Justice Flashcards
(19 cards)
Why does Mill devote an entire chapter (the longest in Utilitarianism) to account for justice in utilitarian terms?
He recognises that the powerful sentiment of justice has been one of the strongest obstacles to the acceptance of the doctrine of utility.
What are six spheres of justice that Mill identifies in common usage?
1) Legal rights
2) Moral rights
3) Desert
4) Contracts
5) Impartiality
6) Equality
What conclusion does Mill reach by turning to etymology?
Mill turns to etymology to try and ‘seize the mental link which holds them all together’.
He finds that originally, justice was the violation of laws which actually existed.
Later, particularly among the Greeks and Romans, the sentiment of justice became to be attached to the violation of laws which ought to exist.
However, mankind considers the idea of justice applicable to many things which are not (and deemed should not) regulated by law.
In this case, we choose to bring punishment by public opinion on the offender.
How does Mill apply his insights from etymology to morality more generally (5.14)?
‘For the truth is that the idea of a penal sanction, which is the essence of law, enters not only into the conception of justice, but into that of any kind of wrong. We do not call anything wrong, unless we mean to imply that a person ought to punished in some way or other for doing it; if not by law, by the opinion of his fellow creatures; if not by opinion, by the reproaches of his own conscience.’
How does Mill distinguishes justice from other areas of morality?
Mill draws a distinction between perfect and imperfect obligations. An imperfect obligation is an action that is required but not to any particular person or at any particular time. For example, I have an obligation to be charitable, but no person in particular has a right to my assistance.
‘perfect obligations are those duties in virtue of which a correlative right resides in some person or persons; duties of imperfect obligation are those moral obligations which do not give birth to any right.’
How does Mill tie justice to rights?
‘Justice implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right.’
How does Mill explain the strong sentiment of justice?
The sentiment of justice appears to me to be, the animal desire to repel or retaliate a hurt or damage to oneself, or to those with whom one sympathises, widened so as to include all persons by the human capacity of enlarged sympathy, and the human conception of intelligent self-interest. From the latter elements, the feeling derives its morality, from the former, its peculiar impressiveness and energy of self-assertion.
What is a right according to Mill?
‘When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion.’
Why does Mill argue that society ought to protect people’s rights?
‘I can give him no other reason than the general utility’.
‘there goes to the composition of the sentiment, not a rational only, but also an animal element, the thirst for retaliation, and this thirst derives its intensity, as well as its moral justification, from the extraordinarily important and impressive kind of utility which is concerned. The interest involved is that of security, to everyone’s feelings, the most vital of all interests.’
Without rights pertaining to security being protected by society, each would see each other as an enemy. We would live in psychological torment, fear of domination by those stronger than us. Rules of justice thus protect ‘the very groundwork of existence’.
‘recognised indispensability becomes a moral necessity’
Why does Mill argue that justice cannot be an independent standard of morality?
The principles of justice are too ambiguous to serve as an independent standard of morality. We must appeal to the principle of utility to resolve otherwise unreconcilable differences.
E.g. when is it just to punish someone? Should the more talented be rewarded with higher wages? What is the just mechanism or level of taxation?
Does Mill hold that rights and justice are inherently authoritative?
No. Mill gives an example. It is unjust to steal, however it would be justified to save a life. This is not a good example, because someone can plausibly be said to have a right to life. Mill needs a non-justice obligation overriding a justice obligation.
I have promised to repay a small debt to you this evening. On the way to your house, I come across a very poor beggar. He has no right to the money I am carrying, but I should give it to him anyway.
How does Mill finish his chapter on justice?
Justice remains the appropriate name for certain social utilities which are vastly more important, and therefore more absolute and imperative, than any others are as a class… and which, therefore, ought to be, as well as naturally are, guarded by a sentiment not only different in degree, but also in kind; distinguished from the milder feeling which attaches to the mere idea of promoting human pleasure or convenience, at once by the more definite nature of its commands, and by the sterner character of its sanctions.
What are examples that might suggest Mill has spread the net of justice too broadly?
Any moral duty I have to another specific person gives rise to a correlative right within that person and is an obligation of justice.
i) A rapist violates the rights of a person raped, but it is not an injustice. Instead it should be understood as an act of downright viciousness.
ii) The second suggestion is that the failure to meet certain duties to specific persons is unjust but does not violate rights. If I nurse you through old age, it is plausible enough to say that you have some kind of duty to leave me at least something in your will. Your not doing so will be unjust but I have no right to any inheritance.
iii) Finally, it can be said that there can be duties to specific persons that are not matters of justice, and do not give rise to correlative rights. If you invite me to a large informal party, and I accept, then I have at least a weak duty to turn up. But it is too much to call this a duty of justice, and you could not plausibly say that you have a right to my attendance.
How does Mill’s account look shaky in terms of deserved evil for evil?
Desert, according to Mill, must involve the notion of a right. But it makes little sense to claim that a convicted criminal has a ‘right’ to his punishment, if only because we tend to think that rights can be waived. If a judge allows someone convicted of a serious crime to go free, whose rights are violated? The victim of the crime? But some serious crimes, such as insider dealing, are ‘victimless’. In the case of deserved good, the person with the right can claim a benefit. Who can claim that a criminal be punished? The only answer must be society at large.
Thus, society has a right that criminals be given what they deserve, judges have a duty to respect that right and criminals have a duty to accept their punishment.
Why does invoking a right to society risk merging all morality into justice?
For society has a right not only to demand the punishment of particular individuals for particular crimes, but itself, through moral disapprobation, to punish those who fail to meet allegedly imperfect obligations, such as that of charity. If you give nothing whatsoever to charity, I can justifiably blame you for being mean. But if duties to society can be understood as perfect obligations in the case of deserved evil for evil, why not also in the case of charity? Why do I not have a perfect obligation to society to be charitable?
Mill can still maintain that there is an important difference. In the case of punishing criminals, there is little or no discretion. The judge must punish the person here and now, and the criminal must accept punishment here and now. When it comes to being charitable, I do have discretion about to whom and when I am charitable.
This discretion is enough to mark off imperfect from perfect obligations.
What is an objection to utilitarianism based on the separateness of persons?
Another potential problem for Mill (and utilitarianism more generally) is that it does not consider distributional concerns and the separateness of persons (Rawls 1999, 24) . Consequently, it misses an important part of our ordinary conception of justice. Utilitarianism only gives attention to distributional concerns as they affect the aggregate happiness. For example, most material goods are thought to exhibit diminishing marginal utility. For this reason, a utilitarian may favour a more equitable distribution of material goods. However, they place no intrinsic value on the distributional outcome. Consider this following example from Roger Crisp:
Equality: Inequality:
Group 1 Group 2 Group 1 Group 2
50 50 90 20
Each number represents the utility of each group. The utilitarian is committed to choosing inequality, as the aggregate utility is higher. However, considerations of fairness and equality pull in the opposite direction. It seems that prioritising those who are worse off is an important principle of justice. This is an aspect of our common notion of justice that utilitarianism does not account for.
What is your criticism of any utilitarian conception of utility? (rights as moral entitlements)
However, there is still something missing from Mill’s account. There is something more to justice and rights than can be explained by a utilitarian account. This can be understood by closer examination of the notion of a moral right. To say that A has a moral right to X is equivalent to the statement that A is morally entitled to X. For example, X might be freedom from torture, which many people would argue is a moral right. This would not apply in the same way if X was their favourite flavour of ice cream. A would be better off with their favourite flavour of ice cream, but they would have no moral right to it. Utilitarianism cannot draw this distinction, and hence cannot completely capture what a moral right is. In welfare terms, A is better off when they are granted freedom from torture; they are also better off when they are given their favourite flavour of ice cream instead of an inferior alternative. There is no qualitative difference between the cases on a utilitarian account. Of course, there is clearly a matter of degree here, freedom from torture is a far more important constituent of welfare than flavour of ice cream. Because in the case of the former, there is so much welfare at stake, a utilitarian can convincingly justify a legal right protecting all people from torture. They can also justify a decision procedure that rules out torture. Mill can do both of these. However, there is no argument given by utilitarianism that justifies a moral entitlement to any kind of treatment.
Why might there be concerns about the compatibility of utilitarianism and rights?
Rights place a constraint on what can be pursued to maximise utility.
Rights can impose duties on someone to choose a non-maximising option.
Rights provide some with the freedom not to do the maximising option.
How does Hart criticise Mill?
None the less there are defects both in Mill’s formal analysis of fundamental rights and the suggested utilitarian criterion of identification. It is plain that an acceptable analysis of moral rights must be such as to allow sense though not necessarily truth to the statement that the existence of such a right is a good moral reason for having and maintaining a law or social convention conferring a right. It must leave room for the assertion for example that the justification for a law conferring a legal right to worship as one pleases is that individuals have a moral right to this freedom, though there may also be other good reasons for such a law, and of course there are laws for which the protection of individuals’ moral rights is no part o f their justification. But if as Mill’s form of analysis requires, to say that men have a moral right to worship as they please already means that there is a good reason why there should be a legal or conventional right to this freedom, the fact that men have this moral right cannot be advanced as a reason why there ought to be such a legal or conventional right. For if the existence of a moral right is to function as such a reason, the fact that such a right exists must be distinct from its being such a reason. If it were not so distinct, the statement that the fact that a moral right exists is a reason why there ought to be a legal right, would when spelt out, amount to the statement that the reason why there ought to be certain legal right is that there ought to be a legal right.
