A Consequentialist Theory of Justice
Nevin Johnson
The main objective of this paper is to defend a consequentialist theory of justice. I will
analyze the historical roots of consequentialism in the development of utilitarianism, indentifying
characteristics of those theories which are relevant to the final consequentialist theory I will
endorse. Then, I will present arguments made against utilitarianism by prominent 20 th century
political theorists such as John Rawls and Robert Nozick. 1
Next, I will draw deeply from the consequentialist moral theories of D.W. Haslett and Brad
Hooker, in order to develop a robust consequentialist theory that, I will argue, not only avoids the
difficulties of utilitarianism pointed out by Rawls and Nozick, but also avoids difficulties
commonly attributed to contemporary forms of rule-utilitarianism and rule-consequentialism. 2 I
will argue that, since the consequentialist theory we will develop coheres better with our considered
judgments than deontology and classical utilitarianism do, as well as the fact that the
consequentialist theory is theoretically superior to deontology and classical utilitarianism in certain
important respects, we ought to prefer the consequentialist theory to the other two.
Finally, I will apply this consequentialist theory to two political issues, and offer policies and
solutions to these issues that are called for by this theory. I will examine strategic torture on behalf
of the government, and the individual inheritance of accumlated wealth. This section will serve
primarily as a demonstration of how the consequentialist theory of justice can be usefully
employed, but it also is meant to set an example for philosophers to step out of the ivory tower and
get their hands dirty in ground-level political discourse.
1 Rawls, 1999 and Nozick, 1974.
2 Haslett, 1996 and Hooker, 2003.
A Brief History of Consequentialism: Utilitarianism
I characterize rule-consequentialism as being the discursive result of the intellectual
exchange of philosophers over hundreds of years. I wish to demonstrate the strength and robustness
of the final theory I will endorse by showing how it is the product of a gradually improved
consequentialism, just as a brilliant statue emerges from the fiery heat of the sculptor's workroom.
In order not to engage in a tiresome historical exegesis, I will only examine the historical
consequentialist theories whose features are relevant to my final theory.
The first of the classical utilitarians (and perhaps the first real utilitarian) was Jeremy
Bentham (1748-1832).3 His scattered works are very political in nature and they seek to tackle
issues with the goal of social and legal reform. 4 In addition to declaring that right actions are those
which provide "the greatest good for the greatest number," Bentham's utilitarianism had several
interesting features. His hedonistic theory of value held that the only instrinsic good is pleasure.
Not only this, but all pleasuers share a common property that can be resolved quantitatively. The
units of his felicific calculus are hedons and dolors, for pleasure and pain, respectively. The
quantitative resolution of all pleasure into a single property is what is meant in the remark attributed
to Bentham that, all things equal, pushpin is as good as poetry. 5
Another feature of Bentham's moral philosophy is that there was not any proof for the
principle of utility. 6 But Bentham did not think this was problematic, since some explanatory
principles need not be proven. The justification and reason for accepting a given moral theory is an
important theme that will be developed later. We will see that other consequentialists (including
myself) will disagree with Bentham’s method of the justification of moral theory.
The next classical utilitarian was John Stuart Mill (1806-1873). Mill very much followed in
3 There are certainly thinkers who are grouped together as "proto-utilitarians," such as Richard Cumberland (1631 1718), John Gay (1699-1745), Anthony Ashely-Cooper, 3rd Earl of Shaftsbury (1671-1713), and David Hume
(1771-1776). Despite their utilitarian leanings and inclinations, Bentham is considered to be the first utilitarian in
the hearty, modern sense.
4 Crimmins, 1993.
5 Bentham 1825, 206.
6 Sweet, 2008.
2
the footsteps of Jeremy Bentham in his overall goal of social and legal reform. 7 Nonetheless, Mill
disagreed with Bentham on several meta-ethical issues.
Where Bentham saw all pleasures as being equal, Mill thought that a principle could be
invoked to order the pleasures in terms of their preferability. He thought that, since most people
who have experienced both "high" and "low" pleasures would prefer the former to the latter, that
this means that those are the more desirable pleasures. 8 This led him to claim that “it is better to be
a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool
satisfied."9
In addition, where Bentham did not think that the principle of utility could be proven, Mill
thought that the principle of utility could be proven, and he even offered such an argument. After a
few pages of deliberation at the beginning of chapter IV in Utilitarianism, Mill argues that “there is
in reality nothing desired except happiness." 10 All things desired are either a part of, are a means to,
or are themselves happiness. As the only thing desired and striven for, as the “sole end of human
action,” it follows that “it (happiness) must be the criterion of morality." 11
Modern philosophical inquiry in the field of ethics would not look the way it does today
were it not for Henry Sidgwick (1838-1900). In the 1860s he indicated to his friends that we was
“engaged on a Great Work." 12 That work, The Methods of Ethics, has come to be known as a
classic, not just for moral theory, but for philosophy in general. Sidgwick's comprehensive work
has served as a model for the way to do ethical theory; even critics of utilitarianism such as William
Frankena, Marcus Singer, and John Rawls have looked to the Methods for guidance. 13 Peter Singer
admires the Methods as “simply the best book on ethics ever written.” 14
7 Heydt, 2006.
8 Utilitarianism, 8.
9 Utilitarianism, 10.
10 Utilitarianism, 38.
11 Utilitarianism, 39. This argument has been critcized by G.E. Moore (in Principia Ethica) for comitting the
naturalistic fallacy. Just because something is desired does not make it desirable, or mean that it ought to be
desired.
12 Schultz, 2006 (SEP).
13 Schultz, 2006 (SEP).
14 Peterson and Ryberg, 2006.
3
Sidwick's theory detailed in the Methods also bears important features relevant to our
development of a consequentialist theory of justice. One of the more unusual ones is the lack of a
publicity requirement. He writes that “secrecy may render an action right which would not
otherwise be so should itself be kept comparatively secret." 15 For example, assume that actutilitarianism is true. Also assume that, as a contingent fact of human nature and the moral
motivation of humans, people behave in closer accordance with act-utilitarianism if they think that
act-utilitarianism is false. Thus, it may be morally wrong to publicly espouse or endorse actutilitarianism, even though act-utilitarianism is the correct moral theory. There may be an
enlightened minority who know the true moral theory, and an ignorant mob, who follow some other
moral code that mimics or tracks act-utilitarianism. In looking at rule-based consequentialist
theories, we will see that, if we accept an internalization requirement of the rule-based moral code,
a publicity requirement will have to be present, hence disagreeing with Sidgwick on this point.
Recall also that Mill and Bentham disagreed as to whether there exists a diversity of
pleasures, where some kinds of pleasures are categorically superior to others (Mill answering in the
affirmative and Bentham in the negative). Sidgwick sides with Bentham on this point. He says that
if we are actually to work with the idea that pleasure is the sole end of rational human action,
Bentham's position must be correct, “and all qualitative comparison of pleasures must really resolve
itself into quantitative." 16 Sidgwick says that, while Mill was trying to say that some kinds of
pleasures are categorically better than others, what we really mean is just that these things are just
more pleasurable than others, not of a different kind.
15 Sidgwick, 448.
16 Sidgwick, 94.
4
The 20th Century Revolt Against Utilitarianism
The most important book in political philosophy of the 20 th century (and one of the most
important books in philosophy in general) is John Rawls' A Theory of Justice. His theory outlined
in this book develops a novel approach to social contract theory in the tradition of political
liberalism. In developing his theory of justice, “justice as fairness,” Rawls makes important use of
the conceptual mechanism of the original position. The original position is a hypothetical, abstract
situation where persons will agree to the principles of social and political justice. 17 The persons in
the original position stand behind the veil of ignorance. The veil of ignorance strips these “original
persons” of facts that would have otherwise “enabled them to tailor principles of justice favorable to
their personal circumstances." 18 Thus, the original persons are ignorant of their age, wealth,
strength, intelligence, class status, generation, etc. However, the original persons are not ignorant
of everything. They have rudimentary knowledge of psychology, the natural sciences, political
science, economics, as well as the general tendencies of human behavior.19
The principles of justice that the persons in the original position assent to in this conceptual
exercise will be the principles of justice that govern society. The original position replaces the state
of nature where individuals stand in a theoretical relationship with one another where they have yet
to agree how to live together in a collective society. The act of assenting to the principles of justice
amounts to the social contract itself.
Would the original persons choose the principle of utility? Rawls answers in the negative.
Rawls considers the principles of average utility and the classical principle of utility. The Classical
Principle of Utility states that “institutions be arranged to maximize the absolute weighted sum of
17 Freeman, 2008.
18 Freeman, 2008.
19 Freeman, 2008.
5
the expectations of the relevant representative men." 20 The Principle of Average Utility holds that
society ought to “maximize not the total but the average utility (per capita)."21 Thus, the Classical
Principle of Utility sums the utility of all people, and whichever state of affairs maximizes that
quantity will be the one that is preferred. The Principle of Average Utility adds another step. It says
that, after utility is summed, it should then be divided by the number of persons, and the highest
average will be the one that is most just.
Rawls argues that, with regards to deliberating between the two forms of utilitarian
principles, the persons in the original position have it in their interest to do something to hold up the
average welfare; they will not be interested in maximizing the total satisfaction, only their own. It
is for this reason that he thinks that "the more plausible utilitarian alternative to the two principles
of justice is the average and not the classical principle." 22 Despite one being more attractive than
the other, Rawls finds reasons why the original persons would not choose either of the principles of
utility as the principles to govern civil society.
The first reason has to do with personal interests. In order to prefer the principle of utility,
an individual must identify more strongly with the interests of others than they would with their
own interests (than they would under Rawls' two principles). 23 They cannot have a definite
character or will, as their “final interests” and ends are subject to the interests of everyone. 24 The
reason for this is that total utility has very little to do with the well-being of this or that individual,
only the well-being of society as a whole. Thus, if the happiness of some individuals must be
thrown by the wayside in order to make room for the happiness of the many, than so much the
worse for the few.
Additionally, Rawls argues that to accept the utilitarian principle would be to confuse
impersonality for impartiality. Utilitarian doctrine is said to employ the rational and impartial
20
21
22
23
24
Rawls 1999, 139-140.
Rawls 1999, 140.
Rawls 1999, 141.
Rawls 1999, 154.
Rawls 1999, 152.
6
sympathetic observer (call him Riso). 25 Riso is a person who takes up a general perspective; he
responds to the interests of all (equally). Riso “imagines himself in the place of each person in turn,
and when he has done this for everyone, the strength of approval is determined by the balance of
satisfactions to which he has sympathetically responded.” 26 The approval of Riso becomes the
standard of justice, “and this results in impersonality, in the conflation of all desires into one system
of desire."27
But the parties to the agreement in the original position are many distinct persons, not Riso.
The principle of utility, then, would require of individual persons that they be perfect altruists. But
to be a perfect altruist is to be a person who “can fulfill his desire only if someone else has
independent, or first-order, desires."28 Thus, someone else must have a first-order self-interested
desire in order for another person to be an altruist. But if everyone is an altruist, then it seems that
there cannot be any altruists at all, since everyone would only want to satisfy other's interests, but
no interests would exist in the first place to be satisfied.
Finally, the principle of utility leaves absolutely no assurance to the persons in the originial
position that they will be able to take part in the good to the extent that they expect. Rawls writes
that “when the principle of utility is satisfied, however, there is no such assurance that everyone
benefits," and that "allegiance to the social system may demand that some, particularly the less
favored, should forgo advantages for the sake of the greater good of the whole."29 Even though the
principle of utility states that everyone's interests be taken into consideration equally, it does not
require that everyone benefit equally.
John Rawls' work generated an enormous amount of interest, including the interest of a
libertarian philosopher named Robert Nozick. While the main motivation for Nozick's book
Anarchy, State, and Utopia was to counter the large foundation that Rawls had created for an
extensive government, Nozick also sought to land a few punches of his own onto utilitarianism.
25 The choice of a masculine pronoun for Riso is Rawls', not mine.
26
Rawls 1999, 163.
27 Rawls 1999, 164.
28 Rawls, 165.
29 Rawls, 155.
7
Two of these arguments will be considered here.
The first is the utility monster. Suppose that there are monsters “who get enormously
greater gains in utility from any sacrifice of others than these others lose." 30 If there exists a
particularly voracious monster, it would seem that the most moral state of affairs would be one in
which there exists only one entity, The Utility Monster, to whom we are all sacrificed in the
“monster's maw, in order to increase total utility." 31 To reject the maximization of total utility in
favor of average utility does not solve the problem either, according to Nozick. If we ought to
maximize average utility, then that means that it would be all right for a person to “kill everyone
else if that would make him ecstatic, and so happier than average,” so long as the people were killed
painlessly. Since this is an obviously undesirable state of affairs, utilitarianism must not be correct.
The second objection involves the experience machine. One could think of this as an ethical
adaptation of the brain-in-the-vat thought experiment found in epistemology. Suppose that there are
very powerful and skilled neuroscientists and neurosurgeons who are capable of hooking up your
brain such that you “would think and feel you were writing a great novel, or making a friend, or
reading an interesting book,” but in actuality, “all the time you would be floating in tank, with
electrodes attached to your brain." 32 The question is, ought we to assent to this state of affairs for
our entire lives, since we could have any experiences that we desire, the experiences we would have
plugged into the experience machine as our brains float in the vat would be more pleasurable and
lead to more happiness than if we were restricted to “normal” reality.
While some people may actually like to be hooked up to the machine for life, Nozick hopes
that the reader agrees with him in saying that “plugging into the machine is a kind of suicide." 33 He
states that the reason this is so is because the experience machine “limits us to a man-made reality,
to a world no deeper or more important than that which people can construct." 34 As persons and
human beings, we wish to actually experience the world. We want to actually be a certain sort of
30
31
32
33
34
Nozick, 41.
Nozick, 41.
Nozick, 42.
Nozick, 43.
Nozick, 43.
8
person, whereas “someone floating in a tank is an indeterminate blob." 35 All of this is meant to
show that there are things that are important in addition to, or perhaps more important than,
experiences. But since utilitarianism says that the only morally relevant things are such things as
happiness, the experience of happiness, or the satisfaction of preferences, then utilitarianism must
not be the correct moral theory, and hence ought not to guide us in political deliberation.
The blows delivered by Rawls and Nozick are indeed serious. While perhaps the most
famous living moral philosopher (and perhaps the most famous living philosopher, period), Peter
Singer, is a utilitarian, he is likely in the minority. According to David Chalmers' Philosophical
Survey of academic philosophers and philosophy graduate students, 23.6% percent of respondents
accepted or leaned towards consequentialism, while 25.8% accepted or lean towards deontology
[the rest are either virtue ethics (18.1%) or “Other” (47.3%)]. 36 Though once popular at the turn of
the 20th century, utilitarianism in particular and consequentialism in general have fallen into
disfavor.
In response to Rawls' and Nozick's criticisms of utilitarianism (as well as other popular
objections), some philosophers have sought to bring to life a close relative of classical
utilitarianism, rule-utilitarianism. Where the principle of utility directly serves as the criterion of
rightness for acts in classical utilitarianism, in rule-utilitarianism the principle of utility is used to
evaluate rules, deriving those which are most conducive to well-being. These rules are then used to
guide us in moral behavior.
Act and rule-consequentialism have also been characterized as being direct and indirect
versions of consequentialism, respectively. This is because, in act-consequentialism, consequences
are used directly to figure out which actions are right. But with rule-consequentialism,
consequences are used to evaluate and derive rules, which are in turn used to guide behavior. Thus
in rule-consequentialism, consequences indirectly guide moral behavior.
This new consequentialist moral theory of rules, which can actually be traced back to Bishop
35 Nozick, 43.
36 Chalmers and Bourget, 2009.
9
Berkeley,37 has seen varying levels of popularity in the past fifty years. 38 I wish to examine two
different works in the tradition of rule-consequentialism and rule-utilitarianism. Both are rather
recent, and are significant in the sense that they are aware of and seek to avoid common objections
to consequentialist, rule-based moral theory. 39 If these new versions of consequentialism can
preserve the strengths of the classical theories without bringing with them their weaknesses, then
we should prefer the new theories to the classical ones.
Constructing and Evaluating Rule-Based Consequentialist Moral Theories
In this paper, two different methods for evaluating moral theories have been considered.
The first is the one found in utilitarian thinkers such as J.S. Mill, Henry Sidgwick, Peter Singer, and
will be found to a certain extent in D. W. Haslett. This method is akin to a proof. Some starting
point is established, and through a number of inferences, the conclusion, that utilitarianism is the
correct moral theory, is reached. I will refer to this method as the proof method. Haslett and
Sidgwick attempt to show in some way that utilitarianism is basic, that our moral concepts are in
some fundamental sense utilitarian.
The second method I will refer to as the holistic method. It is employed most significantly,
in some way or another, by John Rawls, Brad Hooker, and D.W. Haslett. This holistic method does
not seek to proceed by proof. It instead makes use of a technique called "reflective equilibrium.”
In reflective equilibrium, our considered moral judgments are held up next to a moral theory. If the
theory disagrees too much with our given moral convictions, then one of two things must happen.
Either the theory must be modified or rejected to stand in better relation with our moral intuitions,
37 Hooker, 2008.
38 Arneson 2005, 1.
39 The two most popular of these objections are that rule-utilitarianism collapses into extensional equivalence with act
utilitarianism (Hooker, 93), and that rule consequentialism is incoherent (Hooker, 99), or as it is sometimes
otherwise stated, that it is guilty of “rule worship.” These two objections will be looked at in special detail in the
coming examination of Hooker's theory.
10
or we need to modify our intuitions. Reflective equilibrium is the compromise and exchange
between our moral theories and our considered moral judgments.
In the first method, since each step proceeds in a logical manner in the proof of the theory, if
our intuitions disagree with the conclusions of that theory, then so much the worse for our
convictions. In the holistic method, our intuitions and theory may have a mutual give and pull. I
will have more to say about intuitions and moral theory in particular and the evaluation of moral
theory in general after the two rule-consequentialist theories have been presented. 40
D.W. Haslett's work Capitalism with Morality is not just a defense of capitalism. It is also a
brave defense of a form of rule-utilitarianism. He begins the description of his moral theory with
the distinction between moral norms and moral values. Moral norms are“criteria that prescribe that
we act (or not act) in a certain way.” 41 Moral values, on the hand, are “criteria purporting to
distinguish that which is good from that which is bad." 42 Rather than taking the forms of rules,
principles, etc., they take the form of virtues and ideals. Thus, moral values “are not as strong as
norms; they do not prescribe or prohibit specific acts, as do norms. Rather, they indicate what,
generally, is to be striven for." 43
Haslett argues that the reason we have moral norms and values is for our well-being.
Without them, as Hobbes might say, “life among a group of human beings would be 'nasty, brutish,
and short'.” Moral norms and values enable people to “get on better than would otherwise be
possible."44 Haslett also holds that anything that has a point or purpose ought to be judged in
accordance with the extent to which it actually achieves that point. Thus, the moral norms and
values most conducive to well-being will be the ones that are most justified. This is the indirect
utilitarian methodology, since the principle of utility is not applied directly to actions (as in act
utilitarianism), but is instead used to derive norms and values, which are then used to evaluate and
40
Our discussion of the relationship between our intuitions and our moral theories will center on Peter Singer’s work
“Ethics and Intuitions.”
41 Haslett, 6.
42 Haslett, 6.
43 Haslett, 6.
44 The invocation of Hobbes is Haslett's, not mine. Both quotes in this paragraph are from Haslett, 7.
11
prescribe actions.
Haslett, as a utilitarian, also thinks that, in virtue of the fact that there are no “relevant
differences between people that justifies our giving the well-being of some more consideration than
the well-being of others...equal consideration is to be given to the well-being of everyone, and the
burden of proof rests upon those who would claim that there are relevant differences." 45 Taking
everyone’s interests equally in the utility calculus is known as utilitarian impartiality. We will see
that Hooker will reject utilitarian impartiality.
An added stipulation to Haslett's indirect utilitarian theory is that moral norms and values
are justified in terms of their conduciveness to overall well-being if they are backed by social
pressure.46 This is in contrast to the moral norms and values being generally followed or complied
with. Moral norms and values are backed by social pressure "if society exerts social pressure upon
people to act according to the norm or value." 47 Further, a "social pressure system is an entire
system of norms and values, with each being backed by social pressure of a certain intensity, scope,
and form."48
As an example of how this is implemented, Peter Singer (an act-utilitarian) holds that we are
morally obligated to give up our wealth to others up to the point of marginal utility (that is, up to the
point where giving any more would make us worse off than those we are giving to). Haslett argues
that, were society to attempt to back that moral norm with social pressure, instead of following the
norm, people would “simply disregard this norm, making a mockery of it, which not only would be
unfortunate for the starving, but might tend to lessen people's respect for morality in general."49
Thus, it can be seen that Haslett uses aspects of both the holistic and proof methods of
evaluating moral theories. He has tried to show that our moral concepts are in some basic and
essential sense parasitic upon notions of well-being. He also thinks that indirect utilitarianism can
fit well with our ingrained moral convictions. After professor Hooker’s theory is presented, I will
45
46
47
48
49
Haslett, 9.
Haslett, 11.
Haslett, 11.
Haslett, 11.
Haslett, 15.
12
endorse a method of evaluation for moral theories.
Brad Hooker has surprised the philosophical world with his book, Ideal Code, Real World.
Rule-consequentialism had fallen into a great amount of disfavor, and it was thought that certain
objections had sounded the death knell for rule-consequentialism. Hooker's theory can truly be seen
as a compromise or a sort of middle ground between the deontological views of John Rawls and the
thoroughgoing act-utilitarianism that Rawls took as his target. We will see that Hooker's theory is
able to overcome the greatest difficulties of both, while also maintaining their strengths.
In laying the foundations for an examination of Hooker's theory, we will need to analyze
what he thinks ought to guide and inform us in creating moral theory, and we must also see what he
thinks are difficulties to be overcome with other moral theories.
Hooker offers five criteria for assessing moral theories: 50
1.) Moral theories must start from attractive general beliefs about morality.
2.) Moral theories must be internally consistent.
3.) Moral theories must cohere with the moral convictions we have after careful reflection
4.) Moral theories should identify a fundamental principle that both (a) explains why our more
specific considered convictions are correct, and (b) justifies them from an impartial point of
view.
5.) Moral theories should help us deal with moral questions about which we are not confident,
or do not agree. 51
(5) seems uncontroversial, and all leading moral theories are capable of answering
controversial ethical questions. I believe most leading moral theories possess (1). Utilitarianism
appeals to the familiar notion that well-being matters morally (though whether it is the only thing
50 Hooker 2000, 4.
51 This criterion has been called "usefullness" by Lewis Vaughn.
13
that matters is the interesting question). Deontology invokes the familiar notion of respect for
persons and the fundamental duties we have to one another. In the case of rule-consequentialism, it
proceeds from the appealing notion that we ought to live in accordance with the moral code whose
communal acceptance would, as reasonably as could be foreseen, have the best consequences. 52
Most leading moral theories appear to be internally consistent and thus satisfy (2), but ruleconsequentialism has been charged with being inconsistent (this issue will be taken up in the next
section). Act-utilitarians reject (3). Moral non-realists, relativists, skeptics, and pluralists would at
least partially reject (4). A discussion of the utilitarian rejection of (3) will follow. I have neither
the time nor the space to address the moral skeptics and non-realists here.
Ought our considered judgments inform normative moral theory, and if so, how? Peter
Singer has forcefully argued that we should be prepared to jettison any and all of our moral
intuitions. He argues that, since our primitive and intuitive concepts of what is moral are largely
derived from our evolutionary history, it is not acceptable for us to take our moral intuitions to be
something that should be accounted for or explained by our moral theories, since we may have a
given moral belief or feeling merely because it was expedient to the survival of our ancestors.
Moral theories, Singer argues, are not supposed to answer the question "Why do we think as we do
about moral quesions?" Instead, they are just supposed to answer the question "What ought we to
do?"53
For example, most people find a case of incest between a brother and a sister to be morally
repugnant, even if there is no chance of having deformed offsprind and both parties consent to and
are happy with their decision. When asked to justify their decision that it is wrong, people will
eventually say things like "I don't know, I can't explain it, I just know it's wrong." 54
Another example involves trolley problems. In one, a train is diverted away from five
people to another track where it only kills one, which most people think is the right thing to do. But
52 Haslett, 1,5.
53
Singer, 345.
54 Singer, 338.
14
if instead of diverting a track the person must shove someone off a bridge in front of the oncoming
train, people then think that this is immoral. The reason for this, Singer argues, is that one of the
scenarios is "personal" while the other is "impersonal." Morality evolved in close social circles, and
our emotions, which are deeply tied to moral motivation, are more at work in the case of shoving
someone to their death than in the more distant and innocuous case of pulling a lever. The personal
emotionality of shoving someone off a bridge is enough to at least initially interrupt a rational
response, while the impersonal pulling of a lever leaves our mind free to come to the proper
conclusion. This is because "throwing a switch that diverts a train that will hit someone bears no
resemblance to anything likely to have happend in the circumstances in which we and our ancestors
lived."55
Because of the above considerations, Singer would reject (3) above, in addition to any
similar notions such as the reflective equilibrium technique. Moral theories do not need to cohere
with the moral convictions we have after careful reflection because these moral convictions could
be the result of our evolutionary history, which by no means guarantees that these intuitions are
rational. This sentiment was echoed by Brandt when he said that "our normative beliefs are
strongly affected by the particular cultural tradition which nurtured us, and would be different if we
had been in" a different learning situation. He continues that we should aim to "step outside our
own tradition somehow," and "evaluate it." 56 In light of this, Singer thinks that a perfectly
reasonable response to the "What ought we to do?" question is "Ignore all our ordinary moral
judgments, and do what will produce the best consequences." 57
But what positive reasons do we have to accept utilitarianism as the correct moral theory?
Singer thinks that the universalization of self-interested decision-making is enough to put the onus
on those who think we ought to go beyond utilitarianism for our normative criterion of action.
Singer thinks that utilitarianism is a "first base" that we reach by engaging in a sort of proto-moral
55 Singer 2005, 348.
56 Brandt, 21-22.
57 Singer 2005, 346.
15
deliberation. We all possess a selfish concern for our own interests, but, once we realize that
morality is something that applies to all sentient beings, we realize that it is the interests of all that
we must take into consideration in our moral deliberation. 58 Thus the utilitarian ethic is adopted.
But the appeal of this minimalist notion of moral justification can rest on nothing other than
intuition. There is no self-evident "clear and distinct" perception that utilitarianism is correct, nor is
the "divine light of reason" making it apparent to me or anyone else that utilitarianism is true. It can
only be our intuitions about how we rationalize and justify our own behavior that would make
utilitarianism justified or appealing.
This is also echoed by Hooker in his discussion of reflective equilibrium. He writes that "we
cannot evaluate our evaluative beliefs, or anything else, from a completely non-evaluative point of
view."59 A moral theory would have to cohere with the convictions that we believe very strongly to
be true, the beliefs of ours that have "independent credibility."60 Take, for example, soldiers who, to
fight their boredom, endlessly torture their prisoners. We do not need any justification to believe
very strongly that this is very wrong, and any moral theory that runs counter to it would likely be
quickly dismissed, and rightfully so. Jackon agrees that "we must start from somewhere in current
folk morality, otherwise we start from somewhere unintuitive, and that can hardly be a good place to
start."61
It is for the above reasons that we should accept what I earlier referred to as the “holistic”
method of evaluating moral theories. Some theories will have features of them that make them
more attractive than others in different respects. Some may be simpler, some may be easier to
apply, and some may fit better with our considered convictions. The theory we should adopt is the
one that, on the whole, satisfies our evaluative criteria to the greatest extent. We will not be able to
prove, deductively or otherwise, which moral theory is correct.
58 Singer 1999, 14.
59 Hooker 2000, 11.
60 Hooker takes pains to use the term "moral convictions" as opposed to "beliefs" or "intutions" in order to remain
metaethically neutral and not beg any questions in philospohy of language, metaphysics, and philospohy of
language. Hooker introduces the term "independent credibility" at 12.
61 Jackson, 135.
16
In the end, I agree with Singer that we should not accept or maintain moral intuitions that we
cannot provide any justification for whatsoever (as might be with the case of incest he describes or
even the trolley example used above), but this does not mean that no intuitions can be used at all in
our procedural development, construction, and evaluation of our moral theories. Moral theories
need to be evaluated somehow, and since there are no supra-theoretical criteria for us to rule out any
of the leading moral theories based on their own basic and abstract structure, we must resort to our
considered convictions as the starting point for building and evaluating moral theories.
Before we see how these five evaluative criteria work with Hooker's theory, let us first
briefly examine them with regards to other leading theories. First we will consider the case of John
Rawls and contractualism in general, then consider classical utilitarianism. The difference principle
says that "social and economic inequalities are to be arranged so that they are both (a) to the
greatest benefit of the least advantaged, and (b) attached to offices and positions open to all under
conditions of fair equality of opportunity." 62 It is part (a) of the Difference Priniple that is
controversial. The worst off have been given absolute (or lexical) priority over those who are better
off. While it is not too controversial to think that those who are worst off should be given some sort
of priority in our considerations, "it is another thing to think that a tiny benefit to the worst off is
more important morally than a huge benefit to the better off. Indeed, the view that even a tiny
benefit to the worst off is more important morally than a huge benefit to the better off is
implausible.” 63
It is intuitively implausible that any group of people ought to be given absolute priority over
the well-being of everyone else. Since all human beings are equal in the characteristics that pick
out moral significance (the ability to reflect, experience happiness and suffering, etc.) it seems that
all human beings should be given roughly equal consideration, and if one group receives priority
consideration over another, it should be to a relative extent, not a lexical, absolute one.
Contractualism also runs into problems when it comes to the moral standing of non-human
62 Rawls, 72.
63 Hooker 2000, 26.
17
animals. Kant thought that our duties to animals are merely indirect duties towards humans. 64
Peter Carruthers thinks that rational agents “should agree to try to develop a ready sympathy for one
another's suffering, and sympathy for animal suffering is...merely a side-effect of this general
attitude."65 But, Hooker argues, it does not seem to be the case that the reason animals are morally
relevant is a side-effect of our duties or sympathies to other people. They seem to be relevant
because they can suffer. “The overall good matters morally,” and “animal welfare is at least some
part of the overall good." 66 If we think animals are members of the moral community, then any
theory that does not deal with animals in a satisfactory way has a mark against it (at least initially).
If rule-consequentialism can deal with our considered judgments about the worse off as well
as the moral status of animal better than deontology and contractualism can, then that gives us at
least a few reasons to prefer rule-consequentialism over deontology as a theory of justice. We will
return to the comparative evaluation of the leading theories of political justice after we briefly
discuss how classical utilitarianism performs in light of Hooker’s five criteria for the evaluation of
moral theories.
Classical utilitarianism is usually construed to say that pleasure and the absence of pain are
the only things that matter in themselves." 67 This is called hedonism. But all of our pleasures do not
seem to have a distinctive feel that they all have in common. Hooker asks us to “compare the
pleasure of watching King Lear with the pleasure of satisfying an intense desire for sugar." 68
Another feature of hedonistic value theory is that the only thing that affects your well-being
is how your life is from the inside. Imagine two possible lives, A and B. In both lives, each believes
that their friends like them, that they have completed their main life goals, that they are acting
autonomously, and they have other beliefs about important things that they believe to be true. In
life A, all of her beliefs are true, and in life B, all of her beliefs are false. But the person
experiencing life B does not know that her beliefs are false, and it is actually also the case that life
64
65
66
67
68
Hooker 2000, 66.
Hooker 2000, 67.
Hooker 2000, 68.
Hooker 2000, 37.
Hooker 2000, 38.
18
B is a little more pleasurable (from the inside) than life A. The hedonistic theory of good would say
that life B is better than life A, though nearly all would agree that knowing the truth would make us
better off without making us happier. 69
A sophisticated rule-consequentialism should avoid the problems faced by act-utilitarianism,
Kantianism, and contractualism, as well as avoid the objections and criticisms made against
utilitarianism by Rawls and Nozick. If rule-consequentialism can avoid the theoretical difficulties
with deontology and utilitarianism pointed out above, as well as cohere with our considered
judgments just as well as if not better than deontology and utilitarianism, then we should prefer
rule-consequentialism to those two theories. In light of the problems with the other theories we
have reviewed, Hooker's consequentialism has a number of features that allow his theory to avoid
them.
Firstly, Hooker's theory accepts Derek Parfit's account of the priority for the worse off, or
prioritarianism. 70 Prioritarianism is the view that, the worse off someone is, the more importance
we ought to attach to their well-being; it matters more that we help those who are worse off than we
help those who are better off. 71 This preserves our intuitions about looking to the worst off first, but
it avoids the Rawlsian extreme of giving them absolute priority over everyone else. Also notice that
this amounts to rejecting utilitarian impartiality, that is, the utilitarian idea that the interests of all
people should be taken into consideration equally. Thus the priorty for the worst off makes Hooker
a rule-consequentialist and excludes him from being a rule-utilitarian.72
In Hooker's rule-consequentialism there is also no need to accept the hedonistic theory of
value. Hooker's theory makes room for a pluralistic, or list-theory of the good. 73 This is to say that
pleasure and the satisfaction of desires (that hedonistic act-utilitarians hold is the only thing of
intrinsic moral value) do not exhaust other possible intrinsic goods, such as knowledge, friendship,
69 Hooker 2000, 38. This objection is very similar to Nozick's point in the experience machine objection. Its main
purpose is to critique the idea of moral value as being merely phenomenal.
70 Parfit, 1997.
71
Hooker, 2008.
72 Rule-utilitarians do not care about the distribution of well-being, only the amount. Rule-consequentialists do care
about the distribution, in conjunction with considerations for total well-being.
73 Hooker 2000, 43.
19
achievement, and autonomy. 74
Thus we can see how Hooker's theory already surmounts many of the objections to which
utilitarianism was susceptible. The utility monster will not gobble us up, since it is not just the
preponderance of pleasure over pain that matters, but also the distribution. We need not worry
about the experience machine, since the experiences of pleasure and pain are not the only things of
intrinsic value. We can seek to further as consequences things such as actual knowledge and
friendship, because we consider these to be important components of a list of goods that we value
instrinsically. 75
We have seen some of the features of Hooker's theory and how it contributes to many of its
strengths in overcoming the problems had by other moral theories, such as contractualism,
deontology, and classical utilitarianism. But there are other, more recent objections that have been
leveled at this new rule-consequentialism, charging it with incoherence and collapse objections.
But before we can see how it responds to these popular objections, we must observe some of its
other features that may help it to avoid these common objections.
Recall that D.W. Haslett's theory required that moral norms and values be backed by social
pressure. Hooker has a very similar requirement. Hooker agrees with Haslett that mere compliance
will not do. Accepting and internalizing rules is different from mere compliance. “Acceptance of
rules also involves the disposition to encourage others to comply with them, dispositions to form
favorable attitudes toward others who comply with them, dispositions to feel guilt or shame when
one breaks them and to condemn and resent others' breaking them, all of which dispositions and
attitudes being supported by a belief that they are justified." 76
Further, internalizing a rule can have consequences over and above mere compliance. In
order to comply with a rule, only one's behavior need be congruent with it. But in internalization,
the inner mental constitutation must change.
74 Hooker 2000, 41.
75 Additionally, as Mill sought, the diversity of goods can be fully respected without worry; all goods, bads, pleasures,
and pains need not resolve uniformly and quantitatively.
76 Hooker 2000, 76.
20
The percentage of society that must internalize the rule in order for it to properly be the case
that the society has internalized it is also an interesting question. It surely cannot be 100%, as this
is impossible in practice. But it must be as close to 100% as possible in order for it to be considered
the case that the whole society has internalized the rule. Recognizing that any specific number is
ultimately arbitrary, Hooker gives 90% as the number of people in society who must internalize a
rule in order for it to be the case that the rule has been internalized by society.
Thus we have Haslett's requirement of rules being backed by social pressure, and we have
Hooker's requirement of internalization. In terms of practical consequences, it seems that the two
requirements are almost indistinct. In order for a rule to be backed by social pressure, it seems that
it would have to first be internalized by that society. A direct consequence of a rule being
internalized would be that that rule would be backed by social pressure. But from a theoretical
standpoint, Hooker's requirement of internalization includes Haslett's notion of being backed by
social pressure, and then some. If the moral code has been internalized by the majority of society, it
will automatically (as a result of certain contingent facts of human nature) be backed by social
pressure (that is, people will disapprove of others when they break the code, they will feel guilt
themselves, etc.). But just because society backs a given rule with social pressure does not mean
that it has been internalized by society (they could be backing the rule for reasons other than the fact
that it has been internalized by them). Thus, for simple, purely theoretical reasons, we should prefer
the internalization requirement over the mere social pressure requirement.
Since the moral code will be internalized by society, it also follows that the code has to be
public, at least in the sense that it is epistemically available to everyone. Recall that Sidgwick
entertained the idea that there could be an enlightened minority who know the full truth about
morality, while the rest are deceived (in order to maximize utility). In Hooker's theory, since
society assents to and accepts moral rules collectively, there is not room for such a Sidgwickian
“paternalistic duplicity."77
77 Hooker 2000, 85.
21
So now we can see a sufficiently detailed picture of Hooker's rule-consequentialism, with its
relevant features outlined:
"An act is wrong if it is forbidden by the code of rules whose internalization by the overwhelming
majority of everyone everywhere in each new generation has maximum expected value in terms of
well-being (with some priority for the worst off). The calculation of a code's expected value
includes all costs of getting the code internalized. If in terms of expected value two or more codes
are better than the rest but equal to one another, the one closest to conventional morality
determines what acts are wrong." 78
It is this moral theory, with some modifications and additions that are inspired by D.W. Haslett, that
I will use in the final section to evaluate the two politcal issues of inheritance and torture. I will
discuss those modifications now.
In Hooker’s theory, rules are the only things which are put up against foreseeable
consequences to evaluate them. Haslett, in addition to rules, also thinks that values are things
which can be derived using consequences. These values are in turn action-guiding. Since I think
one can justify and defend their actions as moral by appealing (solely perhaps, under certain
circumstances) to a given value or values, we should incorporate the normative evaluation of values
that is present in Haslett’s theory into Hooker’s theory. Thus, instead of referring to the
consequentialist theory of justice as rule-consequentialism, it shall properly be referred to as
indirect consequentialism (since we are using consequences to evaluate more than just rules).79
Let us summarize what has been done. We rejected utilitarianism, since we give weighted
priority to those who are worse off, and we have room in our theory to further consequences other
than well-being. Additionally, Nozick’s, Rawl’s, and Hooker’s criticisms of act-utilitarianism,
78 Hooker 2000, 32.
79
Recall that rule-consequentialism is a type of indirect consequentialism. The presence of moral values in evaluating
actions forces us to use to broader term indirect consequentialism.
22
collectively, appear decisive. The deontological theories are inferior to the consequentialist theory
with regards to the moral status of animals, since the consequentialist theory takes animal wellbeing into the community of total well-being, whereas the deontologists see our duties to animals as
being nothing more than indirect duties to other people. The consequentialist theory also does a
better job than deontology and classical utilitarianism in terms of cohering with our considered
judgments with regards to our duties to those who are worse off. We have arrived at an indirect
theory of justice that avoids the problems experience by classical utilitarianism and deontology. It
also appears to fit better with some of our considered judgments than deontology and actutilitarianism do.
But before we can use the indirect consequentialist theory in practical application, we must
first be sure that it can overcome the new objections that it is said that rule-consequentialist theories
are subject to. Even though I am referring to my theory by a different name than the theories of
Hooker and Haslett, the semantic differences belie their meta-ethical differences. Since they
ultimately are very similar, they are subject to the same sweeping criticisms, which is why I address
them in what follows.
Brad Hooker notes that, for several decades, it was widely thought that ruleconsequentialism collapses into act-consequentialism. In other words, act-consequentialism and
rule-consequentialism are actually extensionally equivalent. We will see that the internalization or
inculclation requirement becomes very important in overcoming this objection.
The collape objection generally says that rule-consequentialism would endorse something
like the following set of rules:
1. Don't kill, except when killing would maximize the good.
2. Don't steal, except when stealing would maximize the good.
3. Don't break promises, except when promise-breaking would maximize the good.
4. Etc...
23
Thus, it seems that the actions called for by rule-consequentialist morality are the exact same
actions as are required by act-consequentialist morality.
Now, if compliance with the rules were the only thing that mattered, then this objection
would have force. But it must be remembered that Hooker's theory requires that the vast majority
of the members of society internalize and be inculcated with the code (the set of moral rules). The
internalization of rules has effects and consequences beyond the mere consequences of obeying
those very same rules.
One problem that arises would be our expectations of others. If we knew that others abided
by a set of rules with so many exception clauses, we would be cautious and distrustful of others to a
paranoid extent. We would lack confidence in other to hold their promises and tell us the truth. The
behavior of others needs to be somewhat predictable in order for us to have reasonable expections
of others.
Additionally, there are limits to what we can learn. In order to have a set of rules that are
extensionally equivalent with act-consequentialism, there would not only have to be an enormous
number of rules, but they would be extraordinary in their individual complexity. 80 Learning and
internalizing a rule for almost every conceivable situation is not possible for our minds.
Also, even if we possessed the extraordinary mental powers to internalize the enormous
number of complex rules that are extensionally equivalent with act-consequentialism, we must also
remember the internalization costs of inculcating society with the dictates of act-consequentialist
morality. Act-consequentialist morality is very demanding; it requires us to sacrifce ourselves and
others for even the tiniest gains in total utility. The costs of internalizing a set of rules that would
call for people to make enormous self-sacrficies would be too great. True rule-based morality
would call for rules that are less demanding. 81
But then it seems that rule-consequentialism calls on us the blindly obey rules like "Don't
80 Hooker 2000, 97
81 Hooker 2000, 98.
24
break promises," even if following that rule would lead to the end of the world. Thus, ruleconsequentialism would lead to disaster. 82
But rule-consequentialism could have an ordering of rules. We might have rules like "Don't
break promises," and "Don't kill innocent people," but we could also have rules like "Prevent
disaster," that take priority over other rules. But just because we would break a promise or kill an
innocent person to prevent a disaster in rule-consequentialism does not mean that it collapses into
act-consequentialism. "Act consequentialism holds that we should break the promise whenever
doing so will produce more good," but rule-consequentialism says we only must do so in order to
prevent disaster. 83 Thus, in rule-consequentialism, we would hold promises or keep from killing an
innocent person even if, in that one specific instance, doing (or not doing) so would fail to
maximize utility (the reason being that there is no disaster to prevent).
Does rule-consequentialism collapse into extensional equivalence with actconsequentialism? It depends on how it is formulated. If there is only a compliance requirement,
then yes. But if rules must be internalized, rule-consequentialism does not collapse into actutilitarianism.
Rule-consequentialism is also said to be subjet to the objection that it is incoherent. This is
because of the fact that, on the one hand, rules are formulated and chosen based on how well they
maximize the good. But rule-consequentialism seems to tell us that we should follow rules, even
when following the rule in that case would not maximize the good. We have set out to maximize
the good, and yet, in following these rules, we fail to do so. Thus, rule-consequentialism is
incoherent.
The reply to his objection rests on a distinction between the criterion of rightness and the
motivation to act morally. Hooker offers the following as a possible set of attitudes of a ruleconsequentialist's moral psychology:
82 Hooker 2000, 99.
83 Hooker 2000, 99.
25
1. Their fundamental moral motivation is to do what is impartially defensible.
2. They believe acting on impartially justified rules is impartially defensible.
3. They also believe that rule-consequentialism is on balance the best account of impartially
justified rules. 84
Thus the reason that one is a rule-consequentialist is not to maximize the good. Under this
conception, the motivation for being a rule-consequentialist is that the person wishes to act in a way
that is defensible from an impartial point of view.
Thus, the rule-consequentialist who holds to this view would not "have maximizing the good
as their ultimate moral goal." 85 The goal is to behave in a way that is rationally defensible. It just
so happens that the way to do this is to act according to rules which are selected based on the extent
to which they maximize the good.
Another complaint one could try to level against this version of consequentialism is that it is
not as precise as the other moral theories, because it only outlines a priority for those who are worst
off, as opposed to having discrete answers to the questions of who benefits. In act-utilitarianism,
one act is better than another if there is even the tiniest improvement in well-being. With the
Difference Principle, those who are worst off must benefit maximally from any allocation of
benefits across society. Act-utilitarianism and the Difference Principle thus allow for a great degree
of accuracy in the prescriptions of moral acts and of the enactment of justice.
Merely giving priority to the worst off is much less precise, and it is easy to see how
problems of vagueness could easily muddy our discussion of "What ought we to do?" We might
wonder to what degree we need to give priority to the worst off, and be stuck in an indeterminate
area with no means of obejctively or quantitatively resolving the matter.
To this I would respond with a quote from Aristotle, who has an important thing to say about
the precision of our theorizing. He writes that we ought "not look for precision in all things alike,
84 Hooker 2000, 101.
85 Haslett 2000, 102.
26
but in each class of things such precision as accords with the subject-matter, and so much as is
appropriate to the inquiry." 86 The precision we would find in physics and mathematics cannot be
expected from the science of morals and politics. It should be perfectly acceptable and normal that
there be a point at which the only method of adjudicating between two laws or actions is our
intuition.
Thus, it seems that Hooker's rule-consequentialism, and thus the indirect consequentialist
theory of justice is not subject to the common criticisms that are often thought to spell the end of it.
Indirect consequentialism can also make room for many of our intuitions about the diversity of
instrinic goods that we ought to strive for, since it is not committed to the hedonistic theory of value
found in utilitarianism.
To summarize, I have argued that the consequentialist theory of justice is superior to the
other theories we have mentioned. Nozick’s, Rawl’s, and Hooker’s criticisms of act-utilitarianism,
collectively, are decisive. The deontological theories are inferior to the consequentialist theory with
regards to the moral status of animals, since the consequentialist theory takes animal well-being into
the general well-being, whereas the deontologists see our duties to animals as being nothing more
than indirect duties to other people. The consequentialist theory also does a better job than
deontology and classical utilitarianism in terms of cohering with our considered judgments with
regards to our duties to those who are worse off. Our consequentialist theory is not subject to the
new criticisms that many think it to be.
This will be the theory we use for political analysis. Under the consequetialist theory of
justice, the policies, laws, and rules which are just will be those which maximize the good for
everyone, giving priority to those who are worse off. The two issues we will examine are strategic
torture and the inheritance of accumulated wealth. The motivation for this exercise is threefold.
Firstly, it will give two concrete examples in support of Hooker’s fifth criterion for the
evaluation of moral theories, that “moral theories should help us deal with moral questions about
86 Nichomachean Ethics, Book I, Chapter VII.
27
which we are not confident, or do not agree.” Secondly, it will serve as a demonstration of how the
consequentialist theory of justice is employed in the arena of political discourse. Finally, I hope it
will help to encourage philosophers to step down from the ivory tower and get their hands dirty and
their feet wet in the realm of social and political debate. The world will be much better off if
philosophers have more influence on our national, state, and local debates about justice and policy.
The Consequentialist Theory of Justice in Practice: Torture and Inheritance
Strategic Torture
The first issue we will consider is that of strategic torture. I use the term strategic to exclude
any torture such as in the example used earlier of soldiers torturing prisoners to fight their boredom.
This type of torture is obviously and uncontroversially wrong. The type of torture that I am
concerned with is torture that is meant to improve or maximize the good in same way; torture that is
used instrumentally to save human lives.
I do not wish to labor over a discussion of what the exact definition of torture is. It is
certainly an interesting philosophical question whether or not Khalid Sheikh Mohammed, who was
subject to waterboarding more than 100 times, was tortured in each of those instances. In all
likelihood, he was. What will do for now is a provisional definition of torture offered by Miller as
"the intentional infliction of extreme physical suffering on some non-consenting, defenceless
person," through the "intentional, substantial curtailment of the exercise of the person's
autonomy."87 This definition will suffice for our purposes.
What philosophers are often interested in is the scenario of the ticking time bomb. Here, a
powerful explosive is set to go off within a few days in some major city. The authorities have
apprehended a person who they have very good reason to believe knows the location of the bomb.
87 Miller, 2008.
28
The question is whether or not it would be moral, indeed whether or not it is morally obligatory for
the authorities to torture that individual in order to find the location of the explosive and save the
large number of human lives.
Now, the act-utilitarian would say that we ought to torture whenever that torture has the
reasonable expectation of creating even the slightly amount of utility over the amount of disutility
created in the act of torture itself. Thus, it would seem that utilitarianism would not only call for us
to torture the person to save a city of a million people, but it might even call for us to torture
someone in order to save a handful of people.
Deontology I regard as being at the other extreme. It would hold that we have a duty not to
torture anyone, even if the number of people it could potentially save is very large. On this matter, I
would like to characterize act-utilitarianism and deontology as being at two extreme ends of a
spectrum, where the most acceptable and reasonable choice is found in the middle, and is in fact
called for by our indirect consequentialist theory.
Recall that indirect consequentialism would have a rule to "Prevent disaster" that takes
priority over nearly all other rules. Hence, it would seem that rule-consequentialism would have us
torture the individual in order to prevent the disaster of the deaths of a million people.
Even though indirect consequentialism would have us torture the individual in the disaster
case, it does not follow that it would have us torture the individual in the case of saving a handful of
people, as act-utilitarianism would. In this example, we would be following the rule "Don't
torture," and we would continue to follow this rule until the reasonable expectation of disaster
would force us to invoke the "Prevent disaster" rule.
Here we can see another instance of a lack of precision that was hinted at earlier. But we
can rest assured that it is not necessarily the case that the moral science admits of the precision that
we would find in the qualitative, hedonic calculus of act-utilitarianism. We must resort to our
intuitions for borderline cases, and we cannot become frustrated when perfect precision is not
achieved.
29
The next question for a theory of justice is to consider how this rule would be implemented,
or inculcated into the government. It would initially seem that we ought to instruct our government
security officials "Don't torture, unless it is to prevent disaster." While it is seemingly initially the
right thing to do, I argue that this is not so.
The government security officials are not members of the judicial or legislative branches,
they are member of the executive branch. At least in the United States, the executive branch has a
history of overstepping and abusing its powers (at least as they are outlined in the Constitution). In
fact, the history of the Amerian presidency has been characterized by a gradual increase in the scope
and power of the executive branch, reaching a new peak under the Bush administration.
Given this history, having the executive branch follow the "Don't torture, unless it is to
prevent disaster" rule would not be prudent, since, in the process of internalization, the executive
would likely abuse its power and go beyond the rule itself, and utlimately end up failing to act in
accordance with the rules that maximize the good.
Perhaps the better thing to do would be to advocate something similar to the idea outlined by
Richard Posner. He thinks that, due to the danger of government officials overstepping their bounds
and abusing their power, we should maintain a legal prohibition on torture and hope that, when the
time comes, our public officers would "act on a moral duty that is higher than their legal duty." 88
This would help ensure that torture is only used in cases where true disaster is likely imminent, and
the members of the government would deliberate with great care before making any orders to
torture.
As long as society is inculcated with the “Avoid disaster” rule that takes priority over
basically all other rules, I think that we can be confident that our leaders would act in such as
manner as to obtain the valuable information. But by not incorporating it into a legal rule, we can
also remain confident that torture does not become regular and systemic, and that it would not bleed
into other realms of our justice system that we would not deem appropriate.
88 Posner, 85.
30
Inheritance
The second issue I will consider is that of the inheritance of accumulated wealth. Here I am
referring to the wealthy grandparent, who, having lived a life of productivity and modest
consumption, has amassed a large amount of wealth which they bestow upon someone else, usually
their child or spouse. My discussion here is deeply inspired by that of D. W. Haslett in Capitalism
with Morality.
Before we begin our discussion I must qualify it. It is easy to see why people who reject
capitalism would reject the social and legal practice of inheritance, namely because of the
contributions it makes to inequality. Since the rich can give the most in inheritance, and they
usually give it to their children, class boundaries are much better perpetuated under the practice of
inheritance. But those who already accept capitalism as the best economic arrangement typically do
not have a problem with inheritance as it is practiced (and many would like to see its current
restrictions lessened or eliminated). This discussion will assume that capitalism (or some version of
it) is the proper economic arrangement, and then argue for greater restrictions to be placed on the
social and legal practice of inheritance.
Recall earlier when I mention that features of Haslett's version of rule-utilitarianism has
features which are compatible with the theory of professor Hooker. Namely, in addition to using
well-being to evaluate rules (or norms), we could also use them to evaluate values. Moral values
include such things as dignity, fidelity, camaraderie, etc. But the values that are relevant to our
discussion of capitalism and inheritance are (1) distribution according to productivity, (2) equality
of opportunity, and (3) freedom. 89
One of the much emphasized features of capitalism is that people need to have incentives in
order to be productive (this idea is often used in arguments against welfare). In order for people to
produce, they need to have an incentive to produce. One consequence of this is that people, as a
89 Haslett 239-241.
31
result of being productive, need to be able to keep at least some of the fruits of their productive
activities. Hence, resources will be distributed according to the productivity of the individuals who
possess them. In general, the more productive one is, the more they will own. This is what Milton
Friedman had in mind when he composed his capitalist dictum “to each according to what he and
the instruments he owns produces.” 90
Additionally, capitalism often espouses equality of opportunity. It is alright for everyone to
end up differently, capitalism says. That is, it is “OK if, in the economic game, there are winners
and losers,” but only provided that “everyone has an equal start.” 91 Thus, one of the values that
capitalism seeks to further is equality of opportunity.
Finally, capitalism seeks to further the value of freedom. Famously, there is strong
disagreement about what liberty really is. Some think it is merely freedom from control or
coercion, while others think that it is a broader notion of having the freedom to desire, be, or have
certain things. 92 Capitalists typically prefer the notion of liberty as freedom from coercion, while
socialists, Marxists, and members of the social democratic left typically prefer the broader notion.
For the sake of argument I will assume that the capitalist's notion of freedom is the correct one.
Now what the consequentialist theory of justice must do is see which policies further the
three preceding values to the greatest extent. Since none of these values are absolute, whichever
policy furthers the values, taken as a whole, to the greatest extent, is the one that the
consequentialist theory of justice calls for.
We can see how the three values come into conflict in light of the issue of inheritance.
Those who have lived a life of productivity ought to have the freedom to then allocate the resources
they have accrued as they see fit, since, to have a property right in something is to have the power to
decide to what use that thing will be put. So one might think that no restrictions at all should be
placed on inheritance.
90 Friedman, 161-162. This is noted by Haslett at 239.
91 Haslett, 239.
92 These two competing notions of freedom are often termed negative and positive freedom, respectively, while Haslett
(at 242) refers to them as the narrow and broad notions of freedom.
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But notice what the result of the practice of inheritance is. Resources (and, in many cases,
vast resources) are given to certain individuals, not because they have been productive, but because
they happen to be the child of someone who is productive. Thus someone can become a millionaire
for no reason at all tied to their productivity. Under the unrestricted practice of inheritance, many
people will be able to control large amounts of resources, even though they themselves have done
nothing to earn it. This is in direct violation of one of the most important values of capitalism.
As mentioned earlier, inheritance increases the disparity between the rich and the poor. The
rich give to their children, perpetuating their class status, and the poor have nothing to give,
perpetuating their class status. Additionally, the nest-egg child can merely invest their money over
a lifetime, and then give that nest-egg to their children, so on and so forth, increasing the gulf
between the rich and the poor. An increasing disparity between the rich and the poor is obviously
not compatible with a prioritarian concern for the worst off. It is also not compatible with the
negative notion of freedom since those who are worse off face much greater obstacles to doing as
they please than those who are comparatively well off.
So as not to engage in an extended, comparative cost-benefit analysis of different theories, I
will merely propose my own, indicating its strengths and weaknesses. In order to preserve the
freedom of allocation to a large percentage of the population, I propose that people be able to give
to others up to the point of approximately $200,000 tax-free. This allows members of the lower and
middle classes to exercise their end-of-life allocative freedom.
Beyond the $200,000 point (or something close to it), a federal inheritance tax would
begin.93 I am not sure what the exact percentages ought to be, but I can say that, from an intuitive
standpoint, the taxes after the $1 million mark should be very strong. It is the millionaires in
America that greatly contribute to the inequality of wealth and the disparity in the equality of
opportunity. It is indeed very plausible that the marginal tax rates for inherited gifts in the multimillion dollar range should be over 90%. Inheritances of gifts over $1 billion ought to be taxed at a
93 I agree with Haslett that donations to charities and non-profits ought to be tax free.
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marginal rate of around 99%.
Thus, millionaires and billionaires would still have the freedom to bestow upon their
children a lifetime of both relative and absolute wealth, but much of the wealth and income
disparity that exists in society at large would begin to lessen. The policy has the weakness in that
inheritance will still perpetuate some inequality, and there will still be some people who get many
resources without themselves being productive. It also has the weakness of strongly restricting the
freedom of those who are very wealthy.
However, the policy advocated for is the one most appropriate to giving priority for the
worst off. It also preserves the value of freedom to the fullest or near-fullest extent for the lower
and middle classes, which comprise the majority of society. This policy is also very strong with
regards to the value of productivity, since unproductive individuals would not be able to possess
enormous sums of wealth. 94
Conclusion
The consequentialist theory of justice outlined here is an indirect one. It has been shown
that this theory coheres well with some of our considered convictions, and it has been demonstrated
that it avoids many of what have previously thought to be powerful and decisive objections against
it. We have also seen how the consequentialist theory of justice can be used to help us address
problems in practical political theory. Greater work needs to be done to see what implications the
consequentialist theory has for the wider problems of political philosophy, such as the distribution
of goods and services across all members of society. Only a great work could give proper treatment
to such an issue.
94 My policy on inheritance could also have the following indirect benefit to the value of freedom. Since the federal
government would be collecting much more tax revenue from inheritance, other taxes, like the income tax, could be
greatly reduced, thus increasing individual freedom in at least one respect.
34
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