UTILITARIANISM AND ITS CRITICS: A LEGAL AND PHILOSOPHICAL ANALYSIS

I. Introduction

Utilitarianism — famously encapsulated by the principle of "the greatest good for the greatest number" — has significantly shaped modern legal and political thought. From welfare economics to jurisprudence, its influence pervades doctrines ranging from tort law to criminal sentencing. Despite its widespread application, utilitarianism remains one of the most contested ethical theories in normative philosophy. This article explores the central tenets of utilitarianism, traces its impact on legal reasoning, and evaluates its major criticisms, both theoretical and practical.

II. The Foundations of Utilitarianism

Utilitarianism is a form of consequentialism, asserting that the rightness or wrongness of actions depends solely on their outcomes. Originating in the works of Jeremy Bentham and later refined by John Stuart Mill, utilitarianism insists that moral actions are those which maximize utility — often understood as happiness or pleasure.

Bentham defined utility as “that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness…or…to prevent the happening of mischief, pain, evil, or unhappiness.”¹ Mill, in Utilitarianism (1861), added a qualitative dimension, distinguishing higher (intellectual) pleasures from lower (bodily) ones.² This shift sought to address criticisms that Benthamite utilitarianism sanctioned base hedonism.

Utilitarianism can be divided into two main categories:

• Act Utilitarianism: Judges each action based on whether it maximizes utility.

• Rule Utilitarianism: Evaluates actions based on whether they conform to rules that, if universally followed, would maximize utility.

Both forms underpin much of modern economic theory (e.g., cost-benefit analysis), law and economics scholarship, and even public policy frameworks.

III. Utilitarianism in Legal Theory

Legal utilitarianism was explicitly embraced by Bentham, who saw law as a tool to promote collective happiness.³ His ideas directly challenged natural law theory and influenced the development of legal positivism.

In the American legal context, Oliver Wendell Holmes Jr. and the Legal Realists echoed utilitarian thinking. Holmes wrote, “The life of the law has not been logic: it has been experience,” advocating that judicial decisions consider social consequences.⁴ More recently, scholars like Richard Posner have championed economic analysis of law, a modern utilitarianism focused on efficiency.⁵

Utilitarianism's influence is evident in various legal doctrines:

• Tort Law: Cost-benefit analysis in negligence (e.g., the Hand Formula in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).

• Criminal Law: Deterrence as a utilitarian justification for punishment.

• Constitutional Law: Balancing tests (e.g., in First Amendment jurisprudence) that weigh competing social interests.

  
  

IV. Major Criticisms of Utilitarianism

Despite its appeal, utilitarianism has been the subject of sustained critique across moral philosophy and jurisprudence.

A. Justice and Rights

One of the most powerful criticisms is that utilitarianism can justify actions that violate individual rights if doing so increases aggregate welfare. For example, sacrificing an innocent person to prevent riots (as in hypothetical moral dilemmas) would be permissible under strict act utilitarianism. This challenges liberal legal commitments to due process and human dignity.

Robert Nozick’s utility monster thought experiment illustrates this problem: a creature that gains exponentially more pleasure than others could justify extreme inequality if total happiness is maximized.⁶ John Rawls similarly argued that utilitarianism fails to take the “separateness of persons” seriously, aggregating well-being in a way that ignores individual entitlements.⁷

B. Measurement and Comparability Problems

Utilitarianism assumes that happiness or utility can be measured and compared across individuals. However, utility is inherently subjective. While Bentham proposed a "felicific calculus," critics argue that such quantification is speculative at best and manipulative at worst.

Further, interpersonal comparisons of utility are philosophically problematic. As Amartya Sen and Martha Nussbaum have pointed out, utility fails to account for adaptive preferences—where individuals in deprived conditions may report satisfaction despite objective deprivation.⁸

C. Demandingness Objection

Another major challenge is that utilitarianism is overly demanding. If we are always morally obligated to maximize utility, then morally we must donate most of our income to effective charities, abandon personal projects, and sacrifice comfort for the greater good.⁹

Bernard Williams famously criticized utilitarianism for eroding personal integrity. In his “Jim and the Indians” thought experiment, he argued that utilitarianism alienates individuals from their moral commitments and character.¹⁰

D. Rule Utilitarianism: A Compromise or a Collapse?

Rule utilitarianism attempts to preserve rights and reduce arbitrariness by justifying actions through general rules. However, critics argue that it collapses into act utilitarianism when exceptions to rules are justified by better outcomes. Alternatively, if rules are upheld despite poor outcomes, rule utilitarianism begins to resemble deontological ethics.

V. Utilitarianism Reimagined?

Recent scholarship attempts to reconcile utilitarian reasoning with liberal values. For instance, some theorists propose “threshold deontology,” allowing utility-maximizing departures only after certain moral thresholds are crossed.¹¹ Others, like Peter Singer, argue for a practical ethics that uses utilitarian reasoning for global problems (e.g., poverty, animal rights), while acknowledging its limits in personal morality.¹²

In legal scholarship, some advocate for a “pluralist” framework combining utilitarian and rights-based approaches. For instance, Dan Brock suggests a “constrained consequentialism” that gives weight to both consequences and respect for persons.¹³

VI. Conclusion

Utilitarianism remains a powerful yet controversial moral and legal theory. Its emphasis on outcomes resonates with democratic governance, public policy, and legal pragmatism. Yet, its potential to subordinate justice and rights to aggregated welfare continues to spark debate. As legal scholars and philosophers seek a moral compass in a pluralistic society, the challenge remains: how to respect individual dignity while striving for the greater good.

Citations

1. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 1 (1789).

2. John Stuart Mill, Utilitarianism (1861).

3. Id.

4. Oliver Wendell Holmes Jr., The Common Law 1 (1881).

5. Richard A. Posner, Economic Analysis of Law (9th ed. 2014).

6. Robert Nozick, Anarchy, State, and Utopia 41 (1974).

7. John Rawls, A Theory of Justice 27 (rev. ed. 1999).

8. Amartya Sen, Commodities and Capabilities (1985); Martha C. Nussbaum, Women and Human Development(2000).

9. Shelly Kagan, The Limits of Morality (1989).

10. Bernard Williams, Utilitarianism: For and Against (1973).

11. Frances Kamm, Intricate Ethics (2007).

12. Peter Singer, Practical Ethics (3d ed. 2011).

13. Dan W. Brock, Ethical Issues in the Use of Cost-Effectiveness Analysis for the Prioritization of Health Care Resources, in Valuing Health Care (1995).