Consequentialist Theories Research Articles

Virtuous Law-Breaking

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities. This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to—and even defiance of—the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally.

Consequentialism and the boundary of morality

ABSTRACTA series of our experimental studies show that some actions which consequentialists would treat as morally right or wrong were not regarded by ordinary people as a matter of morality. These results suggest that there is a divide between the moral and the non-moral that ordinary people intuitively believe in but that consequentialism seems unable to accommodate. We argue that the root of this conflict lies in the inclusion of non-moral value in the consequentialist theory of the good, which causes consequentialism to deny, in all cases involving primarily non-moral value, a moral/non-moral divide. We argue further that there is no good theoretical reason (other than that which motivates consequentialism) to think that such a divide is unjustified. Therefore, consequentialism faces a problem: any version of consequentialism that allows non-moral value into the theory of the good will be at odds with a substantial number of seemingly justified intuitions.

Proportionality of Fines in the Context of Global Cartel Enforcement

This article assesses the fundamental elements of national and international cartel sanctioning practices from a proportionality perspective under both retributive and consequentialist theories on punishment. It finds that the current framework of setting fines for international cartels fails to ensure proportionate overall punishment. This is due to two types of shortcomings. First, the amplification at an international level of the failure of national sanctioning methodologies to fully observe retributive or consequentialist proportionality principles. Second, the absence at an international level of an appropriate maximum limit on the level of punishment or any consideration of the overall proportionality of the overall punishment. Overcoming these shortcomings calls for not only the coordination of sanctions between authorities pursuing the same cartel, but also a serious reconsideration of the fundamental elements of national cartel fining methodologies. At the least, achieving overall proportionate punishment requires authorities to start considering the retributive and consequentialist objectives already achieved by fines imposed elsewhere for the same overall cartel conduct.

Subjective Consequentialism and the Unforeseeable

AbstractAs is already well known, subjective consequentialists face a challenge which arises from the fact that many (perhaps even most) of the consequences of an action are unforeseeable: this fact makes trouble for the assignment of expected values. Recently there has been some discussion of the role of ‘indifference’ principles in addressing this challenge. In this article, I argue that adopting a principle of indifference to unforeseeable consequences will not work – not because of familiar worries about the rationality of such indifference principles, but because subjective consequentialist theories which adopt such principles end up entailing either deontic indeterminacy or arbitrary deontic variance. This is because of another well-known fact: that possibilities do not ‘agglomerate’.

Responding Appropriately to the Impersonal Good

A promising strategy to make progress in the debate between consequentialist and non-consequentialist moral theories is to unravel the background assumptions of the respective views and discuss their plausibility. This paper discusses a background assumption of consequentialism that has not been noticed so far. Consequentialists claim that morality is about maximizing the impersonal good, and the background assumption is that an appropriate response to the impersonal good is necessarily a response to the impersonal good as a whole. In this paper, I argue that we should understand the impersonal good as a complex good, and that an appropriate responses to a complex good need not be a response to that good as whole. This constitutes a novel objection against consequentialism.

Consequentialism and Robust Goods

AbstractIn this article, I critique the moral theory developed in Philip Pettit's The Robust Demands of the Good: Ethics with Attachment, Virtue, and Respect (2015). Pettit's theory, which I label Robust-Goods Consequentialism, aims to avoid the problems but retain the attractive features of traditional consequentialist theories. The distinctive feature of Robust-Goods Consequentialism is a value theory that attempts to accommodate what Pettit calls rich goods: certain moral phenomena that can be categorized under the headings of attachment, virtue and respect. I argue that Robust-Goods Consequentialism fails because it implies very implausible value judgements.

The Cost of Consequentialization

AbstractConsequentializers suggest that for all non‐consequentialist moral theories, one can come up with a consequentialist counterpart that generates exactly the same deontic output as the original theory. Thus, all moral theories can be “consequentialized.” This paper argues that this procedure, though technically feasible, deprives consequentialism of its potential for normative justification. By allowing purported counterexamples to any given consequentialist moral theory to be accommodated within that theory’s account of value, consequentializers achieve a hollow victory. The resulting deontically equivalent consequentalist counterpart that results from absorbing originally non‐consequentialist moral intuitions can now no longer explain, in a theoretically illuminating way, why certain actions are wrong and others right. The paper explains why traditional consequentialist theories did not embrace the procedure, and sketches how consequentialism can consequentialize without incurring the same cost.

Reliabilism without Epistemic Consequentialism

This paper argues that reliabilism can plausibly live without epistemic consequentialism, either as part of a non‐consequentialist normative theory or as a non‐normative account of knowledge on a par with certain accounts of the metaphysics of perception and action. It argues moreover that reliabilism should not be defended as a consequentialist theory. Its most plausible versions are not aptly dubbed ‘consequentialist’ in any sense that genuinely parallels the dominant sense in ethics. Indeed, there is no strong reason to believe reliabilism was ever seriously intended as a form of epistemic consequentialism. At the heart of its original motivation was a concern about the necessity of non‐accidentality for knowledge, a concern quite at home in a non‐consequentialist or non‐normative setting. Reliabilism's connection to epistemic consequentialism was an accretion of the ’80s, and a feature of only one of its formulations in that decade.

Empirical Vindication of Moral Luck

AbstractIn resultant moral luck, blame and punishment seem intuitively to depend on downstream effects of a person’s action that are beyond his or her control. Some skeptics argue that we should override our intuitions about moral luck and reform our practices. Other skeptics attempt to explain away apparent cases of moral luck as epistemic artifacts. I argue, to the contrary, that moral luck is real—that people are genuinely responsible for some things beyond their control. A partially consequentialist theory of responsibility justifies moral luck. But this justification is no mere rationalization of the status quo. Recent experimental and evolutionary work on punishment and learning suggests that the very same reasons that justify moral luck have also shaped the evolution of our luck‐sensitive moral practices.

What Matters and How It Matters: A Choice-Theoretic Representation of Moral Theories

We present a new “reason-based” approach to the formal representation of moral theories, drawing on recent decision-theoretic work. We show that any moral theory within a very large class can be represented in terms of two parameters: (i) a specification of which properties of the objects of moral choice matter in any given context, and (ii) a specification of how these properties matter. Reasonbased representations provide a very general taxonomy of moral theories, as di↵erences among theories can be attributed to di↵erences in their two key parameters. We can thus formalize several distinctions, such as between consequentialist and non-consequentialist theories, between universalist and relativist theories, between agent-neutral and agent-relative theories, between monistic and pluralistic theories, between atomistic and holistic theories, and between theories with a teleological structure and those without. Reason-based representations also shed light on an important but under-appreciated phenomenon: the “underdetermination of moral theory by deontic content”.

Objectivism and Prospectivism About Rightness

In this paper I present a new argument for prospectivism: the view that, for a consequentialist, rightness depends on what is prospectively best rather than what would actually be best. Prospective bestness depends on the agent’s epistemic position, though exactly how that works is not straightforward. I clarify various possible versions of prospectivism, which differ in how far they go in relativizing to the agent’s limitations. My argument for prospectivism is an argument for moderately objective prospectivism, according to which the right thing to do is what would make sense given reasonable beliefs, reasonable probability estimates and a reasonable understanding of value.
 My argument is an argument for this form of prospectivism over objectivism. Arguments about prospectivism and objectivism usually use an example with the following form: an agent has a choice between options – one she knows would be acceptable, while the other could either be catastrophic or very good. Objectivists argue that the right thing to do is what would in fact be best (though the agent cannot know which option that is) while prospectivists argue that the agent’s ignorance is relevant, and the right thing to do is to compromise. The question is how we should understand the underlying argument. It is not about action guidance. Moderately objective prospectivism is not action guiding, because an actual agent may not have access to reasonable beliefs, probability estimates and so on. Another common argument is that the objective notion is the primary one. I show that there are no good grounds for this claim.
 My argument uses the distinction between rightness and goodness to show that a consequentialist theory, that bases rightness on goodness, should take into account how much goodness is at stake. Crucially, potential losses as well as gains are relevant. So long as goodness, rather than rightness, is in the driving seat, we should not be “bestness fetishists.” As the name suggest, this would be an irrational privileging of the best option. This argument does not apply to pure deontology: a pure deontology does not use the notion of goodness at all, and so there is nothing to compromise with. If the agent does not know what is right, there is nothing further to say.
 I end by arguing against a recent strategy that aims to show that although objectivism is true (the right option is the best one), we should sometimes do what is wrong (i.e. what is prospectively best). I argue that insofar as this is correct, it is simply prospectivism with awkward terminology.

Contractualism and the Death Penalty

It is a truism that there are erroneous convictions in criminal trials. Recent legal findings show that 3.3% to 5% of all convictions in capital rape-murder cases in the U.S. in the 1980s were erroneous convictions. Given this fact, what normative conclusions can be drawn? First, the article argues that a moderately revised version of Scanlon’s contractualism offers an attractive moral vision that is different from utilitarianism or other consequentialist theories, or from purely deontological theories. It then brings this version of Scanlonian contractualism to bear on the question of whether the death penalty, life imprisonment, long sentences, or shorter sentences can be justified, given that there is a non-negligible rate of erroneous conviction. Contractualism holds that a permissible act must be justifiable to everyone affected by it. Yet, given the non-negligible rate of erroneous conviction, it is unjustifiable to mete out the death penalty, because such a punishment is not justifiable to innocent murder convicts. It is further argued that life imprisonment will probably not be justified (unless lowering the sentence to a long sentence will drastically increase the murder rate). However, whether this line of argument could be further extended would depend on the impact of lowering sentences on communal security.

Why Would Two-Level Consequentialists Punish Only the Guilty?

The most commonly encountered and most serious objection against consequentialist theories of punishment is that they could sometimes endorse punishing innocent people. Two-level consequentialists can resist this objection. Because of how deterrence works, a system of social protection would clearly need to be careful, most of the time, to pick out only the guilty for punishment. What about exceptional cases? Any institution empowered to secretly frame innocent people would pose a grave danger to democracy, a danger that could prove lethal under only moderately unusual conditions. Meanwhile, individual consequentialists working within the criminal justice system should fear that their own views could be distorted by confirmation bias and other cognitive errors. These officials should normally trust any moderately well-functioning adversarial trial process more than they trust their own judgment of who needs to be punished. They should use extra-legal discretion only in cases where both their confidence and the stakes are extremely high; and in cases where the stakes are extremely high, the consequentialist answer is no longer counter-intuitive.

Truth in research labelling.

This report describes the background and context of a currently circulating petition to the US Congress that seeks amendment of Section 801 of the Public Health Services Act (42 U.S.C. 282) to close a loophole in existing law which makes possible post hoc adjustment of randomised controlled trial (RCT) results reported to the Food and Drug Administration that differ from those reported to ClinicalTrials.gov and to medical journals. The report describes the petition's rationale, underlying assumptions, and support for its proposed remedy in deontological, consequentialist, and casuist philosophical ethics theories. It addresses the several reservations of the World Association of Medical Editors (WAME) with citations of evidence for the petition's assertions. The report suggests that some medical journals are not unknowing victims but rather complicit enablers of the post hoc adjusted RCT results that they publish. Its closing remarks dwell on the negative impact that embrace of a neoliberal, anti-regulatory philosophy of government will likely have on any regulatory reform to promote the integrity of biomedical science and the future of evidence-based medicine.

On two modern hybrid forms of consequentialism

Abstract The article deals with two consequentialist theories and their comparison in terms of promoting certain values and evaluation of moral agents’ actions and behaviour. A basic presupposition is their mutual compatibility based primarily on their consequentialist nature. The paper searches for possible evidence that presented theories might be denominated as hybrid theories based on their dynamic transformations and it also searches for possible mutual enrichment of these theories/approaches as their examined similar character might be a good starting point for such goals. The nature of ethical values is questioned as well as the idea (supported by relevant argumentation) of not distinguishing ethical theories based on their implicit inclination towards usage of specific values. The paper confronts these traditional (classical) ideas of making such differentiation and thus strictly connecting specific moral values with specific ethical theories and not allowing possible productive associations. Ethics of social consequences and the theory of lesser evil are chosen as examples to prove that not limited approaches in terms of operation with only specific type of values might be productive. Their dynamic character predestines these theories to be hybrid ethical theories and thus compatible in their value structure and theory of right.

Machiavellian Intellectual Property

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have incompatible normative premises, societies may be forced to choose between the theories. But Berlin observed that it is possible to adopt different moral theories in different contexts. This article suggests that we can reconcile consequentialist and deontological theories of intellectual property by adopting a consequentialist public theory and deontological private theories

The Wrong of Mass Punishment

The increase in incarceration of offenders in the United States over the last 40 years has created a system of mass incarceration or mass punishment. While consequentialist theories of punishment may generate considerable doubts about the value of this system, it seems that retributive theories of punishment lack the resources to criticize mass punishment. Because of their focus on individual desert, it seems that they can say nothing about punishment in the aggregate. Nevertheless, there are good reasons for a certain kind of retributivism to question the justice of mass punishment. When retributive punishment is considered as one of the functions of a state whose task is to create and maintain a system of equal freedom for all, then punishment must be justified not only at the individual level but also at the level of the system of punishment as a whole. If the criminal justice system inflicts excessive amounts of punishment in the aggregate, it becomes unjust, not because individual offenders are treated unjustly, but because a policy of relentless prosecution and punishment is not appropriate for a free society.

Inclusion in International Schools: Theoretical Principles, Ethical Practices, and Consequentialist Theories

Inclusion in International Schools: Theoretical Principles, Ethical Practices, and Consequentialist Theories

The legacies of totalitarianism: a theoretical framework

The first political theory of post-Communism examines its implications for understanding liberty, rights, transitional justice, property rights, privatization, rule of law, centrally planned public institutions, and the legacies of totalitarian thought in language and discourse. The transition to post-totalitarianism was the spontaneous adjustment of the rights of the late-totalitarian elite to its interest. Post-totalitarian governments faced severe scarcity in the supply of justice. Rough justice punished the perpetrators and compensated their victims. Historical theories of property rights became radical, and consequentialist theories, conservative. Totalitarianism in Europe disintegrated but did not end. The legacies of totalitarianism in higher education met New Public Management, totalitarian central planning under a new label. Totalitarianism divorced language from reality through the use of dialectics that identified opposites and the use of logical fallacies to argue for ideological conclusions. This book illustrates these legacies in the writings of Habermas, Derrida, and Žižek about democracy, personal responsibility, dissidence, and totalitarianism.

Hume and Utilitarianism: Another Look at an Age-Old Question

The discussion on the relationship between Hume and utilitarianism has been lively for many decades. To contribute to this discussion, I identify four main features of a utilitarian view: a) a consequentialist theory of the right, b) a hedonist theory of the good, c) some kind of impartiality in evaluating consequences, and d) an essentially prescriptive, rather than merely explicative, attitude. I then show that, first, although he borrowed the word ‘utility’ from Hume, Bentham did not consider Hume as a utilitarian and, second, that Hume's ethics does not really endorse any of the four main tenets of utilitarianism, either in the Treatise or in the Enquiry. I thus conclude that, notwithstanding recent interpretations to the contrary, Hume was no utilitarian in any substantial sense.