Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, November 6, 2010

Contra Consequentialismum: Act or Rule?

TWO MAIN RIVAL VERSIONS OF CONSEQUENTIALISM or utilitarianism are generally identified: rule consequentialism and act consequentialism. "Both are incompatible with rights, for overlapping but partly distinct reasons." Oderberg, 69. We shall devote this blog posting to discussing the distinction between act and rule consequentialism, and how neither version supports the concept of right.

The basic difference between act consequentialism and rule consequentialism might be said to be whether one is going to look at the consequentialist world and focus on trees or focus on copses, groves, or motts, or even forests. In analyzing an act's goodness, or at least its permissibility, the act consequentialist asks the question: is this act X-maximizing? The answer to that question will tell him whether the act is right or wrong, or permissible or impermissible. On the other hand, the rule consquentialist, trying to make up for deficiencies in act consequentialism, asks the question, not whether an individual act is X-maximizing, but whether the act conforms to a rule that, if followed, is X-maximizing. Some consequentialists go even further than rule consequentialists and talk about systems, which are a sort of cluster of rules.
This is the act,
That determined the rule,
That informs the system,
That makes the foundation
Of the house that Jack built.
Jack's house of rights, by the way, is built upon sand (cf. Matt.7:24-27).

The act consequentialist clearly cannot entertain the existence of any rights. Everything is negotiable in the quest of X-maximizing. Promises may be broken, people may be enslaved, mothers may be killed, adultery may be engaged in . . . anything may be permissible if its outcome is to maximize X. Confronted with the obvious distastefulness of such a conclusion, some consequentialists have come up with the theory of "prima facie" rights. In other words, rights that need to be factored into the X-maximizing equation. But these "prima facie" rights are not rights in sensu stricto, because they continue to be negotiable, and negotiability is counter to the notion of fundamental, natural, or human rights strictly so called, which are absolute or exceptionless. The "prima facie" rights of the consequentialist are, at best, quasi-rights, pseudo-rights, para-rights, rights pro tanto.*

Consequentialists are often keen to point out that they recognize one or other of traditional moral categories, such as rights or justice: but merely saying so does not make it so. It is necessary to be sensitive to the definition of the concept as used by the consequentialist. . . . So, if the consequentialists insists on speaking of rights, but defines them as just another thing to be placed into the melting pot of general calculation of whether an act is maximizes X, then whatever he is talking about, it will not be rights.

Oderberg, 70-71.

Rule and system consequentialists seem to have a better purchase on rights than act consequentialists, but this is a deceptive purchase. Because rule consequentialists generalize their analysis into rules, they can re-frame these into rights-based language.
A rule consequentialist will propose something like the idea that there are rights on his theory because an agent has a right to do whatever a given rule sanctions. . . . Typically, he will work backwards from duties not to interfere with actions of others: A has the duty not to do F to B if not doing F accords with a rule to which obedience is X-maximizing. From this he concludes that B has the right not to have F done to him.
Oderberg, 71.

The problem with this whole line of reasoning is in the rule. Since the right is based upon the rule, if the rule is questionable it follows that the right is questionable.

In crafting a rule, the rule consequentialist faces insurmountable problems. The first is perhaps the most notorious. How far into the future should the maximizing effects of a rule be calculated? Ad infinitum? If so, how can it be determined? If not, on what basis, and where is the arbitrary cut-off date where X-maximizing no longer matters? Second, the rule itself would be contingent because it would vary with the circumstances. What may be an X-maximizing rule in context A, may not be so in context B, and so what may be a right in context A may not be a right in context B. "Thus, whatever rights end up being recognized by the rule consequentialist, they are certainly not going to be the traditional ones." Oderberg, 72.

If the rule consequentialist tries to circumvent the contextual or conditional nature of rules by insisting that the X-maximizing rule must consider not only all existing but also all possible contexts, then a calculative nightmare imposes itself upon him: how on earth is man going to determine a rule when he has to consider not only all time, but all possible contexts? Besides, it is self-defeating because to X-maximize makes "maximization logically necessary," but X-maximization, by definition, means to maximize in context and not to maximize as an exercise in logic. And why should speculative contexts affect real contexts? More, if the rule is to be framed so as to recognize all possible contexts, how on earth is the rule going to be framed? Instead of the right to property, one will have such monstrosities as a "right-to-the-peaceful-use-and-enjoyment-of-one's-chattels-as-long-as-they-cannot-be-put-to-better-use-by-the-state-or-by-other-people-and-so-on-and-so-forth." Oderberg, 72. Yada, yada, yada.

Finally, if all contexts are considered, the rule consequentialist begins to look a whole lot like an act consequentialist, and so we have engaged in a sisyphean exercise, only to end up in the bottom again.

The Sisyphean Task of the Rule Consequentialist:
Punishment for His Hubris?

Some consequentialists are aware that their theories do not support rights as understood in any traditional sense, and, to their credit, try to accommodate or modify their theories to encompass them. To their debit, however, they not only fail to do what they set out to do, but fail to see that it's not by tinkering with a faulty theory that one fixes the problem.

Take for example the consequentialist who insists that respect for rights can be knitted into the fabric of consequentialist theory. (Oderberg cites the Hindu and atheist Economist and Noble prize winner Amartya Sen and the Scottish ethicist W. D. Ross as examples of those espousing this sort of theory.) But the theory infects the rule. It is sort of like expecting a drop of water put in a gallon of gasoline to make the gasoline potable. The problem is that, injected into the theory, the respect for rights itself becomes a consequence to be maximized. The result is that an act that, of itself, respects rights, would be considered morally objectionable, to the extent that it does not maximize respect for that right in general. So if not killing one's mother (which respects the mother's right to life) would fail to maximize the respect for that right in general (suppose an unruly mob that insists that, unless the actor kills his own mother, mayhem will ensue, which would include killing of a number of mothers), the actor would be forced to maximize the right of a number of mothers, at the expense of the right of his own mother. One right, then, become negotiable, if for no other reason, when other rights of the same kind can be maximized. These consequentialists wearing "rights" garb, then are no more lambs than a wolf wearing sheep's clothing. For all their talk about rights, their notion of right is infected by their consequentialist cancer, and there will never be such a thing as an exceptionless or absolute right. Rights can be violated so long as their violation results in the maximization of a greater number of rights, which means that the consequentialist's rights are not rights.

Beware of the Consequentialist Wearing Rights Language!

To solve the problem regarding rights, the consequentialist needs to jettison his defective theory altogether, and start afresh. He needs to quit clothing his defective theory with the language of rights. Perhaps he ought to adopt a theory based upon the natural law, a theory ever ancient, ever new?

Perhaps, following St. Augustine, our consequentialist ought to open the Book of Romans, and reflect on Romans 13:13-14. (Can he hear the divine voice, tolle, lege, tolle, lege, "take and read," "take and read"?):
Let us walk honestly, as in the day: not in rioting and drunkenness, not in chambering and impurities, not in contention and envy: But put ye on the Lord Jesus Christ, and make not provision for the flesh in its concupiscences.
Then perhaps we may hope, that with a little bit of grace and a little bit of good will, the Lord Jesus Christ can introduce the consequentialist to His law, which is also the law within the consequentialist. And the consequentialist may leave his vain pretensions, see what his heart is yearning for, and cry à la St. Augustine: Sero te amavi, lex naturalis tam antiqua et tam nova. Too late have I love you, natural law, ever ancient, ever new!

For every moment spent as a consequentialist is a moment too much.

*"Pro tanto" is Latin phrase meaning "for so much, for as much as one is able, as far as it can go." "Prima facie" is Latin for at first appearance, at first blush, at first sight. The former implies limit, the second implies rebutability. Neither prima facie rights or rights pro tanto are the sorts of traditional exceptionless, absolute human rights that others may not violate at all times and in all circumstances without incurring moral guilt. The Commandment, "Thou shalt not kill," is exceptionless, not a prima facie commandment, or a commandment pro tanto.

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