Critical Legal Thinking in Philosophy. The Theories of Bentham, Rawl and Nozick

Contents

Introduction

Jeremy Bentham’s Utilitarianism

John Rawls’ Social Contract Theory

Robert Nozick’s Libertarianism

Theories in Context

Conclusion

Bibliography

Introduction

Aristotle’s quotation attempts to link the concepts of equality and justice together to ascertain equality or inequality. Justice and equality, however, can be seen as two separate concepts and it is up for debate as to whether justice is a sort of equality. This leads to the more insightful question, what is justice? And how can it be achieved? In Aristotle’s quotation there is the mention of men, this raises the question; what about women? Surely if justice was linked with equality, which is often linked with non-discrimination, it would include women being able to achieve justice. It is important to consider that Aristotle wrote in 300-400BC, when women were subordinate and slaves were permitted, when looking into his theories.

Aristotle argued that there were two forms of justice; distribution the giving of honours and money and rectification which was more corrective and righting wrongs. Aristotle also looked at ‘the purpose’ argument, what was the purpose and that satisfaction arises from fulfilling this role. This essay will look at more recent theorists and their theories and to what justice may be and how to achieve it. In particular, this essay will focus on a utilitarian viewpoint using the theories of Jeremy Bentham and in contrast a Libertarian viewpoint using the theory of Robert Nozick. In addition to these two leading theorists, this essay will also look into the theory of the social contract from modern philosopher John Rawls.

Jeremy Bentham’s Utilitarianism

Jeremy Bentham was a British philosopher writing in the 18th and 19th centuries; he is considered to be the founder of modern utilitarianism. Utilitarianism is the moral belief that the right thing to do is what will benefit the immediate vast majority. This theory can date back prior to Bentham, to an earlier theorist Francis Hutcheson, who lived 1694-1746. Hutcheson said “action is best, which procures the greatest happiness for the greatest numbers”.¹ It can therefore, be argued that Bentham has taken the argument from Hutcheson, the ‘greatest good for the greatest number’ to develop his own theory of justice.

Bentham appears to have taken the notion of the greatest good for the greatest number, the utilitarianism concept, attaching his own thoughts, how to calculate and added justification to this theory. In his first chapter of his book² he talks about the principle of utility and the concepts of pleasure and pain. Bentham’s theory seems to hinge upon the idea of pleasure and pain, he asserts that to achieve maximum utility, we must evaluate pleasure and pain against one another. Bentham writes “nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as determine what we shall do”.³ This quotation not only states the principle on which Bentham focuses his theory, but the use of the words ‘sovereign masters,’ suggest that this is an ultimate power which cannot be questioned by anyone despite their position within society. He also emphasises that these ‘sovereign masters’ not only govern what we ought to do, morally speaking, but that they point out what we shall do. This suggests that what we ought to do is automatically what we do, when pain and pleasure are placed against one another. One critique of this theory; is that it fails to recognise individual rights. A further critique of this is when pain and pleasures are equal. In terms of ten people obtaining pleasure and ten people obtaining pain, how do we obtain the morally right thing to do? Additionally, Bentham does not distinguish between types of pain or types of pleasures, they are all the same and it is a bit of a ‘numbers game’ to establish maximum utility.

Bentham also goes on to discuss the concepts surrounding what is right and wrong; he states that they are “fastened to their throne, they govern us in all we do, in all we say, and in all we think.”⁴ This quotation attempts to link to the previous, stating that pain and pleasure can be linked to right and wrong. Therefore, regardless of how we think this will become part of our judgement. In order to apply the principle of gaining maximum utility, it is important to understand the meaning of utility. Bentham describes the principle of utility as the “principle which approves or disapproves every action whatsoever, according to the tendency which it appears to have argument or diminish the happiness of the party whose interest is in question”⁵ or in other words “to promote or oppose happiness.”⁶ He also goes on to state that government is subject to this provision, “not only every action of the private individual, but of every measure of government.”⁷

Bentham appears to be stating that happiness is of primary importance and that utility will result from the greatest happiness. With this reference to government, Bentham suggests that this concept should be used when legislating. This links to chapter IV in his book where he addresses this more directly. He stipulates that “it is not to be essential that this process should be strictly pursued previously to every moral judgement, to every legislative or judicial operation. It may, however, be always kept in view”.⁸ Arguably what Bentham is trying to assert from these quotations is that happiness of a collective group should always be considered and in view when making any judgements.

Bentham also attempts to reply to possible critiques or objections to his theory in advance, he writes about a man trying to ‘combat the principle of utility’. He says “the arguments, if they prove anything, prove not that the principle is wrongǥ it is misapplied”⁹. He also goes on to state rather powerfully that “is it possible for a man to move the earth? Yes; but he must first find another earth to stand upon”.¹⁰ What Bentham here is suggesting is that although in theory it may seem possible, obtaining another earth to stand upon, upon application it is impossible. So as much as it is impossible to stand on another earth to move it, it is just as impossible to combat the principle of utility.

In his book, Bentham also devotes a chapter (IV) to how pains and pleasures should be valued; he said “pleasures then and the avoidance of pains are the ends which the legislator has in view.”¹¹ And “pleasures and pains are the instruments he has to work with”.¹² He mentions not different types of pleasures and pains as to him they are all the same, but uses criteria such as intensity, duration, certainty and remoteness to give each pain or pleasure a value, so maximum utility can be ‘worked out’. He also gives four distinguishable sanctions from which pain and pleasure can grow “physical, the political, the moral and the religious”.¹³ He then goes on to give the ‘overall formula’ of how we should obtain maximum utility. He states that we should “sum up all the pleasures on one side and those of all the pain on the other,” ¹⁴ he continues to propose that the balance should be acted upon holistically, suggesting that individual rights merely count as a ‘vote’ to one side. He extends this in Chapter V to describe pleasures and pains and their kinds, this list is lengthy and attempts to include all possible pains and pleasures.

Bentham appears to use a mathematical formula to calculate pleasures and pain; it is as simple as adding up all the people who experience pleasure on one side and all those who will experience pain on the other. If the pleasure side is bigger than the pain side then it is the morally right thing to do, in accordance with Bentham, it allows the action containing the most pleasure. He asserts that we all enjoy pleasures and seek the avoidance of pain and thus the logical outcome for a just society is to maximise pleasure and avoid pain where possible, governance by hedonism. He also suggests that law should follow the command of the sovereign masters that are pleasure and pain. He describes natural or fundamental rights as ‘nonsense on stilts’ and rejects that there is a social contract argument, stating that it is merely a historical metaphor. Bentham’s theory can be criticised as it fails to take into account different types of pleasures, which has subsequently be subject to more indepth discussion.¹⁵

John Rawls’ Social Contract Theory

John Rawls was an American philosopher writing in the 20th Century. Rawls’ theory is not one that can be easily calculated with one overarching principle. Justice for Rawls is obtained rather differently; Rawls defines justice as the structural rules of society in which people can agree upon values that cooperate. Rawls argues that rules are required in society in order for fair distribution and how guidance upon society should function. The issue then arises, on what terms and what rules should society be based?¹⁶

Rawls’ main theory hinges on the idea of the ‘original position’ in equity. Rawls writes “the intuitive idea of justice as fairness is to think of the first principles of justice as themselves, as the original agreement in a suitably defined initial situation”.¹⁷ He goes on to add “in this position of equality to settle the basic terms of their association”.¹⁸ Rawl’s assertion here is to think back to an initial situation, an original position and think of what rules or functions we would have if the state, or other body, enforced or provided opportunities for public discussion. He goes on to say “now obviously not everyone can obtain everything he wants; the mere existence of other persons prevents this”.¹⁹ What Rawls appears to be suggesting here is that society, upon deciding the rules they would have imposed, could not possibly all be selfish and have what they all want as there would be no universal agreement to come to, and as a result of this, selfish rules would not be imposed.

A clear critique of this theory is; how can one think back to an initial position and imagine what laws or rules would be created in terms of a social contract? Rawls has the answer to this; he says “it is clear that the original position is a purely hypothetical situation, nothing needs to resemble it ǥ although we canǥ simulate the reflections of the parties.”²⁰ Rawls, therefore, appreciates that the mere idea of gathering people to form an opinion is not feasible and says it is to be used a hypothetical situation. Nevertheless, the question of how is it possible to arrive at this ‘original position’ and all agree upon how society should be formed or regulated arises. Rawls has designed his Magnum opus of ‘the veil of ignorance’ as a device which should be used to help arrive at the original position.

Rawls says “the idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use notion of pure procedural justice as a basis of theory.”²¹ Rawls sets out what the original position should be, he goes on to identify a shortfall which led him to the concept of the veil of ignorance. He says “somehow we must nullify the effect of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage.”²²

[...]

¹ Hutcheson, 2004, p.125

² Bentham, 1970

³ Ibid., p.11

⁴ Ibid

⁵ Ibid., p.11-12

⁶ Ibid

⁷ Ibid

⁸ Ibid., p.40

⁹ Ibid., p.14-15

¹⁰ Ibid.

¹¹ Ibid., p.38

¹² Ibid.

¹³ Ibid., p.34

¹⁴ Ibid., p.40

¹⁵ Stewart Mill, 2011

¹⁶ Rawls, 1999

¹⁷ Ibid., p.102

¹⁸ Ibid

¹⁹ Ibid., p.103

²⁰ Ibid., p.104

²¹ Ibid., p.118

²² Ibid