SUBJECT: JURISPRUDENCE II

Project topic:
The role of legal rights in integration

Submitted By
Shikhar Neelkanth
Roll no. 1233
3 Year, 6 Semester, B.b.A. LL.B (Hons.)
th

Submitted to
Prof. (Dr.) Manoranjan kumar
Faculty of jurisprudence
The Role of Legal Rights in Integration

TABLE OF CONTENTS

ACKNOWLEDGEMENT.......................................................................................................3

RESEARCH METHODOLOGY...........................................................................................4

INTRODUCTION....................................................................................................................5

RIGHTS AND UTILITARIANISM.....................................................................................10

UTILITARIANISM & CONSEQUENTIALISM...............................................................14

ACT UTILITARIANISM & RULE UTILITARIANISM..................................................18

CONCLUSION.......................................................................................................................25

BIBLIOGRAPHY..................................................................................................................26

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The Role of Legal Rights in Integration

ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by
me, is a culmination of efforts of a lot of people.

Firstly, I would like to thank my Professor for Jurisprudence Dr. Manoranjan Kumar for his
valuable suggestions without which this wouldnt have been possible.

Moving further, I would also like to express my gratitude to my seniors, the library staff and
my friends who were always there for me when I needed any sort of help regarding this
project.

Lastly, I would like to thank the almighty for making this happen.

-Shikhar Neelkanth

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The Role of Legal Rights in Integration

RESEARCH METHODOLOGY

Method of research

The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the library at the Chanakya National Law University and also the internet
sources.

Aims and Objectives

The aim of this project is to establish a nexus between Rights and Integration through
Utilitarianism and Consequentialism approach.

Scope and Limitations

Though the topic Role of Legal Rights in Integration is vast and pages can be written over
it but due to time constraint and other factors the researcher has limited the scope of the
research. The researcher would be dealing with the theories propounded by Bentham, James
Mill and few others.

Sources of Data

The following sources of data has been used in this project-

1) Books
2) Journals
3) Internet

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The Role of Legal Rights in Integration

INTRODUCTION

One cannot long talk on a legal topic without using the words right and duty or some
synonyms. It is familiar hearsay that a purpose of law is to create, delimit, and protect rights
and to define and enforce duties. Therefore it is of importance to inquire what is meant by "a
right" and by "a duty" when we use these terms in legal discussion. The question is a
linguistic one; but in the process of finding the proper answer, we shall have to analyse some
of our common sorts of mental concepts and perhaps shall finish with a clear comprehension
of the purport of parts of our legal reasoning which ordinarily we veil by convenient and
familiar words from careful scrutiny and any but the vaguest apprehension. I do not purpose
to express the details of such an analysis in these pages. I desire only to explain the results of
my thinking which may be verified or disproved by my readers through their own mental
tests.1

When we intelligently assert of a thing that it is "right," we mean that according to some
human judgment, individual or collective, it meets a test with relation to some end or
adjustment. The judgment may be our own or that of another or others which we adopt or
accept. It may or may not be made through the employment of scientific criteria or rules.
When we decide that certain conduct morally is right or wrong, we approve or disapprove of
it in its aspect of an actual or potential cause of consequences to individuals and to society. 2
In evolving this judgment we may give weight to considerations of pertinent customs, habits,
prevailing ideas and beliefs, social utility, individual liberty, harmful or beneficial effects, the
personal idiosyncrasies and physiological limitations of the persons concerned, and the extent
of their pertinent knowledge, and to considerations, superstitions, or prejudices of any other
sorts, or we may be impelled to our decision, wholly or partly, by analogous instinctive
motives. However we reach our conclusion, the term right or the term wrong is but an
asserted label which cannot be appreciated accurately except in the light of the purposes

1 https://www.jstor.org/stable/pdf/1274761.pdf , last seen on 20/12/2017.

2 This is not always the basis of approval or disapproval. The motives of our criticism of
morals often are instinctive, unreasoned impulses from accumulated beliefs, superstitions,
religious ideas, or other traditions and untrained mental habits, which produce them without
conscious measuring of effects or purposes.

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The Role of Legal Rights in Integration

which inspired and the mental processes which produced the application. Whether a certain
method is a right method in the sense of being effective to produce specified results, is a
question which the evolution of events may solve; but except insofar as human judgment
settles on definite criteria of morality, there is no external measure of the correctness or
incorrectness of a particular assertion of moral rectitude or delinquency. "Morally right" and
"morally wrong remain blind labels commonly used to signify approval or condemnation of
conduct but not indicating definitely anything beyond this.

It is true that some sorts of conduct would be condemned and accordingly labelled
universally by respectable opinion. It is true also that there is a predominant and potent public
opinion on the "morality" of a large proportion of ordinary sorts of conduct, that this public
opinion may be vouched in support of an individual assertion, and that our common
knowledge of it furnishes a starting plane, a check, and a balance to all discussions of moral
right and wrong. These facts, however, do not militate successfully against my postulates, for,
in the first place, this predominant opinion is in many important particulars uncertain,
varying, or indefinite both in conclusions and criteria and, in the second place, even
independently of this lack of certainty and stability it cannot be the conclusive arbiter of
decision or of the proper use of the word-labels which we are discussing. Individual opinion,
and particularly the leading enlightened opinion of the day, may differ legitimately from the
pre dominant opinion of the time. Therefore the motives for particular applications of the
labels may vary legitimately even beyond the range of predominant usage.

Virtually all philosophers now agree that human beings and possibly the higher animals have
moral rights in some sense, both special rights against individuals to whom they stand in a
special relation (such as a creditor's right to collect from a debtor), and general rights, against
everybody or against the government, just in virtue of their human nature. 3 Some
philosophers also think, however, that anyone who is a utilitarian ought not to share this
view: there is a fundamental incompatibility between utilitarinism and human rights. Most
utilitarians, of course, have not thought there is such an incompatibility. John Stuart Mill, for
instance, espoused utilitarianism at the same time that he defended rights to free speech and
freedom of action except where it injures others. In what follows I wish to explore some
reasons recently put forward to show that the utilitarian who wishes to affirm that there are

3 https://www.jstor.org/stable/pdf/40231349.pdf , last seen on 24/4/17.

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The Role of Legal Rights in Integration

moral rights faces a serious logical problem; and I shall argue that further analysis shows the
alleged difficulty is unreal.

The first thing to notice is that utilitarianism is a general normative theory either about what
is desirable, or about what conduct is morally right, but in the first instance not a theory of
rights at all, except by implication. A philosopher can be a utilitarian without offering any
definition of 'a right and indeed without having thought about the matter. It is true that some
definitions of 'a right' are so manifestly incompatible with the normative theses of
utilitarianism that it is clear that a utilitarian could not admit that there are rights in that sense.
For instance, if some- one says that to have a right (life, liberty) is for some sort of thing to be
secured to one absolutely, though the heavens fall, and that this is a self-evident truth, then it
is pretty clear that a utilitarian will have no place for rights in his sense. Again, if one follows
Hobbes and says, Neither by the word right is anything else signified, than that liberty which
every man hath to make use of his natural faculties according to right reason,' one is not
going to be able to accept a utilitarian normative theory, for a utilitarian is not going to
underwrite a man's absolute liberty to pursue his own good according to his own judgment, in
the way Hobbes had in mind. Hobbes can use the word 'a right' as he pleases, but the
utilitarian will say that a man exercising his rights in that sense may be immoral.4 So, while
some definitions of 'a right' are such that a utilitarian will deny that there are rights in that
sense, the major definitional views being advocated today, say among H.L.A. Hart, David
Lyons, and Joel Feinberg, do not imply that there being rights in their sense is incompatible
with utilitarianism. So I think it is fair to say, although I think not quite true to say, that
utilitarianism is neutral about the major proposals today for the definitions of 'a right,' not
committed to any.

Our main question is whether utilitarianism has room for rights as explained, that is, for
affirmations of moral obligations of the kind stated. Of course, the answer to this question
will depend on what one means by 'utilitarianism. The theory is usually defined as a general
normative theory about what actions are morally right or wrong. I am not going to define it
this way, however, to avoid begging some important questions. So I am going to follow J. S.
Mill (who in this is seconded by David Lyons), who wrote: The utilitarian doctrine is that
happiness is desirable, and the only thing, desirable, as an end; all other things being

4 https://faculty.history.wisc.edu/sommerville/367/Hobbes%20Excerpts.htm , last seen on

24/4/2017.

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The Role of Legal Rights in Integration

desirable as means to that end. Mill then goes on to offer a proof of this doctrine, and having
done his best on this, he says: If so, happiness is the sole end of human action, and the
promotion of it the test by which to judge of all human conduct; from whence it necessarily
follows that it must be the criterion of morality, since a part is included in the whole'
[italics all mine]. It is also the test of legal institutions, so that a legal system will be adjudged
desirable if it will produce (or probably produce) maximal happiness. Utilitarianism, then, is
a general theory about when actions and institutions are (instrumentally) desirable; and the
idea is that they are so in view of their promotion of actual or expectable happiness, or better,
actual or expectable utility.

Before turning to possible 'deeper' difficulties, let me make just one point favorable to the
utilitarian view, that it tells us, in principle, how to find out what are a person's rights, and
how stringent they are, relative to each other-which is much more than can be said of most
other theories, unless reliance on intuitions is supposed to be a definite way of telling what a
person's rights are. How does one do this, on the utilitarian theory? The idea, of course, is that
we have to determine whether it would maximize long-range expectable utility to include
recognition of certain rights in the moral code of a society, or to include a certain right with a
certain degree of stringency as compared with other rights. (For instance, it might be
optimific to include a right to life with more stringency than a right to liberty and this with
more stringency than the right to pursue happiness.) Suppose, for instance, one wants to
know what should be the scope of the 'right to life.' Then it would be proper to inquire
whether the utility-maximizing moral system would require people to refrain from taking the
life of other adults, more positively to support life by providing adequate medical care, to
abstain from life-termination for seriously defective infants or to refrain from abortion, to
require abstaining from assisting a person with terminal illness in ending his own life if he
requests it, to refrain from assisting in the discharge of a sentence of capital punishment, or to
refrain from killing combatants in war time and so on. If one wants to know whether the right
to life is stronger than the right of free speech on political subjects, it is proper to inquire
whether the utility-maximizing moral code would prefer free speech to the cost of lives (and
in what circumstances). It may, of course, be raised as an objection to the theory, that it is
difficult, or impossible, actually to carry through the assessments of comparative utilites
which this program involves.5 That is a large issue, but I do not propose to worry about it in

5 Richard A. Posner, Utilitarianism, Economics, and Legal Theory,' Journal of Legal Studies,
8 (1979) 103-40.

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The Role of Legal Rights in Integration

the present context. I shall also not worry about a somewhat opposite objection, to the effect
that we know what utilitarianism permits or requires well enough, and some of the actions it
permits or requires are manifestly immoral. For instance, it is said that there are conceivable
circumstances in which the utilitarian would condone slavery. These objections seem to be
just unsympathetic, although they do need to be taken up one by one. One would concede that
the problem of just distributions is worrisome, but it has been much discussed, and there is no
point in saying more about it here, in the short time at my disposal. I do not claim to be in the
majority, in my optimism for the utilitarian program; I take note, with respect, of Professor
Lyons' recent remark that 'the idea that Utilitarianism might account for moral rights would
generally be rejected, even by those who assume that utilitarianism can give some account of
legal rights.'6

6 David Lyons, 'Utility as a Possible Ground of Rights,' Nous, 14 (1980).

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The Role of Legal Rights in Integration

RIGHTS AND UTILITARIANISM

We look to rights for protection. The hope of advocates of human rights has been that
certain protections might be accorded to all of humanity. Even in a world only a minority of
whose inhabitants live under liberal democratic regimes, the hope is, certain standards
accepted in the liberal democracies will gain universal recognition and respect. These include
liberty of persons as opposed to enslavement, freedom from cruelty, freedom from arbitrary
execution, from arbitrary imprisonment, and from arbitrary deprivation of property or
livelihood, freedom of religion, and freedom of inquiry and expression.7

Philosophers, of course, concern themselves with the theory of rights, and that is partly
because of the ways questions of rights bear on fundamental normative theory. By far the
most highly developed general normative theory has been utilitarianism. Now many
opponents of utilitarianism argue that considerations of rights discredit utilitarianism, that
utilitarianism yields conclusions about rights that we would normally regard as faulty, and
that moreover, the reasons for regarding those conclusions as faulty turn out, upon
examination, to be stronger than the reasons for regarding utilitarianism as valid. A valid
theory cannot have faulty conclusions, and so thinking about rights shows utilitarianism not
to be a valid normative theory.

Jeremy Bentham, the founder of the utilitarian movement in nineteenth century England,
accepted the incompatibility of utilitarianism and the rights of man, and rejected talk of the
latter as anarchical fallacies. His great successor John Stuart Mill, however, argued that a
perceptive and farsighted utilitarianism supports strong rights both of democratic
participation and of individual freedom of action.

In legal-political theory, in Benthams time, human rights were not spoken of. He himself
used the term natural rights. This expression fell out of use, to be replaced by human
rights, still employed today, precisely to try to overcome the criticism led by Bentham.

7 Allan Gibbard, Utilitarianism and Human Rights, 1 Social Philosophy and Policy 92102,
92-102 (1984).

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The Role of Legal Rights in Integration

In his essay Jurisprudence,8 one of the articles James Mill wrote for the Supplement to the
Encyclopaedia Britannica, we find interesting clarifications of the utilitarian approach to the
subject of rights. First and foremost, rights trump duties and are in the foreground of the
science of law and, therefore:

The object and aim of the science distinguished by the name of jurisprudence is that of the
protection of rights.9

Naturally, the rights of which James Mill spoke are only legal rights; he could never conceive
the existence of pre-legal rights, that can only be metaphysical, and so in open contradiction
with Benthams theory on the matter:

Right, therefore, is factitious and the creature of the will. It exists only because the society,
or those who wield the powers of the society, wills that it should exist; and before it was so
willed, it had no existence.10

James Mill is also consistent with Benthams approach in situating those legal rights, as an
entire legal system of which they form part, under the auspices of the utilitarian principle, the
maximum criterion of political correctness.11 Those juridical rights, then, are characterised by
Mill as signs, which is totally coherent with the analytical method and the distrust of fictions
of classic utilitarianism. In Mills preceding paragraph we could almost be reading Alf Ross.
Rights are mere signs that express a meaning to which they serve as an abbreviation: and this
meaning is the juridical powers that are behind them, be they powers over people or over
things.12

We shall now turn to the second of Mills clarifications, which is very interesting, albeit often
ignored, the confusion of desire with reality, a very dangerous extreme in politics since,

8 J. Mill, "Jurisprudence", in Political Writings, Cambridge, 1992, pp. 43-93

9 London, 1819-1823. See T. Ball, "A note on sources", in J. Mill, Political Writings, P. 37.

10 J. Mill, "Jurisprudence", p. 47.

11 Ibid.

12 J. Mill, "Jurisprudence", p. 48.

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The Role of Legal Rights in Integration

sooner or later, it causes the frustration of unfounded social hopes. The clarification in
question takes us back to the subject of the relation between rights and duties, but approached
from an unusual point of view:

Rights, it must be remembered, always import obligations []. If one man obtains a right
to the services of another man, an obligation is, at the same time, laid upon this other to
render those services. []. It thus appears that it is wholly impossible to create a right
without at the same time creating an obligation.
[] Every right is a benefit; a command to a certain extent over the objects of desire.
Every obligation is a burden; an interdiction from the objects of desire. The one is in itself
a good; the other is in itself an evil. It would be desirable to increase the good as much as
possible. But, by increasing the good, it necessarily happens that we increase the evil. And,
if there be a certain point at which the evil begins to increase faster than the good, beyond
that point all creation of rights is hostile to human welfare.13

We shall not be speaking of rights, even if we use that term, when there is no specific duty,
assigned to a specific subject bound by it, whatever its content. In the absence of duty, we
may be talking of a declaration of principles, or political intentions, or of good desires, the
enunciation of an action programme, but not of a right. When the current Spanish
Constitution speaks of the right to work or to housing, and yet does not indicate against
whom to claim; or when Argentinean theorists, anguished at the sad economic and social
situation of their country, argue for a right to an income, these are false rights, surely
proclaimed with the best of intentions, but with perverse social and political effects,
aggravating, or at the least frustrating, situations they should apparently resolve.

In his complete study on law in John Stuart Mills work, 14 Jos Garca An drew up a
convincing chronology of the evolution of Mills theory on rights, in which he set out three
stages with great precision.15 In the first stage, until 1826, Mill agreed substantially with the
approaches of Bentham and James Mill: rights are the work of the law that determines what
rights exist and what circumstances give rise to and put an end to them; obedience to law

13 J. Mill, "Jurisprudence", pp. 48-49.

14 J. Garca An, John Stuart Mill: Justicia y Derecho, Madrid, 1997.

15 J. Garca An, John Stuart Mill: Justicia y Derecho, pp. 297.

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The Role of Legal Rights in Integration

cannot be subordinate to considerations of justice; with Bentham, he preferred to call them

securities.

In the second stage (from 1827 to 1844), Mill had established the bases of the distinction
between legal rights and moral rights, separating out two dimensions of their existence,
validity and efficacy: the existence of a right and its protection by the state did not have to be
joined. There could be universally valid rights even though they did not enjoy universal
protection, since this was the obligation of the state. Against Benthams rationalist
universalism, here we see romantic particularism. Those moral rights are characterised as
claims and liberties. And are based on interests (as Bentham had already done, long before
Ihering) that had awoken expectations that must not be defrauded.

Mill consolidated the difference in his position from that of Bentham and James Mill from
1845 onwards. Subjective rights are the essence of justice and make up a single reality, in
which legal rights can be distinguished from moral ones, concerning ourselves exclusively
with their respective institutionalisation. In any event, rights, legal or moral, are always a
social artefact.

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The Role of Legal Rights in Integration

UTILITARIANISM & CONSEQUENTIALISM

Consequentialism, as its name suggests, is the view that normative properties depend only on
consequences. This general approach can be applied at different levels to different normative
properties of different kinds of things, but the most prominent example is consequentialism
about the moral rightness of acts, which holds that whether an act is morally right depends
only on the consequences of that act or of something related to that act, such as the motive
behind the act or a general rule requiring acts of the same kind.16

The paradigm case of consequentialism is utilitarianism, whose classic proponents were

Jeremy Bentham (1789), John Stuart Mill (1861), and Henry Sidgwick (1907). Classic
utilitarians held hedonistic act consequentialism. Act consequentialism is the claim that an act
is morally right if and only if that act maximizes the good, that is, if and only if the total
amount of good for all minus the total amount of bad for all is greater than this net amount
for any incompatible act available to the agent on that occasion. Hedonism then claims that
pleasure is the only intrinsic good and that pain is the only intrinsic bad.17

Utilitarianism and consequentialism are different, yet closely related philosophical positions.
Utilitarians are usually consequentialists, and the two views mesh in many areas, but each
rests on a different claim, so I shall try to deal with them separately. Utilitarianism's starting
point is that we all attempt to seek happiness and avoid pain, and therefore our moral focus
ought to centre on maximizing happiness (or, human flourishing generally) and minimizing
pain for the greatest number of people. This is both about what our goals should be and how
to achieve them. Consequentialism asserts that determining the greatest good for the greatest
number of people (the utilitarian goal) is a matter of measuring outcome, and so decisions
about what is moral should depend on the potential or realized costs and benefits of a moral
belief or action. This is largely about determining how to attain our goals, which are taken to
be self-evident.18
16 https://plato.stanford.edu/entries/consequentialism/#ClaUti , last seen on 26/4/17.

17 Ibid.

18 http://rationallyspeaking.blogspot.in/2010/11/on-utilitarianism-and-consequentialism.html,
last seen on 26/4/2017.

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The Role of Legal Rights in Integration

Utilitarians believe that the purpose of morality is to make life better by increasing the
amount of good things (such as pleasure and happiness) in the world and decreasing the
amount of bad things (such as pain and unhappiness). They reject moral codes or systems that
consist of commands or taboos that are based on customs, traditions, or orders given by
leaders or supernatural beings. Instead, utilitarians think that what makes a morality be true or
justifiable is its positive contribution to human (and perhaps non-human) beings.

Utilitarian reasoning can be used for many different purposes. It can be used both for moral
reasoning and for any type of rational decision-making. In addition to applying in different
contexts, it can also be used for deliberations about the interests of different persons and
groups.

Individual Self-interest

When individuals are deciding what to do for themselves alone, they consider only their own
utility. For example, if you are choosing ice cream for yourself, the utilitarian view is that you
should choose the flavor that will give you the most pleasure. If you enjoy chocolate but hate
vanilla, you should choose chocolate for the pleasure it will bring and avoid vanilla because it
will bring displeasure. In addition, if you enjoy both chocolate and strawberry, you should
predict which flavor will bring you more pleasure and choose whichever one will do that.

In this case, because utilitarian reasoning is being applied to a decision about which action is
best for an individual person, it focuses only on how the various possible choices will affect
this single persons interest and does not consider the interests of other people.

Groups

People often need to judge what is best not only for themselves or other individuals but also
what is best for groups, such as friends, families, religious groups, ones country, etc. Because
Bentham and other utilitarians were interested in political groups and public policies, they
often focused on discovering which actions and policies would maximize the well-being of
the relevant group. Their method for determining the well-being of a group involved adding
up the benefits and losses that members of the group would experience as a result of adopting

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one action or policy.19 The well-being of the group is simply the sum total of the interests of
the all of its members.

To illustrate this method, suppose that you are buying ice cream for a party that ten people
will attend. Your only flavor options are chocolate and vanilla, and some of the people
attending like chocolate while others like vanilla. As a utilitarian, you should choose the
flavor that will result in the most pleasure for the group as a whole. If seven like chocolate
and three like vanilla and if all of them get the same amount of pleasure from the flavor they
like, then you should choose chocolate. This will yield what Bentham, in a famous phrase,
called the greatest happiness for the greatest number.

An important point in this case is that you should choose chocolate even if you are one of the
three people who enjoy vanilla more than chocolate. The utilitarian method requires you to
count everyones interests equally. You may not weigh some peoples interests-including your
own-more heavily than others. Similarly, if a government is choosing a policy, it should give
equal consideration to the well-being of all members of the society.

Everyone Affected

While there are circumstances in which the utilitarian analysis focuses on the interests of
specific individuals or groups, the utilitarian moral theory requires that moral judgments be
based on what Peter Singer calls the equal consideration of interests. Utilitarianism moral
theory then, includes the important idea that when we calculate the utility of actions, laws, or
policies, we must do so from an impartial perspective and not from a partialist perspective
that favors ourselves, our friends, or others we especially care about. Bentham is often cited
as the source of a famous utilitarian axiom: every man to count for one, nobody for more
than one.20

If this impartial perspective is seen as necessary for a utilitarian morality, then both self-
interest and partiality to specific groups will be rejected as deviations from utilitarian
morality. For example, so-called ethical egoism, which says that morality requires people
to promote their own interest, would be rejected either as a false morality or as not a morality

19 https://www.coursehero.com/file/p6c5jrf/If-you-enjoy-chocolate-but-hate-vanilla-you-
should-choose-chocolate-for-the/ , last seen on 26//4/2017.

20 Supra 19.

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The Role of Legal Rights in Integration

at all. While a utilitarian method for determining what peoples interests are may show that it
is rational for people to maximize their own well-being or the well-being of groups that they
favour, utilitarian morality would reject this as a criterion for determining what is morally
right or wrong.

Actual or Foreseeable Consequences

Utilitarians disagree about whether judgments of right and wrong should be based on the
actual consequences of actions or their foreseeable consequences. This issue arises when the
actual effects of actions differ from what we expected. J. J. C. Smart explains this difference
by imagining the action of a person who, in 1938, saves someone from drowning. While we
generally regard saving a drowning person as the right thing to do and praise people for such
actions, in Smarts imagined example, the person saved from drowning turns out to be
Adolph Hitler. Had Hitler drowned, millions of other people might have been saved from
suffering and death between 1938 and 1945. If utilitarianism evaluates the rescuers action
based on its actual consequences, then the rescuer did the wrong thing. If, however,
utilitarians judge the rescuers action by its foreseeable consequences (i.e. the ones the
rescuer could reasonably predict), then the rescuer who could not predict the negative effects
of saving the person from drowning did the right thing.21

One reason for adopting foreseeable consequence utilitarianism is that it seems unfair to say
that the rescuer acted wrongly because the rescuer could not foresee the future bad effects of
saving the drowning person. In response, actual consequence utilitarians reply that there is a
difference between evaluating an action and evaluating the person who did the action. In their
view, while the rescuers action was wrong, it would be a mistake to blame or criticize the
rescuer because the bad results of his act were unforeseeable. They stress the difference
between evaluating actions and evaluating the people who perform them.

Foreseeable consequence utilitarians accept the distinction between evaluating actions and
evaluating the people who carry them out, but they see no reason to make the moral rightness
or wrongness of actions depend on facts that might be unknowable. For them, what is right or
wrong for a person to do depends on what is knowable by a person at a time. For this reason,

21 http://www.iep.utm.edu/util-a-r/#SH1b, last seen on 26/4/2017.

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they claim that the person who rescued Hitler did the right thing, even though the actual
consequences were unfortunate.

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ACT UTILITARIANISM & RULE UTILITARIANISM

Both act utilitarians and rule utilitarians agree that our overall aim in evaluating actions
should be to create the best results possible, but they differ about how to do that.

Act utilitarians believe that whenever we are deciding what to do, we should perform the
action that will create the greatest net utility. In their view, the principle of utility do whatever
will produce the best overall results should be applied on a case by case basis. The right
action in any situation is the one that yields more utility (i.e. creates more well-being) than
other available actions.22

Rule utilitarians adopt a two part view that stresses the importance of moral rules. According
to rule utilitarians,

a specific action is morally justified if it conforms to a justified moral rule; and

a moral rule is justified if its inclusion into our moral code would create more utility
than other possible rules (or no rule at all).

According to this perspective, we should judge the morality of individual actions by reference
to general moral rules, and we should judge particular moral rules by seeing whether their
acceptance into our moral code would produce more well-being than other possible rules.

The key difference between act and rule utilitarianism is that act utilitarians apply the
utilitarian principle directly to the evaluation of individual actions while rule utilitarians
apply the utilitarian principle directly to the evaluation of rules and then evaluate individual
actions by seeing if they obey or disobey those rules whose acceptance will produce the most
utility.

The contrast between act and rule utilitarianism, though previously noted by some
philosophers, was not sharply drawn until the late 1950s when Richard Brandt introduced this
terminology. (Other terms that have been used to make this contrast are direct and
extreme for act utilitarianism, and indirect and restricted for rule utilitarianism.)
Because the contrast had not been sharply drawn, earlier utilitarians like Bentham and Mill
sometimes apply the principle of utility to actions and sometimes apply it to the choice of

22 http://www.iep.utm.edu/util-a-r/#SH1b, last seen on 25/4/ 2017.

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The Role of Legal Rights in Integration

rules for evaluating actions. This has led to scholarly debates about whether the classical
utilitarians supported act utilitarians or rule utilitarians or some combination of these views.
One indication that Mill accepted rule utilitarianism is his claim that direct appeal to the
principle of utility is made only when secondary principles (i.e. rules) conflict with one
another. In such cases, the maximize utility principle is used to resolve the conflict and
determine the right action to take.

Act Utilitarianism Maximizes Utility

If every action that we carry out yields more utility than any other action available to us, then
the total utility of all our actions will be the highest possible level of utility that we could
bring about.23 In other words, we can maximize the overall utility that is within our power to
bring about by maximizing the utility of each individual action that we perform. If we
sometimes choose actions that produce less utility than is possible, the total utility of our
actions will be less than the amount of goodness that we could have produced. For that
reason, act utilitarians argue, we should apply the utilitarian principle to individual acts and
not to classes of similar actions.

Act Utilitarianism is better than traditional, rule based moralities

Traditional moral codes often consist of sets of rules regarding types of actions. The Ten
Commandments, for example, focus on types of actions, telling us not to kill, steal, bear false
witness, commit adultery, or covet the things that belong to others. Although the Biblical
sources permit exceptions to these rules (such as killing in self-defence and punishing people
for their sins), the form of the commandments is absolute. They tell us thou shalt not do x
rather than saying thou shalt not do x except in circumstances a, b, or c.

Act utilitarians reject rigid rule-based moralities that identify whole classes of actions as right
or wrong. They argue that it is a mistake to treat whole classes of actions as right or wrong
because the effects of actions differ when they are done in different contexts and morality
must focus on the likely effects of individual actions. 24 It is these effects that determine

23 http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/BlackboardnotesMillrules.pdf ,
last seen on 26/4/2017.

24 https://www.coursehero.com/file/prf67r/Enron-example-and-how-some-employee-
become-a-whistle-blower-when-heshe-deviate/, last seen on 26/4/2017.

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The Role of Legal Rights in Integration

whether they are right or wrong in specific cases. Act utilitarians acknowledge that it may be
useful to have moral rules that are rules of thumb i.e., rules that describe what is generally
right or wrong, but they insist that whenever people can do more good by violating a rule
rather than obeying it, they should violate the rule. They see no reason to obey a rule when
more well-being can be achieved by violating it.

Act Utilitarianism makes Moral Judgments Objectively True

One advantage of act utilitarianism is that it shows how moral questions can have objectively
true answers. Often, people believe that morality is subjective and depends only on peoples
desires or sincere beliefs. Act utilitarianism, however, provides a method for showing which
moral beliefs are true and which are false.25

Once we embrace the act utilitarian perspective, then every decision about how we should act
will depend on the actual or foreseeable consequences of the available options. If we can
predict the amount of utility/good results that will be produced by various possible actions,
then we can know which ones are right or wrong.

Although some people doubt that we can measure amounts of well-being, we in fact do this
all the time. If two people are suffering and we have enough medication for only one, we can
often tell that one person is experiencing mild discomfort while the other is in severe pain.
Based on this judgment, we will be confident that we can do more good by giving the
medication to the person suffering extreme pain. Although this case is very simple, it shows
that we can have objectively true answers to questions about what actions are morally right or
wrong.

Jeremy Bentham provided a model for this type of decision making in his description of a
hedonic calculus, which was meant to show what factors should be used to determine
amounts of pleasure and happiness, pain and suffering. 26 Using this information, Bentham
thought, would allow for making correct judgments both in individual cases and in choices
about government actions and policies.

25 Supra 18.

26 https://www.coursehero.com/file/p6ko2f54/Part-of-the-obligations-and-proper-conduct-of-
medical-practitioners-outlines-in/, last seen on 26/4/2017.

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The Role of Legal Rights in Integration

Unlike act utilitarians, who try to maximize overall utility by applying the utilitarian principle
to individual acts, rule utilitarians believe that we can maximize utility only by setting up a
moral code that contains rules. The correct moral rules are those whose inclusion in our moral
code will produce better results (more well-being) than other possible rules. Once we
determine what these rules are, we can then judge individual actions by seeing if they
conform to these rules. The principle of utility, then, is used to evaluate rules and is not
applied directly to individual actions. Once the rules are determined, compliance with these
rules provides the standard for evaluating individual actions.

Rule Utilitarianism Maximizes Utility

Rule utilitarianism sounds paradoxical. It says that we can produce more beneficial results by
following rules than by always performing individual actions whose results are as beneficial
as possible.27 This suggests that we should not always perform individual actions that
maximize utility. How could this be something that a utilitarian would support?

In spite of this paradox, rule utilitarianism possesses its own appeal, and its focus on moral
rules can sound quite plausible. The rule utilitarian approach to morality can be illustrated by
considering the rules of the road. If we are devising a code for drivers, we can adopt either
open-ended rules like drive safely or specific rules like stop at red lights, "do not travel
more than 30 miles per hour in residential areas, do not drive when drunk," etc. The rule
drive safely, like the act utilitarian principle, is a very general rule that leaves it up to
individuals to determine what the best way to drive in each circumstance is. More specific
rules that require stopping at lights, forbid going faster than 30 miles per hour, or prohibit
driving while drunk do not give drivers the discretion to judge what is best to do. They
simply tell drivers what to do or not do while driving.28

The reason why a more rigid rule-based system leads to greater overall utility is that people
are notoriously bad at judging what is the best thing to do when they are driving a car. Having

27 Supra 20.

28https://pupils.highschoolofdundee.org.uk/dept/prs/philosophyhigher/Shared
%20Documents/Moral%20Philosophy/Act%20and%20Rule%20Utilitarianism%20-
%20IEP.pdf , last seen on 26/4/2017.

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specific rules maximizes utility by limiting drivers discretionary judgments and thereby
decreasing the ways in which drivers may endanger themselves and others.29

A rule utilitarian can illustrate this by considering the difference between stop signs and yield
signs. Stop signs forbid drivers to go through an intersection without stopping, even if the
driver sees that there are no cars approaching and thus no danger in not stopping. A yield sign
permits drivers to go through without stopping unless they judge that approaching cars make
it dangerous to drive through the intersection. The key difference between these signs is the
amount of discretion that they give to the driver.

The stop sign is like the rule utilitarian approach. It tells drivers to stop and does not allow
them to calculate whether it would be better to stop or not. The yield sign is like act
utilitarianism. It permits drivers to decide whether there is a need to stop. Act utilitarians see
the stop sign as too rigid because it requires drivers to stop even when nothing bad will be
prevented. The result, they say, is a loss of utility each time a driver stops at a stop sign when
there is no danger from oncoming cars.30

Rule utilitarians will reply that they would reject the stop sign method if people could be
counted on to drive carefully and if traffic accidents only caused limited amounts of harm.
But, they say, neither of these is true. Because people often drive too fast and are inattentive
while driving, we cannot count on people to make good utilitarian judgments about how to
drive safely. In addition, the costs (i.e. the disutility) of accidents can be very high. Accident
victims (including drivers) may be killed, injured, or disabled for life. For these reasons, rule
utilitarians support the use of stop signs and other non-discretionary rules under some
circumstances. Overall these rules generate greater utility because they prevent more
disutility (from accidents) than they create (from unnecessary stops).

Critics of act utilitarianism claim that it allows judges to sentence innocent people to severe
punishments when doing so will maximize utility, allows doctors to kill healthy patients if by

29 Ibid.

30https://pupils.highschoolofdundee.org.uk/dept/prs/philosophyhigher/Shared
%20Documents/Moral%20Philosophy/Act%20and%20Rule%20Utilitarianism%20-
%20IEP.pdf, last seen on 26/4/2017.

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doing so, they can use the organs of one person to save more lives, and allows people to
break promises if that will create slightly more benefits than keeping the promise.31

Rule utilitarians say that they can avoid all these charges because they do not evaluate
individual actions separately but instead support rules whose acceptance maximizes utility. To
see the difference that their focus on rules makes, consider which rule would maximize
utility: a) a rule that allows medical doctors to kill healthy patients so that they can use their
organs for transplants that will save a larger number of patients who would die without these
organs; or b) a rule that forbids doctors to remove the organs of healthy patients in order to
benefit other patients.

Although more good may be done by killing the healthy patient in an individual case, it is
unlikely that more overall good will be done by having a rule that allows this practice. If a
rule were adopted that allows doctors to kill healthy patients when this will save more lives,
the result would be that many people would not go to doctors at all. 32 A rule utilitarian
evaluation will take account of the fact that the benefits of medical treatment would be
greatly diminished because people would no longer trust doctors. People who seek medical
treatment must have a high degree of trust in doctors. If they had to worry that doctors might
use their organs to help other patients, they would not, for example, allow doctors to
anesthetize them for surgery because the resulting loss of consciousness would make them
completely vulnerable and unable to defend themselves. Thus, the rule that allows doctors to
kill one patient to save five would not maximize utility.

The same reasoning applies equally to the case of the judge. In order to have a criminal
justice system that protects people from being harmed by others, we authorize judges and
other officials to impose serious punishments on people who are convicted of crimes. The
purpose of this is to provide overall security to people in their jurisdiction, but this requires
that criminal justice officials only have the authority to impose arrest and imprisonment on
people who are actually believed to be guilty. They do not have the authority to do whatever
they think will lead to the best result in particular cases. Whatever they do must be
constrained by rules that limit their power. Act utilitarians may sometimes support the

31 Supra 20.

32 https://plato.stanford.edu/entries/consequentialism/#ClaUti, last seen on 26/4/2017.

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intentional punishment of innocent people, but rule utilitarians will understand the risks
involved and will oppose a practice that allows it.33

Rule utilitarians offer a similar analysis of the promise keeping case. They explain that in
general, we want people to keep their promises even in some cases in which doing so may
lead to less utility than breaking the promise. 34 The reason for this is that the practice of
promise-keeping is a very valuable. It enables people to have a wide range of cooperative
relationships by generating confidence that other people will do what they promise to do. If
we knew that people would fail to keep promises whenever some option arises that leads to
more utility, then we could not trust people who make promises to us to carry them through.
We would always have to worry that some better option (one that act utilitarians would favor)
might emerge, leading to the breaking of the persons promise to us.

In each of these cases then, rule utilitarians can agree with the critics of act utilitarianism that
it is wrong for doctors, judges, and promise-makers to do case by case evaluations of whether
they should harm their patients, convict and punish innocent people, and break promises. The
rule utilitarian approach stresses the value of general rules and practices, and shows why
compliance with rules often maximizes overall utility even if in some individual cases, it
requires doing what produces less utility.35

33 http://desireghostwritertk.tk/john-stuart-mill-essays-political-economy-2977, last seen on

26/4/2017.

34 http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/BlackboardnotesMillrules.pdf,
last seen on 26/4/2017.

35 Supra 25.

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CONCLUSION

Both act utilitarians and rule utilitarians agree that our overall aim in evaluating actions
should be to create the best results possible, but they differ about how to do that. Rule
utilitarians offer a similar analysis of the promise keeping case.

Act utilitarians believe that whenever we are deciding what to do, we should perform the
action that will create the greatest net utility. In their view, the principle of utility do whatever
will produce the best overall results should be applied on a case by case basis.

A rule utilitarian evaluation will take account of the fact that the benefits of medical treatment
would be greatly diminished because people would no longer trust doctors. People who seek
medical treatment must have a high degree of trust in doctors. If they had to worry that
doctors might use their organs to help other patients, they would not, for example, allow
doctors to anesthetize them for surgery because the resulting loss of consciousness would
make them completely vulnerable and unable to defend themselves. Thus, the rule that allows
doctors to kill one patient to save five would not maximize utility.

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The Role of Legal Rights in Integration

BIBLIOGRAPHY

BOOKS REFERRED

1) David Lyons, 'Utility as a Possible Ground of Rights,' Nous, 14 (1980).

2) Allan Gibbard, Utilitarianism and Human Rights, 1 Social Philosophy and Policy 92
102, 92-102 (1984).
3) J. Mill, "Jurisprudence", in Political Writings, Cambridge, 1992, pp. 43-93.
4) "A note on sources", in J. Mill, Political Writings, P. 37.
5) J. Garca An, John Stuart Mill: Justicia y Derecho, Madrid, 1997.

WEBSITES REFERRED

1) https://faculty.history.wisc.edu/sommerville/367/Hobbes%20Excerpts.htm .
2) https://www.coursehero.com/file/p6ko2f54/Part-of-the-obligations-and-proper-
conduct-of-medical-practitioners-outlines-in/.
3) http://rationallyspeaking.blogspot.in/2010/11/on-utilitarianism-and-
consequentialism.html.
4) https://plato.stanford.edu/entries/consequentialism/#ClaUti.
5) http://www.iep.utm.edu/util-a-r/#SH1b.
6) http://desireghostwritertk.tk/john-stuart-mill-essays-political-economy-2977.

JOURNALS

1) https://pupils.highschoolofdundee.org.uk/dept/prs/philosophyhigher/Shared
%20Documents/Moral%20Philosophy/Act%20and%20Rule%20Utilitarianism%20-
%20IEP.pdf,
2) http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/BlackboardnotesMillrules.
pdf,
3) https://www.jstor.org/stable/pdf/1274761.pdf
4) Richard A. Posner, Utilitarianism, Economics, and Legal Theory,' Journal of Legal
Studies, 8 (1979) 103-40.

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