The Concept of Law

Though it is true that being just sometimes is to maximize happiness of each individual and the society as a whole, there are principles of justice that are not compatible with the utility principle. Consider the Sheriff case conceived by Roger Crisp (2001), if the sheriff hangs the vagrant in his jail, a terrible riot will be prevented, i. e. total happiness will be maximized, so to conform with the utility principle, it will be the right thing for sheriff to do so, however is this exemplary punishment of an innocent man just?

Or, one can argue that the sheriff should explain the truth to his people, since Mill has suggested "a dissatisfied Socrates is better than a satisfied pig" the general happiness may not be increased by fooling the crowd. Therefore, the sheriff has to compare the pain involved in the explaining process and a possible violent riot and the pleasure gained by the crowd being wise, and then makes the decision to hang the vagrant or not afterwards. Hopefully, after the careful comparison (if ever possible), justice and utilitarianism can be reconciled. Let us turn to the second argument now.

Mill states that all human beings are capable of a broader sympathy and higher intelligence which enables us to derive a desire to punish out of our concerns for all human beings. The problem here is that people may not have this desire constantly, especially when he (she) is the one who benefits from an injustice to others. Mill may say comment this man (woman) to be unjust. However, he (she) can be a loyal follower of the utility principle. The problem is that he (she) gives much more weight to his own pleasure, or in other words, underestimates others' pain. For example, two students compete for a prize.

One of the two is really intelligent, hardworking and deserves the prize, whereas the other is not as intelligent or hardworking, but the second student cheated in the competition and won the prize, we can say that an injustice has been done to the first student because the tribute is not in accordance with desert. Yet, it goes well with the happiness maximization principle, as long as the pleasure derived by the second student is more than the pain felt by the first one, and it will be truer if the prize is a lot of books so that the second student is able to enjoy some highly intellectual pleasure later.

How can the sentiment of justice be explained in such case? If a utilitarian has any doubt about it, he should only doubt about his own theory, namely, how utilitarianism is able to make interpersonal comparison, since pleasure and pain are mere mental states which cannot be decided or measured by others. The third account is even more problematic. Mill appears to believe that the utility principle requires nothing to show its connotation of equality more than the claim that "equal amounts of happiness are equally desirable".

However, this is not enough for a practical situation. Again, how can one measure the amounts of happiness? How to make sure that what you treat equally are of equal amounts? Moreover, if 10 people gather together for the night and each proposes something he (she) really wants to do, assuming there is a way to assess the amounts of happiness of different people, but they are all equal, how should they finally decide on one thing to do that night?

If the happiness is maximized by everyone doing the thing he (she) wants to do, they are all breaking the promise of getting together to each other. Actually, I think Mill's account misses the most important point he should make. How can a utilitarian treat everyone equally and at the same time maximize utility when a limited amount of resource is to be distributed among a large number of people? This is what "justice" is primarily about, and it is exactly where the utilitarians should focus if justice is to be subsumed under utilitarianism. "Justice" is a distributive notion, as H.

L. A. Hart explained in the concept of Law, "the general principle latent in these diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality. This is something to be respected in the vicissitudes of social life when burdens or benefits fall to be distributed. " (Hart 1997, p158) Thus, justice requires each person to be treated individually and separately as well as equally, but utilitarianism does not give enough weight to the separateness of persons.

If the utilities of two groups are to be compared, the utilitarians will simply look at the overall general utility without considering if this sum is shared equally among the people in each group. This defect of utilitarianism does not contradict to Mill's contention that the greatest happiness principle accommodates equality, since he does add happiness of everyone in the groups together without giving more weight to anyone. Let's look at another example, if a bunch of resource is to be distributed among two groups, is the utilitarian way just?

If utility of the resource is measured by the return of using the resource, the group getting more resource is not necessarily the one that needs it best; if utility is measured by psychological concept i. e. pleasure, we will have to face the problem of lack of common measure again. Roger Crisp argues on this point that "Fairness requires us to give some priority to those who would otherwise be worse-off" (Crisp 2001, p32), though this is not necessarily accepted by all.

Anthony Quiton, as a utilitarian, tries to reconcile equality with utilitarianism in an arithmetic way. He contends that "the utility accruing from the distribution of some good is not independent of the manner of its distribution" and "most objects of desire are subject to the law of diminishing marginal utility, a consequence of the finite satisfiability of desire" (Quinton 1989, p75), therefore an equal distribution will get more parties better off than an unequal one.

However, I think the "finite satisfiablity of desire" theory is not true in the real world. Take money for example, as Mill analyzed in chapter 4, it has become an end itself from originally a means to happiness, which is to say that the more money one has, the more happiness one feels. Then, I would like to ask, why should anyone has a finite desire for it? The concrete things in Quinton's mind, I suspect, are the ones desired but with physical constraints of human body.

To summarize the above, it is true that justice exists to secure happiness for human beings, but it is not compatible with the utility principle in every particular case. J. J. C. Smart defends utilitarianism by saying that "it is still possible that there is no ethical system which would be satisfactory to all men, or even to one man at different times" (Smart & Williams 1980, p73), so utilitarianism is certainly acceptable as ultimate criterion. However, in my opinion, utilitarianism is too general as a moral standard and that is the very reason why it seems to subsume justice sometimes.

As we can see, when we face conflicts of different theories or principles, it cannot be used as the ultimate criterion. I totally agree with Roger Crisp on the point that if there are several principles, we are to decide between them by our own judgment which has to be rational and reasonable. (Crisp 1997, p170)


BARRY, BRIAN and MATT MATRAVERS (1998, 2004). Justice. In E. Craig (Ed. ), Routledge Encyclopedia of Philosophy. London: Routledge. Retrieved November 11, 2004, from http://www. rep. Crisp R. (2001) The separateness of Persons: Integrity and Justice, from Utilitarianism, edited by Roger Crisp, Oxford University Press Crisp R. (1997) Mill on Utilitarianism, London: Routledge Hart H. L. A (1997) The Concept of Law, Oxford University Press Honderich T. (1995) The Oxford Companion to Philosophy, Oxford University Press Mill J. S. (2001) Utilitarianism, edited by Roger Crisp, Oxford University Press Smart & Williams (1980) Utilitarianism: For & Against, Cambridge University Press