Chapter 5: Of the Connection Between Justice and Utility
In the final chapter of the ‘Utilitarianism’ book, Mill discusses what he thinks is one of the main objections to UT. The idea of right or wrong is based on justice, not happiness. According to the argument, we have a natural instinct for justice, and must constantly balance the requirements of justice (reason) with those of our more animal instincts. However, one question for philosophy is whether justice exists in any objective sense, or whether it is peculiar to the mind of the agent (similar, to say colour or taste).
To answer these questions, Mill believes we must identify the distinguishing characteristic of justice. What is the difference between an act being unjust and an act merely being disapproved? Mill therefore propose that we consider a variety of objects that are commonly labelled as just or unjust, and consider why these declarations are made.
Firstly, Mill considers the general principle that it is unjust to deprive someone of his personal liberty, his property or anything else that belongs to him. In this case, just and unjust have the sense of legal obligation. However, what happens when someone is deprived of a right that was given to him by a bad law. In other words, he ought never have received the right in the first place. Is this just or unjust? People vary in their opinions. Some argue there is no such thing as a bad law and everything must be obeyed. Others believe there is nothing wrong with disobeying a bad law. Ultimately, no matter which opinion you have, people do accept that unjust laws can exist, so assessing the justice of an act based on whether it complies with or contravenes a law does not seem to be the full story.
Mill therefore proposes a more generic version of justice. Each person is entitled to what he deserves, and it is unjust to deprive him from that good. This is based on the idea of ‘desert’. People who act in the right way deserve good things, people who don’t deserve bad things.
Other examples of unjust acts as follows: (1) An unjust act is breaking faith with someone, that is, violating a promise you’ve made to that person. (2) It is unjust to show preference for one person over another when this is irrelevant to the circumstances in question. (3) A tribunal must be impartial, that is, not show favour when setting disagreements between parties. (4) Closely connected to impartiality, is the idea of equality. Everyone deserves equal protection under the law. Mill accepts that not everyone agrees on what ‘equality’ actually means, but nevertheless, natural justice contains a sense of equality.
After all these examples, Mill is not confident we have found a common link identifying what is just or unjust in each case. Perhaps we might have better luck if we consider the word ‘justice’ itself. Mill notes this carries a sense of ‘right’ and acting ‘righteous’ in accordance with the law. However, words can clearly change over time, and while the idea of obeying the law is the original notion of justice, this is no longer the only meaning. Religions, for instance, have added their own ideas of justice based on scripture. Unjust has now developed a sense of something that is contrary to a law that does exist OR contrary to a law that ought to exist.
But even this is not entirely satisfactory. We often state that something is unjust without stating a desire that it should be regulated by law. Mill cites the example of something happening in our private life. But even in these cases, could you not argue that we have a sense of legality hanging over us? So the idea of legal constraint and obligation still has a strong link to the notion of justice.
Mill is satisfied at this point that we have a rough idea of what justice entails. However, next we need to draw a distinction between justice and moral obligation. We do not call something ‘wrong’ unless we mean to imply that a person ought to be punished for carrying out the act. This punishment could be carried out by law, but it could also come from other people, or from the conscience of the agent himself. But Mill believes that punishment forms the essence of rightness and wrongness, at least in the moral sphere.
How else can we distinguish morality from justice? Mill notes that philosophers commonly talk about perfect and imperfect duties. Perfect duties are stipulated exactly by the ‘rules’, while imperfect duties are open to interpretation. Generally speaking, perfect duties are concerned with respecting rights of other people, whereas imperfect duties (‘be benevolent’) do not have the rights of others as their focus. Mill argues that the distinction between perfect and imperfect duties can also be used to explain the difference between justice and morality. Justice is the perfect duty in that it requires you to respect the rights of others, and to punish those who infringe those rights. Morality is imperfect in that there is no specific right that needs to be protected. When we decide to act with benevolence, nobody has any right to be the object of our acts.
Satisfied that he has distinguished justice from morality, Mill returns to his earlier question. From where do we obtain our sense of justice? Mill notes we have two sentiments of justice (already discussed): we have a desire to punish those who act unjustly, as well as understanding that justice involves the protection of specific rights. We could next consider whether this is a natural instinct or cultivated in us via society, however Mill does not think this is an important question. It makes no difference either way. Because humans are more intelligent than other animals, they have a deeper understanding of the social bonds that are crucial for their lives. This means they react with sympathy when they see unjust acts, which motivates to act according to the common good.
In an individual case, we might not claim that society has been damaged since we are only interested in the immediate after-effects of any decision. However at the back of our minds is the idea that any reasonable action has the backing of society in general. Even Kant recognises this with his categorical imperative. We must respect maxims that can be willed as universal law, suggesting that other people are our priority.
Mill again re-iterates his earlier point: justice has punishment and the protection of rights as its fundamental features. Mill considers what exactly a ‘right’ is, concluding that is something that ought to be protected by society for the reasons of general utility, which leads us back to the link between justice and utilitarianism. Mill notes that people criticise UT for being too arbitrary and uncertain, but points out that justice is no clearer. Justice varies greatly across societies, and there is no one single rule on justice. As an example, Mill notes the different opinions people have on the suitable level of punishment required for those who transgress the law.
Another difficult question that arises is why we should accept authority in terms of handing down punishments. Mill dismisses any notion of a ‘social contract’, saying this is a ‘mere fiction’. Rather, similar to what we said above, we will get many notions on why he should accept punishments imposed by the state. Again, there is no single, agreed-upon position. As another example, there are disagreements on how much people should be paid for doing their work, from those who respect the ‘free market’, to those who claim that wages should be more equitable. Mill also highlights taxation as another contentious subject.
Mil is not interested in answering these questions, but rather to point out the inherent lack of certainty and agreement with many aspects of society. UT is not alone in sharing these features. Mill maintains the main thrust of his argument: justice can only ever be based on the theory of utility. All the principles already spoken about (do not harm others, punish those who transgress the law, act in an impartial way) have utility and the welfare of society as a whole at their heart. These principles in fact ONLY work if they have a utilitarian foundation, for only this guarantees the rights of each person are considered equal to any other person. How else can we claim that everyone has a right to equal treatment?
Mill concludes the chapter by stating that the requirements of justice are entirely consistent with utilitarianism, and in fact, derive their power and force from principles of utility. The force of the pleasure and pain experienced might vary from that of other moral acts, but promoting human happiness is still the ultimate goal.