Project in Jurisprudence

UTILITARIANISM

UTILITARIANISM WITH SPECIFIC EMPHASIS ON UTILITARIAN

CALCULUS

________________________________________________________
JURISPRUDENCE-I
Submitted to: Mr. Ranjan Rai ,Professor,National Law Institute University, Bhopal

Submitted by: Shefali Chawla

Roll no.- 2016BALLB57

XI Trimester

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

UTILITARIANISM

CONTENTS

Declaration
Certificate
Acknowledgement
Research methodology

Chapter 1

Introduction
The context of utilitarianism
The Strands that make the tapestry

Chapter 2

Jeremy Bentham (1748 – 1832)

The ‘Greatest Happiness’ Principle
What implications does the Benthamite principle of utility have for a legislator? 
The problems with that

Chapter 3

John Stuart Mill (1806 -1873)

The problems with that

Chapter 4

John Rawl’s criticism of utilitarianism

Chapter 5

Utilitarianism in the Public sphere

Utilitarianism and Affirmative action

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DECLARATION

I hereby declare that the project work entitled “Utilitarianism” submitted to the National Law
Institute University, Bhopal is a record of an original work done by me and is my own effort
and that no part has been plagiarized without citations. Under the guidance of Sir Ranjan Rai
and this project work has not performed the basis for the award of any Degree or diploma/
associateship/fellowship and similar project.

Shefali Chawla

2016 BALLB 57

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ACKNOWLEDGEMENT

I would like to express my special appreciation and thanks to my advisor Professor Ranjan
Rai, you have been a tremendous mentor for me. I would like to thank you for encouraging
my research, advice for the research has been priceless. I have taken efforts in this project.
However, it would not have been possible without the kind support and help of many
individuals and organizations. I would like to extend my sincere thanks to all of them.

I am highly indebted to press information bureau for their guidance and constant supervision
as well as for providing necessary information regarding the project and also for their support
in completing the project.

My thanks and appreciations also go to my faculty in developing the project and people who
have willingly helped me out with their abilities.

Shefali Chawla

Roll code- 2016BALLB57

_________________

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RESEARCH METHODOLOGY

The method of doctrinal research methodology has been followed while doing this project.
The use of Books, Articles and Websites has been incorporated while doing this project.

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INTRODUCTION
Nineteenth century liberalism took its strongest incarnation as utilitarianism.

The context of utilitarianism

While Hegel was brewing his dialectical materialism and his theory of nationalism,
the seeds of liberalism as that particular body of thought, were taking root in English,
American and French minds. Liberalism has since been changed, formed and reformed over
the years by various strands of thinking and has throughout its history used various “tool kits”
to propound and implement its rather eclectic collection of principles.

These tool kits were instruments through which liberalism found contemporary expression.
The earliest form was perhaps the social contract, in the 17th century, John Locke coming
foremost to the mind. John Locke also headed a school of thought which dealt with the
concept of ‘natural’ rights, along with such names as Burke1.
The economic and social context for early utilitarianism, and hence the foundations for
nineteenth century liberalism, is the development of commercial and industrial capitalism 2.
Commercial capitalism came to be associated with contract conceptions. Soon, the merchant
began to be transformed into the industrialist and simultaneously, contract conceptions began
to decline.

The eighteenth century thus saw the decline of contract conceptions and those whose point of
departure was some kind of individualism had to turn to other frameworks.
The philosophy of natural rights, in all might under Rousseau and Burke, had already
received it’s first death blow from Hegel. Now the stage was set, and it’s greatest opponent
already bleeding, liberalism donned new clothes – utilitarianism.

The doctrines of the utilitarians sought to provide a base for legal reform and, later,
representative democracy in a moral doctrine which stressed the consequences of acts in
terms of pains and pleasures.

Liberalism as a political philosophy was a massive movement spanning two continents. In

Germany, liberalism only made itself felt in its judicial system. In France, liberalism never
really reached the masses. That left England and it was here that liberalism and its utilitarian
incarnation caught the minds of many and sparked many an intellectual debate.  It is
interesting to note that Bentham’s great call for legal reform and his first statement of
utilitarian principles in the anonymously written Fragment on Government occurred the same
year as the American declaration of independence and the publication of Adam
Smith’s Wealth of nations. “Thus the Fragment on Government became one of the triad of
1776 utterances which constitute the beginnings of modern liberalism”.3
Jeremy Bentham was the first systematic exponent of utilitarianism as a political
doctrine, though the actual concept was by no means an original product of his mind.

1
Burkes political philosophy of conservatism, more particularly his “reflectons on the revoluton in France”,
was, with all its literary charm and poetry, ineffectual in stemming the course of events…..the important event
in Burke’s lifetime….(was) a change of another kind, the implications of which largely escaped him : The
industrial revolution. -
2
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p.,489.
3
Ibid.,p.,491.

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Utilitarianism was a product of a positivist paradigm in which axiomatic assumptions in

a mould of the theory of natural rights had no place. Thus utilitarianism was a child of
the empiricist tradition.
Keeping in mind this historical context, we begin our journey, for it was into this situation
that Jeremy Bentham was born.

The Strands that make the tapestry

Any discussion of utilitarianism must be broken into various parts, and unravelled
into its various threads before it can be truly understood. Though there have been many
utilitarians with various twists and turns to the philosophy which each has given, the
researcher here has dealt with two of these only: One is Jeremy Bentham and the other is
John Stuart Mill.

Jeremy Bentham (1748 – 1832)

Although he was not the first thinker to employ utility or the greatest happiness
principle as the standard for right and wrong, Jeremy Bentham 4 is nonetheless, widely
regarded as the founder of modern utilitarianism or philosophical radicalism, as it is
also called5.
The man’s life was set in interesting times. He was  born into a family of attorneys and was
an attorney himself, besides being a child prodigy of sorts. In the words of ebstein the life of
Bentham is best summed up. He says, “Bentham was born in 1748, only three years after the
Jacobite revolution of 1745 which sought to regain the throne for the Stuarts. He spent most
of his life under King George III who reigned from 1760 to 1820 – the last British monarch
of autocratic leanings. Bentham died the day before the reform bill of 1832(which was in
essence his brain child) became law. His life thus spanned a long period of transition in
British politics. While experiencing eighteenth century autocracy at its worst, he could
perceive the firm outlines of nineteenth century democracy. His life reflects the
transformation of his country: Bentham was a Tory until 1808, and he became a radical
democrat at he age of sixty, when he was convinced that “the people in power” were against
reform, whereas earlier he had assumed that “they only wanted to know what was good in
order to embrace it”.6

Thus Bentham was philosophically a child of the enlightenment. Bentham presented his

theory of utilitarianism in his book, An Introduction to the Principles of Morals  and
Legislation7, published in 1789. This book was essentially written as a prelude to a penal
code that he intended to draw up. Thus, it must be kept in mind that Bentham’s
philosophy was accompanied by his active role as a reformer.
Bentham was philosophically opposed to Edmund burke, and also rejected contract
conceptions and the Lockean legacy8. Bentham’s rejection of contract conceptions, natural
rights and natural law is not unlike that of Hume. According to both, all such theories are
4
Bentham wrote extensively in both English and French. Some of his most notable works were, A comment on
the commentaries, A fragment on Government, The rationale of punishment, Traites de legislation, Theories
des peines et des recompenses, and many others.
5
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Oxford : Clarendon Press,
Ed.,J.H. Burns and H.L.A. Hart,1996), p.,xxxi.
6
Ibid.
7
Supra note 5.

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fictions and lies, serve no real purpose, rather serve only to becloud the actual issues which
confront mankind9.

The ‘Greatest Happiness’ Principle

The very basic tenet of utilitarianism is not of Benthamite origin. Utilitarian
arguments, concerned with consequences and aiming at happiness were widespread in
Eighteenth century theology, political economy, and political debate, as well as in moral and
political philosophy10. In A Fragment on Government11, he dec1ares as a fundamental axiom
that, “it is the greatest happiness of the greatest number that is the measure of right and
wrong”. This principle, which came to be called the ‘greatest happiness’ principle, was
borrowed from Beccaria, though “similar formulations appeared earlier in Hutcheson and
liebniz, and Bentham himself occasionally referred to a close approximation by Priestley” 12.
Bentham also, in A Fragment on Government13, refers to David Hume, and seems to have
been, in this regard, greatly influenced by his theory14. What was different about Bentham
was that he seemed to link utility more directly with with happiness and pleasure and
eventually, this link made him reject the term “the principle of utility” in favour of the
‘greatest happiness principle’15. This identification of pleasure with good and pain with evil,
is also an “ancient notion”16. What Bentham does that makes him so different from all the
others that have used these same principles before him is that he makes “this pleasure and
pain desiderata the center of his moral and political thought.”17
That apart, perhaps Bentham’s principle of utility is best described by the following excerpt
from An Introduction to the Principles of Morals and Legislation :
“Nature has placed mankind under the governance of two sovereign masters, pain and
pleasure. It is for them alone to point out what we ought to do, as well as to determine what
we shall do. On the one hand the standard of right and wrong, on the other the chain of cause
and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we
think : every effort we can make to to throw off our subjection will serve but to demonstrate
and confirm it…. The principle of utility recognizes this subjection, and assumes it for the

8
Supra note 5,p.,xliii. Reference has been made here of Bentham’s essays on economy attacking Edmund
Burke’s Speech on Economical Reforms.
9
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p.,491.
10
See J.B. Schneewind, voluntarism and origins of utilitarianism, cf. An Introduction…, supra note 4, p., li.
11
cf. An Introduction…, supra note 4, p., lii.
12
See R. Shakleton,”the greatest happiness of the greatest number : the history of Bentham’s phrase”, cf An
Introduction…, supra note 4, p., li.
13
Supra note 10. Infact, in the introduction to this book, F. Rosen draws many similarities between Hume’s
concept of utility and the Benthamite version. For instance, he brings the attention of the reader to the fact
that both Bentham and Hume thought of utility in the terms of public utility, and utility for the individual
referred to that part of public utility in which the individual shared.
14
With reference to Hume’s work, he said -”I learnt to see that utility was the test and measure of all virtue…
and that the obligation to minister to the general happiness, was an obligation paramount to and inclusive of
every other.”,cf An Introduction…, supra note 4, p., lii.
15
Supra note 10.
16
For example, Hobbes said that we were the authors of what we called good and eviland we name things
according to our likes and dislikes. Hobbes then concluded that if every one had a private vocabulary for values
and acted on that vocabulary chaos would follow. He suggested the leviathan as a solution. This is where
liberalism differs in that it doesn’t trust one man with absolute power.
17
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p.,492.

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foundation of that system, the object of which is to rear the fabric of felicity by the hands of
reason and of law.”18 He further goes on to define utility in more concrete terms19.
Two main things emerge out of this definition :

•It is a consequentialist view, in that the ends decide whether the means are ‘right’. A man’s
action is a result of the weighing it against whether it tends to increase the net happiness of
the individual or group concerned; and

•Bentham considers this principle of utility (or the greatest happiness principle as he
preferred), axiomatic20.

Also, throughout his writings it emerges very clearly that Bentham believed in the
universality of the principle of utility. Utilitarianism, he seemed to suggest could be applied
in a diversity of cultures, traditions and psychological contexts. Bentham, however,
emphasized more on the use of this principle in making public decisions rather than private
ones. This was perhaps a corollary to the fact that Bentham was basically interested in legal
reforms.

Take for instance Bentham’s belief in codification of law. In this case then, the question
arises: what principles must govern the development of these codes? After all, the central
question of liberalism has been that of the extent of state interference in individual liberty. If
there are no natural rights, and if natural law is itself a superstition, how shall the legislator be
guided? Bentham’s answer is “by a pleasure-pain calculus which makes right and wrong turn
only on the consequences of given acts”21.

In An Introduction .., Bentham deals almost tediously defines the meanings of pleasure and
pain. He more or less comes to the conclusion that in this case, we trust the individual himself
to know it’s meaning. An important point in this regard is that Bentham did not concede to
there being any qualitative distinctions in the pleasures and pains that an individual knows.
Bentham concluded that all morally relevant characteristics of pleasures and pains were
quantitative in nature. His utilitarian morality would not recognize claims that some kinds of
pains were qualitatively superior to others22. There is no difference between the pleasure one
gets out of rolling in the mud and listening to Beethoven other than that of the amount of
pleasure that one’s gets in either act23. The only differences that counted were those that were
measurable.
18
supra note 4, p.,11.
19
He says : “By utility is meant that property in any object, whereby it tends to produce benefit, advantage,
pleasure, good, or happiness or (what amounts to the same thing) to prevent the happening of mischief, pain,
evil, or unhappiness to the party whose interest is considered: If a particular individual then the happiness of
that individual.”, supra note 4, p., 12.
20
He says : “to prove the rectitude of this principle is at once unnecessary and impossible. Has the rectitude of
this principle been ever formally contested? It should seem that it had, by those who have not known what
they have been meaning. Is it susceptible of any direct proof? It should seem not : for that which is used to
prove everything else, cannot be itself proved : a chain of proof must have heir commencement somewhere.
To give such proof is as impossible as it is needless.” ,supra note 4, p., 13.
21
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p.,492.
22
Andrew Altman, Argueing about Law(George Washington University, Canada : Wadsworth publications
company, 2nd ed.,2001)p.,136.
23
See generally Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Oxford :
Clarendon Press, Ed.,J.H. Burns and H.L.A. Hart,1996).

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Bentham assumes like many of the other hedonist moralists that pleasure and pain were
measurable, a given amount of one offsetting a like amount of another, and also that they may
be added, so that a sum of pleasures may be calculated which will define the greatest
happiness both of an individual and a group of individuals. He talks of four dimensions of
pleasure or pain:

•intensity

•duration

•certainty with which it will follow a given kind of action and

remoteness of time at which it will occur.

He believed that one pleasure or pain was likely to cause another. All the above factors must
be kept in mind while deciding the course of action and also the number of people who would
be affected by the said action 24. Thus all that counted was how many individuals had the
experience of pleasure and other quantitative aspects of pleasure.

What implications does the Benthamite principle of utility have for a legislator? 
He would have to do constant and meticulous surveys attempting to discover the exact
effect of the proposed or existing legislation on the pleasures and pains of individuals. If it
can be shown, for example, that the incidence of a given law is to enhance pain, then the law
must be repealed, regardless of its antiquity and its alleged conformity with the principles of
natural law or the national interest25.

The problems with that

Harold Laski commented that Bentham was a Philosopher living in retirement from
the world and that “It was easy for him to lay down a universal code of conduct so long as he
drew his assumptions from observation of the handful of eager rationalists who regarded him
as their master”26. Beyond all doubt we must thus realize that Bentham’s utilitarianism faced,
like any radical philosophy, immense criticism, some defended and many unanswered. The
researcher would now explore these criticisms.

Bentham assumes that he is dealing with discrete individuals each of whom can discover his
best interests in the light of pleasure-pain consequences principle. But how are these discrete
individuals held together in society? And what is the role of the legislator? It is not so easy to
see how self interested separate individuals can be transmuted into aggregates of men and
women setting up as their goal the “greatest happiness of the greatest number.” A two-fold
problem with utilitarianism is that any assessment of the consequences depends on
24
Ibid.,p.,
25
Such an experiment was in fact conducted by Benthamites. They noted for instance that over 200 crimes
were punishable by death and decided to examine whether death penalty actually served to deter crime (as
was alleged by those who appealed to antiquity, precedent, natural law or common sense). At public
executions for pick pocketing, the Benthamites discovered an extraordinarily high incidence of pocket picking
which led them to infer that public execution had little effect in preventing the crime for which the offender
was being killed. If such execution, then did not prevent crime, then it must be strongly criticized. It was a
result of many such studies that the numbers of crimes punishable by death were reduced. See generally
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)pp 492-93.
26
Harold J Laski, A Grammar of Politics (London : George, Allen and Unwin, 5th reprint, 1978), p.,15.

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aggregating pleasure or happiness or well being across the population of a given

society. The first problem is that, as many a scathing critic of utilitarianism has pointed out,
only an omniscient being would be able to assess all the varying effects of the action on the
wide variety of people. For such an assessment to occur it becomes necessary that there be no
place in utilitarianism for people’s idiosyncratic perspectives, histories, attachments, loyalties
or personal commitments. The other more important problem is to do with what are
called interpersonal comparisons of utility – the fact that assessment of consequences
frequently depends on making judgments about one person as compared with another person,
especially when we have no reliable information with which to do so27.
A critic will ask, also, why only a quantitative distinction was followed while working with
the “happiness” calculus. Can there be no qualitative differences between the various
pleasures of the sense? Bentham has been accused of spurning such differences purely for
their lack of objectivity28. Perhaps an illustration will clarify the point. Bentham worked
extensively on legal reform and especially with regard to punishments. In this area lies one of
the major criticisms of utilitarianism which has been replied and counter questioned.

Suppose a community has been terrorized by a criminal who has committed numerous
murders whom the police are unable to find. Utilitarianism may in such a case act as
justification for the police to frame an innocent man. The man may suffer, but the community
breathes a sigh of relief and are no longer plagued by any anxiety for their lives. The actual
perpetrator may stop killing out of fear of being caught now. Where an innocent man is
convicted out of belief that he is guilty is a different matter. Here on the other hand,
utilitarianism supports, or rather justifies, blatant injustice. The critics of utilitarianism argue
that such an example proves that the theory is defective.  The utilitarians respond by saying
that the society would then live in the fear of being framed and thus the greatest good of the
greatest number is not served. The critics then reply that if the fact that an innocent had been
framed were to be kept silent then the utilitarian principle would justify it. The point, the
critics tell us is that, however rare the chance, it so happens that in situations like this,
utilitarianism becomes committed to approving punishments to the innocent. This would be
morally unacceptable29. Here, the flaw in utilitarianism is that it focuses exclusively on the
quantitative dimensions of pain. The pain of a convicted innocent is different from that of a
convicted guilty and the two cannot be equated. You cannot simply in this case and many
others add up pains and pleasures without taking into account the qualitative differences in
the pains and the pleasures themselves.

Moreover, it puts the society above the individual and sees the individual as only the means
of maximizing the good of the society. This is why utilitarianism can accept the punishment
of the innocent, because each individual, for utilitarianism is the same as the other. According
to some critics of utilitarianism, it thus ignores the dignity of the individual 30. “It treats people
as if they were cells of a single organism; The welfare of the cell is important only so far as it
promotes the welfare of the organism” 31. This concern for the individual also expands to a
concern for the minorities. Tocqueville, for one has expressed a fear that Benthamite
27
“Consequentialism, readings from Richard Posner”, Jefferson White and Dennis Patterson, Introduction to
the Philosophy of Law(oxford : Oxford University Press, 1999),pp 94-95.
28
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)pg., 493.
29
Andrew Altman, Arguing about Law(George Washington University, Canada : Wadsworth publications
company, 2nd ed.,2001)p.,138.
30
Ibid.,p.,139.

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utilitarianism might justify majority authoritarianism 32. If the utility to the majority
outweighed the disutility to the minority, then utilitarianism would condone the sacrificingo
minority interests.

The alleged empiricism of utilitarianism was based on unexamined presumptions. The

greatest happiness principle in ethics might have been adopted, as it often had in the past
without the hedonist psychology which was supposed to support it and the reforms advocated
in the name of the greatest happiness principle was supported by a large number of premises
unrelated to the system33. We must take note of the fact that Bentham criticized the Lockean
theory by implying that it did not  meet the requirements of the empiricist tradition insofar as
it supported axiomatic assumptions, namely that of natural rights. However he bases his own
theory on a principle of utility which he says needs no proof and is proof in itself. He thus
himself makes an axiomatic assumption.

Richard Posner, in the second edition of the Economic Analysis of Law, criticizes Bentham’s
utilitarianism by saying “Bentham’s major weaknesses as a thinker were the sponginess of
the utility principle as a guide to policy, his lack of interest in positive or empirical analysis,
and his excessive, if characteristically modern, belief in the plasticity of human nature and
social institutions.”34 Essentially, Posner’s objection to utilitarianism was that while it
emphasized happiness and its maximization the basis of just legal policy making, it offered
no reliable method of determining whose happiness should be deemed to count for the
purpose of designing policy, or how the impact of changes in policy is to be measured in
terms of its effects on levels of satisfaction. Posner also points out that utilitarianism justifies
immoral action. He gives another example in this regard: If I spend my leisure time pulling
wings off flies, while you spend yours feeding pigeons, and I derive greater pleasure from my
pastime than you do from yours, then, in utilitarian terms, I must be judged to engage in the
activity which adds more to the sum total of human happiness. Within the utilitarian
framework, the formulation of legal policy and the content of legal rights are, like human
activities generally, to be judged not in terms of their morality, but according to whether or
not they lead to an increase in overall happiness 35. Perhaps this is the reason why
utilitarianism has been called a “hedonistic unsocial ethic.”36

Utilitarianism has been attributed universality of application. “In the megalomaniacal phrases
of its founder and early advocates, of course, utilitarianism was touted as a universal panacea
– for ethical problems, large and small, simple and complex, personal and impersonal, public
and private, individual and collective.”37 Like any theory with “pretensions of universality”
utilitarianism has left itself open to all manners of criticism. A single counter example would
31
Quotation ascribed to Richard Posner, cf. “Consequentialism, readings from Richard Posner”, Jefferson White
and Dennis Patterson, Introduction to the Philosophy of Law(oxford : Oxford University Press, 1999),pp 94-95.
32
On Utilitarianism.
33
George H Sabine, A history of political thought,
34
Richard A Posner, The economics of Justice(Cambridge, Massachusetts : Harvard University press,1981)p., 42,
cf. Neil Duxbury, Patterns of American Jurisprudence(Oxford : Clarendon press, 1st reprint, 1997)p., 398.
35
Neil Duxbury, Patterns of American Jurisprudence(Oxford : Clarendon press, 1st reprint, 1997)p., 399.
36
Richard Posner, cf. “Consequentialism, readings from Richard Posner”, Jefferson White and Dennis
Patterson, Introduction to the Philosophy of Law(oxford : Oxford University Press, 1999),p., 117.
37(a) At this point the researcher would like to point out that the criticism was proffered by Richard Posner
who advocated wealth maximization rather than utility maximization. His theory also had very little moral
underpinnings and he was also called utilitarian. He however differentiates his theory from utilitarianism and.
It would seem the pot here calls the kettle black. However, the criticism in itself would seem to be a valid one.

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defeat the whole theory and utilitarians have been positively ingenuous, or so it has been said,
in conjuring up situations where the utility maximizing action would lead to unappealing
results. However, at this point the researcher would like to point out that the situations that
the critics have posed are contrived rather than real, in that the possibility of them happening
is little38.

Utilitarianism, thanks to the aforesaid universal pretensions, also faces another more serious
criticism. Its universality means it is applicable even to personal conduct. Imagine the
implications of that – “no one wants to live their lives like Gradgrind, the Dickensian parody
of a utilitarian. Furthermore no one can; the calculative load imposed by utilitarian
maximization would absorb all ones time and attention, leaving none for acting on the
conclusions of the calculations.”39 There has to be scope in our personal lives for uncalculated
actions, like affection. Imagine assessing the consequences of every single action of our lives.
Such an application of the utility principle is impracticable. Yet, if one said that utilitarian
maximization was only applicable to public actions, the universality of it that is so inherent in
Benthamite Utilitarianism is refuted.

Early utilitarianism of the Benthamite variety seems full of such doubts and questions. “As a
body of ideas moving men to eliminate outworn statutes and conventions, it may have been
quite effective, but as a moral ad political philosophy, it is very sketchy, ambiguous, and
generally inadequate.”40 Sabine has added that the theoretical part of the philosophy was
designed to make the principle of utility more accurately applicable to practical problems. We
must take Sabine’s words with a pinch of salt, for he appears to be overly moralistic in his
views. nevertheless, we must take note of them. He caustically remarks that there seemed to
be, in Benthamite utilitarianism, no real philosophical originality, merely an appearance of a
system: “the formal and deductive manner of presentation which they (the philosophical
radicals) affected gave an appearance of system, which on closer analysis turned out to be
deceptive”41.

Thus when John Stuart Mill inherited utilitarianism, he inherited with it the many challenges
of its critics. He then made modifications and adjustments in the theory, which transformed it
to a very large extent. This is the next major strand of utilitarianism that we explore here.

John Stuart Mill (1806 -1873)

As we have seen, early utilitarianism came into considerable criticism from non
utilitarians. However, within the utilitarian framework itself there arose criticisms of some of
it’s norms. These took, in many cases, the form of constructive criticism and out of such
criticisms arose new, improved forms of utilitarianism. The most important of these
37
In the endnote to this sentence the author caustically remarks : “Bentham and the elder Mill were bad
enough, but worse still in this respect were the lesser lights of this circle, so ably satirized by Dickens in Hard
Times“; Robert E Goodin, “Utilitarianism as a public philosophy”, Andrew Vincent, Political Theory, Tradition
and diversity(Cambridge : Cambridge University Press, 1997.
38
These situations have been called “patently crazy counter examples” by the author. Robert E Goodin,
“Utilitarianism as a public philosophy”, Andrew Vincent, Political Theory, Tradition and diversity(Cambridge :
Cambridge University Press, 1997.
39
Robert E Goodin, “Utilitarianism as a public philosophy”, Andrew Vincent, Political Theory, Tradition and
diversity(Cambridge : Cambridge University Press, 1997.
40
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p., 493.
41
George H Sabine, A history of political thought

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utilitarians is John Stuart Mill. Mill was brought up on utilitarianism as interpreted by his
father, James Mill, who was a disciple of Bentham. Although Mill to the end of his life
claimed to remain a utilitarian, the meaning of the word in his hands underwent drastic
modifications.”To be sure, he emerges still making the maximization of pleasure and the
minimization of pain the ultimate end, but in the process he discards one Benthamite
proposition after another42.

Mill was greatly influenced by a wide variety of thought and one among these was
Tocqueville. His criticism of utilitarianism as being potentially detrimental to the rights of the
minorities seemed to have impressed itself on Mill. Toquecille’s phrase for that was “the
tyranny of the majority”43. He defends utilitarianism from this criticism and also modifies it
on this count. He considers that in Europe they would be mitigated by the existence of a
‘leisure class’. In order to protect society from the harm that a unanimous but ignorant public
opinion would cause, there was need for ‘an agricultural class, a leisure class and a learned
class’.

In 1838, Mill wrote an essay on Bentham in which he criticized him for his inadequate
conception of human nature and, in particular, for his failure to recognize other springs of
action other than self interest and a limited sympathy. According to John Stuart Mill, due to
the above flaw, Bentham’s theory is “ingenuous rather than profound44.

In a classic departure from Bentham, Mill stresses on what he calls cultural relativity.

Accordingly, institutions which might, by utilitarian principles, be justified at one cultural
level might be rejected by another. One must consider historical factors which shape a culture
and limit the degree to which one can apply utilitarian liberal principles. Thus, where
Bentham appears to think in terms of abstractions, Mill stresses that general principles can
often be applied only to a limited degree in face of inertial resistance of human beings
conditioned by their histories to think in other ways or limited in their possibilities by
economic and social factors45.

In chapter 4 of his essay On Utilitarianism Mill tries to diminish another criticism of

Benthamite utilitarianism – He offers proof for “the greatest happiness” principle. He does so
in three stages: first he shows that happiness or pleasure is the ultimate end. He says whether
something is desirable is settled by ascertaining whether it is desired. Happiness is desired
and is therefore desirable and an end of action Secondly, that the general happiness is the
ultimate end. This is proved by the logic that “each person’s happiness is a good to that
person and the general happiness, therefore, is a good to the aggregate of persons. Thirdly,
that nothing else besides happiness or pleasure is in reality ultimately desirable. This he does
by showing how “virtue, which might be regarded as the most serious candidate besides
happiness for being considered ultimately desirable, is now sought for its own sake but was
originally sought as a means to happiness.”46

42
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p., 494.
43
Utilitarianism……
44
Ditto. Introduction to on utilitarianism, xiii.
45
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p., 494.
46
Introduction to “on utilitarianism”p.,xviii.

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Again he attacks the notion that all pleasures and pains are only quantitatively defined
and that they are qualitatively at the same level. For Bentham, the Iliad and pushpin were
causes of pleasure and are good or bad as they produce more or less of it in the individuals
concerned. With Bentham, it is quite possible therefore, that a pushpin give more pleasure
than the Iliad. It was simply a matter of the Iliad causing x units of pleasure and the push pin
causing x+y units of pleasure. With Mill however, it is not so simple. Here, one may
distinguish between not only the quantity of pleasure each produce, but also the type of
pleasure they each result. Thus, Iliad pleasures are different from Pushpin pleasures. When
the question of ranking them is raised, he says that we must consult men who have
experienced the whole range of pleasures, be they sensual, intellectual or spiritual. He asserts
the superiority that one will find of spiritual and intellectual pleasures over merely sensual
ones. Thus Mill defeats one of the greatest and most effective criticism of early utilitarianism
by incorporating it into his theory. Obviously this has far reaching implications.  For one
thing, he comes to the conclusion that those capable of enjoying the higher pleasures are
more valuable than those who presumably are not possessed of such capacity47.

He also questions Bentham’s assertion that we can and ought to pursue happiness directly.
While in the long run, the ultimate aim might be happiness, in the short run one has to
sometimes make choices that “may produce the reverse of happiness.” 48 Mill make another
interesting modification. We have already seen how it would be impracticable to resort to
what in economics is called “cost – benefit analysis” for every single action in our daily lives.
He solves our problem by drawing our attention to what he calls “secondary principles”
which are corollaries to the principle of utility. These are principles which have come to be
establish because they tend maximize utility. “In moral action, according to Mill, It is to these
principles that individuals refer in their decisions 49“. This idea that utility governs all, but that
it is secured through obedience to subordinate rules goes as far back as Paley, who pointed
out that if recourse is made directly to the principle, theft or even assassination could be
justified on the ground that it would add to the sum total of all happiness. This aspect of
Mill’s philosophy is today called rule utilitarianism.

The problems with that

It seems the utilitarians can do no right – where Bentham was criticized for ignoring
qualitative distinctions between various pleasures and various pains Mill has been criticized
for trying to rank and differentiate between pleasures and pains quantitatively as well as
qualitatively. In his book An Examination of the Utilitarian Philosophy, John Grote wrote “A
consistent utilitarianism can scarcely hold the difference of quality of pleasure in any sense:
for if they differ otherwise than in what, speaking largely, may be called quantity, they are
not mutually comparable and in determining as to the preferability of one pleasure to another,
we must then be guided by some considerations not contained in the idea of experience of
pleasure itself.” 50Adding to Grote’s objection, Henry Sidgwick added that “If the pleasures
are not compared in respect of mere pleasantness, we have intuitivism in the place of

47
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p., 494.
48
Mulford Q Sibley, political ideas and ideologies-a history of political thought,(Delhi : Surjeet publications, first
Indian reprint, 1981)p., 494.
49
John Stuart Mill, “On Utilitarianism”
50
Introduction to “on utilitarianism”p.,xiv.

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hedonism.”51 We have observed too how Mill deals with the question of how this qualitative
difference between various pleasures. In this matter, Mill distinguishes between those who
have known only the lower pleasures and those who have known both, asking us to trust the
judgment of the latter. It is here that Mill tends to lose objectivity. What happens if the
various connoisseurs disagree?
It has been pointed out by one critic of utilitarianism that The main defect in Mill’s view is
his “uncritical use of the word pleasure and an inherited assumption about the category of of
being that pleasure belongs to”52. When Mills talks about qualitative  differences in pleasures,
he also implies that some pleasures are necessarily superior to others. Alluding to an example
given earlier, Mill insists that Iliad pleasures are necessarily better or superior to pushpin
pleasures. There seems to be in this trail of thought a seed of intuitivism (which utilitarians
scorn) embedded. In fact Henry Sidgwick observes that in Mills theory “intuitivism is
combined with a relic of empiricism which he was not conscious of having endangered”53.

Mill’s theory is beset by the same problem as with bentham’s regarding the aggregating of
various pleasures and pains across the population. But apart from that another objection has
been raised. Mill stresses that each person’s ultimate end is his happiness, and such happiness
is good for him. Similarly, the sum of all goods of each must also so be good. In a letter
written in 1868, mill stressed that he did not, by this mean to conclude that each individual
regards the happiness of every other individual as good. Mr. Sidgwick posed a question in tis
regard – “For an aggregate of actual desires, each directed towards a different part of the
general happiness, does not constitute an actual desire for the general happiness, existing in
any individual . . . . there being therefore no actual desire – so far as this reasoning goes – for
the general happiness, the proposition that the general happiness is desirable cannot in this
way be established.”54 Essentially, this means that the journey from individual’s happiness to
general happiness does not happen this way.

John Rawl’s criticism of utilitarianism

John Rawls, professor of philosophy at Harvard, published a paper in the
Philosophical Review in 1958 called ‘Justice as Fairness’, followed up by various other
papers, and in 1971 a book, A Theory of Justice. Rawls disagrees with the Utilitarians over
their way of spelling out the idea of the happiness of mankind generally. The difficulty,
according to Rawls, is that often it will be both to the advantage of some people and to the
disadvantage of others. The effect on the happiness of mankind generally has to be assessed
by somehow balancing off the bad effects on some people against the good effects on others.
There is no way of avoiding this. Some of the practical questions we have to decide do
involve choice between possible courses of action all of which have good effects on some
people and bad effects on others55.

51
Introduction to “on utilitarianism”p.,xiv. See also his intellectual autobiography in the preface to Methods of
Ethics, p. xv: ‘I was forced to recognize the need of a fundamental ethical intuition… The opposition between
Utilitarianism and Intuitivism was due to a misunderstanding… I could find no real opposition between
Intuitivism and Utilitarianism’. Henry Sidgwick was the next generation of utilitarians after John Stuart Mill. His
contention is that Utilitarianism is thus a species of intuitivism, the distinctive characteristic of which is to find
only one principle self-evident, namely the Utility Principle. Cf., the website.
52
Introduction to “on utilitarianism”p.,xiv.
53
Cf.,Introduction to “on utilitarianism”p.,xvi.
54
Cf.,Introduction to “on utilitarianism”p.,xix.
55
R J Kikullen Macquarie “Rawls : the original position” University,modern Political Theory

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John Rawls has developed a competing moral theory called Justice as Fairness, which yields
significantly different insights into the proper structure of society than does Utilitarianism56.

Rawl’s first objection to Utilitarianism is that it puts no restrictions upon the subordination of
some people’s interests to those of others, except that the net outcome should be good. This
would allow, any degree of subordination, provided the benefit to those advantaged was great
enough. Rawls thinks that a theory of justice cannot let disadvantages to some be justified by
advantages to others57. Utilitarianism does not take into account how benefits and burdens are
distributed in a society. Rawls writes that it is rational for a moral theory that describes an
entire society to seek to maximize some measurable quantity, whether it be happiness,
satisfaction, or some other calculable value. Because Utilitarianism seeks to maximize the
sum of utility over an entire society, it commits itself to prefer whichever distribution
achieves maximum utility. Of course, it is possible that the distribution that maximizes utility
in a given society may do so by distributing benefits and burdens in a way that seems to
violate common notions of justice. For example, it may be the case that utility is maximal in a
society which practices slavery. Utilitarianism would nonetheless deem that arrangement
better than any other because it maximizes the good: namely, utility.

Rawls concludes that any theory that accepts an unjust distribution of benefits and burdens
must be flawed. Specifically, Rawls writes that a society cannot view itself as some kind of
56
Let us imagine we are talking about a household. On a particular occasion the interest of a minority may be
subordinated to that of a majority – they will watch the TV program most them want. But if the same people
are outvoted every time their household will split up, or they will not decide each time separately by voting,
but adopt some rule about taking turns. Imagine a group of people on equal terms, who don’t decide each
case separately, but decide on general rules which will then determine cases that arise. The rules can’t be
changed all the time – then they would be deciding the next case in the disguise of deciding on a rule. The
rules are supposed to be permanent, and the same rules apply to all members of the group alike And if the
members are on equal terms, and there is no permanent coalition, no dominant faction, then no member of
the group can slant or tailor the rules in their own favour. In a situation like that, Rawls says, the rules that
would get accepted would be fair. On a particular occasion the rules would require some to give way to others
(e.g. if it is someone’s turn), but there would be no overall subordination of the interests of some to the
interests of others. This is justice as fairness – the rules of justice are the rules which will get accepted in a
group of people living together on equal terms, if they understand (a) that the rules are to apply for the
indefinite future, (b) to every member of the group alike, and (c) if none of the members of the group can see
any way of tailoring the rules to their own advantage (there is no dominant faction, etc). Rawls doesn’t
suppose that the members of this group are in any degree concerned for the happiness of mankind, or for one
another’s happiness. hey have their own purposes (selfish or not), and that each is trying to do the best for his
or her purposes without being concerned for the purposes of others. In proposing rules each of them is trying
to secure his or her own interests; but given the circumstances we have supposed, there is no way any of them
can on the whole subordinate others’ interests to their own, so they have to settle for fairness – that is the
best any of them can do. Of course this is with the basic assumption of equality. We need to understand Rawl’s
theory of the “original position”. n later versions (‘The Justification of Civil Disobedience’, and A Theory of
Justice), Rawls says that the rules of justice are chosen in an Original Position, behind a ‘veil of ignorance’ that
conceals from the parties facts about themselves (sex, age, physical strength etc) that might be envisaged in
attempts to tailor the rules to give some a systematic advantage. E.g. if behind the veil of ignorance we do not
know our sex, then we will be wary of a proposed rule that staying back at home to take care of the child is
women’s work. Of course in real life we are not ignorant of these things: the point is that in reasoning about
justice we must disregard some of what we know, put it out of our minds, pretend to ourselves that we don’t
know it. “To ask what rules would people behind the veil of ignorance adopt is a way of asking what rules can
be justified without reference to bargaining strengths and weaknesses”. Rawls theory has been thought to
constitute 3 principles i The difference principle, the original position and the priority of liberty. Example cited
from, R J Kikullen Macquarie “Rawls : the original position” University,modern Political Theory.
57
R J Kikullen Macquarie “Rawls : the original position” University,modern Political Theory

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super-person, able to shift benefits and burdens as it wishes in order to reach some greater
good. While individual persons can choose to distribute their personal benefits and burdens at
will, this principle does not transfer to the collection of persons we call a society. Restated,
Rawls holds that the principle of utility may be rational when applied to a single person, but it
cannot logically be extended to treat an entire society as a larger version of a single person. If
we hold that there exist truths of morality, and that we know some of those truths, notions of
justice seem to be well-established independent of Utilitarianism. The Utilitarian inability to
adequately explain our commitments to justice seems to be ripe for attack.

Utilitarianism does not take seriously the distinction between persons. This point is certainly
related to Rawls’s first objection, but the argument is developed differently. Rawls writes that
the decision-making heuristic for Utilitarianism conflates the many diverse desire systems
present in a society and imposes a single desire system by which to measure utility. The
determination of maximal utility is made from the perspective of a single impartial spectator,
or “perfect legislator,” who represents all the people in the society. In this way, a single
system of desires and a single conception of the good operate to determine the correct
allocation of benefits and burdens. Rawls asserts that Utilitarianism’s use of an impartial
spectator with these characteristics conflicts with common notions of justice. He holds that a
theory of social choice cannot be gotten through what he calls “rational prudence” combined
with the desires of the impartial spectator.

By use of the “perfect legislator,” it seems as though a Utilitarian society must be biased on
the side of some desire system. As a system by which benefits and burdens are allocated,
Utilitarianism seems bound to take factors such as religion, sex, and class into account when
making utility calculations. An inherent bias toward one desire system must exclude or at
least give short shrift to some individuals on the basis of these morally irrelevant distinctions.
Thus, distribution according to utility seems implausible and unfair. Additionally, Rawls can
draw support on this point from the work of Kant. It seems as though Utilitarianism’s
ignorance of the distinctions between individuals may have the result of treating people as
means rather than as ends.

Utilitarianism does not take into account the nature of the desires being satisfied. This final
criticism of Utilitarianism seems especially strong. Since utility can be defined as the the
satisfaction of desire, the best arrangement of society is that in which desire satisfaction is
maximized. Ignoring concerns about how desires are to be quantified (for example, do very
intense pleasures get heavier weighting?), there is a more striking qualitative problem with
this view. Simply put, some people have evil desires which justice requires not be satisfied.
Under Utilitarianism the desires of, say, sadists are lumped in with the desires of everyone
else when an overall determination of utility is made. By espousing a system in which the
satisfaction of all desires are maximized, Utilitarianism violates our precepts of justice. If it is
argued that Utilitarianism can be refined to weight only those desires deemed acceptable to
precepts of justice, the view is considerably weakened. Nitpicking over the value of
individual desires mires Utilitarianism in the minutiae of assigning moral worth to every
desire. Such a refinement of the view would really just be a concession to justice: an
admission that the moral universe described by Utilitarianism is subject to the confines of
justice.

Utilitarianism is a teleological theory, defining the right as that which maximizes the good,
and defining the good as the satisfaction of desire, or utility. Rawls’s view, Justice as
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Fairness, is a deontological theory in which the right is prior to the good. In other words, a
thing can not be good if it is not first right. This basic difference of opinion with
utilitarianism is thus a consequence both of how that theory identifies the good and with how
it maximizes that which is deemed good. Rawls holds that if we reject Utilitarianism and
work to develop a deeper understanding of what is right, such problems will evaporate.

Utilitarianism in the Public sphere58

The interesting point is that where as a code for private conduct, utilitarianism has
many failings, as a code for public conduct, there seems little criticism for it. The
impersonality of utilitarianism that makes it so abhorrent for everyday conduct becomes a
truly valuable tool for the public administrator. Absolute nuetrality might be a impossible
ideal, but at least then we would strive for it.

Again, utilitarianism has been considered to be coldly calculating and consequentialist. The
effects of the action is everything. Nothing is intrinsically good or bad. In the words of
Robert E Goodin, “those who harbour a ten commandment view of the nature of morality, see
a moral code as being essentially a list of things that are right or wrong in and of
themselves.”59Whatever the implications on private conduct, Many would agree that for a
public officer to “mindlessly adhere to precepts read off some sacred list, literally, whatever
the consequences.”60

The major problem with utilitarianism is that of incessant calculations of utility with
insufficient and inaccurate information. Often the only way to maximize utility from the act
in question is by knowing or guessing what others are likely to do. Rule utilitarianism has
been touted as an answer to that. Once one does the initial calculations, one must promulgate
certain rules which are supported by utilitarian tenets and which will render some sort of
predictability to our actions. If the rules themselves are promulgated with utility maximizing
goals then there appears no need for every day calculations. This is where all policy making
comes into the picture.

Utilitarianism and Affirmative action

Yet, in the public sphere itself lies one of the greatest shortcomings of utilitarianism
Affirmative action would be a good illustration of Rawl’s difference principle in action. It is
the principle that an inequality is unjust except insofar as it is a necessary means to improving
the position of the worst-off members of society61. Two points are noteworthy:

• Rawls does not think that justice requires equality – there may be just inequalities, justified
as incentives. This is one of the traditional justifications of social inequalities of the sort we
are familiar with in modern commercial societies.

• An inequality is unjust except insofar as it is a necessary means to improving the position

of the worst off.

58
The ideas for this section are gained from the reading of the following article : Robert E Goodin,
“Utilitarianism as a public philosophy”, Andrew Vincent, Political Theory, Tradition and diversity(Cambridge :
Cambridge University Press, 1997),pp.67-84.
59
Robert E Goodin, “Utilitarianism as a public philosophy”, Andrew Vincent, Political Theory, Tradition and
diversity(Cambridge : Cambridge University Press, 1997),p., 72.
60
Id.
61
R J Kikullen Macquarie “Rawls : the original position” University,modern Political Theory

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Utilitarianism, however, advocates the promotion of the greatest good of the greatest number.

Reservation is one form of affirmative action. Let us consider an aspect of reservation which
is closest to home – reservation in universities, both in seats available as well as teaching
positions. These reservations are, in theory at least, for the socially backward who have not
equal opportunity otherwise due to their social position. Rawls would wholeheartedly
approve of such reservations on the basis of his difference principle. What would the position
of the utilitarian be? Keeping in mind the many various forms of utilitarianism in mind, one
possibility is that the utilitarians would say that people of greater merit than the ones to whom
the seats are accorded are missing out and this is a net subtraction from general happiness and
therefore such a reservation should be removed. Further, if the class for whom the
reservations are made are a minority, as they so often are, then the majority happiness would
not be achieved by such reservations. The point is that such a principle may easily be justified
on utilitarian grounds. It is the researchers humble contention that despite all of Mills
arguments on the contrary, utilitarianism tends to drown the voice of the minority. Apart from
the various arguments in India as to the continuation of this policy of reservation, there
seemed no doubt in the minds behind the drafting of the Indian Constitution that such policy
was required at that point of time, at least. In such cases, utilitarianism fails to do “justice”
simply because to do justice is not it’s aim!

For purely information’s sake, the researcher would like to point out that utilitarianism would
never justify progressive taxation that we think is so important for equitable distribution of
wealth.

The researcher would simply like to make one point : The Utilitarians were concerned about
total or average welfare. Their distribution principles, which might well be designed to
protect the worse off, were in fact justified as contributing to the total welfare – not
specifically to the welfare of the worst off. “The Utilitarian may argue that there should be
certain basic rights guaranteeing a sort of floor below which no one will fall, because such a
guarantee reduces anxiety and conflict and thereby frees people for productive and
constructive activity – but will not try to regulate the distribution of what this activity
produces except to protect the basic rights.” The Utilitarian argument is that mankind
generally are better off if these basic rights are guaranteed, not specifically that the worst off
will be better off. And the Utilitarian would see no reason to restrict advantages to the better
off except to protect basic rights. Provided there is a suitable floor, there is no Utilitarian
objection to inequality.

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