1 Political authority and obligation Political authority and obligation

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18 Keith Hyams those who are less motivated to benefi t society, or those who want to reap the benefi ts of others’ obedience without paying the cost, will not regard the benefi ts that the state brings as a reason for them to obey the law. If we want to show that everyone has a duty to obey the law, then we must show not only that obedience to the law, by permitting the state to exist, benefi ts society. We must also show that everyone has a d uty to act in wa ys that benefi t society. Th e moral theory best placed to ground the claim that everyone has a duty to act in ways that benefi t society is utilitarianism. First proposed by Jeremy Bentham in the late eighteenth century, utilitarianism says that everything that we do should aim to maximize the amount of pleasure and minimize t he amount of pain in t he world. It does not matter whose pleasure or pain is at stake: what is important is the overall aggregated balance of pleasure over pain across e veryone. Whenever we have a c hoice about how to ac t, we should always choose the option that best fulfi ls this aim. One objection immediately arises to any attempt to use utilitarianism as grounding for political authority and obligation. If someone is deciding whether to obey or to break the law on a particular occasion, then surely, according to utilitarianism, he or she ought choose whichever option would maximize the amount of pleasure in the world and minimize the amount of pain. Whether that option is wi thin the law or outside the law is ir relevant, except in so far as any punishment that illegal actions might attract should be factored into the person’s calculations. But perhaps a more sophisticated version of utilitarianism can meet this objection. Bentham’s version of utilitarianism—sometimes called act utilitarianism—judges individual actions directly against the utilitarian requirement to maximize p leasure and minimize pain. In contrast, a more sophisticated version—sometimes called rule utilitarianism— introduces two stages, as follows. 1. Potential rules are judged against the utilitarian requirement to maximize pleasure and minimize pain, and the best rules are chosen accordingly. 2. Individual actions are judged right or wrong against these rules, regardless of how each action performs in terms of its direct infl uence on the amount of pleasure and pain in the world. If we adopt rule utilitarianism rather than act utilitarianism, then it is easier to see how we might construct a utilitarian case for political authority and obligation. Th e benefi ts that obedience to the law and the existence of the state bring would be conducive to the promotion of pleasure and the reduction of pain. As such, it seems quite plausible that a rule requiring obedience to the law would be among those rules most likely to maximize pleasure and minimize pain. Th is would be true only if the laws of the state in question were suitably designed—but then a rule utilitarian would also argue that the laws themselves should be chosen by utilitarian criteria. Th e problem with the utilitarian justifi cation for political authority and obligation is that it is only as strong as the utilitarian moral theory itself. While utilitarianism does still have its supporters, most theorists now tend to regard utilitarianism as (at best) an incomplete theory of morality. In deciding how to act, we should take into account not only the likely consequences of an action, but also considerations such as rights and justice. We should do
Political authority and obligation 19 so even when these other considerations demand that we act in ways that would not maximize pleasure and minimize pa in. For example, we could imagine a si tuation in w hich utilitarianism required us t o punish an innocent person, pretending that he o r she had committed a crime when, in fact, he or she had not done so. By making an example of the innocent person, we might deter would-be criminals from causing greater pain in the long run. But most of us would think it wrong in any circumstances to punish an innocent person for a crime that he or she has not committed: innocent people have a right to liberty and we should not infringe that right. If utilitarianism requires us s ometimes to punish innocent people, then utilitarianism cannot be the whole story. Note also that we would think that innocent people should not be punished even if adopting a rule prohibiting their punishment were not conducive to the maximization of pleasure and the minimization of pain. Hence, the problem stands for both act and rule utilitarianism. KEY POINTS ● Utilitarianism is a moral theory that says that everything we do should aim to maximize the amount of pleasure and minimize the amount of pain in the world. ● Some theorists have tried to ground a case for political authority and obligation in utilitarianism, appealing to the benefi ts to society of obedience to the state. ● Most theorists now see utilitarianism as an incomplete account of morality. It may require us to do things that confl ict with our intuitive moral judgements about justice and rights, such as punishing innocent people for crimes they have not committed. Even rule utilitarianism fails to explain correctly why we think that such acts should be prohibited. Fairness You might think that utilitarian defences of political authority and obligation misconstrue the relevance of the benefi ts that the state brings. Perhaps we should not look forward to the future benefi ts that obedience to the law would bring to society in general, but back to the benefi ts that each of us have already received from the state: can these benefi ts justify a case for obedience to the law? Th e theorist H. L. A. Hart argues that if we accept a benefi t, then it is only fair that we should reciprocate and give something back. In this case, if w e enjoy the protection of police and armies, if we use roads, hospitals, schools, and other government-run services, then we should reciprocate by obeying the law. Not to do so would be to freeride unfairly on the eff orts of others. [W]hen a n umber of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefi ted by their submission. (Hart, 1955: 185)
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