Can Utilitarianism Ground Human Rights?

1.1 Essay Objectives

Some prominent philosophers consider a fundamental flaw of utilitarianism is that it cannot account for our acceptance of universal human rights. More than that, these philosophers argue that adopting utilitarianism as a moral theory of right and wrong require denying some basic human rights we all take for granted.[1] In this essay, my aim is to show that, to the contrary, utilitarianism is the most adequate moral theory for grounding human rights. My key objectives are threefold. I will attempt to establish how:

1. Human rights are justified by appeal to the minimal set of social conditions required for the prevention of human suffering and the enabling of human flourishing.
2. Considering consequences for human suffering and happiness provides a rational method for adjudicating when rights conflict in particular situations.
3. All other appeals for grounding human rights (e.g., to autonomy, dignity, justice) are simply elaborations of those fundamental requirements for satisfying fundamental human needs.

The resources I will draw upon for satisfying my first key objective are select historical case studies on the origin of human rights covenants and recent psychological research on human needs and the enablers for human happiness. For my second objective, I will call to attention how actual human rights instruments lean on utilitarian considerations to adjudicate when rights conflict. Finally, to answer my critics, I will examine the claims that utilitarianism neglects the importance of human freedom and dignity and that it leads to unjust outcomes in contravention of human rights. For the latter claim, I will look more closely at the objection that utilitarianism allows for the persecution of minorities. I also respond to the general charge that human happiness cannot be measured.

In the next sub-section, I will begin by making some preliminary remarks about the nature of human rights, what we expect from a theory of rights and how utilitarianism differs as a moral theory from its main rival.

1.2 Human Rights: What Are They and Why?

Let me first set the scene for this discussion by answering three basic questions:

1. What are human rights, their kinds and why ought we pay attention to them?
2. How ought we evaluate competing theories of human rights?
3. What are the basic tenets of utilitarianism?

So, to answer the first question: what are human rights and why are they important?

Moral philosophers working in human rights theory seem to agree largely on these six basic features of universal rights:

1. Human rights are claims on others; that is, a moral obligation of others to protect a freedom or to provide a benefit.
2. Human rights are of high priority and overriding importance in deciding how we relate to and impact others.
3. Human rights are inalienable (cannot be taken away).
4. Human rights are not absolute; they are defeasible and can be overridden by other rights or obligations.
5. Human rights are universal; owned by all human beings and can be expanded to include all sentient creatures.
6. Human rights are moral rights that can be exemplified in legal systems.

Also agreed, following Berlin [1969], is the notion that there are essentially two kinds of moral rights:

1. liberty rights, seen as negative rights (e.g., right to life, liberty, security)
2. social rights, seen as positive rights (e.g., right to work, education, housing)

I will say more on this in §3 on Human Rights and Human Consequences.

Finally, human rights can be defined by their domain or scope. Rights that transcend national borders (transnational rights) are properly referred to as 'human rights'. On the other hand, rights that are localized to a particular country or region are known as constitutional rights or civil rights. In this essay, I will be dealing with both liberty and social rights and with both international human rights and the rights enshrined in particular nations' constitutions. Specifically, I will not be addressing person- or situation-specific rights (e.g., Mary's right to be paid by George under a law of contracts). To simplify nomenclature, I will refer to civil and constitutional rights that are also mirrored in international covenants as 'human rights'.

A fundamental question raised is why we ought to be concerned with identifying human rights in the first place and enshrining them in particular covenants. I think there are two answers here. First, human rights instruments are inward facing. What I mean by that is that they provide checks and balances on a legislature for framing state legislation. In addition, they are also outward facing. They apply moral and legal pressure on despotic nation states in the international sphere. I hope to show that a utilitarian justification of rights promotes and satisfies both these requirements.

1.3 Theories of Human Rights: How Do We Evaluate?

The second question I raised in these preliminaries is: how do we evaluate theories of human rights? How ought we judge competing systems of rights on their merits? I think that an adequate theory of human rights must do two things.

Firstly, it must provide a sufficient grounding for the rights claimed. It must answer the question of where each particular right proposed comes from. Are human rights bestowed on us by a divine being? Or are they the result of a contractual arrangement between humans? Or do they derive from our essential nature? And who in particular has these rights? Landowners? Males? Caucasians? Children? Foetuses? All human beings? Do these rights extend to members of non-human species? Which ones in particular? Dolphins? Chimpanzees? Chickens? Microbes?

If human rights are not grounded in a more general moral theory, they can appear capricious and with self-serving bias. For example, without a reasoned justification, the following rights claims can be rightly seen as pulled out of thin air for the sole purpose of serving the aggrieved's parochial interests:

• the right to a government 'base grant' for a private school education[2]

• the right to not pay land tax[3]

• the right to not wear a mask during a pandemic[4]

Secondly, a convincing theory of human rights must include a system of rules and their rationale for adjudicating between rights when they conflict. How do we adjudicate when the right to free association conflicts with the right to health in times of pandemic? How do we decide between the right of a person to practice their religion when it conflicts with a lesbian's right to purchase goods and services?

An adequate theory of human rights must provide convincing answers to these questions based on a credible view of the nature of human beings and society and on a persuasive broader moral theory, such as consequentialism or Kantian Rationalism. Here again, I will argue that it is only utilitarian moral theory that best satisfies these two requirements.

1.4 What Is Utilitarianism?

To complete these preliminary remarks, I will say a little about utilitarian moral theory. Utilitarianism is one of a set of theories known more broadly as 'consequentialism'. Consequentialist theories regard the rightness or wrongness of an action solely on the basis of its consequences for producing some moral good. That good may be friendship or knowledge or beauty, or some other good regarded as valuable in itself. Utilitarianism, as a form of consequentialism, regards only goods expressed as some kind of psychological state, such as happiness, satisfaction, well-being or flourishing, as valuable in themselves. Similarly, for a utilitarian, the only thing that is morally bad in itself is another distinct psychological state, such as pain, suffering or dissatisfaction. (There are non-mental state versions of utilitarianism, viz., preference utilitarianism and objective list theories. I think these, in the end, collapse to mental state utilitarianism, so I will not say more about these other theories in this essay.)

Consequentialism in general and utilitarianism in particular can be contrasted with another moral schema known as 'deontological' ethics (from 'deon' [Greek] = duty). This class of theories judge the rightness and wrongness of an action according to the extent to which it is in accordance with or transgresses a moral rule, completely or somewhat independently of the act's good or bad consequences. Immanuel Kant's Categorical Imperative is a good example of such a theory. Two other kinds of well-known moral theories in opposition to consequentialist theories are Virtue Ethics and Stoicism. I shall not say more about those in this essay.

As a way of illustrating the contrast between utilitarianism and a deontological approach, consider the vexed moral issue of 'voluntary assisted dying. On a utilitarian approach, the act of assisting a person to terminate their life is justified in cases where the person is suffering intolerably with no end and there is no possibility of improper influence on or abuse of the person suffering. On a deontological approach, on the other hand, such termination of a life is generally considered wrong without exception as it breaks the moral rule, 'Never intentionally kill an innocent human being'.

One thing to keep in mind as we consider human rights is that there are various versions of utilitarian theory. I point this out as perhaps not all versions can adequately ground human rights. An important consideration here is the object of the moral evaluation. The most basic version of utilitarianism asks us to judge morally each individual act, such as whether I should visit my sick grandmother in hospital. 'Act utilitarianism' judges each act in isolation according to its consequences. At the next level of abstraction, 'rule utilitarianism' asks us to morally judge whether an individual act is in accordance with a rule that, on balance, leads to good consequences when followed. Here, rules are treated as 'rules of thumb', determined to be useful or not by experience. For example, whether I should be rude to bigots on social media depends on whether doing so, on balance, leads to better consequences than if people do not.

The most abstract form of utilitarianism is known as 'public acceptance rule consequentialism'. I prefer to use the simpler name of 'rules in practice' utilitarianism. This form of utilitarianism sees most moral rules not as 'rules of thumb', but as rules decided by social groups beforehand as a way of gaining mutual benefit from coordinating behaviours. For example, this form of utilitarianism sees keeping promises as morally obligatory not because we found out by observing many instances over a long period of time that the practice has good consequences overall. This version recognizes that the obligation to keep promises enshrined in the rule as preceding the actual practice of keeping promises. That which is justified principally, on this version, is not the individual act, but the predesigned social practice of promise keeping. Much like how the rules of chess are not discovered by induction (observing individual instances over time), but by people coming together to decide the set of rules by fiat. (For more on the types of utilitarianism, see MacAskill et al [2023].)

Copyright © 2023 Leslie Allan