The Liberal Utilitarian Tradition: Bentham and Mill

The harm principle. In On Liberty, that the only purpose for which power may rightfully be exercised over any member of a civilised community against his will is to prevent harm to others; a person's own good is not a sufficient warrant. This is the liberal element and it is the reason the tradition is called liberal utilitarian.

Justice as the most important class of utility. Mill's answer to the objection that utilitarianism cannot account for justice is that the rules we call just are those protecting the most vital interests, chiefly security, so that they carry a stringency other rules lack. Justice is therefore a part of utility and not a rival to it.

Its relevance in India. Mill's harm principle is the reasoning that runs through Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Facts. The petitioners sought a declaration that the right to sexuality, sexual autonomy and choice of a sexual partner is part of Article 21, and that section 377 of the Indian Penal Code, so far as it criminalised consensual sexual acts between adults, was unconstitutional. An earlier two judge Bench in Suresh Kumar Koushal had restored section 377 after the Delhi High Court had read it down.

Held. Section 377 was unconstitutional to the extent that it criminalised consensual sexual conduct between adults in private, as violating Articles 14, 15, 19 and 21, and Suresh Kumar Koushal was overruled. Constitutional morality, and not popular or majoritarian morality, governs the interpretation of fundamental rights.

Why it matters here. Conduct between consenting adults in private harms nobody, so on the harm principle it is outside the proper reach of the criminal law. The Court's reasoning is not put in Mill's terms, but the structure, that the disapproval of a majority is not a harm and cannot found a prohibition, is his.

What the tradition contributes

A single usable standard. Every competing theory requires interpretation before it can be applied; utility gives a question that can in principle be answered.

Reform. Bentham's programme produced the reform of the criminal law, of prisons, of procedure and of the franchise. Utilitarianism is historically the most successful reforming philosophy there has been.

Equality in the counting. Each to count for one, which excludes counting some people's happiness for more.

A theory of legislation. It tells a legislator what to aim at, which natural law and the contractual tradition do less directly. This is why Bentham's formula appears in the title of his own work on morals and legislation and why MU quotes it in a question about law and justice.

The objections, which the question requires

1. It permits sacrificing the individual. If aggregate welfare is the standard, an individual may be used, punished or deprived where the numbers favour it. This is the Kantian objection in [The Liberal Moral Tradition: Kant] and it is the standing one.

2. It cannot account for rights. A right that yields whenever the calculation goes the other way is not a right. Indian constitutional law rejects this expressly: Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, holds that fundamental rights may not be made automatically subordinate to collective goals.

It is worked in full in [Judicial Review as a Basic Feature of the Constitution]. Section 4 of the Forty-second Amendment had widened Article 31C so that any law giving effect to any directive principle was immune from challenge under Articles 14 and 19, and it was held void as destroying the balance between fundamental rights and directive principles, which is itself a basic feature.

Why it matters here. Section 4 was in effect a utilitarian provision: it made the pursuit of collective goals immune from challenge on the ground of individual right. Its invalidation is the Indian constitutional answer to utilitarianism.

3. Distribution is invisible. Two societies with the same total happiness are equally good on the theory, however unequally the happiness is spread.

4. The calculation is not possible. Pleasures and pains cannot be measured or compared across persons with any precision.

5. It cannot honour promises or desert. A promise should be kept because it was made; a punishment imposed because an offence was committed. Utilitarianism must justify both by consequences, which distorts them.

The answer to MU's question about law and justice

MU quotes Bentham and asks about the interrelationship of law and justice. The utilitarian answer is precise and should be given in those terms: justice is not an independent standard by which law is judged; it is a name for the class of legal rules whose observance is most conducive to general welfare. On this view law and justice do not stand apart, and the question whether an unjust law is law does not arise, because there is no test of injustice independent of utility.

That is one of the three positions Module IV examines. It is close to the equivalence view, and it is opposed by both the dependency and the independence views. See [The Relation between Law and Justice].

A worked example

A city proposes to demolish a settlement of two thousand people to build a hospital serving two hundred thousand.

On Bentham. Count the pleasures and pains, weighted for intensity, duration, certainty and extent. If the aggregate favours the hospital, the demolition is right, and the settlers' loss is a cost already counted.

On Mill. The harm principle does not assist the settlers, since the demolition is not a restriction of their liberty for their own good; but Mill's insistence on security as the most vital interest would count their loss heavily.

On Kant. They are being used as a means to the welfare of others, which is impermissible whatever the numbers.

In Indian law. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, holds livelihood to be within Article 21 and requires notice and a hearing, and yet permitted eviction on the facts, after the monsoon and with alternative sites. Indian law neither accepts the calculation nor forbids the project; it requires the loss to be recognised as a violation of right unless justified and mitigated.

Quick revision

1. Bentham, 1748 to 1832; Mill, 1806 to 1873. MU prints "Geremy" and "Utalitarian"; the correct forms are Jeremy and utilitarian.
2. Principle of utility: the greatest happiness of the greatest number. Felicific calculus: intensity, duration, certainty, propinquity, fecundity, purity, extent.
3. Each to count for one and nobody for more than one: the egalitarian element.
4. Bentham on rights: nonsense upon stilts; rights are creations of law, and law is justified by utility. He attacked judge-made law as dog law and advocated codification.
5. Mill: higher and lower pleasures judged by those who know both; the harm principle; justice as the most important class of utility.
6. Objections: it permits sacrificing the individual; it cannot account for rights; distribution is invisible; the calculation is impossible; and it distorts promise and desert.
7. Minerva Mills is the Indian constitutional answer: collective goals may not be made automatically to prevail over Articles 14 and 19.
8. On law and justice: justice is not independent of law but a name for the most useful rules, which is close to the equivalence position in Module IV.

Test yourself

1. State the principle of utility and the elements of the felicific calculus. That an action is right which tends to produce the greatest happiness of the greatest number, the principle approving or disapproving every action according to its tendency to augment or diminish the happiness of the party whose interest is in question. The calculus measures pleasures and pains by intensity, duration, certainty, propinquity, fecundity, purity and extent, the last being the number of persons affected.

2. What did Mill add, and why is the tradition called liberal? He denied that pleasures differ only in quantity, holding some to be higher and taking as the test the preference of those who have experienced both. He added the harm principle, that power may rightfully be exercised over a member of a civilised community against his will only to prevent harm to others, a person's own good not being a sufficient warrant. That principle is what makes the tradition liberal, and it is the structure of the reasoning in Navtej.

3. Give the two strongest objections to utilitarianism and the Indian constitutional answer to one. That it permits sacrificing an individual where the aggregate favours it, which is the Kantian objection; and that it cannot account for rights, since a right that yields whenever the calculation changes is not a right. The Indian answer to the second is Minerva Mills, which struck down section 4 of the Forty-second Amendment because making laws that pursue directive principles immune from challenge under Articles 14 and 19 destroys the balance between Parts III and IV, itself a basic feature.

4. What is the utilitarian answer to the question about the relation between law and justice? That justice is not an independent standard by which law is judged but a name for the class of legal rules whose observance is most conducive to general welfare. On this view the two do not stand apart, and the question whether an unjust law is law does not arise, because there is no test of injustice independent of utility. It is close to the equivalence position examined in Module IV.