There is a common reaction I receive when I tell people I am partial to the moral theory of utilitarianism; it tends to occur when my interlocutors have a surer-than-average footing in the humanities, and is something quite like indignation. Utilitarianism is well known to these types; it is the villain of moral theories, and they exhibit great pride in their ability to recite its flaws. Utilitarianism ‘leaves some behind’ they say. It is ‘unfair to minorities’. It ‘justifies anything’. A recent Internet video shared amongst a number of my friends captures this mood well. ‘We are not’ it informs us, ‘soft-wired for aggression, violence, self-interest, utilitarianism…’ Public intellectual Clive Hamilton fans the flames. ‘The utilitarian model,’ he writes, ‘in which agents calculate the best means of maximising social welfare without regards to its effects on individuals, is a sociopathic one…’ But this, I believe, has gone too far. In fact, I think that philosophical academia has done public moral discourse a great disservice by promoting the notion that these common charges against utilitarianism stand upon a firm theoretical ground. They do not. With this paper I will examine what are possibly the two most widely accepted moral arguments against utilitarianism, and contend that contrary to common belief, these arguments find virtually no theoretical support in any plausible philosophical doctrine. By so doing I will attempt to show how far I believe our discussion of utilitarianism has gone off the rails, and how a fresh look at some old arguments may be able to right its course.
The first criticism of utilitarianism I will focus on is doubtlessly the most prevalent, both in the public imagination and academic discourse – the notion that utilitarianism ‘leaves some behind’. John Rawls voiced the objection eloquently at the outset of his Theory of Justice.
Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many.
The same concern was voiced by J. L. Mackie, who wrote that a central embarrassment for all forms of utilitarianism is that:
…they not merely allow but positively require, in certain circumstances, that the well-being of one individual should be sacrificed, without limits, for the well-being of others…If some procedure produces a greater sum of happiness made up of the enjoyments experienced separately by B and C and D and so on than the happiness that this procedure takes away from A…then, at least on a simple utilitarian view, that procedure is to be followed.
We need to be clear about what these writers are really saying, though, for despite the way in which these arguments are often purveyed, the contention here is not the extreme view that it is always wrong for a sacrifice to be imposed on some for the benefit of others. Neither Rawls nor Mackie object, for example, to systems of taxation that may take more from us than we receive back, despite the fact that this can easily be construed as being just such a sacrifice for others’ benefit. Even the libertarian Robert Nozick who did object to such taxes, did not hold there to be an absolute moral prohibition on imposed sacrifices, conceding they may be justified in certain rare cases, for example to avert a catastrophe.
What Rawls and Mackie mean, rather, is more that there are certain kinds of sacrifices that should not be imposed on a few for the ‘larger sum of advantages’ enjoyed by many. But this still does not quite make their argument, for neither writer would suggest that it is always wrong for any sacrifice for some to be justified by the avoidance of a greater sum of suffering for many. Each would assent that causing the death of one person could be morally justified if it were to save a large enough number of deaths, or that denying the liberty of a single individual may be justified if it were somehow to lead to the creation of a perfectly liberal society.
What Rawls and Mackie really mean, then, is that there are certain kinds of sacrifices that should not be imposed on a few for the larger sum of certain other kinds of advantages enjoyed by many. There are certain trade-offs, in other words, that it is just wrong to make, regardless of the consequences. It is just wrong to enslave people, for example, simply for the happiness this might produce in others, no matter how great this happiness may be. It is here where their true beef with utilitarianism lies, for utilitarianism, as they note, provides no guidelines about what kinds of trade-offs may or may not be justified prior to examining the consequences those trade-offs produce. This, then, is the first criticism of utilitarianism I will examine, The Illegitimate Trade-Offs Argument, or the ITA for short. Utilitarianism is wrong, it tells us, because it fails to recognise and rule out illegitimate kinds of trade-offs. Utilitarianism does, however, rule out one kind of trade-offs – those with a lower utility than other feasible options. The argument is therefore perhaps more properly put that there are kinds of illegitimate trade-offs over and above this category recognised by utilitarianism.
The second criticism I will examine is less prevalent in the popular discourse, but is nonetheless also an important string in any anti-utilitarian bow. This criticism holds that there are certain kinds of preferences and desires that should be denied moral weight. When deciding how we should treat an individual or minority, it tells us, our moral decision-making should not be affected in the slightest if a number of people prefer the individual or minority be mistreated. That preference is invalid, the criticism goes, because it fails to meet certain moral standards. Utilitarianism, however, assigns moral weight either to all preferences, no matter how morally objectionable they are (or on some conceptions of utilitarianism, to all instances of the pleasure or satisfaction arising from preference fulfilment, no matter how morally objectionable they are). And this, the argument contends, violates our moral instincts. ‘Interests requiring the violation of justice,’ wrote Rawls, ‘have no value’. I will call this The Illegitimate Preference Argument, or the IPA. It tells us that utilitarianism is wrong because it fails to recognise and rule out illegitimate kinds of preferences. Yet again, there is one kind of preference that carries no moral weight in utilitarianism – preferences that the utilitarian decision-making process not be followed. These preferences are null and void because there is no way a utilitarian decision-making system can abide by them. Examples would be preferences that other people’s preferences be given no moral weight, or preferences that we take whatever action will produce the least possible utility. So we can again reformulate the IPA as saying that there are further illegitimate preferences over and above the category recognised by utilitarianism.
While the ITA and the IPA overlap in a number of cases, it is important that they be distinguished. For consider a case in which the hardships suffered by sweat-shop workers were traded off for the benefits derived via the cheap produce of their labour. Objecting to this kind of trade-off does not automatically mean we will see the preference for cheap products as being illegitimate – in another context, this preference may seem perfectly legitimate from a moral point of view, such as in morally condemning a price-fixing conspiracy that led to higher-than-necessary prices. So illegitimate trade-offs can occur without the involvement of illegitimate preferences. And the reverse may be true as well. It can be seen as morally problematic to take certain preferences into account even if doing so does not lead to objectionable trade-offs. The pair of arguments are distinct, then, both important, and both sworn enemies of the utilitarian.
The ITA and the IPA: No Place For Old Sen
Now that I have set out the arguments I wish to defend utilitarianism against – the ITA and the IPA – I would like to argue a point regarding them that I feel has not been sufficiently appreciated. This is that by their nature, these arguments commit their advocates to at least some form of absolute deontological rule regarding trade-offs or preferences. To use either the ITA or the IPA one must delineate a certain kind of trade-off or preference that must in all possible situations be morally illegitimate. For if one is not willing to argue that there are certain kinds of trade-offs or preferences that are illegitimate in all situations, it would not necessarily follow from utilitarianism’s theoretical allowance of such trade-offs or preferences that it does anything wrong. This necessity of incorporating deontological rules, I believe, dramatically narrows the field of moral views able to provide a coherent theoretical basis for either the ITA or the IPA.
Take for example utilitarianism’s cuddlier cousin ‘plural consequentialism’. Similar to utilitarianism in holding the morality of acts to be determined by their consequences, plural consequentialism differs in allowing consequences to be judged not merely on the basis of a single variable, but by how well they promote a range of values. A famous advocate is Amartya Sen, who has suggested in addition to the more traditional utilitarian value of preference-fulfilment, the appraisal of consequences may incorporate considerations such as their levels of equality or freedom, their relative violation or fulfilment of various rights, and even their relative goodness in terms of various agent-relative values (such as, say, a prioritisation of providing for one’s own children over others or one’s own actions conforming to certain rules).
This incorporation of multiple values, however, necessitates taking a particular approach to the ITA. For Sen cannot simply argue, as others do, that utilitarianism is wrong because it allows certain specific kinds of trade-offs, such as trading slavery for well-being, as technically, his own theory allows such trade-offs as well. Everything included within his plurality of values can be traded-off with everything else, so despite the independent value he places upon them, equality and rights can still be traded-off for a sufficient amount of preference-fulfilment, and the losses of some justified by the gains of others. What he needs to do in order to use the ITA, then, is to propose a much more abstract category of illegitimate trade-offs – those that are justified on a utilitarian view, but are not justified on a plural consequentialist view after the incorporation of multiple values. Yet with only this abstract description to guide us, we actually have no way of knowing what actual trade-offs fit into this category, and hence no way of judging whether they would be illegitimate or not.
To illustrate this point, consider an example that Sen has used to show that his view is more attractive than utilitarianism. He imagines a ‘miserable policeman’ whose torture of an innocent man raises his own utility from 4 to 7, while only taking his victim’s down from 10 to 8. Now, obviously, a similarly simplistic assignation of utilities and liberal cooking of the books would justify this kind of action on Sen’s theory as well, no matter how much disvalue was attached to rights or equality. Say for example the victim’s utility actually fell from 10 to 5, rather than 7, because of the additional disvalue assigned to rights violations. This would make it unjustifiable on Sen’s view. Yet all we need to do now is suppose either that the policeman’s utility actually jumped by 6 points, or that another miserable policeman was involved, and the torture will be justified all over again.
But Sen would not dispute that these examples and their utility scores are somewhat ridiculous. What they show is simply the way in which his view makes it harder to justify their violation. And this is what he wants. He is open to violating rights and equality for favourable consequences at some point, but he wants to make sure that the right balance is struck between the value of rights and equality on the one hand, and the good consequences that might result from their violation on the other.
Yet here Sen has only a tenuous case against utilitarianism. For any plausible conception of utilitarianism will assign great instrumental value to rights and equality by incorporating considerations of the strength and robustness of preferences and of diminishing marginal utility. The utilitarian will claim, then – and I believe can make a good case in this regard – that this ‘sweet-spot’ sought out by Sen where rights and equality can justifiably be infringed is precisely where utilitarianism places it. Sen must deny this, for if it were the case, the independent value he affords to rights and equality would lead his system to overshoot the mark and produce erroneous moral judgements. But how can he argue this? Only, it seems, by imagining specific scenarios such as the above and deciding for himself what utilitarianism or his own view would or would not justify within them. But this method will always be open to dispute, with utilitarians claiming either that Sen has underestimated the instrumental value of rights and equality, or that the scenarios he imagines are simply not possible.
So while Sen does rule out an abstract category of trade-offs that utilitarianism allows – those that assign no independent weight to equality, rights, or agent-relative values – Sen cannot criticize utilitarianism for allowing this category. His own theory admits that one can be both too quick or too slow to trade off these values, and he cannot say, other than by arbitrary assumption, that the independent weights assigned to these values within his theory make it too fast, too slow, or just right in this regard.
The same difficulties, I believe, face plural consequentialists like Sen in attempting to argue for a plurality of independent values via thought experiment. Imagine, for example, two societies that are equal in terms of utility but far apart in terms of equality. One is a completely egalitarian society, but the other hosts a ruling class possessing such a strong preference to hold power and privilege that their satisfaction at the society’s inequality outweighs any loss of utility suffered by the underclass. It seems clear that we would consider the equal society the better of the two, and this could easily be seen as indicating that that equality has independent value. But our intuitions do not always tell us this. For consider a society that has become more equal by a talented elite suffering some accident, the disutility of which has been offset by the utility the loss has provided to people jealous of them. Here our intuitions tell us that the more unequal situation – prior to the loss suffered by the talented – is preferable. Now, I recognise that either of theses examples can be construed as an argument against utilitarianism, for each presents a scenario in which there is a seemingly better option despite utilities being equal. I simply raise them, however, to show that the intuitions evoked in such thought experiments are complex, and relate to much more than their levels of equality. These examples therefore rely upon the assignation of utility scores to individuals in quite particular contexts – a process that, as I have noted, is highly – and perhaps irrevocably – contentious.
Yet while these issues are interesting, it is not my purpose here to adjudicate a debate between plural consequentialism and utilitarianism. All I wish to note is that Sen’s view cannot provide a theoretical underpinning for the ITA. And as for the IPA, I believe that Sen’s view is equally unable to provide a basis for the objection. For while he has raised the possibility of distinguishing between various kinds of preferences and even of excluding some altogether, he has tended to favour a system of variable weightings for different kinds of preferences rather than any exclusionary policy, meaning that all preferences will be afforded at least some moral weight on his view.
Yet even if he did choose to exclude certain preferences from moral consideration, Sen’s system itself could not be said to provide a basis for the exclusion, for plural consequentialist systems can only make decisions once the values they incorporate are in place – they cannot justify decisions about what those values are. Say, for example, my plural consequentialist system assigns value to both X and Y. It is impossible for this system to tell me that another value, Z, has independent value. For even Z did have independent value, this fact would never show up in the results provided by my X-and-Y-based system. And it is also impossible for this system to tell me that either X or Y do not in fact have independent value, as all my results will be based on the assumption that they do. Sen’s theory, then, cannot theoretically underpin the IPA, as it provides neither guidelines for the definition of illegitimate preferences, nor reasons as to why they are illegitimate.
Griffin: If it quacks like plural consequentialism…
Another writer who I believe has put forward a version of plural consequentialism unable to theoretically underpin the ITA and the IPA is James Griffin. This is a more complex discussion than the case of Sen, however, as Griffin himself claims to identify more with an Aristotelian virtue ethic than the consequentialist label. Yet like Sen, he believes that moral judgements should consider a diversity of values (he includes well-being, rights protecting our ‘personhood’, and justice, and fairness), and that depending on the circumstances, any of these values can at times outweigh any other. And while he claims that consequentialist calculations are simply too far beyond our capabilities to ever govern our everyday moral thinking, this in itself does not mean that everyday moral thinking cannot be underpinned by a consequentialist framework. For despite what Griffin has argued, operating on a consequentialist basis does not require having an answer to the question ‘which set of rules, if they were dominant ones in our society, would have the best consequences in the society at large and in the long run?’ Rather, as Brad Hooker has noted, one need only ask ‘can I think of a set of rules I am confident will lead to better consequences than those I have now?’ If the answer is ‘no’, as Griffin clearly thinks it is, then there is no contradiction in holding fast to one’s everyday moral rules on the basis of a deeper consequentialist moral theory. And when one is willing, as Griffin is, to admit that everyday moral rules can justifiably be broken when doing so is certain to produce good enough consequences, it is hard to shake the impression that something very much akin to consequentialism is occurring in his view.
But whatever one decides to call it, the important thing for us to note here is that Griffin’s position is at least similar enough to plural consequentialism to be unable, for the same reasons as Sen’s view, to underpin the ITA and IPA. Consider, for example, the ways he claims that ‘human rights can be resistant to trade offs’. One is simply through ‘the great value we attach to our personhood. That we attach such great value to it’, he writes, ‘especially once we are above a minimal acceptable level of material provision…means that it has a general resistance to trade-offs with welfare’. Not only is such a position consistent with a plural consequentialist position that assigns independent value to personhood (or, as Griffin’s does, to rights which are based on the value of personhood), this ‘great value’ that we place on personhood will lead it to be highly resistant to trade-offs even within a preference-based utilitarianism that incorporates the strength of preferences.
Another way he believes that human rights resist trade-offs is the distinction he makes between ‘respecting’ and ‘promoting’ values. He writes that ‘one must simply follow the norm, ‘Don’t deliberately kill the innocent – follow it because that is the only moral life available to the likes of us,’ but he also admits that ‘…one might also adopt the policy that exceptions will be allowed only so long as the case for them is especially convincing.’ The way Griffin frames this, however (that this conservatism is based upon ‘an epistemic scale, not another moral one’, and is necessitated by our moral calculations being ‘alltogether too shaky and incomplete’), it again seems simply like a case of endorsing an everyday moral rule through an insufficient certainty of being able to depart from it with favourable results. But whatever Griffin’s is referring to, it is certainly not ‘respecting’ in the absolute Kantian sense, for this would make talk of ‘exceptions’ nonsensical. So whether he means an epistemically based-conservatism or some other non-absolute consideration, his view will still ultimately be compatible with plural consequentialism, and therefore unable to theoretically underpin the ITA or IPA.
The third way Griffin suggests human rights can resist trade-offs is his proposal of ‘discontinuities’ between values, such that a certain amount of one can never be traded for any amount of the other. He writes:
Suppose that, if I were to live the only sort of life that I regard as worth living, my neighbours would be upset and distressed…we do not think we should now count heads. We do not, because upset and distress, so long as they remain ordinary upset and distress, can never add up to anything as important as one’s being able to live out what one regards as a worthwhile life – not if there were a hundred neighbours upset and distressed, or a hundred thousand, or a million.
Griffin’s notion of discontinuity is complex. He is not claiming that ordinary upset or distress is morally insignificant, nor that living out what one regards as a worthwhile life is an inalienable value. Instead, what he is claiming is that no amount of instances of a mild level of upset and distress, even though they do possess some moral value, can ever morally outweigh a strong violation of the freedom to live as one pleases.
At first this might seem simply as if Griffin is incorporating a non-consequentialist rule forbidding certain kinds of trade-offs. But this is not the way he sees it. From his point of view, this kind of discontinuity in moral values derives directly from discontinuities within our very own preferences. We would not, he wishes to claim, ever trade away a lifetime of the freedom to live what we regard as a worthwhile existence in order to avoid any amount of ordinary upset and distress. We would not because even though we attach value to the avoidance of such upsets, these cases involve what he calls ‘the suspension of addition’:
…we have a positive value that, no matter how often a certain amount is added to itself, cannot become greater than another positive value, and cannot, not because with piling up we get diminishing value or even disvalue…but because they are the sort of value that, even remaining constant, cannot add up to some other value…’
This, he believes, shows a basic discontinuity in the relative importance of the preferences for these two goods, which will be reflected in a preference-based utilitarianism by no amount of one ever being able to outweigh the other. The admission of such discontinuities, he believes, ‘is compatible with utilitarianism; it does not even introduce an incomparability; it is indeed an especially emphatic comparison.’
Now, I am not sure whether our preferences really do display such discontinuities, and I am certainly not sure if a choice between a lifetime free to live as one pleases and freedom from an infinite amount of normal upset and distress makes sense (who, after all, has ever been subject to an infinite amount of normal upset and distress and is thereby able to make an informed decision about its disvalue?). I simply wish to note that whatever one thinks of Griffin’s notion of discontinuities, it cannot form a theoretical basis for the ITA or the IPA.
In regards to the IPA, this should be obvious. Griffin’s view attaches moral value to all preferences. All else being equal, he would prefer fewer busybody neighbours to be upset than more. And in regards to the ITA, the matter is also relatively straightforward. First, the unacceptability of trade-offs to a single individual does not seem to align at all with the kinds of trade-offs generally assumed to be the target of the ITA. We might, for example, voluntarily undergo a large amount of suffering in order to obtain a sum of money. But it is doubtful a proponent of the ITA would accept that this means it will be justified for someone to gain this sum of money at the expense of someone else’s suffering. Conversely, we probably would not ever trade the use of our legs for Arts funding. Yet this is the kind of trade-off that occurs when a government diverts funding from road authorities to the Arts, and few see this as being immoral. And second, even if Griffin is right that our preferences do contain discontinuities, and even if these discontinuities do define certain kinds of illegitimate trade-off (such as trading a life of liberty for normal upset), the only thing ultimately making such trade-offs illegitimate on his view is that they are not productive from a utilitarian standpoint. Within the stated example, for instance, it is the strength of the preferences involved that counts, not any other facts about the situation. Using the notion of discontinuity as a theoretical basis of the ITA will therefore allow its proponents to delineate a kind of illegitimate preferences, but this will certainly not be the category they have in mind, and would only be achieved at the expense of adopting a view based on the very theory they wish to refute.
Non-Standard (Non-Consequentialist?) Consequentialism
Neither Sen nor Griffin’s theory, then, can form a coherent theoretical basis for the ITA or the IPA. And much the same will apply, I believe, to virtually any plausible version of plural consequentialism. So long as either of the classic utilitarian values of preference satisfaction or happiness are included within a mixture of mutually substitutable values (which as far as I am aware they always have been), then no kind of trade-off or preference will be forbidden.
As William Shaw has noted, however, there are some who consider their views consequentialist who are not committed to this kind of mutual substitutability of all values. On these views, which Shaw terms ‘non-standard consequentialism’, rules are incorporated within consequentialist systems to govern the ranking of consequences. For example, a ranking system might include a rule that while well-being is recognised to have moral value, a consequence in which one had traded torture for well-being should always be ranked below a consequence in which one had not made such a trade-off. I tend to agree with Shaw, however, that this line of thought seems to lead us towards a collapse of the distinction between consequentialist and non-consequentialist views, and so think it may be more trouble than it’s worth. For the purposes of this paper, then, I will simply use the word consequentialism to mean consequentialist systems such as Griffin’s or Sen’s in which all moral values are substitutable, deontology to mean any rule-based departure from these views, and will look upon systems that combine the two as being just that – combinations of consequentialism and deontology, rather than instances of ‘non-standard’ consequentialism.
Deontology: Rules OK?
In order to establish a theoretical basis for the ITA and the IPA, then, we need some way of delineating illegitimate kinds of trade-offs or preferences over and above those ruled out by utilitarianism. And as we have seen, the workings of consequentialist views make it very difficult for them to do this. This is why we must look to deontological views to theoretically underpin the ITA and the IPA.
I should note at this point, however, that while I will seek to show that there is also no deontological view that can provide a theoretical basis for the ITA and the IPA, this argument will necessarily be of a different sort to those used in discussing consequentialist views. For while my aim in regards to the latter was to show that it is in fact incoherent to hold it as a basis for base the ITA or the IPA, no such argument will work against deontological views. These views, as we will see, are perfectly able to delineate context-independent categories of illegitimate trade-offs or preferences. So rather than asking whether deontological views can theoretically underpin the ITA and the IPA, I will now need to simply question whether they can do so in a plausible fashion – whether the explanations offered by these views as to which trade-offs and preferences are morally illegitimate are ones we can honestly accept. I believe that they are not.
Nozick: Deontology on Steroids
Given their ubiquity, it is actually quite surprising how few attempts have been made to provide the ITA and IPA with a firm deontological grounding. And this is especially true of the ITA. Very few philosophers have actually tried to set out principled definitions of trade-offs that are morally illegitimate above and beyond the kind ruled out by utilitarianism. For as we will see, doing so is fraught with difficulty.
The first view that deserves a (brief) mention in this regard is the kind of libertarianism espoused by Robert Nozick. Basing his view upon the Kantian injunction that we must always treat humanity ‘never simply as a means, but always at the same time as an end’, Nozick proposed that there are certain absolute constraints upon our actions. These constraints, he claimed, demark certain near-absolute rights that can simply not be justifiably violated, except in extreme cases in which doing so would prevent a ‘catastrophe’ (which he has reputedly explained to mean something on the scale of a nuclear holocaust). They cannot even be violated, he believed, if doing so would prevent a much larger number of violations of the very same right – the important thing on this view is to keep one’s own hands clean. To Nozick, then, illegitimate trade-offs are any that involve the violation of such constraints for anything less than the avoidance of a catastrophe.
Yet this is an incredibly radical moral theory. For example, one of the interests protected by Nozick’s proposed ‘inviolability of persons’ are property rights. He would say, then, that it is morally wrong to take a Jet Ski from a pier in order to save a drowning family, or to steal from one person’s wallet in order to pay the crazed drug addict who is threatening to kill another person unless they are given ten dollars. In each case we would be violating someone’s property rights, and therefore treating them as a ‘means’ to help others, which his view forbids. This position also condemns the welfare state and non-voluntary taxation for public goods such as roads and schools, assigns no value at all to equality, and disavows any and all moral obligation human beings might have to help each other out in any way at all.
Nozick’s is not, then, a view that many will be comfortable with. For rights, it seems obvious to most of us, can be violated in degrees, with varying moral implications. In the case of property rights, for example, violations can range from something as serious as stealing all of another’s possessions to something as innocuous as eating a grape in a supermarket. It appears silly, then, to suppose that any violation of these rights, no matter how small, cannot be justified by anything less than the avoidance of a catastrophe.
Nozick claims that his view, unlike consequentialism, recognizes fact that each of is ‘a separate person’. He writes that:
There is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others…He does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him…
Yet if Nozick were serious about this statement, it is unclear why he would assent that our rights could ever justifiably be violated, even to avoid a catastrophe. For when you steal my grape to avoid a catastrophe (or more realistically, shoot down the hijacked plane I am on that is heading towards a nuclear reactor), I will not necessarily benefit from the overbalancing good. So what has changed? Why is it now OK to use me to benefit others?
If the separateness of persons does not set absolute constraints upon our behaviour, and rights can be violated to varying degrees, then, there seems to be little stopping us from taking a Jet Ski to save a drowning family or ten dollars to save a life, and defending our action on the basis that a small violation of a property right is warranted by the value of these consequences. Nozick may disagree with our intuitions regarding the respective moral value of the rights infringements and the lives saved by them (Nozick may disagree with virtually everyone’s intuitions regarding this matter), but as he does not commit to the absolute inviolability of rights, he cannot argue from the fact that their violation uses some for the benefit of others to their moral wrongness, for in some cases using people is permissible even on his view. And surely the only reason we could accept that it is wrong to take a Jet Ski to save a live would be a belief in the absolute inviolability of rights. Without this belief, rights become just one moral value to weigh against others, and most of us, I would suggest, have intuitions that tell us that they possess nowhere near the immense moral weight imagined by Nozick. So while his view can provide a theoretical basis for the ITA, it is simply not a plausible one, as it relies upon the placement of either a dubiously large disvalue upon the violation of rights, or conversely a dubiously small value upon the prevention of bad outcomes, such as deaths.
Another deontological view that attempts to set out guidelines demarking illegitimate trade-offs is that proposed by John Mackie. Like Nozick, Mackie seeks to establish a view that would recognise the separateness of persons, yet his view derives different conclusions from this separateness. Instead of Nozick’s near-absolute prohibitions upon treating others as means, Mackie’s theory is built upon an attempt to honour, as far as possible, the notion that ‘everyone should have a fair go.’
His first step in this regard is assigning to each person some basic ‘prima facie rights’. Here he includes rights to life, liberty, health, the pursuit of happiness, property, equal access to natural resources, the ‘fulfilment of reasonable expectations based on a fairly stable system of laws, institutions and practices’, and finally ‘a right – which, unlike the others, can not be prima facie but absolute – to equal respect in the procedures that determine the compromises between the other prima facie rights.’
Unlike Nozick, Mackie’s position recognises that these rights will conflict, and that sometimes it will be necessary to violate some of them in order to protect others. He insists, however, that this process should not follow a utilitarian-type method of maximising the overall amount of rights fulfilled, but must always follow a principle that any infringements of rights should as far as possible be shared equally between people:
Conflicts between these prima facie rights might be handled by a utilitarianism of rights, so that what would count as the ideally just arrangement would be that in which total right-fulfilment was maximised, or total rights-infringement minimized. Alternatively, they might be handled by assuming that, ideally, one person’s rights should not be infringed more than another’s. Again the two methods are not even extensionally equivalent, and again I suggest that the second is the more attractive.
If we accept this principle, however, we still need a way of comparing the relative importance of different rights. For example, if we do not know how much of an infringement of the right to health is equal to a given infringement of the right to liberty or property, we will be unable to mediate conflicts between them, such as might occur when debating the morality of funding healthcare systems via public taxes. Mackie addresses this problem when he writes:
…we might think in terms of a model in which each person is represented by a point-centre of force, and the forces (representing prima facie rights) obey an inverse square law, so that a right decreases in weight with the remoteness of the matter on which it bears from the person whose right it is. There will be some matters so close to each person that, with respect to them, his rights will nearly always outweigh an aggregate of other rights…
On Mackie’s view, then, people are assigned certain rights, whose status as a right is derived from how central an interest to that person it protects. And when these rights conflict, the ideal solution will be one in which no ones rights are infringed more than another’s.
Yet this still leaves many questions unanswered. For say we have a dilemma in which we can either infringe person A’s highly central right or a group of people B’s less central right. In this situation it is impossible for us to infringe everyone’s rights equally – we can either leave person A’s rights perfectly fulfilled while group B suffers an infringement, or vice versa. So what should we do? Mackie has said that there will be some rights that will ‘nearly always’ outweigh an aggregate of other rights, but it is not clear what this means. He clearly does not want to say that such conflicts should always be resolved by fulfilling the more central right, and indeed, such a claim would seem absurd, as it would make it preferable for, say, a million individuals to suffer a particular level of rights infringement than for a single individual to suffer a marginally worse infringement.
But without this claim, it is not clear how Mackie avoids reverting to a utilitarianism of rights in such situations. For if the resistance of the more central rights to trade-offs with less central rights lies simply in their greater importance to us, then even within a utilitarianism of rights there will also be some claims that will ‘nearly always’ outweigh aggregates of others, as our preferences to have claims fulfilled will increase along with their centrality. And even if we added some kind of additional value to more central claims over and above our preferences, this would seem to simply render our system a plural consequentialism of rights, with an independent value added onto more central claims that might still be overridden by a greater aggregate of less central claims in some cases, which is a proposition Mackie rejected. Yet it’s unclear what Mackie really wants to say here. If he wishes to avoid a utilitarianism or plural consequentialism of rights in such situations, he will need to say much more than he has about them.
Another question Mackie fails to sufficiently address is how to draw a line between what counts as a right and what does not. For his list of rights is entirely vague. There are very few claims a human being could make that could not be made to somehow fit into categories such as rights to ‘liberty’, ‘the pursuit of happiness’, or ‘the fulfilment of reasonable expectations based on a fairly stable system of laws, institutions and practices’. An individual’s desire to eat a certain flavour of ice-cream, for example, could fit any of these categories, but should surely not be considered a right, for if this were a right, what would not be a right?
Unless Mackie has a way of delimiting the boundaries between rights and non-rights, then, his system will incorporate virtually any claim a human being can make. Yet attempting to define such boundaries is problematic. If, for example, we set a certain level of centrality of claims that defined the right/non-right boundary, we then need to stipulate that no claims falling above this threshold are tradeable with claims below it, or the boundary will be meaningless. But then we are left with the result that a single claim marginally above the threshold will be immune to trade-offs with any amount of claims marginally below it, which seems absurd, especially when we consider that similar kinds of trade-offs will be perfectly legitimate between claims marginally above the threshold and other claims marginally more central than them. It will also not help to propose prohibitions on trade-offs between claims of vastly differing levels of centrality. For if we have a set of claims A, B, C…Z inhabiting a continuum of centrality where A is the most central and Z is the least, we cannot admit that every claim is tradeable with its neighbouring claims without simultaneously admitting that A is tradeable with Z. For if I can trade As for an aggregate of Bs, and I can likewise trade Bs for an aggregate of Cs, and Cs for Ds and so on, it follows that I can eventually end the series of trades that started with As with a very large amount of Zs. There must be a cut-off point at some stage, but Mackie’s picture does not make clear either the nature or level at which this cut-off point might be.
These difficulties make it very difficult to formulate a theoretical basis for the ITA using Mackie’s view. For if it is not clear when rights claims are or are not tradeable with an aggregate of lesser rights claims, and it is not clear what does or does not count as a right claim, it is consequently not clear what, if any, trade-offs will be seen as illegitimate on Mackie’s view.
Yet there is at least one principle we can deduce from Mackie’s view that will provide a clear basis for the ITA. As we saw above, his view holds that the ideal solution to conflicts of rights will be ones in which no one’s rights are infringed more than another’s, meaning that if we can share a burden of rights infringements equally, we must do so, even if this means that the overall aggregate burden of infringements will be greater than it might otherwise have been. He will therefore regard as illegitimate any trade-off that results in an unequal infringement of rights when an equal infringement might have been achieved.
But it seems doubtful that we would always insist on such an equality of burden-sharing regardless of the level of overall burden caused by our insistence. This would make it preferable, for example, for any amount of individuals to suffer the infringement of a given right than for any single one of those individuals to suffer the infringement of a marginally more important right. For example, say a city’s water supply had been poisoned so that its ingestion led to a serious illness, but we had an antidote that would make the water safe for everyone except a small minority, who owing to their genes would now incur a slightly more serious illness by drinking the treated water. Mackie’s view implies that it would be wrong to apply this antidote to the water, for doing so would lead to an unequal rights violation – the right to health –when an equal one had been possible.
But this seems wrong. If there were only a slight degree of difference between the more and less serious illnesses, and the minority was a small one, say 0.1% of the city’s population, it seems just obvious that we should apply the antidote and save the vast majority from illness, even if that would mean inflicting a slightly worse illness on a few. It also seems absurd that Mackie would disagree with this, given that his view would be open, as discussed above, to a trade-off between a few cases of a serious disease for a large number of cases of a slightly less serious disease if no equal rights infringement were possible. Despite his assertion that his view ‘is not saddled with the embarrassing presumption that one person’s well-being can simply be replaced by that of another’, then, the only clear deviation we actually find from this presumption in Mackie’s theory, and the only clear principle it provides us regarding illegitimate trade-offs, is unacceptable. Certainly, then, such a view cannot provide a theoretical basis for the ITA.
As a result, his view will likewise be unable to provide an acceptable basis for the IPA. Mackie himself has not written about the problem of illegitimate preferences, but Will Kymlicka has suggested that his view of ‘fair shares’ might be used to define a category of ‘selfish’ preferences that should be denied moral weight. Yet if deviations from the dictates of Mackie’s view can be morally justified – as seems obvious in the example just given – then surely preferences for such deviations can be morally unproblematic as well.
Deontology: Rawls OK?
No discussion of the ITA and the IPA could be complete without mentioning John Rawls, who is without a doubt one of utilitarianism’s most influential critics. Concerned about both illegitimate trade-offs and preferences, Rawls sought to devise a standard for judging political institutions that would be a more intuitively fair, and thus superior, alternative to the utilitarianism that had previously dominated political philosophy. To this end, his ‘Theory of Justice’ provided both a method for deriving such a standard – the original position, which seeks to demonstrate that certain principles would be agreed upon by people ignorant of their own specific identity and therefore unable to argue for principles biased in their own favour – and a final set of principles derived via this method, which state first that liberty must be equal for all and as extensive as possible, and second that any social or economic inequalities must benefit those least advantaged by them, and be open to all under fair equality of opportunity (with the first principle prioritised over the second in any conflicts).
Yet despite his strenuous objection to it, it is actually quite difficult to tease out direct criticisms of utilitarianism from Rawls’ work. For utilitarianism is a complete moral theory, and his Theory of Justice, he claimed, was not. In his view, a conception of political justice could not be founded upon any particular moral theory, but must instead work to achieve a workable consensus between competing moral theories within a society. His principles, then, were simply an attempt to achieve a consensus drawing ‘solely upon basic intuitive ideas that are imbedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretation’, which is only intended for use within just such regimes. They make no claims, he insisted, to representing universal truth.
If this is so, then it is certainly hard to see how Rawls’ theory could provide us with arguments against utilitarianism. For if its principles are simply the result of a social consensus and make no claim to being moral truth, it is not problematic for a moral theory to conflict with them, for it is an open question whether doing so is the right or wrong thing to do. To make a moral argument from consensus-based principles, we would need stipulate that it is wrong – universally wrong – to act against principles of justice that have been derived via social consensus. But this would be an odd claim, because one can imagine all sorts of counterintuitive principles that might achieve social consensus in some contexts, but which we believe should be violated. Rawls therefore seems to have somewhat deal himself out of our debate about utilitarianism as a moral theory as a result of his modesty.
Yet others have been less circumspect in claiming that Rawls’ stance might provide a direct challenge to utilitarianism. Bernard Williams, for example, claimed that ‘…the kind of lexicographic ordering which Rawls and others have employed – by which some criteria of preference can be brought into play only after others have been satisfied – is more realistic and sophisticated than utilitarianism’s gross insistence on summing everything.’ Following this line of thought, we might use Rawls’ principles to underpin the ITA by claiming that any trade-off which violates them is illegitimate. Now, admittedly, given the restricted scope of application for which Rawls’ principles are intended, this will be a somewhat obscure argument. But it will be a sound one nonetheless. It will hold that it is wrong for the principles governing the design of social institutions within constitutional democracies to prioritise gains in welfare or equality over the provision of liberty that is equal for all and as extensive as possible. And it would therefore argue that utilitarianism is unacceptable by virtue of its openness to such a prioritisation.
Yet it is doubtful that such an argument will work, for even with this restricted scope, it is still relatively easy to think of counterexamples to Rawls’ principles. Say, for example, if a slight lessening of the overall levels of liberty could produce a large gain in well-being within a constitutional democracy. A reasonably realistic case might be if it could be shown with certainty that the amount of advertising a given population was being exposed to was causing a decrease in their general well-being and happiness yet not, strictly speaking, affecting their liberty. Rawls’ principles imply that it would always be wrong in such a case to place restrictions upon industries purely to enhance the happiness of a society. They imply, further, that doing so would be wrong no matter how much happier this population would be under such controls, and no matter how large a majority of the population desired them. But this seems wrong – surely a society can decide for itself to forego some amount of liberty for well-being without committing a moral wrong. Other counterexamples might involve a slight inequality of liberties that would lead to a large gain in overall well-being. So if, say, imposing an unequal tax burden on the most wealthy members of a society could lift many people’s well-being by providing them with education and healthcare, or if granting special above-average privileges to selected talented individuals would foster their talents and lead to technological or artistic advances that would benefit many. In each case, deviations either from Rawls’ principles or his lexical prioritising of the first seem perfectly legitimate, especially when those deviations express strongly-held preferences of large majorities of the communities in question.
It is doubtful, then, that any lexically ordered principles will provide us with a satisfactory method of defining illegitimate trade-offs – even within the limited scope of the social institutions of constitutional democracies, let alone within all the other contexts in which we will need moral guidance regarding trade-offs. Consequently, Rawls’ principles are a doubtful candidate for providing a theoretical basis for the ITA. And much the same will go for the IPA too, as the attempts Rawls made to define illegitimate preferences were built directly upon his principles. ‘The principles of the right, and so of justice,’ he wrote, ‘put limits on which satisfactions have value; they impose restrictions on what are reasonable conceptions of one’s good.’ Just as with Mackie, however, if there are occasions when it is morally justifiable to violate Rawls’ principles (as it seems there are), then we surely cannot maintain that it will always be morally illegitimate to desire their violation. And again, we are left without a workable theoretical basis for the ITA or IPA.
Another influential writer in areas relevant to both the ITA and the IPA is Ronald Dworkin. I will focus on his work regarding the latter, however, for while we can find support for the ITA in his Taking Rights Seriously where he implies that the ‘most important and fundamental’ of our rights cannot be traded simply to obtain ‘a clear major and public benefit’, I will repeat myself if I address these arguments here.
Dworkin notes that utilitarianism is at its core an attempt to treat people equally. It takes everyone’s interests and preferences into account equally, and then attempts to fulfil as many of these preferences as possible. The problem with this, however, is that if we take everyone’s preference into account, we will have to give moral weight to preferences that deny the very belief upon which our theory is based. For not everyone believes that all preferences should be taken into account. Some, for example, think that the preferences of black or female people should not matter. Conversely, some may think that the preferences of certain others are more important than everybody else’s.
Dworkin calls these ‘external’ preferences. In contrast to ‘internal’ preferences, which simply concern things or states of affairs that one desires to attain, external preferences concern what others attain. In his view, external preferences should be excluded from consideration by utilitarianism, as they corrupt its ‘egalitarian character’ and render it, ‘for all practical purposes’, the same as a non-egalitarian version of utilitarianism which actually does give some people’s preferences more value than others. Yet Dworkin himself did not target this argument at utilitarianism as a moral theory. Instead, he simply proposes that the exclusion of external preferences is an improvement that might be made to a political system founded on utilitarian principles. There are, however, two distinct ways we could use Dworkin’s argument to underpin versions of the IPA.
The first is to argue that its acceptance of external preferences highlights a contradiction within utilitarianism. This is suggested by Will Kymlicka, who argues that ‘…if others think I am unworthy of equal concern, then I will do less well in the utilitarian aggregation. But utilitarians cannot accept that result, because utilitarianism is premised on the view that everyone ought to be treated as equals.’
Yet I think this is wrong. The way utilitarianism treats everyone as equals is to guarantee that all preferences, no matter whose they are, are taken into account equally. Accordingly, preferences for another person’s preferences to be discounted are excluded, as equal moral weight is inevitably given to all preferences regardless of how many external preferences exist that this not be the case. Admittedly, if enough people have a preference that we act as if we had disregarded someone’s preference, then utilitarianism may end up telling us to so act. But there is no contradiction here, because while utilitarianism is premised on treating people as equals, it is not premised on treating people equally. And unequal treatment, if it occurs, will never be the result of having failed to give equal weight to all preferences. One might disagree with utilitarians that theirs is the best way to treat people as equals, or deplore the fact that they might justify treating people unequally, but no one can deny that everyone is treated equally within utilitarian procedures – if not by their results.
The second IPA-style argument we might make using Dworkin’s view is simply that just as excluding external preferences improves utilitarianism as a political constitution, so too does it improve it as a moral theory. And if we have a better moral theory after excluding external preferences, then obviously such preferences are category of illegitimate preferences existing over and above those excluded by utilitarianism that the IPA seeks.
But it is not at all obvious that excluding external preferences does improve utilitarianism as a moral theory. For there are occasions when external preferences, or at least the happiness resulting from their fulfilment, seems morally compelling. Say, for example, a soldier is contemplating whether to visit the deathbed of the father of a fallen comrade. The soldier knows that the old man has only days to live, and that he can only die happy if he hears that his child died in battle rather than being captured and tortured. Yet the soldier has a dilemma, because his wife has also asked him to rent a movie before returning home. It is not that important to her, but it is nonetheless something she would like for herself. The point here should now be obvious. If external preferences are excluded from moral consideration, the satisfaction the old man will gain at hearing of the manner of his son’s death will also be excluded, for denying consideration to external preferences but allowing it to satisfaction derived from their fulfilment would defeat the purpose of the exclusion. All else being equal, then, the soldier will be morally compelled to fulfil his wife’s internal preference and let the old man die unhappily.
Yet could this be right? Surely the happiness of the old man, even though derived from the fulfilment of an external preference, is of at least some moral concern. And we cannot escape this conclusion, I believe, by supposing that it is some other kind of internal preference working on our moral intuitions here, such as, say, the old man’s internal desire ‘to know the truth’. For consider a case in which the son had been tortured, but the father was dying quite happily under the assumption that he hadn’t, yet possessed a weak desire to know for certain that this was the truth. In this case, the exclusion of external preferences would mean that the old man’s desire to know the truth would compel the soldier to tell him about his son’s torture, regardless of the misery such knowledge would cause. That misery would be derived from the non-fulfilment of an external preference, and would therefore necessarily be denied moral weight, lest the entire point of the exclusion of external preferences again be lost. Again, however, this seems to be just the wrong moral conclusion. It appears just obvious that this misery should have some moral importance.
I conclude, then, that Dworkin’s suggestion that external preferences should be excluded from utilitarian calculations does not provide a plausible theoretical basis for the IPA, for it prevents us acknowledging much happiness or misery that should be granted moral weight. We need to be much more specific, I believe, about which external preferences should be excluded if we want an acceptable theoretical stance.
Sadistic Preferences: The ITA and IPA’s One True Friend
One more specific kind of external preference we might wish to exclude from holding moral weight are cruel or sadistic ones. Surely, we might argue, we do not have to check the strength of the sadistic murderer’s preference to see their victim suffer before deciding that it would be wrong for this preference to be fulfilled. And nor do we have to, in the words of Griffin, ‘count heads’ in such a situation. The murder could not be made right no matter how many sadists’ preferences it satisfied, nor would it be made any less wrong by virtue of satisfying a greater amount of sadistic preferences. These considerations indicate that utilitarianism is wrong to allow such sadistic external preferences moral weight, and thus set out quite neatly a category of illegitimate preferences over and above those ruled out by utilitarianism.
There are a few ways utilitarians can respond. J. J. C. Smart, for example, proposes that our intuitive revulsion at sadistically derived pleasure – which for all important purposes is equivalent to the satisfaction of sadistic preferences – is a natural result of the inevitably bad consequences that result, in reality, from such pleasures. He suggests this is ultimately a confusion, however, that results from the equation of something that in reality is always ‘extrinsically bad’ with the state of being ‘intrinsically bad’. ‘Pleasures are bad’, he writes, ‘only because they cause harm to a person who has them or to other people’. Evoking an example first proposed by G. E. Moore, Smart proposes that if we isolated sadistic pleasures from all negative consequences, we should afford them at least some positive moral weight. A universe containing one happy sadist who is wrongly convinced that others are suffering, he claims, is better than a universe with nothing at all, and better than the same universe where the isolated sadist is made miserable by the belief that others are well.
Yet while there is perhaps something admirable about Smart’s concern for the happiness of this lone twisted individual, and I feel that I may even share his intuitions here, it is obvious that not everyone will do so. Moore himself, for instance, found it simply self-evident that such an isolated instance of sadistic pleasure would constitute a disvalue – in his view, an empty universe is clearly the morally preferable prospect. Now, I doubt that we can go this far, as assigning sadistic pleasure disvalue would entail the possibility of improving a universe by increasing the amount of actual pain in it but simultaneously removing a greater aggregate disvalue of sadistic pleasure, and that seems to be a wrong-headed trade-off. But Smart and I will clearly have our work cut out in eliciting intuitions against simply ruling sadistic preferences out of moral consideration, positive or negative, altogether.
I do, however, think that a principle of disregarding sadistic preferences is likely to be gratuitous, and of no consequence to utilitarian calculations. For while preferences for others to suffer are fairly common, purely sadistic ones are rare. The parent who smacks their child has a preference for the child to suffer, but we do not call this preference sadistic. Nor, I believe, can we even call the preference of the average suicide bomber a sadistic one, though it may have sadistic elements. In both cases, the preferences to inflict suffering have many more reasons behind them than simply sadism, and these reasons need to be taken into account before condemning or justifying the actions in question. Most examples, I suggest, of what will be assumed to be the strongest or most plentiful sadistic preferences, such as that of the terrorist or the society pining for the murder of its former dictator, will be of these kinds. In such cases it is simply unclear what purely sadistic core will remain once these preferences are stripped of their other, non-sadistic motives.
But while rare, purely sadistic preferences are certainly out there, and the main arguments as to why they will be excluded in practice by utilitarianism are well-worn. The centrality and importance of the preference not to suffer makes it of exponentially greater strength than the desires of the sadist for one to suffer. Moreover, contemplating the long-term effects of our actions makes it obvious that sadistic preferences can and should be stamped out if we wish to best promote utility over the long term. Even if we granted, for example, that we were living in a world where, say, allowing someone to be fed to lions would produce the greatest sum of utility today by fulfilling widespread sadistic preferences, we would still need to ask whether this was the right decision. Provided we had minimal powers of reflection, we would be aware that it is highly probable that refusing to condone such spectacles will lead to the sadistic preference for them adapting, and eventually being fulfilled by more innocuous entertainments (and would also be aware of the relative inelasticity of the preference not to become lion food). The utilitarian choice, then, would still be not to condone lion-eatings, as the long term disutilities this would prevent would likely outweigh the short lived disappointment visited upon those with the current sadistic preference.
But while I find these arguments convincing, I recognise that many may not. And I also recognise that the exclusion of sadistic preferences is a simple and powerful enough principle to be at least a candidate for being a component of an ultimate moral theory, rather than simply an ad hoc and gratuitous addition. So ultimately, I cannot claim that the IPA is completely without theoretical support. And this concession carries over to the ITA as well. If someone believes that sadistic preferences are illegitimate, they will also be free to believe that trade-offs resulting from assigning moral weight to sadistic preferences will be likewise illegitimate, and they will have precisely what is required by both the ITA and IPA – categories of both illegitimate trade-offs and preferences above and beyond those recognised by utilitarianism.
Yet if an objection to sadistic preferences is the only firm theoretical ground on which the ITA and the IPA can be based, utilitarianism deserves nothing like the disrepute that these arguments have brought unto it. For so conceived, they do little or nothing to argue against utilitarian judgements in any conceivably real-life situations, and fail completely to explain the concepts like equality, justice, rights and fairness with which it has so frequently been bludgeoned by philosophers. At most, they justify only the slightest, and probably gratuitous, shift away from utilitarianism – perhaps to a view like John Harsanyi’s, who responded to concerns about sadistic preferences simply by conceding the point and excluding such preferences from holding weight within his utilitarian system. And while I recognise that the list of views I have examined above is by no means a comprehensive survey of all the moral theories that might be used to underlie objections utilitarianism – for example, I have left out virtue and contract-based views – I do believe I have covered its most important opponents.
As stated at the outset, then, I believe that both the academic and public discussion of utilitarianism has veered off course, and has quite possibly caused a lasting detriment to the moral progress of our culture by doing so. Utilitarianism, I feel, has important lessons to teach us about our responsibilities to both our fellow people and our fellow animals, and these lessons have still just begun being absorbed into human society. It is a shame, then, that so many people in both public and academic life have found it so easy to summarily dismiss utilitarianism as an unacceptable moral theory. This is especially regrettable, I believe, when so much of this dismissal has been based, as I have argued, upon arguments with virtually no firm theoretical grounding. I hope, therefore, that time and careful thought will be able to change this situation, and that I have said enough here to convince the reader that they just might be able to do so.
 “RSA animate – The Empathic Civilization” (Royal Society for the encouragement of Arts, Manufactures and Commerce, May 6, 2010). http://comment.rsablogs.org.uk/2010/05/06/rsa-animate-empathic-civilisation/ (November 23, 2010).
 Clive Hamilton, The Freedom Paradox: Towards a Post-Secular Ethics (Crows Nest: Allen & Unwin, 2008), 157.
 John Rawls, A Theory of Justice (Oxford: Clarendon Press, 1972), 3-4.
 John Mackie, “Can There Be a Right-Based Moral Theory,” in Theories of Rights, ed. Jeremy Waldron (Oxford: Oxford University Press, 1984), 171-172.
 Robert Nozick, Anarchy, State, and Utopia (Oxford: Blackwell, 1974) 28-33.
 Rawls, A Theory of Justice, 31.
 Sen tended to use the term ‘desire’ rather than preference, but I will here use the two interchangeably.
 Amartya Sen, “Well-Being, Agency and Freedom: The Dewey Lectures 1984,” The Journal of Philosophy 82, no. 4 (1985): 192-195.
 Ibid, 200-202.
 Amartya Sen, “Rights and Agency,” Philosophy and Public Affairs 11, no. 1 (1982): 14-18.
 Ibid, 18-32.
 Amartya Sen, “Utilitarianism and Welfarism,” The Journal of Philosophy 76, no. 9 (1979): 473.
 Sen, “Rights and agency,” 39.
 I will not have the space to properly discuss either of these considerations here (though I do touch upon preference strength and robustness below in “Sadistic Preferences: The ITA and IPA’s One True Friend”). Briefly, they are the common sense notions that protecting rights and equality will have great instrumental value within a utilitarian system that takes account of the strength of preferences, for those things we call rights will naturally align with our strongest preferences, and that the distribution of a given amount of most kinds of goods will tend to produce more utility when they are distributed to an individual who has less of the good in question prior to the distribution.
 Amartya Sen, “Plural Utility,” Proceedings of the Aristotelian Society 81, (1980-1981): 201-204.
 James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 73.
 Ibid, 63-66.
 Ibid, 70-73.
 Ibid, 70.
 Brad Hooker, “Impartiality, Predictability, and Indirect Consequentialism,” in Well-Being and Morality: Essays in Honour of James Griffin, ed. Roger Crisp and Brad Hooker (Oxford: Clarendon Press, 2000), 141.
 Griffin, On Human Rights, 80.
 Which, incidentally, was the sense discussed by Phillip Petit in the only reference Griffin provides regarding his distinction between the promoting and respecting of values [Philip Pettit, “Consequentialism.” in A Companion to Ethics, ed. by Peter Singer (Oxford: Blackwell, 1981), 230-240.]
 Griffin, Human Rights, 68.
 James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Oxford University Press, 1986), 85-88.
 Ibid, 85-86.
 Griffin, Human Rights 68.
 I find it doubtful, however. For Griffin’s model seems to lead to the same intuitive difficulties regarding borderline cases I discuss in reference to Mackie’s rights-based view. For example, at what point along a continuum of importance will a claim gain or lose discontinuity? Will claims marginally on opposing sides of this threshold be discontinuous, and if not, how can we avoid the slippery slope by which the tradability of adjacent values on a continuum implies the tradability of the first for the last? Griffin suggests that we could halt the slide ‘…at the point along the line where people’s capacity to appreciate beauty, to form deep loving relationships, to accomplish something with their lives beyond just staying alive…all disappear.’ (Griffin, Well-Being, 341.) But to suppose the existence of such a point – even if unknowable – where even any single one of these values just disappears is astoundingly farfetched, let alone supposing a point where all three of them will vanish together.
 Griffin, Human Rights, 68.
 The same will also go for the systems known as ‘prioritarianism’ which give greater weight to the utility that can be provided to those with lower current levels of utility (see, for example, Brad Hooker, “Rule Consequentialism”, The Stanford Encyclopedia of Philosophy (Winter 2008 Edition), ed. Edward Zalta, http://plato.stanford.edu/archives/win2008/entries/c onsequentialism-rule/.). As far as I can tell, these are not different from plural consequentialist systems that incorporate equality in any way that would prevent the same arguments made against Sen and Griffin’s views applying.
 William Shaw, “The Consequentialist Perspective.” In Contemporary Debates in Moral Philosophy, ed. James Dreier (Carlton: Blackwell, 2006), 7-8.
 Griffin, On Human Rights, 22.
 Nozick, Anarchy, State, and Utopia 28-33.
 Robert Nozick, “The Rationality of Side Constraints,” in Ethical Theory: An Anthology, ed. Russ Shader-Landau (Oxford: Blackwell, 2007) 565-568.
 Griffin addresses this point succinctly in Human Rights, 67.
 Nozick, “Side Constraints”, 567-568.
 John Mackie, “Rights, Utility, and Univerzalisation,” in Utility and Rights, ed. Raymond Frey, (Oxford: Basil Blackwell, 1985), 86.
 Ibid, 87.
 Ibid, 89.
 Mackie, “Can There Be a Right-Based Moral Theory”, 177.
 Ibid, 174.
 Ibid, 181.
 Will Kymlicka, Contemporary Political Philosophy: An Introduction (Oxford: Clarendon Press, 1990), 38-43.
 Rawls, Theory of Justice, 17-19.
 Ibid, 60-61.
 John Rawls, “Justice as Fairness: Political, Not Metaphysical,” Philosophy and Public Affairs 19, no. 3 (1985): 248-249.
 Ibid, 277.
 Smart, John, and Williams, Bernard, Utilitarianism For and Against (London: Cambridge University Press, 1973), 142.
 Rawls, Theory of Justice, 31.
 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 191.
 Dworkin does not articulate what these ‘most important’ these are, or how strong a violation of them cannot be traded for public benefit. But I sense that if he did, his view would face similar problems to Mackie’s. He would need, for example, to demarcate a line on the scale of rights’ importance that would divide those that are tradeable and those not, and this would lead to the familiar difficulties regarding threshold cases.
 Ronald Dworkin, “Rights as Trumps,” in Waldron, Theories of Rights, 154-155.
 Dworkin, Taking Rights Seriously, 235.
 Dworkin, “Rights as Trumps,” 154-155.
 Ibid, 157.
 Ibid, 164-165.
 Kymlicka, Contemporary Political Philosophy, 37.
 Smart and Williams, Utilitarianism, 26.
 George Moore, Principia Ethica (London: Cambridge University Press 1903; Reprint, London: Cambridge University Press, 1968), 210.
 Smart and Williams, Utilitarianism, 25.
 Moore, 210.
 John Harsanyi, Rational Behaviour and Bargaining Equilibrium in Games and Social Situations (Cambridge: Cambridge University Press, 1977), 62.