First Principles
Theory of criminal justice
The theory of criminal justice is the branch of philosophy of law that deals with
criminal justice and in particular punishment. The theory of criminal justice has deep
connections to other areas of philosophy, such as political philosophy and ethics, as well
as to criminal justice in practice.
Some important questions considered in the theory of criminal justice are
What is criminal justice?
How is criminal justice distinct from other kinds of justice (or is it in fact
distinct)?
Some questions specific to the topic of punishment are
Should we punish? Why should we punish? Whom should we punish?
How should we punish? How much should we punish?
Justice and criminal justice
How is criminal justice distinct from other kinds of justice?
Typically, legal theorists and philosophers consider four distinct kinds of justice:
o corrective justice,
o distributive justice,
o procedural justice,
o and retributive justice. Criminal law falls under retributive justice, a theory of
justice that considers proportionate punishment a morally acceptable response to
crime.
Retributive justice is perhaps best captured by the phrase lex talionis (the principle of "an
eye for an eye"), which itself traces back to the book of Exodus. [2] The principle of lex
talionis received its most well known philosophical defense from Immanuel Kant.[3]
Criminal law is no longer considered a purely retributive undertaking; detterence figures
prominently in the justification of the practice and in the rules themselves.[4]
Criminal justice systems (H. L. A. Hart), in connection with criminal justice which
do not directly concern punishment but are more closely related to a criminal justice system as a
whole.
Why establish any institution of punishment at all?
Why establish this institution with its special concepts, principles of legislation,
adjudicative procedures, and permissible penalties rather than some other?
Punishment
Punishment is a penalty imposed by a legal system along with (or because of) a stigma of
wrongdoing or lawbreaking.
This definition deliberately excludes penalties unrelated to wrongdoing or lawbreaking,
even when imposed by a legal system. It also distinguishes or at least restricts this
definition from the one used in operant conditioning.
Should we punish?
Most theories answer yes, that there are at least some criminals or criminal acts that
should be punished. However, this question should not be so easily dismissed as there are
theories which do answer no. Consider, for example, Pacifism. Also, certain versions of
restorative justice might optimistically make the claim that punishment is unnecessary.
Whom should we punish?
We should punish criminals. Unfortunately, the answer is not that simple. Should we
punish only lawbreakers, or other wrongdoers? Should we punish all criminals? Often,
the answers to these questions are interrelated with the reasons for punishment.
For example, if the reason for punishment is rehabilitation, then we should not punish
criminals who show genuine remorse. In practice, this is difficult to determine.
The question of whether only lawbreakers can be punished is connected to the validity of
retroactive laws. Whether wrongdoers can and should be punished under retroactive laws
was particularly important around the end of World War II. Many Nazi war criminals
were tried under laws which were not in place at the time they committed their so-called
crimes. Although their actions were wrong, their punishment brings up important issues.
Punishment under retroactive laws can not possibly accomplish deterrence. if you done
something bad you definantly need to punished. by punishing someone they learn a
lesson.
How should we punish?
Different methods of punishment can be evaluated based on effectiveness, cost
efficiency, and on moral grounds.
There is a principle in certain versions of retributive theory that can be stated as "an eye
for an eye". This principle argues for punishment in kind with the harm that was caused
by the wrongdoer.
Cruel and unusual punishment is outlawed in many legal systems, presumably on moral
grounds.
How much should we punish?
Deterrence theory argues that the amount of punishment should be the minimum required
to achieve the desired amount of deterrence. Most versions of retributive justice argue
that the amount of punishment should be proportional to the amount of harm caused.
Reform theory argues that the amount of punishment should be enough to cause reform in
the offender.
However, some theories would argue that the amount of punishment is not important at
all. For example, if the purpose of punishment is incapacitation, the fact that a jail
sentence is undesirable to the offender is irrelevant
Thought of Thomas Aquinas
Social justice
Aquinas defines distributive justice as follows:
in distributive justice something is given to a private individual, in so far as what belongs
to the whole is due to the part, and in a quantity that is proportionate to the importance of
the position of that part in respect of the whole. (Communitarianism)
Consequently in distributive justice a person receives all the more of the common goods,
according as he holds a more prominent position in the community.
Hence in distributive justice the mean is observed, not according to equality between
thing and thing, but according to proportion between things and persons: in such a way
that even as one person surpasses another, so that which is given to one person surpasses
that which is allotted to another..
Example: Death penalty
St. Thomas was a vocal supporter of the death penalty. Summa Contra Gentiles, Book 3,
Chapter 146, which was written by Aquinas prior to writing the Summa Theologica.
This was based on the theory (found in natural moral law), that the state has not only the
right, but the duty to protect its citizens from enemies, both from within, and without.
o For those who refuse to obey God's laws, it is correct for society to rebuke them
with civil and criminal sanctions. No one sins working for justice, within the law.
Actions that are necessary to preserve the good of society are not inherently evil.
The common good of the whole society is greater and better than the good of any
particular person. "The life of certain pestiferous men is an impediment to the
common good which is the concord of human society. Therefore, certain men
must be removed by death from the society of men."
o Aquinas acknowledged these passages could also be interpreted as meaning there
should be no use of the death penalty if there was a chance of injuring the
innocent.
Usury "from its use, a thing which produces nothing is applied to the acquiring of gain and
profit without any work, any expense or any risk and that the modern idea of what the usury is
cannot be applied to Thomasian thought.
Another argument used by Aquinas was that of the Roman distinction between consumable
goods and non-consumable goods. Food and clothes are consumable in that once they are used,
they are gone. A piece of land is non-consumable since it can produce crops for years, yet never
lose its value. Money as defined by Aquinas is a consumable. To put it out for profit betrays its
purpose in natural law. This is the view that prevailed for the next three centuries following St.
Thomas' death.
Two Concepts of Liberty
"Positive liberty... is a valid universal goal. I do not know why I should have been held
to doubt this, or, for that matter, the further proposition, that democratic self-
government is a fundamental human need, something valuable in itself, whether or not
it clashes with the claims of negative liberty or of any other goal... What I am mainly
concerned to establish is that, whatever may be the common ground between them, and
whatever is liable to graver distortion, negative and positive liberty are not the same
thing." -- Isaiah Berlin, Five Essays on Liberty: An Introduction[1]
Two Concepts of Liberty was the inaugural lecture delivered by the liberal philosopher Isaiah
Berlin before the University of Oxford on 31 October 1958.
Berlin defined negative liberty, as the term "liberty" was used by Thomas Hobbes,[3] as
the absence of coercion, or interference with, agents' possible private actions, by an
exterior social-body, and as a comparatively recent political ideal, which, Berlin later
writes, re-emerged in the late 17th century, after its slow and inarticulate birth in the
Ancient doctrines of Antiphon the Sophist, the Cyrenaic discipleship, and of Otanes after
the death of pseudo-Smerdis.[4] In an introduction to the essay, Berlin writes:
o "As for Otanes, he wished neither to rule nor to be ruled — the exact opposite of
Aristotle's notion of true civic liberty... [This ideal] remains isolated and, until
Epicurus, undeveloped... the notion had not explicitly emerged".
Positive liberty may be understood as one's having a role in choosing who governs the
society of which one is a part.
o Aristotle's definition of citizenship, which is historically derived from the social role of
the freemen of classical Athens: it was, Berlin argued, the liberty in choosing their
government granted to citizens, and extolled, most famously, by Pericles.
o Berlin granted that both concepts of liberty represent valid human ideals, and that both
forms of liberty are necessary in any free and civilised society. He also argued that, as
a matter of history, the positive concept of liberty has proven particularly susceptible
to rhetorical abuse, when, especially from the 18th century onwards, it has either been
paternalistically re-drawn from the third-person, or conflated with the concept of
negative liberty and thus disguised underlying value-conflicts.
For Berlin, negative liberty represents a different, and sometimes contradictory,
understanding of the concept of liberty, which needs to be carefully distinguished. Its
later proponents (such as Tocqueville, Constant, Montesquieu, John Locke, David Hume
and John Stuart Mill, who accepted Chrysippus' understanding of self-determination)[7]
insisted that constraint and discipline were the antithesis of liberty and so were (and are)
less prone to confusing liberty and constraint in the manner of rationalists and the
philosophical harbingers of totalitarianism. This concept of negative liberty, Berlin
argued, constitutes an alternative, and sometimes even opposed, concept to positive
liberty, and one often closer to the intuitive modern usage of the word.
Berlin did not argue that the concept of positive liberty should be rejected — on the
contrary, he recognised it as one human value among many, and one necessary to any
free society.[8]
He argued that positive liberty was a genuine and valuable version of liberty, so long as it
was identified with the autonomy of individuals, and not with the achievement of goals
that individuals 'ought to' 'rationally' desire.[9] Berlin argued, rather, that these differing
concepts showed the plurality, and incompatibility of human values, and the need to
analytically distinguish and trade-off between, rather than conflate, them.[10]
Communitarianism
Communitarianism, as a group of related but distinct philosophies, began in the late
20th century, opposing individualism. Not necessarily hostile to social liberalism or even
social democracy,
communitarianism emphasizes the need to balance individual rights and interests with
that of the community as a whole, and argues that individual people (or citizens) are
shaped by the cultures and values of their communities.
Terminology
Though the term communitarianism is of 20th-century origin, it is derived from the 1840s
term communitarian, which was coined by Goodwyn Barmby to refer to one who was a
member or advocate of a communalist society. The term is primarily used in two senses:
Philosophical communitarianism considers classical liberalism to be ontologically and
epistemologically incoherent, and opposes it on those grounds. Unlike classical
liberalism, which construes communities as originating from the voluntary acts of pre-
community individuals, it emphasizes the role of the community in defining and shaping
individuals. Communitarians believe that the value of community is not sufficiently
recognized in liberal theories of justice.
Ideological communitarianism is characterized as a radical centrist ideology that is
sometimes marked by leftism on economic issues and moralism or conservatism on
social issues. This usage was coined recently. When the term is capitalized, it usually
refers to the Responsive Communitarian movement of Amitai Etzioni and other
philosophers.
Philosophical communitarianism
Communitarianism in philosophy, like other schools of thought in contemporary political
philosophy, can be defined by its response to John Rawls' A Theory of Justice.
Communitarians criticize the image Rawls presents of humans as atomistic individuals.
Communitarians claim values and beliefs are formed in public space, in which debate
takes place. Both linguistic and non-linguistic traditions are communicated to children
and form the backdrop against which individuals formulate and understand beliefs.
The dependence of the individual upon community members is typically meant as
descriptive. It does not mean that individuals should accept majority beliefs. Rather, if an
individual rejects a majority belief, such as the historic belief that slavery is acceptable,
he or she will do so for reasons that make sense within the community (for example, the
Judeo-Christian conception of the imago Dei, or reasons deriving from secular
Enlightenment humanism) rather than simply any reason at all. In this sense, the rejection
of a single majority belief relies on other majority beliefs.
The following authors have communitarian tendencies in the philosophical sense, but
have all taken pains to distance themselves from the political ideology known as
communitarianism, which is discussed further below:
Vincent Cespedes – Je t'aime. Une autre politique de l'amour (I Love You. A Different Politic of
Love)
Alasdair MacIntyre – After Virtue
Michael Sandel – Liberalism and the Limits of Justice
Charles Taylor – Sources of the Self
Michael Walzer – Spheres of Justice
Christos Yannaras – A Greek philosopher and theologian whose ideas tend to view
communitarianism from a theological and ontological perspective.
Ideological communitarianism
[edit] Communitarian political philosophy
[edit] Social capital
In the book Bowling Alone, Robert Putnam observed that nearly every form of civic
organization has undergone drops in membership exemplified by the fact that, while
more people are bowling than in the 1950s, there are fewer bowling leagues. In recent
years Putnam has revised this argument.
This results in a decline in "social capital", described by Putnam as "the collective value
of all 'social networks' and the inclinations that arise from these networks to do things for
each other". According to Putnam and his followers, social capital is a key component to
building and maintaining democracy.
Communitarians seek to bolster social capital and the institutions of civil society. The
Responsive Communitarian Platform described it thus[3]:
"Many social goals . . . require partnership between public and private groups. Though
government should not seek to replace local communities, it may need to empower them by
strategies of support, including revenue-sharing and technical assistance. There is a great need
for study and experimentation with creative use of the structures of civil society, and public-
private cooperation, especially where the delivery of health, educational and social services are
concerned."
[edit] Positive rights
Central to the communitarian philosophy is the concept of positive rights, which are
rights or guarantees to certain things.
o These may include state subsidized education, state subsidized housing, a safe and
clean environment, universal health care, and even the right to a job with the
concomitant obligation of the government or individuals to provide one. To this
end, communitarians generally support social security programs, public works
programs, and laws limiting such things as pollution.
A common objection is that by providing such rights, communitarians violate the
negative rights of the citizens; rights to not have something done for you.
o For example, taxation to pay for such programs as described above dispossesses
individuals of property.
Proponents of positive rights, by attributing the protection of negative rights to the
society rather than the government, respond that individuals would not have any rights in
the absence of societies—a central tenet of communitarianism—and thus have a personal
responsibility to give something back to it. Some have viewed this as a negation of
natural rights.
o However, what is or is not a "natural right" is a source of contention in modern
politics, as well as historically; for example, whether or not universal health care,
private property or protection from polluters can be considered a birthright.
Alternatively, some agree that negative rights may be violated by a government action,
but argue that it is justifiable if the positive rights protected outweigh the negative rights
lost. In the same vein, supporters of positive rights further argue that negative rights are
irrelevant in their absence. Moreover, some communitarians "experience this less as a
case of being used for others' ends and more as a way of contributing to the purposes of a
community I regard as my own"[4].
[edit] Communitarian movement
The Communitarian Network, founded in 1993 by Amitai Etzioni, is the best-known group
advocating communitarianism. One of the network's many initiatives to reach out to a broader
public is the transnational project Diversity within Unity, which advocates a communitarian
approach towards immigration and minority rights in today's diversifying societies. The project
is endorsed by a diverse and international group of supporters, including current Dutch prime-
minister Jan-Peter Balkenende from the Christian Democratic Appeal; Rita Süssmuth from the
Christian Democratic Union; the Hungarian dissident and philosopher György Bence; British
political scholar David Miller; and others.[6]
A think tank called the Institute for Communitarian Policy Studies is also directed by Etzioni.
Other voices of communitarianism include Don Eberly, director of the Civil Society Project and
Robert Putnam.
[edit] Influence in the United States
Reflecting the dominance of liberal and conservative politics in the United States, no major party
and few elected officials advocate communitarianism. Thus there is no consensus on individual
policies, but some that most communitarians endorse have been enacted.
President Bill Clinton was open about his support for much of Amitai Etzioni's philosophy,
though whether this reflected on his actual policy program is debatable. It has also been
suggested that the "compassionate conservatism" espoused by President Bush during his 2000
presidential campaign was a form of conservative communitarian thinking, though he too did not
implement it in his policy program. Cited policies have included economic and rhetorical support
for education, volunteerism, and community programs, as well as a social emphasis on
promoting families, character education, traditional values, and faith-based projects.
Dana Milbank, writing in the Washington Post, remarked of modern communitarians, "There is
still no such thing as a card-carrying communitarian, and therefore no consensus on policies.
Some, such as John DiIulio and outside Bush adviser Marvin Olasky, favor religious solutions
for communities, while others, like Etzioni and Galston, prefer secular approaches."[7]
[edit] Criticism
Liberal theorists such as Simon Caney[8] disagree that philosophical communitarianism has any
interesting criticisms to make of liberalism. They reject the communitarian charges that
liberalism neglects the value of community, and holds an "atomized" or asocial view of the self.
If they are correct in this, then communitarian doctrine reduces to little more than traditionalism
and cultural moral relativism.
According to scholar Peter Sutch, the principal criticisms of communitarianism are:
1. That communitarianism leads necessarily to moral relativism.
2. That this relativism leads necessarily to a re-endorsement of the status quo in international
politics, and
3. That such a position relies upon a discredited ontological argument that posits the foundational
status of the community or state.[9]
However, he goes on to show that such arguments cannot be leveled against the particular
communitarian theories of John Rawls, Michael Walzer and Mervyn Frost.[citation needed]
[edit] Critical communitarianism
Critical communitarianism combines epistemology, theories of sociopolitical power, theories of
identities, and human rights studies. It offers to look into non-ruling communities in order to
better comprehend state-society relationships. Theoretically, it shifts the attention from the state
as the sole venue of political power and drills into theorizing state-society relations through
looking into alternative and challenging locations of political power. Consequently, it invites
new insights into the classical questions of what are the boundaries between state and society;
what is a 'collective' good, and where and how human beings are shaping their consciousness,
identities and practices. Normatively, it generates normative questions about relative morality
and encourages us to empower cultural relativism and yet to acknowledge the existence of some
cosmopolitan values. Empirically, it fosters empirical studies that examine internal conflicts,
institutions, and power struggles within non-ruling communities in the context of local, regional,
and global forces. Accordingly, it challenges the domination of liberalism and liberal
jurisprudence as the hegemonic paradigm for explication, theorization, and substantiation of
human virtues. Instead, it invites to include liberalism alongside elements of communitarianism
as relative ways to both challenge symbolic power and to foster protection of non-ruling
communities in order to achieve justice and peace.
Utilitarianism
Utilitarianism is the idea that the moral worth of an action is determined solely by its
utility in providing happiness or pleasure as summed among all sentient beings.
It is thus a form of consequentialism, meaning that the moral worth of an action is
determined by its outcome. The most influential contributors to this ideology were
Jeremy Bentham and John Stuart Mill.
Utilitarianism is often described by the phrase "the greatest good for the greatest number
of people"[1], and is also known as "the greatest happiness principle".
Utility, the good to be maximized, has been defined by various thinkers as happiness or
pleasure (versus suffering or pain), although preference utilitarians define it as the
satisfaction of preferences. It may be described as a life stance, with happiness or
pleasure being of ultimate importance.
Utilitarianism can be characterised as a quantitative and reductionist approach to ethics. It
can be contrasted with deontological ethics (which do not regard the consequences of an
act as being a determinant of its moral worth) and virtue ethics (which focuses on
character), as well as with other varieties of consequentialism.
History
Jeremy Bentham
The origins of utilitarianism are often traced as far back as the Greek philosopher
Epicurus, but, as a specific school of thought, it is generally credited to Jeremy Bentham.
Bentham found pain and pleasure to be the only intrinsic values in the world: "nature has
placed mankind under the governance of two sovereign masters, pain and pleasure."[3]
From this, he derived the rule of utility: the good is whatever brings the greatest
happiness to the greatest number of people.
In his famous work, Utilitarianism, J.S Mill argues that cultural, intellectual and spiritual
pleasures are of greater value than mere physical pleasure because the former would be
valued higher than the latter by competent judges.
"it is better to be a human dissatisfied than a pig satisfied; better to be Socrates
dissatisfied than a fool satisfied"[5]
demonstrating Mill's distinction between higher and lower pleasures. He justified this
distinction by the thought that "few human creatures would consent to be changed into
any of the lower animals, for a promise of the fullest allowance of a beast's pleasures."[5]
In distinguishing between types of pleasure, Mill distanced himself from Bentham, who
famously said[6] that the child's game of push-pin is as good as poetry (assuming that the
two bring equal quantities of pleasure).
Like Bentham's formulation, Mill's utilitarianism deals with pleasure and happiness.
However John Stuart Mill made a clear distinction between happiness and pleasure; and
made it evident that Weak Rule Utilitarianism was focused on maximising happiness
rather than pleasure; for the naturalistic fallacy made it clear that what one desires and
what is good are not always the same thing. For example a pleasure/desire may be to
bully a lonely child, which may produce pleasure, however happiness comes from
following virtues rather than desires.
Some philosophers reject the sole importance of well-being, arguing that there are
intrinsic values other than happiness or pleasure, such as knowledge and autonomy.
Other past advocates of utilitarianism include William Godwin, Henry Sidgwick and
notably Machiavelli, who introduced notions of utilitarianism in his political treatise The
Prince, and argued that "the greatest moral good is a virtuous and stable state, and actions
to protect the country are therefore justified even if they are cruel.
John Stuart Mill argues that utilitarianism requires that political arrangements satisfy the
"liberty principle" (or harm principle), according to which "the only purpose for which
power can be rightfully exercised over any member of a civilised community, against his
will, is to prevent harm to others."[7]
o Prevention of self-harm by other persons was considered expressly forbidden.
Instead, Mill states that only persuasion can be rightfully used to prevent self-
harm.[citation needed]
Types
Act v rule
Main articles: Act utilitarianism and Rule utilitarianism
Act utilitarianism states that, when faced with a choice, we must first consider the likely
consequences of potential actions and, from that, choose to do what we believe will
generate most pleasure.
The rule utilitarian, on the other hand, begins by looking at potential rules of action. To
determine whether a rule should be followed, he looks at what would happen if it were
constantly followed. If adherence to the rule produces more happiness than otherwise, it
is a rule that morally must be followed at all times. The distinction between act and rule
utilitarianism is therefore based on a difference about the proper object of
consequentialist calculation — specific to a case or generalized to rules.
Rule utilitarianism has been criticized for advocating general rules that will in some specific
circumstances clearly decrease happiness if followed. Never to kill another human being may
seem to be a good rule, but it could make self-defense against malevolent aggressors very
difficult. Rule utilitarians add, however, that there are general exception rules that allow the
breaking of other rules if such rule-breaking increases happiness, one example being self-
defense. Critics argue that this reduces rule utilitarianism to act utilitarianism and makes rules
meaningless. Rule utilitarians retort that rules in the legal system (i.e. laws) that regulate such
situations are not meaningless. Self-defense is legally justified, while murder is not.
However there is within rule utilitarianism a distinction between the strictness and absolutism of
this particular branch of utilitarianism. There is Strong Rule Utilitarianism which is an absolutist
theory which frames strict rules which apply for all people and all time and may never be broken.
Weak Rule utilitarianism however was the branch of utilitarianism that was proposed by John
Stuart Mill and entailed that although rules should be framed on previous examples that benefit
society; such as do not lie, it is possible under specific circumstances to do that which produces
the greatest happiness and to break that rule. An example would be the Gestapo asking where
your Jewish neighbours were... A strong rule utilitarian might say that the rule "Do not lie" can
never be broken, whereas a weak rule utilitarian would argue that to lie would be the result that
would produce the most happiness
Rule utilitarianism should not be confused with heuristics (rules of thumb), but many act
utilitarians agree that it makes sense to formulate certain rules of thumb to follow if they find
themselves in a situation whose consequences are difficult, costly or time-consuming to calculate
exactly. If the consequences can be calculated relatively clearly and without much doubt,
however, the rules of thumb can be ignored.
Collapse of rule utilitarianism into act utilitarianism
It has been argued[8] that rule utilitarianism collapses into act utilitarianism, because for any
given rule, in the case where breaking the rule produces more utility, the rule can be
sophisticated by the addition of a sub-rule that handles cases like the exception. This process
holds for all cases of exceptions, and so the 'rules' will have as many 'sub-rules' as there are
exceptional cases, which, in the end, makes an agent seek out whatever outcome produces the
maximum utility.[9]
Two-level
Main article: Two-level utilitarianism
Two-level utilitarianism states that one should normally use 'intuitive' moral thinking, in the
form of rule utilitarianism, because it usually maximizes happiness. However there are some
times when we must ascend to a higher 'critical' level of reflection in order to decide what to do,
and must think as an act utilitarian would. Richard Hare supported this theory with his concept of
the Archangel, which holds that if we were all 'archangels' we could be act utilitarians all the
time as we would be able to perfectly predict consequences. However we are closer to 'proles' in
that we are frequently biased and unable to foresee all possible consequence of our actions, and
thus we require moral guidelines. When these principles clash we must attempt to think like an
archangel in order to choose the right course of action.
Negative
See also: Abolitionism (bioethics)
Most utilitarian theories deal with producing the greatest amount of good for the greatest number
of people. Negative utilitarianism (NU) requires us to promote the least amount of evil or harm,
or to prevent the greatest amount of suffering for the greatest number. Proponents like Karl
Popper, Christoph Fehige and Clark Wolf argue that this is a more effective ethical formula,
since, they contend, the greatest harms are more consequential than the greatest goods. Karl
Popper also referred to an epistemological argument: “It adds to clarity in the fields of ethics, if
we formulate our demands negatively, i.e. if we demand the elimination of suffering rather than
the promotion of happiness.” [10]. In the practical implementation of this idea the following
versions can be distinguished:
1. R.N.Smart, an advocate of the utilitarian principle, was quick to suggest that the ultimate aim
of NU would be to engender the quickest and least painful method of killing the entirety of
humanity, as this ultimately would effectively minimize suffering. NU would seem to call for the
destruction of the world even if only to avoid the pain of a pinprick [11].
2. Newer, moderate versions of NU do not attempt to minimize all kinds of suffering but only
those kinds that are created by the frustration of preferences.[12] In most supporters of moderate
NU the preference to survive is stronger than the wish to be freed from suffering, so that they
refuse the idea of a quick and painless destruction of life. Some of them believe that, in time, the
worst cases of suffering will be defeated and a world of minor suffering can be realized. The
principal agents of this direction can be found in the environment of transhumanism and
abolitionism (bioethics) [13].
Supporters of moderate NU who do not believe in the promises of technology would prefer a
reduction of the world population (and in the extreme case an empty world). This seems to come
down to the position of radical NU, but in moderate NU the world could only be sacrificed to
prevent extreme suffering and not to avoid the pain of a pinprick. And from the claim that an
empty world would be a preferable state of affairs, it does not follow that a political movement
should be formed with the aim of achieving such a state of affairs. The latter would definitely
(and in analogy to radical NU) be counterproductive. Pessimistic supporters of moderate NU
therefore tend towards a retreat oriented way of living.
3. Finally there are theoreticians who see NU as a branch within classical utilitarianism, rather
than an independent theory. This interpretation overlooks Derek Parfit's ―Repugnant Conclusion‖
[14]
. NU is precisely characterized by overcoming this theoretical weakness of classical
utilitarianism.
Average v total
Total utilitarianism advocates measuring the utility of a population based on the total utility of its
members. According to Derek Parfit, this type of utilitarianism falls victim to the Repugnant
Conclusion, whereby large numbers of people with very low but non-negative utility values can
be seen as a better goal than a population of a less extreme size living in comfort. In other words,
according to the theory, it is a moral good to breed more people on the world for as long as total
happiness rises.[15]
Average utilitarianism, on the other hand, advocates measuring the utility of a population based
on the average utility of that population. It avoids Parfit's repugnant conclusion, but causes other
problems like the Mere Addition Paradox. For example, bringing a moderately happy person in a
very happy world would be seen as an immoral act; aside from this, the theory implies that it
would be a moral good to eliminate all people whose happiness is below average, as this would
raise the average happiness[16].
Other species
Further information: Speciesism, animal welfare
Peter Singer, along with many animal rights activists, has argued that the well-being of all
sentient beings, conscious ones who feel pain; including some non-humans,[citation needed] deserves
equal consideration to that given human beings. Otherwise, it would be a case of speciesism.
Bentham made a similar argument.
This view may be contrasted with deep ecology, which holds that an intrinsic value is attached to
all forms of life and nature. According to utilitarianism, most forms of life are unable to
experience anything akin to pleasure or discomfort, and are therefore denied moral status.[citation
needed]
Thus, the moral value of organisms that do not experience pleasure or discomfort, or
natural entities like a river, is only in the benefit they provide to sentient beings. Similarly,
utilitarianism places no intrinsic value on biodiversity.
Combinations with other ethical schools
In order to overcome the perceived shortcomings of both systems, several attempts have been
made to reconcile utilitarianism with Kant's categorical imperative. James Cornman proposes
that, in any given situation, we should treat as "means" as few people as possible and as "ends"
as many as are consistent with those "means". He refers to this as the "Utilitarian Kantian
Principle".
Other consequentialists may consider happiness an important consequence but argue in addition
that consequences such as justice or equality should also be valued, regardless of whether or not
they increase happiness.
Biological explanation
It has been suggested that sociobiology, the study of the evolution of human society, provides
support for the utilitarian point of view. For example, in The Expanding Circle: Ethics and
Sociobiology, the utilitarian philosopher Peter Singer argues that fundamentally utilitarian ethical
reasoning has existed from the time primitive foraging bands had to cooperate, compromise, and
make group decisions to survive. He elaborates: "In a dispute between members of a cohesive
group of reasoning beings, the demand for a reason is a demand for a justification that can be
accepted by the group as a whole." Thus, consideration of others' interests has long been a
necessary part of the human experience. Singer believes that reason now compels the equal
consideration of all people's interests:
"If I have seen that from an ethical point of view I am just one person among the many in my
“ society, and my interests are no more important, from the point of view of the whole, than
the similar interests of others within my society, I am ready to see that, from a still larger
point of view, my society is just one among other societies, and the interests of members of
my society are no more important, from that larger perspective, than the similar interests of
members of other societies… Taking the impartial element in ethical reasoning to its logical
conclusion means, first, accepting that we ought to have equal concern for all human
beings."
”
This conclusion – that everybody's interests should be considered equally when making
decisions – is a core tenet of utilitarianism.
Singer elaborates that viewing oneself as equal to others in one's society and at the same time
viewing one's society as fundamentally superior to other societies may cause an uncomfortable
cognitive dissonance. This is the sense in which he means that reason may push people to accept
a broader utilitarian stance. Critics (e.g., Binmore 2005) point out that this cognitive dissonance
is apparently not very strong, since people often knowingly ignore the interests of faraway
societies quite similar to their own. They also note that the "ought" of the quoted paragraph
applies only to someone who has already accepted the premise that all societies are equally
important. Singer has responded that his argument in Expanding the Circle wasn't intended to
provide a complete philosophical justification for a utilitarian categorical imperative, but merely
to provide a plausible explanation for how some people come to accept utilitarianism.
Criticism and defense
Aggregating utility
John Rawls gives a critique of Utilitarianism in A Theory Of Justice that rejects the idea that the
happiness of two distinct persons could be meaningfully counted together. He argues that this
entails treating a group of many as if it were a single sentient entity, mistakenly ignoring the
separation of consciousness.[17] Animal Rights advocate Richard Ryder calls this the 'boundary
of the individual', through which neither pain nor pleasure may pass.[18] Thus the aggregation of
utility becomes futile as both pain and happiness are intrinsic to and inseparable from the
consciousness in which they are felt, rendering impossible the task of adding up the various
pleasures of multiple individuals.
However, it should be noted that the apparent separation and consistency of individual
consciousness, which is both a strong human intuition and an implicit premise in this critique, is
itself a subject of debate and criticism in the philosophy of mind.
Predicting consequences
Daniel Dennett uses the case of the Three Mile Island accident as an example of the difficulty in
calculating happiness.[19] Was the near-meltdown that occurred at this nuclear power plant a
good or a bad thing (according to utilitarianism)? He points out that its long-term effects on
nuclear policy would be considered beneficial by many and might outweigh the negative
consequences. His conclusion is that it is still too early, 31 years after the event, for utilitarianism
to weigh all the evidence and reach a definite conclusion. Utilitarians note that utilitarianism
seems to be the unspoken principle used by both advocates and critics of nuclear power.[citation
needed]
That something cannot be determined at the moment is common in science and frequently
resolved with later advancements.
Utilitarians, however, are not required to have perfect knowledge; indeed, certain knowledge of
consequences is impossible because consequences are in the unexperienced future. Utilitarians
simply try their best to maximise happiness (or other forms of utility) and, to do this, make their
best estimates of the consequences. If the consequences of a decision are particularly unclear, it
may make sense to follow an ethical rule which has promoted the most utility in the past.
Utilitarians also note that people trying to further their own interests frequently run into
situations in which the consequences of their decisions are very unclear. This does not mean,
however, that they are unable to make a decision; much the same applies to utilitarianism.
Anthony Kenny argues against utilitarianism on the grounds that determinism is either true or
false: if it is true, we have no choice over our actions; if it is false, the consequences of our
actions are unpredictable, not least because they depend upon the actions of others whom we
cannot predict.[20]
Importance of intentions
Utilitarianism has been criticised for looking only at the results of actions, not at the desires or
intentions that motivate them, which many consider important, too. An action intended to cause
harm but which inadvertently causes good would be judged equal to the good result of an action
done with the best intentions. Many utilitarians argue that utilitarianism applies not only to
results but also to desires and dispositions, praise and blame, and rules, institutions and
punishment. Bad intentions may cause harm (to the agent and to others) even if they do not result
in bad acts. Once this is recognised, supporters argue that utilitarianism becomes a much more
complex, and rich, moral theory, and may align far more closely with our moral intuitions.
Furthermore, many utilitarians view morality as a personal guide rather than a means to judge the
actions of other people, or actions which have already been performed: morality is something to
be looked at when deciding what to do. In this sense, intentions are all that matter, because the
consequences cannot be known with certainty until the decision has been made.
One philosopher to take this view is Henry Sidgwick, in his main work The Methods of Ethics
(1874).
Human rights
Utilitarians argue that justification of slavery, torture or mass murder would require
unrealistically large benefits to outweigh the direct and extreme suffering to victims.
Utilitarianism would also require the indirect impact of social acceptance of inhumane policies to
be taken into consideration, and general anxiety and fear could increase for all if human rights
are commonly ignored.
Act and rule utilitarians differ in how they treat human rights themselves. Under rule
utilitarianism, a human right can easily be considered a moral rule. Act utilitarians, on the other
hand, do not accept human rights as moral principles in and of themselves, but that does not
mean that they reject them altogether: first, most act utilitarians, as explained above, would agree
that acts such as enslavement and genocide always cause great unhappiness and very little
happiness; second, human rights could be considered rules of thumb so that, although torture
might be acceptable under some circumstances, as a rule it is immoral; and, finally, act
utilitarians often support human rights in a legal sense because utilitarians support laws that
cause more good than harm.
Lack of convincing proof
Another criticism of utilitarianism is that it is not proven, either by science or by logic, to be the
correct ethical system. Supporters claim that this is common to all ethical schools, and indeed the
system of logic itself, and will always remain so unless the problem of the regress argument, or
at least the is-ought problem, is satisfactorily resolved. It might instead be argued that almost all
political arguments about a future society use an unspoken utilitarian principle, all sides claiming
that their proposed solution is the one that increases human happiness the most.
Mill's argument for utilitarianism holds that pleasure is the only thing desired and that, therefore,
pleasure is the only thing desirable. Critics argue that this is like saying that things visible are
things seen, or that the only things audible are things heard. A thing is "visible" if it can be seen
and "desirable" if it ought to be desired. Thus the word "desirable" presupposes an ethical theory:
we cannot infer what is desirable from what is desired. This criticism, however, reads the word
"desirable" as "able to be desired" rather than "worth being desired", and does not take into
account the moral assessment that must take place in order to categorise something as
"desirable", which does not occur when categorising the same thing as "visible" or "audible".
Individual interests vs. a greater sum of lesser interests
Critics have also asked why one should follow utilitarianism instead of ethical egoism. The legal
system might punish behavior that harms others, but this incentive is not active in a situation
where one can personally gain by breaking it without punishment. One egoist, however, may
propose means to maximise self-interest that conflict with the means proposed by another egoist.
As a result, it behooves them to compromise with one another in order to avoid conflict, out of
self-interest. The means proposed may incidentally coincide with those prescribed by
utilitarianism, but the foundational ethical imperative would not, of course, be utilitarian.
Another reason for an egoist to become a utilitarian was proposed by Peter Singer in Practical
Ethics. He presents the paradox of hedonism, which holds that, if your only goal in life is
personal happiness, you will never be happy: you need something to be happy about. One goal
that Singer feels is likely to bring about personal happiness is the desire to improve the lives of
others; that is, to make others happy. This argument is similar to the one for virtue ethics.
Infinitarian paralysis
Some modern cosmology theories predict an infinite Universe.[21] Philosopher Nick Bostrom
claims that in an infinite universe there is an infinite number of planets and each of them has
"non‐zero chance of giving rise to intelligent life". According to the philosopher, this means that
in infinite universe there is (with probability of one) an infinite number of intelligent beings and
therefore an infinite amount of pain and pleasure. However, we can affect only finite amount of
pain and pleasure. Yet an infinite quantity can not be changed by adding or subtracting a finite
quantity.[22]
According to Nick Bostrom, this means that "every possible act of ours therefore has the same
net effect on the total amount of good and bad in a canonically infinite world: none
whatsoever."[22] He further states that we can not use an ethical theory which combined with our
current best scientific guesses means that it is always ethically indifferent what we do.[22]
Reasons why utilitarianism may remain useful include that the effects of actions might not be
finite[23], the limitation to the possible utility on a single planet [24], and the argument that while
the universe might be infinite, its mass, number of planets, useful energy and hence possible
intelligent life all appear to be finite.[25]
Karl Marx's criticisms
Karl Marx, in Das Kapital, writes:
Not even excepting our philosopher, Christian Wolff, in no time and in no country has the
“ most homespun commonplace ever strutted about in so self-satisfied a way. The principle of
utility was no discovery of Bentham. He simply reproduced in his dull way what Helvétius
and other Frenchmen had said with esprit in the 18th century. To know what is useful for a
dog, one must study dog-nature. This nature itself is not to be deduced from the principle of
utility. Applying this to man, he that would criticise all human acts, movements, relations,
etc., by the principle of utility, must first deal with human nature in general, and then with
human nature as modified in each historical epoch. Bentham makes short work of it. With
”
the driest naiveté he takes the modern shopkeeper, especially the English shopkeeper, as
the normal man. Whatever is useful to this queer normal man, and to his world, is
absolutely useful. This yard-measure, then, he applies to past, present, and future. The
Christian religion, e.g., is "useful," "because it forbids in the name of religion the same faults
that the penal code condemns in the name of the law." Artistic criticism is "harmful,"
because it disturbs worthy people in their enjoyment of Martin Tupper, etc. With such
rubbish has the brave fellow, with his motto, "nulla dies sine line!," piled up mountains of
books.[26]
Marx's accusation is twofold. In the first place, he says that the theory of utility is true by
definition and thus does not really add anything meaningful. For Marx, a productive inquiry
would have to investigate what sorts of things are good for people; that is, what our nature which
is alienated under capitalism really is. Second, he says that Bentham fails to take account of the
changing character of people, and hence the changing character of what is good for them. This
criticism is especially important for Marx, because he believed that all important statements were
contingent upon particular historical conditions.
Marx argues that human nature is dynamic, so the concept of a single utility for all humans is
one-dimensional and not useful. When he decries Bentham's application of the 'yard measure' of
now to 'the past, present and future', he decries the implication that society, and people, have
always been, and will always be, as they are now; that is, he criticizes essentialism. As he sees it,
this implication is conservatively used to reinforce institutions he regarded as reactionary. Just
because in this moment religion has some positive consequences, says Marx, doesn't mean that
viewed historically it isn't a regressive institution that should be abolished.
Marx's criticism is more a criticism of Bentham's views (or similar views) of utility, than
utilitarianism itself. Utilitarians would not deny that different things make different people
happy, and that what promotes happiness changes over time. Neither would utilitarians deny the
importance of investigations into what promotes utility.
Marx's criticism applies to all philosophy which does not take explicit account of the movement
of history (against dialectics). While he is right that all things change, and that it is necessary to
take account of this when making practical judgements, this doesn't mean that it isn't useful to
have a theory which gives some means to evaluate those changes themselves.
Also, utilitarianism was originally developed as a challenge to the status quo. The demand that
everyone count for one, and one only, was anathema to the elitist society of Victorian
Britain.[citation needed]
Although Marx criticized utilitarianism, some Marxist philosophers have used utilitarian
principles as arguments for political socialism.
The Wittgensteinian Critique
Contemporary philosophers such as Matthew Ostrow have critiqued utilitarianism from a
distinctly Wittgensteinian perspective. According to these philosophers, utilitarians have
expanded the very meaning of pleasure to the point of linguistic incoherence. The utilitarian
groundlessly places pleasure as his or her first principle, and in doing so subordinates the value
of asceticism, self-sacrifice or any other "secondary" desire. Of course, the utilitarian will deny
this contention altogether, claiming that ascetics also seek pleasure, but have merely chosen an
alternative path in which to achieve it.
Yet such an argument is implicitly tautological ("What is it that people want? Pleasure. But what
is pleasure? What people want."). The utilitarian therefore has no ultimate justification for
primarily valuing pleasure, other than to say that "this is the way it should be." In this critique,
utilitarianism is thus ultimately reduced to a form of dishonest ethical intuitionism, unable to
recognize or acknowledge its own groundlessness.
Criticism of other schools
One utilitarian criticism of other schools[who?] is that many of them cannot even in theory solve
real-world ethical problems when various inviolable principles collide, like triage or the
rightness or otherwise of the atomic bombings of Hiroshima and Nagasaki.
A criticism of Kantianism is levelled by R. M. Hare in Could Kant Have Been a Utilitarian?
Hare argues that a number of different ethical positions could fit with Kant's description of his
Categorical Imperative.