Key terms and concepts

There are some very common misrepresentations of utilitarianism. Perhaps the most persistent is that (act) utilitarians have no respect for the law. The story usually goes something like this...A rich person drops a twenty pound note and it is picked up by a poor person. Should the poor person return the money or keep it to buy food? People who have only a very superficial understanding of utilitarianism tend to say that act utilitarians would say the right thing to do is for the poor person to keep the money. The problem is that this assumes the law is completely irrelevant to act utilitarians. Ironically, this is often said by the same people who have just said that Bentham is an act utilitarian obviously completely unaware that the hedonic calculus is taken from Bentham’s book ‘Principles of Morals and Legislation’.

The key to understanding why utilitarians don’t advocate breaking the law is to remember that they are concerned with the long term consequences as well as the short term consequences.

In The Theory of Legislation Bentham specifically addressed this kind of situation. He says,

It is true there are cases in which, if we confine ourselves to the effects of the first order, the good will have an incontestable preponderance over the evil. Were the offence considered only under this point of view, it would not be easy to assign any good reasons to justify the rigour of the laws. Every thing depends upon the evil of the second order; it is this which gives to such actions the character of crime, and which makes punishment necessary. Let us take, for example, the physical desire of satisfying hunger. Let a beggar, pressed by hunger, steal from a rich man's house a loaf, which perhaps saves him from starving, can it be possible to compare the good which the thief acquires for himself, with the evil which the rich man suffers? … It is not on account of the evil of the first order that it is necessary to erect these actions into offences, but on account of the evil of the second order.

When Bentham talks of evils of the second order he is referring to the long term consequences of allowing or advocating that people break the law. There is, of course, a debate between utilitarians themselves as to when it is legitimate to break the law, as to when civil disobedience might be permitted, or even when rebellion is called for, but it is wrong to suggest that utilitarians have no respect for the law or that they would encourage people to break the law to gain some short term benefit.