Justice and Utility

Canadian Journal of Philosophy

Justice and UtilityAuthor(s): Paul W. TaylorSource: Canadian Journal of Philosophy, Vol. 1, No. 3 (Mar., 1972), pp. 327-350Published by: Canadian Journal of PhilosophyStable URL: http://www.jstor.org/stable/40230355 .

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CANADIAN JOURNAL OF PHILOSOPHY Volume I, Number 3, March 1972

Justice and Utility PAUL W. TAYLOR, Brooklyn College, C.U.N.Y.

That utility is not a sufficient test for a set of social rules to be morally binding upon a group of persons has been argued in a number of recent books and articles.1 Yet it is generally conceded in these arguments that a group's observance of rules makes possible greater benefits than would accrue if each did not associate himself with others under the rules. It is not denied that the practice of morality is socially advantageous. What is denied is that social advantage is either the sole criterion or a sufficient criterion for the justifiability of any set of rules that could constitute the de facto system of moral requirements in a given society.

What, then, is sufficient? The answer I am interested in de-

fending in this paper is that both utility as an aggregative principle and justice as a distributive principle are each a neces-

sary condition and together provide a sufficient condition for the

justification of a moral code. In the first two parts of this

paper, I shall explain how the concepts of justice and utility, respectively, are to be construed in the argument of the third

part. The aim of that argument will be to show why a system of social rules which satisfies the conditions of both justice and

utility as understood here is justified in the only way such a

system can or need be justified.

I

By abstracting from the historical and cultural contexts in which actual societies evolve and continue their existence on

1 Among the most important are: j. Rawls, "Justice As Fairness," Philosophical Review, Vol. 67 (1958), 164-194; B. j. Diggs, "Rules and Utilitarianism," American Philosophical Quarterly, Vol. 1 (1964), 32-44; D. Lyons, Forms and Limits of Utilitarianism (Oxford, 1965); N. Rescher, Distributive Justice (Indian- apolis, Ind., 1966); G. R. Grice, The Grounds of Moral Judgement (Cambridge, 1967); and D. H. Hodgson, Consequences of Utilitarianism (Oxford, 1967).

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Paul W. Taylor Justice and Utility

earth, we can think of a society for philosophical purposes as a network of interpersonal relationships, shared purposes, and

cooperative practices organized in accordance with a set of rules. The rules will be both constitutive and directive or regulative. Constitutive rules define the various positions, offices, and functions of different categories of persons in the structure of the society's institutions. Directive rules control the social practices that are carried on within the institutional framework set

by the constitutive rules. The function of directive rules is to impose requirements and prohibitions upon the members of a

society, specifying what sorts of actions are or are not to be

performed by the various categories of persons in their various roles in the social order.2 Certain subsets of constitutive and directive rules define and prescribe the decision-procedures to be followed by, and the range of options available to, different classes of persons in different positions and circumstances. The areas of socially recognized freedom of choice, where no directive rules apply to an individual's conduct, also constitute an essential aspect of the rule-governed structure of a social system.

Some of the constitutive and directive rules of a society will be used to determine the allocation of benefits and burdens, opportunities and restrictions, privileges and duties that attach to various positions and roles. I shall refer to these as "primary rules." Another set of rules, which I shall call "secondary rules," will specify penalties and other less formal expressions of social disapproval as sanctions to be applied to persons when they intentionally ignore, circumvent, or violate the primary rules. These secondary rules will also stipulate criteria for legitimate excuses, extenuating circumstances, and conditions of limited accountability that can nullify or mitigate the application of sanctions in certain cases.

Given a society as defined by a set of primary and secondary rules, what conditions must be satisfied if it is correctly to be judged a just society? The working definition of justice that I shall use here is that suggested by Professor Rawls in his well- known essay, "Justice as Fairness." The basic (necessary and sufficient) condition of social justice may be formulated thus: A society is just when, and only when, every person whose conduct falls under the rules has good reason to act in accordance with the rules. There are a number of subordinate prin-

2 Two clear statements of the distinction between constitutive and directive or regulative rules may be found in: S. Zink, The Concepts of Ethics (New York, 1962), Ch. IV, and J. R. Searle, Speech Acts (Cambridge, 1969), Ch. 2.

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ciples of justice that are entailed by this basic condition in

conjunction with certain facts about human nature. The first of these principles of justice may be designated the

principle of reciprocity. It is entailed by the basic condition of

justice in conjunction with the fact that no individual will have

good reason to commit himself to abide by the primary and

secondary rules unless every other person is committed likewise. The principle itself may be formulated as follows: The fact that

any given person conforms to the rules entitles him to expect all others to conform to the rules. By 'entitles him to expect' I mean that the individual's commitment-in-action bestows upon him a

legitimate claim which constitutes the ground of an obligation on the part of all others in the society to make a similar commitment- in-action.

The principle of reciprocity may be thought of as establishing a moral equality among the members of the society. For accord-

ing to that principle each person has an equal (i.e., the same) right to count on every other person to carry out what Rawls has called 'the duty of fair play.' This duty is the general obligation to conform to those directive rules that each person has good reason to acknowledge as binding upon everyone. If one person were to follow the rules while others did not, he would be placing himself under restrictions that would not be

operative upon others and so would put himself in the position of being treated merely as a means to their ends. They would be able to benefit at his expense, since they would gain from his conforming to the rules without having to pay the price of their own conforming. Consequently there would not be good reasons for any particular individual to acknowledge the duty of fair play and so abide by the rules unless others did the same. And if it is not the case that there are good reasons for a given person to do something, that person cannot have good reasons for doing it. (I take it that to have a good reason-for-

acting is to have good reasons for believing that there is a good reason-for-acting.3)

When it is the case that the primary rules of a society

satisfy the basic condition of justice, they may be described as

rules of distributive justice. If in addition the secondary rules

also satisfy the basic condition of justice, they may be charac-

terized as rules of retributive justice. Given a society whose

primary rules are rules of distributive justice, it is not difficult

3 This is well argued by G. R. Grice, op. cit, Ch. 1.

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Paul W. Taylor justice and Utility

to see why the total set of rules which everyone in the society would have good reason to follow must include rules of retributive justice. For the latter are entailed by a conjunction of the

principle of reciprocity and the fact that human beings are sometimes disposed not to carry out their obligations that stem from the duty of fair play. This regrettable tendency to shirk un-

pleasant tasks and, where it appears possible to gain an advan-

tage by doing so, to ignore, circumvent, or violate the rules that others are generally conforming to, has the following logical consequence: No one will have good reason to place himself under the direction of the rules unless there is some assurance that the principle of reciprocity will be adhered to. In order to bring about and preserve such assurance two conditions must hold: first, that some sort of penalties or sanctions be attached to the violation of the rules, and second, that there be good reason on the part of each person to believe that these penalties or sanctions will be effectively applied.

This way of regarding the rules of distributive and retributive

justice discloses a particular relation that holds between everyone's general right and duty on the one hand and each person's special rights and duties on the other. The general right that

every member of the society has in virtue of his commitment- in-action to the rules is the right to be respected as one to whom is owed the general duty of fair play. This duty is general in the sense of being equally obligatory upon every member of the society, no matter what his position or office might be. The

special rights and duties that attach to different positions and offices are specifications of what sorts of actions the general right and duty of each member entails in the actual circumstances of his life. Although the special rights and duties belonging to a given position are not moral rights and duties in so far as they are special, they are nevertheless moral rights and duties in so far as they are determined by rules thbt satisfy the conditions of distributive and retributive justice, and so are instances of the general right and duty of reciprocity.

When a social order is just the operation of its rules as guides to conduct exemplifies a principle that may be designated 'the principle of formal justice.' This is the consistent and impartial application of rules to all cases falling under them. A society is formally just when and only when all of its rules of distributive and retributive justice are strictly applied, no matter what types of treatment of persons the rules require, permit, or forbid. Impartiality is involved in applying rules to particular

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cases when either someone who has the authority (as established by the rules) to administer a given rule applies it to himself, or someone understands that he is subject to a rule and does not allow his interests in the situation to affect the decision of what he is to do. The rule may require that in certain circumstances he perform an action that is contrary to his interests, as he sees them. The condition of formal justice is satisfied when he recognizes that he must do the action because the rule demands such conduct of anyone in his circumstances. It is in this sense that he is committed to following the rule, or in case of failure to do so, to holding himself accountable by subjecting himself to the penalty attached to the rule.

Impartiality as a corollary of formal justice is not only con-

sistency in the application of rules as between oneself and others. It is also consistency in the application of rules to others, regard- less of their relation to oneself. Thus impartiality is exemplified in not making exceptions either in one's own favor or in another's favor (for example, in favor of one's family or one's friends). Insofar as a moral judgment of a person's action is made on the basis of a rule that covers any action of the given kind in the

given kind of circumstances, then impartiality - true to its name -

precludes favoritism and prejudice (pre-judgment). Another implication of formal justice is the so-called 'General-

ization Principle' in ethics. The Generalization Principle states that what is right or wrong for one person to do must be right or wrong for any relevantly similar person to do in relevantly similar circumstances. The notion of 'relevant similarities' may be explicated thus. With respect to any rule of distributive or retributive justice, relevant similarities are those similarities

specified in the rule as criteria for considering individuals to be members of one class of persons on the basis of which they are placed in a certain social position or role, given a certain benefit or punishment, assigned certain rights and duties, etc.

Any two persons belonging to the same rule-defined class are

relevantly similar, just as any two persons differentiated by a rule in such a way as to be placed in two different classes are relevantly different. A relevant similarity or difference, then, is a property of persons the presence or absence of which, accord-

ing to a rule of justice, is a ground for treating any two individuals having or lacking the property in the same or in different

ways. It is essential to this analysis that the rule which makes a

similarity or difference among persons a relevant one be mate-

331




rially just as well as formally just. Otherwise any property whatever could be a relevant similarity or difference, depending on the particular rules actually being applied in a given society. If a set of de facto rules, for example, assigned one class of

persons to slavery on the basis of their race, such discrimination would be formally just as long as the rules were consistently applied. But we could not conclude from this that slavery was

just or that race was a 'just-making difference/ even if we

qualified our conclusion by saying that slavery or racial discrimination was just in that society. For there would be some members of that society - namely, those whose interests were frus- trated by such rules- who would not have good reason freely and knowingly to accept the rules as guides to their own and others' conduct. Whether or not they thought of it this way, they would be discriminated against on irrelevant grounds.

A discrimination among persons is justified on the ground of a relevant or just-making difference only when the rule that prescribes or permits difference of treatment based on that discrimination is materially just as well as formally just. What renders any difference of treatment materially just is the fact that all those who are subject to such treatment have good reason to commit themselves to the consistent, impartial application of a social rule that requires or permits the discrimination in question. This holds equally for sanctions that are applied in accordance with rules of retribution when the primary rules have been violated. When these conditions are satisfied by the rules of a society, we may then describe it as a society which conforms to the principle: Let equals be treated equally, and unequals unequally.

The ideas of 'desert' and 'fair share' are also definable in terms of the foregoing conceptual scheme. What a person de- serves is whatever he receives - whether it be reward or punish- mant, benefit or frustration - as a member of a class of persons with respect to whom a rule of distributive or retributive justice prescribes a certain treatment. Assuming the rules are materially as well as formally just, desert is dependent on the rules. One cannot decide what rules to adopt by first discovering what people deserve. Similarly, although we can define a just society as one in which each member gets a fair share of the available goods and pays a fair price for them, we cannot find out what share or price is fair before we know the rules of distribution and retribution. Once we know the rules, and know also that the rules satisfy the basic condition of justice, we can use the

332




terms 'fair share' and 'fair price' to refer to the allocations of benefits and burdens to various classes of persons in various kinds of circumstances according to those rules.

I have been presenting a model of a system of social rules which it is appropriate to designate by the name 'justice.' My next purpose is to contrast with this another model of a system of social rules, where the key principle is that of utility. It will be seen that certain modifications in the traditional view of utility are necessary. When these modifications are made, I shall argue, it is possible for one system of social rules to be characterized by both justice and utility, although characterized in rad- ically different ways.

II

The utility of social rules has to do with their aggregative effect upon all persons whose experience of life is made better or worse by the practice of those whose conduct falls under the rules. The class of persons so affected will include, of course, those to whom the rules apply. But consideration must also be given for anyone outside the rule-governed society itself who may be benefited or harmed by the operation of the rules. With respect to the utility of any social practice, every human being is regarded as a potential beneficiary, whether or not he engages in the practice and whether or not the practice is aimed at producing a benefit for him.

In calculating utility the principle of the equal worth of all persons as persons must not be violated. This principle is expressed in the classical utilitarian dictum: 'Everyone to count for one and none for more than one.' It is important to notice that this principle is not the same as the idea of 'moral equality' entailed by the principle of reciprocity in a system of social justice. The latter derives from the fact that everyone has an equal (i.e., the same) right to be treated fairly, where fair treatment means that each person's fulfilling of the obligations involved in the duty of fair play entitles him to expect that everyone else will similarly fulfill such obligations. The utilitarian concept of equal worth, however, has to do with the method of calculating the consequences of rule-governed practices. In such a calculation the principle imposes two requirements: first, that no potential beneficiary (or victim) be overlooked, and second, that there be no variation in the unit of utility-measurement from person to person. It is quite consistent with the principle

333




that great differences in the amount of total net benefit be allotted to different persons, and according to rules that are not such that everyone affected by them has good reason to

comply with them. To count each person for one and none for more than one does not rule out an unjust distribution of benefits and burdens.

Utility as an aggregative principle is thus to be contrasted with justice as a distributive principle. Whether we are dealing with primary rules of disribution or secondary rules of retribution, justice concerns the way in which positions, offices, and roles on the one hand, and positive and negative sanctions on the other, are allotted to different classes of persons. Utility is a matter of the total quantity or amount of good or evil that is produced by the operation of primary and secondary rules. The structure of distribution within the framework of such rules is relevant to utility only when it makes some quantitative difference in the aggregate of good or evil resulting from it. If two sets of rules were to yield the same amount of net good or evil, then they have the same utility, even if one set of rules is just and the other unjust.

Traditionally the standard by which a given amount of utility has been determined is the quantity of net value over disvalue occurring in the lives of all persons who are affected, value and disvalue being understood as attributes of different kinds of experience. Professor Richard Brandt has proposed that utility be measured by average value per person, rather than by total value, where 'average value per person' is defined as the total value divided by the number of persons in the society.4 But even in this form utility remains an aggregative principle that may function independently of distributive principles. That is to say, utility is still thought of as the production of quantities of goods (valued things, states, experiences) in each person's life. Only if the average amount of goods per person were to be raised or lowered by a particular manner of allocating the benefits and burdens of different positions and sanctions in the organization of social practices would such allocation be shown, by the proposed test of utility alone, to be justified or unjustified.

Precisely how utility can be conjoined with justice to constitute a sufficient condition for the justifiability of social rules when they can operate as independent criteria and even yield inconsistent results remains to be seen. At this point it is neces-

4 R. B. Brandt, "Some Merits of One Form of Rule-Utilitarianism," University of Colorado Studies in Philosophy, Series No. 3 (Boulder, Colo., 1967), p. 53n.

334




sary to obtain a clearer conception of utility if its conjunction with justice is to make sense. The traditional idea of utility, I submit, must be modified in certain respects, especially in the

light of the criticisms of utilitatianism recently made by Professor B. J. Diggs.5

Diggs' criticisms bear on the question of how utility is to be understood when it is used as a ground for the appraisal of social rules. The main point of Diggs' argument is that we cannot understand what utility means outside the context of the rules whose utility is being calculated. In order to justify everyone's accepting and following a set of rules, utilitarians claim that we must evaluate the consequences of their doing so. The test to be applied to the consequences is usually stated in some such way as 'furthering the interests of all to the greatest possible extent', 'bringing about more happiness and less un-

happiness than any alternative system,' or 'maximizing intrinsic value and minimizing intrinsic disvalue.' The assumption being made by the use of these expressions is that a person's interests, or happiness, or the intrinsic value of his experiences can be

understood in terms of the life of an individual taken in abstrac- tion from the social system whose rules are being judged. It is this assumption that Diggs brings into question, and his doubts

go to the very heart of utilitarian thinking. Three arguments are given by Diggs. The first concerns a

condition that would be accepted by most utilitarians as neces-

sary for everyone (or, indeed, for any individual) to reach a state

of happiness. This is the condition of security, of being able to live without fear of others because one can count on others to act in certain ways. Concerning this Diggs points out that

being able to count on how others will act depends on their

conduct being governed by rules that define and impose rights, duties, and obligations. Furthermore, he argues, the description of the kinds of action which a person counts on another to do

or refrain from doing in a condition of security frequently re-

quires reference to the constitutive rules of established social

practices and institutions.6 Thus security and the happiness that

depends on it are concepts which can be understood only in the

context of social rules. The first argument, then, raises the

question whether it is possible to apply a test of utility to a

system of rules without including in the test some reference to

5 B. J. Diggs, op. tit. • Ibid., p. 42.

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Paul W. Taylor justice and Utility

the very rules being appraised. What utility means depends in part on the form of social life whose utility is in question.

Diggs' second argument pertains specifically to social goals and purposes that are described in terms of people being in a condition of life where they enjoy doing things 'for their own sake' or 'as ends in themselves.' This is a traditional criterion of intrinsic value used in the utilitarian justification of social rules. With respect to this criterion Diggs argues that such goals are not logically independent of the rule-governed practices and institutions of the social system itself. A person's enjoyment in

playing a game cannot be separated from the nature of the game, nor can a person take pleasure in pursuing 'the object of the game' without following the rules of the game in terms of which its 'object' is defined. Diggs claims that a parallel to this holds for social practices and institutions. The goals of a social practice can neither be sought nor even conceived without presupposing the framework of practice-defining rules. And no one can pursue 'for their own sake' the activities associated with the practice without understanding what he is doing in terms of the rules. The kind of enjoyment he finds in the activities is made possible by the social order implicit in the practice as an integrated whole.7

The third argument given by Diggs concerns the relation between moral rules like 'Do not lie,

' 'Keep your promises/ 'Do

not steal' and the social practices and institutions which such rules tend to support and preserve. Moral rules are seen to be devices needed as a check on individuals' pursuing their self- interest in situations where there is an inclination or temptation to act in ways contrary to the rules of social practices and institutions. In such cases moral rules are, he says, "ancillary to institutions" in that they make possible the functioning of institutions as rule-governed forms of social conduct.8

In the light of these arguments, what sort of reasoning must be involved in a utilitarian justification of social rules? It can at once be seen that any attempt to show that the rules are instrumental to the realization of certain ends is a misguided attempt if those ends are conceived of as states of mind or conditions of life logically independent of the rules to be justified. So it is necessary to consider together the whole system of rules along with the social ideals and personal goals that people pur-

7 Ibid, p. 43. 8 Ibid., p. 43.

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sue within the framework of that system. The system of rules must be seen as constituting a form of social life that shapes the individual's conception of what it means to further his interests, to have security, or to be happy. Given this interconnectedness between social rules and their effect upon the lives of individuals, will not the utilitarian idea collapse? For if we cannot logically or conceptually separate the rules from their consequences, how can the rules be judged by their consequences?

I shall now propose a coherent way for the utilitarian to maintain his position. Let us grant that, with regard to any particular society having established institutions and practices, what will be thought of as a benefit to an individual will depend on the conception of 'the meaning of life' inherent in the cultural outlook of the society. What experiences in life are held by individuals to be desirable, what goals to be worth pursuing, what social relationships to be precious, what accomplishments to be admirable- all these values of individuals will be a reflection of the whole way of life, the mode of civilization carried on by the society in question.9 The fulfillment of a person's interests, his welfare and happiness, will therefore be logically connected with how he interprets his experience within the framework of the form of social life of his culture and epoch. This much can be accepted from Diggs' account. Nevertheless, if a system of rules were adopted by a given society at a given time in its

history, it could have either of two possible effects upon the lives of individuals: it could create conditions of security and

liberty that enhance each individual's power to realize his personal values, or it could have the effect of hindering each individual's pursuit of his personal values. How is this possible, in the light of the points made by Diggs noted above?

In the first place, the fact that an individual's conception of his welfare, happiness, or self- fulfillment is partly determined

by the moral and institutional rules of the society in which he lives does not preclude his appraising any given experience in terms of two criteria of prudence: (i) the cost of his achieving the condition of life in which the experience is realized - a cost measured by what he is required to sacrifice (the 'price' he has to pay) with respect to his other personal goals; and (ii) the contribution that his realizing this experience at this moment in his life makes (in comparison with other experiences he might have realized instead) to his overall welfare, happiness, or ful-

9 An excellent study of the relation between an individual's values and the forms of social existence in which he lives is contained in: Dorothy Emmet, Rules, Roles and Relations (New York, 1967).

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fillment. Granted that a man's image of himself and his conception of the good life are shaped by his moral relations with others, by his position in society and the part he is given to

play in the carrying on of civilized life, he must still make decisions, within the limits of moral permissibility set by the rules, about what ends are worth the price of achieving at the expense of other ends. (also morally permissible to him), and about the

comparative importance of these ends in relation to his life as a whole. A utilitarian evaluation of alternative sets of rules is, then, meaningful in the following way. A set of rules will have maximum utility insofar as they will make it possible for every individual to achieve any given end at least cost to his other ends and insofar as they will enable every individual to realize in his life (through providing the means and the opportunities for developing the necessary capacities) those experiences that make the greatest contribution to his overall fulfillment.

In the second place, although the moral code will exert an influence on the individual's personal values in that his moral image of himself will place some limit upon the kinds of experiences he will consider it worth having, there will be any number of different 'styles of life' open to him by moral rules that protect him from harm, coercion, and intimidation by others. Given a moral order that preserves and supports the maximum amount of liberty and toleration compatible with each person's equal right to non-interference, the interests an individual pursues and the activities he engages in will be largely matters of his own choosing. Such a moral order makes possible a world where individual tastes and talents are allowed maximum expression consistent with the like freedom on the part of others. Voluntary associations, formed for the cooperative achievement and enjoyment of ends shared by subgroups of persons within the society are also furthered by a libertarian moral code. Here the security mentioned by Diggs, far from being antithetical to liberty, is essential to it. No condition of liberty is possible in a society without an assurance that rules of mutual forbearance will be generally conformed to.

In the third place, there is an important factor of utility in those moral rules which, as Diggs points out, are ancillary to social institutions and practices. Adherence to such rules as promise-keeping, truth-telling, and impartiality (understood as the abstaining from making exceptions in one's own or another's favor) tends to strengthen those interpersonal relations and personal qualities that make social institutions and practices pos-

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sible. Because economic, political, educational, legal, scientific and other sorts of organizations are stable and effective in their

operation only when their members are morally committed to rules of the kind mentioned, and because such organizations tend to create conditions essential to everyone's fulfillment, there is a good utilitarian argument for having such rules a basic

part of the society's moral code. One need only imagine the

consequences of not having such institutions as libraries, hos-

pitals, and art museums to see how important to everyone's welfare and happiness are certain institutions and their practices. And without a moral code that sets basic standards of fidelity, honesty, and formal justice in the application of rules, no social institutions would be possible at all.

So despite the valid points made by Diggs, there is a utilitarian justification for social rules of a certain kind, namely those that preserve two necessary causal conditions for everyone's 'pursuit of happiness': the stability and order of social institutions that promote the general welfare, and the freedom from interference that allows for diversity in the ways individuals choose to lead their personal lives. Granted that a person will conceive of his 'welfare' in terms of the social institutions and

practices that have formed his conception of himself, and granted that he will think of his 'freedom' to choose among alternatives

only within a framework of rules that determine the possibilities of action acceptable to a moral being. Nevertheless any set of social rules will be justified to the extent that, and for the reason that, they have this twofold effect upon everyone's life: to increase the efficacy of each individual's will in carrying out his plans and intentions, and to open up more alternatives to the individual's choice partly by creating and maintaining a climate of liberty and tolerance, and partly by providing social institutions for the development of all sorts of personal capacities and talents. Neither of these consequences implies that there is some fixed amount or quantity of happiness, self-fulfillment, or the like which it is the purpose of social rules to increase to the maximum in each individual's life. Nor does it imply that

happiness, self-fulfillment, or the like are to be thought of as

experiences and conditions of life detached from the forms of social existence embodied in the moral and institutional rules of the society.

The type of 'rule-utilitarianism' that results from the foregoing conception of utility would be something like that suggested by Professor Brandt in his article, "Some Merits of One Form of

339




Rule-Utilitarianism."10 Brandt recognizes that the ideal moral code of a particular society as envisaged by a utilitarian must take into account the de facto non-moral institutions of that society. A moral code is defined as 'ideal' for a given society when its rules are such that, were a high proportion of the members of the society to accept them and hence be committed to act in accordance with them, at least as much good per person would

thereby be produced as would be produced by any other set of rules. Brandt emphasizes the point that what specific rules make

up the ideal code of a particular society will depend on the nature of its non-moral institutions and practices. Given two societies with different non-moral institutions and practices, the set of rules that would produce maximum good per person in one

society might not produce such maximum good in the other. Thus the ideal moral code may vary for each society, entailing a corresponding variation in moral obligation.

This, it should be noted, does not solve the problem of what a person ought to do when he lives in a society whose de facto moral code is far removed from what an ideal moral code for his society would be. It is not meant to solve such a problem. But it does show how a utilitarian ground for an ideal moral system requires that moral rules vary with the given forms of social life of the different societies for which they are ideal.

I conclude that there is nothing inherently absurd in the idea of utility as an aggregative principle for judging social rules, if it allows for such variations and qualifications in its application as have been discussed. However, for reasons to be considered now, I do not think it constitutes a sufficient criterion for the justification of a moral code. It must be supplemented by the distributive requirements of justice.

Ill

Why are utility and justice, when understood in accordance with the foregoing accounts, each a necessary condition and

jointly a sufficient condition for the justifiability of social rules?

Turning first to justice, let us consider what a denial11 of the

principles of justice would entail with respect to a system of

10 R. B. Brandt, op. cit This statement pertains to utility only, not to justice. At the end of his article Brandt states that he has not discussed the question whether the utilitarian theory he espouses can account for the concept of justice. I do not know if he would find acceptable the view of justice and its relation to utility presented here.

11 By a 'denial' I mean a decision or commitment in any given case to adopt the contradictory of a principle, as distinct from not making any decision or commitment with regard to either a principle or its contradictory.

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social rules. A denial of the principle of formal justice would be a decision to be arbitrary in the administration of rules. It would negate the very essence of rule-governed conduct. The reason is that formal justice is nothing but consistency in the

application of general rules to particular cases. Any failure to abide by it would be an example of not requiring an action that admittedly comes under the general requirement stated in the rule.

Every deviation from formal justice can be considered as the

making of an unjustified exception to a rule, under the assumption that the rule itself is justified. (This assumption will be examined shortly.) For the principle of formal justice requires that, if a person is either allowed to do something others are

prohibited from doing or is prohibited from doing what others are allowed to do, there must be a relevant difference between his case and that of the others. But as we have seen, relevant differences are themselves defined by the social rules when the basic condition of material justice is met. So if we intend to be considering an example of a violation of formal justice under the assumption that the given rule meets the basic condition of material justice, the circumstances must be such that there is no relevant difference between the individual in question and others. Consequently the kind of situation we are dealing with is one that necessarily involves the making of an unjustified exception to a rule.

The assumption we have been making is that the rule is

materially just and therefore justified. In setting forth the

argument in defense of this assumption it will be convenient to consider secondary rules of retributive justice first. Here the

argument is quite simple if we assume that the primary rules are materially just. Any violation of a secondary rule is then seen to be unjustified because, first, the primary rules need to be supported by effective sanctions, and second, the particular violation is not recognized as a legitimate exception to the sec-

ondary rules. We have seen that no one will have good reason to conform to any rules unless he has some assurance that others will do so too. Given a realistic estimate of the weak- nesses of human nature and given the fact that no set of rules can be justified to anyone unless the principle of reciprocity is

observed, then the secondary rules are seen to be justified as

necessary means for making secure the very social conditions that must hold if any rule at all is to be justified. And if we

suppose that a violation of a secondary rule occurs when there

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are no relevant differences, as defined by the rule-system itself, between the violator and others, then formal justice precludes the justifiability of the violation.

There remains the question of the justifiability of the primary rules. Here we cannot appeal to formal justice as our ground, since that only guarantees consistency in the application of rules. It does not give us reasons for having one set of rules rather than another. There is, however, a methodological principle or rule of inference which does provide such reasons when it is the case that the primary rules whose justification is in question satisfy the basic condition of justice. The methodological principle is that a social rule is justified simpliciter if and only if it is justified to everyone whose conduct, at one time or another, falls within its range. I shall now try to show that this principle is a logical requirement of the conceptual system in which we speak of persons as agents for whom rules of conduct are grounds for reasons-for-acting.

When a person understands himself to be a member of a society and as such committed to its rules, he regards the requirements and prohibitions imposed by those rules as reasons for doing or refraining from actions of the sort stated in them. The person conceives of himself not only as an agent whose conduct should conform to the rules, but also as a rational being whose deliberations, decisions, and ways of forming judgments about what to do are guided by the rules. The rules have a certain role to play in his practical reasoning. They function logically as major premises in first-person practical syllogisms. Thus suppose a rule requires that people in certain circumstances must do an action of kind K. The assertion12 of this rule along with the belief that Lam a person in the given circumstances and am able to do an action-token of kind K commit me to accepting the practical judgment that, other things being equal, I should do that action-token. This piece of practical reasoning may be formulated in a statement of the following kind, which I shall call a reason-for-acting statement: In the fact that this action is of a kind required by the rule I have a reason for doing it/ We may then say that social rules provide agents with reasons-for-acting, understanding by this that an agent's assertion of a social rule has the logico-normative function in his practical reasoning which has just been described.

12 I mean here the illocutionary act of asserting the rule a* a rule applicable to oneself, that is, the act of

subscribing^ to the rule as a guide to one's conduct. The assertion of the rule is the expression of a commitment-in-action, not merely the expression of a commitment-in-belief.

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Now it may be the case that the very same class of actions that are understood by one person to be required by a social rule is a class of actions that another person is motivated to

perform merely because he is under a social constraint to do so. By a 'social constraint' I mean a form of coercion imposed by a society, enabling it to direct or control a person's behavior. A constraint functions causally as a goad or stimulus to action, not as a guide to self-determined conduct. Unlike social rules, social constraints do not directly provide agents with reasons-

for-acting. This difference may be made clear in the following way.

If a social rule accepted by a person requires that anyone in circumstances C do an action under the intentional description 'X' or prohibits anyone's doing an action under the intentional

description 'Y', then the fact that an action-token falls under

description 'X' is a reason for the person in circumstances C to do it, and the fact that another action-token falls under description 'Y' is a reason for the person to refrain from doing it. On the other hand, if there is a form of social constraint that

places a person in circumstances C under coercion to do an action under the intentional description 'X' or to refrain from

doing an action under the intentional description 'Y', then the person may be motivated (moved, made, led, driven) to do the X-action or to refrain from the Y-action. But the first action is not done

by him because it falls under description 'X' and he does not refrain from the second because it comes under description 'Y\

Rather, he does the first because it falls under the description, 'doing this avoids unwanted consequences that would otherwise be imposed upon me by others,' and he refrains from the second because it comes under the description, 'doing this will involve

pain or other unpleasant effects intentionally brought about by the actions of others.' He has reasons-for-acting, but descriptions 'X' and 'Y' are irrelevant to those reasons-for-acting. Precisely the opposite is true of the person who freely and knowingly commits himself to the social rules: 'Do X' and 'Do not do Y.'

A social constraint that forces people to perform actions of a certain sort, therefore, is never identical with a social rule

requiring actions of that sort, however indistinguishable may be the external behavior of people who are acting in accordance with the constraint from the behavior of people who are

abiding by the rule. Whether a given form of social constraint

actually has the capacity to control the conduct of a group of

people is beside the point. As long as it is the case that the

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members of the group do not appeal to it as a ground for

asserting a reason-for-acting statement, it is not for them a social rule.13

Let us return to the methodological principle I am concerned with establishing as a basis for justifying social rules of distributive justice. What the principle states is that no social rule is justified unless it is justified to everyone whose conduct is included in its range, and that any social rule is justified when it is justified to everyone in that class. In the light of what has been said about reasons-for-acting, we may reformulate the principle thus: A social rule is justified if and only if everyone with respect to whom the rule can function as a reason-

for-acting is justified in adopting it as a reason-for-acting. And this means that a rule is justified if and only if each agent whose conduct falls under the intentional descriptions stated in the rule has good reasons to so commit himself that the rule occurs as the major premise in first-person practical syllogisms in his deliberation.

Under what condition would anyone have good reasons for

making such a commitment? I submit that it is the very same condition which has been designated the basic condition of

justice, namely, that each person have good reason to act in accordance with the social rules that are applicable to his conduct. Having a good reason to act in accordance with a social rule is having good reason to do certain kinds of action because

they are required by the rule. We have seen that a person who does not have such good reason and hence does not consider himself justified in acting on that ground may nevertheless do those same actions out of fear or dislike of the consequences of his refusal to comply with a social constraint. But in such cases he cannot (logically) appeal to the rule as a justification for doing the actions. He does the actions for another reason:

protecting his interests by avoiding the condemnation of others. Indeed, it is precisely because he has no good reason freely to commit himself to the rule as a reason-for-acting that he sees himself placed under a form of social constraint. According to his own principles of conduct, a society whose rules did not include the one in question would be judged by him to be pre- ferable to or better than the society in which the rule was included. This judgment would be made by him independently of

13 In terms of the theory of reasons-for-acting developed by Thomas Nagel, the social constraint cannot provide the 'motivational content' of a practical judgment, acknowledgment of which would justify an action. See T. Nagel, The Possibility of Altruism (Oxford, 1970), Ch. VIM and XI.

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the fact that, in the given society, he finds it reasonable nevertheless to do those actions that in fact are required by the rule.

To the extent that the foregoing is true of a class of persons whose conduct is covered by the range of application of a rule, to that extent the rule is not justified as binding them, even

though they might externally conform to it. For under this condition they conform to the rule not because it provides them with a reason-for-acting but because it provides them with a motive, when their other principles of action are taken into account. In case the rule were not actually enforced in their society, they would have neither a reason nor a motive to conform to it.

Similarly, to the extent that a rule operates in such a way as to give someone a good reason to (try to) prevent, hinder, or interfere with that operation, to that extent the rule cannot be justified to such a person. For one principle of deliberation in his practical reasoning would be: Do whatever I can to

oppose others' conforming to that rule. In these circumstances the person would have no reason to permit the rule to guide others' conduct, although he may be motivated from fear of retaliation not to do anything about the operation of the rule.

It follows that a social rule can be justified as a social rule

only if everyone has good reason either for accepting it as a

reason-for-acting or for acquiescing in others' acceptance of it as a reason-for-acting. And if everyone has such good reason, then it is justified. The conclusion to be drawn with regard to the rules of distributive justice is now clear. A rule of distributive justice is, by definition, a rule such that everyone has good reason either to conform to it or to permit others to conform to it. Thus every primary rule of justice, by the very fact of its

being just, is justified in the only way a social rule can be

justified. I now turn to the question of why and in what sense the

utility of social rules must be considered a necessary condition for their justifiability. We have seen that justice and utility may vary independently of each other. One possible set of rules for a given society may have more utility than another possible set, yet be less just in the way the goods produced by the

operation of the rules are distributed. Similarly, a set of rules that everyone has good reason to accept as reasons-for-acting and hence perfectly fulfill the condition of justice may yield a smaller aggregate of goods than another set of rules which only a subset of the population has good reason to accept as reasons-

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for-acting. It may be the case that whenever there is such a conflict between justice and utility, the most justified set of rules will be those that satisfy the condition of justice rather than those that maximize utility at the expense of justice. Even if this were so - and I shall later argue that it is so - we must nevertheless include utility as a necessary condition for the justification of rules. The reason lies in the nature of utility and its logical relation to the concept of a person's having good reason to accept a social rule as a reason-for-acting.

What does 'having good reason' mean in this context? It does not mean that a person has good reason to do an action of a certain kind, that reason consisting in the fact that the action is of a kind required by a rule. It means, instead, that a person has good reason for committing himself to the rule as a guide to his deliberation and conduct. What, then, can be the content of the reasons he has for so committing himself? I submit that the reasons must lie in the non-morally good consequences14 that he expects to accrue from his commitment to the rule under the condition that others commit themselves to the same rule. It is to be remembered that we are not here dealing with a person's moral duty, since his moral duties are defined by the social rules when the condition of justice holds. That is, the reason for his conforming to a rule, once it is established as part of a just system of rules in the society, is that he is obligated to do so by the duty of fair play. But this cannot be his reason for choosing one rule rather than another as a rule which shall specify what his moral duties are, assuming that the principle of reciprocity will be observed by others. Such a choice lies outside the rules, since it is a choice of the rules themselves.

We are concerned, therefore, with the consequences of having a rule operate in a society as a reason-for-acting on the part of everyone. Any individual member of the society will judge the desirability of such consequences on the basis of his interests and goals in life. These interests and goals may be short range or long range, narrowly prudential or altruistic. They may include the realization of an individual's moral ideals and the standards by which he judges acts of supererogation to be praiseworthy. But whatever may be the interests and goals, purposes and values which provide a person with good reasons for

14 Or if moral reasons are involved, they must be reasons grounded on moral ideals that go beyond the duty to be just. This will be explained further below.

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committing himself to social rules, there are two conditions of life that everyone will necessarily value: the condition in which he has the means, the capacities, and the opportunity to pursue his interests and achieve his goals, and the condition in which he can exercise freedom of choice with regard to both means and ends, both actions and standards of action. This immediately brings us back to the concept of utility as it was analyzed in the second part of this paper. There we saw that the utility of social rules is measured in terms of two criteria: (1) the efficacy of each individual's will in being able to carry out his intentions and plans, and (2) the number and variety of alternatives open to an individual's choice.

The conclusion I wish to draw is now apparent: Utility is a necessary condition for the justifiability of social rules because the concept of utilfty is built into the very notion of an individual's having good reasons for committing himself to social rules. It is necessarily the case that any person has good reasons for

committing himself to a social rule that would bring about an increase in his power to accomplish the goals he sets for himself and an increase in his freedom from interference by others. The greater the utility of the rules, the better (weightier) his reasons for accepting them.

Our methodological principle that a rule is justified if and

only if it is justified to everyone to whom it applies entails that, if everyone has good reason to abide by a rule, that rule is

justified simpliciter. At least some degree of utility, therefore, is a necessary condition for justifiability since everyone's hav-

ing good reason to abide by a rule entails that the rule has some

utility for everyone. By the same reasoning, a rule's having some

degree of utility for everyone is a logical consequence of its justice, the latter being precisely the condition under which

everyone has good reason to commit himself to it as a social rule.

The foregoing argument holds for some degree of utility, but not for maximum utility. We have seen that it is possible for maximum utility to conflict with justice. Thus although both

justice and some degree of utility are necessary conditions for the justifiability of rules, this cannot be true of both justice and maximum utility. Our final problem is this. If maximum

utility won't do, then what degree of utility must be conjoined with justice to give us a sufficient condition for the justifiability of rules, and why is such a condition sufficient? I shall now

argue that the sufficient condition must be a conjunction of

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justice and the maximum degree of utility that is consistent with justice.

It is clear that, given the fulfillment of the conditions of

justice by a set of rules, the greater the average net amount of goods15 per person is thereby produced, the better reason each beneficiary has to abide by the rules. However, the moment a greater average benefit is gained by a subset of the given population by way of a violation of formal or material justice, then there is not a good reason on the part of those in the remainder of the population who make the 'payment' for this

greater benefit to abide by the rules. No matter how great the extra utility might be and no matter how large a majority comprised the benefited subset, those in the remainder would not have good reason for making the sacrifice. Since it would be an unreciprocated sacrifice, they would be giving more than their due to the aggregate good produced and receiving less than their fair share.

It is necessarily the case that those who make the unreciprocated payment do not consider such a sacrifice on their part to be an altruistically worthy action. For if they so considered it, they would have good reason (in this instance, a moral reason of supererogation) for making the 'sacrifice.' It would be a fulfillment of their own autonomously chosen values or standards. Their action, though not required by a social rule, would nevertheless not be motivated by a social constraint. Thus we would not be dealing with a case of injustice and, a fortiori, not with a case of conflict between justice and utility. The situation we are considering must be such that some are benefiting at the expense of others, where 'expense' is measured in terms of a price that is unacceptable to those who are paying. The rules that require them to pay are, in their eyes, mere coercive pressures exerted upon them by those in power. Or in cases where their payment is forced upon them by others' violation of formal justice, they regard themselves as being unfairly, and hence unjustifiably, treated. From their point of view the actions of others, conceived as transgressions of the duty of fair play, can have no justification.

We are now in the position to see that whenever there is a conflict between justice and utility, justice must outweigh utility. The reason is that, as soon as a rule or an action

1S By 'goods' I here mean any conditions that increase either the efficacy of one's will or one's freedom of choice. The same interpretation is to be placed upon 'benefit' and 'utility' in this argument.

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fails to meet a condition of material or formal justice, at least one person will not have reason to conform to the rule as a rule or allow the action to be done. Therefore no set of rules whose operation involves a breach of justice can be justified to

everyone, and hence no such set can be justified simpliciter. Nevertheless we cannot say that justice alone is a sufficient condition for the justifiability of rules. For suppose it were possible for a society to adopt either of two systems of rules, each system being materially just and each being consistently applied (and hence formally just in its operation) but one system having greater utility than the other. Then everyone in the society would have better reason to accept the former than the latter. Since the goods produced by either system would be distributed

fairly to everyone, and yet more goods per person would be

produced by the one having the greater utility, it would be a

paradigm of irrationality for anyone to choose the one with less

utility.

Finally we see how it is that the conjunction of utility with

justice gives us a sufficient condition for the justifiability of a

system of social rules. If the principles of formal, retributive, and distributive justice were completely fulfilled by all the rules of a society and if those rules operated in such a way as to

yield greater utility for everyone than could be produced under

any alternative set of rules, then every member of the society would have the best possible reasons for placing himself under the governance of the rules. For each person would be better off in terms of his own goals in life and his ability to achieve them than he would be under any alternative system. We are

dealing with alternative systems, each of which is fully just. Since no one would be benefiting at an individual's expense un-

fairly in any of the alternative systems in question, and since he would not be able to gain an unfair advantage over anyone else, the only consideration relevant to the rational preference of one over the others would be utility. Thus with respect to each person taken separately, to maximize utility within the framework of justice is to have the best possible reasons for commitment to a given set of rules.

When this condition holds for every member of a society we may speak of the society's realizing an ideal harmony of

justice and utility. It is a condition in which every individual in the society has better reasons to abide by the given set of rules than to abide by any possible alternative set. In such a

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condition the given rules are more justified simpliciter than any alternative rules, since they are more justified to everyone to whom they apply than are any other rules that could apply to the same set of persons. It is in this way that justice and the maximum utility consistent with justice jointly comprise a sufficient condition for the justifiability of a system of social rules.

June, 1971

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Justice and Utility

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