The easiest way I can describe this is “the greater good”. Think of Hot Fuzz and you will know exactly where this post is going.
Utilitarianism, which I learnt about in my undergraduate degree of philosophy is a consequentialist theory (famously advocated by the philosopher John Stuart Mill). As the name suggests, utilitarianism is all about acts which have the result (as appose to the intention such as ethical theories like virtue ethics) of creating the most utility. Broadly speaking, utility can be defined as the most happiness. However there are different types of utility, as there are different types of happiness. For example, eating ice cream makes me happier, but securing that elusive training contract which is going to contribute heavily to my career has a far greater utility function than ice-cream. So what does this have to do with the law?
The Law and Utilitarianism
There are various cases in which the law and the theory of utilitarianism seem to go hand in hand. Take for example, tort cases with the police such as Hill v Chief Constable of West Yorkshire . The Police do not owe a general duty of case to the individual but to society as a whole. The policy reasons for this decision was clear the argument that if the police owed a duty of care to the individual then they would not be flooded with claims and therefore not be able to do their duty to society, and therefore they would not be able to do their job for “the greater good”.
However, this case also reveals the greatest problem for the utilitarianism. Whilst in principle the theory seems logical, it can lead to huge injustices for the individual or small groups of individuals.
A good example where a utilitarianistic approach in the law can also lead to injustices to the individual would be in the area of human rights. More specifically, qualified human rights. People are entitled to their human rights prescribed by the Human Rights Act 1998 such as Article 8 Right to respect for private and family life. They are rights, unless there is a prescribed law in the UK which means that these rights can be breached when it is
“necessary in a democratic society, in the interests of national security, public safety and the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others”.
In other words… THE GREATER GOOD!
There are in short, a lot of headings here in which a qualified right can be apparently justifiably breached in the UK and therefore the rights of that individual will be breached if the reason for doing so can be said to fall under any of these headings and is prescribed by law.
Another Problem for Utilitarianism
There is an argument put forward by Elizabeth Anscombe that there is sometimes no justification for actions in the name of utilitarianism. Even if the act creates greater utility and happiness after it, there is absolutely no justification in the acts which were used to create that utility and therefore it basically renders to utility function useless. The example given was of the Hiroshima and Nagasaki bombings. The bombings arguably cut the war short and therefore for this reason killing thousands, lead to thousands more having their lives saved. However she argued that there were some moral rules that were absolute and therefore doing them for the “greater good” is not a sufficient argument, “some things may not be done, no matter what”.
The UK Law and Absolute Rules
Luckily, the UK law does seem to recognise some rules as absolute. For example, absolute human rights are not subject to the same exceptions as qualified ones, there are some that are even subject to absolutely no exceptions, such as Article 3 the prohibition of torture.
It is however still a problem for qualified rights and whilst there is a distinction between absolute and qualified rights, this distinction may not be one that everyone will agree with and some may still view that the rights that have exemptions prescribed to them should not have those specific exceptions.
Fortunately, where this has been disputed the European Court of Human Rights (ECtHR) has proven to be an excellent safeguard. Take the decision in S and Marper v UK. The argument was that the police could not retain DNA and fingerprints indefinitely. There were arguments to show that the more DNA and fingerprints sample the police had on record, the more beneficial it was for the police in the prevention of crime. Those who had those fingerprints detained had been acquitted of an offence and argued that to hold their samples indefinitely was a breach of their Article 8 rights to respect for private and family life. The House of Lords decided that the police could hold the DNA sample and fingerprints and that this did fall within one of the exceptions of the qualified right. The ECtHR disagreed, and said that the retention was disproportionate; a win for the individual.
Other Areas where Utilitarian Approach is taken in Law
Whilst at least the areas of human rights seem to be safeguarded, there are other areas of the UK law which arguably have gone too far on being based on utilitarian principles. The rules of pure psychiatric harm in tort are a good example of this. Most of this developed out of the Hillsborough disaster and therefore the judges had to contend with a lot of policy reasons at the time. For example, in White v Chief Constable of South Yorkshire, it wouldn’t be fair for the police who were at the event to be given preferential treatment in their claims when the friends and families of the victims were subject to stringent criteria. Arguably by allowing the police’s claims this would have created too much negative utility and therefore it was still a decision taken in the argument of fairness for the greater good.
This has however created very stringent criteria for rescuers for meet when making a claim in pure psychiatric harm if they were not actually in danger themselves (and therefore a secondary victim).
IT is understandable why the law has ended up so utilitarian. Judges are given tough choices and they know that what they say (if they are in a higher court) will be relied upon and followed and therefore they must not only have the individual who is in front of them on their mind, but any other individual which may emerge in the future which has attached to them a similar set of circumstances.
However, whilst we have some safeguards from this theory going too far in the law in the area of human rights, there is evidence to suggest that the individual will not always be protected by the law due to decisions which keep “the greater good” in mind.