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4. As I interpret Mill,8 the possession of rights is specified by the rules of right and justice that are generally applicable. Often, but not always, these are legal rules that have an appropriate justification. But, for Mill, having a right does not depend on the utilities (costs and benefits) in a particular case. Although rights in a particular case may be overridden, this can happen only in very unusual circumstances; this is especially the case with the basic rights of justice.
Indeed, the instituting of rights is designed to inhibit, indeed to make unnecessary, our calculating utilities in particular cases. The security that basic rights provide would be endangered if the belief were widespread that a right could be violated for the sake of small gains that such calculations might reveal.
To sum up: Having a right does not depend on the balance of utilities of particular cases, but rather on the rules (legal or otherwise) of justice and on their utility as rules when generally enforced. A right may be overridden, however, but only in very exceptional circumstances when the utility gains and losses one way or the other are clearly very great. In these exceptional circumstances, the rule against being guided by utilities in the particular case is suspended.
§4. Features of Moral Rights in Mill
1. For Mill, moral rights have, it seems, three features. This is especially true of the political and social rights that Mill regards as essential for the institutions of the modern world, which I shall describe in the next two lectures. Here I draw on his account in V: ¶¶16–25, 32–33.
One feature is this: in order for there to be moral rights, say the rights of justice, there must be reasons of special weight to support them. These reasons must be weighty enough to justify demanding that other people respect those rights, by the force of law if necessary. Therefore these reasons must be of sufficient urgency to justify setting up the requisite institutional machinery to secure that end.
As Mill puts it: these reasons connect with “the essentials of human
8. Here I follow Fred Berger in Happiness, Justice, and Freedom (Berkeley: University of California Press, 1984), p. 132.
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well-being” (V: ¶32), with “the very groundwork of our existence” (V: ¶25). Again, these reasons are founded on the kinds of utility that are “extraordinarily important and impressive” (V: ¶25).
2. A second feature of these moral rights is their peremptory character: by this I mean that for Mill, to have such a right is to have a moral (as opposed to a merely legal) justification for demanding something: for example, that our liberty be respected by others, and this by legal sanctions, or by general moral opinion, whichever is appropriate. Although these rights are not absolute—that is, they can sometimes be overridden, and then often by other such rights, as rights may conflict with each other—they cannot, as we have seen, be overridden except by reasons of very special weight and urgency.
Thus, for example, Mill suggests that the rights of justice cannot be overridden by reasons of policy, or the best way of managing some department of human affairs. See V: ¶¶32–33: here he says that we are not deluded in thinking “that justice is a more sacred thing than policy, and that the latter ought only to be listened to after the former has been satisfied” (V: ¶32). This remark seems to state something like the priority of basic justice. So also does the remark Mill adds a bit later: “Justice is a name for certain classes of moral rules, which concern the essentials of human wellbeing more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life” (V: ¶32). Mill goes on to say that the essence of justice is that of a right residing in an individual, and this testifies to and implies this more binding obligation. The moral rules of justice which forbid us to interfere wrongly with one another’s freedom are: “. . . more vital to human well-being than any maxims, however important, which only point out the best mode of managing some department of human affairs” (V: ¶33). All this foreshadows Dworkin’s well-known distinction between questions of principle and questions of policy, as well as his idea of rights as trumps.9
A third feature of the moral rights, especially those of justice, is that the claims they validate have force against existing law and institutions. When these arrangements deny those claims, the reform of law and institutions should be considered and, depending on circumstances, may be justified.
9. See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978), pp. xi, 184–205.
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3. Now we have the following problem: there are two ways in which legal rights, the rights recognized by law and institutions, may be justified:10
(a)By an appeal to a suitable principle of policy, or to a principle of the common good, and perhaps also to the principle of efficient or effective organization. Or:
(b)By an appeal to moral rights, say, to those of political and social justice. These moral rights we think of as identifiable prior to and independent of the specific nature of the existing legal institutions. Rather, we ascertain what these rights are by considering the basic needs and requirements of individuals. These needs and requirements ground people’s claims to the rights of justice. They are referred to by Mill when he appeals to “the very groundwork of our existence” (V: ¶25), the “essentials of human well-be- ing” (V: ¶32), and by other similar locutions.
Now these two kinds of justification are quite different: consider the case of Congress thinking about setting up a price support system for certain crops, to encourage their production, to smooth price changes, and the like. This is a matter of policy. No one supposes that farmers have a basic moral right to a system of price supports. Contrast this with the basic rights, e.g. liberty of conscience and rights of suffrage. Matters of policy may be the right or the best thing to do in certain circumstances; but legally protecting the rights of justice is a different matter.
The point is this: the policy of price supports (in the example above) is justified by the appeal to the well-being of society as a whole, or by an appeal to the common good; whereas the justification of laws by reference to the rights of justice offhand is not. Rather, Mill’s view refers to the independently identifiable essential requirements of individuals on which those rights are grounded.
In specifying the rights of justice there is no apparent reference to aggregate social well-being. When Mill identifies the essentials of human well-being, or the elements of the groundwork of our existence, he does not do so via the idea of maximizing total utility. He looks to individuals’ basic needs and to what constitutes the very framework of their existence. Yet, Mill also says that if he is asked why we ought legally to protect the rights of justice, he can give “no other reason than general utility” (V: ¶25).
10. This distinction is found in H. L. A. Hart in “Natural Rights: Bentham and John Stuart Mill,” in his Essays on Bentham (Oxford: Clarendon Press, 1982), pp. 94f. I am much indebted to this essay.
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§5. Mill’s Two-Part Criterion
1.Mill seems committed to a two-part criterion11 for identifying the basic rights of individuals, which I interpret here as the basic rights of political and social justice. The two parts are:
(i) First part: we look to the essentials of human well-being, to the groundwork of our existence: these essentials and groundwork (apparently) justify moral rights apart from aggregative considerations. And:
(ii) Second part: we look to those general rules the enforcement of which is especially productive of social utility in the aggregative sense, and hence tend to maximize that utility.
If Mill’s account of rights is to avoid contradiction, it must be the case that the two parts of Mill’s criterion always happen to converge (barring freakish cases).12 This means that: Looking at least to the long run, maximizing social utility in the aggregative sense normally, if not always, requires setting up political and social institutions so that legal rules specify and enforce the protection of the basic rights of justice. These rights are identified by what constitutes the very groundwork of our individual existence. And the enforcement of these rules secures and protects for all persons equally the essential elements of human well-being, which elements ground the rights of justice.
2.But how can we know that the two parts of Mill’s criterion always coincide? Mill does not try to show in Chapter V that maximizing general social utility requires that all persons be secured the same equal rights of justice. Why can’t it happen that greater social utility is achieved by denying a small minority certain of the equal rights? They need not be denied the moral rights of justice entirely; but why must everyone enjoy the equal protection of all the moral rights of justice? On what basis is Mill so confident that everyone should have the same equal rights, which are to be secured equally?
Observe that Mill says that common opinion held the view that the just, while “generically distinct from . . . the expedient [or aggregate social utility: II: ¶23], and in idea opposed to it” always coincides with it in the long
11.Hart, “Natural Rights,” p. 96.
12.We don’t require that they necessarily converge.
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run. On this see his remarks in V: ¶¶1–2. This suggests that in Chapter V he is mainly concerned with two things:
One is to give an account of the psychological intensity (or strength) of our sense of injustice consistent with the principle of utility; and
The other to explain how it is that, on a utilitarian view, there can be certain moral rights and rights of justice that society must protect, permitting violations only in the most exceptional cases.
My problem, however, and Hart’s, is: we don’t see how, from what has been said, we could know that in general, enforcing equal rights for all maximizes utility as Mill understands utility. To assure this, mustn’t we always make rather special assumptions? If so, what are these assumptions? And in particular, which special assumptions is Mill making? Identifying these defines part of our task in understanding Mill. I shall come back to this.
3. Incidentally, it is no help to appeal to Bentham’s maxim “everybody is to count for one, and nobody for more than one.” The reason is that:
(a)Taken one way, it is simply a rule that follows from how utility is to be measured: namely, the equal utility of different people is to be weighed equally in arriving at the total sum of social utility. The social utility function is simply a linear sum of utilities (one for each person) with identical weights for all persons. On this, see the footnote to V: ¶36. H. S. Maine’s Brahmin contradicts this rule when he says that the utility of a Brahmin is to be weighed 20 times that of those who are not Brahmins.13
This interpretation of “everybody [each] to count for one” is simply a truism about measuring and summing social utility. It says pleasures are pleasures; they are to be weighed the same no matter in whose consciousness they occur. It is equal justice to equal pleasures: but that is just what measuring is! Compare this to measuring an amount of water: a quart in one reservoir is equal to a quart in another. But this doesn’t address the question of why equal rights must be secured for everyone. Mill’s answer here seems oddly unaware of this question. I don’t know why.
(b)Taken in another way, “everybody to count for one” means that everyone has “an equal claim to all the means of happiness”; or that “all persons have a right to equality of treatment”; but Mill adds, “except when some recognized social expediency requires the reverse” (V: ¶36). Injustice,
13.See H. S. Maine, Lectures on the Early History of Institutions (London: Murray, 1897), pp. 399f.
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