1980 A. P. A. Western Division Meetings || Utility as a Possible Ground of Rights

Utility as a Possible Ground of RightsAuthor(s): David LyonsSource: Noûs, Vol. 14, No. 1, 1980 A. P. A. Western Division Meetings (Mar., 1980), pp. 17-28Published by: WileyStable URL: http://www.jstor.org/stable/2214887 .

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Utility as a Possible Ground Of Rights

DAVID LYONS

CORNELL UNIVERSITY

I

Mary lives with her two small children in a modest, crowded neighborhood. She needs her car for transportation. Many others in her neighborhood have cars, and parking spots are sometimes difficult to find. Given her tight schedule and family circumstances, and despite her limited budget, she feels justified in renting a house that comes with a garage for her car.

Access to the garage is provided by a private driveway, which she alone is authorized to use. Sometimes, however, she finds someone else's car parked in the driveway, which pre- vents her from parking or leaving with her own car. When time permits, she seeks out the driver or leaves a note to ask that the car be moved and the driveway left clear. Sometimes she must have a car towed away. Even so, she may be greatly inconvenienced. Once, when her younger child had an urgent medical appointment, she had to leave her car behind and take the child by cab instead.

Mary's problem, described in a general way, is com- monplace: she has rights that are not always respected by other people.

Rights-even ordinary rights like Mary's-pose problems for utilitarianism. My purpose in this paper is to suggest how deep these problems are.

For present purposes, the rights we speak of may be placed in two classes. Some rights depend for their existence upon social recognition or enforcement. So far as rights are enforceable by law, for example, they fall into this category. I shall call these institutional rights. Other rights that we speak

NOOS 14 (1980) 17 01980 by Indiana University



18 NOOS

of, however, do not depend for their existence upon social recognition or enforcement. Institutions may be criticized, for example, because they fail to protect or respect certain rights. Included in this class, of course, are what have been called human rights; but much more ordinary and variable rights that depend on special human relationships would be included too. We may call the latter class of rights moral.

These two categories of rights can overlap: some of the rights we ascribe quite independently of law and other institutions are also made enforceable by law, for example. A different kind of overlap should now be emphasized. Mary's rights are, at least to some degree, enforceable by legal means. But I am going to assume that they are not merely "legal," in a pejorative sense. The problem is this. As far as I can see, the law of a community can be outrageously unjust and some of the "rights" it credits people with having can be morally inde- fensible. In such cases, I would argue, there may be absolutely no presumption favoring respect for these legal entitlements. There may of course be reasons depending on the circumstances for not ignoring morally objectionable entitlements. But from the mere fact that I am credited by the law with having a right, nothing follows concerning what I or others may do. Such putative rights lack what I shall call moral or justificatory force.'

I shall ignore that possibility here. If I am wrong about the law, then all legal rights possess moral force, but my argument will be unaffected. In any case, I shall assume that at least some legal rights in some possible societies are morally defensible and possess the sort of force I shall describe. Mary's rights are meant as an example. If one has moral objections to private parking arrangements, another example might be substituted. I assume that ordinary rights like Mary's, which are partly legal, can arise in a very just as well as in an unjust society. From the fact that Mary's rights are not shared by others, for example, it does not follow that they are morally objectionable. Within a society in which people have fair shares of the resources and considerable freedom to use them, some, with different needs from Mary's, may reasonably de- cide to make arrangements different from hers. And there may be good reason to have rights like Mary's made enforceable by law.

Critics of utilitarianism usually address two issues in this general area. On the one hand, they may claim that utilitar-



UTILITY AS A GROUND OF RIGHTS 19

ianism is entirely incapable of accounting for moral rights. On the other hand, they may claim that utilitarian accounts of institutional rights are inadequate. Critics may argue, for example, that utilitarian institutions (institutions that can be justified by the best utilitarian arguments) would lack some features that should be prized, such as the right to privacy or to freedom from paternalistic intervention.

In this paper I shall concentrate on institutional rights, specifically legal rights, for the following reasons. The idea that utilitarianism might account for moral rights would generally be rejected, even by those who assume that utilitarianism can give some account of legal rights. The possibility of a utilitarian account of legal rights is not controversial at all. This is assumed notjust by utilitarians, but also by their critics; it underlies much theory construction and criticism in law, economics, and political theory. I do not mean that all these writers accept the results of a utilitarian system of rights. What I mean is that critics have been content to argue, at most, that such a system would be substantively defective-failing to confer some rights that should be conferred, or conferring some rights that should not be conferred. But they assume that rules and institutions predicated on serving some value like wealth or happiness would confer rights.2

I shall question this assumption. I mean to suggest that a utilitarian approach is incapable of accommodating or accounting for institutional rights. My argument will not turn on claims that nonutilitarian principles must be appealed to (though it will point to this as a further conclusion). It will turn, rather, on the difficulty that utilitarianism has in accommodating the moral force of rights.

If my argument is sound, then I believe that similar considerations would show that Mill's intriguing idea of a utilitarian account for moral rights3 is likewise misconceived. But I have not the room to extend the argument here.

I shall develop my argument as follows. First I will describe the impact upon the evaluation of conduct that we ordinarily ascribe to rights and compare it with the implications of act utilitarianism. If I am right about the moral force of rights, then act utilitarianism cannot hope to accommodate, no less account for them. This alone does not allow us to conclude that act utilitarianism is deficient, because the claim that people have rights is not self-evident. I shall not argue the existence of rights here, though it should be emphasized that



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we are concerned only with insttutional rights. The discussion of act utilitarianism provides a background for the later argument. It suggests what utilitarianism must avoid if it is to accommodate rights. It suggests some of the motivation for turning to indirect forms of utilitarian appraisal.

In the second part of my argument, I will consider the idea that utilitarianism can accommodate institutional rights-that is, morally defensible rights, rights with moral force-that depend, at least in part, upon social recognition or enforcement.

II

An act utilitarian holds that acts are right or fully justified if they promote value, such as human welfare, to the maximum degree possible, and that acts are wrong if they fail to do so. According to this doctrine, Mary is fullyjustified in exercising her rights only when and in a manner in which she can promote value, such as human welfare, to the maximum degree possible, and others are fully justified in encroaching upon Mary's rights in the same circumstances and for the same reason. This doctrine is sometimes framed in probabilistic terms. What may be required is not that human welfare be promoted to the maximum degree possible, but that an act be most likely to maximize human welfare, have maximum net expectable utility, or something of the sort. The possibility of such a qualification will not, I think, affect the present argument.

This doctrine seems to clash with the idea that Mary has any rights. For it seems to imply that Mary's rights make no difference to practical deliberation. It ignores thejustificatory force of rights-the arguments that flowfrom them. Given her rights, she has the moral freedom to exercise them, within certain limits. She may act to her own disadvantage, without compensating benefits for herself or anyone else. Mary's rights permit her also some indifference to the effects of her choices upon others. Her rights permit her, for example, to inconvenience others while she exercises them. She need not maximize utility. Similarly, others may not act in certain ways without her permission, even if it could be shown that doing so would maximize utility.

Thus, Mary may use her garage or not, as she prefers, but others may not use her garage or block her driveway without




her permission, save in special circumstances. The driver of an emergency vehicle on an urgent errand might justifiably block her driveway without first obtaining Mary's permission; but that is a special case. Similarly, while Mary is generally free to give or refuse permission to use her garage or driveway, that freedom has limits. There is no assumption, however, that Mary must act so as to maximize utility or that others may act in any way so long as they (most likely) maximize utility.

This general pattern continues when Mary's rights are infringed. If others encroach upon her rights thoughtlessly or for their own private convenience, it is incumbent on them to apologize or even, perhaps, compensate her for any inconvenience she has consequently suffered. If they fail to do so, then they act wrongly, save in special circumstances. If com- pensation should be offered, then Mary is free to accept or to refuse, as she prefers. Once again, Mary's moral freedom is not limited by what would (most likely) serve the general welfare, nor are the restrictions imposed on others' behaviour by her rights so limited.

An act utilitarian might respond to these claims in either of two ways. He might deny that Mary (or anyone else) has such rights and so try to show that we need not worry about their moral force. Since this ignores the problem that I wish to discuss, I shall not consider it further. Or he might try to show that the choices that are permitted by rights and the restrictions imposed by them are within the range allowed by act utilitarianism. That is, he might try to show that Mary's legiti- mate exercise of her rights and others' required respect for them would both most likely maximize utility.

It is difficult to characterize in neutral terms the nature of the issue here. To one who focuses on Mary's rights, it appears that certain choices are as a consequence of them open to her and certain choices foreclosed to others. It is not that Mary's rights must be thought to arise of their own accord, without any foundation in fact, but rather that, given the relevant facts (which have most directly to do with Mary's unobjectionably renting the house with the garage serviced by a driveway),she assumes a new moral position. Her acquired rights appear to function as more or less independent, stable, distinct moral factors with characteristic implications.

To an act utilitarian, Mary's rights must appear somewhat differently. They are not independent moral factors, but must be understood as factual conditions determining the likely



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utilities of acts. Their true moral impact must be understood as equivalent to act utilitarian considerations. Moreover, it seems clear that these considerations must be couched in probabilistic terms.

What complicates matters here is that Mary's rights (like most if not all others) must have some foundation in human interests or welfare and are limited in turn by similar considerations.4 So an act utilitarian's interpretation of Mary's rights, while arguably inadequate, is framed in terms that are relevant to a final determination of what she and others may or must do. Thus, while Mary's rights make a difference to what she and others may justifiably do, these implications are bounded by a decent regard for other persons' interests or welfare. Mary's choices must give some respect to the interests or welfare of others, and what others may do, given Mary's rights, is determined in part by the effects of their conduct upon people generally. Thus, despite her rights, Mary may not deny access to her driveway to someone in dire need, and others may use it without her permission if the need is pres- sing. But Mary's rights nevertheless do not seem equivalent to act utilitarian considerations, for reasons already given, which may be summarized as follows. The fact that Mary would suffer or that others would be inconvenienced by her exercise of her rights, without any prospect of compensating advan- tages to anyone, does not tend to show that her conduct is not right or justified, though an act utilitarian must believe that it does. And similarly others may not encroach upon Mary's rights simply on the ground that the general welfare would be better served by doing so-which, of course, an act utilitarian cannot accept.

If I am right about the moral force of Mary's rights, then we cannot be satisfied with an act utilitarian's attempted gloss on them. If utilitarianism has anything useful to say about rights, it must be different from this. It must be capable of explaining how rights function like moral factors with a life of their own. In order to do this, it must presumably employ indirect utilitarian arguments and at the same time severely limit the scope of direct utilitarian reasoning.

III

It does seem plausible to suppose that utilitarian institutions would incorporate rights. At least, we can understand why the




idea is not usually challenged. In the first place, we tend to think of institutions that are structurally similar to those with which we are familiar, and these are commonly supposed to confer rights. In the second place, we do not know how to argue that institutions supported by the best utilitarian arguments would never permit the proper range of freedom or the appropriate restrictions upon others' behavior that correspond to rights like Mary's. In the third place, to grant the mere possibility of rights within utilitarian institutions would not seem to concede very much, since it is compatible with deep moral flaws within them too.

So, when Bentham, who rejected moral rights, assumed that legal rights would be incorporated in utilitarian institutions, no one thought or bothered to question him. In Benth- am's case, of course, the assumption turned upon his particular analysis of rights in terms of useful or beneficial obligations,5 which were analyzed, in turn, as enforced restrictions on behavior. It is difficult to imagine how utilitarian institutions could fail to create some useful restrictions, and it is natural to suppose that they would impose some beneficial restrictions too-that is, restrictions designed to be not merely useful, in a general way, but meant to serve the interests of certain other persons. If so, according to Bentham's theory they would confer rights.

But, we cannot pursue the basic issue here within the framework constructed by Bentham. Our question is not whether rights as Bentham conceived of them can be recon- ciled to utilitarianism. If my remarks about the moral impact of rights have been on the right track, then his analysis of rights ignores their moral force. The question that we face is whether utilitarianism can accommodate rights with moral force.

This qualification should not prejudice our inquiry in a way unfavorable to utilitarianism. That is because the relevant argument for respecting institutional rights turns upon the utility of the institutions. The institutions that a utilitarian regards as fully justified are, presumably, his best candidates for institutions that create rights with moral force. If the utilitarian cannot accommodate institutional rights under these conditions, that is, when institutions have the best utili- tarianjustification, then it is difficult to imagine how he might accommodate them in any systematic way at all.



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We must suppose now that a utilitarian believes we can justify a set of institutions that include rules like those in our original example. Under the rules, Mary has exclusive use of her driveway and garage, though others' use of them is allowed in special cases. But Mary is not expected to behave like an act utilitarian when she decides how to use her driveway or garage or when she decides whether to permit others to use them instead. Nor are others expected to behave like act utilitarians when they consider using Mary's driveway or garage without her permission. Finally, officials are not expected to behave like act utilitarians when they are called upon by Mary or others to apply or enforce those rules. We are assuming, in effect, that the choices allowed to Mary and the restrictions upon others under the rules match precisely the moral force of what we took to be her rights in our original example. (This ignores those aspects of Mary's rights that are not legally enforceable, but that complication has no bearing on the present argument.) Unless something like this can be assumed, the utilitarian program of accounting for ordinary institutional rights is defeated at the start.

As I have already suggested, I see no reason to doubt the possibility that institutions incorporating such rules could in some circumstances be justified on utilitarian grounds. But it must be emphasized that this does not settle the present issue. Our question is not whether a utilitarian would regard such institutions as justified, but what significance he must attach to that fact when it comes to evaluating conduct in the context of those rules; for example, in determining how an official in the system should behave.

A utilitarian might reason as follows. Institutions are justified if (or to the extent that) they promote human welfare. Institutions are accordingly to be designed so that official as well as private decisions will by and large promote human welfare to the maximum extent that this can be contrived. When that has been accomplished, conduct that is subject to the rules of those institutions is justified by reference to the rules. In other words, utilitarian arguments have their place, but they have no monopoly on justification. And the relevant mode ofjustification here, of course, is not merely "legal." For the argument is not just that the rules are imagined to exist, but that they are understood to be justified. When they are justified, then they are to be followed. Their legal impact is thus translated into moral force.




But this pattern of reasoning ignores some of the utilitarian considerations that are inevitably at work. It is perfectly possible that real social rules which are supported by the best utilitarian arguments will require decisions that would not most effectively promote human welfare in particular cases.6 Human welfare can sometimes be promoted more effectively be departing from the rules than by following them. When that happens, there is a direct utilitarian argument for devia- tion from the rules.

The question that we face is this. What follows from the fact that an institution can be justified on utilitarian grounds? If what follows is that the rules must be respected, then the utilitarian has a reason for claiming that he can accommodate institutional rights. But if the rules need not be respected-if direct'utilitarian arguments for departing from them may be followed-then the utilitarian has no reason for claiming that he can accommodate institutional rights. This is because, in the latter case, the legal impact of the relevant rules does not automatically translate, for the utilitarian, into moral force. For that to happen, the mere fact that a utilitarian rule exists must provide in the eyes of the utilitarian a reason for comply- ing with it-a reason that is completely unaffected by direct utilitarian considerations. This reason need not be conclusive; but it must make a difference to the utilitarian's evaluation of conduct under such rules. If, when direct utilitarian considerations argue in the opposite direction, this reason disap- pears (so far as the utilitarian is concerned), then the utilitarian cannot be regarded as reproducing within his normative system the moral force of rights. In that case, the general program of designing institutions that both (a) incorporate rights with moral force and (b) are predicated on service of the general welfare, or similar values, is incoherent. That is what I shall suggest.

Consider the position of a utilitarian who happens to be an official within such a system as we have been imagining, that is, in which the moral force of Mary's rights is embedded in the law. Suppose that he is called upon to enforce the rules on Mary's behalf. The utilitarian justification of the rules can be understood by him perfectly. The point of having such rules is to channel behavior so as to promote human welfare most effectively. But I do not see how he can regard this as conclusively determining what he ought to do. I do not see



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how a utilitarian official can regard as irrelevant a direct utilitarian argument for departing from the rules, whatever their utilitarian justification. His primary aim, after all, is the promotion of human welfare. He must always consider op- portunities for promoting it directly.

One might, of course, deliberately formulate a principle in recognizably "utilitarian" terms that limits the application of the criterion of utility to social institutions and that requires compliance with rules that are certified as having the requisite "utilitarian" justification. The result would be a form of what we call "rule utilitarianism." But this sort of principle does not follow from the basic idea that human welfare (or some similar value) is to be promoted. Nor is it entailed by the more specific idea that social institutions are to be evaluated in utilitarian terms. So, from the premise that an institution can be justified on utilitarian grounds, it does not follow that the rules of that institution must be respected.

As Bentham seemed to appreciate, the criterion of utility can apply to diverse objects-to traits of human character and individual acts, for example, as well as to rules and institutions. There is nothing in the idea that human welfare is to be promoted that restricts its application either to individual acts or to social rules. So, a thoroughgoing utilitarian cannot ignore direct utilitarian arguments, cannot regard them as irrelevant or out of place when considering what is to be done.

But this means that the legal impact of the rules we have imagined-the rules that mirror the moral force of Mary's rights-are not automatically translated into moral force for a utilitarian. It follows that the moral force of Mary's rights is never fully recognized by a utilitarian official. Moreover, his reasons for departing from the rules match the act utilitarian's reasons for encroaching upon Mary's rights. It follows that utilitarianism, which is personified in the argument by a utilitarian official, does not truly accommodate Mary's rights. It appears to do so, because (as we have granted for the sake of argument) it will prefer institutions whose rules reflect the moral force of Mary's rights. But it does not do so, in actuality, because those rules themselves have no automatic moral force for a utilitarian.

I will conclude by considering three objections to my argument. First, it may be thought that I have overstated my case. I have suggested that a consistent utilitarian will be




guided, in effect, by act utilitarian considerations. But (it may be objected) while the force of direct utilitarian considerations upon a consistent utilitarian cannot be denied, my suggestion assumes that the utilitarian justification of social rules or institutions has no direct practical implications for a utilitarian. On the contrary (the objection continues), what we have here is a conflict of considerations within utilitarianism-a conflict that Bentham and Mill never squarely faced. In reply, I should say I am prepared to believe this; I am uncertain what follows, strictly speaking, from the claim that one's basic values are served, by a given rule, as far as a rule can be contrived to serve them, when it is admitted that individual acts prohib- ited by the rule can be seen to serve those values more effectively than compliance with the rule. But suppose the situation is as the objector contends: suppose there is a conflict in the utilitarian's considerations. Then, at best, it still can be said that the utilitarian official is not committed to respecting the legal impact and thus the moral force of Mary's rights, though he might not diverge from the rules as often as my argument suggested. At worst, however, we have the further interesting possibility that utilitarianism (unless it is somewhat arbitrarily narrowed into some version of act or rule utilitarianism) is indeterminate in especially interesting cases. Even then, however, it could not be said that the theory can accommodate Mary's rights.

Second, someone might believe that an official would be strongly constrained to follow rules predicated upon serving human welfare that have been properly designed. Following Bentham, for example, one might suppose that the system will be so contrived as to make it very undesirable for an official to depart from the rules he is charged with administering. Sanc- tions would be provided by the rules to coerce officials into following the law. But, in the first place, it cannot be assumed that maximally useful rules would always prevent official de- viation from the rules. And, in the second place, a utilitarian official might well be willing to take a risk himself for the sake of serving the general welfare more effectively.

Third, we might alternatively assume that an official will believe that it is wrong to depart from rules that he is charged with administering. For example, an official might regard himself as having accepted a position of public trust, which he cannot in good conscience ignore. He might see himself as



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morally bound by his commitment to the members of the community to adhere to the rules as he finds them. But, if we assume that such a factor is at work in our example, then we are assuming in effect the influence of nonutilitarian arguments. And this amounts to the concession that utilitarian principles need supplementation before we can secure a moral theory that is capable of accommodating ordinary institutional rights.

NOTES

'Although I generally follow Ronald Dworkin's suggestions about the moral force of rights, I disagree with him here about institutional rights, which he seems to suppose have moral force in all systems and circumstances. See "A Reply to Critics," Taking Rights Seriously (Cambridge, Mass.: Harvard, 1978): 326f.

2See, for example, Richard A. Posner, "Utilitarianism, Economics, and Legal Theory," Journal of Legal Studies 8(1979): 103-40, which also provides references to some of the relevant economic and legal literature.

3I offered a sympathetic reading of this suggestion in "Human Rights and the General Welfare," Philosophy & Public Affairs 6(1977): 113-29, and "Mill's Theory of Justice," in Values and Morals, ed. A.I. Goldman andJ. Kim (Dordrecht: Reidel, 1978): 1-20. In presentations of which the present paper is a descendant (and with similar titles) I pursued these issues further, at the Universities of Texas and Virginia, Colgate and Cornell Universities. I am grateful for the many helpful comments I received on those occasions. Criticisms of Mill's theory led me to question the less controversial notions that are discussed here.

4For a sensitive discussion of these issues, see Judith Jarvis Thomson, "Some Ruminations on Rights," Arizona Law Review 19(1978): 45-60.

5For the distinction between useful and beneficial obligations and two ways of reading Bentham's theory, see my "Rights, Claimants, and Beneficiaries," American Philosophical Quarterly 6(1969): 173-85. For appraisals of Bentham's theory, see ibid. and H.L.A. Hart, "Bentham on Legal Rights," in Oxford Essays in Jurisprudence ,Second Series, ed. A.W.B. Simpson (Oxford: Clarendon Press, 1973): 171-201.

6This point does not depart from the main thesis of Forms and Limits of Utilitar- ianism (Oxford: Clarendon Press, 1965), in which I argued for the "extensional equivalence" of certain classes of utilitarian principles that I called "simple" and "general" utilitarianism. That argument was extended to cover a limiting case of rule utilitarianism-a theory (dubbed "primitive" rule utilitarianism) in which no consid- eration is given to such things as the complexity or cost of rules. Rule utilitarian theories that concern themselves with ordinary, manageable social rules were explicitly excluded from the scope of the extensional equivalence argument. Thus, Forms and Limits argues, in effect, that direct and indirect utilitarian arguments are sometimes equivalent. Along with this paper it assumes that they are not always equivalent.



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