Legal Theory Blog: Legal Theory Lexicon: Utilitarianism

Introduction

This installment of the?Legal Theory Lexicon?is an introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory.

Law students learn early on that classroom discussion of cases and statutes may begin with questions about?what the rule is?but is likely to turn to questions about?what the rule should be. And in most law school classrooms, analysis of the ?should? question is likely to go down one of two paths. The first path leads to?fairness?(which outcome in this case is fair to the parties; which rule will produce fair results in the future). The second path leads to?policy?(which rule will produce the best consequences in the future). Theories about fairness will be covered in future installments of the?Legal Theory Lexicon; today, we focus on arguments of policy and the theoretical question, ?What does it mean to say that a rule would produce the best consequences?? One answer to that question is ?utilitarianism,? a theory of enormous interest and influence. But what exactly is ?utilitarianism? and how might it be criticized or defended?

What is ?utilitarianism??

Just about every law student has some basic familiarity with the idea of utilitarianism, but unless you were a philosophy or economics major, you may have only a fuzzy notion of what this term really means. (And by the way, philosophers and economists use the term "utilitarian" in slightly different ways.)? In this history of moral philosophy, utilitarianism is strongly associated with two historical figures, Jeremy Bentham and John Stuart Mill. Mill?s views are important and deeply interesting, but they are also extremely difficult to sort out properly. Jeremy Bentham, however, provides a wonderful entr?e into the world of utilitarian moral and political philosophy. Law students should be especially fond of Bentham, because with only a bit of exaggeration, we can say than Bentham is the original disgruntled law student. Bentham, you see, was highly displeased with William Blackstone?s lectures on law at Oxford University. The common law, Bentham thought, was a disorganized body of archaic and dysfunctional rules. Common-law judges irrationally worshiped historical pedigree and had an immoral disregard of the consequences of legal rules.

Legal rules, Bentham believed, should be codified, and the codes should be written so as to produce ?the Greatest Good, for the Greatest Number.? That is, we should adopt those legal rules that will?maximize utility.

Consequentialism

Utilitarianism is just one member of a more general family of moral theories, which we might call ?consequentialism.? Consequentialism is the view that morality is about consequences of decisions. Utilitarianism is a particular form of consequentialism, but not the only form. Consequentialism is sometimes contrasted to?deontology, where deontological moral and political theories maintain that there are moral rules or principles, the violation of which cannot be justified on the ground that good consequences would result. Thus, a consequentialist might believe that one may tell lies, break promises, or injure innocent persons in order to accomplish a greater good, whereas a deontologist might believe that such actions are forbidden--even if good consequences will result. ?Both consequentialism and deontology are contrasted to?aretaic (or virtue-centered) moral theories.

Disambiguating Utilitarianism

Let?s pause for a moment. It turns out that ?utilitarianism,? the term, refers to many different interrelated theories. ?Utilitarianism? is ambiguous, and so we need to specify what we mean by utilitarianism by answering some questions:

• What is utility? That is, when we say, the greatest ?good? for the greatest number, what do we mean by ?good??


• What is scope of decision? That is, what should maximize utility, individual actions, general rules, principles, or something else?


• What does it mean to maximize utility?


• Does the rightness of an action depend on actual or expected utilities?

What is utility?

What is utility? What is a good consequence? Or to use a bit of jargon, what is a ?utile,? where the word ?utile? stands for a unit of utility? There are many possible answers to this question, but here are three versions of utilitarianism that give three different answers to this question:

Hedonistic Utilitarianism.?Bentham himself believed that utility was pleasure and the absence of pain. Suppose it were possible to measure and quantify pleasures and pains. We might then call one unit of pleasure a positive ?hedon? and one unit of pain a negative ?hedon.? Maximizing utility then, would simply be to maximize the sum of hedons. When we evaluated legal rules, we would engage in what Bentham called a ?hedonic calculus.?

Eudaimonistic Utilitarianism.?But is the good really just a matter of pleasures and pains? Many of Bentham?s critics argued that not all pleasures are good. Would you really want to live your life carrying around a device that constantly stimulated the pleasure center of your brain and suppressed the pain center? Rather than maximize pleasure, we might instead maximize ?happiness??eudaimonia in ancient Greek. Happiness may be related to pleasure, but it includes more abstract satisfactions. Climbing a mountain may involve much more pain than pleasure, but this activity may still contribute to the happiness of the climber.

Preference-Satisfaction Utilitarianism.?But if happiness seems a better candidate for ?good? than pleasure, there are difficulties with the proposition that the law should maximize ?happiness.? Happiness is notoriously difficult to define, and different persons have different views about what makes for a happy life. Moreover, happiness, like pleasure, is difficult to measure directly. For these reasons and others, some utilitarian theorists (especially economists) substitute ?preference? for happiness as the ?good? to be maximized. Preferences can be measured in a variety of ways. For example, we can ask individuals to simply rank order their preferences among various states of affairs, giving us an?ordinalutility function for the individual. Economists have devised a variety of techniques for translating these rank orderings (1st best, 2nd best, etc.) into numerical values. Thus, we can construct a?cardinal?utility function for an individual. Because preference-satisfaction is measurable, most economists use a preference-based conception of utility. And because of the influence of economics on legal theory, this form of utilitarianism has had the greatest impact on contemporary legal theory as well.

There are other versions of utilitarianism, but you get the idea.

Scope of Decision

So let?s assume we have a working conception of utility. Our next question is:?What exactly is the decision that is supposed to maximize utility??Is each individual action required to maximize utility? Or is it general rules that we are concerned with? Or principles? Or something else? I am going to call this question, the?scope of decision?question. Different forms of utilitarianism give different answers to the scope of decision question. Let?s take a quick look at some of the possibilities:

• Act Utilitarianism.?(abbreviated?AU) The first possibility is that each individual?action?should maximize utility. Given this answer to the scope of decision question, we might formulate utilitarianism as follows:

  Act so that your action maximizes utility as opposed to any alternative action that you could perform.

  Suppose, for example, that you must decide whether to break or keep a promise to have lunch with a friend. You would ask yourself, ?Would keeping my promise produce greater utility than breaking it?? Thus, you would consider the costs of your decision, such as: (1) your friend will be hurt, (2) you will miss out on the satisfaction of having lunch with your friend, and (3) your friend may not trust your promises in the future if you break this promise. And you would consider the benefits, such as: (1) you will be able to use a free ticket to go to the baseball game if you break the promise, and (2) you will not have to listen to your friend's boring stories. You then add the utilities for each action, and choose the action that produces the greatest utility.

• Rule Utilitarianism.?(abbreviated?RU) The case of promises reveals a potential problem with AU. If I calculate utilities every time, I decide whether to break or keep a promise, my promises may not be viewed by others as trustworthy. And if my promises are not trustworthy, then I will not be able to use the institution of promising to coordinate my behavior with that of other people. But the ability to coordinate through promises produces good consequences. One way out of these difficulties is to shift the scope of decision from individual actions to general rules. Thus, although the individual actions of breaking my promise might maximize utility as compared to the alternative, the general rule, ?keep your promises,? might produce more utility than the alternative rules, such as ?keep your promises, but only when there is nothing better to do.?

Rule utilitarianism itself has two important subvariants, and we can add a third, specifically legal, variant as well:

Ideal Rule Utilitarianism?(IRU) says that you should act in accordance with the set of ?ideal rules? that would maximize utility if everyone were actually to act in conformity with the rules.

Actual Rule Utilitarianism?(ARU) says that you should act in accord with the set of ?actual rules? that would maximize utility if it were adopted as the moral code of a real society in which persons will sometimes fail to live up to the requirements of the moral code.

Legal Rule Utilitarianism?(LRU) responds to an obvious fact about the application of utilitarianism to the law. The law is concerned with individual acts (e.g. an individual judge's decision in an individual case at the trial level), but it is also concerned with rule-creating acts (e.g. the decision of a legislator to vote for or against a given bill). So it is reasonable for legal theorists to advance a more specialized version of utilitarianism, which we can call "Legal Rule Utilitarianism," as a theory about legal rules. Notice, however, that LRU will have a set of variants. So we can distinguish the utility of an?ideal system?of legal rules (with perfect compliance) versus an?actual system?of legal rules (with disobedience and enforcement costs) versus a?single nonideal actual rule?(where the status quo system of rules is assumed and we look at the utility of changing only a single rule).

• Utilitarian Generalization?(abbreviated?UG) There is one more answer to the scope of decision problem that is worth mentioning. UG is the view that one should act on the basis of principles (or maxims) that would produce the greatest utility if they were generalized (e.g. we acted upon by everyone. Because this form of utilitarianism, plays very little role in legal thought, I won't discuss it further.

What does it mean to maximize utility?

There is yet another ambiguity about utilitarianism that is really important to its application. What does "the?greatest?good for the?greatest?number" mean? Alternatively, what does it mean tomaximize?utility? This is a really complex topic. Right off the bat, it has both an intrapersonal and interpersonal dimension. To simplify, I will focus on the interpersonal problem. Let's assume we have utility values for individuals. What do we do with them? You may think the answer is obvious, "Add them up!," but it isn't so easy. Here are some alternatives:

• Classical Utilitarianism.?"Add them up" is the classic answer. That is, we simply sum individual utilities. Sometimes this is called the "utilitarian social welfare function" by economists.?This can lead to some confusion as this is what some economists think the term "utilitarianism" means.
• Average Utilitarianism.?But we could average rather add. That is, we could take the sum of individual utilities and divide by the number of persons.?You, gentle reader, undoubtedly have run way ahead of me and seen that this will make a big difference to things like population policy.?We might have a choice between a larger population with a lower average utility but a greater sum, and a smaller population, with a higher average, but a lower sum.
• Bernoulli-Nash?John Nash (of?A Beautiful Mind?fame) is associated with another alternative. We might multiply rather than add utilities. I won't go into the reasons why this might be a good idea, except to tell you that multiplication makes more sense if we our utility values for individuals are relative rather than absolute.

Actual or Expected Utilities

We rarely know with certainty what consequences will result from actions or rules. Utilitarianism might look to the actual consequences of rules. If so, then some actions that looked right at the time will turn out to be very wrong, because of some unanticipated effect of the action. The alternative is to say that the rightness or wrongness of an action depends on its expected consequences. Given the phenomenon of uncertainty, a given action may lead to several different possible future states of the world. If we could assign a probability to each state, then the expected consequences of a given action could be calculated by taking the product of the utility value for the state and the probability that the state will coming into being. Take the following choice situation:

Action A has a 50% chance of producing a utility of 10 and a 50% chance of producing a utility of 0. Since .5*10 + .5*0 = 5, the expected utility of action A is 5.?

Action B has a 90% chance of producing a utility of 0, and a 10% chance of producing a utility of 100. Since .9*0 +.1*100 = 10, the expected utility of action A is 10.

And since 10 > 5, action B has the greater expected utility. Of course, it may turn out that action B produces a utility of zero, but if what counts is expected utility, then this?ex postfact is irrelevant to the?ex ante?moral evaluation of actions A and B.

Some Objections to Utilitarianism

Utilitarianism is an enormously controversial view, with adamant defenders and critics. It is worth our while to examine a few of the most prominent objections, but we will only be sliding across the surface of a deep and complex topic.

The Rights Objection.?Utilitarianism evaluates actions on the basis of the consequences they produce, and therefore does not?require?respect for moral or legal rights. The literature is full of hypotheticals in which utilitarianism is alleged to justify intuitively unattractive rights violations. Suppose, for example, the slavery is contrary to a moral right, but that in a particular society, enslaving a small minority of the population would produce greater utility for the majority than it produced disutility for the enslaved minority. If these facts were true, the utilitarianism seems to say that slavery would be morally required. But most people would disagree, saying that slavery cannot be justified simply because it produces good consequences: ?We have a moral right not to be enslaved." Utilitarians are likely to get quite huffy when this argument is made. They may say, ?But slavery does?not?produce good consequences. It produces bad consequences, and that?s why we think slavery is so awful.? And then the critic might say, ?But suppose slavery did produce good consequences, what then?? You can see how this debate could go on for quite some time before we made any progress. Notice, however, that act utilitarianism seems more open to the rights objection than does rule utilitarianism. Rules against rights violations may produce good consequences, even if individual acts of rights violation could be justified on utilitarian grounds.?

The Self-Defeating Objection. Another objection is that utilitarianism may be self-defeating or self-effacing. Suppose that everyone tried to deliberate as a utilitarian. It might turn out that nonetheless they would make decisions that led to bad consequences. For example, some people may be extremely bad at predicting the consequences of their actions. Others may systematically overestimate their own utilities while systematically underestimating those of others. One answer to this objection is famously associated with the British moral philosopher R.M. Hare. Hare proposed a two-level theory of morality. Utilitarianism, Hare argued, operates at the level of detached moral theorizing. Ultimately, an action is deemed good or bad based on its utility. But ordinary moral deliberation, Hare continued, operates at a different level. Ordinary folks should deliberate on the basis of moral rules of thumb, such as keep your promises, don?t steal, and don?t enslave your enemies when you vanquish them. As you might guess, there are many criticisms of two-level theories, but you get the general idea.

The Impossibility of Interpersonal Utility Comparisons.? This one gets very complicated, very fast. So let me just state the general idea. Suppose we are trying to add up individual utilities for everyone in society. How do we come up with values that are truly comparable across persons. That is, how do we know that X amount of my pleasure or happiness or preference satisfaction is equal to Y amount of yours? This problem is especially vexing for economists (who need to be able to translate utility into values that are susceptible of mathematical treatment).? One solution is simply to limit the conclusions of economics to cases that involve making everyone better off or that make at least one person better off and no one worse off?hence obviating the need for interpersonal comparisons: for more on this, see?Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks.

The Demandingness Objection.? The list of objections goes on and on, but let?s do just one more. It is frequently argued that utilitarianism (especially act utilitarianism) is?too demanding.?Why?

Imagine that it is your day off. You have two choices. You can either read a novel or your can work for Oxfam. If you read a novel, you will produce some positive utility?your enjoyment of the novel. But if you worked for Oxfam, you would save 1.7 starving children in the third world from death. Well, of course, you should work for Oxfam. But the problem is that it will always be the case that I could produce more utility for others if I dedicated my time to helping the least fortunate. Utilitarianism seems to require me to work for Oxfam after work and to stay up as late as I possibly can. In fact, I may be able to maximize utility by neglecting my health and family. If this is true, many would find utilitarianism too demanding and hence implausible.? There are various answers to this objection, but some utilitarians embrace demandingness, arguing that most affluent persons do have very demanding moral obligations.

Utilitarianism and Legal Theory?

In the law, utilitarian thinking is most associated with normative law and economics. It is useful to review the various forms of utilitarianism in this context:

--Normative law and economics uses?preferences?rather than pleasure or happiness as its concept of utility.?

--Normative law and economics usually assumes that the system of legal rules (as opposed to individual actions or ideal moral rules) provide the relevant scope of decision.

--Normative law and economics usually assumes that utilities are to be summe?although this issue is rarely addressed in any detail.

--Normative law and economics usually assumes that it is expected utilities, rather than actual utilities, that are to be maximized.

If you are interested in the relationship between utilitarianism and legal theory, you will definitely want to check out Kaplow and Shavell?s book,?Fairness versus Welfare. Kaplow and Shavell don?t take a stand on the question as to whether utilities should be summed, multiplied, or combined in some other way, but they do offer a trenchant defense of consequentialism as well as an attack on nonconsequentialist approaches to legal theory.?

Related Legal Theory Lexicon Entries

Links to Other Resources on the Web

Bibliography

The literature on utilitarianism is vast, but here are some good starting points:

(This post was last modified on November 27, 2011.)

Source: http://lsolum.typepad.com/legaltheory/2011/11/legal-theory-lexicon-utilitarianism.html

aaron hernandez portland news portland news tibetan mastiff manny pacquiao pacquiao blanche

Drought puts damper on tree farmers' Christmas (AP)

NEW CANEY, Texas ? Dry, brown grass crunches underfoot as David Barfield walks through his 45-acre Christmas tree farm pointing at evergreens covered with brittle, rust-colored needles.

"Dead tree, dead tree, dead tree," he says, shaking his head at dry timber he hoped would be chopped down by parents with excited children.

Instead, Mother Nature delivered the Grinch in the form of a historic drought that has killed thousands of trees across Texas and Oklahoma. Some died of thirst. Others were destroyed by wildfires, whose breadth and intensity were magnified when wind swept the flames across parched landscape.

Most farmers plan to import trees from North Carolina to supplement any they have left, said Marshall Cathey, president of the Texas Christmas Tree Growers Association. They say they aren't planning to raise prices because consumers are reluctant to pay more than $40 or $50 for a Christmas tree, especially in the poor economy.

But families hoping for a homegrown tree to cut down will have a harder time finding one, and dozens of farmers are struggling. Possibly most painful for these growers are the deaths of the youngest saplings, which guarantee the drought's effect will be felt for years to come.

"It's depressing, it really is," said Barfield, 53. "This was going to be our retirement."

He and his wife, Karen, 49, bought the farm about six years ago with dreams of retiring from Texas' oil fields and spending their final years peddling the Christmas spirit with fresh-cut trees, marshmallow roasts and hayrides in a red-and-white sleigh. They planted 20 acres of evergreen trees.

Now, barely two years after Karen Barfield retired to work the farm, she has returned full-time to her job selling explosion-proof enclosures to the oil industry. David Barfield has increased his hours doing part-time electronic work. Instead of selling some 400 homegrown trees as they do in a good year, they will be lucky to sell 100 ? nearly all Frasier firs brought in from North Carolina.

And they're not certain that will be enough to cover their property taxes. Barfield says he can only charge $50 for a North Carolina fir ? just $10 more than he pays for them.

"Eight (trees) died within the last week," Barfield said, continuing his walk through his farm in New Caney. "These were all green a week ago. The drought has been hurting us real bad."

But at least he and his wife have other income. Others have not fared as well.

"We lost probably 90 percent of our trees," said Jean Raisey, 79, who's run a 10-acre Christmas tree farm in Purcell, Okla., with her husband since 1985. The other 10 percent are dying now, she said.

"We've had to hire a contractor and pull all the dead and all the live trees," she said. "And we're out of business."

Cathey, who owns the 50-acre Elves Farm in Denison, Texas, a town about 75 miles north of Dallas, said he has spoken to many of Texas' 120 Christmas tree farmers in recent months. Long stretches of triple-degree heat, he said, harmed the trees as much as the lack of rain.

And the drought has been bad. In Texas, less than 11 inches of rain fell this year compared to an annual average of almost 24 inches. In Oklahoma, there has been about 18.7 inches of rain this year compared to a long-term average of 30 inches. All trees have been hard-hit by the lack of rain.

"There's hundreds of thousands of trees dying," said Travis Miller, a drought expert at Texas A&M University.

"We're looking at a ... one-in-a-500-year kind of drought, and so it's weeding out the ones that can't survive this kind of extreme conditions," he added.

For evergreens, which usually prefer wetter, more temperate climates, the struggle may be greater than for drought-resistant plants, such as the juniper brush, although it too is dying in Texas this year.

Farmers who planted evergreens native to Afghanistan ? and accustomed to a desert climate ? have had greater success than those who planted trees from the northeast United States. Those who irrigated also are having more modest success, although that costs ? about $1,200 a month on a midsized farm.

Jan Webb, owner of the Double Shovel Christmas Tree Farm in West Texas ? one of the driest areas of the state ? said her Afghans have done well. Of the 400 she planted last year, only about 50 died. On the other hand, none of the 400 Leyland Cypress she planted survived.

It takes three to five years to grow an evergreen to a marketable size. Webb planted her first tree about three years ago and was hoping to open for the first time next Christmas, but with the drought, it will be at least two years before she has a homegrown tree to sell.

"We can't sell what's from our farm right now because they're too small," she said.

Yet the farmers are determined children will be able to see trees cut for Christmas ? even if they're North Carolina firs liberally placed in Texas soil. There will be hayrides and picnics. Christmas carols will ring out and colorful lights will cover the bare branches.

Bah humbug to the drought, they say.

___

Ramit Plushnick-Masti can be followed on Twitter at https://twitter.com/RamitMastiAP

Source: http://us.rd.yahoo.com/dailynews/rss/topstories/*http%3A//news.yahoo.com/s/ap/20111125/ap_on_re_us/us_food_and_farm_christmas_trees

conrad murray where do i vote wheel of fortune today show smokin joe conrad murray verdict tappan zee bridge