Not too long ago, one of my philosophical correspondents (“Pablo”) took up the question of justice (What is its source?) and utilitarianism. The ensuing discussion brought out some utilitarian claims on this issue and conceptual problems with the Utilitarian solution.

Pablo raises the problem of the source of ‘justice’ and offers his solution, which refers us to the cleansing work of science and to the utilitarian principle as a guarantor of justice:

“If justice is some kind of ideal, from where does it emanate? Is it already in our heads in some evolutionary way? Does a god place it there? Is it self-evident? Where?

My claim is simple (though I’m sure some would consider it simple-minded) but I think profound. Once science has erased all the obvious prejudices we humans have of one another, including the religious ones, then we can be sure what’s good for ourselves is also good for other members of society and this is the basis for justice as I see it. Once prejudices against African-Americans, women, Native Americans, Jews, et. al., have been undermined, then we can expect for others what we want for ourselves. It’s the Golden and/or Silver Rule writ large from the bosom of the utilitarian principle. We don’t need an ideal of any sort to follow; we just need to use a principle similar to Rawls with a view toward consequences that benefit all of society.”

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Some background for this exchange: Originally another of our correspondents, Spanos, had cited John Rawls’ theory based on the “original position,” as one attempt to give the source of ‘justice.’ But apparently Pablo does not see Rawls as providing what he, Pablo, seeks. Presently I shall set aside his reasons for discounting Rawls. Instead I will focus on Pablo claims: Science serves to prepare the way for justice; and the principle of utility provides a basis for justice.

Pablo makes the surprising claim that “science erases prejudices that humans have about one another.” This is interesting, since there’s much reason for doubting that science does any such thing. Science may provide us with certain knowledge and understanding about human beings and human society. Eventually this knowledge might contribute to a more tolerant, accepting attitude to those different from ourselves, and eventually humans might realize some degree of moral progress and a improve in their treatment of others. But the claim that science will erase all bias and prejudice strikes me as a great overstatement. However, for the sake of argument, let’s allow the possibility that “science erases all prejudices toward others.” Following this cleansing, Pablo tells us that we would work to realize for others the good that which we desire for ourselves.

Apparently the putative cleansing applied by science (the “erasing of all prejudices) would release a sense of fairness toward all fellow humans. We would desire that others be treated as we’re treated. But where did this ‘sense of fairness’ come from? From the scientific cleansing that Pablo postulates, of course. So, science, not utilitarianism, is the foundation for justice. The principle of utility is a principle of justice only when the people conceiving it and applying already have a notion of fairness. The principle of utility by itself does not guarantee justice or fairness, it only aims at the greatest good for the greatest number, which can leave many out in the cold.

Rawls presents a ‘theory’ of justice which is in some respects a consequentialist theory and in some respects a social contract theory. But it does not beg the question. As Spanos noted, Rawls imagines that a group of rational, self-interested persons would come up with rules for a putative society in which none of them would know what position they would occupy in that society. So each one has to come up with rules which treat every member of society fairly. But they do this only because they wish to invent a society in which each one of them, thinking primarily of his/her own self-interest, would get an even shake. They don’t do this because they already think that fairness should be evenly applied. The resulting ‘fairness’ follows from the rules that are created as a result of each rational, self-interested person calculating the arrangement that would insure that he/she would come out all right. This qualifies as a legitimate attempt to explain justice; it does not presuppose (beg the question on) justice.

Contrary to the Rawlsian theory, Pablo’s position appears to beg the question. For what he seems to say is that the principle of utility (greatest good for the greatest number) fairly applied (i.e., so that nobody is sacrificed for the good of the majority) is the foundation for justice. He now argues that a sense of fairness is built into the principle of utility. (He seems to have forgotten that he had found the source of justice in the “cleansing work” of science.) The principle of utility cannot explain justice if it presupposes justice.

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Pablo replied:

Juan asks: Doesn’t utilitarianism beg the question? Does it assume fairness in order to work?

My view is not question begging. Utilitarianism, essentially, has a built-in fairness since it advocates the greatest good for all. It is only fair that all should benefit from the rules and laws of society (each citizen counts as one under the principle.) Yes, it advocates minority rights but only because we are all minorities of some sort and because giving rights to all these minorities is for the greater good of society as a whole. However this does not guarantee individual the same rights for all members of society for obvious reasons. Some are criminals, some insane, some have beliefs which harm others (the KKK for example), those guilty of hate crimes, those in the country illegally, et. al. Since the rights of the above groups cause more harm than good, generally, we separate them from society; in other words, we punish them until or unless they can be rehabilitated (or become citizens). If the activity harms no one, then, clearly, it is to be allowed as an individual right. The principle of utility, however, is not always easy to apply and it could be used unjustly. We know when it’s unjust when we can determine the rule or law does more harm than good for the persons involved. This is precisely what we do in practice, and how new laws are made and applied. So how does this principle beg the question?

One problem with utilitarianism, brought up by a friend many years ago and others as well, was that of scapegoating. In the days of the wild west, the law-enforcing authorities would often find some disreputable person and accuse him of a crime which he did not commit. They did this so the people in the city could feel safer (clearly for the greater good of all). Even though there may have been little evidence the disreputable person was guilty, he was accused nonetheless. At the same time, the authorities also got rid of someone they didn’t like. Now, was that justice? How is utilitarianism to be applied in such a case (and such cases still exist today: the case of the four innocent college students accused of raping a girl was just such an instance. They were claimed guilty because of a prejudiced prosecuting attorney as you may recall).

There are a number of reasons for claiming an injustice here and from a utilitarian point of view. For one, the real criminal in the case of scapegoating is still out there and may well strike again. The problem of safety has not really been resolved and clearly that’s not for the greater good. Secondly, if (or when?) the knowledge about the real criminal comes out, the respect for law enforcement agencies will be quickly undermined (and could lead to taking the law in one’s own hand; vigilantism). That’s certainly not for the greater good. Also, even if neither of the two mentioned defenses turn out to be applicable, the authorities may well think it a good idea to do the same thing in other cases where they have trouble finding the real criminal. This habit would certainly lead to the problems mentioned in the first two cases sooner or later. So, in the long run, such practices would be unfair since they would, ultimately, lead to more harm than good. (There is also the psychological problem of the authorities having to live with a guilty conscience if they knowingly accuse and prosecute an innocent person.)

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Pablo has to decide whether he believes that the principle of utility can be the basis for justice or whether it already incorporates justice in its formulation. These are different positions, which Pablo states at different times.
He tells us first that his “..view, ,,is not question begging. Utilitarianism, essentially, has a built-in fairness since it advocates the greatest good for all. It is only fair that all should benefit from the rules and laws of society (each citizen counts as one under the principle.)”

This means that the principle of utilitarianism incorporates in its statement a statement of justice, “a built-in fairness” in that it “advocates the greatest good for all.” To me this asserts that the principle will always be applied fairly, so that everyone benefits. So stated it is just another way of stating the idea of justice, not a basis for justice. Pablo even suggests that this “built-in fairness” is an essential element of utilitarianism. This obviously states that utility includes a justice-feature from the beginning. Utilitarianism explains justice only in the sense that utility is qualified by a justice principle.

On the other hand, Pablo admits, while considering the problem of a convenient scape-goat, that the principle of utility “can be used unjustly.” This happens when someone’s application of the principle of the “greater good” requires that some individual or a minority group be scape-goated in order to maximize benefit for the rest of society. But how could this happen if the principle essentially has the “built-in fairness” which Pablo claims above? Can a rule which essentially includes a built-in-fairness element be applied unfairly? I would not think so.

My recollection is that predicate of the principle of utility (as stated by most utilitarians) is the “greatest good for the greatest number.” So the utilitarian action or rule is labeled a morally good act or policy because it results in the greatest good for the greatest number of those affected by that action or policy. We can imagine this working as a principle applicable in the real world; and applied in the real world it would sometimes result in benefit for the majority derived at the cost of others not benefiting or even suffering as a result. For example, a war necessary to defend the nation can presumably be justified on utilitarian ground. The nation as a whole benefits in not being destroyed by the enemy; but a good number of people (soldiers, victims of the war) must suffer as a result. To state the principle as one which realizes the “greatest good for all” is to lay down a rule which is unrealistic and inapplicable. How could we ever say that a specific action/rule is one that results in benefit for all affected by that action? A natural, even inevitable element of social-political life is that there are conflicts of interest between individuals or groups of people. Someone doing the best he can to treat everyone fairly will still do things do not maximize the interests of some people, even work contrary to some people’s interests. In other words, we cannot insure that a principle of action always results in “fairness” for all concerned. This is why the principle of utility is normally stated as that action-policy which brings about the greatest good for the greatest number, not the good for all.

Pablo goes on to explain that unjust applications of the utilitarian principle would inevitably result in bad consequences, which could be ferreted out by utilitarian principles. Yes, initially it might appear that unjust scape-goating of innocent persons will result in maximum benefit for the rest of society; but eventually this injustice would prove to have negative consequences for the general state of society (an example might be the treatment of Japanese Americans in the 1940s). So, on utilitarian grounds we could show that initially the utilitarian principle was not observed. I understand this is the gist of Pablo’s argument.

The problem here is that utilitarianism, as a principle that preserves justice, can only be defended by “just-so stories.” Yes, of course, if victimization of innocents was always exposed and always led to bad consequences for the perpetrators and for society, then we could say that utilitarianism always proves just. But it takes a very naive and trusting soul to buy all this; the real world does not work this way and often great injustice is the road to greater benefit and profit for those who bought the utilitarian policy in the first place. Those willing to scape-goat the defenseless are not always, maybe not hardly ever, exposed for their unjust acts. These “just-so stories” are really a flimsy ground on which to rest the argument for the justice of the utilitarian principle, given that it must be argued for and does not have a “built-in-fairness” as an essential element. But Pablo was not consistent on this point.