Two Concepts of Rule Utilitarianism

JOURNAL OF MORAL PHILOSOPHY Journal of Moral Philosophy 5 (2008) 227–255 www.brill.nl/jmp Two Concepts of Rule Utilitarianism Rex Martin Department of Philosophy, University of Kansas, Wescoe Hall, 1445 Jayhawk Blvd., Room 3090, Lawrence, KS 66045-7590, USA rexmartin@kc.rr.com Abstract The notion of rule utilitarianism (a twentieth-century addition to the canon of utilitarian thought) has been discussed under two main headings—ideal-rule utilitarianism and ‘indirect’ utilitarianism. The distinction between them is often hazy. But we can sketch out each perspective along three different dimensions, contrasting the two conceptions of rule utilitarianism at each of three main hinge points: (1) the grounding of rules, (2) the allowed complexity of rules, (3) the conflict of rules. These two profiles constitute ideal types, but they help us see that we can regiment and focus utilitarian intuitions in two quite distinct ways. An interesting test case is provided by J.S. Mill. He has been associated with each of these perspectives (with a utilitarianism of ideal rules by R.B. Brandt and with indirect utilitarianism by John Gray), but careful attention to Mill’s main arguments indicates, I believe, that he adheres to neither consistently, though he is closer to the indirect utilitarian position. Keywords act utilitarianism, ideal rules, indirect utilitarianism, Mill, rules, utilitarianism Introduction Traditional utilitarian ethical thought, with its leading nineteenth-century exponents (Bentham, Austin, Mill, and Sidgwick) taken as exemplars, has often been criticized as allowing—or at least as being unable to rule out— conduct that is morally dubious, perhaps reprehensible. Typical examples offered are the occasional punishment of the innocent, the holding of slaves, and the denial of the strictness of promises, even solemn ones.1 1 For punishment of the innocent, see E.F. Carritt, Ethical and Political Thinking (Oxford: Clarendon Press, 1947), pp. 61-65, at p. 65; see also H.J. McCloskey, ‘An Examination of Restricted Utilitarianism’ (1957), in Samuel Gorovitz (ed.), ‘Utilitarianism’ [by] J.S. Mill, with Critical Essays, Text and Critical Essays Series (Indianapolis, IN: Bobbs-Merrill, 1971), pp. 204-216, at p. 207, and McCloskey, ‘Utilitarian and Retributive Punishment’ (1967), in Gorovitz (ed.), © Koninklijke Brill NV, Leiden, 2008 DOI 10.1163/174552408X328993 228 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 A more recent line of criticism has stressed utilitarian defects as regards democratic constitutional government. Thus, in the preface to the 1999 revised edition of his Theory of Justice (a book originally published in 1971), John Rawls says that he ‘wanted to work out a conception of justice that provides a reasonably systematic alternative to utilitarianism’. He continues: The primary reason for wanting to find such an alternative is the weakness…of utilitarian doctrine as a basis for the institutions of constitutional democracy. In particular, I do not believe that utilitarianism can provide a satisfactory account of the basic rights and liberties of citizens as free and equal persons, a requirement of absolutely first importance for an account of democratic institutions.2 Interestingly, this more recent line of criticism, which is widely held, has been taken up by a number of thinkers who had earlier tended to be defenders of utilitarian thought, or broadly sympathetic to it. Here I would number not only H.L.A. Hart3 and David Lyons4 but also John Rawls himself.5 I want to examine one well-known defense of utilitarian ethical thought against such charges as allowing for punishment of the innocent and denying the strictness of promises. At the center of that defense was the idea that utilitarian normative evaluation should shift from a focus on individual actions on ‘Utilitarianism’, pp. 361-75, at pp. 361-66. For the strictness of promises, see W.D. Ross, The Right and the Good (Oxford: Clarendon Press, 1930), ch. 2, and Ross, Foundations of Ethics, Gifford Lectures (1935–36) (Oxford: Clarendon Press, 1939), ch. 5. For an example of the criticism about slavery, see John Rawls, A Theory of Justice, 2nd edn (Cambridge, MA: Harvard University Press, 1999), p. 137 (1st edn, 1971, pp. 158-59). R.M. Hare has defended utilitarianism against such criticism but, curiously, he cites no specific examples of either critics or their criticisms; see Hare, ‘What is Wrong with Slavery’, Philosophy and Public Affairs 8.2 (1979), pp. 103-121. 2 Rawls, A Theory of Justice (1999), pp. xi-xii. 3 For a broadly sympathetic view, see Herbert L.A. Hart, ‘Bentham on Legal Rights’, in A.W. Simpson (ed.), Oxford Essays in Jurisprudence, 2nd Series (Oxford: Clarendon Press, 1973), pp. 171–201. (Reprinted, unchanged, as ch. 7 in Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory [Oxford: Oxford University Press, 1982], pp. 162-93.) And for Hart’s later thoughts about utilitarianism and rights, see his Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), chs. 8 and 9 (both these essays were originally published in 1979). 4 David Lyons, ‘Utility as a Possible Ground of Rights’, Nous 14 (1980), pp. 17-28, and ‘Utility and Rights’, in J.R. Pennock and John W. Chapman (eds.), Ethics, Economics, and the Law, NOMOS, 24 (New York: New York University Press, 1982), pp. 107-138. These two essays criticize the thesis that utilitarianism, even in its best version, is compatible with basic rights; but many of Lyons’s earlier essays had supported that compatibility. (See here Lyons, Rights, Welfare, and Mill’s Moral Theory [New York: Oxford University Press, 1994], which collects together the 1982 essay with some of these other essays.) 5 For his earlier defense of utilitarianism, see John Rawls, ‘Two Concepts of Rules’ (1955), in Samuel Freeman (ed.), John Rawls: Collected Papers (Cambridge, MA: Harvard University Press, 1999), pp. 20-46. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 229 given occasions, as its primary concern, and instead put its main focus on rules telling how one should act on the whole range of occasions that came under given rules.6 The Advent of Rule Utilitarianism So far as twentieth-century ethical thought is concerned, one of the earliest papers which advances the crucial distinction on which this defense is based is a paper (on punishment) by J.D. Mabbott, published in 1939.7 There Mabbott, after proposing the shift just mentioned, argued that, in the new rules paradigm, the governing distinction should be between a practice or an institution or a rule, on the one hand, and an occasion—an instance—of applying that rule (or engaging in that practice or conforming to that institution), on the other.8 The rule or the practice itself is justified on utilitarian grounds. Rules are justified, Mabbott says, by ‘the good results which would follow if they were generally obeyed’. Here it is claimed that general adoption of and conformity to the rule in question would do more good, all things considered, than would the omission of the rule and of the conduct conforming to it, and it would do more good than would the deployment of an alternative rule.9 Rawls’s account of the matter is very similar to Mabbott’s. The main difference is that, for some activities, Rawls regards the relevant rules as constitutive— as delineating the ‘offices, roles, moves, penalties, defenses, and so on’ and thereby as giving the particular activity its ‘structure’.10 As examples, he cites 6 This proposed shift involved moving away from a focus on individual acts, as exemplified in G.E. Moore’s account of an ideal utilitarianism: ‘it is always the duty of every agent to do that one, among all the actions which he can do on any given occasion, whose total consequence will have the greatest intrinsic value’ (Moore, Ethics, Home University Library of Modern Knowledge, no. 54 [London: Oxford University Press, 1912], p. 143; see also Moore, Principia Ethica [Cambridge: University Press, 1903], pp. 106, 147). The view which Moore held and which he attributed to the classic utilitarian thinkers is now called ‘act utilitarianism’. 7 J.D. Mabbott, ‘Punishment’, Mind 48 (1939), pp. 152-67. Another important example from the 1930s, often cited, is R.F. Harrod, ‘Utilitarianism Revisited’, Mind 45 (1936), pp. 137-56. 8 The first of the two key distinctions (the ‘shift’, as I’ve called it) is most clearly stated by Mabbott in ‘Professor Flew on Punishment’, Philosophy 30 (1955), pp. 256-65, at p. 263. Rawls states the second of the key distinctions, which is the one he emphasizes, particularly clearly; see his ‘Two Concepts of Rules’ (1955), in Freeman (ed.), John Rawls: Collected Papers, pp. 20, 22, 31, 33, 41. 9 The quote is from Mabbott, ‘Professor Flew on Punishment’, Philosophy (1955), p. 264. 10 John Rawls, ‘Two Concepts of Rules’ (1955), in Freeman (ed.), John Rawls: Collected Papers, p. 20, n. 1; see also pp. 36-37. For the other points made in my brief account of Rawls, see pp. 22, 23, 31. 230 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 in the course of his argument games, rituals, trials, parliaments, the making of wills, punishment, and promises. The difference here is important, but we should not lose sight of what the two approaches have in common. In both cases we try to describe the main parameters of a rule, an institution, or a kind of activity. In both cases we say that rules, kinds or types of activities, etc. can be assessed by considering whether they would be beneficial on the whole, if conduct generally (or uniformly) conformed to them, as measured against a situation in which that rule was omitted altogether or another rule was substituted in its place. In both cases we advert to the same justifying principle, the principle of greatest happiness, of general benefit, of good consequences; and in both cases we claim that the rule or kind of activity we are contemplating is justified by this standard. And, finally, and perhaps most important, in both cases it is asserted that once a rule is established, as justified, one is to conform to it; further appeal to general utilitarian considerations in individual applications on particular occasions is ‘surrendered’ (Mabbott) or no longer ‘open’ (Rawls).11 Now, Rawls does not contend that all rules will be rules that define a practice, that constitute or criterially characterize an activity as an activity of a certain kind; he does not contend that all moral rules will be, like those of punishment or promising, practice defining as well as moral guides.12 Accordingly, we can focus simply on what these defining rules of practices have in common with all other normative rules (in being, all of them, rules justified by some relevant standard). This will give us the essential idea of rule utilitarianism at the time it first appeared; it is the idea common to the accounts offered by Mabbott and Rawls, as described in the previous paragraph. Two Conceptions of Rule Utilitarianism: An Analytic Framework The notion of rule utilitarianism is a twentieth-century addition to the canon of utilitarian thought. It was first suggested in essays written before the Second World War, but it was not given a detailed formulation until the 1950s. 11 For the summary points made in this paragraph, see Mabbott’s papers: ‘Punishment’, Mind (1939), at pp. 160-164; ‘Professor Flew on Punishment’, Philosophy (1955), at pp. 263-264; ‘Interpretations of Mill’s Utilitarianism’, Philosophical Quarterly 6 (1956), pp. 115-20, at p. 115; and see Rawls, ‘Two Concepts of Rules’ (1955), in Freeman (ed.), John Rawls: Collected Papers, pp. 31-32, 38, 40, 42. For the quoted terms at the end of the paragraph see, respectively, Mabbott, ‘Punishment’, p. 163, and Rawls, ‘Two Concepts of Rules’, p. 30. 12 See Rawls, ‘Two Concepts of Rules’, p. 43, n. 27. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 231 Neither of the accounts we have examined from the 1950s, however, explores the full range of possible relations that rules could have to utilitarian principles. Besides the one they had focused on (the justification of binding rules, assuming general obedience to them), there are a number of other important relations that would need to be mapped out. From our present perspective, we can see that attempts at such mapping have since been made and that certain juncture points can be identified. At each of these points, bifurcations are possible. Advocates of rule utilitarianism, beginning in the late 1950s and in the three or so decades after that, have tended to take somewhat divergent paths. Two quite distinct perspectives have in fact emerged. Accordingly, rule utilitarianism can profitably be discussed under two main headings—as a utilitarianism of ideal rules and as ‘indirect’ utilitarianism. We can sketch out each perspective along three different dimensions by contrasting the two conceptions of rule utilitarianism at each of three main hinge points: (1) the grounding of rules, (2) the allowed complexity of rules, (3) the conflict of rules. (1) One could take the rules in question, for the most part, to be rules that were grounded and developed independently of utilitarian considerations. The rules as formulated were useful, no doubt, but there was no evident sense that they had been generated with the ‘greatest happiness of the greatest number’ consciously in mind. Probably the rules for legal punishment (whether viewed as deterrent or as retributive) were of this sort. And likewise rules for making wills, conveying property, and entering into marriages. By the same token, rules for making and keeping binding promises, rules for truth telling, rules against theft and for refraining from assaults and other injuries to persons or their security, and rules requiring aid to those in need, like the other rules mentioned, came about and developed over time and were discussed and rationalized without an explicit turn to the utilitarian greatest happiness principle. The rules, in short, were ‘tried and true’ without being utilitarian. Even when certain of the rules were consciously created or modified, this could better be accounted for by the method we associate with common law jurisprudence than the one we associate with utilitarian reasoning. Of course, this is not to say that rules so generated could not be given a post hoc utilitarian justification. Many of them could. They could even be given the strong version of utilitarian justification that both Mabbott and Rawls advocated. That is, general adoption of and conformity to the rule in question would do more good, all things considered, than would the omission of the rule and of the conduct conforming to it, and it would do more good, or would do so with modest modifications, than would the deployment of a different rule. It is, of course, worth noting that some fine-tuning of existing rules would actually be done to bring them into closer conformity to utilitarian norms. Nonetheless, 232 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 the key point here remains intact, that the primary generation and grounding of the operative rules is independent of utilitarian considerations. These views, I take it, represent the perspective of indirect utilitarianism.13 The alternative perspective is that of ideal rules; here we want to specify and install an overall code made up of moral rules that could be constructed, using certain key regulative assumptions, so as to conform closely to utilitarian standards. Thus Richard Brandt, one of the leading exponents of a utilitarianism of ideal rules, suggests that any such optimal code would be a complete set of rules, that the actions enjoined by the rules are done by everyone on all appropriate occasions, and (perhaps most important) that conforming action, by everyone, under the code would have a greater expected utility than would action conforming to ‘any other set of imperatives’. Brandt continues: ‘Now, morality is an informal analogue of law, and the rule-utilitarian is saying that we should decide particular cases by following general prescriptions but that whether a given prescription should be adopted depends roughly on the utility of its being generally adopted.’14 In the first dimension we have been examining, that of the grounding of rules, the indirect utilitarian holds that the initial generation and grounding of the operative rules is independent of utilitarian considerations, but that these rules, where sound, are justifiable and revisable on utilitarian grounds. In contrast to this, the ideal-rules utilitarian holds that moral rules are best conceived as constituents of an overall code specifically designed, under certain controlling assumptions, to conform as closely as possible to the principle of maximizing expectable utility.15 (2) Let us turn now to the second of the hinge points I specified earlier, that of the allowed-for complexity of moral rules. In his earliest formulation of rule utilitarianism, a term he apparently coined, Brandt asserted that ‘there is no restriction on the complexity of the principles [the prescriptions], or on their number, which may be quite large’.16 Later, though, David Lyons argued that if there was no restriction whatsoever on the complexity of moral rules, then action conforming to the set of such rules would be extensionally equivalent 13 See John Gray, one of the leading theorists of indirect utilitarianism, in his Mill on Liberty: A Defence, 2nd edn (London: Routledge, 1996), esp. p. 34. The 2nd edition reprints the main text of the 1st edition (1983), with pagination unchanged, and adds to that a short ‘Preface to the Second Edition’ and a longer ‘Postscript’, pp. 130-58 (with notes to the postscript, at pp. 169-72). 14 Richard B. Brandt, Ethical Theory: The Problems of Normative and Critical Ethics (Englewood Cliffs, NJ: Prentice Hall, 1959), pp. 396-97. 15 See Brandt, Ethical Theory, p. 396-98. 16 See Brandt, Ethical Theory, p. 398. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 233 to what the principle of greatest happiness would require on any given occasion. And this would abolish the distinction of act from rule utilitarianism and effectively blunt any value that rule utilitarianism might be alleged to have over act utilitarianism.17 So, we will assume that the complexity of rules allowed for in rule utilitarianism cannot be maximal. Whatever complexity is allowed for, it must be compatible with maintaining a clear distinction between act and rule utilitarianism. The main way in which complexity is introduced into a moral rule is through the specification of initial conditions for the operation of the rule and through exception clauses respecting that operation. For example, the conventional moral rules respecting the use of deadly force are different in a military context (in time of war) from the standard case in a civil society. In the standard case in a civil society, killing others is forbidden as wrong. An exception is made for self-defense, but even this exception is limited to cover only a defense against active and otherwise unavoidable lethal threats. Thus, exception is built into exception and the complexity of the rule is multiplied. The standard rule utilitarian argument is that allowed-for exceptions are to be based on well-grounded utilitarian considerations, that the rationale for the various exceptions is to be clear and well understood, that the exceptions are to be made explicit in the rule. It is, of course, impossible to foresee every possible legitimate exception that might arise now or in the future. So we also need the idea of ruleworthy exceptions, exceptions that are not explicit but that nonetheless come under the clear and well-understood rationales for one or another of the existing explicit exceptions. We come now to a second point where David Lyons’s criticism of early forms of rule utilitarianism brought out an issue of continuing importance. The careful reader will have noted that, except for Brandt’s idea of allowing for 17 For the extensional equivalence argument see David Lyons, Forms and Limits of Utilitarianism (Oxford: Clarendon Press, 1965), chs. 3 and 4. Lyons later notes that the extensional equivalence argument can be extended to cover ‘ “primitive” rule-utilitarian theories, [the rules of which] are ghostlike directives having no necessary relations to real social phenomena. These “rules” are, in effect, derivative, second-order judgments about classes of acts, and can be as complex and subtle as utilitarian discrimination requires. Ordinary social rules are not like that, so rule-utilitarian theories that employ more realistic conceptions of social rules place limits, in effect, on their complexity. Or…they take into account not just the utility of the conduct to be regulated but also the utility of regulating it. Once any such limits are placed on the rules, relative to the rules employed by primitive rule-utilitarianism, the extensional equivalent argument no longer applies’ (‘Mill’s Theory of Morality’ [1976] in Lyons [ed.], Rights, Welfare, and Mill’s Moral Theory, p. 59). 234 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 an indefinitely high degree of complexity in moral rules, his utilitarianism of ideal rules follows very closely lines already laid down by Mabbott and Rawls. I have in mind here Brandt’s emphasis, like their’s, on a utilitarian justification for binding rules and his assumption of a general (indeed, uniform) obedience to them. Lyons suggests that a shift in assumptions is needed here. We need to think, not about the utility of general conformity to rules, but, rather, about the utility of general acceptance of rules.18 Such general acceptance, by and large, involves the internalization of rules. This means that the cost of maintaining a system of rules is impounded and built into the code. This would include the costs of sustaining devices such as moral training, having appropriate motivating sentiments (like shame and guilt, paired with disdain toward rule breaking), and the threat and use of various kinds of punitive sanctions (ranging from blame and social exclusion on up) to help maintain these rules. Without acceptance, as described, it’s unlikely that persons acting in accordance with the code would be able, reliably, to make ruleworthy exceptions. And without acceptance—that is, without internalization and the reinforcing sentiments and sanctions that go with it—the idea of uniform conformity is a mere assumption (a magic wand), without any real basis. But once such rules are in place, as accepted, then people’s acting generally (but not necessarily unfailingly) in accordance with the rules (explicit exceptions included, and with ruleworthy exceptions allowed for) would have a higher expectable utility than would not having such rules in place at all. And it would have a higher expectable utility than would accepting simpler rules (rules that excluded many of these explicit and well-grounded exceptions) and then acting in accordance solely with those simpler rules. Now, I would grant that the idea of ruleworthy exceptions is probably more at home with the analysis of the indirect utilitarians. Ideal-rules utilitarians would typically prefer to reformulate the rules per se (with initial conditions 18 For Lyons’s discussion of acceptance utility (in contrast to compliance utility) see Forms and Limits of Utilitarianism, pp. 140-41, 150-59. For his criticism of Brandt’s (early) writings, see pp. 136-43. For Brandt’s own turn to acceptance utility, after 1959, see (for example) Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979), ch. 9 (esp. pp. 165-70), ch. 10 (esp. pp. 185-88, 194), and ch. 15. See also the following papers by Richard B. Brandt, all found in his Morality, Utilitarianism, and Rights (Cambridge: Cambridge University Press, 1992): ‘The Concept of a Moral Right and its Function’ (1983), at pp. 182-83; ‘Utilitarianism and Moral Rights’ (1984), at pp. 198-99, 212; and ‘Fairness to Indirect Optimific Theories in Ethics’ (1988), pp. 137-157. And, finally, see Brandt, ‘Comments’ in Brad Hooker (ed.), Rationality, Rules, and Utility (Boulder, CO: Westview Press, 1993), pp. 207-248, at pp. 218, 226-27. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 235 further specified and exceptions explicitly built in); but they can find a place in their analysis for ruleworthy exceptions, nonetheless.19 The perspective of acceptance utility constitutes common ground between indirect utilitarians and ideal-rules utilitarians (like Brandt, in his writings after Ethical Theory [1959], or Brad Hooker, one of the leading contemporary ideal-rules utilitarian theorists).20 Moreover, both indirect and ideal-rules utilitarians concur on having rules with allowed-for exceptions built in. And they see no need, once the rules actually incorporate utilitarian-based exceptions (whether explicit or merely ruleworthy ones), to advert to what the principle of maximizing expectable utility might require on individual given occasions. Indeed, rule utilitarians of both stripes typically assert that direct appeals to general welfare are self-defeating, all things considered, and that putting standing constraints on the principle of utility—such as a set or system of exception-laden moral rules of the sort we have been discussing—in fact produces the greater well-being.21 Even so, a difference of degree will remain in the dimension of rule complexity between the two versions of rule utilitarianism I have identified. Some of this difference can be accounted for by a matter we discussed earlier, that is, accounted for by the differing orientation of each perspective toward what I called the grounding of moral rules. The rules the indirect utilitarian focused on were ‘tried and true’ rules, conventional social rules that had a lot of current support and a lot of support 19 Richard Brandt allows that, in order to avoid disparity between ideal rules and ‘conduct that promises to maximize benefit’, we must add escape clauses to these rules; but he cautions that such deviation from the rules should be permitted only in ‘extreme circumstances’ (Brandt, ‘Utilitarianism and Moral Rights’ [1984] in Brandt, Morality, Utilitarianism, and Rights; see p. 205 for the first matter quoted and p. 212 for the second; ‘escape clauses’ is double quoted in Brandt’s text, on p. 205). Ben Eggleston, however, provides an interesting analysis which has the implication that idealrules utilitarians like Brad Hooker would encounter a difficulty, amounting ultimately to a theoretical impossibility, in incorporating the notion of ruleworthy exceptions into their basic accounts. (See Eggleston, ‘Conflict of Rules in Hooker’s Rule-Consequentialism’, Canadian Journal of Philosophy 37.3 (2007), pp. 329-349. 20 See Brad Hooker, Ideal Code, Real World (Oxford: Clarendon Press, 2000), ch. 2 (esp. p. 32) and pp. 75-80, 90-92, 144 n.3. See also Hooker, ‘Reply to Arneson and McIntyre’, Philosophical Issues 15 (2005), pp. 264-81, at pp. 268-69, 270-71, 280. 21 See John Gray, Mill on Liberty: A Defence, 2nd edn, esp. pp. 12, 38, 46, 63, 111; also, Gray, ‘Indirect Utility and Fundamental Rights’, Social Philosophy and Policy 1.2 (1984), pp. 73-91, at pp. 75, 80-84. Also Brad Hooker, ‘Right, Wrong, and Rule Consequentialism’, in Henry West (ed.), The Blackwell Guide to Mill’s Utilitarianism (Oxford: Blackwell, 2006), pp. 233-48, at pp. 235-38, 246; and David O. Brink, ‘Mill’s Deliberative Utilitarianism’, Philosophy and Public Affairs 21 (1992), pp. 67-103, at 92-103. 236 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 from historical experience. Such rules, even when including exception clauses and allowing for ruleworthy exceptions, will typically be relatively simple. Not all of these simpler social rules could be given a post hoc utilitarian justification, but some, perhaps many, of them could be. Indeed, the fact that the justifiable rules were standing social rules would tell in their favor: they would be teachable and followable; the costs of teaching and maintaining those rules would already be factored in; they would already have connections with other social rules (the whole set of which would have social support); and the limitations and the moral sense of the society in question would already be on display in these rules, presuming they were active and not merely nominal rules. Here, then, it could plausibly be argued that the general acceptance of and conformity to the rules in question (all of them presumably justifiable) would do more good, all things considered, than would the omission of the rules and of the conduct conforming to them, and it would do more good, or would do so with modest modifications, than would the deployment of different rules. And, of course, the indirect utilitarian perspective leaves room for the finetuning of existing rules to bring them into closer conformity to utilitarian and other norms, as the moral sensibility of persons in the society changes over time or as other changes over time occur (in, for example, the requirements of technology or of efficiency). My instinct is that justified rules, even those that included modifications introduced over time, would be simpler and less complex in the case of established social rules in contrast, say, to the more complex rules typically allowed for in a complete code of ideal rules that had been constructed, with certain stringent controlling assumptions in view, so as to yield the most desirable moral code for the society in question.22 Of course, one could argue that, once we took account of the moral sensibility of the society in question and of its basic institutions, its technology, and so on, there might be little concrete difference between the rules developed from the one perspective and those developed from the other. That difference might be lessened even further, were one to emphasize (as has Brad Hooker) an incremental approach to reforming existing rules when moving them in the direction of ideal rules.23 22 Brandt ‘Utilitarianism and Moral Rights’ (1984) in Brandt, Morality, Utilitarianism, and Rights, pp. 198-99. 23 Brad Hooker, ‘Reply to Arneson and McIntyre’, p. 278. For background here, see Alison McIntyre, ‘The Perils of Holism: Brad Hooker’s Ideal Code, Real World’, Philosophical Issues 15 (2005), pp. 252-63, at p. 258. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 237 But does this suggest that we could ever narrow the margin of difference completely, so that there was no concrete difference whatsoever between the rules developed from the one perspective and those developed from the other? I doubt it. I would surmise that something like reflective equilibrium would always be needed or could always be required between some high-order critical principle like that of the greatest happiness (or between some ideal code that was engineered to approximate the requirements of that principle), on the one hand, and established social rules of morality, on the other. If this postulate is sound, then there will continue to be a difference, perhaps a considerable difference, between the level of complexity of real social rules and that of the ideal rules of a code specifically designed to approximate the general happiness.24 The argument I set forth earlier (based on the different grounding of moral rules within each of the two perspectives we’re examining) would account, then, for part of the expected difference in levels of complexity between the moral rules endorsed from one perspective and those endorsed from the other. But it will not account for all the difference in the allowed-for complexity of rules. Besides a differing orientation as to grounding there’s also a basic difference between the main moral project each endorses. The indirect utilitarian is interested in existing social rules insofar as justifiable (and revisable) on utilitarian grounds. Such rules will always be relatively simple and designed to be followable, and they will be (in part for this very reason) highly teachable rules. When such a set of rules is in place and justifiable on utilitarian grounds, it will, when socially accepted and generally conformed to, accord a high level of stability to moral expectations and obligations, and this in turn will enhance reliability, coordination, and mutual trust and cooperation at a number of points among the adherents of those rules, among the participants in that morality. The moral project of indirect utilitarianism 24 Brad Hooker endorses reflective equilibrium (a notion taken from Rawls) as a key ingredient in his own theory. (See Hooker, ‘Reflective Equilibrium and Rule Consequentialism’, in Brad Hooker, Elinor Mason and Dale Miller [eds.], Morality, Rules, and Consequences: A Critical Reader [Edinburgh: Edinburgh University Press, 2000], pp. 222-38, esp. at pp. 229-31). Most discussions of reflective equilibrium stem from Norman Daniels’s distinction of ‘wide’ from ‘narrow’ reflective equilibrium; see the bibliographic citations to Daniels in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), p. 540. I have been influenced in my thinking about reflective equilibrium not only by Daniels but also by T.M. Scanlon’s sophisticated discussion in his ‘Rawls on Justification’, in Freeman (ed.), Cambridge Companion to Rawls, pp. 139-67, at pp. 140-57. 238 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 is focused on the short list of values (such as stability, as just set forth), values that inhere in a justifiable set of existing social rules.25 In contrast, the utilitarian advocate of a code of ideal rules is interested in achieving with that code the nearest practical or feasible approximation to the requirements of the greatest happiness principle, consistent with retaining the distinction of rule from act utilitarianism and with staying true to the requirements of acceptance utility. The moral project of a utilitarianism of ideal rules is focused on establishing, in the form of this best utilitarian code, a sort of surrogate of the greatest happiness principle. This code, then, becomes the primary standard by which existing social rules can be assessed— can be measured, improved upon, and ultimately justified. For this standard to do its job, the constituent ideal rules must be closely specified, the number of such rules multiplied, and the internal complexity of the various individual rules enlarged. The basic difference between the main moral project endorsed by each of these two perspectives (indirect utilitarianism, on the one hand, and a utilitarianism of ideal rules, on the other) accounts, I think, for the greater part of any remaining expectable difference in levels of complexity between the moral rules endorsed from one perspective and those endorsed from the other. Now, it is widely believed that moral rules (even complex ones) can conflict with one another, at least on some occasions. There are devices—such as endlessly elaborating the initial and boundary conditions of rules or by forever increasing the complexity of rules by building in exceptions or by specifying the competitive weights of various rules at the points where they might come into conflict. These devices are meant to allow rules to nest together, given their now mutually compatible scopes and contents, and to reduce thereby the conflict of rules. But it is well nigh impossible altogether to avoid such conflicts by means of these devices.26 25 It has been suggested that the view I’ve been calling ‘indirect’ utilitarianism is in fact better called ‘actual-rule utilitarianism’. I think not; the rules in the account I’ve offered are social rules (many of them established rules) that are justifiable on utilitarian grounds. They are not simply actual rules; some established rules (perhaps a good number) are not justifiable, and some could never be revised to the point where they are justifiable (e.g., rules condoning ritual human sacrifice or establishing chattel slavery). 26 Joel Feinberg has argued, in a case closely parallel to the case of moral rules, that it is possible in principle to eliminate conflict of rights through careful drafting of the scope of various rights and by assigning competitive weights to rights to resolve any remaining conflicts that could arise between them. Nonetheless, he thinks that this theoretical possibility is unlikely of realization and that conflict of rights will in fact occur. Indeed, he identifies one case, internal conflict (conflict between instances of one and the same right), which he thinks truly inevitable, even with careful drafting, etc. See Feinberg, Social Philosophy, Foundations of Philosophy series (Englewood Cliffs, NJ: Prentice Hall, 1973), ch. 5 (and pp. 95-96 for Feinberg’s point about R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 239 (3) So the question becomes what to do when moral rules conflict, as some think they did in that memorable case described by Kant, where the duty to aid or to avoid harm came in conflict with a duty not to lie. This brings us to the third of the hinge points I specified earlier, that of a conflict between moral rules. Several possibilities are present in such a case. Some who advocate a mixed strategy (one that combines elements of act-utilitarianism with rule-utilitarianism) have argued that, in cases of conflict, direct appeals to the greatest happiness principle are in order. Here, for example, one might decide to go with that act, whatever it was, that would have the greatest utilitarian benefit on this particular occasion. This act might come under one of the conflicting rules (or it might come under some other rule) or it might come under no existing rule at all. Since the decision procedure just outlined in effect frees the agent on that occasion from any essential reliance on rules, it has been described by those who advocate it (e.g., Richard Hare or Henry West) as constituting one of the act-utilitarian elements in an overall mixed strategy.27 Given the emphasis in rule utilitarianism on making rules central in the determination of how to act on given occasions, the more promising approach, then, would be to decide which rule to follow, on that occasion, by reference to utilitarian considerations. Let us assume, first, that we are here concerned with a complete code made up of relatively complex ideal rules, a code that was designed to achieve, through those rules, the nearest practical or feasible approximation to the requirements of the greatest happiness principle. Accordingly, such a code could not be indifferent to what would be expected to have the greatest utilitarian benefit on this particular occasion, an occasion of conflicting rules. The ideal code could not desert rules altogether in such a case, but it could try to ascertain which determinate constituent rule would probably give the best result if consistently followed in similar cases of conflict. Or, alternatively, it could turn to some constructed rule for deciding such conflicts, assuming that it could be shown that following this second-order rule would give the best expected result if consistently followed, when it was invoked in similar cases of conflict.28 ‘internal’ conflict). For further discussion of conflict of rights (and rules), see R. Martin, A System of Rights (Oxford: Clarendon Press, 1993), ch. 5, §4, esp. pp. 118-23. 27 See R.M. Hare, Moral Thinking: Its Level, Method, and Point (Oxford: Clarendon Press, 1981), ch. 2 (esp. p. 43), also pp. 50, 155-56; and Henry West, An Introduction to Mill’s Utilitarian Ethics (Cambridge: Cambridge University Press, 2004), p. 87. 28 Richard Brandt advocates the use of such a second-order rule. See Brandt, Ethical Theory, pp. 398-99; and Brandt ‘Utilitarianism and Moral Rights’ (1984) in Brandt, Morality, Utilitarianism, and Rights, pp. 208-209. 240 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 Of course, if consistently following that rule was not compatible with the overall code (and could not readily be made so), or if following that rule would negatively affect the code’s status of being the most desirable feasible code, when judged by utilitarian standards, then something else would have to be done. In the end, though, some rule would have to be selected (and selected in a principled utility preserving way within the code). All this seems cumbersome. There seems no way round it, for ideal rules, except to employ something of a rough and ready strategy. Here we decide (among the conflicting rules) which rule to follow, on that given occasion, by reference to utilitarian considerations. The rationale for using the rough and ready strategy is that not using it is cumbersome and costly to implement, but taking it is justified by the fact that following the rule chosen is likely to achieve the greatest expected well-being, compared with the expected outcomes of the competing rules on offer on that occasion. Following the rule which gave the better utilitarian result, on the occasion of a conflict of rules, might in fact have no effect, or no expectable negative effect, on the long-term operation of the overall code. If there was some negative effect, that effect could be dealt with later. And here the very devices that we noted earlier would be employed: the further specification of initial and boundary conditions for individual rules, the building of additional exceptions into rules. The resulting code would continue to be—without ever ceasing to be—a code of ideal rules, a code that was designed to achieve, through those rules, the nearest practical or feasible approximation to the requirements of the greatest happiness principle. But, presumably, the code so modified would be a better code from a utilitarian perspective. The approach the indirect utilitarian would take to conflict of rules is, as would be expected, different from that of ideal-rules utilitarianism, and different even from the rough and ready approach I suggested as a fall back in the case of ideal rules. Building on what has already been said in favor of a rule-focused and constrained utilitarianism, indirect utilitarians argue that the principle of greatest happiness should not directly determine what is to be done here. Indirect utilitarians do not say, for example, that action A, which comes under one rule, is to be done because on this occasion doing so produces the greater expected well-being. And they do not say that one should act in accordance with that specific rule (in a short list of justified social rules) which would give the best expected result, all things considered, if that rule were consistently followed in similar cases of conflict. Rather, for them, the general happiness principle operates only indirectly in all such cases. It bears down, not on individual actions per se or even on individual rules on the particular occasion in question (an occasion of conflict of rules). Instead, the general welfare principle is used to help determine which R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 241 rule is weightier, all things considered and over the long run, or to help determine a policy (a rule of conduct), all things considered, for conduct when these particular moral rules conflict. The point of appealing to the general happiness principle in the event of a conflict of rules is merely to focus attention and thereby help contribute, in a continuing way, to an ongoing cumulative ranking of ‘the opposing obligations’ so as to achieve a refined and resultant clear ranking of those obligations, for use on particular occasions of conflict.29 In indirect utilitarianism there is never a direct and determining appeal to the greatest happiness principle as to what to do, what act to perform or what rule to follow, on a particular and given occasion. We have now reached the end of our survey of two distinct conceptions of rule utilitarianism. I have sketched out each of these perspectives along three different dimensions and contrasted these two conceptions of rule utilitarianism at each of three hinge points. The first main difference is whether moral rules, as constituents of a code of justified rules, are to be consciously constructed to be utility preserving (the ideal-rules form) or whether such rules are understood as generated independently of the utilitarian greatest happiness principle but as nonetheless justifiable and revisable under that principle (the indirect form). The second is whether rules can be allowed to become relatively complex, so as to maximally preserve expected utility (the ideal-rules form) or whether they are to be kept fairly simple and readily followable (the indirect form). And the third is whether, when rules conflict, one chooses that rule which, if followed, does the most expected good on the occasion in question or does the most such good if followed consistently in similar cases of conflict (the ideal rule form) or, alternatively, whether one relies in determining proper conduct solely on accumulated judgments about the meaning of particular rules, reasonable exceptions, the relative weight of various rules, etc., as seen from a utilitarian perspective (the indirect form). Why might differences of this sort arise? I mean the differences—between ideal-rules utilitarianism and indirect utilitarianism—that we’ve been examining. I believe that reasonable differences of judgment of two sorts have probably played the main roles here. First, there are differences in epistemic assessment. It is difficult to make judgments about what course of action is best now (what is for the general happiness) when the results of so acting stretch out over long periods of time; it is especially difficult where cases are complex and where the relevant facts 29 See esp. Lyons ‘Mill’s Theory of Morality’ (1976) in Lyons, Rights, Welfare, and Mill’s Moral Theory, p. 61. And (for a somewhat more qualified account) see Gray, Mill on Liberty: A Defence, 2nd edn, p. 42, and ‘Indirect Utility and Fundamental Rights’, pp. 84, 88-90. 242 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 of the matter (including the attitudes and capacities of the participating moral agents) are, more often than not, conjectural. Naturally, then, differences about the best way of establishing or following moral rules in such cases are to be expected. These differences will persist not only with respect to what might be called the basic rules but also with the identification of initial and boundary conditions for such rules, with allowed-for exceptions to them, with conflicts between those rules. These differences are, if anything, more pronounced when one considers actually making ruleworthy exceptions, or deciding what to do when confronted with a conflict of rules, or determining how to proceed when seriously counseled (by conscience or by advisors on a given occasion) to desert an operative rule altogether, or to fashion a rule de novo. The people involved in making such decisions, although they may well be conscientious utilitarians, are also fallible, self-interested, and limited human beings (as we all are). And if the case contemplated is a really serious one, where a moral rule might be overturned by a rule-less action or by a one-time only exception, the individuals involved are, no doubt, also rattled and under considerable internal turmoil and pressure as well. All this has to be taken into account. In short, there are reasonable differences about the degree of epistemic constraint called for in this recital of considerations and concerns. Rule utilitarians in general tend to think that act utilitarian reasoning is too bold, indeed epistemically unwarranted, for the general run of cases and persons encountered in moral life.30 By the same token, indirect utilitarians are even more inclined to exercise epistemic constraint in the formation of rules or in dealing with conflicting precepts than are ideal-rules utilitarians. The issue between them is not one of temperament but, rather, of what is reasonable for all people and in the long run in the light of identified limits on our knowledge and of propensities toward self-interest in determining judgment and conduct. The second main difference arises, I think, from the highly general and abstract character of the principle of general happiness itself. Utilitarianism is, perhaps, peculiar among moral theories, in that it rests conclusive weight on a single and relatively simple master principle—that the greater or more general expected benefit is to be preferred to the lesser—in all determinations, normatively, about human good and, ultimately, about human conduct. The great nineteenth-century founders of the doctrine—Bentham, Mill, Sidgwick—all agreed that, though the general happiness principle (which Bentham called the principle of the ‘greatest happiness of the greatest number’) is related to 30 See L. W. Sumner, The Moral Foundation of Rights, Oxford: Clarendon Press, 1987, pp. 187-90, 196-97 and Gray, ‘Indirect Utility and Fundamental Rights’, pp. 85-86, 89. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 243 conventional moral beliefs and practices, it is, nonetheless, a principle that can be stated and accepted (as sound or reasonable) independently of them. The principle of general happiness is a self-standing one and can be shown to be reasonable on its own terms. Even so, it is possible for a utilitarian to think that settled moral rules are clearer and more credible than the general happiness principle itself ever is on its own. For those who hold this view, it might make more sense to start with existing rules and work from there (as indirect utilitarians typically do) than to begin with the general principle and then to argue from there as to what the rules should be and, indeed, actually to set about constructing the rules from that very vantage point, as ideal-rule utilitarians typically do.31 True to its name the indirect version does not give the greatest happiness principle a direct and decisive role, at any of the three hinge points. It conceives moral rules as social rules; they are not portrayed as generated or developed with the ‘greatest happiness of the greatest number’ consciously in mind. The allowed-for complexity of individual rules is determined, not by the goal of tracking or approximating (subject to the constraints of the act/rule distinction and the requirements of acceptance utility) what the greatest happiness principle requires. Rather, these rules are understood as composing a justifiable set of social rules—a set of existing rules (for the most part)—and this requires that they be kept teachable and followable and feasible in a real social setting. Finally, in the case of conflict of rules, indirect utilitarians argue that the principle of greatest happiness should not directly determine what is to be done here. Instead, they turn to the social rules themselves, which impound the general happiness to one degree or another, and rely on an ongoing cumulative ranking of the various justifiable obligations as set out in these rules. Thus, when it is said that indirect utilitarians resolve in an indirect fashion vexing issues posed by exceptions to rules or by conflict of rules, it should not be thought that indirect utilitarians never ask questions, in these cases, about general well-being or that they never evaluate or justify rules by some such standard. This would be an interpretation to guard against. Rather, the point is that indirect utilitarians typically approach the matter of exceptions or of conflicts, in the first instance, by reasoning from existing rules to help identify allowable exceptions to somewhat similar rules. Or they pick out allowable 31 Brad Hooker briefly entertained the idea that one should, indeed, start with existing rules and then work from there, making piecemeal reformist moves. He acknowledged on reflection, though, that this would be a hopeless strategy for an ideal-rules utilitarian to follow. For it’s possible that ‘no element of the package arrived at via piecemeal assessment appears in the ideal package’ (‘Reply to Arneson and McIntyre’, pp. 277-78). 244 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 exceptions or assign rankings to given moral rules by taking account of existing opinion and what they take to be the decided weight of experience and precedent. In short, indirect utilitarians don’t begin by trying directly to ascertain what the general happiness principle might require and then reasoning directly from that to rules (as do ideal-rules utilitarians); instead, indirect utilitarians first make a decision, about exceptions or conflicts, by reasoning from existing rules, taking account of what they take to be reasons for the rules, making judgments of fairness and appropriateness, factoring in maxims and paradigm cases, and so forth. For indirect utilitarians an appeal to utility doesn’t involve going outside the rules so much as it involves building upon them. Only after rules are well-crafted and set in place in the fashion just described is it really possible, in their view, to address the question of a utilitarian evaluation of rules with these exceptions built in. Similarly, they would hold that overall utilitarian evaluation can effectively be brought to bear only after the competitive weight of various rules has been settled by experience and by practice and there is a resultant understanding as to how a conflict of thick rules on a given occasion is best resolved.32 In sum, the indirect utilitarian tends to make appeals to the general happiness principle only in the context of some already settled issues (the relative weight of rules, their consistency with precedent, and so forth); ideal-rules utilitarianism is not similarly constrained. The issue, then, is not whether an appeal to the general happiness principle is ruled out altogether in one of the perspectives we are examining; it isn’t. Rather, the general happiness principle is stressed throughout, but in characteristically different ways, by both the competing perspectives. The distinction between the two perspectives I have been discussing, between indirect and ideal-rules utilitarianism, is often hazy and some students of the topic treat them as interchangeable (or fail to distinguish them at all). But I believe the two perspectives are appreciably distinct in interesting ways, and I have tried to sketch out some of the main differences. The point is that the two profiles I have outlined constitute ideal types. As such, they help us see that it is both possible and indeed plausible to regiment and focus utilitarian intuitions in two quite distinct ways.33 32 The question of how an indirect utilitarian might tackle deciding on a rule where none existed or deciding to abandon a particular rule on a given occasion when convinced that following it would be very unwise or even disastrous (given the end intended in that rule) would, I’d suggest, normally be handled in roughly the same fashion. 33 For one example of a careful writer who doesn’t distinguish between the two, see Jonathan Wolff, An Introduction to Political Philosophy, revised edn (Oxford: Oxford University Press, 2006), pp. 50-55, 117-20; for another see William A. Edmundson, An Introduction to Rights, Cambridge Introductions to Philosophy and Law (Cambridge: Cambridge University Press, 2004), p. 69. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 245 Mill’s Rule Utilitarianism James O. Urmson was, perhaps, the first to argue in any sustained way that Mill was a rule utilitarian. At least his paper (1953) is widely credited with getting this particular way of reading Mill underway.34 The paper was immediately influential also as one of the formative influences on the development of rule utilitarianism itself in the 1950s (as discussed in an earlier section of the present paper). J.O. Urmson had been a visiting professor at Princeton (1950–51) at the same time John Rawls was completing his doctoral dissertation there, and Urmson was at Oxford during the year (1952–53) that Rawls was at Christ Church College on a post-doc Fulbright Fellowship. In his own paper on ‘Two Concepts of Rules’ (1955), Rawls acknowledged Urmson’s paper as one of the important inaugural pieces in the early canon of rule utilitarianism. Urmson’s main point was that Mill had been widely misinterpreted in the past, sometimes dismissively so. One major source of this misinterpretation, he thought, was to read Mill as an ‘orthodox’ utilitarian (what we today call an ‘act’). It was in this context that Urmson proposed his novel reading of Mill as, in effect, interpolating utilitarian-justified precepts or ‘secondary principles’ between the greatest happiness principle, on the one side, and individual occasions for acting, on the other; Urmson argued that in Mill’s Utilitarianism these intermediate precepts (or ‘moral rules’, as Urmson called them), rather than the One reason for this failure to distinguish, I’m sure, is that the term ‘indirect’ utilitarianism is in fact used in quite various ways. (i) Mabbott, for example, uses the term to distinguish the direct effects of breaking a rule (e.g., a promise is broken, with some definite effect) and the indirect effects of so breaking faith (e.g., as setting a bad example to others or in weakening one’s own resolve to keep promises in the future). A utilitarianism that takes account of the latter is to that degree indirect. (See Mabbott, ‘Punishment’ [1939], at pp. 155-57; ‘Professor Flew on Punishment’ [1955], pp. 264-65.) (ii) Others have described indirect utilitarianism simply as a strategy, a decision procedure, in which one uses a rule to decide how to act on all given occasions, regarding it as a more reliable procedure to follow than consistently going directly to the principle of general happiness to so decide. (See, for example, Sumner, Moral Foundation of Rights, pp. 180-98.) (iii) And some treat ‘indirect’ and ‘rule’ utilitarian as virtual synonyms or, alternatively, treat rule utilitarianism as a proper subset of indirect utilitarianism. (See, for example, Russell Hardin, ‘The Economics of Knowledge and Utilitarian Morality’, in Hooker, et al. (eds.), Rationality, Rules, and Utility, pp. 127-47, at pp. 127-28, 133-34.) I have added yet another conception of indirect utilitarianism to the mix. The version I have described overlaps point (ii); but it goes beyond it, offering something of an explanation of why one might hold (ii). My main reason for developing this ideal type version of indirect utilitarianism is simply that some of the main theorists I’ve been citing (in particular, John Gray and David Lyons) describe their own views as indirect utilitarian and tend to use the term ‘indirect’ so as to accord with the ideal type that I’ve laid out. 34 See J.O. Urmson, ‘The Interpretation of the Moral Philosophy of J. S. Mill’, Philosophical Quarterly 3 (1953), pp. 33-39. 246 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 greatest happiness principle itself, were the determinants of how one should act on particular occasions. I think the early view that Mill was a rule utilitarian has by now been established as credible; there are many reasons to doubt or challenge the older ‘orthodox’ interpretation of Mill.35 So, I will spend no time on the question, which still predominates in the literature today, of whether Mill was an act utilitarian or a rule utilitarian. Instead, the question I want to address is whether Mill is best read as an ideal-rules utilitarian or as an ‘indirect’ one. This, in fact, is the question that seems to be the appropriate one to raise in light of the themes of the previous section. Addressing this issue is not an idle exercise. Brandt has claimed that Mill is best understood as an ideal-rules utilitarian.36 This particular view was first in the field; more recently, the counterclaim has been made that Mill is best understood as an ‘indirect’ utilitarian. John Gray has asserted this with respect to Mill’s books, Utilitarianism and On Liberty. In putting forth this interpretation, Gray explicitly argued against both the older act utilitarian interpretation and the newer interpretation, advanced by Brandt and others, that the notion of a utilitarian code of ideal rules provides the best overview of Mill’s moral philosophy.37 And David Lyons, in a series of 35 In commenting on the onset of what he called the ‘crisis in my mental history’ and in reflecting on how he’d come to grips with it, Mill says, ‘I never, indeed, wavered in the conviction that happiness is the test of all rules of conduct and the end of life. But I now thought that this end was only to be attained by not making it the direct end’. He adds later that ‘this theory now became the basis of my philosophy of life’. Jack Stillinger (ed.), Autobiography by John Stuart Mill, Riverside Edition series (Boston, MA: Houghton Mifflin, 1969), ch. 5, para 6, at pp. 85, 86. (Mill’s Autobiography was published posthumously in 1873; see Stillinger’s introduction, at pp. xx-xxi, for some of the problems with establishing the authentic and best version of this work of Mill’s.) 36 Richard Brandt, ‘Some Merits of One Form of Rule-utilitarianism’ (1965), in Brandt, Morality, Utilitarianism, and Rights, pp. 111-36, at pp. 128-30; also Brandt, ‘Utilitarianism and Moral Rights’ (1984) in Brandt, Morality, Utilitarianism, and Rights, pp. 198-99, 212. That claim has recently been echoed by Alan Fuchs, ‘Mill’s Theory of Morally Correct Action’, in West (ed.), Blackwell Guide to Mill’s Utilitarianism, pp. 139-58, at pp. 145-46. 37 See John Gray, Mill on Liberty: A Defence, 2nd edn, p. x, chs. 1 & 2, and pp. 63, 66; and Gray, ‘Indirect Utility and Fundamental Rights’, esp. pp. 75, 78-80, 83-87; also Gray, ‘John Stuart Mill on Liberty, Utility, and Rights’, in J.R. Pennock and John Chapman (eds.), Human Rights (New York: New York University Press, 1981), pp. 80-116, esp. at pp. 83-87, 91, 109, 111. For Gray’s explicit contrasts of indirect with ideal-rules utilitarianism, see Mill on Liberty: A Defence, 2nd edn, pp. 12, 31-32, 34, 38; and ‘Indirect Utility and Fundamental Rights’, p. 84. Gray provides a useful summary of what he calls the ‘new wave of Mill scholarship’; he traces a line of revisionary interpretations of Mill back into the 1960s and sees the interpretation of Mill as an indirect utilitarianism as emerging within that line. For his citation of the relevant literature see ‘Indirect Utility and Fundamental Rights’, nn. 11 and 14, and Mill on Liberty: A Defence, R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 247 influential papers, has also elaborated a distinctive interpretation of his own of Mill as an ‘indirect’ utilitarian.38 Drawing on the ideal-types approach I sketched in the previous section, I want to put these divergent judgments about Mill to the test, by looking at the text of Utilitarianism. My aim is to try to determine, assuming Mill is not an act utilitarian, whether he’s best read in one or the other of these two contested ways—best read, that is, as an ideal-rules utilitarian or, alternatively, as an ‘indirect’ utilitarian. At several points in his book on Utilitarianism, Mill makes a distinction that is crucial to rule utilitarianism—the distinction between the fundamental principle of utility itself (as the ultimate test or standard), on the one hand, and the rules which appropriately apply that standard, on the other (see U II.24, for example).39 Indeed, he regarded such rules as indispensable to any proper 2nd edn, n. 17 to ch. 1 (on pp. 160-61) and nn. 14 and 29 to ch. 2 (on pp. 162, 163 respectively). For the phrase quoted earlier in this note paragraph, see Gray, Mill on Liberty: A Defence, 2d edn, p. 10. I should add that Gray has had second thoughts about whether utilitarianism, even in its best version, can be made compatible with Mill’s principle of liberty; indeed, he has come to have serious reservations about the priority Mill accorded to liberty. Gray’s grave doubts, amounting to a rejection of Mill’s strong commitment to autonomy as the paramount human interest, are set forth in the Postscript added to his Mill on Liberty: A Defence, 2nd edn, pp. 130-58. Unlike several others mentioned earlier (in notes 3-5), Gray’s afterthoughts concern, not the compatibility of utilitarianism with basic rights, but rather amount to a wholesale repudiation of Mill’s liberty principle as Eurocentric and of Mill’s faith in progress as part and parcel of a discredited Enlightenment project. Nonetheless, Gray’s second thoughts do not constitute, as he notes, a repudiation or withdrawal of his interpretation of Mill as an indirect utilitarian; he still stands by that (see p. 133 of the Postscript). Indeed, only in Gray’s discussion of the conflict of moral rules (p. 138 of the Postscript) do I detect any modification of the original argument. 38 For David Lyons’s interpretation, see reprints of three of his essays—as ch. 2 ‘Mill’s Theory of Morality’ (1976), ch. 3 ‘Mill’s Theory of Justice’ (1978), and ch. 4 ‘Mill on Liberty and Harm to Others’ (1979)—all in Lyons (ed.), Rights, Welfare, and Mill’s Moral Theory; see in addition Lyons’s papers ‘Human Rights and the General Welfare’, Philosophy and Public Affairs 6 (1977), pp. 113-29, and ‘Benevolence and Justice in Mill’, in H.B. Miller and W.H. Williams (eds.), The Limits of Utilitarianism (Minneapolis, MN: University of Minnesota Press, 1982), pp. 42-70. Unlike others cited in my discussion, Lyons says not so much that a policy of directly appealing to utility is self-defeating as that it is conceptually improper to override the dictates of moral rules and morally approved basic rights by referring them directly to the general happiness principle. He grounds the latter claim by generating the idea of a special realm of morality, in which such rules and rights are to be located. See here Lyons, ‘Mill’s Theory of Morality’ (1976) and ‘Mill’s Theory of Justice’ (1978) in Lyons, Rights, Welfare, and Mill’s Moral Theory, at p. 51 and pp. 73-74 respectively. And see also the Introduction to David Lyons (ed.), Rights (Belmont, CA: Wadsworth, 1979), pp. 1-13, at p. 7. 39 All citations to Mill’s Utilitarianism (first published as a set of articles in 1861 in Fraser’s Magazine, and as a book in 1863) will follow the form used here: U II.24, where citations are to chapter by Roman numeral and to paragraph within that chapter by Arabic numeral. This has become the standard form of reference to Mill’s book. 248 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 conception of morality, utilitarian or otherwise: ‘Whatever we adopt as the fundamental principle of morality, we require subordinate principles to apply it by…’; such secondary principles are impossible to do without, Mill says (U II.24). Accordingly, he viewed the morality based on and justified by utilitarian principles to be a morality that was itself effectively constituted by ‘rules and precepts for human conduct’ (U II.10; the passage is double quoted in Mill’s text). These utilitarian-justified rules (or precepts or secondary principles, as Mill also calls them) are the determinants of morally proper conduct on all occasions. Such rules refer to and incorporate the tendencies of given types of action; if the tendency of a particular type of action is (for example) generally and strongly injurious, then even if an act contrary to the rule in a ‘particular case might be beneficial’ (as determined on utilitarian grounds), the agent nonetheless has a ‘ground of obligation to abstain from it’ (U II.19). By the same token, Mill thinks, if the rule-determined tendency of a type of action is generally and strongly beneficial, then even if a given act in accordance with that rule might in a particular case be injurious, as determined by utilitarian calculation, the agent should nonetheless not deviate from the rule in that case (see U II.23). Mill adds that ‘only in…cases of conflict between secondary principles is it requisite that first principles should be appealed to’ (U II.25). Whether Mill’s proviso here constitutes a concession to act utilitarianism (in an otherwise rule-utilitarian agenda) is a matter to which we will be turning. But right now, I want to stay with our focal concern and to address the principal question of this section—whether Mill as a rule utilitarian is better described as an ideal-rules utilitarian or, alternatively, as an indirect utilitarian. I will take up this issue under the three headings of our earlier analysis concerning (1) the ground of rules, (2) the allowed complexity of rules, and (3) the conflict of rules. (1) Uniformly, the moral precepts or rules Mill has in view, in his discussion in Utilitarianism, are conventional rules, established social rules (concerning such matters as murder and theft and keeping one’s word). They are rules (based on the ‘tendencies of actions’) that have been developed over time, often over considerable time. These are rules that are ‘taught to the young and enforced by law and opinion’. These rules have ‘come down’ as the ‘rules of morality for the multitude, and for the philosopher until he has succeeded in finding better’. (See U II.24.) These socially established moral rules, rules that have the support of ‘education and opinion’ (U III.1) have often developed, Mill thinks, under the ‘unacknowledged influence of…utility’ (U II.25). Thus, throughout their development, there has in fact been the steady but ‘tacit influence of a standard not recognized’, the standard of the ‘greatest happiness principle’ (U I.4). Of R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 249 course, not all socially established moral rules will conform to this tacit influence or will do so only weakly or defectively; this is to be expected where many other influences are present and where the influence Mill sees as the guiding one is itself tacit and unacknowledged. The point, though, is that the rules of this ‘customary morality’, when sound, are in fact justifiable by appeal to the ‘general happiness’ (U III.1 and 2). The project of utilitarian justification, like the development of the basic rules themselves, is an ongoing one and, therefore, a project that is incomplete at any given time. As Mill puts it, ‘the received code of ethics’ will always admit of ‘indefinite improvement’ under the standard of utility (U II.24). The rules or precepts Mill had in mind, when he spoke of moral rules, were precepts grounded and developed independently of explicit utilitarian considerations. They had not been generated with the ‘greatest happiness of the greatest number’ consciously in view. Such rules when justifiable and revisable on utilitarian grounds, in the ongoing way just described, are the rules of utilitarian morality in Mill’s account. They are social rules that had their place initially in received codes of ethics (in codes ‘for the multitude’) and that, even when subjected to utilitarian justification and revision, continued to function within such received codes.40 This view of utilitarian moral rules as social or public rules, which I have attributed to Mill, can be contrasted to the notion, found in ideal-rules utilitarianism, that moral rules are constituents of an overall code specifically designed, under utility-tracking and other controlling assumptions, to conform as closely as possible to the principle of maximizing expectable utility and to belong thereby to the most desirable moral code.41 40 Let us suppose a conventional moral code that has many rules which possess utilitarian value, as determined by reference to the standard of general welfare; but let us suppose as well that the accredited rules in that code have less utilitarian value than would the ideal rules of the single most desirable code, if these rules were uniformly accepted. Richard Brandt has argued, in such a case, that a conscientious utilitarian is obliged to act in accordance with the relevant ideal rules of the most desirable code. (See Brandt, A Theory of the Good and the Right, pp. 300-305, esp. pp. 304-305.) Others, drawing on the passage about philosophers (in U II.24) quoted earlier in the text, have argued similarly to Brandt. But Brandt’s recommendation here doesn’t take account of the fact that action on a rule which is not socially accepted (and where a contrary rule is) may not be utility producing. Acting in the way Brandt suggests would certainly make coordination between moral agents more difficult, or even render it unlikely; other disutilities might result as well (such as reduced social trust, reduced cooperation among members, and so on). If the point of ideal-rules utilitarianism is to develop a standard of utilitarian assessment, for the reform of existing codes of moral conduct, then Brandt’s idea of an obligation actually to act on these rules may well be a category mistake. 41 The case could be made—and perhaps is required to be made in light of things said in earlier paragraphs—that Mill is not committed to a maximizing view of general good. For example, 250 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 (2) Perhaps no point has occasioned more perplexity than some of the further remarks Mill makes about moral rules as constituents of ‘received codes’. Mill describes them as ‘landmarks’ and ‘direction-posts’ (U II.24). And some have taken this as a sign that Mill regarded such socially established moral rules as ‘half-truths’ or mere ‘rules of thumb’, as ‘purely heuristic’ and therefore dispensable.42 Now, clearly, Mill doesn’t regard received rules, even when justified and revised on utilitarian grounds, as perfect or as ideally the very best we can do, but I don’t think discounting them was the point of his description of them as ‘direction-posts’. Rather, I think he was emphasizing their role as guides to action, as precepts telling us what to do on individual occasions. This emphasis is made clearer, I think, when Mill says next that social moral rules are like roads ‘laid down’, and that following these roads conduces to general happiness (U II.24). This same point is made again, immediately after the metaphor of the road, when Mill says that these rules are like the tables in the Nautical Almanac (U II.24). The site marks, the calculations, in these tables are not half truths or rules of thumb and are certainly not dispensable; rather, the point of the Nautical Almanac is to tell people how to travel on the ocean; how to get from here to there; and, if here, where to go next if they are to travel well and safely to their goal. With the Almanac in hand, Mill says, ‘rational creatures go out upon the sea of life with their minds made up on the common questions of right and wrong [and] as long as foresight is a common quality, it is to be presumed they will continue to do so’ (U II.24). in his famous proof in ch. IV of Utilitarianism, the object of the proof is to show that general happiness is desirable as an end in itself and that happiness so understood is the ‘criterion of morality’ (U IV.9). Mill’s own summary of the proof confirms this reading (see Mill, System of Logic [8th edn, 1872], book 6, ch. 12, §7, para 4). The argument in Utilitarianism, ch. 4 is not conducted, at any point, by reference to the idea of the greatest happiness; arguably for Mill, then, the greatest happiness is not the criterion of morality. Several careful students of Mill’s text have drawn this very conclusion. See, for example, Marcus G. Singer, The Ideal of a Rational Morality: Philosophical Compositions (Oxford: Clarendon Press, 2002), ch. 13, at pp. 295, 311-12. See also David Lyons, ‘Mill’s Theory of Morality’ (1976) and ‘Mill’s Theory of Justice’ (1978) in Lyons, Rights, Welfare, and Mill’s Moral Theory, pp. 50, 58-60 and pp. 70-78 respectively; and Lyons, ‘Human Rights and the General Welfare’, pp. 119, 125-26. 42 For the reference to ‘half-truths’, see Ernest Sosa, ‘Mill’s Utilitarianism’, in James M. Smith and Ernest Sosa (eds.), Mill’s Utilitarianism: Texts and Criticism (Belmont, CA: Wadsworth, 1968), pp. 154-72, at p. 158; for the reference to ‘rules of thumb’, see Rawls (1955) in Freeman (ed.), John Rawls: Collected Papers, p. 35. Rawls’s reference to ‘rules of thumb’ applies to what Rawls calls the ‘summary’ view of rules, a view he attributes both to John Austin and to Mill— for the latter see Rawls (1955) in Freeman (ed.), John Rawls: Collected Papers, p. 45. For the reference to ‘purely heuristic’, see Mabbott, ‘Interpretations of Mill’s Utilitarianism’, p. 117. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 251 All Mill’s metaphors and examples in this much discussed section have a single object. They point to socially established moral rules that have the virtue of being both readily teachable and handily followable. They are reliable guides, when justified and revised on utilitarian grounds and generally followed, to getting people to the end Mill had in view, the general happiness. This brings us, then, to the question of the allowed complexity of such rules. Mill concedes that many people will want to make exceptions to basic rules, for example, to the simple precept that forbids lying. But he cautions that this precept has a ‘transcendent expediency’, emphasizing thereby that faithfully following it on a wide variety of appropriate occasions (hence the term ‘transcendent’) has good effects, including making it possible for people to rely on ‘each other’s word’ (U II.23—both quotes). But this is not to say that such a rule can never admit of exceptions. And Mill suggests one such exception which, interestingly, addresses the central case in point in Kant’s little essay against ever telling lies.43 Mill’s exception is that ‘the withholding of some fact (as of information from a malefactor, or of bad news from a person dangerously ill) would save an individual (especially an individual other than oneself ) from great and unmerited evil, and when the withholding can only be effected by denial’. But such exceptions need to be carefully confined in Mill’s view; thus he adds that ‘in order that the exception may not extend itself beyond the need, and may have the least possible effect in weakening reliance on veracity, it ought to be recognized and, if possible, its limits defined’ (U II.23—both quotes). The principle of utility provides, then, the basis both for justifying the basic precept itself, in terms of its ‘transcendent expediency’ when faithfully followed, and for justifying the carefully circumscribed exceptions to it. The justified precept, with justified exceptions to it explicitly recognized and built into its formulation, is the social rule that one is to follow on a wide variety of occasions. But Mill does allow that no socially established moral rule, even when justified and revised and qualified on utilitarian grounds, could ever say literally everything that needed saying. He recognizes that there will always be further exceptions required—because ‘rules of conduct cannot be so framed as to require no exceptions, and that hardly any kind of action can safely be laid down as 43 Originally published by Kant in the Berlinische Blätter (Berlin Press, September 1799); it was included in the Prussian Royal Academy of Sciences edition of Kant’s Works, vol. VIII, pp. 425-30. It has been reprinted (among other places) in Immanuel Kant, Grounding for the Metaphysics of Morals, with A Supposed Right to Lie…, 3rd edn, trans. James Ellington (Indianapolis, IN: Hackett, 1993), at pp. 63-67. 252 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 either always obligatory or always condemnable’ (U II.25). Is Mill’s recognition here an invitation, then, to layering exception upon exception, without limit and without end, thus making for rules that are ever more complex? I think not. With increasing complexity comes the ever increasing loss, and ultimately the vanishing, of the very virtue that social rules initially had, of being both readily teachable and handily followable. We want to keep followable rules in place; general acceptance and compliance to them is more readily attainable through the standard sanctions of morality, and general conformity to them will, when it takes shape, encourage reliability (on ‘each other’s word’, for example), and the coordination and the mutual trust and cooperation that one looks for and prizes in any established and settled morality. What Mill recommends, instead of an indefinitely complexified set of moral rules (with inbuilt and explicit exceptions), is that we allow ‘a certain latitude, under the moral responsibility of the agent, for accommodation to peculiarities of circumstances’ (U II.25). This suggests, I think, that Mill’s solution to the problem posed by ‘the complicated nature of human affairs’ and the ever present need for making exceptions would be to combine explicit exceptions, which he clearly allows for, with what I earlier called (in the section, ‘Two Conceptions of Rule Utilitarianism’) ruleworthy but defensible exceptions. These are exceptions that could be made to rules on given occasions, under the ‘responsibility of the agent’, without specific prior authorization in the rule in question—they would be exceptions that are not themselves explicit in the rule but that nonetheless come under the clear and well-understood rationales for one or another of the existing explicit exceptions. In sum, on the first two issues we have examined, the ground of rules and their allowed complexity, Mill’s stance in Utilitarianism is more readily identifiable with what I called ‘indirect’ utilitarianism than with a utilitarianism of ideal rules. Let us turn now to the third of the hinge point issues, the issue of conflict of rules. (3) Mill says that ‘only in…cases of conflict between secondary principles is it requisite that first principles should be appealed to’ (U II.25). The issue, of course, is exactly how this appeal is to be understood. J.D. Mabbott says that Mill gives no clear guidance on this issue.44 I think Mabbott’s judgment is too quick. Mill does say that in utilitarianism there is ‘an ultimate standard to which conflicting rights and duties can be referred. If utility is the ultimate source of moral obligations, utility may be invoked to 44 Mabbott, ‘Interpretations of Mill’s Utilitarianism’, p. 116. The quote in the next paragraph of the text comes from this same page. R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 253 decide between them when their demands are incompatible’ (U II.25). Utility tells us which obligation to go with, and since ‘there is no case of moral obligation in which some secondary principle is not involved’ (U II.25), then the choice Mill envisioned here is tantamount to a choice between conflicting moral rules and not merely between determinate obligations that are conflicting on a given occasion. The discussion we’re presently concerned with, I must admit, is somewhat scant and cursory. But two features do stand out. First, Mill does seem to suggest that one appeals directly to the greatest happiness principle itself in cases of conflict between rules. Second, Mill makes no reference at all to deciding, in light of that appeal, on the basis that ‘keeping the one rule would in general do more good than keeping the other’, as Mabbott phrases it. Rather, the clear and natural reading of Mill’s discussion seems to suggest that, after making this direct appeal, we then decide (among the conflicting rules) which rule to follow, on that given occasion. It seems, then, that Mill is not here endorsing simple act utilitarianism as the solution (as it was for R.M. Hare and Henry West in cases of conflict of rules) and, further, that Mill here is not at all close to the main lines of the indirect utilitarian account on this particular issue. Indeed, Mill’s position here is closest to what might be called the fall back position in an ideal-rules account of utilitarianism (as discussed above). The material I have cited here constitutes Mill’s main discussion of the conflict of rules. There is, in the whole book, only one other such discussion, in U V.37-38, that might possibly count. The basic issue in the chapter five discussion can be put simply enough. Duties of justice (concerned with personal security and supported by strong social sanctions, typically strong legal sanctions) have as a class a greater social utility and a ‘more paramount’ obligatory status than do imperfect duties of aid and benevolence (which are supported by weaker social sanctions, typically amounting to nothing more than social pressure and criticism and the promptings of well-formed consciences). Normally then duties of justice will ‘overrule’ duties of lesser stringency. But sometimes ‘particular cases may occur in which some other social duty [presumably one of these less stringent duties of aid and benevolence] is so important as to overrule any one of the general maxims of justice’. Mill provides a brief example of such a case: ‘to save a life, it may not only be allowable but a duty, to steal or take by force the necessary food or medicine, or to kidnap and compel to officiate the only qualified medical practitioner’ (UV, 37). This example is a recognizable one but, nonetheless, one that probably would have considerably less creditability and support than Mill 254 R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 supposes. For I doubt that the usual tests of the stringency of duties (social sentiment and natural feelings, the actual attachment and deployment of sanctions) would ever (or would only rarely) support stealing at gunpoint or kidnapping a doctor even in so worthy a case as saving a life. But the logic of Mill’s analysis here may be more compelling than the particular case he has used to illustrate it. The logic of that analysis has three main features. (a) There is, in the case he has chosen, no evident direct appeal to the general happiness principle. (b) Rather, appeal is made to the socially wellestablished importance of the duty to aid when saving a life is at stake; beyond this, an appeal is made to the total set of facts that might make the importance of saving a given life, even by taking extreme measures, overriding in a particular case. (c) Finally, Mill seems to treat social concurrence in the decision taken as an important part of the overall picture (for how else could existing public support for strong sanctions be relaxed in this particular case). As I said, I doubt that point (c), the social condonement or ‘accommodation’ Mill proposes, would occur in fact. But the crucial point I want to make here is that the logic of Mill’s analysis in his chapter five discussion of conflict of rules is much closer to main points made by advocates of the indirect utilitarian position than was Mill’s position in the chapter two discussion of such conflict. This leaves me, then, in something of a quandary; for Mill’s discussions of the conflict of rules, the one found in chapter two and the other in chapter five, point in quite different directions. One could settle for saying that the net result of the two analyses is checkered and inconclusive. But the discussion in chapter two is straightforward and clear; the one in chapter five is convoluted (requiring a good bit of interpretation), much less clear, and ultimately unsatisfactory (given Mill’s rather poor choice of example). On the important issue of conflict of rules, Mill’s stance (in just the one clear case, developed in chapter two) fits better with the account offered by a utilitarianism of ideal rules. If we relied on both the relevant cases (on chapter two and on chapter five), we’d have to award a degree of credit to both of the two competing conceptions of rule utilitarianism. Taking account of all three of the hinge point issues discussed in parts (1), (2), and (3) of the present section, I would conclude that Mill’s overall position is, on balance, closer to the ‘indirect’ utilitarian pole of the two types of rule utilitarianism we have been canvassing. But, as we have seen, it is not invariably so.45 45 I’ve been asked on several occasions why weight should be accorded to these three points in particular. I’m not willing to say that the three I’ve named are the only hinge points, but these R. Martin / Journal of Moral Philosophy 5 (2008) 227–255 255 Mill has been associated with each of two perspectives on moral rules— with indirect utilitarianism and with ideal-rules utilitarianism. But I think careful attention to his main arguments would indicate that he adheres to neither profile consistently.46 three are frequently cited or used. Accordingly, they strike me as three relevant parameters, on the basis of which we can make some interesting comparisons. I don’t presume or presuppose any particular weighting between the three here; so, by default, one could treat them as being of equal weight, but such a move to determinate weightings, for example, to equal weightings, is not required to make my analysis work. In any case, my presumption here—that the three hinge points have no particular determinate weight—is of course a rebuttable one. 46 This article began as a paper given at the meeting of the International Society for Utilitarian Studies in London in spring 2006. A subsequent version was given that same year at the Southwest Philosophical Society meeting in Nashville. The present article draws (with substantial amplification and revision) on that earlier, much shorter Nashville paper.