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.

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*"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.

Contra Consequentialismum: There Ain't No Such Thing as Absolutes

WE NOW REACH THE HEART OF DAVID ODERBERG'S BOOK Moral Theory: A Non-Consequentialist Approach: his criticism of the majority theory in the West: consequentialism. In getting to this point, Oderberg discussed the notion of rights, and how they relate back to obligations (duties) and eventually to law, a law that pre-exists man, and which he discovers, but does not make. Though some rights may be based upon custom, the foundation of rights is not custom. Though some rights may be based upon contract, the foundation of rights is not contract. Though some rights may be held by the common consent or opinion of men, the foundation of rights is not opinion. The fact that customary or contractual or deeply felt rights exist does not impugn the fact that rights, in their most fundamental sense, are not customary, conventional, or emotional, but go beyond such relative bases and reach backward to a pre-existing, given reality of good and right, an objective order, the compliance with which human happiness depends. Any moral theorist who builds the foundation of his ethics on something other than natural law will always come to a failure of his theory as it collapses to relativism.

The fact is any objective moral order requires that a moral order pre-exist us. We have to be blind to miss the pre-existing, objective order. The Schleiermarcherian notion of Sichselbstnichtsogesetzthaben, "not-having-posited oneself," and of Irgendwiegewordensein, a "somehow-having-come-to-be," which cannot be gainsaid, compel us to face the objective fact that there is an objective reality, including a reality of right and wrong, of which we are not master, but which we have been given by Another, namely God, and which we discover, not make.*

What about the consequentialist's or utilitarian's efforts to describe morality?** Are they an exception to the rule? Can they escape the ineluctable conclusion that morality is not made by man, but is given us by our Creator?

David S. Oderberg

The consequentialist theories of morality are, ultimately, incompatible with a notion of natural right.

According to consequentialism, the criterion of rightness and wrongness of actions is whether they maximize good consequences. What are those good consequences? This is one of the first matters on which consquentialists differ.

Oderberg, 66. Many competitors vie for first place among the consequentialist theories for what ought to be the measure to be maximized: pleasure, the satisfaction of people's interests, some plurality or ensemble of goods that aggregately measure "well-being" are frequent suggestions. Consequentialists seem hopefully divided. Whatever that one measure is--take your pick--the analysis of consequentialism's defect is the same. Call that measure "X" and the consequentialist's goal to maximize X.

Consequentialists are also divided into "act" consequentialists (where and individual act is analyzed to see if it maximizes X) versus "rule" consequentialists (where a rule of action, and not the individual act itself, is analyzed to see if it maximizes X).

Regardless of the particular color and stripes of the theory, consequentialists are dedicated to a number of propositions, one of which may called the calculative principle, and the other which may be called the impersonality or agent-neutrality principle.

First, the calculative principle proposed by consequentialism asserts that "it is possible," in fact it is always possible, "to evaluate states of the world in terms of the goodness of the consequences present in those states as a result of actions." Oderberg, 67. The consequentialist is therefore committed to the ability to calculate of consequences caused by an act or rule, and hence the calculations that are determinant of an act's goodness are always possible. "Whether a crude numerical approach is used, or an intuitive one, or something in between, the consequentialist is committed to the idea that everything can be compared with everything else, in order to arrive at a judgment of what action is X-maximizing in the circumstances." Goods are therefore commensurable. Both this calculative aspect, and the necessary corollary of the commensurability of goods, is problematic.

Second, the impersonal or agent-neutrality feature is that consequentialists all believe that "[e]very moral agent's overarching rational duty is to maximize X." Oderberg, 67. "It can never be the case that an agent is placed in a situation in which he has a specific duty that is incompatible with this maximization." Oderberg, 68. In short, an agent has a duty always to do good, as good is defined by the consequentialists (maximizing X, whatever X may be), all else be damned. In this regard, consequentialists all seem to suffer from an overdeveloped sense of duty and hence a sort of moral neurosis follows. They are burdened with a millstone caused by the banishment of intent from the moral equation. All is outside in this theory; nothing is inside in this theory. It is hideously inhuman, and in fact leads to the justification of the most immoral behavior. Invariably, as a result of his false theory of morality, a consequentialist will turn into a neurotic whitened sepulcher, complete with the unattended inside full of a rotten corpse and black heart. The moral neurosis arises from what is an impossible proposition, and that is that one's intent makes utterly no difference in the moral calculus that determines right or wrong:

[I]t does not matter for the morality [of a person's] action how [he] fails to maximize X in a given situation: he may deliberately choose an act that is sub-optimal (less-than-X-maximizing), or he may simply refrain from performing the act that is optimal (X-maximizing), with the result that, in one way or another, a sub-optimal state of the world eventuates; either way, he is equally guilty of immorality.

Oderberg, 67. Here is consequentialism's viciousness, here is its demonic kernel, here is it's black heart:

[T]he defining feature of consequentialism . . . is hat there is no such thing as an action that is wrong whatever the consequences, and conversely, there is no such thing as an action that is right irrespective of the consequences. No actions are absolutely right or absolutely right: they take whatever moral complexion they have from their contribution, in the circumstances, to the maximization of X.

Oderberg, 68-69. Breaking one's promise, committing adultery, homicide, lying, bombing innocent populations with an atom bomb . . . you name it. There are no moral absolutes.*** All is negotiable so long as X is maximized. X, whatever X may be, becomes the new deity, the irrepressible Juggernaut and moral tyrant. It is apparent that if all is negotiable to the moral calculus, it follows that consequentialism is "incompatible with the existence of rights which prohibit certain kinds of act no matter what the consequences are." A consequentialist would never say: fiat justitia ruat caelum. Do justice, though the heaven's fall. A consequentialist would say, to keep the heaven's from falling, do injustice.

The upshot of consequentialism--that there are no such things as absolute rights--is admitted by the more candid of the consequentialists, and Oderberg provides a smattering of representative quotes.**** Even if they use the word "right," they have re-defined it to conform with their theory, and so cannot be regarded as "right" in any traditional sense. They are about as much "rights" as Satan's promises are promises: Faustian bargains both.

(continued)
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*See Sichselbstnichtsogesetzthaben and the Natural Law. Throughout this posting, the spelling from quotes from Oderberg's works are Americanized. Thus, maximise is rendered maximize, judgement rendered judgment, etc.
**Essentially, utilitarianism and consequentialism are synonyms. As Oderberg notes, "consequentialism" was a derogatory term used by the philosopher Elizabeth Anscombe to describe the utilitarian theory of morality. The utilitarians have taken to wearing that badge with pride, sort of like Ultramontanes enjoy being called Papists.
***Perhaps one of the best monographs on this issue, and certainly one of the bests I have encountered, is John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, D.C.: Catholic University Press, 1991).
****Peter Singer: "I am not convinced that the notion of a moral right is a helpful or meaningful one." J. J. C. Smart: "[H]owever unhappy about it he may be, the utilitarian must admit that he draws the consequence that he might find himself in circumstances where he ought to be unjust." John Harris: "I do not accept that there are any 'absolute' or 'natural' rights . . . the use of the word 'right' more often serves to obscure the rights and wrongs of an issue than to elucidate them."