To: Scott B.
From: Geoffrey Klempner
Subject: J.S. Mill's utilitarian theory of justice
Date: 4th March 2010 13:31

Dear Scott,

Thank you for your email of 25 February, with your essay for the University of London BA Ethics Historical Perspectives module, in response to the question, 'How successful is Mill in reconciling justice with the principle of utility?'

You have said a lot about what Mill believed, what Mill was aware of, what Mill attempted to show etc. etc. However, I don't think that you have sufficiently answered the question, for one very simple reason: you don't seem to have seen that there is a problem in reconciling justice with the principle of utility.

It would be perfectly possible to discuss this question in an Ethics Contemporary Perspectives paper. The fact that the question is posed in the context of Mill's ethics involves two tasks rather than merely one: (a) You need to show why there is a problem in reconciling justice with utilitarianism, and put the case for a particular view, e.g. that the problem is insoluble, or that it can be solved on the basis of one version of utilitarianism but not on another etc. etc. (b) You need to look for evidence in Mill's writings for mounting a case that Mill would give for reconcilability, based on his particular account of justice.

What is the problem? One version goes something like this:

On the 6 pm News, there is CCTV footage of two unidentified policemen beating up an Afro-Caribbean man. The man was hospitalized with severe injuries. It turns out that he is a pillar of the local community. When the news breaks, there are riots. In recent months, race relations have been a tinder box, and this was the spark. A week later, with a rising death toll, the two culprits have still not been identified.

There are, however, two police officers who were disciplined a few months back for using excessive force, and who may or may not have been the two individuals involved -- from among the dozen or so who were on duty and near enough to the crime scene. With pressure mounting, the Chief Superintendent, decides that it would be the lesser of two evils if the two officers previously disciplined were identified as the culprits, regardless of their pleas of innocence. He persuades the investigating officer to plant incriminating evidence. The officers are arrested and pilloried. The riots cease.

Justice was not served that day. But can't the Chief Super argue that his action was the 'best' he could do, according to Mill's principle of the greatest happiness for the greatest number?

As I said, there may be different responses depending on just what kind of utilitarianism you are defending. The usual line goes something like this: When considering consequences for human happiness or misery, we also have to factor in the consequences of allowing unjust acts like this to occur. By hypothesis, we are assuming that the Chief Super and his accomplice are sufficiently clever to cover their tracks so that the truth is very unlikely to come out. However, you can never be 100 per cent sure. Then again, when assessing the consequences of an action in terms of human happiness, you have to make your best judgement, you can't rely on 100 per cent certainty.

What would Mill say? He could argue that, on utilitarian grounds, we ought to strive to the utmost to imbue police officers with a sufficiently strong sense of justice, so that they would never contemplate such an action. If you are prepared to allow innocents to be convicted on one occasion, then you would be prepared to do it again, should the need arise. But that doesn't really answer the question. The question wasn't, 'What sort of police officers should we train?', but rather, 'What ought I to do, if I were in that position?' It is up to me, here and now, to choose the best consequences for human happiness or misery. People are dying in the streets. Wouldn't it be 'best' to let the two innocent men be convicted?

Bernard Williams, a strong critic of utilitarianism argues in Smart and Williams 'Utilitarianism For and Against' that there are good utilitarian grounds for teaching and enforcing a non-utilitarian view of ethics. As Williams is aware, on its own, this is not however a sufficient argument against utilitarianism. R.M. Hare, who has defended a version of utilitarianism based on maximization of preference-satisfaction, embraces the idea of a 'two tier' account whereby the philosophers-legislators are fully aware of, and always act on utilitarian principles, and for that very reason promote a view of morality amongst the populace which rejects utilitarian thinking.

Could Mill say this? It seems very unlikely. On the contrary, Mill seems to think that it is in everyone's best interests if members of society are fully aware of utilitarian theory and practised in applying it. Moral 'intuitionism', or the idea that there are God-given rules of moral conduct or principles of justice is the enemy. All moral action must flow, and be seen transparently to flow from the utilitarian principle.

What you have said in your essay is that Mill has a theory of justice. He was aware of the need to explain the nature of justice in a way which is consistent with his ethical theory. As I have explained, that doesn't answer the question, because there is the potential for real and possibly irresolvable tension between the principle of utility and the principles of justice.

All the best,

Geoffrey