SYMBIOSIS LAW SCHOOL, PUNE

Philosphy of law and ethics: 1st Internal

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ADITI KULSHRESHTHA
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Introduction
Utilitarianism is the idea that the moral worth of an action is solely determined by its
contribution to overall utility in maximizing happiness or pleasure as summed among all
people. It is, then, the total utility of individuals which is important here, the greatest
happiness for the greatest number of people. Utility, after which the doctrine is named, is a
measure in economics of the relative satisfaction from, or desirability of, the consumption of
goods. Utilitarianism can thus be described as a quantitative and reductionistic approach
to Ethics.

Utilitarianism starts from the basis that pleasure and happiness are intrinsically valuable, that
pain and suffering areintrinsically disvaluable, and that anything else has value only in its
causing happiness or preventing suffering (i.e."instrumental", or as means to an end). This
focus on happiness or pleasure as the ultimate end of moral decisions, makes it a type
of Hedonism (and it is sometimes known as Hedonistic Utilitarianism).

Utilitarians support equality by the equal consideration of interests, and they reject any

arbitrary distinctions as to who is worthy of concern and who is not, and
any discrimination between individuals. However, it does accept the idea of declining
marginal utility, which recognizes that the same thing furthers the interests of a well-
off individual to a lesser degree than it would the interests of a less well-off individual.

It is a form of Consequentialism (in that the moral worth of an action is determined by

its outcome or consequence - the ends justify the means), as opposed
to Deontology (which disregards the consequences of performing an act, when determining
its moral worth), and to Virtue Ethics (which focuses on character, rather than rules or
consequences).

Major Principals of UtilitarianPhilosophy

Utilitarianism is one of the most important and influential moral theories of modern
times. In many respects, it is the outlook of David Hume, writing in the mid-18th
century. But it received both its name and its clearest statement in the writings
of Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873). Even today Mill's
essay Utilitarianism remains one of the most widely taught expositions of the
doctrine.

There are three principles that serve as the basic axioms of utilitarianism.

1. Pleasure or Happiness Is the Only Thing That Truly Has Intrinsic Value

Utilitarianism gets its name from the term "utility," which in this context does not mean
"useful" but, rather, means pleasure or happiness.  To say that something has intrinsic value
means that it is simply good in itself. A world in which this thing exists, or is possessed, or is
experienced, is better than a world without it (all other things being equal).  Intrinsic
value contrasts with instrumental value. Something has instrumental value when it is a means
to some end.  E.g. A screwdriver has instrumental value to the carpenter; it is not valued for
its own sake but for what can be done with it.

Now Mill admits that we seem to value some things other than pleasure and happiness for
their own sake. E.g. we value health, beauty, and knowledge in this way.

But he argues that we never value anything unless we associate it in some way with pleasure
or happiness. Thus, we value beauty because it is pleasurable to behold. We value knowledge
because, usually, it is useful to us in coping with the world, and hence is linked to happiness.
We value love and friendship because they are sources of pleasure and happiness.

Pleasure and happiness, though, are unique in being valued purely for their own sake. No
other reason for valuing them needs to be given. It is better to be happy than sad. This can't
really be proved. But everyone thinks this.

Mill thinks of happiness as consisting of many and varied pleasures. That's why he runs the
two concepts together. Most utilitarians, though, talk mainly of happiness, and that is what
we will do from this point on.

2. Actions Are Right Insofar as They Promote Happiness, Wrong Insofar

as They Produce Unhappiness
This principle is controversial. It makes utilitarianism a form of consequentialism since it
says that the morality of an action is decided by its consequences. The more happiness is
produced among those affected by the action, the better the action is. So, all things being
equal, my giving presents to a whole gang of children is better than my giving a present to
just one. Similarly, saving two lives is better than saving one life.

That can seem quite sensible. But the principle is controversial because many people would
say that what decides the morality of an action is the motive behind it. They would say, for
instance, that if I give $1,000 to charity because I want to look good to voters in an election,
my action is not so deserving of praise as if I gave $50 to charity motivated by compassion,
or a sense of duty.

3. Everyone's Happiness Counts Equally

This may strike you as a rather obvious moral principle. But when it was put forward by
Bentham (in the form, "everyone to count for one; no-one for more than one") it was quite
radical. Two hundred years ago, it was a commonly held view that some lives, and the
happiness they contained, were simply more important and valuable than others.  E.g. the
lives of masters were more important than slaves; the well-being of a king was more
important than that of a peasant.

So in Bentham's time, this principle of equality was decidedly progressive  It lay behind calls
on the government to pass policies that would benefit all equally, not just the ruling elite. It is
also the reason why utilitarianism is very far removed from any kind of egoism. The doctrine
does not say that you should strive to maximize your own happiness.

Rather, your happiness is just that of one person and carries no special weight.

Utilitarians like Peter Singer take this idea of treating everyone equally very seriously. Singer
argues that we have the same obligation to help needy strangers in far-off places as we have
to help those closest to us. Critics think that this makes utilitarianism unrealistic and too
demanding. But in Utilitarianism Mill attempts to answer this criticism by arguing that the
general happiness is best served by each person focusing primarily on themselves and those
around them.
Bentham's commitment to equality was radical in another way, too. Most moral philosophers
before him had held that human beings have no particular obligations to animals since
animals can't reason or talk, and they lack free will. But in Bentham's view, this is irrelevant.
What matters is whether an animal is capable of feeling pleasure or pain. He doesn't say that
we should treat animals as if they were human. But he does think that the world is a better
place if there is more pleasure and less suffering among the animals as well as among us. So
we should at least avoid causing animals unnecessary suffering

Major Philosophers.

The Classical Utilitarians, Bentham and Mill, were concerned with legal and social reform. If
anything could be identified as the fundamental motivation behind the development of
Classical Utilitarianism it would be the desire to see useless, corrupt laws and social practices
changed. Accomplishing this goal required a normative ethical theory employed as a critical
tool. What is the truth about what makes an action or a policy a morally good one, or
morally right? But developing the theory itself was also influenced by strong views about
what was wrong in their society. The conviction that, for example, some laws are bad resulted
in analysis of why they were bad. And, for Jeremy Bentham, what made them bad was their
lack of utility, their tendency to lead to unhappiness and misery without any compensating
happiness. If a law or an action doesn't do any good, then it isn't any good.

1 Jeremy Bentham
Jeremy Bentham (1748–1832) was influenced both by Hobbes' account of human nature and
Hume's account of social utility. He famously held that humans were ruled by two sovereign
masters — pleasure and pain. We seek pleasure and the avoidance of pain, they “…govern us
in all we do, in all we say, in all we think…” (Bentham PML, 1). Yet he also promulgated the
principle of utility as the standard of right action on the part of governments and individuals.
Actions are approved when they are such as to promote happiness, or pleasure, and
disapproved of when they have a tendency to cause unhappiness, or pain (PML). Combine
this criterion of rightness with a view that we should be actively trying to promote overall
happiness, and one has a serious incompatibility with psychological egoism. Thus, his
apparent endorsement of Hobbesian psychological egoism created problems in understanding
his moral theory since psychological egoism rules out acting to promote the overall well-
being when that it is incompatible with one's own. For the psychological egoist, that is not
even a possibility. So, given ‘ought implies can’ it would follow that we are not obligated to
act to promote overall well-being when that is incompatible with our own. This generates a
serious tension in Bentham's thought, one that was drawn to his attention. He sometimes
seemed to think that he could reconcile the two commitments empirically, that is, by noting
that when people act to promote the good they are helping themselves, too. But this claim
only serves to muddy the waters, since the standard understanding of psychological egoism
— and Bentham's own statement of his view — identifies motives of action which are self-
interested. Yet this seems, again, in conflict with his own specification of the method for
making moral decisions which is not to focus on self-interest — indeed, the addition
of extent as a parameter along which to measure pleasure produced distinguishes this
approach from ethical egoism. Aware of the difficulty, in later years he seemed to pull back
from a full-fledged commitment to psychological egoism, admitting that people do
sometimes act benevolently — with the overall good of humanity in mind.

Bentham also benefited from Hume's work, though in many ways their approaches to moral
philosophy were completely different. Hume rejected the egoistic view of human nature.
Hume also focused on character evaluation in his system. Actions are significant as evidence
of character, but only have this derivative significance. In moral evaluation the main concern
is that of character. Yet Bentham focused on act-evaluation. There was a tendency —
remarked on by J. B. Schneewind (1990), for example — to move away from focus on
character evaluation after Hume and towards act-evaluation. Recall that Bentham was
enormously interested in social reform. Indeed, reflection on what was morally problematic
about laws and policies influenced his thinking on utility as a standard. When one legislates,
however, one is legislating in support of, or against, certain actions. Character — that is, a
person's true character — is known, if known at all, only by that person. If one finds the
opacity of the will thesis plausible then character, while theoretically very interesting, isn't a
practical focus for legislation. Further, as Schneewind notes, there was an increasing sense
that focus on character would actually be disruptive, socially, particularly if one's view was
that a person who didn't agree with one on a moral issues was defective in terms of his or her
character, as opposed to simply making a mistake reflected in action.

But Bentham does take from Hume the view that utility is the measure of virtue — that is,
utility more broadly construed than Hume's actual usage of the term. This is because Hume
made a distinction between pleasure that the perception of virtue generates in the observer,
and social utility, which consisted in a trait's having tangible benefits for society, any instance
of which may or may not generate pleasure in the observer. But Bentham is not simply
reformulating a Humean position — he's merely been influenced by Hume's arguments to see
pleasure as a measure or standard of moral value. So, why not move from
pleasurable responses to traits to pleasure as a kind of consequence which is good, and in
relation to which, actions are morally right or wrong? Bentham, in making this move, avoids
a problem for Hume. On Hume's view it seems that the response — corrected, to be sure —
determines the trait's quality as a virtue or vice. But on Bentham's view the action (or trait) is
morally good, right, virtuous in view of the consequences it generates, the pleasure or utility
it produces, which could be completely independent of what our responses are to the trait. So,
unless Hume endorses a kind of ideal observer test for virtue, it will be harder for him to
account for how it is people make mistakes in evaluations of virtue and vice. Bentham, on the
other hand, can say that people may not respond to the actions good qualities — perhaps they
don't perceive the good effects. But as long as there are these good effects which are, on
balance, better than the effects of any alternative course of action, then the action is the right
one. Rhetorically, anyway, one can see why this is an important move for Bentham to be able
to make. He was a social reformer. He felt that people often had responses to certain actions
— of pleasure or disgust — that did not reflect anything morally significant at all. Indeed, in
his discussions of homosexuality, for example, he explicitly notes that ‘antipathy’ is not
sufficient reason to legislate against a practice:

Bentham's view was surprising to many at the time at least in part because he viewed the
moral quality of an action to be determined instrumentally. It isn't so much that there is a
particular kind of action that is intrinsically wrong; actions that are wrong are wrong simply
in virtue of their effects, thus, instrumentally wrong. This cut against the view that there are
some actions that by their very nature are just wrong, regardless of their effects. Some may be
wrong because they are ‘unnatural’ — and, again, Bentham would dismiss this as a legitimate
criterion. Some may be wrong because they violate liberty, or autonomy. Again, Bentham
would view liberty and autonomy as good — but good instrumentally, not intrinsically. Thus,
any action deemed wrong due to a violation of autonomy is derivatively wrong on
instrumental grounds as well. This is interesting in moral philosophy — as it is far removed
from the Kantian approach to moral evaluation as well as from natural law approaches. It is
also interesting in terms of political philosophy and social policy. On Bentham's view the law
is not monolithic and immutable. Since effects of a given policy may change, the moral
quality of the policy may change as well. Nancy Rosenblum noted that for Bentham one
doesn't simply decide on good laws and leave it at that: “Lawmaking must be recognized as a
continual process in response to diverse and changing desires that require adjustment”
(Rosenblum 1978, 9). A law that is good at one point in time may be a bad law at some other
point in time. Thus, lawmakers have to be sensitive to changing social circumstances. To be
fair to Bentham's critics, of course, they are free to agree with him that this is the case in
many situations, just not all — and that there is still a subset of laws that reflect the fact that
some actions just are intrinsically wrong regardless of consequences. Bentham is in the much
more difficult position of arguing that effects are all there are to moral evaluation of action
and policy.

2 John Stuart Mill

John Stuart Mill (1806–1873) was a follower of Bentham, and, through most of his life,
greatly admired Bentham's work even though he disagreed with some of Bentham's claims —
particularly on the nature of ‘happiness.’ Bentham, recall, had held that there were no
qualitative differences between pleasures, only quantitative ones. This left him open to a
variety of criticisms. First, Bentham's Hedonism was too egalitarian. Simple-minded
pleasures, sensual pleasures, were just as good, at least intrinsically, than more sophisticated
and complex pleasures. The pleasure of drinking a beer in front of the T.V. surely doesn't rate
as highly as the pleasure one gets solving a complicated math problem, or reading a poem, or
listening to Mozart. Second, Bentham's view that there were no qualitative differences in
pleasures also left him open to the complaint that on his view human pleasures were of no
more value than animal pleasures and, third, committed him to the corollary that the moral
status of animals, tied to their sentience, was the same as that of humans. While harming a
puppy and harming a person are both bad, however, most people had the view that harming
the person was worse. Mill sought changes to the theory that could accommodate those sorts
of intuitions.

To this end, Mill's hedonism was influenced by perfectionist intuitions. There are some
pleasures that are more fitting than others. Intellectual pleasures are of a higher, better, sort
than the ones that are merely sensual, and that we share with animals. To some this seems to
mean that Mill really wasn't a hedonistic utilitarian. His view of the good did radically depart
from Bentham's view. However, like Bentham, the good still consists in pleasure, it is still a
psychological state. There is certainly that similarity. Further, the basic structures of the
theories are the same (for more on this see Donner 1991). While it is true that Mill is more
comfortable with notions like ‘rights’ this does not mean that he, in actuality, rejected
utilitarianism. The rationale for all the rights he recognizes is utilitarian.

It should be noted, however, that Mill was offering this as an alternative to Bentham's view
which had been itself criticized as a ‘swine morality,’ locating the good in pleasure in a kind
of indiscriminate way. The distinctions he makes strike many as intuitively plausible ones.
Bentham, however, can accommodate many of the same intuitions within his system. This is
because he notes that there are a variety of parameters along which we quantitatively measure
pleasure — intensity and duration are just two of those. His complete list is the
following: intensity, duration, certainty or uncertainty, propinquity or remoteness, fecundity,
purity, and extent. Thus, what Mill calls the intellectual pleasures will score more highly than
the sensual ones along several parameters, and this could give us reason to prefer those
pleasures — but it is a quantitative not a qualitative reason, on Bentham's view. When a
student decides to study for an exam rather than go to a party, for example, she is making the
best decision even though she is sacrificing short term pleasure. That's because studying for
the exam, Bentham could argue, scores higher in terms of the long term pleasures doing well
in school lead to, as well as the fecundity of the pleasure in leading to yet other pleasures.
However, Bentham will have to concede that the very happy oyster that lives a very long time
could, in principle, have a better life than a normal human.

Mill's version of utilitarianism differed from Bentham's also in that he placed weight on the
effectiveness of internal sanctions — emotions like guilt and remorse which serve to regulate
our actions. This is an off-shoot of the different view of human nature adopted by Mill. One
of Mills most famous arguments to this effect can be found in his writing on women's
suffrage when he discusses the ideal marriage of partners, noting that the ideal exists between
individuals of “cultivated faculties” who influence each other equally. Improving the social
status of women was important because they were capable of these cultivated faculties, and
denying them access to education and other opportunities for development is forgoing a
significant source of happiness. Further, the men who would deny women the opportunity for
education, self-improvement, and political expression do so out of base motives, and the
resulting pleasures are not ones that are of the best sort.

Bentham and Mill both attacked social traditions that were justified by appeals to natural
order. The correct appeal is to utility itself. Traditions often turned out to be “relics” of
“barbarous” times, and appeals to nature as a form of justification were just ways to try
rationalize continued deference to those relics.

In Utilitarianism Mill argues that virtue not only has instrumental value, but is constitutive of
the good life. A person without virtue is morally lacking, is not as able to promote the good.
However, this view of virtue is someone complicated by rather cryptic remarks Mill makes
about virtue in his A System of Logic in the section in which he discusses the “Art of Life.”
There he seems to associate virtue with aesthetics, and morality is reserved for the sphere of
‘right’ or ‘duty‘. Wendy Donner notes that separating virtue from right allows Mill to solve
another problem for the theory: the demandingness problem (Donner 2011). This is the
problem that holds that if we ought to maximize utility, if that is the right thing to do, then
doing right requires enormous sacrifices (under actual conditions), and that requiring such
sacrifices is too demanding. With duties, on Mill's view, it is important that we get
compliance, and that justifies coercion. In the case of virtue, however, virtuous actions are
those which it is “…for the general interest that they remain free.”

3. Henry Sidgwick

Henry Sidgwick's (1838–1900) The Methods of Ethics (1874) is one of the most well known
works in utilitarian moral philosophy, and deservedly so. It offers a defense of utilitarianism,
though some writers (Schneewind 1977) have argued that it should not primarily be read as a
defense of utilitarianism. In The Methods Sidgwick is concerned with developing an account
of “…the different methods of Ethics that I find implicit in our common moral reasoning…”
These methods are egoism, intuition based morality, and utilitarianism. On Sidgwick's view,
utilitarianism is the more basic theory. A simple reliance on intuition, for example, cannot
resolve fundamental conflicts between values, or rules, such as Truth and Justice that may
conflict. In Sidgwick's words “…we require some higher principle to decide the issue…”
That will be utilitarianism. Further, the rules which seem to be a fundamental part of common
sense morality are often vague and underdescribed, and applying them will actually require
appeal to something theoretically more basic — again, utilitarianism. Yet further, absolute
interpretations of rules seem highly counter-intuitive, and yet we need some justification for
any exceptions — provided, again, by utilitarianism. Sidgwick provides a compelling case for
the theoretical primacy of utilitarianism.

Thus, the Utilitarian conclusion, carefully stated, would seem to be this; that the opinion that
secrecy may render an action right which would not otherwise be so should itself be kept
comparatively secret; and similarly it seems expedient that the doctrine that esoteric morality
is expedient should itself be kept esoteric. Or, if this concealment be difficult to maintain, it
may be desirable that Common Sense should repudiate the doctrines which it is expedient to
confine to an enlightened few. And thus a Utilitarian may reasonably desire, on Utilitarian
principles, that some of his conclusions should be rejected by mankind generally; or even that
the vulgar should keep aloof from his system as a whole, in so far as the inevitable
indefiniteness and complexity of its calculations render it likely to lead to bad results in their
hands. (490)

One issue raised in the above remarks is relevant to practical deliberation in general. To what
extent should proponents of a given theory, or a given rule, or a given policy — or even
proponents of a given one-off action — consider what they think people will actually do, as
opposed to what they think those same people ought to do (under full and reasonable
reflection, for example)? This is an example of something that comes up in the
Actualism/possibilism debate in accounts of practical deliberation. Extrapolating from the
example used above, we have people who advocate telling the truth, or what they believe to
be the truth, even if the effects are bad because the truth is somehow misused by others. On
the other hand are those who recommend not telling the truth when it is predicted that the
truth will be misused by others to achieve bad results. Of course it is the case that the truth
ought not be misused, that its misuse can be avoided and is not inevitable, but the misuse is
entirely predictable. Sidgwick seems to recommending that we follow the course that we
predict will have the best outcome, given as part of our calculations the data that others may
fail in some way — either due to having bad desires, or simply not being able to reason
effectively. The worry Williams points to really isn't a worry specifically with utilitarianism
(Driver 2011). Sidgwick would point out that if it is bad to hide the truth, because
‘Government House’ types, for example, typically engage in self-deceptive rationalizations of
their policies (which seems entirely plausible), then one shouldn't do it. And of course, that
heavily influences our intuitions.

Sidgwick raised issues that run much deeper to our basic understanding of utilitarianism. For
example, the way earlier utilitarians characterized the principle of utility left open serious
indeterminacies. The major one rests on the distinction between total and average utility. He
raised the issue in the context of population growth and increasing utility levels by increasing
numbers of people (or sentient beings):
For Sidgwick, the conclusion on this issue is not to simply strive to greater average utility,
but to increase population to the point where we maximize the product of the number of
persons who are currently alive and the amount of average happiness. So it seems to be a
hybrid, total-average view. This discussion also raised the issue of policy with respect to
population growth, and both would be pursued in more detail by later writers, most notably
Derek Parfit (1986).

Criticisms

1. Distastefulness

By far and and away the most common criticism of utilitarianism can be reduced simply to:
"I don't like it" or "It doesn't suit my way of thinking". For an example of this, here's
something from someone who might prefer to remain nameless."Producing the greatest good
for the greatest number is fine as long as you are not hurting someone you really love in the
process. For instance, with the trolley situation, I would rather kill 5 people on the main track
than m mother on the spur track. Utilitarianism runs into problems when sentiment is
involved!!"!Utilitarianism is alleged to be faulty in the way it requires us to think about all
kinds of actions - to apply the felicific calculus in disregard to any feared distaste of the
result. For example, some issues or potential actions are (to a non-utilitarian) "morally
unthinkable":"Consequentalist rationality, however, and in particular utilitarian rationality,
has no such limitations: making the best of a bad job is one of its maxims, and it will have
something to say even on the difference between massacring seven million, and massacring
seven million and one."Utilitarianism does indeed have something to say on this issue -
otherwise it would suggest that the life of this extra individual was of no importance. I
suggest it as a virtue of utility, that it does not arbitrarily discount value depending on some
detail of the situation: all interests count - simply and fairly. The fact that opponents of
utilitarianism admit that they won't even consider some situations seems to me to be most
damning to their credibility, and indicative of their general irrationality on matters ethical.The
argument from distaste is often expressed as a suggestion that utilitarianism doesn't provide
enough support for individuals' rights. But what is a right, and what is its justification? If the
justification of a right depends on its tendency to promote happiness and prevent suffering,
then it is entirely redundant since this is the sole purpose of utility. And if rights aren't
justified in these terms, how are they justified - what on earth are they actually good for? Of
what use are they?

It is quite strange that many people will accept "the pursuit of happiness" as one of life's
fundamental entitlements, yet should suddenly develop ascetic inclinations as soon as the
quarry appears obtainable. It seems they don't have a problem with someone trying to achieve
happiness, rather they are only concerned when that someone has a reasonable prospect of
success in their attempts. Perhaps their fixation with unhappiness would be satisfied by
personally abstaining from joy - but, if it goes further such that they would attempt to prevent
individuals from attaining happiness even at no cost to others, then (from a utilitarian point of
view) such people are despotical and a menace to society

It is possible that many people's aversion to the idea of everlasting happiness is caused by
incomplete consideration of the issue. It could be that people have become so jaded by
mistaken claims for the desirability of various intentional objects that they believe that drug-
induced happiness simply would not be durably satisfying. Since any notion of happiness
worthy of the name includes that of satisfaction, it follows that a truly happy person cannot
be dissatisfied, so this problem can never arise.

Happiness, in the utilitarian sense, includes the exemption from suffering. A charge of
triviality for pleasure can perhaps be made, if our only frame of reference is the knowledge of
felicific states currently achievable, but it is altogether less plausible against the depths of
suffering currently experienced by the world's less fortunate beings.

2. Impossibility

The second most common criticism of utilitarianism is that it is impossible to apply - that
happiness (etc) cannot be quantified or measured, that there is no way of calculating a trade-
off between intensity and extent, or intensity and probability (etc), or comparing happiness to
suffering.

If happiness was not measurable, words like "happier" or "happiest" could have no meaning:
"I was happier yesterday than I am today" would make no sense at all - it can only have the
meaning which we (or most of us, at any rate) know that it has if we assume that happiness
can be measured and compared.

"one should face the fact that goods are not necessarily intersubstitutable and consider the
case, for instance, of an intransigent landowner who, when his avenue of limes is to be
destroyed for the motorway, asks for 1p compensation, since nothing can be compensation."
[2]

(One is reminded of the story of the mother handing out home-baked cookies as a special
treat to her family. The youngest child, on finding his cookie to be slightly smaller than the
others, smashes it up and storms out in tears. In his disappointment, he interprets a fine gift as
an affront, and he would rather make things worse than better - but then he's only a child.
Adults, of course, have much less obvious and more subtle means of smashing their cookies.)

Initially, it seems very odd that the landowner should ask for a penny. If nothing can be
compensation, why does he not ask for nothing? What use is this tiny amount of money? Far
from suggesting that the trees are invaluable, it suggests that any money he could get for
them is worthless to him! But, we may still ask, why the penny? And then we realize: it's a
token; a chip in a psychological game (often called "Poor me!"). One can imagine the penny
being carried about by the ex-landowner, and produced to evict pity from those unfortunates
he manages to convince to listen to his story. That will be his best effort at compensating
himself.

Now suppose the scenario is amended slightly: imagine the landowner's daughter is dying
from a terminal disease; that the motorway's supporters offer to pay for the new and
expensive cure (which the landowner could not otherwise afford) in exchange for the land;
and that they will not proceed without his permission. Are we still to presume that "nothing
can be compensation" for his trees, not even the life of his daughter? Or will the landowner
decide that his daughter's life is more important than his pretty view? It seems likely.

But suppose not - suppose he chooses to keep the trees and lose his daughter. Does this show
that the value of the lime avenue isn't convertible? Of course not, just that he values the trees
more than his offspring. If the two different values were inconvertible, he would have no way
to decide one way or the other - no way to choose between them. The fact that people can
and do weigh-up and trade-off values, for all types of things, shows that it is both possible
and practical to do so.

In the original scenario, the sensible thing to do would be to ask for enough money to buy a
new bit of land, and to plant a new avenue of limes on it; but, since the principle of utility
does not imply the absence of fools, this criticism has no effect, and we needn't consider this
matter further.

3. Impracticality

The third most common criticism is that it is too difficult to apply - that we cannot
calculate all the effects for all the individuals (either because of the large number
of individuals involved, and/or because of the uncertainty). The principle of utility
is, essentially, a description of what makes something right or wrong - so in order
for it to fail, someone must give an example of something which is useful but
obviously wrong. The principle does not imply that we can calculate what is right
or wrong - completely accurately, in advance, or at all! It does not harm the
principle of utility at all merely to comment that it is difficult for us to work out
what is right - it is merely a lament against the human condition.

The idea of practicality is often used to suggest a problem exists in the theory,
when it fact it does not. For example:

"how far does one, under utilitarianism, have to research into the possibilities of
maximally beneficent action, including prevention?"

The answer is simple, and entirely obvious: as far as it is useful to do so! That is,
far enough so that we get the optimal trade-off between planning and
implementing, so that we maximize our effectiveness as agents. The does imply
that, in some cases, it may not be best to apply the felicific calculus at all: if the
problem is one that we have faced many times before, and always reached the
same conclusion; or if the case presents itself as an emergency, and isn't open to
extended consideration; we can forego the calculus and act immediately.
Example

Law enforcement officers possess a great deal of discretion that must be exercised by all
officers of every rank, regardless of their experience. When exercising this discretion,
officers will be confronted on a daily basis with issues that are complex, and may not be
covered in the agency’s policy and most certainly would not have been covered in their
formal education or police academy or other training. Law enforcement officers also are
required to make exigent decisions, without the ability to consult with senior officers or
policy and procedures. In some instances, when confronted with decisions, officers may want
to rely on utilitarianism to make an ethical decision that is defensible when scrutinized in the
future. For example, an officer tasked with policing a large pro-marijuana protest group may
observe a person within the group selling marijuana. Legally, the officer has the duty to
charge that person with trafficking in a controlled substance under the Controlled Drug and
Substance Act, a serious indictable offence. However, from a utilitarian position, the officer
may elect not to arrest and charge the suspect for two reasons:

1. The act of not arresting would make more pro-marijuana group happier compared to
the number of people would be unhappy with that decision. We can reasonably say that
society at large is becoming more relaxed about marijuana use, and the movement to
legalize marijuana is strong and getting stronger. Perhaps the officer would recognize
this, and make his or her decision accordingly. If the drug being trafficked was crack
cocaine, then the officer would likely adjust the decision. (If the drug was a more lethal
drug, that could cause death, the officer would be compelled by duty to arrest the suspect
in order to prevent harm.)

2. If the arrest is made for trafficking , the consequence would likely be a serious violent
confrontation with the large pro-marijuana group. The arrest by the police would not
make the majority of these individuals happy. As a result, while arresting the trafficker
may be the duty of the officer, the officer may come to the conclusion that the
consequences of making an arrest are likely to be negative. Therefore by using
discretion, the officer is utilizing utilitarian principles in his or her decision making.
From a rule utilitarianism perspective, the officer should consider what the consequences
would be if there were a rule that everyone was allowed to smoke and sell marijuana. If the
officer believes that society would be well served by this rule, then the officer should allow
the sale to continue. Should the officer believe the rule would be detrimental to society, the
officer should consider this as well, and at least consider making the arrest.

Justifications

Differences in preferences are important to explain variation in individuals’ behavior. There

is however no consensus on how to take these differences into account when evaluating
policies. While prominent in the economic literature, the standard utilitarian criterion faces
two major difficulties. First, it requires cardinal measurability and unit comparability of
individuals’ utilities, which cannot be inferred from individuals’ observed behavior. Second,
it is normatively controversial as it might support unfair policies. In this paper, we propose an
alternative criterion, named opportunity-equivalent utilitarian, that overcomes these
difficulties. First, our criterion ranks social alternatives on the basis of individuals’ ordinal
preferences, which can be estimated from individuals’ observed behavior. Second, our
criterion avoids the conventional critiques to utilitarianism by satisfying the following three
fairness axioms: possibility of trade-offs sets a limit to the influence any individual can exert
on the social ranking; non discrimination means that no individual is considered to be more
deserving than any other; equal-preference transfer requires society to value positively a
multicommodity progressive transfer among individuals with the same preferences. We show
that, together with efficiency, continuity, and separability, these axioms force the welfare
criterion to be the sum of specific indices of well-being that are cardinally measurable,
interpersonally comparable, and represent each individual’s preferences.