In an otherwise meritorious article (“The ‘Risk’ of Liberty: Criminal Law in the Welfare State,” September 2008), Michael N. Giuliano parrots the tiresome old bashing of utilitarian ethics. (He sometimes says “consequentialism,” but since versions of utilitarianism make up almost the entire set of consequentialist doctrines, the distinction is unnecessary here.) “The main component of utilitarianism,” Giuliano writes, “holds that the rightness or wrongness of an action is determined purely by its consequences. . . . The law’s reach under the utilitarian mentality is predicated on the belief that the ends justify the means.” Unlike English and American tradition, which recognized personal liberties either preexisting or superseding government power, “The ‘greatest happiness of the greatest number’ rule . . . declar[es] that the ends justify the means. . . . The trek toward greater utilitarianism was in avowed opposition to the natural rights that . . . once ‘morally’ exonerated the humblest citizen in defiance of the highest authority.”
Where does Giuliano get his notions about utilitarianism? Clearly not from the writings of such great philosophers and economists as David Hume, John Stuart Mill, Henry Hazlitt, Ludwig von Mises, and R. M. Hare (and F. A. Hayek, who was a utilitarian despite evidently disliking that label). Nor from Aristotle, whose eudemonism foreshadows the soundest strands of utilitarianism. No, Giuliano seems to be thinking, at n-th hand, of an extreme “act-utilitarianism” or “situation ethics,” which would disregard principle and treat each case on its own supposed merits. This caricature version, if ever actually advocated, has nowadays become no more than a straw man for critics to blow down while claiming victory for their own favorite doctrines.
A sounder version, “rules” or “indirect” utilitarianism, recognizes powerful reasons for respecting principles, including those of natural or personal rights; and it distinguishes between good and bad personal characters, thus incorporating “virtue ethics.” This version quite rejects recommending any specific behavior or policy just because its intended good consequences are thought likely to outweigh any bad ones. Instead, it endorses enduring principles like those of Giuliano himself, and precisely on grounds of utility, on the grounds that they are essential to “social cooperation,” as Mises said, the kind of society affording free individuals the best prospects of achieving their various goals in life—in a word, happiness.
Like many of the critics whom he parrots, Giuliano takes Jeremy Bentham as his whipping boy. Not all but much that John Stuart Mill wrote deserves applause, including his essay on “Bentham” (1838). Mill understood Bentham’s distinctive personality. Bentham was good at probing for the exact meanings, if any, of noble-sounding but possibly empty words and slogans. He was good at probing for the rationale of inherited institutions and legal technicalities. But Mill did not think much of Bentham as an original philosopher and regretted the publication of his Deontology. Bentham’s offhand remark about the greatest good for the greatest number, uncharitably interpreted, is indeed nonsense. His faith in the great benefits that suitably instructed legislators could achieve is, as we now see, gravely misplaced. Bentham was far from being the soundest of utilitarians, and it is just wrong to take him as defining what utilitarianism is all about.
Public policy is largely ethics, applied or misapplied. What, then, does Giuliano conceive of as the soundest basis for ethics? Principles of honesty, property, freedom, and rights, as well as the distinction between good and evil, are decisive for a good society and human happiness; but they are not irreducibly intuited ultimates: they can be explained and argued for. Would Giuliano not argue for them? What grounds for them could he find, other than ultimately utilitarian grounds? Conceivably the authors of the policies that Giuliano rightly condemns had the parrot-like misinterpretation of utilitarianism at the back of their minds. That is no excuse, however, for giving the misinterpretation further currency.
—Leland B. Yeager
Auburn University (Emeritus)
Michael Giuliano replies:
Professor Yeager’s response to my article suggested that the view of utilitarianism represented therein was a “caricature version” that “has nowadays become no more than a straw man for critics to blow down.” The article was referring to a certain species of utilitarianism in order to provide one possible explanation, among several, as to how the welfare state has lowered the threshold of allowable risk such that more and more behavior is elevated toward artificial criminality.
My reason for criticizing this “caricature” version of utilitarianism, this version that is “indeed nonsense” according to Yeager, is that it is the version that legislators and other lawmakers so often adopt if only implicitly and independently of any actual theory. It is rarely sophisticated “rules” utilitarianism that is the force behind legislative crusades. Bentham’s “oversimplified test” involving “Pleasure-and-Pain, or the Greatest Happiness,” as Hazlitt observed, could conceivably be applied in a blind “manner to all traditional ethical judgments.” That much of our legislation follows a similarly sweeping rule was the true object of my criticism.
Bentham was used as the example because these oversimplified tests are, in the most basic way, generally identified with utilitarianism applied in the more common situational and legislative settings. I had no intention of suggesting that this was truly the best of utilitarianism as understood in an academic, philosophical sense. I am compelled to defer to the esteemed Professor Yeager as to the best and most appropriately understood utilitarianism as that concept might be used before an academic background.
My argument was hardly that, emanating from the ink and pen of Bentham, his ideas directly flowed through the strands of history into the conscious minds of lawmakers. Perhaps there might be a certain indirect relationship. The point was simply that much of the criminal legislation at issue (though I do not suggest a formalistic distinction between criminal and other enactments) was based on transient public demands and outcries and limited by no particular ethical judgment at all.
As Professor Yeager concluded his response with the observation that the lawmakers might have “had the parrot-like misinterpretation of utilitarianism at the back of their minds,” it is apparent that he essentially recognized my point, however clouded it may have been by a semantically sweeping condemnation that had as its purpose a brief point in the essay. The utilitarianism I referred to was not, excepting the point on Bentham, intended to generally diminish scholarly utilitarian thought, but was instead focused toward the garden-variety utilitarianism that often animates the lawmakers creating the legal landscape we live in.