Consequentialism and utilitarianism

The clearest expression of consequentialism is found in utilitarianism; a philosophy grounded in individualist ideology. However, underlying the utilitarian view is a rejection of the

25 _{Upjohn Co v United States, 449 US 383, 393(1981) Justice Rehnquist.}

26 _{Edward J Inwinkelreid, `Questioning the Behavioral Assumption underlying Wigmore an Absolutism} in the Law of Evidentiary Privileges’ (2004) 65 University of Pittsburgh Law Review 145, 153 citing Kekewich J in Williams v Quenbrada Railway, Land and Copper Co [1895] 2 Ch 751, 754.

27 _{See Ray Patterson ‘Legal Ethics and the Lawyer’s Duty of Loyalty’ (1980) 29 Emory Law Journal 909,} 909 citing Lord Brougham, (1821) 2 Trial of Queen Caroline 8. ‘An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and cost to other persons, and amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.’ Lord Brougham later acknowledged that the statement was not so much a statement of professional duty as it was a political threat to George 1V, in that he would reveal the secret marriage of George 1V to a Roman Catholic, if the ministers did not withdraw the divorce bill. Ten years later he presided in the Court of Chancery.

28 _{This can be contrasted with the role of the lawyer in a socialist state, where there is no division of duty} between the judge, prosecutor and defence counsel, and the defence counsel is required to assist the prosecution in finding the truth in the case.

29

Robert P Lawry, above n 23, 657. This can be contrasted with Monroe H Freedman, ‘The Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions’ (1996) 64 Michigan Law Review 1469: ‘I favoured the view that the lawyer who knows that the client intends to lie on the witness stand should make good faith efforts to dissuade the client from committing perjury, but if unsuccessful in those efforts, the lawyer should maintain confidentiality and should present the client’s testimony at trial in the ordinary way.’ (emphasis added).

proposition that an individual’s pursuit of self-interest will necessarily bring about the realisation of the common good. Consequentialism holds that the moral value of an act must be determined from its consequences. Being rooted as it is in individualism its conception of what is good is predicated on what is good for the individuals qua individuals rather than on what may be good for society at large.30 The emphasis is on the consequences of an action, thus the consequences, not the intention of the actor, determine whether an action is right. Under consequentialism rights are always subject to question. The utility of the consequences aim is for the greatest happiness for the greatest number. A right must be justified by reference to the common good. Moreover, even when the public accepts a right believing its exercise promotes the good, the right is not absolute.31 Rights can be evaluated and decisions can be made as to which rights should be permitted, expanded, curtailed or given priority based on their contribution to the common good.32

Two prominent early exponents of the utilitarian theory are Jeremy Bentham and John Stuart Mill, both committed to nineteenth century individualism. However, they opposed two key premises of Locke and Smith’s theory. First, in the economic sphere, they rejected the proposition that the pursuit of individual self-interest necessarily leads to the common good.33 And second, in the political sphere, they opposed Locke and Smith’s minimalist government; they saw a role for government in harmonising personal and societal interests through legislation.

3.6.1 John Stuart Mill’s economic theory diminishes the role of Smith’s ‘invisible hand’

Mill’s economic theory centred on production rather than on distribution. The economic laws govern the sphere of production and the most efficient means of production was the free market; in this sphere there are no questions of morality, the pursuit of self-interest results in moral or right actions. ‘Mill’s separation of the realm of production from that of distribution undermines the proposition that the pursuit of individual self-interest coincides with the realization of the common good.’34 Moral and political considerations were in Mill’s theory, relegated to the sphere of distribution.

In Mill’s sphere of distribution where no “invisible hand” is at work, the pursuit of self-interest does not necessarily lead to the greatest happiness for the greatest number. In those instances in

30 _{Michel Rosenfeld, above n 18, 507.} 31 _{Ibid 480.}

32 _{Ibid 481.} 33

Ibid 475. 34 _{Ibid 476.}

which the good is not enhanced, the individual or some authority acting in the public interest must restrict the pursuit of self-interest.35

For utilitarians their overriding principle of morality required all actions to be measured by their effect on the total distribution of goods within society. The morality and rightness of every action is determined by the principle that holds that the good consists in the promotion of the greatest happiness for the greatest number. Thus the public interest is some form of aggregation of private interests, or in the words of Bentham it ‘is vain to talk of the interests of the community, without understanding what is in the interests of the individual.’36

Nonetheless, utilitarianism raises a number of difficult problems.

Determining the proper equilibrium between the private and public interest and translating the abstract principle of the common good into concrete social goals tailored for particular socio- political contexts are troublesome. Moreover, by reducing the normative value of every action to its consequence, utilitarianism fundamentally threatens certain basic rights that underlie both an efficient free market economy and the philosophies of Locke and Smith.37