Can utilitarianism account for fundamental rights ?

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Can utilitarianism account for fundamental rights ? Dissertation en anglais sur l'utilitarisme et les droits fondamentaux, références à Mill, Hart, Bentham. 15 pages



The justification of the law is one of the major preoccupations of moral philosophers. They have developed different philosophies of political morality, or ?philosophies of government?, aiming to find out how much law a community needs. One of the most significant theories proposed was utilitarianism, elaborated in the eighteenth century by Jeremy Bentham in his Introduction to principles of morals and legislation. Utilitarianism can be regarded both as a system of personal morality and a system of social or political decision. The latter has principally been developed by the fathers of the theory, as offering ?a criterion and basis of judgement for legislators and administrators.?

Extraits

[...] This theory has been developed without taking into account the notion of fundamental rights of individuals within the society. It has then been revised by later philosophers who have used utilitarianism as a framework; in addition, they have tried to accommodate the notion of basic human liberties that all individuals detain in virtue of their human nature. However, the criticisms elaborated during the twentieth century seem to apply to all forms of utilitarianism, even later ones. These criticisms claim that utilitarianism cannot account for fundamental rights because of its concern to maximise the welfare of the community. [...]

[...] Op.Cit., p.38. Op.Cit p.34-37. SEN WILLIAMS eds., Utilitarianism and beyond, Cambridge University Press p.4. Ibid; HART (H.L.A.), Op.Cit., p.78. PRIOREF Le Bonheur: anthropologie de textes philosophiques et littéraires, Paris, Maisonneuve et Larose p.77. BRANDT (R.B.), Op.Cit., p.200. Universal Declaration of Human Rights Article 4. HART (H.L.A.), Op.Cit., p.78. LYONS “Utility and rights”, in WALDRON Theories of rights, Oxford University Press pp.113-114. Op.Cit., p.114. [...]

[...] His rights stop where other individuals' rights begin.[16] Moral rights are equally distributed among all human persons.[17] The question of whether utilitarianism has room for fundamental rights shall be answered in relation to this definition of rights. According to some philosophers, “there is a fundamental incompatibility between utilitarianism and human rights.”[18] If this affirmation can be easily verified concerning the traditional utilitarianism of Bentham, it seems that later developments of the theory have room for rights despite the criticism. Utilitarianism was first developed by Jeremy Bentham in his major philosophical work, Introduction to the principles of morals and legislation.[19] According to Bentham, pain and pleasure are the two masters of mankind, and nothing else can be used to find what is moral, what men ought to be. [...]

[...] If utilitarianism can therefore account for legal rights, it seems that it has no room for fundamental rights, hence a recent change of doctrinal position to the benefit of natural rights theories. BIBLIOGRAPHY Official document Universal Declaration of Human Rights Books BENTHAM Introduction to the Principles of Morals and Legislation, Oxford, Blackwell BERLIN Four essays on liberty, Oxford University Press BRANDT (R.B.), Morality, utilitarianism, and rights, Cambridge University Press pp.179-212. DWORKIN, Taking Rights Seriously, London MILL (J.S.), Utilitarianism, On Liberty, Considerations on representative government, Edited by Geraint Williams, Everyman, J.M. [...]

[...] Op.Cit., p.196. Universal Declaration of Human Rights Preamble. Op.Cit., Article 1. Op.Cit., Article 3. [14]Op.Cit., Article 7. GEWIRTH Op.Cit., p.92. BRANDT (R.B.), Op.Cit., p.197. GEWIRTH Op.Cit., p.93. BRANDT (R.B.), Op.Cit., p.196. BENTHAM Introduction to the Principles of Morals and Legislation, Oxford, Blackwell Op.Cit., p.11-16. [...]