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Summary Justice and Individual Rights Revision Notes
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- Universitat Pompeu Fabra (UPF)
Justice and Individual Rights revision and lecture notes
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Justice and Individual RightsJustice and Political Legitimacy
- They are both a virtue of political institutions and of the decisions taken within them
- For a law to be legitimate it has to be a proper expression of people’s will – ie has to
be democratic
- Theory of legitimacy: what makes a law permissibly enforceable?
o Pure procedural accounts: subject only to formal requirements
o Mixed accounts: formal requirements + minimum content (should not
blatantly violate human rights)
- What theories of justice are about?
o Corrective justice: in situations where there is a wrongdoer eg tort law
o Retributive justice: bilateral – criminal and victim
o Distributive justice: multilateral – plurality of agents having a claim. Deals
with the distribution of scarce resources between multiple people with
competing claims.
- The circumstances of justice
o The circumstances under which cooperation is both possible and necessary
‘the circumstances of justice obtain whenever mutually disinterested
people put forward conflicting claims to the division of social
advantages under conditions of moderate scarcity’ – Rawls, 1971.
Utilitarianism
- Utilitarianism = utility + consequentialism + maximization
- The principle of utility Father of utilitarianism = Jeremy Bentham
o ‘the greatest happiness of the whole community, ought to be the end or
object of pursuit… the right and proper end of government in every political
community, is the greatest happiness of all the individuals of which it is
composed, say, in other words, the greatest happiness of the greatest
number.’
o The decision that is correct at the political and personal level is the decision
that produces the greatest number of happiness for the greatest number of
people
- Basic aim = maximizing utility
- John Stuart Mill – ‘the creed which accepts as the foundation of morals, utility, or
the greatest happiness principle, hold that actions are right in proportion as they
tend to promote happiness, wrong as they tend to produce the reverse of happiness’
o Central principle = people should be free to do whatever they want provided
they do no harm to others. He insists that the case for individual liberty rests
entirely on utilitarian considerations. Mill thinks we should maximize utility
for the long run, not case by case basis and he argues that respecting
individual liberty will lead to the greatest human happiness.
,- The 3 qualities of utilitarianism
Welfarism: we cannot deny that utility/happiness has value
Impartiality and universality: everybody’s happiness counts equal
Consequentialism: check whether an act of policy does some
identifiable good or bad to someone
o ‘Philosophical radicals’ against ancient customs, spiritual leaders and
common law.
- Cabin boy example:
o Utilitarian assumption of morality consists of weighing costs and benefits and
simply wants a fuller reckoning of the social consequences
o 2 rival approaches to justice = 1) morality of an action depends solely on the
consequences it brings about 2) consequences are not all we should care
about, morally speaking certain duties and rights should command our
respect, for reasons independent of the social consequences.
- Defining utility
o How should we define utility/welfare? Is this a sensation of pleasure? A
mental state? Feeling of fulfilment?
Welfare hedonism = experience or sensation of pleasure
Utility is a mental state
Bentham: utility is whatever produces pleasure of happiness and
whatever prevents pain or suffering
o Pleasures can be compared quantitatively bc there is no qualitative
difference as utility is completely subjective
Bentham: ‘quantity of pleasure being equal, push-pin (a simple
children’s game) is as good as poetry’. Pleasure is completely
subjective – the quality of actions that make people happy cannot be
measured but the amount can be measured according to Bentham.
Non-judgmental spirit - takes preferences as they are without passing
judgement on their moral worth. The refusal to distinguish higher
pleasures from lower pleasures is connected to Bentham’s belief that
all values can be measured and compared on a single scale.
In measuring pleasure, we need to take into account: the intensity,
the duration, whether it is mixed with pain, the number of people
that will experience it etc
o Mill’s alternative: distinction between higher and lower pleasures
Pleasure has an objective dimension: pleasures of the intellect are
higher than physical ones. Quality of pleasures can be assessed but
quantity or intensity cannot. Example: Shakespeare vs the Simpsons
Elitist dimension: it is better to be Socrates dissatisfied than a fool
satisfied. Bentham would say that if this mental state is happiness
there is nothing wrong with it. Mill would say this is wrong bc is not
engaging in happiness
, What should be the role of the state?
- The experience machine
o In order to show that mental state sensations are not what we actually think
it is
o Possibility of connecting yourself to a machine – to live the life you always
wanted. You are not aware that you are connected but you enjoy it as if you
are living that life even if it is fake.
o If in reality we attach a value to our actions that make us happy – we do not
need to connect to the machine
o We do not only care about mental states, we also care about reality so
mental states/sensations are not all what matters and should not be the main
consideration when taking decisions (both individuals and govts)
- Preference Utilitarianism
o Preference satisfaction
o Human welfare is not just a matter of achieving certain mental states
o Problem: satisfying our preferences does not always contribute to our
welfare – my preference does not always indicate my happiness
Preferences might be uninformed due to lack of information
Preferences might be inconsistent
Preferences can be selfish or deeply immoral
Preferences can be manipulated or induced
Preferences can be adaptive – particularly important in oppressive
contexts. Example: when someone creates a preference in an
oppressive context that looks irrational from outside eg ‘happy slave’
and people in abusive relationships – managing to trick himself to
believe that they are happy. From outside this is irrational behavior
and the preference is misguided.
Adaptive preferences and cognitive dissonance
Therefore = preferences are not 100% rational or indicative of
happiness and welfare.
o Possible solution: restrict utility to informed and rational preferences
But it is very difficult to identify which preferences are rational and
informed eg gender roles. Putting aside cases of extensive of
exploitation, some feminists argue that prostitution can never be
voluntary. Or for example being a stay at home mum is never a
genuine preference.
Solution: secure adequate background conditions instead of filtering
preferences
- Organ shortage example
o 4 patients in the hospital and a homeless woman. Would you kill the
homeless woman to save the other 4 patients?
- Consequentialism
, o Consequentialism – what matters is the consequence of the action
o Act utilitarianism (Bentham): looks at the consequences of single actions in
terms of the amount of pleasure and/or pain they produce.
Why not lie? This lies will have bad consequences
o Rule utilitarianism (Mill): looks at the consequences of everyone following a
particular rule and the amount of pleasure and/or pain that would produce –
the relevant thing in question is not the act but a rule allowing the act. Mill
would be interested in assessing the rule
Why not lie? If everyone lied, it would be worse for everyone
Concerned with general laws rather than specific actions of individuals
- Examples: Torture
o Guantanamo case
o Why is torture so popular among government officials such as police?
A means to get the truth out of people – utilitarian: sacrifices the
wellbeing of the individual but the truth is beneficial for the general
public
o Article 5 UDHR: no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment
o But is torture justified under some particular circumstances?
o Israeli Supreme Court’s decision in 1999
o Example: terrorist bomb: imagine a case where there is a bomb and the
terrorist knows where it is or how to stop it, would torturing the person be
justified?
o The ultimate test: the kidnapped 10 yrs old kid: the Daschner case in
Germany (2004) and the Constitutional Court decision
What if it is necessary to torture an innocent person, even a child?
- Maximize which utility?
o Total utilitarianism: max utility is calculated by adding individual utilities
The objectionable conclusion: increase utility by adding new lives with
very low levels of utility
o Average utilitarianism: max utility is calculated by reference to the average
utility among the group’s members
A scenario with one individual having 1000 utility level is preferable
than another with 100 individuals having 100 utility level
o A 3rd way? Critical level utilitarianism requires maximizing aggregate utility
but placing a ‘life worth living’ threshold – but where do we set the
threshold? It is always arbitrary
- The politics of utilitarianism utilitarianism can justify different policies depending
on a) the version of utilitarianism b) how we define the consequences of an act or a
rule c) how do we identify the consequences (where do we draw the line?)
- We can’t place utilitarianisms either on the left or the right of the political spectrum:
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