Rawls J. Lectures on the History of Political Philosophy

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My outline of Mill’s argument in Chapter V on justice is as follows:

First part: ¶¶1–3: Statement of the problem.

Second part: ¶¶4–10: Six kinds of just and unjust conduct.

Third part: ¶¶11–15: Analysis of the Concept of Justice.

Fourth part: ¶¶16–25: (a) Sentiment of justice; and (b) Basis of rights in

(latter in ¶¶24–25).

Fifth part: ¶¶26–31: Conﬂict of precepts of justice settled only by the

principle of utility.

Sixth part: ¶¶32–38: Justice deﬁned as the rules necessary for the essen-

tials of human well-being.

2. Two general comments:

(a) In the ﬁrst part of the argument, Mill states the problem for Chapter

V as a whole as follows: The sentiment, or sense, of justice has great psy-

chological intensity and it is also in apparent conﬂict with the principle of

utility. So the question is: Can this sentiment nevertheless be accounted for

in ways consistent with the principle of utility? What Mill wants to show is

that it can. He argues that (a) given the kinds of things that we consider to

be just and unjust (second part), and (b) given our psychological makeup,

we can explain how our sense of justice arises and why it has the psycho-

logical intensity it does (fourth part). Mill states what he hopes to show in

V: ¶3: “If, in everything which men are accustomed to characterize as just

or unjust, some one common attribute or collection of attributes is always

present, we may judge whether this particular attribute or combination of

attributes would be capable of gathering around it a sentiment of that pe-

culiar character and intensity by virtue of the general laws of our emo-

tional constitution, or whether the sentiment is inexplicable, and requires to

be regarded as a special provision of Nature.”

Mill will try to show, of course, that the ﬁrst is true and that the inten-

sity of the sense of injustice can be accounted for consistent both with the

principle of utility and with our moral psychology. Mill sums up his argu-

ment in V: ¶23: “. . . the sentiment of justice appears to me to be the animal

desire to repel or retaliate a hurt or damage to oneself, or to those with

whom one sympathizes, widened so as to include all persons, by the hu-

man capacity of enlarged sympathy, and the human conception of intelli-

gent self-interest. From the latter elements [enlarged sympathy and intelli-

gent self-interest] the feeling derives its morality; from the former [the

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animal desire to repel hurt to oneself], its peculiar impressiveness, and en-

ergy of self-assertion.”

Thus, the sense of justice does not support an intuitionist view that jus-

tice is something sui generis. Rather, Mill holds that it ﬁts perfectly with a

utilitarian account of justice and a plausible psychological account of how

that sentiment arises. Justice is not an independent and separate standard

along side of and possibly having great weight contrary to the principle of

utility. Instead, it is derivative from it.

(b) The last two parts of the argument, the ﬁfth and sixth, exemplify the

kind of justiﬁcation Mill tried to give the principle of utility: namely, that

although there are precepts and standards that apparently conﬂict with that

principle, careful reﬂection shows that such is not the case. This supports

the idea we noted before: namely, that in his justiﬁcation of the principle of

utility Mill claimed it is the only moral principle with sufﬁcient generality

and the appropriate content to serve as the ﬁrst principle of a moral and

political doctrine.

This form of argument is nicely displayed in the ﬁfth part: ¶¶26–31, in

which he argues that the conﬂict between the various precepts of justice

can be resolved only by an appeal to a higher principle than any of those

precepts. He thinks only the principle of utility can, in the end, serve this

purpose. Thus, he says, for example, at V: ¶28 the following about those

who agree that an action is unjust, but disagree with each other about their

reasons for doing so: “...solong as the question is argued as one of justice

simply, without going down to the principles which lie under justice and are

the source of its authority, I am unable to see how any of these reasoners

can be refuted.” The ﬁnal ¶¶32 to 38 give the remaining parts of Mill’s jus-

tiﬁcation for his principle of utility.

§3. The Place of Justice in Morality

1. In the third part of Chapter V, Mill surveys various kinds of actions

and institutions that general moral opinion regards as just and unjust. Here

he is, so to speak, describing the data: his account of justice as derived from

utility and the principles of moral psychology must ﬁt the points he makes

in this survey.

Mill makes six points, summarized brieﬂy as follows:

(a) It is commonly thought unjust to violate, and just to respect, peo-

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ple’s legal rights (V: ¶5). (Here it is implicitly assumed that the law is not

unjust.)

(b) But since some laws may be unjust, people sometimes have been

given legal rights they ought not to have; and they are sometimes denied le-

gal rights they ought to have. Thus a second kind of injustice is taking or

withholding from people that to which they have a moral right (V: ¶6).

be good or evil, and unjust that they have what they don’t deserve—again,

good or evil (V: ¶7).

(d) It is unjust to break faith or to violate agreements; as well as to dis-

appoint legitimate expectations (V: ¶8).

(e) When rights are concerned, it is unjust to be partial, that is, to be in-

ﬂuenced by considerations that ought not to bear on the case at hand. Im-

partiality—being inﬂuenced exclusively by the relevant considerations—is

an obligation of justice on persons such as judges, preceptors, and parents

who have a judicial capacity (V: ¶9).

(f ) Closely allied to impartiality is equality in the sense of natural jus-

tice: that is, of giving equal protection to the rights of all (V: ¶10).

2. Following this survey of the data, Mill locates where the concept of

justice falls within his doctrine of utilitarianism as a whole. Consider the

schema in Figure 6.

The evaluative point of view is my term—not Mill’s—for the most gen-

eral concept of value: all forms of value that Mill recognizes, moral and

non-moral, fall under it. Mill’s classiﬁcation is not carefully presented. Still

it serves his purpose of distinguishing morality (right and wrong) from the

enjoyable and the admirable and the opportune, or expedient; and then, un-

der morality, of distinguishing justice from charity and benevolence.

Mill’s deﬁnition of morality, of right and wrong, goes like this. Right ac-

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His Account of Justice

Figure 6. Mill: The evaluative point of view.

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tions are actions that ought to be done, and wrong actions are actions that

ought not to be done, and regarding which the failure to act appropriately

ought to be punished in some way. They may be punished either by law, or

by public disapprobation (moral opinion), or by reproaches of conscience.

Here there are three very different kinds of sanctions. Considerations of

utility settle whether an action ought to be done or ought not to be done.

They also settle which sanction it is best to apply in different kinds of cases.

Here “reproaches of conscience” refers indirectly to moral education. Some

actions are best sanctioned by educating people so that their consciences re-

proach them for doing those actions.

Thus to summarize Mill’s idea: an action is wrong, say, if it is a kind of

action that not only has bad consequences when generally done, but its

consequences are so bad that it increases overall social utility to establish

the appropriate sanctions to ensure a certain degree of compliance (not

necessarily perfect compliance, as this might require draconian measures).

Now setting up these sanctions is always costly in utility terms. It involves

the costs of the police, law courts, and prisons. The sanctions of public

moral opinion and of conscience also involve disutilities, although less obvi-

ous ones. Nevertheless, the gain, on balance, in the case of wrong actions is

judged sufﬁcient to justify imposing them.

3. Mill thinks that what distinguishes the just and the unjust within the

wider category of rights and wrongs, e.g. from charity or beneﬁcence and

the lack of it, is the idea of a personal right. He says: “Justice implies some-

thing which it is not only right to do, and wrong not to do, but which some

individual [some assignable] person can claim from us as his moral right” (V:

¶15). By contrast, no individual, assignable person has a moral right to our

beneﬁcence or charity. The “perfect” duties of justice have correlative rights

in some assignable persons; and these persons have a valid claim against so-

ciety that their rights be guaranteed. Mill says later: “When we call any-

thing a person’s right, we mean that he has a valid claim on society to pro-

tect him in the possession of it, either by the force of law, or by that of

education and opinion. If he has what we consider a sufﬁcient claim, on

whatever account, to have something guaranteed to him by society, we say

that he has a right to it” (V: ¶24). “To have a right, then, is, I conceive, to

have something which society ought to defend me in the possession of. If

the objector goes on to ask why it ought, I can give him no other reason

than general utility” (V: ¶25).

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4. As I interpret Mill,

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, hav-

ing a right does not depend on the utilities (costs and beneﬁts) in a particu-

lar 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 calcula-

tions 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 over-

ridden, however, but only in very exceptional circumstances when the util-

ity gains and losses one way or the other are clearly very great. In these ex-

ceptional 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 in-

stitutions of the modern world, which I shall describe in the next two lec-

tures. 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 re-

spect 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

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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 “extraordi-

narily 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 op-

posed to a merely legal) justiﬁcation for demanding something: for exam-

ple, 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 depart-

ment of human affairs. See V: ¶¶32–33: here he says that we are not de-

luded 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 well-

being 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 es-

sence 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 hu-

man affairs” (V: ¶33). All this foreshadows Dworkin’s well-known distinc-

tion between questions of principle and questions of policy, as well as his

idea of rights as trumps.

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.

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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 le-

gal rights, the rights recognized by law and institutions, may be justiﬁed:

(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 or-

ganization. Or:

(b) By an appeal to moral rights, say, to those of political and social jus-

tice. 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 in-

dividuals. 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 cer-

tain 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 ap-

peal 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 indepen-

dently identiﬁable essential requirements of individuals on which those

rights are grounded.

In specifying the rights of justice there is no apparent reference to ag-

gregate 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).

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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 criterion

for identifying the ba-

sic 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).

This means that: Looking at least to the long run, maxi-

mizing social utility in the aggregative sense normally, if not always, re-

quires 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 exis-

tence. And the enforcement of these rules secures and protects for all per-

sons 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 co-

incide? Mill does not try to show in Chapter V that maximizing general so-

cial utility requires that all persons be secured the same equal rights of jus-

tice. 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 pro-

tection 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 util-

ity: II: ¶23], and in idea opposed to it” always coincides with it in the long

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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, permit-

ting 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 max-

imizes 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 de-

ﬁnes 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 func-

tion 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.

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 conscious-

ness 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 ev-

eryone has “an equal claim to all the means of happiness”; or that “all per-

sons have a right to equality of treatment”; but Mill adds, “except when

some recognized social expediency requires the reverse” (V: ¶36). Injustice,

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13. See H. S. Maine, Lectures on the Early History of Institutions (London: Murray, 1897),

pp. 399f.

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then, consists in part of those inequalities that are not justiﬁed by social ex-

pediency, by what is necessary to maximize social utility in the long run.

This second interpretation leaves us where we were.

4. We are left with two questions we must try to answer.

First, why is Mill so conﬁdent that the two parts of his criterion for

identifying the basic rights of justice do not diverge? Or, alternatively, why

is he so conﬁdent that the political and social institutions that realize the

principles of the modern world—principles with a content somewhat simi-

lar to the two principles of justice as fairness—are necessary to maximize

social utility (in the long run), given the historical conditions of that world?

And how does his answer rely on his conception of utility as spelled out in

Utilitarianism, II: ¶¶3–10?

Second, if our conjecture that Mill’s conﬁdence rests on certain rather

speciﬁc psychological principles of human nature is correct, then what are

these more speciﬁc principles, and how does Mill think they work in tan-

dem with his conception of utility to justify his principles of the modern

world? Once Mill’s doctrine is fully set out, we will have to ask whether it is

utilitarian in an appropriate sense. But for the time being I leave that aside.

Our ﬁrst aim must be to understand his view.

§6. The Desire to Be in Unity with Others

1. In the last lecture we considered the sense of dignity as a psychologi-

cal principle that supports Mill’s view of happiness as a way of life giving a

special place and priority to activities involving the exercise of the higher

faculties. We now turn to another principle in his psychology, the desire to

be in unity with others. This desire is taken up in III: ¶¶8–11 in connection

with what Mill calls the ultimate sanction of utilitarian morality. This in-

cludes the desire, or willingness, to act justly, and so is appropriately dis-

cussed at this point.

As I have said, Chapter III presents part of Mill’s moral psychology and

his account of how we can be moved to act from (and not merely in accor-

dance with) the principle of utility and the requirements of justice. In some

places this chapter is not very clear; but I think that we can make satisfac-

tory sense of it for our purposes.

One of Mill’s main points is that whatever our philosophical account of

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