Consequentialist Theories Research Articles

Restitutionism

Modem discussion of the ethics of punishment has given rise to a variety of different answers to the traditional questions as to why and how crim inals should be punished for their misdeeds. Despite the fact that anyone engaged in a consideration of these questions will thus face a poly faceted theoretical field, it is nevertheless obvious, I believe, that the more basic ingredients in the discussions have to a large extent consisted of the traditional competing positions, namely, consequentialism and retributivism. Consequentialist theories of punishment have been pre sented in versions differing with regard to which value theory is adopted or whether the theories are pure or are in some way restricted.1 Retribu tivist theories have unfolded in many ways, giving different explanations as to why a criminal deserves punishment.2 And several attempts have been made at working out hybrids between the two basic theories. Even though the traditional way of characterizing theories either in consequen tialist or retributivist terms is therefore still highly useful, it is also a fact that these categories are no longer sufficient. Modem discussion has giv en rise to brand theories. The most notable example of such a theory is probably what has be come known as restitutionism. This theory was originally presented by Randy Bamett in an article in which he, opposing consequentialism and retributivism, proposed a radical redirection of thinking about crime and punishment or, as he put it: a new paradigm of criminal justice.3 The basic idea, as we shall see, is that justice consists in making criminals compensate their victims for the damage caused. Unsurprisingly, this

Is Virtue Ethics Self-Effacing?

Virtue ethicists argue that modern ethical theories aim to give direct guidance about particular situations at the cost of offering artificial or narrow accounts of ethics. In contrast, virtue ethical theories guide action indirectly by helping one understand the virtues—but the theory will not provide answers as to what to do in particular instances. Recently, this had led many to think that virtue ethical theories are self-effacing the way some claim consequentialist and deontological theories are. In this paper I defend virtue ethics against the charge of self-effacement. I distinguish between modestly self-effacing theories, immodestly self-effacing theories and theories that recommend indirect guidance. Though all self-effacing theories are indirect, not all indirect theories are self-effacing. I argue that virtue ethics is not self-effacing, but rather indirectly action-guiding. The response I articulate draws on the distinctive virtue ethical mode of action-guidance: namely, that thinking hard about virtue and what kind of person one aims to be offers the kind of guidance we want (or should want) as we face practical moral problems.

Threshold Constraints and Laws of War

The laws of armed conflict forge a balance between deontological humanitarian concerns on one hand, and consequentialist military-advantage concerns on the other hand. Yet the literature provides inadequate theoretical foundations for the balances these rules make at a structural level. In this paper, I explain how the standard humanitarian account and the first-wave economic account cannot alone explain the diversity of rules and principles observed in the formal doctrine and in state practice. States’ revealed preference for norms fleshing out those “minimum standards” can not be brushed aside as mere “behavioral regularities.” Many of these minimum standards are the result of purely instrumental coordination, since all belligerents are better off with full compliance under conditions of transparency and effective enforcement. But recognizing that states sometimes act for non-instrumental reasons supplements rather than falsifies claims that states act rationally under other circumstances. By adopting and deploying recent advances in law and economics that seek to bridge the gap between consequentialist and deontological moral theories, I show how the complex system of the laws of war are the product of both kinds of concerns. This working paper applies the threshold constraint framework to an emerging class of problems in the laws of armed conflict related to cyberwarfare. Uncertainty, risk-shifting, threshold-constraint concerns, and cost-reduction preferences play important roles in shaping law-of-armed-conflict rules, which in turn constrain and channel the tactical options states can select in carrying out armed conflict. These concerns also have institutional-design effects when states are uncertain about how technological progress will change battlefield conduct. This draft ends by explaining and understanding how states might seek to change those rules in light of anticipated (and even unknown) changes in battlefield technology.

Consequentialism's Double-Edged Sword

Recent work on consequentialism has revealed it to be more flexible than previously thought. Consequentialists have shown how their theory can accommodate certain features with which it has long been considered incompatible, such as agent-centered constraints. This flexibility is usually thought to work in consequentialism's favor. I want to cast doubt on this assumption. I begin by putting forward the strongest statement of consequentialism's flexibility: the claim that, whatever set of intuitions the best non-consequentialist theory accommodates, we can construct a consequentialist theory that can do the same while still retaining whatever is compelling about consequentialism. I argue that if this is true then most likely the non-consequentialist theory with which we started will turn out to have that same compelling feature. So while this extreme flexibility, if indeed consequentialism has it (a question I leave to the side), makes consequentialism more appealing, it makes non-consequentialism more appealing too.

The rights and wrongs of consequentialism

I argue that the strongest form of consequentialism is one which rejects the claim that we are morally obliged to bring about the best available consequences, but which continues to assert that what there is most reason to do is bring about the best available consequences. Such an approach promises to avoid common objections to consequentialism, such as demandingness objections. Nevertheless, the onus is on the defender of this approach either to offer her own account of what moral obligations we do face, or to explain why offering such a theory is ill-advised. I consider, and reject, one attempt at the second sort of strategy, put forward by Alastair Norcross, who defends a ‘scalar’ consequentialism which eschews the moral concepts of right, wrong and obligation, and limits itself to claims about what is better and worse. I go on to raise some considerations which suggest that no systematic consequentialist theory of our moral obligations will be plausible, and propose instead that consequentialism should have a more informal and indirect role in shaping what we take our moral obligations to be.

Aquinas and Modern Contractualism

When modern ethical contractualists defend their view against “teleology,” they typically have in mind utilitarian or consequentialist theories according to which valuable states of affairs are to be promoted. But if we look to older teleological theories e.g. that found in the philosophy of St. Thomas Aquinas we will find a kind of teleology that can be incorporated beneficially into contractualist ethics. In this paper I argue that Scanlon would be well served, on grounds to which he appeals, to make a teleological modification to his theory of what we owe to each other. Drawing not only on Aristotle and Aquinas, but also on the thought and life of Martin Luther King, I argue that Scanlon's contractualism can and should be modified to incorporate the ancient and medieval teleological emphasis on personal fruition and legitimate self‐assertion.

The Extraterritorial Scope of the Right to Punish

This paper provides a philosophical critique of the principles that govern extraterritorial punishment under international law. It advocates an interest-based theory of punishment that accounts for states’ right to punish offences committed on their territory or against their sovereignty, security or important governmental functions. Yet, it criticizes the states’ well-established right to punish crimes committed extraterritorially on grounds of the nationality of the offender or that of the victim. Indeed, it shows that the arguments on the basis of which these jurisdictional bases are commonly defended either beg the fundamental question they are meant to answer or are simply committed to much broader rules than those currently in force. The last section of this paper examines whether competing justifications for legal punishment based on other grounds have more promise in terms of being able to better explain how the international law currently regulates extraterritorial punishment. It suggests that even refined consequentialist and deontological theories ultimately do not fare as well as the argument advocated here in accounting for certain core intuitions regarding the practice of legal punishment.

WHAT IS CONSEQUENTIALISM?

Elinor Mason explains and contrasts consequentialist and duty-based theories of ethics.

WHAT IS IT LIKE TO BE A GROUP?

AbstractConsequentialist and Kantian theories differ over the ethical relevance of consequences of actions. I investigate how they might differ too over the relevance of what actions are consequence of. Focusing on the case of group action and collective responsibility, I argue that there's a kind of analog to the problem of aggregating the value of consequences—about aggregating responsibility with respect to the roles of cooperating agents—that Kantian theories will not confront and consequentialist theories will. The issue provides a useful way to characterize a deep difference between Kantian and consequentialist theories and points, ironically, toward a way of making those views compatible.

TWO DOGMAS OF DEONTOLOGY: AGGREGATION, RIGHTS, AND THE SEPARATENESS OF PERSONS

AbstractOne of the currently popular dogmata of anti-consequentialism is that consequentialism doesn't respect, recognize, or in some important way account for what is referred to as the “separateness of persons.” The charge is often made, but rarely explained in any detail, much less argued for. In this paper I explain what I take to be the most plausible interpretation of the separateness of persons charge. I argue that the charge itself can be deconstructed into at least two further objections to consequentialist theories. These objections amount to (i) the rejection of axiological aggregation, and (ii) the rejection of deontic aggregation. Of these two objections, I argue that the first one, though often made, is untenable. I also argue that the second objection, in its various forms, relies on distinctions whose moral significance is vigorously denied by almost all consequentialist theorists. I thus argue that the separateness of persons objection poses no special threat to consequentialism.

Should physicians fake diagnoses to help their patients?

Are fake diagnoses and false or misleading certificates permissible means of helping patients? This question is examined in relation to four examples from Swedish health care: the sterilisation case, the...

Value, Reason and Hedonism

It is widely believed that we always have reason to maximize the good. Utilitarianism and other consequentialist theories depend on this ‘teleological’ conception of value. Scanlon has argued that this view of value is not generally correct, but that it is most plausible with regard to the value of pleasure, and may even be true at least of that. But there are reasons to think that even the value of pleasure is not teleological.

The Value of a Promise: A Utilitarian Approach to Contract Law Remedies

This Article critically examines the applicability of law and economics, or wealth maximization theory, to contract law by examining this theory from within the consequentialist framework of utilitarianism. Roughly speaking, wealth maximization theory is a consequentialist theory of justice holding that those actions that increase wealth are just and should be allowed, whereas those actions that decrease wealth are unjust and should be forbidden. This theory has been used not only to support such controversial doctrines as efficient breach, but also to inform the way that many scholars and judges think about remedies for the breach of contract. Although the growth and acceptance of wealth maximization theory has been rapid since it was first formalized several decades ago, it is by no means uncontroversial, having been subject to constant attack since its inception from many who, operating outside of consequentialism, have criticized the normative foundations upon which wealth maximization theory rests, expressing their dismay over a theory that encourages the breaking of a solemn oath in the name of efficiency. Until now, however, previous scholarship has not critically examined this theory from within the consequentialist framework to see whether it, in fact, actually maximizes wealth. This Article provides that approach.Unlike other scholarship in this area, this Article does not challenge the normative foundations upon which wealth maximization theory rests, but rather argues that, on its own terms, this theory fails to maximize wealth within contract law. This is because wealth maximization theory is a fundamentally utilitarian theory that depends upon, and derives its legitimacy from, the utilitarian concept of value. Notably however, wealth maximization theory often prevents value from being maximized in the name of wealth. This insight has profound implications, suggesting not only that the continued application of this theory to contract law ought to be seriously questioned, but also that the way both consequentialists and nonconsequentialists think about remedies in contract law may need to be rethought. Indeed, this insight may even help reconcile these divergent theories within contract law because, as this Article suggests, the best way to achieve the consequentialist end of utility maximization is often through the nonconsequentialist means of contract enforcement, including the enforcement of liquidated damages clauses and specific performance.

Torture and the Problem of Dirty Hands

This paper looks at the contemporary debate over investigative torture in liberal democracies besieged by terrorism, from the viewpoint of the state leader, politician, judge or individual interrogator, called upon to make life-and-death decisions. It steers away from the classic debate between utilitarians and Kantians regarding moral justification, and, following Michael Walzer presents the issue as a specific case of "the problem of dirty hands in politics". Contra Walzer, the paper suggests, among other things, that the notion of dirty hands functions not only within moral theories that include absolute prohibitions but also within consequentialist theory, and that it is therefore far wider, practically illuminating and more applicable than Walzer originally assumed. Later it addresses Alan Dershowitz’s controversial suggestion requiring judicial "torture warrants", and argues that this too should be viewed in light of the notion of dirty hands rather than within the conventional debate over justifications. Finally, it suggests that, while torture may be morally unjustifiable on anything but purely consequentialist grounds, circumstances may offer the individual decision maker an excuse, rather than a justification, for resorting to torture under very restricted conditions.

Reconceiving Rights and Constitutionalism

Human rights invoked in the international context are often treated as having self-evident content. The focus is on implementation and enforcement. The urge to enforcement is especially strong when...

A New Argument Against Rule Consequentialism

We best understand Rule Consequentialism as a theory of pattern-based reasons, since it claims that we have reasons to perform some action because of the goodness of the pattern consisting of widespread performance of the same type of action in the same type of circumstances. Plausible forms of Rule Consequentialism are also pluralist, in the sense that, alongside pattern-based reasons, they recognise ordinary act-based reasons, based on the goodness of individual actions. However, Rule Consequentialist theories are distinguished from other pluralist theories of pattern-based reasons by implausible claims about the relative importance of act-based and pattern-based reasons in different cases. Rule Consequentialists should give up these claims. They should either embrace some other pluralist pattern-based view, or reject pattern-based reasons altogether. Note, though, that these arguments apply only to compliance-based, rather than acceptance-based, versions of Rule Consequentialism. This suggests that these two kinds of theory are more different from each other than we might previously have realised.

Against Consequentialist Theories of Virtue and Vice

Consequentialist theories of virtue and vice, such as the theories of Jeremy Bentham and Julia Driver, characterize virtue and vice in terms of the consequential, or instrumental, properties of these character traits. There are two problems with theories of this sort. First they imply that, under the right circumstances, paradigmatic virtues, such as benevolence, are vices and paradigmatic vices, such as maliciousness, are virtues. This is conceptually problematic. Second, they say nothing about the intrinsic nature of the virtues and vices, which is less than we could hope for from a theory of virtue and vice. Thus, we have reason to reject consequentialist theories in favour of theories that characterize virtue and vice in terms of the intrinsic properties of these character traits. Aristotle and Thomas Hurka have theories this sort.

Virtue ethics is self-effacing

An ethical theory is self-effacing if it tells us that sometimes, we should not be motivated by the considerations that justify our acts. In his influential paper ‘The Schizophrenia of Modern Ethical Theories’ [1976], Michael Stocker argues that consequentialist and deontological ethical theories must be self-effacing, if they are to be at all plausible. Stocker's argument is often taken to provide a reason to give up consequentialism and deontology in favour of virtue ethics. I argue that this assessment is a mistake. Virtue ethics is self-effacing in just the same way as are the theories that Stocker attacks. Or, at the very least: if there is a way for virtue ethics to avoid self-effacement then there are ways for its rivals to avoid self-effacement too. Therefore, considerations of self-effacement provide no reason to prefer virtue ethics to its major rivals.

Inconsistency and the Theoretical Commitments of Hooker's Rule-Consequentialism

Rule-consequentialism is frequently regarded as problematic since it faces the following powerful dilemma: either rule-consequentialism collapses into act-consequentialism or rule-consequentialism is inconsistent. Recent defenders of this theory such as Brad Hooker provide a careful response to this objection. By explicating the nature and theoretical commitments of rule-consequentialism, I contend that these maneuvers are not successful by offering a new way of viewing the dilemma which retains its force even in light of these recent discussions. The central idea is that even the most well-developed contemporary form of the view is ensnared in the following dilemma: as an agent-neutral consequentialist theory, rule-consequentialism is either inconsistent or it is desperately unmotivated as a form of consequentialism since it is committed to a non-consequentialist form of ultimate moral value.

Karyn Lai, Learning from Chinese Philosophies: Ethics of Independent and Contextualised Self, Aldershot, UK: Ashgate, 2006, 218 pp., ISBN: 0754633829, hb

Learning from Chinese Philosophies explores early Confucianism and Daoism in order to engage today’s problems. By bringing into thoughtful play Confucian ideas of self and society and Daoist understanding of situated self, the author uses the debate between the two philosophies to argue for her understanding of Confucian moral thinking and Daoist metaethics. According to Lai, Daoist metaethics question dichotomous frameworks and discuss the unity of opposites enabling dynamic interplay of nonantagonistic polarities. Lai not only rejects comparisons of Confucianism to consequentialist and deontological moral theories, but also the view that Confucian ethics is a form of virtue ethics. Instead, she argues that the Analects is a manual for moral decision making that requires skills “to unravel and analyse the complex features of particular situations and to pick out those which are morally relevant.” Together, Confucianism and Daoism offer views of interdependent relationality that help to reconceptualize contemporary problems and criticize existing thinking and practices. Lai applies what she has learned from these two Chinese philosophies in a critique of feminist care ethics. Despite a few flaws, this is a clearly written work with stimulating interesting ideas and it lives up to the promise of demonstrating the continued relevance of Chinese philosophies.