Utilisme en rechten van mensen

 Het utilisme is vaak bekritiseerd omdat het de (morele) rechten van mensen niet zou respecteren. Volgens Rawls komt dit voort uit hetzelfde euvel waarom utilisme verdelingsvragen niet serieus neemt, namelijk dat het geen recht doet aan de fundamentele gescheidenheid van personen. Daarom kan het utilisme ook geen recht doen aan de (morele) rechten van personen.

Toch menen nogal wat utilisten dat utilisme niet in strijd is met rechten en persoonlijke vrijheid. Bentham bijvoorbeeld meende dat wettelijke en institutionele rechten heel goed verdedigd kunnen worden op basis van het utilisme. Rechten als fysieke integriteit of eigendomsrechten zullen immers bijdragen aan, of zelfs noodzakelijk zijn voor het vergroten van het maatschappelijk nut. Mill gaat nog een stapje verder dan Bentham. In zijn ogen kunnen op grond van het utilisme zelfs morele rechten zoals het recht op vrijheid ("liberty principle") verdedigd worden.

Volgens sommige critici kunnen utilisten alleen recht doen aan (morele) rechten voor zover die rechten bijdragen aan de vergroting van maatschappelijk nut of welvaart. Ze kunnen die rechten geen zelfstandige morele grond geven (volgens veel utilisten is dat echter ook helemaal niet wenselijk). Dat betekent dat er altijd uitzonderingen op de rechten gemaakt kunnen worden. Merk overigens op dat die uitzonderingen frequenter zullen zijn in handelingsutilisme dan in regelutilisme.

Volgens Sen is niet alleen het utilisme niet in staat recht te doen aan bepaalde rechten maar schieten ook deontologische benaderingen, zoals die van Kant, te kort. Op basis van een deontologische benadering zou verdedigd kunnen worden dat ik de rechten van anderen niet mag schenden. Volgens Sen kan echter een deontologiusche benadering geen recht doen aan het feit dat het soms geoorloofd is een (kleiner) recht van iemand te schenden om daarmee een (groter) recht van een derde te beschermen. Sen geeft een ingenieus voorbeeld om dat aan te tonen. Een reeks van benaderingen passeert de revue - handelingsutilisme, maximin, regelutilisme en deontologische benaderingen - die volgens Sen allemaal niet in staat zijn het moreel juiste antwoord te produceren. Het alternatief zoekt Sen in een vorm van consequentialisme die rekening houdt met rechten.

John Rawls

John Rawls

J. Rawls, A Theory of Justice, section 5.

The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals any more than it matters, except indirectly, how one man distributes his satisfactions over time. The correct distribution in either case is that which yields the maximum fulfillment. Society must allocate its means of satisfaction whatever these are, rights and duties, opportunities and privileges, and various forms of wealth, so as to achieve this maximum if it can. But in itself no distribution of satisfaction is better than another except that the more equal distribution is to be preferred to break ties. It is true that certain common sense precepts of justice, particularly those which concern the protection of liberties and rights, or which express the claims of desert, seem to contradict this contention. But from a utilitarian standpoint the explanation of these precepts and of their seemingly stringent character is that they are those precepts which experience shows should be strictly respected and departed from only under exceptional circumstances if the sum of advantages is to be maximized. Yet, as with all other precepts, those of justice are derivative from the one end of attaining the greatest balance of satisfaction. Thus there is no reason in principle why the greater gains of some should not compensate for the lesser losses of others; or more importantly, why the violation of the liberty of a few might not be made right by the greater good shared by many. It simply happens that under most conditions, at least in a reasonably advanced stage of civilization, the greatest sum of advantages is not attained in this way. No doubt the strictness of common sense precepts of justice has a certain usefulness in limiting men's propensities to injustice and to socially injurious actions, but the utilitarian believes that to affirm this strictness as a first principle of morals is a mistake. For just as it is rational for one man to maximize the fulfilment of his system of desires, it is right for a society to maximize the net balance of satisfaction taken over all of its members.

The most natural way, then, of arriving at utilitarianism (although not, of course, the only way of doing so) is to adopt for society as a whole the principle of rational choice for one man. Once this is recognized, the place of the impartial spectator and the emphasis on sympathy in the history of utilitarian thought is readily understood. For it is by the conception of the impartial spectator and the use of sympathetic identification in guiding our imagination that the principle for one man is applied to society. It is this spectator who is conceived as carrying out the required organization of the desires of all persons into one coherent system of desire; it is by this construction that many persons are fused into one. Endowed with ideal powers and sympathy and imagination, the impartial spectator is the perfectly rational individual who identifies with and experiences the desires of others as if these desires were his own. In this way he ascertains the intensity of these desires and assigns them their appropriate weight in the one system of desire the satisfaction of which the ideal legislator then tries to maximize by adjusting the rules of the social system. On this conception of society separate individuals are thought of as so many different lines along which rights and duties are to be assigned and scarce means of satisfaction allocated in accordance with rules so as to give the greatest fulfilment of wants. The nature of the decision made by the ideal legislator is not, therefore, materially different from that of an entrepreneur deciding how to maximize his profit by producing this or that commodity, or that of a consumer deciding how to maximize his satisfaction by the purchase of this or that collection of goods. In each case there is a single person whose system of desires determines the best allocation of limited means. The correct decision is essentially a question of efficient administration. This view of social cooperation is the consequence of extending to society the principle of choice for one man, and then, to make this extension work, conflating all persons into one through the imaginative acts of the impartial sympathetic spectator. Utilitarianism does not take seriously the distinction between persons.

John Stuart Mill


When we call anything a person's right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion. If he has what we consider a sufficient claim, on whatever account, to have something guaranteed to him by society, we say that he has a right to it. If we desire to prove that anything does not belong to him by right, we think this done as soon as it is admitted that society ought not to take measures for securing it to him, but should leave him to chance, or to his own exertions. Thus, a person is said to have a right to what he can earn in fair professional competition, because society ought not to allow any other person to hinder him from endeavoring to earn in that manner as much as he can. But he has not a right to three hundred a-year, though he may happen to be earning it; because society is not called on to provide that he shall earn that sum. […] 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. (Mill, Utilitarianism, Chapter 5).

That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. (Mill, On Liberty, Chapter 1)


Amartya Sen

A. Sen

A. Sen, “Rights and Agency”, Philosophy and Public affairs, 1982.

In the instrumental view rights are not valuable in themselves, but right-based rules, conventions, institutions, etc., are useful in pursuing other -right-independent- goals. The most commonly identified goals in the instrumental approach tend to be "welfarist" goals, with the goodness of states of affairs being judged entirely by the personal utility features of the respective states. One special case of welfarist evaluation is by far more common than others, and that is the case of utilitarian evaluation in which the goodness of a state of affairs is judged simply by the sum total of personal utilities in that state. But other welfarist approaches exist, for example, judging states by the utility level of the worst-off individual in that state, as under a variant of Rawls's "Difference Principle," or by some other method of distribution-sensitive aggregation of personal utilities.

In contrast, in the constraint-based deontological view rights are treated as constraints on actions. These constraints must not be violated even if such violation would lead to better states of affairs. Violating rights is simply wrong. Unlike in the instrumental view, rights are given intrinsic importance, but unlike in "goal rights systems," to be presented later in this paper, rights directly affect judgments of actions- and only of actions -rather than being embedded first in the evaluation of states of affairs and then affecting the evaluation of actions through consequential links between actions and states. As Robert Nozick puts it, "Individuals have rights, and there are things no person or group may do to them (without violating their rights)." Further, "Rights do not determine a social ordering but instead set the constraints within which a social choice is to be made, by excluding certain alternatives, fixing others, and so on."

I shall now argue that both the welfarist instrumental approach (including, inter alia, the traditional utilitarian approach) and the deontological constraint-based approach are inadequate in important ways. Furthermore their respective inadequacies are related to a common ground shared by the two, despite sharp differences in other respects. The particular common ground is the denial that realization and failure of rights should enter into the evaluation of states of affairs themselves and could be used for consequential analysis of actions. Nozick's view that "rights do not determine a social ordering" is shared fully by welfarists in general and utilitarians in particular. Their ways part there, however, with the welfarist instrumentalist viewing rights in terms of their consequences for right-independent goals and the constraint-based deontologist reflecting rights without consequential justification as constraints on actions. State-evaluation independent of rights leaves a gap that cannot be adequately closed by either of these approaches.

An Illustrative Moral Problem

Ali is a successful shopkeeper, who has quickly built up a good business in London since immigrating from East Africa. He is, however, hated by a small group of local racists, and a particular gang of them—I shall call them bashers—are, it happens, planning to bash Ali that evening in some secluded spot to which Ali will go alone. Donna, a West Indian friend of Ali, has just come to know of the bashers’ plan, and wants to warn Ali about it. But Ali has gone away for the day, and will go to that secluded spot without returning home. Donna does not know where Ali has gone nor the location of the planned bashing, but she does know that Ali has left a message in the desk of his business contact Charles about his movement. However, Charles is away for the day also, and cannot be contacted. Hence the only way of getting Ali’s message is by breaking into Charles’s room. Donna asked for the help of the police, who dismissed Donna’s storey as a piece of paranoiac fantasy. Donna knows that she can certainly frustrate the planned bashing by breaking into Charles’s room, recovering the message, and warning Ali during the day. But she cannot do this without violating the privacy of Charles, who is, Donna also knows, a secretive man who will feel rather embarrassed at the thought of someone looking through his personal papers to find the message. Indeed, Donna also knows Charles, a self-centered egoist, well enough to be sure that he will be more disturbed by the violation of his own privacy than by the bashing of Ali. What should Donna do?
The long-term utilities of Ali and the ten people in the gang of bashers are given in Table 1 (please look up in the book).

Notice that Ali will suffer a good deal more than any of the bashers will gain in utility terms, but the aggregate utility gain of the bashers exceeds the utility loss of Ali. In terms of these utilities, however, Ali remains better off than the gang of poor, unemployed bashers, even though his suffering is large enough to make a substantial impact on his long-term utility total.
Donna considers the utility information in viewing the problem first from the welfarist angle. In terms of the utilitarian objective, it is clear that the bashing up is doing more good than harm. There could be indirect effects, of course, but Donna finds that they won’t be very serious in this case. There is so much fear of racial violence in that locality anyway, that one incident will not add significantly to the general sense of insecurity. Also, whether or not the bashing is prevented by warning Ali, the bashers will continue to go about their business as usual, and there will certainly not be any better chance of making the police take some action if Ali is not actually bashed up. Thus, there is nothing in these considerations to weaken the utility argument for the incident. Of course, there is Charles’s utility also, but that will strengthen the case for no action by Donna, since breaking into his room to stop the bashing will reduce his utility. Donna turns next to the welfarist version of Rawlsian difference principle. She finds that the utility level of the worst-off individuals will go up rather than down as a consequence of the bashing up. So this “maximin” view also favors doing nothing to stop the bashing up. Indeed, so will every welfarist criterion that responds positively to a larger utility total, more equally distributed. So Donna moves to indirect utilitarian (and more generally, indirect welfarist) reasoning. She can well believe that among the class of ‘uniform’ rules dealing with bashing up, the rule of not treating anyone thus, in any situation whatever, may receive much support from the point of view of utilitarian evaluation of outcomes. But clearly from the same point of view that is, at most, a second best if choices are not necessarily confined to such uniform rules. Better still will be compliance with the no-bashing rule except in cases like this, in view of the net utility gain from this particular incident. Why should utilitarianism settle for such a second best by arbitrarily restricting choices to the class of rigid rules only? Will it not be better from the utilitarian point of view to have a more flexible rule that permits bashing up in cases of the type described, thereby avoiding unnecessary sacrifice of utility? The justification of any policy—be it a rule, or an act, or something else—must rest ultimately on the ability to produce the best outcomes, judged by “outcomes utilitarianism.”

However, it is possible that following such flexible rules is not feasible, and this is quite possible a case when we should deal with ‘disposition’ as a variable. Henry Sidgwick had seen in this an argument for going against act utilitarian reasoning, and recently this aspect of the problem has been thoroughly investigated from different perspectives in the works of Richard Hare, Robert Adams, John Harsanyi, and others. Even if a particular act of bashing, or raping, or torturing improves the utility picture, given other things, this does not imply a utilitarian endorsement of that act if that act must go with a certain disposition that will typically cause harm. The eschewal of that act will then be a necessary part of the suppression of that bad disposition.

Donna ponders over this indirect utilitarian reasoning, and becomes convinced that if she were to advise the bashers on what to do, from the utilitarian point of view, she would indeed argue for the removal of the disposition to bash up innocent people (including Ali). But Donna also recognizes that advising the bashers on what to do is not the exercise in which she is currently engaged, and her actions, whatever they are, are most unlikely to have any significant effect on the disposition of the bashers. Her moral problem concerns the issue of whether to break into Charles’s room to collect the information that will permit her to warn Ali. There is no direct utilitarian case for her to break in, and it is not clear how bringing in the choice of dispositions is going to provide an argument for her to break in. Of course, if a disposition “to break into other people’s rooms” were found to be a good disposition to cultivate, this would give her, in terms of disposition utilitarianism, a reason to break in. But she can hardly believe that it is likely that such a general disposition to break in, or even a disposition to break in for a perceived excellent cause, will be a good one to cultivate in terms of utilitarian evaluation of consequences. Clearly, what is needed in this particular case and in cases like this is a discriminating defence of breaking in that balances pros and cons, rather than a general disposition to break down the door. And in this case such a calculating defence of the act of breaking in is yet to be found within the utilitarian (and more generally, welfarist) approach.

Of course, a strong argument for breaking into Charles’s room could have emerged if the violation of Ali’s bodily integrity were given a force strong enough for it not to be outweighed by the countervailing utility advantage of the bashers. But the utilitarian and other welfarist methods of outcome evaluation do not permit this, as they insist on judging the strength of claims exclusively in terms of utility information only.

Despite this failure of welfarism (including utilitarianism) to give Donna a good ground for doing what her moral conviction tells her she should do, to wit, break into Charles’s room and save Ali, she decides that she must stick by her conviction. How can a person’s bodily integrity, his freedom to move about without harm, be outweighed by mere pleasure or desire-fulfillment of the bashers? By not stopping the bashers, she would rob Ali of one of his most elementary rights. With this thought in mind, Donna decides to turn now to constraint-based deontological approaches. And yes, she sees that there is indeed an inflexible “side constraint,” in Nozick’s terms, which is morally imposed on the bashers not to bash up Ali. However, this constraint does not affect Donna directly since she is not one of the bashers! There is nothing in that constraint-based deontological perspective that would require Donna to do anything at all.

The more Donna thinks about it, however, the more she feels convinced that she must really break into Charles’s room and save Ali from bodily injury. Maybe she is not required to do anything, but surely she is free to? But, no, she isn’t free to break into Charles’s room since that deontological perspective also imposes a side constraint against the violation of Charles’s rights. Since right violations and realizations do not enter the evaluation of states of affairs (“do not,” as Nozick puts it, “determine a social ordering”) and the violation of Ali’s more important right cannot be used for consequential justification of infringing Charles’s less important right, Donna’s hands are tied. Indeed, Nozick repudiates such trade-offs (what he calls “utilitarianism of rights”), and the constraint-based deontological approach, free from consequential analysis, offers nothing else.

To summarize the position, at the risk of some oversimplification, Donna can have a good case for breaking into Charles’s room to save Ali if she can use a consequential analysis with nonwelfarist evaluation of consequences. Constraint-based deontology does not permit the former (namely, consequential analysis), while welfarist instrumentalism does not permit the latter (namely, nonwelfarist evaluation pf consequences). It appears that to make room for her deeply held and resilient conviction that she must save Ali by breaking into Charles’s room, Donna must reject both these traditional approaches and look for a new approach that is at once consequentalist and nonwelfarist.