianism advocates measuring the utility of a population based on the total utility of its members. According to Derek Parfit, this type of utilitarianism falls victim to the Repugnant Conclusion, whereby large numbers of people with very low but non-negative utility values can be seen as a better goal than a population of a less extreme size living in comfort. In other words, according to the theory, it is a moral good to breed more people on the world for as long as total happiness rises.[10]
Average utilitarianism, on the other hand, advocates measuring the utility of a population based on the average utility of that population. It avoids Parfit's repugnant conclusion, but causes other problems like the Mere Addition Paradox. For example, bringing a moderately happy person in a very happy world would be seen
Karl Marx's criticisms
“ | Not even excepting our philosopher, Christian Wolff, in no time and in no country has the most homespun commonplace ever strutted about in so self-satisfied a way. The principle of utility was no discovery of Bentham. He simply reproduced in his dull way what Helvétius and other Frenchmen had said with esprit in the 18th century. To know what is useful for a dog, one must study dog-nature. This nature itself is not to be deduced from the principle of utility. Applying this to man, he who would criticise all human acts, movements, relations, etc., by the principle of utility, must first deal with human nature in general, and then with human nature as modified in each historical epoch. Bentham makes short work of it. With the driest naiveté he takes the modern shopkeeper, especially the English shopkeeper, as the normal man. Whatever is useful to this queer normal man, and to his world, is absolutely useful. This yard-measure, then, he applies to past, present, and future. The Christian religion, e.g., is "useful," "because it forbids in the name of religion the same faults that the penal code condemns in the name of the law." Artistic criticism is "harmful," because it disturbs worthy people in their enjoyment of Martin Tupper, etc. With such rubbish has the brave fellow, with his motto, "nulla dies sine line!," piled up mountains of books.[23] | ” |
Marx's accusation is twofold. In the first place, he says that the theory of utility is true by definition and thus does not really add anything meaningful. For Marx, a productive inquiry had to investigate what sorts of things are good for people—that is, what our nature, alienated under capitalism, really is. Second, he says that Bentham fails to take account of the changing character of people, and hence the changing character of what is good for them. This criticism is especially important for Marx, because he believed that all important statements were contingent upon particular historical conditions.
Marx argues that human nature is dynamic, so the concept of a single utility for all humans is one-dimensional and not useful. When he decries Bentham's application of the 'yard measure' of now to 'the past, present and future', he decries the implication that society, and people, have always been, and will always be, as they are now; that is, he criticizes essentialism. As he sees it, this implication is conservatively used to reinforce institutions he regarded as reactionary. Just because in this moment religion has some positive consequences, says Marx, doesn't mean that viewed historically it isn't a regressive institution that should be abolished.
Marx's criticism is more a criticism of Bentham's views (or similar views) of utility, than utilitarianism itself. Utilitarians do not deny that different things make different people happy, and that what promotes happiness changes over time. Neither would utilitarians deny the importance of investigations into what promotes utility.
Marx's criticism applies to all philosophy that does not take explicit account of the movement of history (against dialectics).Although Marx criticized utilitarianism, some Marxist philosophers have used utilitarian principles as arguments for political socialism.
The Wittgensteinian Critique
Contemporary philosophers such as Matthew Ostrow have critiqued utilitarianism from a distinctly Wittgensteinian perspective. According to these philosophers, utilitarians have expanded the very meaning of pleasure to the point of linguistic incoherence. The utilitarian groundlessly places pleasure as his or her first principle, and in doing so subordinates the value of asceticism, self-sacrifice or any other "secondary" desire. The utilitarian denies that this is a problem, either by claiming that "secondary" desires amount to different paths to achieving the first desire of pleasure or that any practice of asceticism that does not create pleasure either for the ascetic or for others is valueless.
Such an argument may be tautological ("What is it that people want? Pleasure. But what is pleasure? What people want.") The utilitarian therefore has no ultimate justification for why we ought to primarily value pleasure. If this is the case, utilitarianism would be reduced to a form of dishonest ethical intuitionism, unable to recognize or acknowledge its own groundlessness. This is unlikely. For the ethically naturalistic utilitarian, operationalization easily terminates processes of circular defining ("What is it that people want? Pleasure. And what is that? Pleasure is X neural correlates).[13]
CONCLUSION.: It is my humble submission that the principles of utilitarianism as enunciated by all the sociological jurist mentioned above, are practicable and duly enforceable even in today’s society. Chapter 2 of the 1999 Constitution of the Federal Republic of Nigeria, deals on social rights extensively in Section 17. It provides that ‘ the state social life is founded on ideals of freedom, equality and justice. The state shall direct its policies towards ensuring , that the interest of the citizens are protected in all areas, against poverty, discrimination, medical and health facilities, provision of public assistance. This is not far from the Utilitarian theory. The reality on ground however is that even though this is enshrined in our constitution, the practicability is far from reality. We still have people living below the normal standard, in a country like our with so much resources.
REFERENCES.
1. Lord Lloyd of Hampstead: Introduction To Jurisprudence, 4th Edition, 1979,
2. Dias: Jurisprudence, 4th Edition, 1976,
4. http://en.wikipedia.org/wiki/Utilitarianism
The Penguin Dictionary of Philosophy ,ISBN [1] Lord Lloyd of Hampstead: Introduction To Jurisprudence, 4th Edition, 1979, pg 344
[2] Lord Lloyd of Hampstead: Introduction To Jurisprudence, 4th Edition, 1979, pg 344
[3] See his treatise on Human Nature(1740) on Hume
[4] Lord Lloyd of Hampstead: Introduction To Jurisprudence, 4th Edition, 1979, pg 344-345
[5] Lord Lloyd of Hampstead: Introduction To Jurisprudence, 4th Edition, 1979, pg 345
[6] A convenient selection of writings isThe Jurisprudence of Interests(trans Schoch, 20th century Legal Philosophy Series, Vol 2
[7] Dias: Jurisprudence, 4th Edition, 1976, pg596
[8] Dias: Jurisprudence, 4th Edition, 1976, pg596
[9] Dias: Jurisprudence, 4th Edition, 1976, pg596
[10]The Penguin Dictionary of Philosophy
Edited:ThomasMautner
ISBN 0-14-051250-0(www.utilitarian.com/Bentham.htm
ISBN 0-14-051250-0(www.utilitarian.com/Bentham.htm
[13] Article copied from: http://en.wikipedia.org/wiki/Utilitarianism
No comments:
Post a Comment