Jurisprudence as we know it is an offshoot of philosophy and more precisely the philosophy that deals with questions of law. When one speaks of jurisprudence there are many theories, calculated analysis and profound philosophies which try, in each its own way, to guide the law as well as us in the end. Utilitarianism is one of them. The original concept of utilitarianism is simple which is, ‘the greatest happiness of the greatest number’, as utilitarianism’s best-known advocate, Jeremy Bentham, puts it.
Stopping there however would not be doing justice to his theory. Bentham goes on to explain that, for every question whereby we judge whether an act is good or bad, the criterion to answer would be by its consequence. This consequence is taken in regard to the effect that particular act would have on human pleasure and pain, the two ‘sovereign masters that govern mankind’. Bentham was a man of numbers and to him, good government needs numbers.
The importance of numbers to him is indisputable and if anything his propositions were almost always quantitative in nature. Going back to the pleasure and pains idea, Bentham proposed an elaborate and rather thorough guide to analyzing them. For this, he devised a list of pleasures including pleasures of wealth, power, skill and memories among others as well as a list of pains such as pains of regret, disappointment, enmity and awkwardness to name a few. All in all, Bentham lists a total of fourteen pleasures and twelve pains.
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The value or degree by which a pleasure or a pain is to be measured posed a problem and so Bentham also devised a calculus in which he takes into account seven factors that is, intensity, duration, certainty, propinquity, fecundity, purity and extent. John Stuart Mill, another prominent utilitarian, rejected Bentham’s view that all pleasures were to count the same. He argued that differing people would have been brought up in varying manners and as such the appreciation of certain pleasures would greatly differ from one person to another.
Also, Bentham’s own definition at the time was to apply the test of utility to private acts as well as public measures but was limited to ‘acts’. It would only be years later that other philosophers would draw a distinction between what we now call ‘act-utilitarianism’ and ‘rule-utilitarianism’. Put simply, act-utilitarianism concerns itself with acts that consequently have the highest net happiness whereas rule-utilitarianism applies where an act is permitted by a general rule whereby following that rule would have the best outcome.
John Austin, the well known jurisprudence philosopher, strongly believed that the test of utility should apply to rules. Today, utilitarianism can be used in almost every aspect of our daily lives, whether it be our daily decision making, public policy by governing bodies or simple moral questions we would usually turn to religion for. As can be seen, the test of utility does not discriminate in where it’s applied, merely in how it is used that is, whether to apply it upon the rule or the act.
It is no surprise then that the subsequent result of two different applications will lead to distinctively different conclusions. To exemplify how the utility test works and how different conclusions can be made one shall look at the famous Iran-Contra affair and in particular Oliver North’s assessment of the facts at hand and how he reaches his conclusion. In the 1980s, when asked why he had lied to congress regarding his role in the aforementioned affair, North said, “lying does not come easily to me. But we all had to weigh in the balance the difference between lies and lives”.
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Here, the ‘good’ decision according to North would have been to lie about certain facts to save others from possible harm. In his mind this was probably the act that would have maximised pleasure and minimised pain by the greatest extent and therefore judged it to be the best course of action. Applying the test on a rule in this case might have led to a different outcome. If, for example, ‘always tell the truth’ was the general rule by which the test concludes to be the best consequence, it may prove to lead North to a different decision in this case.
This, however, depends on which rule one wishes to follow. Had the rule been ‘always protect lives’ then North may as well answer in the same manner. The difficulty here lies in which test (act or rule) to use and how to apply it. The news piece that one has chosen, entitled ‘Government to measure people’s happiness’, talks about the British Government’s attempt at measuring the happiness of UK citizens. The reason behind the move, the article reads, is to track the nation’s progress apart from the usual yardstick that is the Gross Domestic Product (GDP).
The article also mentions Jo Swinson, a Liberal Democrat MP and probable utilitarian, as saying “what gets measured gets done. While it’s not government’s job to make people happy, regular measures of wellbeing will at least make sure it is taken into account”. Statically monitoring the people’s happiness by way of a national survey can be likened to Bentham’s plea for the foundation of a statistical-gathering society to compile facts, as factual information about actual state of affairs will support rational and informed decision making.
It is no surprise Bentham wished to propose this as he was an advocate of official criminal statistics which he maintained would be ‘a measure of excellent use in furnishing data for the legislator to go to work upon. ’ Using numbers to evaluate the health of a nation’s citizens is not uncommon or unheard of as, stated beforehand, GDP used to be yardstick. However, in the current state of affairs Britain finds itself in, perhaps it is time to turn to a different set of numbers. Many, if not most, countries use their national statistics on GDP as the focal point for policy decisions and measurement of welfare.
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Despite this, Treasury minister Angela Eagle who has long been accustomed to analysing GDP and working in the pursuit of economic stability using such data, conceded herself that, although not completely ditching the traditional form, a happiness index would be ‘useful for policy making’. When comparing the use of the wellbeing index as opposed to the GDP, one looks at it from a financial standpoint and in particular, given regard to wealth, opportunity and welfare on questions of distribution. How should it be distributed? According to need, ensuring equality or maybe in accordance with merit?
A long standing argument is that utilitarianism does not even consider these factors and on top of that shows no concern whatsoever with how it should be distributed. The utilitarian in this context would look only at achieving the goal of maximising welfare with how much there is in total. For example, given two societies, A and B, with A having a highly imbalanced distribution of welfare but an overall higher total of welfare than B which happens to have exact equal distribution, the utilitarian would point to A to be regarded as the more morally preferable society.
Nigel Simmonds, a noted reader in jurisprudence, states that it would be a mistake to conclude that since the distribution does not concern the utilitarian, it does not mean that the question of how wealth, resources and opportunities is ignored. The argument for that would be that a more equal allocation of wealth, opportunity and resources is desirable because it would eventually lead to maximisation of welfare and happiness. Put simply, if one gives a pound to a millionaire it would make for a negligible contribution to his overall welfare.
Give that same pound to a poor man for him to use, for instance to purchase a meal he would otherwise not be able to pay for, it would be a significant contribution to his welfare. Insofar as the distribution of wealth, opportunity and resources is concerned, the aim in this instance is for the utilitarian to seek the maximisation of welfare by way of equality. Using the wellbeing index in a way that could enable the government to pinpoint where certain communities are happy and unhappy can help legislators and policy-makers take necessary steps to promote the nation’s state of welfare.
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Funds could be better allocated towards communities that are in more need of an increase in welfare and happiness by providing facilities, education, healthcare and the like in the right areas While on the topic of economic welfare with regard to utilitarianism, one wishes to mention the economic analysis of law, a principle that has its roots in Bentham’s theory. Since the felicific calculus of the utility test is a difficult one to apply, as one cannot be certain of people’s reaction to alternative measures, the difference here lies in making simple assumptions on human behaviour.
The assumption to be adopted here is that mankind will rationally maximise his satisfactions or pleasure. Accordingly, this entire theory uses this premise to achieve, by its definition, what one wishes and what one is willing to pay for that. Payment here is not taken in the strictest sense of monetary terms but can include time and effort. The theory takes on a dynamic principle that this payment is the medium by which a hypothetical market of happiness can be run. Between two individuals, it is easy to demonstrate how this would work.
If Adam wishes to run his laundry business all day long without closing shop, and Gary wishes for silence in the night, each would offer a monetary value for either privilege. If Adam’s payment is greater than Gary’s satisfactions are maximised by allowing him to run his overnight business. Economic analysis calls this the ‘efficient’ solution and the most obvious difference with utility is where greatest happiness of the greatest number is replaced by overall efficiency. This movement, primarily attempted in the United States, was first applied to specific areas in law for example anti-trust legislation and nuisance laws.
Richard Posner, in his book, Economic Analysis of Law, explains that he believes to have found a more systematic application of this approach which he claims can explain why many of the legal rules and institutions that exist are as they are and also inherent implications for how the law should be improved. This however, leads one to believe that economic analysis of the law concerns itself primarily with maximising economic criteria, begging the question, is this the highest ideal one would want for society?
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It takes a U-turn on the very basis by which the government had wished to evaluate happiness instead of relying on GDP as a measure of public wellbeing. Even the UK’s National Statistician, Jil Matheson, who will oversee the happiness measurement, said: “there is growing international recognition that to measure national well-being and progress there is a need to develop a more comprehensive view, rather than focusing solely on gross domestic product. ” If the Judiciary were to use this wellbeing index in reference to adjudication, would that infringe on the established practice of judicial independence?
One would point out that public opinion is a matter for which the courts do take into consideration when a case of great public interest is in question. The very notion that judges would look into these statistical analysis of numbered data seems highly implausible. The judiciary as we know it preserves the doctrine of separation of powers. This holds that the laws they would apply and uphold cannot be changed whatsoever without the proper due process of parliamentary approval.
With regard to those highly publicised cases, a judge today cannot merely change the course of the law due to social pressure even if would produce the greatest net happiness. However, if a judge were to be utilitarian in nature, as one is sure there is at least a single judge of that calibre, he or she might apply a rule that passes the utility test which would state “judge according to the greatest net happiness” and as such that rule could undermine all other factors including upholding parliamentary legislation.
If the same judge were to follow a rule stating “always follow the letter of the law” the same conclusion as if the other did not exist would apply as always following the law would pass the test as generally being the best solution to achieving the greatest happiness. One would now like to delve into the topic of rights with regard to utilitarianism in the light of the government’s wellbeing index plans. Human rights has been a major concern since the atrocities of the first and second World Wars. Most nations have adopted or are a signatory or the Universal Declaration of Human Rights.
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In order to understand utilitarianism’s concept of rights, it is best to leave alone the notion of ‘moral rights’ as it is fundamentally opposed within the theory. Given the example of two conflicting interests in rights, whatever means one would employ would still lead to the same conclusion where one gains and the other loses. As mentioned before, utilitarianism would guide us to act in a way that would produce the greatest happiness for the greatest number and in doing so would find the best possible balance to ensure the net outcome is highest.
One refers back to the infamous London riots of mid-2011 where police had a difficult time controlling the crowds. In this instance, the police would have had in mind the rights of the law-breakers and in turn led to minimal crowd control which unfortunately spilled over and caused massive collateral damage. Had the test of utility been applied, officers of the force may have come to a conclusion that infringing a few citizens’ rights will save shops and business from the damage that they eventually incurred. Monmouth MP Mr Davies said that “we have to decide where our priorities lie.
Is it with the police in trying to maintain law and order? Or does it lie with the human rights of those who break the law? ”. One could say the test of utility applied here might have concluded that the former would be the answer to maximising overall happiness of society that day taking into account the welfare of the shop owners and other victims of this tragedy. Or perhaps had the wellbeing index been formulated earlier and the government had helped to alleviate the pains of those who turned to rioting, none of it would have happened. That however, is a purely hypothetical analysis.
With every applied theory comes the good and the bad, the success or failure to accommodate all aspects of governance and the uncertain impact it can have on society as a whole. Utilitarianism brings about a change in mindset and approach to dealing with today’s issues but it does come with the risk of failing to protect the most vulnerable members of society. A report has sparked some debate across the Atlantic over the issue of special education funding in Kansas, USA, where budget cuts amounting to over twenty million US dollars are being contemplated.
This is no isolated incident however, as a Christian activist group points out that even with the appropriate budget, schools are ever increasing the channelling of those funds to other departments instead of the purpose it was allocated for. In this incident, Broward County in Florida used eighteen million dollars of its special education budget to save around seven hundred jobs which had no relation to special education. It is without a doubt a utilitarian process of maximising overall happiness but it did come with a cost.
The losers in this case were the children in need of special education in the first place. It is a difficult time for the economy and budget cuts are to be expected but this highlights the problem inherent within utilitarianism. If you are one of the losers to this policy, then that is the way the cookie crumbles. Unfortunately it was a segment of society that already is vulnerable. Additionally, utilitarianism can lead to injustice and breach of established human rights, that is the right against unlawful detention.
Imagine a nation duped by its own government, propagandised to fear and hate and in turn direct those feelings towards a certain legislation that purportedly helps fight terrorism but instead merely gives powers to the state to detain and interrogate terror suspects without due consideration towards his or her human rights. One might think of the US and its anti terror campaign and acknowledge the fact that Guantanamo Bay is not just a movie. A government, using any means necessary, has the potential to manipulate its people into believing that in order to be secure and protected must pass into law some draconian legislation.
If people do believe so, a nationwide survey on happiness might conclude that citizens will only be happy if their need to feel said security is fulfilled and the test can succeed if the circumstances are right. If one were to disbelieve such a notion, this idea has indeed been materialised in North Korea where an entire nation is fed news and reports directly aimed to instil a variety of ideas in its people. Of course, it is largely hypothetical but at the same time utilitarianism is not a known and practiced doctrine worldwide and this uncertainty is precautionary in nature. Is utilitarianism the way to go?
Has the British government taken the right steps and the right precautions in ensuring a wellbeing index will not be put to use in a negative way? Some critics of the move have instead shown a distinct unhappiness over the issue. Some are calling for the test to be used on itself as to whether it will produce the greatest happiness if used at all. If possible, it would be a fresh undertaking for law-makers to change their mindset on ethical or moral grounds. Alan Coddington, author, spoke of replacing traditional questions of “should it be done? ” and “is that right? ” with “what would be the totalled up sum of happiness if this is done?
”. A wellbeing index does indeed sound like a good idea and one that might help ease the financial instability that Britain currently faces. It could lead to never before known facts and statistics that may trigger the government into acting in the interest of the people to ensure the greatest happiness from the greatest number, in this regard, of Britons. ——————————————– [ 1 ]. Jeremy Bentham, A Fragment on Government, (1776) [ 2 ]. JG Riddal, Jurisprudence, (2nd edn Oxford Press 2006) 154 [ 3 ]. M Freeman, R Harrison, Law and Philosophy Current Legal Issues, (vol 10 2007) 304 [ 4 ].
JW Harris, Legal Philosophies, (Butterworths 1980) 36 [ 5 ]. Harris, (n4) 39 [ 6 ]. Manuel Velasquez, Claire Andre, Thomas Shanks, S. J. , and Michael J. Meyer, ‘Calculating Consequence: The Utilitarian Approach to Ethics’ (1989) Issues in Ethics Vol 2 accessed 4th Jan 2012 [ 7 ]. BBC News, Government ‘planning to measure people’s happiness’ (2010) accessed 26th Dec 2011 [ 8 ]. M Freeman, R Harrison, Law and Philosophy Current Legal Issues, (Oxford Press ,vol 10, 2007) 304 [ 9 ]. J Bentham, The Works of Jeremy Bentham (Simpkin, Marshal and Co, 1843) 29 [ 10 ]. B Wheeler,’ Crunch Time for Happy Talk’, (BBC News 9th Oct 2008)< http://news.
bbc. co. uk/1/hi/uk_politics/7657465. stm> accessed 2nd Jan 2012 [ 11 ]. NE Simmonds, Central Issues In Jurisprudence, (Sweet and Maxwell ,3rd edn, 2008) 29 [ 12 ]. Simmonds (n 11) 30 [ 13 ]. Harris (n4) 42 [ 14 ]. BBC News (n7) [ 15 ]. D Meyerson, Understanding Jurisprudence, (Routledge Cavandish, 2007) 119 [ 16 ]. Daily Record, ‘London riots: Human rights laws have made police sitting ducks’ accessed 9th Jan 2012 [ 17 ]. The Winfield Daily, ‘Let Senate Prevail on Special Ed Funding, (18th Feb 2011) accessed 7th Jan 2012 [ 18 ]. Chuck Colsen, ‘Shorting Special Needs: Utilitarianism and Budget