The Differences between Natural Rights Liberalism and Utilitarianism and their

Influence on the Concept and Execution of Justice

Doğal Hakları Liberalizmi ve Faydacılık arasında Farklar ve onların Adalet Kavramına
ve Uygulamasına Etkileri
Jan Gwidon Byczkowski1

Two main schools of thought in liberalism, namely, natural rights liberalism and utilitarianism have
both exercised an enormous impact on modern politics and all spheres of governmental activity. While
both are labelled collectively as liberal, the difference between the two are significant and impact the
way the laws and policies are contrived, implemented, and reviewed.
In this paper we will attempt to analyse the differences between the two and their theoretical and
historical implications, focusing especially on the understanding of justice implicit in them. Moreover,
we will ask whether, as it is often suggested in defence of the utilitarian approach, natural rights
liberalism is not applicable and fitting the realities of the modern state. This is a crucial question for
many modern states are caught between the needs for personal and collective liberties and the call for
(especially economic) efficiency.
The methods applied throughout the paper include the analysis of most prominent works regarding both
liberal schools (including Locke, Rothbard, Hume, Bentham, Mill sr., Mill jr., and Sidgwick) as well as
comparative analysis of examples of utilitarian and natural rights-oriented laws, policies, and practices
from various countries. However, the aim of the paper is rather to raise questions regarding the
theoretical implications of both stances rather than more in-depth research of them.
The main finding of the paper is that while it is hard to achieve, natural rights may serve as the key
limitation for governments in legislation and executive. In order to achieve this in practice, it is crucial
to think of them as the Platonic ideas, the point of orientation in situations where none of the solutions
provides the total protection of individual and/or collective rights. Moreover, abandoning the devotion
for natural rights and fully endorsıng utilitarianism is likely to lead to the erasure of any checks and
balances the governments are currently limited by, as it was often seen throughout the modern history.

Keywords: liberalism, utilitarianism, natural rights, philosophy of justice

Anahtar Kelimeleri: faydacılık, doğal haklar, liberalizm, adalet felsefesi

Two main schools of thought in liberalism, namely, natural rights liberalism and
utilitarianism have both exercised an enormous impact on modern politics and all spheres of
governmental activity. While both are labelled collectively as liberal, the difference between
the two are significant and impact the way the laws and policies are contrived, implemented,
and reviewed. In this paper we will attempt to analyse the differences between the two and their
theoretical and historical implications, focusing especially on the understanding of justice
implicit in them. Moreover, we will ask whether, as it is often suggested in defence of the
utilitarian approach, natural rights liberalism is not applicable and fitting the realities of the
modern state. This is a crucial question for many modern states are caught between the needs
for personal and collective liberties and the call for (especially economic) efficiency.

1
PhD candidate at Middle East Research Institute, Marmara University, Turkey. E-mail address:
jan.byczkowski90@gmail.com
I. NATURAL RIGHTS LIBERALISM
The roots of natural rights liberalism lie in the natural law school. Its roots are hard to
trace. Some authors suggest that Aristotle included in his thought this concept. However, even
they, for example Tony Burns, admit that even if it was so, natural law was for this great
philosopher merely a side issue rather than a main object of focus2. Moreover, he understands
the ‘natural justice’ as deeds of man rather than liberties we are all accustomed to perceiving as
the core of natural right theories or even natural laws associated with Aquinas3. The first
glimpse of emphasis on liberties we can find in stoics who resented any form of master-slave
relationship, although associating all bounds such as feelings with a spiritual slavery4.
Additionally, stoics proposed a first version of partially ‘secularised’ natural law, in which it is
not established by a superior being for their pantheistic beliefs assumed that God is in
everything, hence, not a superior one5. Finally, Cicero was also interested in the matter of
natural law. However, his orientation was rather towards the preservation of order, and,
accordingly, state, rather than struggle for liberties6. It fits his assumption that bad state is better
than no state, a belief still widely accepted after more than 2000 years7.
The advent of Christianity brought the issue to the attention of theologians. St.
Augustine claimed that all men are born free. However, he accepted the then-common
limitation to this basic freedom of life – slavery – assuming that it is a punishment for sins and
slaves should await the salvation rather than actively seek their freedom8. Nevertheless, it was
not St. Augustine who is credited with the first consistent theory of natural law but rather the
other great philosopher-theologian – St. Thomas Aquinas. In Summa Theologica he deliberates
on four major categories of law – eternal, natural, human, and divine and categorically rejects
legal positivism by stating that human law cannot conflict with the natural one9. Still, his list of
natural laws is far from the one we are used to in modern political thought. The first one is
‘good is to be done and pursued, and evil is to be avoided.’, while the others are: preservation
of one’s being, procreation, education of offspring, inclination to good, inclination to know the
truth about God, inclination to live in society, inclination to shun ignorance, and to avoid
offending others10 Liberty is not part of this list because Aquinas is focused on natural laws
rather than rights. While freedom is one of the objects of interest for him, he recognises the
distinction between a person and individual. In his thought, individual can be suppressed for
the sake of the person within and its salvation or for the greater good11. Regarding property, it
is not a right but a means to answer one’s and community’s needs12.

The next step in evolution from natural law towards natural rights are the works of
Francisco Suarez. Even though he is accused of distortion of Aquinas thought in the matter, it
is acknowledged that he was forced to do so by important debate of his time between

2
Tony Burns. 2011. Aristotle and Natural Law, New York: Continuum.
3
Aristotle. 2000. Nicomachean Ethics. Cambridge: Cambridge University Press, ch. V, 7.
4
Epictetus. 1957. “Discourses of Epictetus”. In The Stoic and Epicurean Philosophers, W. J. Oates (ed.), 241,
258, 406-423. New York: Random House Inc.
5
Idem, p. 251.
6
James E. Holton. 1987. “Marcus Tullius Cicero”. In: History of Political Philosophy. Third Edition, Levi
Strauss, Joseph Cropsey (ed.), 172. Chicago: The University of Chicago Press.
7
Idem, p. 157.
8
St Augustine. 1972. City of God, London: Penguin Books, p. 874-875.
9
St Thomas Aquinas. 1922. Summa Theologica. London: Burns Oates and Washbourne, II-II, Q 57, II-I, Q 95.
https://oll.libertyfund.org/titles/aquinas-the-summa-theologica-of-st-thomas-aquinas-part-i-qq-l-lxxiv-vol-3.
10
Idem, II-I, Q 94.
11
Jacques Maritain. 1954. Scholasticism and Politics, Glasgow: The University Press, p. 94-98, 109-112.
12
St T. Aquinas, op.cit., II-II, q 117, 118.
intellectualists and voluntarists13. Informed by this argument, he claimed that law is not a mere
description of an extant situation but rather a precept14. In Suarez’s concept, God’s law is
immutable, therefore, every law has conditions attached to it, creating a more rigid structure
than it was the case in Aquinas15. Still, despite being praised for his dedication to liberty16, he
grants an exceptional flexibility to natural law dividing it into perceptive natural law and natural
law related to man’s dominion, with the latter possible to be limited by the individual himself
or by authority representing an abstract general will17. Apart from perceiving law as precept,
Suarez introduces also another innovation in natural law theory – the definition of ius as one’s
sole right rather than just sharing between the members of a community18.

Hugo Grotius, the next great thinker interested in the matter of natural law, opens the
new era in this field, where it becomes increasingly, in words of John Rawls, ‘secularised’ –
natural laws will be increasingly treated as valid even if God have not had existed19. From him
on natural law becomes the object of reflection for philosophers rather than theologians. Grotius
states in this matter:

What I have just said would be relevant even if we were to suppose (what we cannot suppose without
the greatest wickedness) that there is no God, or that human affairs are of no concern to him (…)20.

For him, natural law can be deducted from human nature for whoever created man (God as
‘creator of nature’21 or some processes) shaped us in such a way that these laws are deductible
seem natural to us22. Additionally, following Suarez, he understands ius as ‘right’, even though
it is just one of possible meanings23. Regarding the exact list of natural rights in Grotius’ works,
it strikingly resembles the one prepared by John Locke in his Second Treatise on Government
and puts personal liberty as the crux. In De Iure Praedae we find a following statement:

For God created man αύτϵξoύσıov, 'free and sui iuris’, so that the actions of each individual and
the use of his possessions were made subject not to another's will but to his own. Moreover, this
view is sanctioned by the common consent of all nations. For what is that well-known concept
'natural liberty', other than the power of the individual to act in accordance with his own will?
And liberty in regard to actions is equivalent to dominium in material thing 24.

13
Pauline C. Westerman. 1998. The Disintegration of Natural Law Theory. Aquinas to Finnis. Leiden: Brill, p.
85-94, 98-103.
14
Francisco Suarez. 1944. De Legibus, ch. II; VI, 12. In Selections from Three Works of Francisco Suarez, S.J.,
G. L. Williams, A. Brown, J. Waldron (prep.). Oxford: Clarendon Press.
15
P. Westerman, op.cit., p. 107-110.
16
‘The teachings of Suárez show a manifest and unusually modern interest in the safeguarding and promotion of
human rights. Freedom, justice, development and peace lack a solid basis and are seriously jeopardized unless
the dignity and the equal and inalienable rights of the members of the universal family are recognized. States
must guarantee absolute respect for fundamental rights and freedoms.’ - Sergio M. Villa. 1997. “The Philosophy
of International Law: Suarez, Grotius and Epigones”, International Review of the Red Cross, no. 320.
https://www.icrc.org/eng/resources/documents/article/other/57jnv9.htm.
17
F. Suarez, op.cit., II; XIV, 7, 11-12.
18
Idem, I; II.
19
John Rawls related to Hobbes’ ‘secular political and moral system’ - J. Rawls. 2008. Lectures on the History
of Political Philosophy. Cambridge: Harvard University Press, p. 26-28.
20
Hugo Grotius. 2005. The Rights of War and Peace. Indianapolis: Liberty Fund, v. 3, p. 1748.
21
Idem, p. 151, 1749.
22
P. Westerman, op.cit., p. 142.
23
H. Grotius, op.cit., p. 136-148.
24
H. Grotius. 2006. Commentary on the Law of Prize and Booty, Indianapolis: Liberty Fund, p. 33. It is often
emphasized that Grotius was under strong influence of Stoics, this inspiration is clearly visible in such a
reverence for liberty but, as we will see, this liberty is not unconditional as it was in the writings of Stoics.
The primary role of liberty as the supreme natural right is confirmed later on in The Rights of
War and Peace 25. The quotation above introduces also property as a natural right which was a
revolutionary idea at the time. The third right included in The Rights… after liberty and property
is a ‘faculty of demanding what is due’ which could be interpreted as a right of contract as well
as the right to seek fulfilment of obligations and respect for one’s freedoms26. P. Westerman
draws similar conclusions from the introduction to that work27. Nevertheless, despite this
resemblance to the later work of John Locke, Grotius maintains that natural rights of an
individual are inferior to those of the community, not to mention that state or society gain the
privilege of changing the natural law through the social contract28.

Then appears Thomas Hobbes who adopts the approach of Grotius regarding the state’s
ability of limiting/reshaping the natural law but who proposes a radically pessimist vision of
human nature unwitnessed in thinkers presented previously:

‘(…) in the nature of man, we find three principal causes of quarrel. First, competition;
secondly, diffidence; thirdly, glory’29.

People are, as his predecessors claimed, born free and equal but this freedom and equality leads
them to constant conflict30. The state of nature, then, almost immediately becomes a state of
war full of violence and vigilance:

Hereby it is manifest that during the time men live without a common power to keep them all in
awe, they are in that condition which is called war; and such a war as is of every man against
every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time,
wherein the will to contend by battle is sufficiently known31.

As John Rawls observes, Hobbesian state of war is a time when people think rationally but not
reasonably – they consider individual rather than communal interest32. Overall, though Hobbes
acknowledges liberty and property as natural rights, these are not rights to be desired. They do
not know limits – one can take other’s possessions and even freedom or life if he has enough
strength33. Inspired in his pessimism by the political events of his time, Hobbes postulates as a
result that the state should keep people in awe and limit their natural freedom in order to allow
for progress and protect the others34. The goal, then, is to deprive mankind of natural freedom
and position it within the limits of positive law through the covenant.

The final stage of evolution from natural justice of Aristotle to natural rights as we know
them today is the thought of John Locke. His vision of the state of nature and natural rights is
a total opposition of Hobbes’. The state of nature is

25
Ibidem; H. Grotius, The Rights… op.cit., p. 138.
26
Idem, p. 138-139.
27
P. Westerman, op.cit., p. 161.
28
H. Grotius, The Rights… op.cit., p. 140-141, 144-145, 158-162. Richard Truck sees in this approach a result of
experiences of Grotius, especially regarding the role of Church. Grotius hoped to curb its influence by state’s
action: Richard Tuck. 1998. Natural Rights Theories. Their Origin and Development. Cambridge: Cambridge
University Press, p. 64-65.
29
Thomas Hobbes. 1651. Leviathan or the Matter, Forme, and Power of a Common-wealth Ecclesiasticall and
Civill. London: [no publisher], p. 77. https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/hobbes/Leviathan.pdf.
30
T. Hobbes. 1987. De Cive. Oxford: Clarendon Press, p.45-46; T. Hobbes, Leviathan…, p. 76.
31
T. Hobbes, Leviathan…, p. 77.
32
J. Rawls, op.cit., p. 54-62.
33
T. Hobbes, Leviathan…, p. 80.
34
Idem, p. 105-107.
 (…) a state of perfect freedom to order their actions and dispose of their possessions and persons,
as they think fit, within the bounds of the law of nature; without asking leave, or depending upon
the will of any other man [emphasis belongs to author]35.

As we can see here, in Locke’s understanding, there are objective natural laws and rights which
do limit our actions. The famous maxim ‘one’s freedom ends where other’s freedom begins’ is
derived from Locke. Moreover, this natural liberty is extended not only to action but to private
property as well, not only that but our liberty is a product of us being in possession of our
bodies36. Moreover, the breach of our natural rights can be met with a proportional response by
a victim or third party, including legitimate use of violence37. If we add the right of contract
which could be deduced from the fact that people can form society and establish laws38, the
catalogue of natural rights in John Locke’s work presents itself as follows:

1) Liberty (of life, action, property)

2) Equality (in power and jurisdiction)
3) Self-defence and defence of the third party
4) Punishment of the offender
5) Seeking restoration and retribution
6) Contract
As it seems here, Locke follows the steps of his predecessors. However, he introduces a
revolutionary change to the character of natural rights. While in Hobbes, Grotius, or Suarez
these could be limited, changed, or abolished by positive law introduced by a polity, Locke
argues that these rights are absolute and cannot be changed. Moreover, a society or polity is
formed precisely to protect them and allow a peaceful cooperation and coexistence and need to
respect the natural rights of citizens. He presents two justifications to this claim:
1) God gave us life and has ‘property in it’. Hence, we cannot give this property away –
after all, nobody can cede the property they do not own39.
2) Men wouldn’t constitute a polity which puts them in a worst situation than the state of
nature – it would be ‘to put themselves into a worse condition than the state of nature,
wherein they had a liberty to defend their right against the injuries of others (…)’40.

This absolute character of natural rights presented a real revolution in the history of political
thought of the time and affected not only the academy but also the political developments of
the era. The idea of inalienable human rights is present in the Declaration of Independence of
thirteen American colonies:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness. --That to secure these rights, Governments are instituted among Men, deriving
their just powers from the consent of the governed (…)41.

35
John Locke. 1980. Second Treatise of Government. Indianapolis: Hackett, ch. II, 4.
36
Idem, V, 27. This notion of liberty stemming from property will be then willingly adopted by libertarians from
Austrian School of Economics.
37
Idem, II, 7-8, 10, 12.
38
Idem, VIII, 95-98.
39
Idem, XI, 135.
40
Idem, XI, 137.
41
National Archives. N.d. “Declaration of Independence: A Transcription”. Accessed 25.04.2019.
https://www.archives.gov/founding-docs/declaration-transcript.
Moreover, it informs the Declaration of the Rights of Man and of the Citizen adopted in
revolutionary France in 1789 as visible in articles I, II, and IV:
I. Men are born, and always continue, free and equal in respect of their rights. Civil distinctions,
therefore, can be founded only on public utility.
II. The end of all political associations, is the preservation of the natural and imprescriptible rights
of man; and these rights are liberty, property, security, and resistance of oppression.
(…)
IV. Political liberty consists in the power of doing whatever does not injure another. The exercise of
the natural rights of every man, has no other limits than those which are necessary to secure to every
other man the free exercise of the same rights; and these limits are determinable only by the law42.

Still, further developments have led to stark differences when it comes to practical application
of these principles – the USA have incorporated natural rights in their Bill of Rights (especially
1st and 4th amendment, later on also 13th amendment)43, while France was consumed by reigns
of terror with supposed enemies branded as the enemies of the state of nature and sentenced
without trial44. Last but not least, Lockean ideas had an influence on many important thinkers
of 18th and 19th century, with Thomas Paine’s Common Sense and Rights of Man, and essays of
Lord Acton as prominent examples45.

Looking at 20th and 21st century, Lockean concept of natural rights continues to resonate
within both academic and political circles. To thinkers inspired by him belong Robert Nozick
who in his Anarchy, State, and Utopia refers directly to Locke46. While his theory regarding
the topic remains inconsistent (especially regarding the catalogue of rights), Nozick presents
two new arguments for the absolute and inalienable character of natural rights. The first one is
Kantian principle, which states that ‘individuals are ends not merely means’47, therefore, their
rights cannot be sacrificed for a ‘greater good’ without their consent48. The second argument is
that state or society is not an entity on its own rights but a collective of individuals – there is no
‘common good’ which could benefit from the suffering of one individual49. As an innovation,
Nozick introduces natural rights as a ‘side constraint’ as opposed to an ‘aim’ as it was in Locke.

42
N.a. n.d. „The Declaration of the Rights of Man and of the Citizen, 1789”. Accessed 25.04.2019.
https://www.americanbar.org/content/dam/aba/migrated/2011_build/human_rights/
french_dec_rightsofman.authcheckdam.pdf.
43
National Archives. n.d. “The Bill of Rights: A Transcription”. Accessed 25.04.2019.
https://www.archives.gov/founding-docs/bill-of-rights-transcript; National Archives. n.d. “The Constitution:
Amendments 11-27”. Accessed 25.04.2019. https://www.archives.gov/founding-docs/amendments-11-27.
44
More regarding the distorted view of natural rights in the revolutionary France we can find in: Dan Edelstein.
2009. The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution. Chicago:
University of Chicago Press.
45
Thomas Paine. 1894. “Common Sense”. In The Writings of Thomas Paine, Moncure Daniel Conway (ed.), 70-
71. New York: G.P. Putnam’s Sons; Thomas Paine. 1791. Rights of Man. London: J.S. Jordan, p. 50-52; John
E.E. Dalberg-Acton. 1949. “The history of freedom in Antiquity”, “The history of freedom in Christianity”. Both
in Essays on Freedom and Power, J.E.E. Dalberg-Acton. Glencoe: The Free Press. Acton authored also the
famous, though often shortened maxim of clearly Lockean influence: ‘Power tends to corrupt and absolute
power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not
authority: still more when you superadd the tendency or the certainty of corruption by authority.’ – J.E.E.
Dalberg-Acton. 1887. Acton-Creighton Correspondence. Indianapolis: Liberty Fund.
http://oll.libertyfund.org/titles/acton-acton-creighton-correspondence.
46
Robert Nozick. 1974. Anarchy, State, and Utopia. Oxford: Blackwell, p. 10-12.
47
Idem, p. 30-31.
48
Idem, p. 31-32.
49
Idem, p. 32-33.
He does so supposedly to avoid the traps of utilitarian approach50. The second important thinker
(even if not received warmly in academic circles) is Murray Rothbard, who endorsed the idea
of natural rights (such as freedom to live and act within the limits of others’ liberties as well as
the right to possess property) as deducted using reason and which are, similarly to Lockean
idea, derived from property in one’s body51. Accordingly, all aggression is illegal as it
encroaches on one’s property – either of body or material possessions52.

However, the largest impact has the concept of natural rights had on actual political
developments. It inspired, through the achievements and declarations of American and French
Revolutions, the creation of Universal Declaration of Human Rights as the standard accepted
in the United Nations. All the natural rights stipulated by Suarez and Grotius and deemed
absolute by Locke are included in this document, including the right to life, liberty, property,
and equality before the law53. This milestone set in turn an example for many regional
organisations, including European Union, the Organisation of American States, and African
Union, who accepted their own human rights charters54. While adoption of those charters as de
facto non-binding recommendations or declarations rather than incorporating them in the body
of law results in poor record of many countries with regard to protection of those basic rights,
still it is used as a sign that the majority supports their protection. Moreover, abuse of human
rights may result in UN intervention55.

Overall, in this short summary, it is possible to see the evolution and common features
of the tradition of natural law theory. Quoting Pauline C. Westerman, we can present a set of
basic assumptions characterising the natural law theory. These are:
a) there are universal and eternally valid criteria and principles on the basis of which positive law
can be justified and/or criticised;
b) these criteria and principles are grounded in nature, either physical nature, or more specifically,
human nature;
c) human beings can discover those principles by the use of reason;
d) for positive law to be morally obligatory, it should be justified in terms of these principles and
criteria.56
It is also possible to observe major trends within this tradition, which can be summarised
as follows:
1) Shift from practical and theoretical reason (Aristotle to St Thomas Aquinas) to pure
theoretical reason (from Suarez on)

50
Idem., p. 29-33. Paragraph 131 of the Second Treatise seems in this context like a refutal of Nozick’s
argument - J. Locke, op.cit., p. 156.
51
Murray Rothbard. 1998. Ethics of Liberty, New York: New York University Press, p. 31, 34.
52
Idem, p. 50.
53
United Nations. n.d. “Universal Declaration of Human Rights”. Accessed 25.04.2019.
https://www.un.org/en/universal-declaration-human-rights/.
54
Eur-Lex. N.d. “Charter of Fundamental Rights of the European Union”. Accessed 25.04.2019. https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT ; African Commission on Human and Peoples’
Rights. n.d. “African Charter on Human and Peoples’ Rights”. Accessed 25.04.2019.
http://www.achpr.org/instruments/achpr/#a8; Department of International Law, OAS. n.d. “American
Convention on Human Rights ‘Pact of San Jose, Costa Rica’ (B-32)”. Accessed 25.04.2019.
https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.htm.
55
Jayshree Bajoria, Robert McMahon, “The Dilemma of Humanitarian Intervention”, Council on Foreign
Relations. 12.06.2013. https://www.cfr.org/backgrounder/dilemma-humanitarian-intervention.
56
P. C. Westerman, op.cit., p. 12.
 2) Shift from natural law theory (Aristotle to Suarez) to natural rights theory (from Grotius
on)
3) Shift from natural rights being suspects to state-imposed limitations in form and scope
(Aristotle to Hobbes) to absolute natural rights (from Locke on).

Having presented the development of the concept of natural rights out of the ancient
tradition of natural law and showing that they did and still do have an influence on the course
of political events across the globe, we can focus on the second great tradition within the liberal
thought – utilitarianism.

2. Utilitarianism

Having produced a natural rights theory and catalogue out of the long tradition of natural
law concepts throughout the history, it is necessary to confront those assumptions with the
second big tradition within the liberal thought – utilitarianism. Those two schools differ in key
aspects and may lead to sometimes contrary results. In the same time, since Hume has laid
foundations for utilitarian philosophy in the 18th century, quite a large number of philosophers,
political thinkers, and political practitioners have adopted this perspective as their own.
First of all, it is important to observe that utilitarianism, however associated with the
minds such as Hume, Bentham, Mills and Sidgwick, is not the invention of 18th- and 19th-
century philosophers. It remains in close symbiosis with scepticism, assuming that nothing or
almost nothing can be known for certain. Therefore, we can trace the signs of specific ‘paleo-
utilitarianism’ in the thought of ancient sceptics such as Carneades, who was criticised for
thinking that ‘(…) men have established iura according to their own interests [pro utilitate]’57
by Grotius in the introduction to his opus magnum, even if the ancient philosopher was chosen
as a representative of sceptics contemporary to the Dutchman58. The new wave of scepticism
was fuelled by a number of factors. First of all, scepticism gained prominence thanks to the
Reformation or rather the fact that some circles in the Catholic Church preferred to use sceptical
approach as the way of fighting the ideas of Luther59. Secondly, in the 16th century scholars
rediscovered for themselves the works of ancient sceptics, therefore reigniting the centuries-old
dispute about reason and knowledge60. Finally, in the age of exploration and assisting it renewed
interest in different cultures, sceptics found out that there is no one custom and one law,
therefore starting to question the universalistic view characterising the Christian world up until

57
H. Grotius, The Rights of… op.cit., III, p. 1746. As for the account of Carneades philosophy, unfortunately
there are no written works of him. For a concise summary of his thought, check: Harald Thorsrud. 2010.
“Arcesilaus and Carneades”. In The Cambridge Companion to Ancient Scepticism, R. Bett (ed.), 70-74.
Cambridge: Cambridge University Press.
58
H. Grotius, The Rights of…, p. 79.
59
Richard Popkin. 2003. The History of Scepticism. Oxford: Oxford University Press, p. 4-9.
60
Chapter “The Revival of Greek Scepticism in the Sixteenth Century” deals with this issue in detail, especially
with the fact that the works of sceptics were known in the previous centuries but remained rather marginalised
until the 16th century - Idem, p. 17-43.
this time61. We can see it clearly in Hume’s references to foreign countries while speaking of
moral values and laws62.
Utilitarianism is, as the name suggests, a philosophy which considers the utility as the primary
principle of philosophy. A concise definition of this principle we can find in Jeremy Bentham’s
An Introduction to the Principles of Morals and Legislation:
By the principle of utility is meant that principle which approves or disapproves of every action
whatsoever, according to the tendency it appears to have to augment or diminish the happiness of the
party whose interest is in question: or, what is the same thing in other words, to promote or to oppose
that happiness. I say of every action whatsoever, and therefore not only of every action of a private
individual, but of every measure of government63.
The happiness as the core of utilitarian thought finds its place in Hume’s works, as well
as those of Sidgwick, where pursuit of happiness is categorised as hedonism, either egoistic or
universal64. As we know, natural rights theorists did not deny the pursuit of happiness to be the
primary aim of a person. However, what puts these two philosophical views at odds is the
second pillar of utilitarian thought - the lack of belief in any kind of inalienable natural rights,
though some of thinkers, like Hume, assumed that there are some primitive natural virtues,
including sympathy and benevolence, and certain natural abilities65. According to utilitarians,
all rights deemed natural by natural law school, are in a fact artificial. As an example – absolute
liberty is a fiction, for we are often forced to act out of necessity, either conditioned by our past
or the circumstances66. In Hume’s words:
(…)liberty, when opposed to necessity, not to constraint, is the same thing with chance; which is
universally allowed to have no existence67.
Similarly, Sidgwick in his Methods of Ethics, in one place addresses Kantian freedom as ‘idle
rhetoric’68. In the other he admits that the idea of right to freedom ‘appeals much to [his] mind’
but facing the social reality it faces difficulties impossible to be solved69. According to
utilitarian thinkers, liberty and other rights as well as justice are, in Hume’s terminology,
‘artifices’70, man-made values which serve the primordial object which is utility, which in turn
means (total) happiness71. Following this reasoning, right to property is an artificial right, which
did not predate the political society72. There is no need to analyse other supposedly natural

61
Charles W. J. Withers. 2007. Placing the Enlightenment. Thinking Geographically about the Age of Reason.
Chicago: The University of Chicago Press, p. 151-179.
62
David Hume. 1896. A Treatise of Human Nature. Oxford: Clarendon Press, p. 539-541, 580-581. It is also the
theme of Dialogue in: D. Hume. 1902. Enquiries Concerning the Human Understanding and Concerning the
Principles of Morals. Oxford: Clarendon Press, p. 324-343.
63
Jeremy Bentham. 1907. An Introduction to the Principles of Morals and Legislation. Oxford: Clarendon Press,
ch. I, 2.
64
D. Hume, Enquiries…, ch. II, IX; Henry Sidgwick. 2011. The Methods of Ethics, London: Macmillan and
Company, ch. VI, 3.
65
D. Hume, A Treatise…, III, III.
66
D. Hume, A Treatise..., II, III, I.
67
D. Hume, Enquiries…, p. 96.
68
H. Sidgwick. n.d. Appendix: The Kantian Conception of Free Will. Accessed 25.04.2019.
https://www.laits.utexas.edu/poltheory/sidgwick/me/me.appendix.html.
69
H. Sidgwick, The Methods… op.cit., V, 4.
70
D. Hume, A Treatise...op.cit., III, II, I.
71
D. Hume, Enquiries…op.cit., p. 334-335; D. Hume, Treatise…op.cit., III, II, I-II
72
D. Hume, Treatise…op.cit., III, II, II. The issue of property as a man-made right is also explored in the
endnote no. 3 in: J. Bentham, op.cit., p. 235. For more thorough analysis of utilitarian thought regarding the
artificial origin of property, check - Frederick G. Whelan. 2015. The Political Thought of Hume and His
Contemporaries. Enlightenment Projects Volume 1. New York: Routledge, p. 24-58.
rights since, as we have seen in the previous part, the natural rights tradition either derived the
other rights from right of liberty or right to property – without this foundation, there can be no
natural, absolute right.
The remaining questions surrounding the utilitarian perspective is the object of artificial
rights such as liberty and property. They do not exist without a reason and they are not self-
evident. There need to be an explanation grounded in utility for their creation by emerging
political societies. According to utilitarian thinkers, private property and limited freedom of
speech and action are the best guarantors of social and economic development and as such, they
have a great utility. One’s right to property and one’s liberty are not axioms, self-evident ends,
they serve a goal, therefore they are means of achieving happiness for the whole society. For
this reason, they can be calibrated according to the stage of development of one particular
society. More developed societies gain more rights when it comes to personal liberties for they
have bigger utility once people ‘learn’ how to use them for the good cause. As a logical
extension of this argument, less-developed societies can be ruled by tyranny and their liberties
can be freely curbed in order to achieve the greatest utility. This strikingly ‘economical’
approach to the matter of rights and morals expresses the importance which utilitarian authors
give to economy. Some of the people associated with this school, such as J. Mill (father of J.S.
Mill) were more interested in economy, leaving minor works related to general law, politics, or
morals73. While utilitarianism was without any doubt a fundamental part of the Enlightenment,
its focus on utility caused thinkers representing it to oppose violent, drastic political changes,
leading some academicians to deem ‘conservative’ personas such as Hume74. It does not mean
that representatives of this school were reactionaries, quite the opposite – they favoured social
changes such as in position of women, slavery and others. However, when it comes to political
change and especially the change of regime, they preferred it to happen within the legal frame
of existing polities, making them close to real conservatives such as Edmund Burke75.
The picture emerging from the above summary is that of utilitarian thinkers concerned
with total utility (Sidgwick’s ‘universal hedonism’) – utility for the whole of society. This is
certainly true for some writers, such as Hume, Bentham, and J. Mill, but it does not characterise
the whole of utilitarian thought. Sidgwick in his Methods of Ethics gives, as Rawls observes,
equal credit to both egoistic and universal hedonism, even if he favours the latter76. However,
the most striking departure from such holistic approach to utility is visible in the works of
younger Mill – James Stuart. While denying the existence of any natural rights, he puts
emphasis on the individual utility. His stance is by some linked to political developments in the
United Kingdom in the 19th century – J.S. Mill supported both universal suffrage and freedom
of press. His thought on the subject were proclaimed in suggestively named On Liberty77. Still,
even J.S. Mill claimed that the exact extent of one’s rights depend on how much one is
‘developed’, allowing for despotic rule in ‘undeveloped societies’, which would most
effectively lead them to become a modern society and a democracy78.

3. The consequences of both approaches for the justice system

73
As visible in the catalogue of works available on the page of Liberty Fund – Liberty Fund. n.d. “James Mill”.
Accessed 25.04.2019. http://oll.libertyfund.org/people/james-mill.
74
F. G. Whelan, op.cit., p. 3.
75
Ibidem.
76
J. Rawls, op.cit., 378-379.
77
John Stuart Mill. 2003. On Liberty. New Haven: Yale University Press.
78
Idem, p. 81.
Both of liberal traditions – natural rights liberalism and utilitarianism – do have important
consequences for the shape of justice systems and particular laws, with many states employing
both of them in various legal documents. In order to analyse and compare this influence, it
would be useful to summarise the possible implications they have and provide some examples.

Natural rights liberalism implicates a set of basic rights possessed by all people simply because
they are people. The reasoning behind them can be religious or based in nature but it does not
change their absolute character. The major issue concerning the justice system is the necessity
for positive law to comply with these rights – otherwise, they are declared null and void. After
all, argue thinkers from this strain, an institutionalised justice system and state in general serve
exactly to allow for effective protection of these inalienable liberties and enjoy free interaction
between individuals. This quality of natural rights made them a must-have in the era of
constitutional states and especially constitutional republics, as well as international bodies
created by them. The phrases of ‘liberty’, ‘life’, ‘property’ often find their way, as we have
mentioned, into the first chapters of constitutions, human rights charters and other documents.
The validity and enforceability of these documents is, however, a totally different question.
While some are actual rules which states have to obey, others remain declarations, beautiful but
decorative rather than prescriptive. This is especially true for human rights charters of
international organisations. In the sphere of international relations, a positive exception is the
European Court of Human Rights (ECHR) and International Criminal Court (ICC) (although
the latter is focused on crimes against humanity, genocide and stately aggression rather than
individual rights per se)79. Still, both of them can rule only in cases of states who willingly
became and remain signatories. Additionally, states can simply not obey the final verdict,
therefore deeming the effectiveness of these courts rather limited.

As for national laws apart from constitution, they often may not in fact follow the
prescriptions included in this most fundamental document. This is done by the way of
interpretation by lawmakers and executive, and, if challenged, by supreme courts which can
either dismiss the case or decide that a piece of legislation in question indeed does not infringe
on basic constitutional rights. However, as it will be shown below, the spirit of most of these
laws could be argued to not stem from natural rights liberalism but rather from the utilitarian
perspective and is only dressed in natural law language due to constitutional restrains. After all,
natural rights understood literally and as absolute are a major constraint on the way government
functions, enforces obedience and gathers resources necessary to function. Ideal Lockean state
would be a minarchy at best, with a rudimental police and army forces capable of preventing
internal and external aggression.

Utilitarian liberalism is, in turn, an approach firmly established within, and symbiotic
with the state. Classical understanding of utility as a total happiness – happiness possible to be
experienced by the greatest number of members of society/citizens presents the authority with
a wider array of possibilities regarding state’s operation. As long as the total utility is high,
actions, even infringing on supposed natural rights, are permissive, more than that – desired.
Hume and utilitarian thinkers state openly that “public utility is the sole origin of justice (…)”80.
Moreover, “the good of mankind is the only object of all these laws and regulations”81.
Moreover, even J.S. Mill’s utilitarianism gives the government greater leverage in dealing with

79
N.a. 1950. European Convention on Human Rights. Rome: European Court of Human Rights, Council of
Europe. https://www.echr.coe.int/Documents/Convention_ENG.pdf; International Criminal Court. N.d. “How
the Court works”. Accessed 25.04.2019. https://www.icc-cpi.int/about/how-the-court-
works/Pages/default.aspx#legalProcess.
80
D. Hume, Enquiries…op.cit., p. 183.
81
Idem, p. 192.
its citizens than the post-Lockean natural rights liberalism. For Mill aims at individual utility
without determining what it precisely is and who has a mandate to strive for it. Therefore,
government possibly could interfere in one’s affairs in the name of their happiness without
acting against Mill’s principles. A similar situation was possible within the scope of Thomist
natural laws – society/state were entitled to intervene in one’s life on behalf of the inner person
against the deeds of an individual82.

The prevalence of utilitarian approach (whether total or individualistic) in body of law

of most if not all of modern countries is visible once one descends from the spirited first articles
of constitutions into the latter ones as well as other legal documents – to the core of legislation
concerning the functioning of particular branches of government. The classical example would
be taxation which is hard to defend within the scope of natural rights, since it could be
interpreted as infringement on one’s property. Another common example of laws affecting the
natural right to private property is eminent domain, in which one’s real estate can be acquired
(even if with compensation) by the state in order to develop projects serving common good
such as roads, not to mention that in some cases these laws are utilised to serve corporations as
the way of ‘creating jobs’83. As for liberty of action, laws in many non-democratic as well as
democratic countries curtail the freedom of speech which within the natural rights tradition
cannot be in violation of other’s liberties as long as it doesn’t incite violence. The justification
for such legislation vary from ‘stability/security of the state’ to ‘respect for state organs’ as well
as ‘preventing hate speech’ which supposedly can inflict real harm on targets 84. Similarly, in
recent years, in several countries, lawmakers have begun to curtail the ‘right not to act’ or the
right to not enter a contract. This was most evident in a widely covered legal battle of pastry
refusing to prepare a wedding cake for a gay couple in the USA 85. In natural rights liberalism
tradition legislation forcing citizens to conduct some action which is generally accepted to be
voluntary in nature would be a serious transgression of one’s liberty. However, in utilitarian
understanding we can enforce an action in order to provide maximum happiness and utility
enjoyed by citizens as the whole. Furthermore, natural rights school could name the
development of state intelligence agencies, especially the internal one’s concerned with their
own citizens as yet another violation of freedom of consciousness and liberty of private
correspondence, while utilitarian liberals could argue that only in this way we are able to
achieve security for all and prevent terrorist attacks, the nightmare of government agencies in
the post-9/11 era. This struggle was visible in reactions to Edward Snowden’s data leak
regarding the wide-range surveillance programs conducted by NSA. While some people called
him a hero for trying to protect the rights of ordinary citizens, others treated him as a traitor.
Looking at court rulings regarding the surveillance programs in question, while they came to
opposite conclusions, both were concerned with the matter of ‘utility of surveillance in

82
J. Maritain. Op.cit., p. 94-98, 109-112.
83
Youtube. 14.06.2018. „Trump, Ryan, and Walker Want to Seize Wisconsin Homes to Build a Foxconn Plant”.
Accessed 25.04.2019. https://www.youtube.com/watch?v=YZfxvH_oeKA; Castle Coalition. 2007. 50 State
report card. Tracking Eminent Domain Reform Legislation since Kelo. Accessed 25.04.2019. https://ij.org/wp-
content/uploads/2015/03/50_State_Report.pdf.
84
Cherian George. 2015. “Hate Speech Law and Policy”. In The International Encyclopedia of Digital
Communication and Society, Robin Mansell, Peng Hwa Ang (ed.). n.p.: John Wiley & Sons.
https://onlinelibrary.wiley.com/doi/pdf/10.1002/9781118767771.wbiedcs139. The general report including
findings on freedom of speech is prepared yearly by Freedom House: Freedom House. N.d. “Freedom in the
World 2018. Democracy in Crisis”. Accessed 25.04.2019. https://freedomhouse.org/report/freedom-
world/freedom-world-2018.
85
Sheena McKenzie. 2018. “Christian bakery owners win appeal in ‘gay cake’ case”. CNN, 10.10.2018.
https://edition.cnn.com/2018/10/10/uk/gay-cake-ernie-bernie-northern-ireland-intl/index.html.
preventing terrorism’ as opposed to ‘utility of privacy’, therefore, treating the issue in a
profoundly utilitarian fashion86.

Overall, if we were to put aside the ethical considerations, both natural rights liberalism
and utilitarianism have advantages and disadvantages regarding their utility as potential cores
of justice systems. The consequences of natural rights liberalism are as follows:

1) A Firm Spine – natural rights being absolute provide us with a stable point of reference
when introducing new legislation and deems the system as a whole rigid.
2) Limited Action – the same absolute character of natural rights which provided us with
a useful point of reference significantly limits the possible actions by legislators and if
applied literally would deem all modern states unlawful.
3) Focus on the Rights of Individual – the rights and good of individuals involved in a
particular situation are the focus of justice, rather than the good/happiness/utility of the
society as a whole.
4) Focus on Means – if means are in conflict with natural rights, the action is deemed
immoral/unethical.

Accordingly, utilitarianism has its own consequences:

1) No Stable Point of Reference – there is no absolute beacon according to which the

state law has to be established. Therefore, there is no fixed understanding of justice apart
from the happiness/utility for citizens as a whole.
2) Wider Spectrum of Action Possible – the state and justice system can have other goals
apart from protecting the basic rights of citizens. Modern state isn’t in principle in
conflict with utilitarian approach.
3) Focus on the Good/Happiness of Individual and Society – utilitarianism allows for
limiting individual action even if it does not violate others’ rights in order to provide for
a greater good for the said individual or society in general.
4) Consequentialism – if the ends are ‘good’, action is deemed moral, no matter the
means87.

As it is visible above, applying strictly natural rights liberalism would cripple the modern state
and deem most of its operations illegal. Additionally, it focuses on the rights of an individual
and does not take the society into account. Meanwhile, utilitarianism due to its rather vague
terminology of ‘good’, ‘happiness’, and ‘utility’ provides no proper point of reference which
could help constraining the actions of government agents, especially if we remember about the
‘ends-focused’ nature of utilitarianism – the action is ethical/moral as long as it brings desired
results. Such a flexible approach grants wider prerogatives to the state but may threaten the
individual. As a result, we may be faced with state and justice which are not concerned with
any notion of morals and rights apart from ‘utility’ which can be defined differently by various
thinkers/politicians/public. Then, the mankind could be faced with some dilemmas impossible
to solve. Is it just to punish a man if there is not enough evidence but whom public wants to be
punished? Is it just to deprave one of hard-earned property if others claim that they earned ‘too
much’? Is it permissible to ban certain ideas or certain language in order to preserve the

86
Adam Liptak, Michael S. Schmidt. 2013. „Judge Upholds N.S.A.’s Bulk Collection of Data on Calls”. The
New York Times, 27.12.2013. https://www.nytimes.com/2013/12/28/us/nsa-phone-surveillance-is-lawful-federal-
judge-rules.html?_r=0.
87
Martin Peterson. 2003. „From Consequentialism to Utilitarianism”. The Journal of Philosophy vol. 100, No. 8
(August), pp. 403-415.
‘stability’ of state? All these questions remain open if as the only guide we apply the utilitarian
concept of justice and rights.

Nevertheless, looking at the distinction at hand as a binary opposition causes most of the
practitioners of politics to be utilitarian-leaning, even if they aren’t aware of it. After all, this
flexible and adjustable understanding of justice is preferable to a rigid moral spine resulting
from adaptation of natural rights liberalism. Even if the other one is an ideal to which many
strive, it is relegated to declarations and opening chapters of constitutions with little real
influence over the operation of state and its justice. Is there a way, however, to change this
perspective?

4. Natural Rights as Platonic Ideas

The binary opposition we were so far concerned with in this paper is primarily concerned with
idealism, where natural rights liberalism represents absolute idealism and utilitarianism stands
for abandonment of rigid ideals in favour of utility and pragmatism. However, there are other,
non-binary ways of approaching this problem without choosing either side completely. In here,
I would like to propose a more pragmatic, realistic, yet idealism-driven approach to the matter
of natural rights. With it, we can keep them intact while borrowing a measure of flexibility
inherent in utilitarian approach. Such an understanding of right and justice could be constructed
on Plato’s theory of forms.

Among Plato’s many works dedicated to the issue of rights, justice, and the state we
will single out Republic for the sake of this rather cursory (due to the amount of space)
argument. Considering the theory of form, C.D.C. Reeve in his introduction to this classic of
political philosophy gives a laconic description of the perceptible things, things of this world –
they ‘are in constant flux or change – always becoming, never being’88. The nature of forms as
impossible to perceive sensually and hard to define yet influential in our (especially spiritual)
lives is treated extensively in this work89. Although Plato was in conflict with himself when it
comes to this theory, it describes quite well the human struggle towards ethical or moral
behavior – we strive to be good and to do others justice but more often than not we fail in this
enterprise due to our shortcomings and self-interest. Theory of form allows us also to include
the absolute natural rights within a man-made state and justice system. It is enough to
understand them as ideas, forms, which we strive to achieve but which often escape our grasp.
In this moment, we see that a modern state can indeed operate within the spectrum of Lockean
natural rights. It is enough to accept them not only as a decorative element of constitutions and
international treaties but an ideal which serve as a moral/ethical compass. Such an attempt could
be rebuffed on the ground that it is purely Lockean one which would eventually force us to strip
the state of most of its current prerogatives. However, (for the sake of an argument) assuming
that in current phase of development of civilisation, modern state provides the best advantages
to its populace, this approach affords us to maintain the catalogue of legally binding basic rights,
be it ‘human’ or ‘natural’ rights, without deconstructing the state. Rather than that, states can
simply make a more extensive use of their charters of human rights or first chapters of
constitution in pondering on legality of newly established laws. Accepting the ‘fluidity’ and
constant change of all perceptible things, this point of reference should, then, be utilised to
decide which of many solutions brings the least damage/infringement on natural rights of
citizens. This picture is visible in Plato’s Republic, where Socrates struggles to develop the
concept of justice – he sees it as an absolute value but cannot provide a complete definition to

88
Plato. 2004. Republic. Indianapolis: Hackett Publishing Company, p. xv.
89
Idem, 511a, 517a, 534a, 595a-598a.
his interlocutors90. Overall, accepting natural rights as ideals to strive for rather than absolute
requirements allows us to keep them within the focus of justice and state operations, while
avoiding the absolute flexibility of utilitarian struggle for ‘utility’, ‘happiness’, and ‘good’.

Conclusion

In this article, the evolution and main precepts of natural rights liberalism and
utilitarianism were examined. Later on, their influence on justice system and state in general
were examined. It was established that the former establishes a strict set of rules by which states
should function, therefore protecting the liberties of individuals but severely constraining the
state to the point where most of its laws and operations seem illegal. In the same time,
utilitarianism allows for a greater flexibility because it is concerned with maximum ‘utility’,
‘good’, or ‘happiness’ of citizens in general – such phenomena are hard to define and can be
understood differently by different actors, allowing for supressing the individual rights for the
sake of society. However, presenting this choice as a binary, black-and-white opposition may
not lead to a fruitful conclusion. After all, there are also some intermediary approaches worth
examining in order to allow states and justice system to function without totally resigning from
a more defined, stringent ethical/moral code of conduct. In the last part of the paper author
attempted to present a draft solution in which natural rights are very much part of justice system
but as ideas, forms taken from Plato’s philosophy. As such, they show us the right way while
accepting the fact that human beings are prone to error. Treating them as ideas allows us to keep
them as litmus test for new legislation and the actions of executive, therefore providing for a
marriage of utilitarian struggle for happiness for all and Lockean liberties of individuals. While
it is not perfect and definitely deserves more space than that given in the paper, it is worth
considering in the era where states more often than not give up on natural rights and relegate
them to obscure decorative function while embracing an utilitarian perspective on a daily basis.

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