Contraception and Abortion:
A Utilitarian View

4. Utilitarianism and the Law

Book cover: Utilitarianism by John Stuart Mill

It seems indisputable that it is in the interests of all social groups to institute and maintain legal and penal institutions and practices. The advantages are numerous: to co-ordinate the behaviour of its citizens in order to achieve specific social goals, to grant liberties so that individuals may achieve their personal objectives free from unwarranted interference, to distribute the wealth of society for maximum benefit, and so on. Indeed, it is hard to envisage a social group existing for long without such institutions. Political institutions for the distribution of decision-making power are also a necessary prerequisite for continued social existence. As I've argued, for a utilitarian, the form of the political, legal and penal institutions must be justified on utilitarian grounds.

According to rules in practice utilitarianism, once such institutions with utilitarian warrant are established, we abdicate our liberty to circumvent the established political process or to disobey a law simply on act-utilitarian grounds. (These moves would be prohibited by the rules governing this complex system of social practices.) For example, it would be morally wrong to forge extra votes in order to guarantee the election of a political candidate who is working towards the repeal of Draconian divorce laws. Similarly, there would be no moral justification for a citizen evading income tax on the grounds that too much federal income is spent on sports promotions and not enough on housing.

However, if a form of government is clearly the cause of much unnecessary suffering, then its citizens are under a moral obligation to work towards its dissolution. In the case of law, if a particular law results in a terrible amount of needless misery, the citizens of the state are under a moral obligation to campaign for its removal from the statute books and to engage in civil disobedience. In a legal system with a utilitarian rationale, the provision that a law may justifiably be broken if so doing will prevent enormous needless suffering will be written into the rules of the practice. Once again, rules in practice utilitarianism accounts for the mostly deontic requirement for citizens to abide by the law.

There is, then, an intimate connection between morality and legality. However, the connection is complex. In a society in which the political, legal and penal institutions have utilitarian warrant, that which is illegal must also be immoral (excepting, as we saw, those cases in which the legal prohibition causes substantially more suffering than it prevents). This follows from the recognized utility of the social institutions. For the same reason, that which is moral must also be legal (excepting those cases in which an act or omission will substantially increase utility, but is legally prohibited).

The intention of the moral agent figures largely in moral and legal reasoning in many jurisdictions. Deontologists have used this as a criticism of consequentialist theories, such as utilitarianism. Rules in practice utilitarianism can now satisfactorily explain the relevance of intention in determining the moral status of an act or omission. It would be inefficacious to legally prohibit and punish citizens for unintentional acts or omissions resulting in misfortune (unless, of course, the citizen was negligent). Punishing parents for giving birth to a person who later turned out to be a mass murder, for example, does no help in preventing such murders in the future. For a utilitarian, unintended acts or omissions such as these, then, cannot be morally culpable.

Barring exceptional circumstances, I've argued that where public institutions have a utilitarian warrant, a moral act is a legal act. However, the converse relationship between morality and legality does not hold in such a society. An act or omission may be legal and yet immoral. I don't regard this asymmetry as morally disconcerting for it follows naturally for these two reasons. Firstly, an act or omission of a particular kind may diminish utility, and yet an attempt by law-makers to legally prohibit such acts or omissions may diminish utility even further, rather than increase it. Not all citizens are utilitarians, and not all utilitarians would submit to being legally compelled to act as perfect utilitarians.

For example, by applying the well-accepted economic principle, the principle of declining marginal utility, we know that if the citizens of a state substantially increased its voluntary donations to the poor and disadvantaged, the general level of utility in that society would increase substantially. It would be unwise for a government, though, to compel by legal means all of its citizens to so contribute. Either this act would cause a massive capital outflow from the country, along with the owners of the capital, or the government would be quickly overthrown. Neither alternative would be nothing short of catastrophic. So, even though moral laws and legal laws are inextricably linked in numerous cases, there remains an important distinction to be made, and that is the distinction between that which is immoral and that which ought to be illegal.

The second reason for thinking that although an act or omission may be legal, it may never the less be immoral is this. An act or omission of a particular kind may diminish utility, and yet law-makers may not in actual fact have legally prohibited it, even though they are morally obligated to do so. For example, the Draize test, a particularly painful, but unnecessary, commercial method of testing new cosmetics by gauging their toxic effects on the eyes of conscious rabbits, ought to be legally prohibited. In this country, as yet, this practice is not banned. So, a second important distinction needs to be made about utilitarian laws, and that is the distinction between that which is immoral and that which is in fact illegal.

Book cover: Ethics Since 1900 by Mary Warnock

As these distinctions show, for a rules in practice utilitarian, there remains a large area within the ethico-legal sphere for act-utilitarian considerations. And this area is bounded by those acts and omissions not legally prohibited, either because prohibiting such acts and omissions by law-makers:

  1. is morally wrong because doing so leads to a decrease in utility; or
  2. is morally obligatory, but in actual fact they have not done so.

In short, we do not fully discharge our moral responsibilities simply by being law-abiding citizens living in a utilitarian society.

I have now sketched the basic structure of a credible normative utilitarian theory. This theory is partly explanatory and partly reformist. Utilitarianism explains the existence of and moral justification for many of our most basic social institutions, such as parliament and the courts. On the other hand, it also provides a social critique of our treatment, for example, of the poor living in underdeveloped countries and of non-human animals suffering due to our inhumane practices.

On this theory, the moral status of particular acts of abortion will depend on whether the act in question is subject to the compulsions or prohibitions of either a rule of law or an informal public practice that enjoys a utilitarian rationale. If the act is not covered by any such laws or practices, or the existing laws or practices have no utilitarian justification, then its moral status must be decided on act-utilitarian grounds.

It is prudent, then, to begin by asking: What would an ideally utilitarian set of laws or practice concerning abortion look like? I will not be principally concerned with contractual agreements within private bodies nor between individuals. Neither will I review the existing laws in various countries in order to determine whether they ought to be obeyed. Doing this would involve addressing complex questions about what conditions would need to be satisfied before civil disobedience is justified. In particular, it means asking just how deleterious must the consequences of the application of a particular law be before it is morally permissible, or even morally obligatory, to break it. To answer this question is beyond the purposes of the present essay.

Once an optimal utilitarian set of laws or practice is determined in a particular jurisdiction and is enforced by the community, whatever acts such a set of laws or practice prohibit is ipso facto immoral to commit. In the case of acts of abortion, I will argue in §5 and §6 below that such a set of laws and practice should be guided primarily by a reasoned population policy. For acts of abortion that are not prohibited or made mandatory by such a set of laws or practice, act-utilitarian considerations must be applied to determine their moral status. In §7.2 below, I will deal with the application of act-utilitarian principles in deciding these cases.

Copyright © 2015

You will be interested in

Share This

  • twitter
  • facebook
  • linkedin
  • googleplus
  • gmail
  • delicious
  • reddit
  • digg
  • newsvine
  • posterous
  • friendfeed
  • googlebookmarks
  • yahoobookmarks
  • yahoobuzz
  • orkut
  • stumbleupon
  • diigo
  • mixx
  • technorati
  • netvibes
  • myspace
  • slashdot
  • blogger
  • tumblr
  • email
Short URL:
PDF Download Contraception and Abortion: A Utilitarian View

Download this essay