Consequentialism versus Justice

by Tim Harding

There are several objections to consequentialism as a basis for morality.  Some of these objections are of considerable scholarly interest to philosophers; but I think the most powerful objection is that adherence to consequentialism can in some cases result in injustice.  My thesis is that justice is an important factor that needs to be taken into account in ethical theories.  I also intend to argue that the best response to this objection, which is to attempt to treat justice as an intrinsically valuable consequence of actions, is currently unworkable.

Consequentialism is traditionally a set of ethical theories where the morality of an act should be judged solely by its consequences.  An act is required just because it produces the best overall results (Shafer-Landau 2012: 119).  Two of the key words here, in my view, are ‘solely’ and ‘overall’.  Consequentialism solely takes into account the overall effects of an act on the population as a whole.  Specific effects on justice or the rights of individuals or minorities are not taken into account.

The most prominent version of consequentialism is act utilitarianism, where well-being is the only thing that is intrinsically valuable (Shafer-Landau 2012: 120).  The principle of utility states that ‘an action is morally required just because it does more to improve overall well-being than any other action you could have done in the circumstances’ (Shafer-Landau 2012: 120).  Whilst utilitarianism is not the only form of consequentialism, for my current purposes I will regard an objection to utilitarianism as an objection to consequentialism.

In its broadest sense, justice may be defined as fairness: a proper balance between competing claims or interests (Rawls 1971: 10-11).  Russ Shafer-Landau (2012: 145) says that to do justice is to respect rights, which is arguably similar in meaning to properly balancing competing claims or interests.

In stark contrast to act utilitarianism, John Rawls has described justice as ‘the first virtue of social institutions’ (Rawls 1971: 3).  He argues that:

Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.  For this reason justice denies that the loss of freedom for some is made right by a greater good shared by other.  It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many (Rawls 1971: 3-4).

Indeed, according to Rawls (1971: 4) justice is uncompromising: an injustice is tolerable only when it necessary to avoid an even greater injustice.

The conflict between consequentialism and justice can be illustrated by some thought experiments, starting with the well-known trolley problem, the modern version of which was first described by Philippa Foot (1967: 8) as follows:

Suppose that a judge or magistrate is faced with rioters demanding that a culprit be found for a certain crime and threatening otherwise to take their own bloody revenge on a particular section of the community. The real culprit being unknown, the judge sees himself as able to prevent the bloodshed only by framing some innocent person and having him executed. Beside this example is placed another in which a pilot whose airplane is about to crash is deciding whether to steer from a more to a less inhabited area. To make the parallel as close as possible it may rather be supposed that he is the driver of a runaway tram which he can only steer from one narrow track on to another; five men are working on one track and one man on the other; anyone on the track he enters is bound to be killed. In the case of the riots the mob have five hostages, so that in both examples the exchange is supposed to be one man’s life for the lives of five.

Foot (1967: 8) reasonably asks why we should say that the driver should steer for the less occupied track, while most of us would be appalled at the idea that innocent man should be framed and executed.  Yet in both cases, the act is done for utilitarian reasons, to maximise overall well-being.  The interests or rights of the individual who is to be killed are rated no higher than anybody else in this scenario.  The dead individual is counted merely as a pro-rata contribution to the overall aggregated well-being.  Five lives are worth more than one life, regardless of the circumstances.  The end justifies the means.

This problem has been adapted and analysed in some detail by Judith Jarvis Thomson (1985: 1395-1415).  Thomson argues that whilst most people would say that is morally permissible to steer the trolley tram away from the five men on one track towards one man on the other track, they would not regard the killing of one person to save five as permissible in other cases with similar consequences.  For instance, Thomson (1985: 1396) asks us to consider another case that she calls the ‘transplant case’:

This time you are to imagine yourself to be a surgeon, a truly great surgeon. Among other things you do, you transplant organs, and you are such a great surgeon that the organs you transplant always take. At the moment you have five patients who need organs. Two need one lung each, two need a kidney each, and the fifth needs a heart. If they do not get those organs today, they will all die; if you find organs for them today, you can transplant the organs and they will all live. But where to find the lungs, the kidneys, and the heart? The time is almost up when a report is brought to you that a young man who has just come into your clinic for his yearly check-up has exactly the right blood-type, and is in excellent health. Lo, you have a possible donor. All you need do is cut him up and distribute his parts among the five who need them. You ask, but he says, “Sorry. I deeply sympathize, but no.” Would it be morally permissible for you to operate anyway?

Thomson (1985: 1396) asks why is it that the trolley driver may turn his trolley and kill a man on the other tram track, though the surgeon may not kill the young man and remove his organs?  In both cases, one will die if the agent acts, but five will live who would otherwise die – a net saving of four lives.  As the consequences are the same in each case, utilitarianism would allow both acts to take place.  The difference in moral permissibility in these two cases with similar outcomes indicates a serious problem with utilitarianism as an ethical theory.

Russ Shafer-Landau (2012: 144-146) identifies this problem as injustice, meaning the violation of rights, such as the right of the healthy young man in the transplant case to not be murdered for his organs.  On the other hand, I would argue that turning the trolley is not an injustice because unlike the healthy young man in transplant, the tram track workers on both tracks have implicitly consented to take the normally small risk of being hit by a runaway trolley. (There is also a difference between these two cases in respect for autonomy – the implied consent to risk in the case of the trolley track workers versus the explicit refusal of consent in the transplant case. However, this is an issue for another essay).

Shafer-Landau (2012: 144) in fact argues that injustice is perhaps the greatest problem for utilitarianism.  He says that ‘moral theories should not permit, much less require, that we act unjustly.  Therefore, there is something deeply wrong about utilitarianism’ (Shafer-Landau 2012: 145).

Shafer-Landau (2012: 145) strengthens the case against utilitarianism with some real historical examples rather than just thought experiments.  He cites wartime cases of vicarious punishment where innocent people are deliberately targeted as a way to deter the guilty; and exemplary punishment where random prisoners are shot to deter resistance or escapes.  Such punishments are now treated as violations of human rights and war crimes; but in earlier wars such punishments could have been justified according to utilitarianism.

Shafer-Landau (2012: 146-148) goes on to identify some potential solutions to the problem of injustice.  To assist in analysing and evaluating these potential solutions, Shafer-Landau formally states his Argument from Injustice as follows:

  1. The correct moral theory will never require us to commit serious injustices.
  2. Utilitarianism sometimes requires us to commit serious injustices.
  3. Therefore utilitarianism is not the correct moral theory.

One of his potential solutions is to say that justice must sometimes be sacrificed for sake of overall well-being.  I do not think that this would solve the problem at all.  Unacceptable injustices would still occur, and I support Rawls abovementioned view that justice is uncompromising – an injustice is tolerable only when it necessary to avoid an even greater injustice.  Another potential solution is to deny Premise 2 above, that is to deny that utilitarianism requires us to commit injustice.  Under this solution, adjustments will naturally be made to scenarios to ensure that maximising overall well-being produces a just outcome.  Shafer-Landau (2012: 148) regards this solution as overly optimistic, and I agree.

I think the best of these potential solutions is to attempt to build justice into the calculation of intrinsic value, alongside overall well-being.  In this way, the consequences of an action should try to maximise justice in addition to well-being.  Shafer-Landau (2012: 147) argues that sometimes a very minor injustice can be justifiably traded off in favour of an overwhelming increase in well-being.  However, giving roughly equal weight to both well-being and justice is problematic due to the lack of any principles for deciding between these two values where they conflict.  I support Shafer-Landau’s view that this solution is currently unworkable.

In this essay, I have endeavoured to show how consequentialism can sometimes result in injustice, by reference to some notable philosophical thought experiments, as well as to some historical wartime cases.  I have cited the work of John Rawls to argue that justice is an important factor that needs to be taken into account in ethical theories.  I have considered some potential solutions to the problem of injustice, and argued against what I think is the best solution to this problem.  For these reasons, I conclude that the injustice objection to consequentialism should be upheld.

References

Foot, Philippa. ‘The Problem of Abortion and the Doctrine of the Double Effect’ Oxford Review, no. 5, 1967, 5-15.

Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press.

Shafer-Landau, Russ. 2012. The Fundamentals of Ethics, 2nd edition. Oxford: Oxford University Press.

Thomson, Judith Jarvis. 1985. ‘The Trolley Problem’ The Yale Law Journal, Vol. 94, No. 6 (May, 1985), pp. 1395-1415.

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