Three UTILITARIANISM AND LIBERALISM Harry Lesser 1. Introduction In both ethics and politics, perhaps especially in bioethics, one common basic theory, or at least basic approach, is a combination of utilitarianism and liber- alism. This way of tackling the problems of bioethics is one that many people, myself included, find attractive: in general, one may expect people who esteem the work of Matti Häyry to find it attractive.1 But there is a serious question as to whether this approach, however great its emotional appeal, holds together rationally; and whether the two positions, utilitarianism and liberalism, are even compatible with each other. Even some of the people who hold both posi- tions do so by assigning them to different spheres. A good example would be Ronald Dworkin, whose position seems to be that we should tackle political and ethical questions using a utilitarian approach, except where rights are in- volved, when these “trump” utilitarian considerations.2 In contrast, there is John Stuart Mill’s On Liberty, perhaps the classic liberal text, which defends liberalism precisely on utilitarian grounds, and not on grounds of abstract right.3 This paper seeks to examine, and as a result defend, Mill’s view that maximizing personal freedom also in the long term maximizes utility. It also seeks to say something about the consequences of this for bioethics. 2. Defining Utilitarianism and Liberalism We need to begin with definitions. In general terms utilitarianism is easy to define, as the theory that what is morally right at any given time is that which maximizes happiness or at any rate minimizes suffering. But then the problems start. Do we apply this to actions, to rules for action or to general policies? For the purposes of bioethics we can say that we are essentially concerned with ways of behaving, with systems and policies rather than individual actions. Secondly, do we define happiness in terms of pleasure and pain, or in terms of satisfaction of preferences? Here, I will assume that the theory of utilitarianism has improved as it has developed, and that contemporary utilitarians are right to see satisfaction of preferences as the better option, given that pleasure is not the only thing we want, and pain, however widely defined, not the only thing Harry Lesser - 9789042027404 Downloaded from Brill.com09/26/2021 06:11:45PM via free access 30 HARRY LESSER we seek to avoid. I will also assume that John Harris, for example in his The Value of Life (1985), and others are right to conclude both that the preferences of each person are of equal importance and that certain preferences, notably the desires for life and for liberty, must be privileged and regarded as of su- preme importance, since if anyone is denied life or liberty they are obviously denied the chance of satisfying any other preferences.4 The more controversial question, of whether there are other wants or preferences that should be privi- leged, because they meet the deepest human needs, will be left undecided. Liberalism can obviously mean very different things. In this paper it will be defined as the theory that all adult members of society should be free to participate in decision making, to compete on equal terms, and to take their own decisions in what concerns themselves entirely or primarily: the first and third of these are particularly relevant to bioethics. (It should be noted that here and elsewhere the words “Liberal” and “Liberalism” have the British, not the American, connotation). Given these definitions, the problem to be addressed is the following: Is the liberal model of health care, in which patients and cli- ents are encouraged to make their own decisions as to what treatment they are given, at all consistent with the utilitarian requirement, that the aim of health care must be to maximize healthy functioning, physical and mental, and mini- mize disease and pain? 3. Wants, Needs, and Liberalism Why should liberalism and utilitarianism, thus defined, not be consistent? This is because of two reasons. First, liberalism, as defined above, seems to entail that at least some—not all but some—crucial decisions should be taken ac- cording to the choices of individuals, regardless of other considerations. Liber- alism, in bioethics as elsewhere, is committed to the existence of individual rights, and to holding that these rights hold irrespective of the consequences. Utilitarianism, in contrast, is committed to the view that there are no absolute rights, and that the general welfare should overrule individual wishes and choices. So it seems that for a liberal, health care should be distributed accord- ing to what people want: patients are entitled to the health care that they choose, if it is available. If there is not enough to go round, so to speak (and there never is), it should be a matter of “first come, first served” or, for those liberals who believe in the “free market,” of health care going to those able to pay. In contrast, a utilitarian must logically hold that health care must be dis- tributed according to need, or according to an expert assessment of what will do the most good; and this will clearly produce a different distribution from the “liberal” one. But is liberalism really committed to this? It is committed to holding that medical treatment may not be forced on a person against their will, even if the experts believe it would be beneficial. (The exceptions to this will be discussed Harry Lesser - 9789042027404 Downloaded from Brill.com09/26/2021 06:11:45PM via free access Utilitarianism and Liberalism 31 later on.) But it is not in any way committed to holding that people are entitled to the treatment that they want, regardless of the claims of others whose condi- tion is more serious, or of the assessment by doctors that the treatment will do no good. Nor is it committed to the view that medical care and resources should be distributed according to the ability to pay. There are liberals who hold both these positions, but they are not essential to liberalism. Notably, they are not part of the liberalism of On Liberty. For what Mill holds is that a per- son should not be compelled to do, or refrain from doing, anything “for their own good,” that is, because in the opinion of others it would be to their benefit, or wise, or right; but once their actions harm others there is a duty to inter- vene.5 Moreover, all that is involved here is the idea that one should not inter- fere with what people do when it does no harm to others, or (though Mill him- self explicitly rejects this formulation and its implications) the idea that people have a right not to be interfered with in this sphere. There is nothing to suggest that people have any positive right to be provided with what they want simply because they want it. Least of all is this the case when they do harm, even un- intentional harm, by taking it, as would be the case if they had a “right” to use- less medical treatments, and could take care and resources away from those who would be helped by them. It is also not the case when other people have a greater claim in justice to the resources, for example by being obviously in greater need. One may add that the ideas that medical resources should be distributed according to the wants of the first-comers, or according to the results of the free market, though they are part of one version of liberalism, are not in fact consistent with its basic principle, that freedom should be maximized. The maximization of freedom requires that the more serious obstacles to it be tack- led in preference to the less serious, if one cannot tackle both; in the area of health this means that the more seriously ill take precedence over the less seri- ously ill, even if this means that the wishes of the less seriously ill are tempo- rarily thwarted. It also requires that inequalities of power be limited; and this in its turn may require that there be limitations both on economic inequality and on how the better off may use their money. There may well be an impor- tant place for the free market; but there is no guarantee that every operation of the free market increases overall freedom, or that every limitation on it will diminish freedom. In particular, there are good reasons for thinking that free- dom is best served by distributing health care according to need rather than according to the market.6 4. Utilitarianism and Individual Rights So we may say that one supposed reason why utilitarianism and liberalism are incompatible should be rejected. Liberalism does not require us to put the mere desires of one person above the real needs (those things which are actually Harry Lesser - 9789042027404 Downloaded from Brill.com09/26/2021 06:11:45PM via free access 32 HARRY LESSER essential to life or health) of others; and those who think it does may well be subscribing to an ultimately inconsistent liberal theory. But there is a further problem. Liberalism seems to be committed to individual rights, whether by holding that there are moral as well as legal rights or by holding that there are some things, such as life and liberty, which ought to be legally protected eve- rywhere: even Mill, though he rejects any appeal to liberty as an abstract right, elsewhere endorses the general notion of rights.7 Now this does seem to be incompatible with utilitarianism, for this commits the liberal to holding that some things may not be done to a person whatever the consequences; and the utilitarian is committed to holding that nothing can be excluded totally, if the circumstances warrant it.