Can utilitarianism justify legal rights with moral force?

• Author: Mintoff, Joe
• Position: Preferences and Rational Choice: New Perspectives and Legal Implications

David Lyons has argued that utilitarianism cannot justify legal rights with moral force. (1) He defined utilitarianism as the view that "the only sound, fundamental basis for normative (or moral) appraisal is the promotion of human welfare." (2) He presented utilitarianism with the dilemma that even if it can morally justify the adoption of some legal institutions which grant rights, it cannot always morally justify the actions conforming to those legal institutions. This dilemma is structurally similar to one leveled against what we might call the economic theory of rationality. (3)

The economic theory of rationality may be defined as the view that the only sound, fundamental basis for rational appraisal is the promotion of the agent's welfare (where this may include the welfare of others). (4) The dilemma leveled against this view is that even if it can rationally justify the adoption of some rule or disposition which governs action, it cannot always rationally justify the actions conforming to that rule or disposition. (5) A distinctive type of response has recently been suggested to this dilemma. (6) The key feature of this response is the idea of an intention (commitment, resolution), the adoption of which may be rationally justified by the agent's welfare, and the existence of which may rationally justify actions fulfilling it. In my view, this recent response goes a long way toward resolving the dilemma faced by the economic theory of rationality. (7) So too, perhaps, a structurally similar response may go some way toward resolving Lyons's dilemma for utilitarianism. The aim of this Article is to investigate this possibility.

1. A DILEMMA FOR UTILITARIANISM

   I shall start by briefly explaining what Lyons means by legal rights with moral force, and why he claims utilitarianism cannot justify such rights. (8) Lyons focuses on very ordinary rights to make his case. "Suppose," he says,

   that Mary rents a house that comes with a garage for her car. Access to the garage is provided by a private driveway, which she alone is authorized to use. Sometimes, however, she finds someone else's car parked in the driveway, which prevents her from parking or leaving with her own car. This may be inconvenient or it may not. Whenever it happens, however, Mary's rights are not being respected by other individuals. (9) Lyons's general understanding of rights is that a person has a right over something when she is permitted to use it as she wishes and when others are permitted to use it only with her permission (subject to limitations to be introduced below). The rights which Lyons considers have four important features.

   First, they are legal rather than moral rights. (10) Some rights exist independently of social recognition and enforcement; these rights are moral rights and may include human rights (which people have simply in virtue of being human) and rights that depend on particular circumstances (such as rights generated by promises). Other rights require some sort of social recognition or enforcement for their existence. Rights conferred by law are a clear example of such rights. Clearly, Mary's right over her driveway depends on social recognition, and therefore it is a legal right.

   Second, Lyons focuses only on morally justified legal rights. A person's legal right to something is morally justified when the legal institution (or the relevant part thereof) which recognizes or enforces that right is itself morally justified. This allows for the possibility that some legal rights are not morally justified--Lyons himself gives the obvious example of the rights accorded by the institution of chattel slavery. (11) Presumably, however, at least some legal rights are morally justified--Lyons takes Mary's rights over her garage and driveway as an example, assuming that "the social arrangements presupposed by Mary's rights and their enforceability are justifiable; those institutions or their relevant parts are morally defensible." (12)

   Third, these legal rights have what he calls moral force. Lyons explains how this notion operates in relation to moral rights as follows:

   If I have a right to do something, this provides an argumentative threshold against objections to my doing it, as well as a presumption against others' interference. Considerations that might otherwise be sufficient against my so acting, in the absence of my having the right, or that might justify others' interference, are ineffective in its presence. ... I call this argumentative threshold character the normative force of moral rights. (13) This suggests that whether or not a person's legal right to something has moral force is dependent on the circumstances. For example, if a person lacks a particular legal right, certain actions are morally justified, but if she has that legal right (all other things being equal) then those actions are not morally justified. Mary's legal rights over her driveway have moral force: she is morally justified in using her driveway, and others are morally required to ask her before using the driveway; but neither would be the case if Mary had no rights over the driveway. Legal rights with moral force make a moral difference. (14)

   Finally, however, the moral force of legal rights is typically limited. "The driver of an emergency vehicle on an urgent errand might justifiably block Mary's driveway without first obtaining Mary's permission--even, perhaps, in the face of her refusal to give permission. This holds from both a legal as well as a moral standpoint." (15) If Mary is not herself a utilitarian, then what she wishes to do with her rights will often depart to some degree from what would maximally promote human welfare. The moral force of her legal rights is limited in the sense that if what she wishes to do departs substantially from what would maximally promote welfare, then she is morally required to promote welfare. However, as Lyons notes, this does not imply that if what she wishes to do departs minimally from what would maximally promote welfare, then she is morally required to forgo her rights. While Mary's rights are not absolute, they do mean something morally.

   In sum, then, Lyons focuses on morally justified legal rights with (limited) moral force. Given this, we can now see why Lyons thinks utilitarianism cannot always morally justify the actions that conform to morally justified legal institutions, and why he thinks this is a dilemma for utilitarianism. There are three prongs to the dilemma he presents.

   First, as we have seen, he defines utilitarianism as the view that the only sound, fundamental basis for moral appraisal is the promotion of human welfare. This implies that an institution is morally justified when it promotes human welfare no less efficiently than any alternative institution. Similarly, it implies that an action is morally justified under equivalent conditions when it promotes human welfare no less efficiently than any alternative action. Both institutions and actions are to receive direct utilitarian appraisal.

   Second, the legal institutions which maximally promote human welfare will inevitably permit (if not require) actions which do not maximally promote human welfare. "[I]t is predictable," says Lyons, "that real social rules that are supported by the best utilitarian ... arguments will require decisions in particular cases that would not most effectively promote welfare or efficiency. Such goals can sometimes be promoted more effectively by departing from the rules, or by changing them." (16) Though Lyons himself does not say why this should be inevitable, it is easy to supply reasons that support this proposition. In the first place, all institutions are necessarily imperfect and as such unintentionally require actions which do not promote human welfare. The adoption and operation of any institution comes with costs; if the costs are not to be prohibitive, not all possible circumstances can be considered when it is being adopted and while it is operating. And it is inevitable that among the unconsidered circumstances will be ones in which the institution requires actions which do not promote human welfare. In the second place, some institutions--the prime examples being those which function to encourage or deter behavior--are most effective when they intentionally focus on something other than the promotion of human welfare. Any such institution comes with effects on the behavior of those subject to that institution; if the institution is to have optimal effects on this behavior, the distribution of rewards and punishments must be to some extent dependent on the performance of desirable or undesirable actions (and so must to some extent be independent of whether the distribution itself maximally promotes human welfare). Thus, it is inevitable that some of the rewards and punishments distributed will not promote human welfare. In either of these ways, then, best utilitarian legal institutions will sometimes permit (or even require) nonbest utilitarian actions.

   These first two claims imply that, even if utilitarianism can morally justify the adoption of legal institutions which grant rights, it cannot always morally justify the actions conforming to those legal institutions.

   Suppose, for example, that a neighbor decides late at night to park his car in Mary's driveway, without obtaining her permission, in order to save himself a long cold walk from the nearest legal parking space. He might reason soundly that Mary is unlikely to be inconvenienced, since he shall move his car early the next morning. And that might turn out to be the case. (17) Now utilitarianism can, Lyons supposes, morally justify the legal institution which grants Mary rights to the exclusive use of the driveway in this case. Perhaps it was not worth the time of the utilitarian lawmakers to consider the details of such a case, or perhaps they did consider the details and concluded that people would be more...