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July 30, 2010

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Marc DeGirolami

Matt -- very interesting. I am all for historically sensitive reconstructions of Victorian-era jurists, as you know! Could you explain a little (just a little -- enough for a blog comment) about what theological utilitarianism is?

Patrick S. O'Donnell

Here's a snippet from the SEP entry on the history of utilitarianism:

Some of the earliest utilitarian thinkers were the ‘theological’ utilitarians such as Richard Cumberland (1631-1718) and John Gay (1699-1745). They believed that promoting human happiness was incumbent on us since it was approved by God. After enumerating the ways in which humans come under obligations (by perceiving the “natural consequences of things”, the obligation to be virtuous, our civil obligations that arise from laws, and obligations arising from “the authority of God”) John Gay writes: “…from the consideration of these four sorts of obligation…it is evident that a full and complete obligation which will extend to all cases, can only be that arising from the authority of God; because God only can in all cases make a man happy or miserable: and therefore, since we are always obliged to that conformity called virtue, it is evident that the immediate rule or criterion of it is the will of God.” (R, 412) Gay held that since God wants the happiness of mankind, and since God's will gives us the criterion of virtue, “…the happiness of mankind may be said to be the criterion of virtue, but once removed.” (R, 413) This view was combined with a view of human motivation with egoistic elements. A person's individual salvation, her eternal happiness, depended on conformity to God's will, as did virtue itself. Promoting human happiness and one's own coincided, but, given God's design, it was not an accidental coincidence.

This approach to utilitarianism, however, is not theoretically clean in the sense that it isn't clear what essential work God does, at least in terms of normative ethics. God as the source of normativity is compatible with utilitarianism, but utilitarianism doesn't require this.

Marc DeGirolami

Thanks, Patrick. I had linked to the SEP discussion of Austin but had missed that.

Patrick S. O'Donnell

Incidentally, while I'm happy to see us re-visit Austin's work, I still think that Hart, Raz, Finnis, Oberdiek, and Edmundson are right (and thus Austin wrong) in arguing that law is NOT essentially or primarily coercive in nature. Indeed, I think they've collectively shifted the burden of proof insofar as any claim to the contrary has to address their arguments.

Matt Lister

Hi Marc- The summary Patrick provided is pretty good, though it, very oddly, to my mind, leaves out the theological utilitarian who was historically the most important- William Paley. Paley was almost certainly more important than Bentham, for example, in making utilitarianism the dominant moral view in England in the Victorian era. It's basically an attempt to rectify common-sense and utilitarianism by having God work everything out in the end. It seems very much a view that you'd hold because you wanted to believe the conclusion anyway. I tend to think Paley is worth reading more than many do, but he is mostly of historical interest. (This is the same Paley made famous again by Richard Dawkins.)

Patrick- I think that Schauer pretty convincingly shows, in the papers I link above, that Hart's arguments against Austin are not, at least fully, convincing. When you mix that with the very real problems with the internal point of view idea, it's not at all clear to me that Hart made great improvements over Austin. Others may disagree, of course, but I'll recommend these papers to you. Now, I don't think that Austin's account of law is right, mind you. But I think it's gets at something important that needs to be considered. (It's an important difference for law to be essentially coercive in nature or primarily coercive in nature, too, and showing one wouldn't show the other, as well.) But I tend to think blogs are a bad place to do serious philosophy beyond pointing at things, so I'll not try to make the argument here.

Patrick S. O'Donnell

The Encyclopedia of Religion and Ethics entry accords significant attention to Paley's theological utilitarianism.

Matt,

We'll have to disagree about the extent of Hart's improvement over Austin (I've read the Schauer paper that is freely available online).

I did not mean to suggest or imply that there is not a significant difference between law conceived as essentially coercive in nature and law conceived as primarily coercive, and although I think it's the case that neither is in fact true, that (or those) aspect (aspects) of law which is (are) in fact coercive is (are) no less deserving of attention insofar as the moral justification of same is properly a central concern of any full-bodied political (and legal) theory.

Matt Lister

Hi Patrick- I'm glad that the other source you cite discusses Paley. It was the SEP piece on the history of utilitarianism that leaves him out. To my mind that's a hugely strange decision, one that only a whig history of the first order could justify. Both pieces I have in mind from Schauer are available on SSRN and linked above. The Waldron piece, alas, does not seem to be available on line even for a fee, as it looks like the Canadian Journal of Law and Jurisprudence only has on-line archives going back to 2000. That's a shame, as it's an excellent paper that, I think, casts considerable doubt on whether the idea of the "internal point of view" allows Hart to move as far away from Austin as he thinks he does.

Patrick S. O'Donnell

Thanks Matt. I thought the one paper ('Was Austin Right...?') by Schauer cost $ but I may have accessed it through another route.

Tony Cole

Matt, I just ran across your post, a little late, and thought I'd add a quick note as I'm actually finalising (give me a month or so) an article on Austin, arguing precisely that close attention to his work shows his work is far better and more complex than it is given credit as being.

One thing I would point out, just quickly, is that the description of theological utilitarianism given above is not actually Austin's take on it, and that Austin's view does indeed give an answer to the "what essential work God does" question. Basically, for Austin utilitarianism doesn't serve as normative, but is rather an index regarding God's will, and it is God's will that is normative. We use utilitarianism simply because revelation is extremely unreliable. However, if we were to have evidence that God wanted something, even though it was incompatible with utilitarianism, Austin's view would be that the obligation we should follow God's will, not utilitarianism. Utilitiarianism is, after all, a flawed index of God's will, it is just the best one we have.

I'd also emphasise, with respect to your comments on international law, that it's important to understand the formal structure of Austin's system, as it is all very intricately put together. Every word, from "sanction" to "law" to "obligation" has a technical meaning for him, that may not correspond to its regular meaning (a complication he recognises and discusses at some length).

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