Can utilitarianism account for fundamental rights ?
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Document: Can utilitarianismaccount for fundamentalrights ? Dissertation en anglais sur l'utilitarisme et les droits fondamentaux, références à Mill, Hart, Bentham. 15 pages
Extrait: The justification of the law is one of the major preoccupations of moral philosophers. They have developed different philosophies of political morality, or ?philosophies of government?, aiming to find out how much law a community needs. One of the most significant theories proposed was utilitarianism, elaborated in the eighteenth century by Jeremy Bentham in his Introduction to principles of morals and legislation. Utilitarianism can be regarded both as a system of personal morality and a system of social or political decision. The latter has principally been developed by the fathers of the theory, as offering ?a criterion and basis of judgement for legislators and administrators.?
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[...] This theory has been developed without taking into account the notion of fundamental rights of individuals within the society. It has then been revised by later philosophers who have used utilitarianism as a framework; in addition, they have tried to accommodate the notion of basic human liberties that all individuals detain in virtue of their human nature. However, the criticisms elaborated during the twentieth century seem to apply to all forms of utilitarianism, even later ones. These criticisms claim that utilitarianism cannot account for fundamental rights because of its concern to maximise the welfare of the community. [...]
[...] Op.Cit., p.38. Op.Cit p.34-37. SEN WILLIAMS eds., Utilitarianism and beyond, Cambridge University Press p.4. Ibid; HART (H.L.A.), Op.Cit., p.78. PRIOREF Le Bonheur: anthropologie de textes philosophiques et littéraires, Paris, Maisonneuve et Larose p.77. BRANDT (R.B.), Op.Cit., p.200. Universal Declaration of Human Rights Article 4. HART (H.L.A.), Op.Cit., p.78. LYONS ?Utility and rights?, in WALDRON Theories of rights, Oxford University Press pp.113-114. Op.Cit., p.114. [...]
[...] All forms of utilitarianism consider that the value of an action depends on its consequences, directly or indirectly. The value of an action depends on the utility of the action itself or the utility of rules or institutions allowing the action. It implies that no action is intrinsically valuable. The criterion of social welfare being the sum of individual utilities or welfare, utilitarianism takes only into account right to have one's welfare included in the social ranking of economic states?. Even if some forms of utilitarianism accommodate with some moral beliefs, the rights they involve are not intrinsically valuable and will be respected only if the consequences of this respect is the welfare of the society. [...]
[...] It seems therefore that traditional utilitarianism has no room for fundamental rights. Nevertheless, ?most utilitarians [ ] have not thought there is such incompatibility.? Mill, for example, defended rights to freedom of speech and expression and freedom of action except where it injures others, in other words, non- interference of government or society in individual behaviour that did not harm anyone else. He also was the spokesman for women's suffrage and state-supported education for all, which was considered radical in his day. [...]
[...] DWORKIN, Taking Rights Seriously, London p.269. Op.Cit., p.278. [...]
[...] Fundamental rights are included in this category. It seems that utilitarianism can account for fundamental rights only if these rights are enforced by the law, and therefore become legal rights. However, ?enforcement is not an essential feature of rights, even legal rights.? For instance, basic constitutional rights are in fact fundamental rights. They pre-exist to the Constitution establishing them; they are not created by the constitutional law and can exist even if they are not enforced. Utilitarianism cannot account for fundamental rights as such. [...]
[...] Op.Cit. (xxxii). Op.Cit. (xxxiii). BRANDT (R.B.), Op.Cit., p.199. SEN WILLIAMS eds., Op.Cit., p.77. BRANDT (R.B.), Op.Cit., p.212. SEN WILLIAMS eds., Op.Cit., p.4. Op.Cit., p.5. RAWLS Op.Cit., p.24. [...]
[...] SMART (J.J.C.), WILLIAMS Op.Cit., pp.119-121. DASGUPTA ?Utilitarianism, information and rights?, in SEN WILLIAMS eds., Op.Cit., p.202. LYONS Op.Cit., pp.111-112. Op.Cit., pp.122-123. BERLIN Four essays on liberty, Oxford University Press pp.139-140. SMART (J.J.C.), WILLIAMS Op.Cit., p.137. SMART (J.J.C.), WILLIAMS Op.Cit., p.150. SEN WILLIAMS eds., Op.Cit., p.21. SMART (J.J.C.), WILLIAMS Op.Cit., p.142. NOZICK, Anarchy, State and Utopia, Oxford pp.32-33. [...]
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