Can Utilitarianism Ground Human Rights?

9. Objection: Justice

The third objection to my argument that the idea that underpins universal human rights is the value we give to human happiness and the disvalue we give to human misery is that I have ignored the problem of justice. The claim here is that the demands of justice sometimes outweigh the simple summing of pleasures and pains. What is just figures importantly in prescribing the various rights in our human rights instruments and utilitarians, so the objection goes, disregard this central requirement.

For example, the Universal Declaration of Human Rights [United Nations (General Assembly) 1948] appeals to the value of justice in the Preamble and in Articles 23 and 29. The International Covenant on Civil and Political Rights [United Nations (General Assembly) 1966] does likewise in its Preamble and Article 14. Similarly, the American Convention on Human Rights [Organization of American States (OAS) 1969] refers to justice in its Preamble and in Articles 8, 10, 21 and 32. If utilitarianism flouts the demands of justice, critics insist, it cannot underpin human rights.

Critics of utilitarianism often repeat three popular and intuitively plausible scenarios that purport to disprove utilitarian moral theory. The three most used counterexamples are probably these:

1. Transplant Case: In a hypothetical hospital, there are five patients, each of whom will soon die unless they receive an appropriate transplanted organ (heart, two kidneys, liver, lungs). A healthy patient arrives at the hospital for a routine check-up and the doctor finds that she is a perfect match as a donor for all five patients. Utilitarian moral theory demands the doctor kill the healthy patient and use her organs to save the five others. (See, for example, Chappell et al [2023].)

2. Sheriff Case: In a hypothetical town, a series of murders have been committed. The townspeople are convinced that Joe committed the most recent murder. They demand the sheriff use his powers to hang Joe, but the sheriff knows for certain that Joe is innocent. The townspeople will not listen to reason and will lynch Joe and riot if the sheriff resists the demand. Utilitarianism requires the sheriff to hang Joe in order to prevent a worse situation. (See, for example, Smart and Williams [1973: 69f] and Danaher [2011].)

Book cover: Utilitarianism: For and Against by J. J. C. Smart and B. Williams

3. Rationing Case: In a hypothetical war, the government imposes a ration on electricity usage to conserve energy for the war effort. A utilitarian-minded citizen figures that if he uses more electricity than his allowance to have a longer hot shower, happiness overall will be increased with no discernible impact on the rest of the population. He knows he will not be caught breaking the ration. Utilitarianism justifies his deceitful breaking of the ration. (See, for example, Smart and Williams [1973: 57f])

As I mentioned earlier in this essay in §1.4 What Is Utilitarianism?, it's important to recognize the different versions of utilitarian moral theory. One version advocates that what is to be judged morally is the individual act, such as one person giving a gift to another. This version is known as act utilitarianism (or direct utilitarianism). Another version, known as rule utilitarianism (or indirect utilitarianism), sees what is to be appraised morally as the general rule. These moral rules are built up inductively over time from seeing which kinds of acts lead to the most happiness. So, for example, rule utilitarians may advocate the rule, visit sick relatives whenever convenient.

I think an act utilitarian can respond adequately to the Transplant Case by pointing to the fear in the general population that would ensue once it becomes known that one may be divested on one's organs even when well. On the other hand, I think an act utilitarian defence fails in the Sheriff Case and the Rationing Case. Rule utilitarianism fares somewhat better with the counterexamples, although the appeal to rules does not get to the heart of our feeling of injustice as the fact that a particular rule leads to greater happiness is merely contingent on the social circumstances of the day. Moreso, why should the usefulness of a general rule override the usefulness of a particular act where the act is a more fine-grained application of the principle of utility?

A larger shortcoming of rule utilitarianism and one that exposes the heart of the inadequacy of its responses to the latter two scenarios is that it mischaracterizes how social rules are in fact created. John Rawls [1955] shows how our civil laws and rationing rules are not built up piecemeal by keeping track of instances and noting their impacts on levels of happiness. In fact, the rules of justice and of rationing in particular are logically prior to the acts regulated by the rules. Moral and legal rules are stipulated and agreed in advance, along with specified roles, responsibilities, rewards and punishments.

For example, take the practice of promising. That practice did not gain acceptance following a lengthy period in which citizens logged over time the effects of keeping and breaking a promise and finally concluding from the tally that the balance of good effects over bad justify the rule of promise-keeping. In this case, the design of the practice preceded the particular acts of promising. It makes no sense to even speak of judging the effects of promising without first specifying the practice, with its rules, responsibilities and sanctions. Importantly, one of those predefined rules is the barring of act utilitarian defences for breaking a promise. Even though my breaking my promise to a friend to help him clean up his house may result in overall greater happiness, my making the promise in the first place is my avowed commitment to not use act utilitarian excuses for breaking the promise. By making a promise, I am buying into the pre-established social practice of promising with its defined rules, responsibilities and sanctions.

Once we recognize how the practice of promising originated and is maintained, we can see that utilitarianism principally justifies the social practice of promising. That justification is that the practice of promising has high social utility in allowing people to rely on others to co-ordinate actions for mutual benefit. What holds for the practice of promising holds even moreso for the system of rationing in wartime and for the criminal justice system more generally. Individual acts of using more electricity than one is entitled to in the former case and condemning an innocent man in the latter case transgress the rules of a system that is enforced for everyone's benefit. As the best form of utilitarianism warrants a social practice, the fact that on occasion an individual act transgressing the practice increases the total amount of happiness does not count as a legitimate excuse for disobeying the rules of the practice.

So, for the three supposed counterexamples discussed above, on this more sophisticated form of utilitarianism, the doctor is not morally obligated to kill the healthy patient to save the other five, the sheriff is not morally required to hang Joe in order to prevent a riot and it is not morally permissible for the wartime citizen to use more electricity than what his rations allow. On this form of utilitarianism, all three acts are morally wrong. In addition, this form of utilitarianism explains in naturalistic terms exactly why these three acts are wrong. This form of utilitarianism is known as 'public acceptance rules consequentialism' or, more simply, 'rules in practice' utilitarianism. (For more, see my Allan [2020].)

Just as our social practice of promising and our civil justice system are social systems, our international human rights instruments and institutions, likewise, constitute a broad system of social practice. Consider a typical civil justice system that has utilitarian warrant. It consists of rules for behaviour (e.g., traffic rules), designated roles (e.g., licensee, traffic infringement officer, judge), assigned responsibilities (e.g., obtain licence, patrol streets, adjudicate cases) and rewards and punishments (e.g., fine, imprisonment). In the same manner, our systems of universal and civil rights are also so composed.

Consider, for example, the International Covenant on Civil and Political Rights [United Nations (General Assembly) 1966]. The Articles in Part IV specify the following:

Rules for Behaviour

  • Give effect to the rights stipulated in the Covenant.
  • Perform Committee functions impartially and conscientiously.
  • Share Commission expenses equally among the States Parties.


Book cover: Ethics by Benedict de Spinoza
  • State Party
  • U.N. Secretary-General
  • Human Rights Committee member
  • Conciliation Commission member
  • Conciliation Commission Chairman


  • Conduct election.
  • Make a solemn declaration.
  • Vote at Committee meetings.
  • Submit reports on the measures adopted.
  • Appoint Conciliation Commission.

Rewards and Punishments

  • Declare a Committee member seat vacant on abrogation of duties.
  • Appoint an ad hoc Conciliation Commission if a dispute is not resolved.

The above list of rules, roles, responsibilities and sanctions is far from exhaustive. It gives you a flavour of the various components of the system of practice regulating international human rights. The key point here is that utilitarianism warrants the complete and integrated system governing the assent to and implementation of human rights, including those components regulating the just application of human rights norms. Moral judgments resulting from the application of those norms apply even in those instances in which the transgressions of a right leads to an increase in happiness or to a decrease in unhappiness.

Another kind of response to the critic's objection is to point to the utilitarian's principle of impartiality. The core of utilitarianism is often summarized as 'the greatest happiness of the greatest number' principle. This simplification can be misleading to many who come across this moral theory for the first time. It is the utilitarian principle of impartiality that is perhaps less prone to misinterpretation and that clearly encapsulates the principle of justice. I already alluded to the principle of impartiality in the previous section on dignity. Mill [1863: ch. 5: 60] put the principle most succinctly when he advised 'everybody to count for one, nobody for more than one'. Sidgwick [1874: 186] expressed the principle as 'the good of any one person is no more important from the point of view (if I may put it like this) of the universe than the good of any other'. Lying at the heart of the utilitarian ethic is this notion of justice as fairness, equal consideration and proportionality. Whether you are rich or poor, black or white, male or female, Hindu or atheist, socialist or libertarian, you are to count for one, no more and no less.

Copyright © 2023

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