Punishment and Discretion in Mill's Utilitarianism

Utilitas http://journals.cambridge.org/UTI Additional services for Utilitas: Email alerts: Click here Subscriptions: Click here Commercial reprints: Click here Terms of use : Click here Punishment and Discretion in Mill's Utilitarianism PIERS NORRIS TURNER Utilitas / FirstView Article / February 2015, pp 1 - 14 DOI: 10.1017/S0953820814000326, Published online: 03 February 2015 Link to this article: http://journals.cambridge.org/abstract_S0953820814000326 How to cite this article: PIERS NORRIS TURNER Punishment and Discretion in Mill's Utilitarianism. Utilitas, Available on CJO 2015 doi:10.1017/S0953820814000326 Request Permissions : Click here Downloaded from http://journals.cambridge.org/UTI, IP address: 69.47.48.226 on 04 Feb 2015 Punishment and Discretion in Mill’s Utilitarianism PIERS NORRIS TURNER Ohio State University I argue that a notorious passage from Utilitarianism concerning the relationship between morality and blameworthiness need not be an obstacle to a consistent act-utilitarian interpretation of Mill’s moral theory. First, the Art of Life provides a framework for reconciling Mill’s evaluation of conduct in terms of both expediency and blameworthiness. Like contemporary sophisticated act-utilitarians, Mill treats expediency as the more fundamental category of evaluation. Second, textual evidence suggests that, on Mill’s view, evaluations of blameworthiness are not strictly bound by rules, despite rule-ish considerations about punishment and discretion. Third, Mill’s own jurisdictional account in terms of competent decision-making remains consistent with the act-utilitarian interpretation. I. INTRODUCTION In his recent book, Mill’s Progressive Principles, David Brink argues that John Stuart Mill offers two distinct and irreconcilable accounts of moral wrongness. Bucking the now dominant trend to read Mill as a rule-utilitarian, Brink first argues effectively that most of the evidence points toward a sophisticated act-utilitarian interpretation.1 But he accepts that the following passage from chapter 5 of Utilitarianism stands in the way of a thoroughgoing act-utilitarian account: We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow creatures; if not by opinion, by the reproaches of his own conscience. This seems to be the real turning point of the distinction between morality and simple expediency . . . There are other things, on the contrary, which we wish that people should do, which we like or admire them for doing, perhaps dislike or despise them for not doing, but yet admit that they are not bound to do; it is not a case of moral obligation; we do not blame them, that is, we do not think that they are proper objects of punishment.2 Mill’s articulation of ‘sanction utilitarianism’ in that passage leads Brink to endorse a bifurcated interpretation: 1 For the canonical statement of sophisticated act-consequentialism, see Peter Railton, ‘Alienation, Consequentialism, and the Demands of Morality’, Philosophy & Public Affairs 13 (1984), pp. 134–71, at 153. 2 John Stuart Mill, Utilitarianism, CW X, 246. Citations of Mill marked by ‘CW volume number, page number’ refer to the Collected Works of John Stuart Mill, ed. J. M. Robson (Toronto, 1963–91). Utilitas: page 1 of 14 doi:10.1017/S0953820814000326 2 Piers Norris Turner The problem is simply that Mill is attracted to different utilitarian conceptions of right action . . . The natural conclusion is that Mill does not have a consistent theory of duty. The introduction of indirect utilitarian ideas in Chapter V of Utilitarianism into an account of utilitarianism that is otherwise act-utilitarian reveals a fundamental tension in Mill’s conception of duty.3 In this article, I argue that we needn’t attribute this inconsistency to Mill. While I cannot here address the entire debate about the nature of Mill’s utilitarianism, I will argue that the above ‘punishment’ passage is perfectly consistent with a sophisticated act-utilitarian interpretation.4 This is important beyond Brink’s discussion. Ever since David Lyons focused Mill scholars’ attention on the punishment passage, it has remained at the centre of interpretative debates.5 Lyons argues that the analysis of moral wrongness in terms of the appropriateness of punishment is incompatible with act-utilitarianism because not every failure to maximize utility is (even prima facie) appropriately punished.6 Many commentators have drawn on Lyons’s further claim that a system of punishment and prohibition ‘can be rational only if attached to clear guidelines laid down for future behavior’ to argue that Mill is a rule-utilitarian.7 As Lyons writes: ‘sanctions assume coercive rules. To show an act wrong, therefore, is to show that a coercive rule against it would be justified. The justification of a coercive social rule establishes a moral obligation, breach of which is wrong.’8 It would seem, then, that if moral judgements concern the appropriateness of punishment, and if a rule violation is necessary for punishment to be appropriate, then Mill must be a rule-utilitarian. I will argue, to the contrary, that the punishment passage does not force us to accept either the rule-utilitarian or Brink’s bifurcated interpretation. In section II, I argue that the recent scholarly attention to Mill’s ‘Art of Life’ offers a way of systematically reconciling the punishment passage with an act-utilitarian interpretation. The main point is that Mill’s analysis of ‘wrong’ in terms of the appropriateness of punishment can be understood as his account of blameworthiness 3 David Brink, Mill’s Progressive Principles (Oxford, 2013), pp. 102–3. With Brink, I believe that the evidence overwhelmingly favours an act utilitarian interpretation of Mill’s moral theory. See also Fred Berger, Happiness, Justice, and Freedom (Berkeley, CA, 1994), pp. 62–73, 82–109, and Roger Crisp, Mill on Utilitarianism (New York, 1997), pp. 102–33. 5 David Lyons, ‘Mill’s Theory of Morality’, in Rights, Welfare, and Mill’s Moral Theory (New York, 1994), pp. 47–66. 6 See Lyons, ‘Mill’s Theory of Morality’, p. 52. 7 Lyons, ‘Mill’s Theory of Morality’, p. 53. See Alan Fuchs, ‘Mill’s Theory of Morally Correct Action’, The Blackwell Guide to Mill’s ‘Utilitarianism’, ed. Henry R. West (Malden, MA, 2006), pp. 139–58, esp. 144–50, and Dale Miller, J. S. Mill (Malden, MA, 2010), pp. 85–97. 8 Lyons, ‘Mill’s Theory of Morality’, p. 55. 4 Punishment and Discretion in Mill’s Utilitarianism 3 within an act-utilitarian framework. In section III, I then appeal to key textual evidence to argue that a faithful rendering of Mill’s account of blameworthiness is not as rule-bound as the rule-utilitarian interpretation requires. In section IV, I conclude by arguing that the attention to constraints on decision-making within institutions in fact helps to clarify Mill’s act-utilitarian commitments by highlighting the particular jurisdictional character of his practical ethics. II. EXPEDIENCY AND BLAMEWORTHINESS In his System of Logic, Mill introduces what he calls the ‘Art of Life’, a set of general practical rules for the promotion of overall utility. The ‘Art of Life’ has three departments called ‘Morality, Prudence or Policy, and Aesthetics’ which concern, respectively, ‘the Right, the Expedient, and the Beautiful or Noble, in human conduct and works’ (CW VIII, 949). Each department represents a different category for evaluating conduct, and is constituted by its own set of general rules in the service of overall utility. These categories of evaluation may come apart: conduct may be right and noble, but not expedient, or expedient and noble, but not right, and so forth. Because Mill uses the term ‘Morality’ here to name one department of the Art of Life, I propose to refer to Mill’s ‘ethics’ when discussing his overall framework for the evaluation of human conduct. The present question, then, is how the right, the expedient, and the noble all figure in Mill’s ethics. Although it is important to a full understanding of his ethics, I will here set aside Mill’s discussion of Aesthetics or nobility, which concerns the evaluation of conduct in terms of what it indicates about the character of the agent.9 These character evaluations take the dispositions of agents as their objects and, while it is undeniable that these factor into our approbation or disapprobation of a given behaviour, they are not directly relevant to the punishment passage under consideration. What matters more directly is Mill’s distinction between ‘Morality’ and ‘Prudence or Policy’ – between ‘the Right’ and ‘the Expedient’. Let us start with Prudence. Mill explicitly identifies Prudence with expediency and ‘expedient’ is his regular way of referring to whatever action or practice would produce the best overall consequences. Although ‘prudence’ now often brings to mind considerations of long-term self-interest – and Mill sometimes used the term in that sense – it is not historically limited in that way. Instead ‘prudent’ can refer more generally to judicious or discerning conduct, given some end. Dale Miller has argued convincingly that ‘prudence’ as Mill employs the term in his Art of Life has an ‘impartialist’ sense 9 See Utilitarianism, CW X, 221. 4 Piers Norris Turner that concerns best overall consequences.10 And only this understanding can explain the fact that in Mill’s discussion of the departments of the Art of Life in Utilitarianism he refers directly to the two categories of ‘morality’ and ‘Expediency’, dropping ‘prudence’ talk altogether. Expediency as a department of the Art of Life is constituted, then, by those general practical rules that tend to produce the best overall consequences. But then Morality as a department of the Art of Life must concern something else. This something else is what is contained in the punishment passage above. It states that Morality is to be distinguished from Expediency on the ground that when something is called ‘wrong’ it implies that ‘a person ought to be punished in some way or other for doing it’, in particular that the person is a ‘proper object of punishment’ and ‘would not be entitled to complain’ if he were punished (CW X, 246; see also 247). The violation of Morality, on Mill’s view, entails blameworthiness in the sense of reasonably being sanctioned for having performed some action – including the internal sanction of feeling the ‘reproaches of [one’s] own conscience’ – given one’s epistemic and other practical limitations. Note, however, that in making this connection between ‘wrong’ and blameworthiness, Mill never gives up expediency as a category of evaluation. He retains and appeals to both categories simultaneously. He can readily allow that blameworthy (i.e. ‘wrong’) actions may be expedient and that blameless actions may be inexpedient. (These actions might also be noble or ignoble.) He can further allow that it may be inexpedient to blame people for blameworthy actions, or expedient to blame people for blameless actions, but these are assessments of expediency not blameworthiness. An action may be ‘wrong’ even if ‘[r]easons of prudence’ or expediency do not favour following through on the punishment (CW X, 246). The fact that Mill does not give up expediency as a category of evaluation helps to account for the many passages in which he asserts that conduct is to be evaluated in terms of overall best consequences. For instance, in chapter 2 of Utilitarianism he writes that ‘actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’ and in a summary of that chapter in his diary he writes that ‘the only true or definite rule of conduct or standard of morality is the greatest happiness’.11 In view of the Art of Life, we needn’t choose between these passages and the punishment passage as uniquely expressing Mill’s ethical standard. 10 11 Miller, J.S. Mill, p. 81. CW X, 210 (also CW X, 214 for clarification); diary of 1854, CW XXVII, 663. Punishment and Discretion in Mill’s Utilitarianism 5 It is true that in his Art of Life Mill associates ‘moral’ evaluation with judgements of blameworthiness. But, in assessing the consistency of this terminology with act-utilitarianism, it matters less which category of evaluation constitutes ‘morality’ than whether Mill regards expediency or blameworthiness as the more fundamental category of evaluation. The interpretative challenges posed by the punishment passage are, first, whether Mill’s evaluative categories of blameworthiness and expediency can be represented coherently in a sophisticated act-utilitarian framework and, second, whether Mill applies those categories to cases in a way that an act-utilitarian could accept. On the first point, I have already suggested that an actutilitarian can readily allow that some inexpedient actions will not be blameworthy in the sense of reasonably being sanctioned for making a certain decision or performing a certain action and, therefore, that it is possible to accommodate the punishment passage within an actutilitarian framework. On the second point, I try to show in the final two sections that Mill never introduces a case in which expediency is to be knowingly sacrificed for the sake of some other value. For Mill, as for the act-utilitarian, the fundamental choiceworthiness of an action is constituted by its expediency. One might object that moral evaluation should not be disassociated from fundamental choiceworthiness. But consider a recent view with significant similarities to Mill’s ethics. This view, due to Peter Railton, is called valoric utilitarianism.12 Railton argues that the fundamental currency in evaluating any act, agent, disposition, practice, or institution (or any other object of evaluation) is its contribution to the overall good, which he calls fortunateness. Fortunateness, as far as I can tell, is the same as what Mill calls expediency.13 Now, although fortunateness may determine what is ‘better or worse from a moral point of view’, Railton allows that it does not determine moral right and wrong. As he puts it: The concept of ‘moral rightness’ comes to the consequentialist already wellembedded in our moral thought and practice. If ‘morally right’ meant ‘optimal from a moral point of view,’ ‘morally wrong’ would naturally be ‘less than optimal from a moral point of view’. But moral wrongness goes with notions of 12 Peter Railton, ‘How Thinking about Character and Utilitarianism Might Lead to Rethinking the Character of Utilitarianism’, Midwest Studies in Philosophy 13 (1988), pp. 398–416, at 409. 13 At least in so far as we limit the discussion to forms of utilitarianism. Railton’s consequentialism is more pluralistic: it ‘extends beyond welfare, and includes all the forms of intrinsic value realized in and through our lives’. See Peter Railton, ‘Reply to Ben Eggleston’, Philosophical Studies 126 (2005), pp. 491–99, at 491. 6 Piers Norris Turner blameworthiness, condemnation, resentment, and guilt, and we do not typically dispense these for mere suboptimality.14 In Railton’s view, judgements of blameworthiness are contextualized by one’s epistemic circumstances, one’s feasible options, and prevailing social expectations.15 I propose that in the punishment passage Mill, like Railton, concedes that ‘morally wrong’ is conceptually tied to judgements about blameworthiness cashed out in terms of what can be reasonably expected of us, rather than to expediency or fortunateness directly. Our failure to do what is reasonably expected of us makes us ‘proper objects of punishment’ and constitutes the moral wrongness of the action. In August Comte and Positivism, Mill writes: inasmuch as every one, who avails himself of the advantages of society, leads others to expect from him all such positive good offices and disinterested services as the moral improvement attained by mankind has rendered customary, he deserves moral blame if, without just cause, he disappoints that expectation. Through this principle the domain of moral duty, in an improving society, is always widening.16 Although Railton and Mill both accept that there are multiple categories of ethical evaluation in play simultaneously, they differ in that Railton seems to accept that right and wrong, and so blameworthiness, is always socially determined. Therefore, even if one knew that violating some reasonable social expectation would be more fortunate than abiding by it, it would be wrong to violate it. Railton argues for the need for ‘balanced judgment’ to weigh considerations of fortunateness and right and wrong against each other in deciding what to do case by case. By contrast, Mill argues that a person would be blameworthy, and so wrong, for conforming to a social expectation when he knows that violating it would be most expedient. In such cases, he argues, the individual ‘cannot discharge himself from moral responsibility by pleading that he had the general rule in his favor’.17 This is a key practical test case in which Mill never distinguishes himself from the act-utilitarian.18 For Mill, in the case of an ideal agent – who is omniscient with regard to the consequences and who is capable of acting on that knowledge – evaluations in terms of expediency and blameworthiness are extensionally equivalent. The crucial point is that, for both Railton and Mill, the fact that some decision or action is blameless does not mean it is 14 15 16 17 18 Railton, ‘Reply to Ben Eggleston’, p. 495. Railton, ‘Reply to Ben Eggleston’, p. 496. August Comte and Positivism, CW X, 338. ‘Taylor’s Statesman’ (co-authored with George Grote), CW XIX, 640. Railton presents his view as a competitor to both act- and rule-utilitarianism. Punishment and Discretion in Mill’s Utilitarianism 7 immune to objection. A blameless action may be less fortunate or expedient than some other action, and it is important to register the ethical significance of this point.19 If this is correct, then we should not take the punishment passage to provide more than a partial account of Mill’s ethics as a whole. Moreover, the mere fact that he associates Morality with judgements concerning blameworthiness does not undermine the act-utilitarian interpretation, for the actutilitarian can accommodate the categories of both expediency and blameworthiness. One may yet wonder whether expediency really constitutes fundamental choiceworthiness on Mill’s view, as I have suggested. In the next two sections I further develop this point by focusing on the question whether his attention to the appropriateness of punishment or blame commits him to a rule-utilitarian view and so to denying that the fundamental choiceworthiness of an action is constituted by expediency. III. PUNISHMENT AND RULE-UTILITARIANISM At least since Rawls’s ‘Two Concepts of Rules’, part of the debate about utilitarianism has concerned the nature and scope of the decisional authority granted to decision-makers operating within practices or institutions justified on utilitarian grounds. Rawls argued that some institutions or practices justified on utilitarian grounds – such as punishment or promise-keeping – are constituted by certain rules and that the decisions of decision-makers – e.g. officials and wouldbe promisors – must therefore be determined by those rules if they are to remain within the given practice. Some rules of the justified practice may themselves provide a measure of latitude to individuals not to follow or enforce the rules of the practice in certain circumstances, but Rawls’s key point is that it would transform the relevant practice to grant decision-makers the discretion to appeal directly to utilitarian considerations in deciding what to do in each and every case. [A] practice necessarily involves the abdication of full liberty to act on utilitarian and prudential grounds. It is the mark of a practice that being taught how to engage in it involves being instructed in the rules which define it, and that appeal is made to those rules to correct the behavior of those engaged in it . . . On this conception, then, rules are not generalizations from the decisions of individuals applying the utilitarian principle directly and independently to recurrent particular cases. On the contrary, rules define a practice and are themselves the subject of the utilitarian principle.20 19 I here mention only those aspects of Railton’s valoric consequentialism that are relevant to the present discussion. For full elaboration, see his two articles cited above. 20 John Rawls, ‘Two Concepts of Rules’, The Philosophical Review 64 (1955), pp. 3–32, at 24. 8 Piers Norris Turner Rawls contends that granting ‘full liberty’ or discretion to decisionmakers would result in a different practice – one not justified on utilitarian grounds – effectively being put into place. In his view, a successful utilitarian defence of certain valuable practices requires a rule-utilitarian framework according to which the decisional authority of decision-makers within those practices must be strictly constrained by the rules constituting the practice. He also argues that his account of constrained decision-making within practices or institutions allows the utilitarian to accommodate certain non-utilitarian intuitions. In the case of punishment, it allows that specific decisions to punish might be determined within the practice by retributivist reasons even though the practice of punishment itself is justified on utilitarian grounds. Reflecting Rawls’s account of punishment as a rule-governed practice and Lyons’s claim that sanctions presuppose coercive rules, some interpreters have argued that the punishment passage shows that Mill is best interpreted as some kind of rule-utilitarian. Lyons himself never quite endorses the rule-utilitarian interpretation, but his own view of Mill’s moral theory is deeply influenced by the model of a legal system in which clear guidelines and reliable enforcement of those guidelines is necessary to its proper functioning. Mill’s analysis of moral wrongness in terms of the appropriateness of sanctions seems to invite a ruleutilitarian reading. In a view similar to Lyons’s, but which appeals to psychological constraints on agents instead of constraints on a legal system, Dale Miller has defended an interpretation of Mill according to which the appropriateness of ‘the reproaches of [one’s] own conscience’ is strictly rule-bound. On this interpretation – which Miller calls ‘internal sanction utilitarianism’ – punishment by guilt feelings is never appropriate when one has followed the rules it would be optimal for society to have generally internalized.21 Miller argues that, on Mill’s view, this is due in part to the empirical fact that conscience just is the disposition to enforce general rules justified by the principle of utility: [W]hether an act is wrong depends on whether agents are appropriately punished by the internal sanction [conscience or guilt feelings] for it. The criterion of happiness-maximization governs when the use of the internal sanction is appropriate. Given empirical facts about how the conscience works – namely that it punishes perceived violations of internalized rules – it follows 21 A basic problem for this interpretation is that it seems to tie right action to the psychological limitations of the general public even when a particular individual is more discriminating or otherwise mentally capable than most people. If I am capable of internalizing a set of rules that do better promoting the good than those the typical society member may be capable of internalizing, should I not do so? Punishment and Discretion in Mill’s Utilitarianism 9 that actions are wrong if they are prohibited by the rules that it would best promote happiness for people to internalize.22 Whatever the independent attractions of these sanction-based views, the main interpretative problem for Lyons and Miller is that Mill nowhere states that judgements of blameworthiness (or of the appropriateness of pangs of conscience) must be constrained by the rules of an ideal practice (or by the dispositions one ideally would internalize). In fact, Mill more than once argues that rule-following may be blameworthy. Earlier we saw that the individual ‘cannot discharge himself from moral responsibility by pleading that he had the general rule in his favor’. Similarly, he writes: ‘the physician who preferred that his patient should die by rule rather than recover contrary to it, is rightly judged to be a mere pedant, and the slave of his formulas’ (CW VIII, 944). Mill does not present these as cases in which the individual has simply failed to appreciate some more important or higher-order secondary principle (short of the principle of utility itself). He states that exceptions might be justified not just in the case of conflicting rules, but also when there is ‘some unusual circumstance’ (CW VIII, 946; see also CW X, 225). In a general rejection of strictly rule-bound decision-making, he writes: [H]ow unsafe it is to lose sight, even for a moment, of the paramount principle – the good of the human race. The maxims may, as the rough results of experience, be regarded as primâ facie presumptions that what they inculcate will be found conducive to the ultimate end; but not as conclusive on that point without examination, still less as carrying an authority independent of, and superior to, the end.23 It is difficult to square these passages, which have every appearance of a straightforward endorsement of act-utilitarianism, with a ruleutilitarian interpretation of Mill. It is certainly true that in most cases he strongly recommends that individuals simply follow the well-worn practical rules of the Art of Life. As I argue further in the next section, the epistemically and time-constrained individual is not blameworthy for generally following general rules, even if it is in fact inexpedient to do so in certain cases. But Mill never denies individuals the discretion to appeal directly to utility considerations to justify violating a rule in cases when it is obvious that a violation would promote utility. If this is right, then in the punishment passage Mill does not commit himself to the rule-bound practice account of punishment found in Rawls. A critical discussion of Rawls’s account is beyond the scope of this article, but from a Millian perspective we should be sceptical of the 22 23 Miller, J. S. Mill, p. 94. ‘Thornton on Labour and its Claims’ (1869), CW V, 659. 10 Piers Norris Turner claim that the term ‘punishment’ is reserved only for systems that do not allow any discretion to appeal directly to the desirability of inflicting a harm on the wrongdoer. Rawls presents a false dichotomy between a strict rule-bound practice and ‘full liberty’. As we shall see, Mill’s view of the appropriateness of punishment or blame is consistent with an actutilitarian account of rule-following that recognizes the epistemic value of social rules and the pragmatic advantages of generally following them, but which also allows for exceptions in clear cases. So far I have argued that Mill’s account of Morality as the department of blameworthiness can be accommodated by an actutilitarian framework and that evaluations of blameworthiness are not rule-bound for Mill in the way that the rule-utilitarian interpretation would require. In the next section, I want to reinforce the second point by focusing on an underappreciated aspect of Mill’s practical ethics, namely, his attention to the question of who should decide what, grounded in a concern for competent decision-making. Rawls’s attention to decision-making within a practice or institution ironically helps us to see more clearly the nature of Mill’s act-utilitarian commitments. He is sensitive to Rawls’s concerns about discretion but rejects the stark choice between strict rule-bound constraints and full liberty, and treats jurisdictional questions in a way entirely consistent with an act-utilitarian account. IV. MILL’S JURISDICTIONAL ACT-UTILITARIANISM Mill’s attention to competent decision-making is vital for understanding the particular shape of his political commitments in On Liberty.24 In this section I suggest that the same concern shapes his practical ethics. In particular, it can explain Mill’s claim that individuals generally should attend only to matters within the rules laid down by social authorities. But, in contrast to Rawls’s account, the constraints on decision-making that result from this picture do not constitute rule-utilitarianism. Let us call the resulting view jurisdictional actutilitarianism. Mill’s political philosophy is littered with examples in which he assigns decisional authority or jurisdiction over different matters by determining which available party is most competent to decide them. This means, on his view, that the decisions of the less competent may rightfully be constrained by the decisions of the more competent. Competence is not just a matter of expertise, but also of having the proper concern for, and motivation to bring about, the good in 24 See Piers Norris Turner, ‘The Absolutism Problem in On Liberty’, Canadian Journal of Philosophy 43 (2013), pp. 322–40. Punishment and Discretion in Mill’s Utilitarianism 11 25 the relevant domain. In the most well-known example of Mill’s jurisdictional thinking, he argues in On Liberty that individuals should be allowed to decide their own good because ‘with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else’ (CW XVIII, 277). Besides superior knowledge of the relevant particulars, individuals also have a greater stake in their own good than anyone else. For these reasons, Mill argues, social authority is less competent than the individual when it comes to the individual’s own good and, therefore, social interference with individual liberty may not be justified by appeal to paternalistic considerations. In related jurisdictional proposals throughout his political work, Mill designs a complex set of institutions guided in large part by the conviction that overall utility will be best promoted by giving jurisdiction over different matters to those individuals with the greatest competence concerning them, as in his plural voting scheme, his rejection of ‘pledges’ by representatives to their constituents, and his support for representative government itself.26 He writes: ‘Now, all we contend for, all we have ever contended for, is, that the people ought to have the benefit of having their affairs managed by the wise, rather than by those who are otherwise . . . Shall we mend the matter by setting a less wisdom to dictate to a greater?’27 He states – explicitly and repeatedly – that in a democracy political success depends on our collective willingness to show ‘deference to mental superiority’ (CW XIX, 508; see 507–8): It is not necessary that the many should themselves be perfectly wise; it is sufficient, if they be duly sensible of the value of superior wisdom. It is sufficient if they be aware, that the majority of political questions turn upon considerations of which they, and all persons not trained for the purpose, must necessarily be very imperfect judges; and that their judgment must in general be exercised rather upon the characters and talents of the persons whom they appoint to decide these questions for them, than upon the questions themselves. (CW XIX, 650)28 Putting things a bit too simply: in his political works, Mill argues that, by and large, the democratic public should follow the general rules laid 25 See e.g. Considerations on Representative Government, CW XIX, 392. For a full discussion, see Piers Norris Turner, ‘Institutional Design and the Arguments of On Liberty’, manuscript. 27 Mill, ‘Pledges [2]’, CW XXIII, 497. 28 This is from ‘Rationale of Representation’ (1835), reprinted as part of ‘Appendix B’ to Dissertations and Discussions (1859). See also e.g. Principles of Political Economy, CW III, 764–5. Mill is clear that deference need not be conceived of as ‘the blind submission of dunces to men of knowledge, but the intelligent deference of those who know much, to those who know still more’ (Auguste Comte and Positivism (1865), CW X, 314). 26 12 Piers Norris Turner down for us by those in a better position – due both to their personal qualities and their public perspective – to determine what those rules should be. What I am arguing is that these competence-based jurisdictional considerations also structure Mill’s practical ethics generally. The key thought is that in most cases most of us do best simply by attending to our own personal sphere and otherwise abiding by the rules laid down by those more competent to decide matters of general policy. It is important to see that Mill’s jurisdictional approach gives his practical ethics a seemingly rule-ish, institutional character. But it is also important to bear in mind that, unlike Rawls, he does not deny individuals the right to appeal directly to utility considerations to justify violating a general rule when it is clear that doing so will best promote utility. Consider Mill’s claim in Utilitarianism that, by and large, individuals should not calculate consequences for the whole world but should attend only to local consequences and otherwise follow general rules and laws laid down by legitimate social and political authorities. [I]t is a misapprehension of the utilitarian mode of thought, to conceive it as implying that people should fix their minds upon so wide a generality as the world, or society at large. The great majority of good actions are intended, not for the benefit of the world, but for that of individuals, of which the good of the world is made up; and the thoughts of the most virtuous man need not on these occasions travel beyond the particular persons concerned, except so far as is necessary to assure himself that in benefiting them he is not violating the rights – that is, the legitimate and authorized expectations – of any one else . . . Those alone the influence of whose actions extends to society in general, need concern themselves habitually about so large an object.29 On the jurisdictional view, Mill’s argument is that in most cases an individual’s best bet to promote overall utility is not to calculate all the consequences. Most individuals are poorly placed to make decisions on that basis – even relatively speaking. But most individuals are very well placed to make decisions concerning local consequences. Of course, the time and effort involved in calculating local consequences in each case may also interfere with promoting utility. As a result, he argues, ‘human happiness, even one’s own, is in general more successfully pursued by acting on general rules, than by measuring the consequences of each act’.30 But whereas the individual has jurisdiction over his own good and must attend carefully to local consequences, with regard to broader and distant social consequences the individual would rarely be justified in violating general rules of practice that ‘point out the manner in 29 30 Utilitarianism, CW X, 220. Letter to Grote, CW XV, 762. Punishment and Discretion in Mill’s Utilitarianism 13 which it will be least perilous to act, where time or means do not exist for analysing the actual circumstances of the case, or where we cannot trust our judgment in estimating them’.31 Mill reiterates this idea in his essay ‘Sedgwick’s Discourse’: ‘[N]one but those who mingle in public transactions, or whose example is likely to have extensive influence, have any occasion to look beyond the particular persons concerned. Morality, for all other people, consists in doing good and refraining from harm, to themselves and to those who immediately surround them’ (CW X, 59). On Mill’s view, then, the promotion of overall utility requires a division of intellectual labour and decision-making. And because of this, his practical ethics has a strongly institutional character. For this reason it might be tempting to assimilate his account to something like Rawls’s rule-utilitarian justification of practices. In August Comte and Positivism, Mill writes: May it not be the fact that mankind, who after all are made up of single human beings, obtain a greater sum of happiness when each pursues his own, under the rules and conditions required by the good of the rest, than when each makes the good of the rest his only object . . . (CW X, 337) But on the jurisdictional view, such comments express only best strategies for promoting overall utility and never amount to the claim that what the agent ought to do fundamentally is strictly constrained by the rules of a given practice. As we saw earlier, for Mill, following rules is blameworthy when one knows that violating the rule would better promote utility. Even if the individual should generally discount his own judgement when it conflicts with a well-established social rule, the individual must be cognizant of those unusual circumstances when abiding by the general rule would obviously be worse than violating it. Mill never denies that one would be blameworthy for failing to violate the rule in such a case, despite the jurisdictional character of his actutilitarianism. V. CONCLUSION I have tried to argue that the punishment passage need not be an obstacle to a consistent act-utilitarian interpretation of Mill’s moral theory. First, the Art of Life provides a framework for reconciling Mill’s evaluation of conduct in terms of both expediency and blameworthiness. There need be no inconsistency in Mill’s view and – like the contemporary act-utilitarian – he treats expediency as the more fundamental category of evaluation. Second, textual evidence 31 System of Logic, CW VIII, 946. 14 Piers Norris Turner suggests that, on Mill’s view, evaluations of blameworthiness are not strictly bound by rules, despite certain rule-ish considerations about punishment and discretion. Third, Mill’s own jurisdictional account in terms of competent decision-making remains consistent with the actutilitarian interpretation.32 [email protected] 32 For comments on earlier drafts of this article I am grateful to Gerald Gaus, Don Hubin, and two anonymous referees for this journal.