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UTILITARIANISM – THE NIHILISTIC PHILOSOPHY THAT THREATENS FREEDOM AND THE RULE OF LAW

What is Utilitarianism?


Utilitarianism is a philosophy based on ‘the greater happiness principle’, i.e. justice is determined by maximising pleasure (or giving as much pleasure as possible to the highest number of people) and minimising pain (or causing pain to the lowest possible number of people). The founder of utilitarianism [1]Jeremy Bentham explains his philosophy as follows:

“Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words man may pretend to abjure their empire: but in reality he will remain subject to it all the while. The principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and law.”[2]


Why is Utilitarianism nihilistic?


With respect to the punishment of criminals Bentham argued:

"It is only upon that principle, [asceticism] and not from the principle of utility, that the most abominable pleasure which the vilest of malefactors ever reaped from his crime would be reprobated, if it stood alone. The case is, that it never does stand alone; but is necessarily followed by such quantity of pain…..that the pleasure in comparison of it, is as nothing[3]


This is a nihilistic position to take. It would mean that a sadistic rapist and murderer should be prevented from committing rape and murder only because the pleasure that he will derive from his crime is outweighed by the suffering of his victim. One may say that the sadist’s pleasure does not make him happy (in the true sense of the word) and thus should be excluded from consideration in the ‘greater happiness principle’, but Bentham uses the terms ‘happiness’ and ‘pleasure’ interchangeably.


Bentham does attempt to categorise different pleasures, for instance pleasure of the senses, of benevolence, of malevolence and of renown.2 However, he does not refer to a hierarchy for these pleasures; implicitly, the same moral value is attached to all pleasures, whether noble or depraved.[4]


Whilst the classical philosophers Plato and Aristotle also viewed happiness and pleasure as just objectives, they used these terms in a fundamentally different sense to Bentham. Aristotle stated that depraved pleasure was not really pleasure at all.[5] Plato contended that true happiness could only come from an ordered soul and not just the material world. Consequently, a tortured just man would be happier than a materially rewarded unjust man; only the former has true free will and is not a slave to lusts for material gain[6]. Unlike Bentham, Plato and Aristotle make an appeal to metaphysics and do not view justice as a mere calculation that cannot transcend the empirical reality of human society.


Utilitarians would probably not deny the above conceptual distinction, as they would dispute the possibility of transcendental proof for morality beyond the empirical realisation of the greater happiness principle.


How might Utilitarians respond to the charge of nihilism?


Utilitarians may respond to charges of nihilism by stating that depravity ultimately and inevitably lowers the overall level of societal pleasure and therefore utilitarianism can be used to justify its repression. Even in a society where depravity was endemic, if the happiness of future generations were considered, then combating depravity would be justified by the greater happiness principle.[7] They could further argue that intrinsic concepts of nobility and depravity are entirely subjective, have no place in the physical world and are therefore devoid of meta-ethical proof.


The problem with this argument is that utilitarianism itself lacks objective proof and is self-justifying, as Bentham himself acknowledged:

Is it [the greater happiness principle] susceptible of any direct proof? It would seem not: for that which is used to prove everything else, cannot itself be proved: a chain of proofs must have there commencement somewhere. To give such proof is as impossible as it is needless”[8]


Why is Utilitarianism a threat to freedom?


Utilitarianism is a threat to freedom because when it is applied, subjects or citizens are at the mercy of the state's determination as to what policy will maximise happiness and minimise pain. Many wicked policies could be glibly justified under its banner.


With utilitarianism there is no inherent justification for freedom, beyond the claim that freedom increases happiness and constraints cause psychological pain.


Furthermore, no amount of virtue can guarantee one’s freedom under utilitarianism, once one accepts that this should be dependent on an empirical calculation of happiness and pain.


As CS Lewis argues, in relation criminals being rehabilitated rather than subject to retribution[9]:

“My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being. The reason is this. The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a “just deterrent” or a “just cure”. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds.

……. The punishment of an innocent, that is, an undeserving, man is wicked only if we grant the Res Judicatae traditional view that righteous punishment means deserved punishment. Once we have abandoned that criterion, all punishments have to be justified, if at all, on other grounds that have nothing to do with desert. Where the punishment of the innocent can be justified on those grounds (and it could in some cases be justified as a deterrent) it will be no less moral than any other punishment. Any distaste for it on the part of a Humanitarian will be merely a hang-over from the Retributive theory.”


I would partly blame utilitarianism for the current lockdown imposed on circa one third of the world, allegedly due to Covid 19, although I accept that the lockdown could be opposed on utilitarian principles, namely that it is disproportionate.


However, utilitarianism would suggest that every human action, including the hugging of a loved one can be quantified, with one having to carry out a risk analysis before doing it. It may be used to argue (by exaggerating the danger of Covid 19) that a person who resisted the current measures, feeling like they were being pushed around like soulless, masked cattle, would be acting irresponsibly and unjustly. It would be possible to argue that forcing the imposition of such measures would be justified, simply due to the level of fear inculcated in the majority of the population by the mainstream media, as the reduction of such fear could be regarded as minimising pain.


Alternative systems of morality, that recognise inherent forms of virtue and honour, would not be vulnerable to such forms of abuse.


Utilitarianism – Parliamentary Sovereignty and Legal Positivism


Utilitarianism has also been used to justify, the current notion of Parliamentary Sovereignty. This notion, which is accepted by the vast majority of the legal profession, states that any law passed by Parliament in accordance with proper procedure is valid ipso facto.


The most commonly cited academic authority for the aforesaid notion is Professor A.V. Dicey. Dicey in turn was influenced by utilitarian jurisprudence and in particular the theory of legal positivism formulated by John Austin, who defined law as commands issued by a supreme authority, backed up by sanctions[10].


Utilitarians dismiss the idea of natural rights. In a lecture on jurisprudence, Austin laments the concept of inalienable rights as causing parties to adopt entrenched positions that inexorably lead to conflict. He cites the example of the American Revolution and the parties asserting rights as opposed to appealing to the principle of utility.[11]


Austin criticises the dismissal of the objections made by Edmund Burke at the time, against the anti-independence war. He effectively claims Burke as an adherent of utilitarianism.[12]


However, Burke explicitly rejected the notion that Parliamentary Sovereignty meant that Parliament was unconstrained; he viewed the British nation and its constitution as indissoluble and as a birth right for its subjects (including future subjects):

The House of Lords for instance, is not morally competent to dissolve the House of Commons; no, nor even to dissolve itself, nor to abdicate if it would, its portion in the legislature of the Kingdom. Though a King may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by stronger reason, the House of Commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities. Otherwise competence and power would soon be confounded and nothing would be left but the will of a prevailing force”[13]


It is submitted that Burke is entirely correct. Parliament has an obligation to govern which it cannot delegate. Other problems with absolute Parliamentary Sovereignty include ignoring the requirement to govern in accordance with existing common law and customs (see the preamble to all statutes), the laws against treason which include empowering a foreign entity and the fact that if one Parliament truly cannot bind another, then Parliament cannot abolish itself.


Additionally, whilst Burke like the Utilitarians, rejected the idea of natural rights based solely on abstractions such as human dignity, of English common law[14] rights he stated:

You will observe that from Magna Charta to the Declaration of Right it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity- as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. We have an inheritable crown, an inheritable peerage, and a House of Commons and a people inheriting privileges, franchises, and liberties from a long line of ancestors.[15]


This conservative view of inherited rights is entirely incompatible with utilitarian jurisprudence which sees law as entirely malleable, to be infinitely revised in order to adhere to the greater happiness principle. When pre Dicey English jurists referred to natural law, they were normally referring to the English common law that has existed since time immemorial and evolved by custom and practice. This is to be contrasted with the maxim of rights that are said to belong to humanity and should be enjoyed by all of humanity irrespective of cultural or historical context (the problem with this maxim is an important issue in its own right that would justify a separate article).


Utilitarian jurisprudence is dangerous and subversive. This does not mean that the aim of maximising happiness and minimising pain, has no place in law making, but something as nebulous as the greater happiness principle cannot be allowed to subvert the English common law constitution that has existed since time immemorial. This constitution is rooted in the realm, belongs to the population for posterity and has worked in real life and not merely as an abstract concept.


Conclusion


As a moral philosophy utilitarianism is nihilistic and rooted in egalitarian dogma which values all pleasure and all individuals equally. Its principal failure is that it reduces morality to a quantitative question and by eschewing any concept of nobility it is liable to frustrate its own purpose by preventing the elevation of humanity.


If the greater happiness principle is the sole basis for law, then it would pose a serious threat to freedom because no amount of virtue can guarantee one’s freedom if the curtailment of the same can be said to maximise happiness.


In the United Kingdom utilitarianism is a threat to the organic English common law that has worked in real life. It would seek to replace the common law with a tautologous jurisprudence of legal positivism, which allows the legislators unfettered power to enact legislation under the aegis of furthering the greater happiness principle. Aside from those who will use this as a pre-text for evil ends, this is not the way that England and later Great Britain/United Kingdom is supposed to be governed; they must be governed in accordance with the rule of law, which means the common law that has existed and evolved since time immemorial.

[1] There is an obvious difficulty with quantifying happiness and pain, as well as the unanswered question of whether or not happiness can be maximised but unevenly distributed). [2] An Introduction to the Principals of Morals & Legislation’ Jeremy Bentham 1882 – Collins 164 2nd Ed C1 P1 [3] Ibid Ch II p41 – he is discussing principles ‘adverse to that of utility’, including ascetism, which he regards as ‘necessarily wrong’; What this passage means is that utilitarianism would not condemn the most abominable pleasure, if it stood alone, but claims that such an abomination would never stand alone in practice.

[4] John Stuart Mill did argue that intellectual pleasures were more valuable than base ones (Supra – Mill on Utilitarianism – C II pp 257-262), however in doing so he does not bolster but eviscerates the original doctrine; some individuals are incapable of intellectual and/or high aesthetic pleasures, disadvantaging them against their intellectual superiors within the greater happiness principle would contravene the principle itself. As Bentham stated, in typically egalitarian fashion, “Every individual in the Country counts for one, none for more than one” (Rationale of Judicial Evidence, Specially Applied to English Practice, ed. J. S. Mill from Bentham’s manuscripts (London, 1827), iv 475) . [5] The Nicomachean Ethics’ Book X chapter v

[6] The Republic’ The challenge of why the unrewarded just man is happier than the rewarded just man is posed at book II paras 359 – 367, initially via the fable of the ‘Ring of Gyges’, which allowed the bearer to become invisible and thus to commit immoral acts for personal gain with impunity and answered at book IV.

[7] John Stuart Mill essentially says as much (supra). The problem with him doing so, is that the concept of ‘noble’ as commonly understood, would refer to an intrinsic characteristic and not to its factual effects. Within the logic of utilitarianism however, ‘noble’ would be a virtue only if and to the extent that, it maximises happiness and minimises pain, in which case the word ‘noble’ as opposed to say ‘philanthropic’, has no real or distinct meaning.

[8] Supra C I p36

[9] The Humanitarian Theory of Punishment’ p225 later part 228 see here for a link to the article. Utilitarians might argue in response to Lewis, that there is a distinction between rule based and act based utilitarianism. The former argues a priori that one should conform with a rule that is justified pursuant to the greater happiness principle; whilst the existence of the rule is justified empirically by the greater happiness principle, once the rule is established it should be followed ipso facto. The latter argues that one should act according to the greater happiness principle and only follow rules where this is consistent with the same. Bentham himself was an empiricist and it seems inconsistent with utilitarianism to follow a priori rules. Determining ‘greater happiness’ must involve repeated factual assessments. Admittedly rule based utilitarianism may prohibit the repressive measures complained of but it is not in my view, true utilitarianism. [10] Utilitarianism’ – Edited by Mary Warnock, 2nd Ed 1964 P12

[11] Ibid p339

[12] Ibid p340

[13] E Burke ‘Reflections on the French Revolution’ 1790 – Archeron Press p20

[14] I use the expression ‘English Common Law’ as the ancient rights and liberties originate from England before the formation of the UK, but which also belong to the whole of the UK in light of the subsequent constitutional arrangement.

[15] Supra p 47

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