How Does Law Relate To The Common Good? Discuss With Reference To At Least Three Theories Discussed This Semester.
Law’s relation to morality has been debated ever since Jurisprudence itself came to be, and it seems as though it is destined to remain as one of the great philosophical debates. The question of the ‘common good’ though is slightly more specific than that of just morality, and obviously will require a definition of the common good itself. The idea of a common good is usually associated with Utilitarianism, and as is always attractive with this school of though, their definition is relatively straightforward. They would simply say that the common good provides the greatest amount of good for the greatest amount of people. But as we shall see later, this has it’s own intricacies too.
Before we go into detail on the Utilitarian theory and how it approaches the question of the common good, it also would be helpful to take a slightly wider view of what exactly the common good is and it’s implications historically, as this will allow for a better and more rounded definition. Many Jurists have discussed the common good, all the way back to the most famous ancient Greeks in Plato and Aristotle debating the very earliest formations of the idea. Plato tended to believe that a “common good” was more of a metaphysical ideal of state governance, whereas Aristotle believed in the more modern, tangible ideals of material benefits to the individual. Regardless, it shows that common good is an idea that has been debated for many years.
In fact, whilst admittedly common good is most associated with Utilitarianism these days, it is worth looking at it from a different angle, namely that of the natural law school of thought. Those subscribing to natural law, though less popular today than it had been despite something of a revival as a result of the writings of Fuller and Finnis, believe in a law of nature that is inexorable, and unchanging. There can be many examples of this, for example in Aquinas’ writings, the natural law he believed in was that which man could ascertain through reason and embracing God’s will. Aquinas did also talk about the common good, describing it as ‘just as the good of the multitude is greater than the good of one who belongs to the multitude, so it is less than the extrinsic good to which the multitude is ordered: just as the good of order of an army is less than the good of the leader.’1 This is essentially then a Utilitarianist principle, the idea that the good of the many as greater than the good of the few, within one of histories greatest writers on natural law. This is an excellent illustration of how the idea of common good has spread further than just Utilitarianism.
That said, the relationship between law and the common good is most commonly associated with Utilitarianism, and a detailed breakdown of the theory will allow us to see why this is. No discussion of Utilitarianism could be complete without first recognising the contribution of Bentham in drawing together threads of utility theory into one cogent argument and popularising it. One of his first and most influential works was the Introduction to the Principles of Morals and Legislation published in 1789 in which he first expressed in detail the principal of utility, or the greatest happiness principle. In his own words, Bentham stated that ‘Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.’ 2
So what Bentham is saying here is that pleasure, and specifically the avoidance of pain, is the driving factor behind all human action. This is how he entirely dismissed the theories of natural law that had come before him and had been popular in the deeply religious Europe of the age, in fact once rather pleasantly referring to it as ‘nonsense upon stilts’. 3
In formulating his theory in this way, what it essentially becomes is a measure of which action creates the greatest happiness, and that being the moral thing to do. This tends to reduce morality to something that is really rather easy to grasp, and has been widely commented that it is the ease of understanding that allowed Utilitarian theory to so easy garner attention of support. The relevance to the common good is pleasingly simple also, when essentially that is what the greatest happiness theory is. The theory is asking what is in the common good, what is the will of the majority, what would be to the benefit of the community as a whole. These are all just variations on the question of what is in the common good.
When it comes to his writing Bentham was very heavily influenced by David Hume and John Locke, who were earlier British empiricist philosophers and also by his friend James Mill, who was father of fellow philosophical giant John Stuart Mill. It will be important to discuss Mill in more detail shortly, but Bentham’s’ radical opinions, remembering that he was writing in what was still very much an elitist pre-Victorian age, can be seen in all of his works and in a number of areas of discourse. Bentham influenced ideas of wider suffrage rights and reforming the legal system. The very idea of the common good spread to radical new ideas of democracy and fairer distribution of wealth among the masses, and helped to fuel his ideas of welfarism. The idea of the common good and it’s relation to law and governance fuelled all the Bentham did and helped to popularise and influence the eventual uptake of many of his theories.
Rather interestingly Bentham went into great detail about the variance of pleasure and pain and how one could go about calculating the morally right action. Bentham and his supporters believed that there was no reason that scientific principles and calculations could not be applied to traditionally more metaphysical questions. This is why he created something known as the Felicific calculus, which is Bentham’s detailed method of actually calculating the morality of a situation. Bentham gave us six elements to his calculation, those being;
i) intensity ii) duration iii) certainty iv) proximity to pleasure (or pain) v) fecundity vi) purity.
In theory then by using just these six elements we could calculate the morally right decision in any circumstance (Mill later added a seventh element, that of extent) and work out what is for the common good. We could then take those calculations and apply it to how we make law, and how we govern ourselves, thus creating a society that in theory at least, is as just and happy as is possible. So along with the major benefits of these principles being that they are simple, easy to understand and corporeal there is the added benefits that Utilitarianism could be a genuine help in matters of difficult morality. There are a number of scenarios where a moral answer is not particularly forthcoming, and this could act as a genuine aid. Also, unlike many philosophers in classical theory before and at his time of writing, his ideology gave a genuine sense of equality among men that was rare. Bentham never suggested that one mans happiness is worth more than an others, and so there is a pleasing justice in Utilitarianism.
It was however this quantification of morality that leads to one of the major criticisms of Bentham coming from a number of rival Jurists. Immanuel Kant, one of the truly great thinkers of the time, criticised the hedonistic principle of utility through his belief that morality cannot be achieved through mere anthropology alone, and requires some metaphysical reason. While his metaphysics were different to those of his predecessors, he still argued that what is popular is not necessarily right. In essence then, what is in the common good is not always moral. Of course, Kant would likely concede that what is for the common good has a strong relationship to law in that a majority of the time what is for the common good will be the moral ideal, and thus should be law. However this is not an absolute and therefore should not be used as a principle upon which to base moral reasoning.
Kant is widely considered to have attempted to find a compromise between the empiricist and rationalist arguments of his day. There was no merit in the arguments of Descartes or John Locke alone, as without reason experience is useless, and without experience reason can only provide theory and illusions. In one of his most important and substantial works, Groundwork of the Metaphysic of Morals he outlined the “counter-utilitarian idea that there is a difference between preferences and values”4 and so what he is effectively saying is that there is a difference between morality and desire. What an individual wants can be different to what the morally right thing. This means then that what is for the common good, if we define common good via the greatest happiness principle, is not morally good. Kant talked about a pure morality which existed outside of the a posteriori, and as such required reason and thus his criticisms that morality cannot be counted, as Bentham would have us believe. If law has such an intrinsic relationship with morality, then we cannot base legislation on the greatest happiness, but on the morally correct.
There is definitely something to be said for the idea that morality is not as simple as happiness. It seems counter-intuitive to suggest that what is moral is happy, and what is good for everyone is what would make us all most happy. Simple internal questioning seems result in a number of scenarios where there is a desire to do something, and a reluctance to do it. Even if we filter this further, and argue that in most of those cases it could be said that the reluctance exists due to fear of consequences and reprimands, while this may be true it is still absolutely possible to imagine a situation where desire exists, alongside a moral reluctance. This does seem to be a difficulty for Bentham and as such it seems to weaken the argument between the actual, and what Utilitarians would argue ought to be, a strong link between law and common good.
That said, as has already been mentioned, a majority of the time what is in the common good will be moral, and will be law, because that is the desire of most people. This remains the case, but when we are applying Kant’s ideas of pure morality, and the idea that, for example, one individuals morality is greater than the common happiness, there is a danger of becoming philosophically arrogant. It seems out of place for Kant to say that an individual or governments morals should be more influential on law making than the will of the common group. Whilst that is undoubtedly the case in most modern governments, the democratic ones at least can infer legitimacy from their elections.
However we wish to phrase it though, it does seem that Kant is closer to real application than Bentham. Utilitarianists search for an ideal that at least seems to be destined to remain an ideal, and not applicable to law or life. Kant’s slightly more realistic view, and seemingly more intuitive idea that morality and happiness are separate, would be closer to the approach that modern western democracies generally seem to take. Whilst the nature of politics is to try and remain as populist as possible, many governments make decisions that run contrary to the wishes of the people, with the current British government seemingly particularly guilty of this. So if we follow Kant’s theories and more away from Bentham, then we would begin to look at the common good as more of an element of law rather than central to law itself. According to Utilitarians, the common good is morality, and therefore the common good should be law, where as Kant takes a more complex view of morality and thereby removes the immediate jump from common will to legislation. In a large number of cases in practice, the common good will inevitably have a very strong influence on legislation as morality always influences law making. The real difference between the two is the extent and more specifically the necessity of the common good in law making.
Utilitarianism though is a massively important element of the answer to the question posed here and so we shouldn’t abandon it simply because Kant was not a subscriber to it’s ideals. There are many other Jurists who have developed and changed the theory in order to work on some intricacies that made for a more complete ideology. The most famous and influential of these was of course the aforementioned John Stuart Mill. From a young age Mill had been a subscriber to Benthamite philosophy and was very much a supporter of his ideas generally, whilst managing to recognise a few weaknesses that needed to be covered to make it a stronger argument.
In one of his major works entitled Utilitarianism he outlined his breakdown of the theory in which he preferred to take a deductive approach to the principle of utility as opposed to more Kantian methodology. As well as this he decides to go a step further by disagreeing with Bentham on the idea of the equality of pleasures. According to Bentham, all pleasure is equal to all people. This is not so for Mill, who believes that intellectual and sophisticated pleasures were more worthy that simple animal pleasures. In a direct quote from the book Mill has a gentle swing at Bentham with the remark ‘It would be absurd that while, in estimating all other things, quality is considered as well as quantity, the estimation of pleasures should be supposed to depend on quantity alone.” 5 What he is essentially saying is that the pleasure enjoyed by the educated and intellectual, is more important that simple pleasures. This is in direct contrast to Bentham who once said ‘Pushpin (a game) is as good as poetry’ 6. Mill followed this line in his argument when he talked about justifying his stance that some pleasures are better than others. In his example he talked about how we know that the educated pleasures are greater than the pleasure of the fool, because any person who has experienced both would choose the former. There is an excellent quote which sums this position up rather succinctly from him where he states ‘It is better to be a human being dissatisfied than a pig satisfied; better to be a Socrates dissatisfied than a fool satisfied.’7 This quite nicely illustrates his position as being that mere animal pleasure is not as great as the higher pleasures. It is better to be a human without pleasure than a pig with pleasure, which is quite a significant departure from Bentham and allows for more human vanity which may be appealing.
Setting aside a possible criticism of the above in that perhaps it is not such a settled matter that educated people prefer different types of pleasure, Mill also dealt with a significant criticism of using the pleasure principle as a moral compass which was the somewhat circular element of Hedonism. If pleasure is all that governs us then essentially all we are interested in is the self and not the common good. Mill decided that it is possible to completely dismiss the Hedonistic argument by saying that Utilitarianism is interested in the common good, the greatest happiness, and so if an individual values their own pleasure as greater than an others then they are justified in being ignored. Of course, you could argue he is contradicting himself here, as he has just stated that some pleasures are greater than others.
John Stuart Mill had a substantial impact on the world of Jurisprudence and his arguments his arguments should not be taken lightly. Despite the fact that many modern Jurists now consider that his, and the whole Utilitarian theory is somewhat simplistic when it comes to morality, it is that very lack of complex ideas that made it the force it is and have the great influence that it did. When it comes to common good then, when relating it to the law we would say that id we subscribed to the Utilitarian idea, that the common good would be the primary concern. If something is going to create more happiness for the community, then we should ensure that is the route that we take. It’s a very straightforward approach to law making that perhaps would yield a generally preferable result and undoubtedly modern legislators also have the common good as one of their main concerns when crafting law, but I think that the criticisms of Kant, in his attempts to reject this teleological, anthropologist approach to morality did stick. There are certainly situations, as he wrote, where we can imagine something being good but not right, and vice versa. Whilst this does slightly complicate the relationship between common good and the law, it does by no means make distinguish the influence that the common good has on law making and on whether in fact a law is just.
This is an interesting point that merits further discussion in relation to broader Jurisprudential themes. We have attempted to define the common good through established theory but we cannot fully answer the question unless we are sure what exactly we mean by “law”. This may sound obvious but in fact it is a huge question and one which we will only have the time to scarcely graze the surface of. As we had discussed earlier, one of the ancient schools of thought is the natural law ideology. There are a number of detailed formulations of natural law, but essentially there’s is the belief that there is some sort of higher power that decides about the morality and justice of a law. Aquinas called it Divine law, as only law made by God was acceptable and any many mad law that contradicted it was not real law, and not just. If this approach to law were taken then it throws up whole new questions of whether the common good is at all considered in law, or if something can be for the common good but violates natural law then should it still be considered law?
Of course the legal positivists essentially believe the exact opposite of the natural lawyers and only subscribe to law that has been enacted by a society using some valid form of operation. Essentially positivists can ignore any moral criteria of law and just consider if something is or is not law based on whether it was validly enacted by the society in which it governs. This raises another question that if morality is not a necessary consideration of law making, then does the common good have any impact? Of course, most positivists would agree that in a normal law making system, the good of the community that are being governed would be considered and the common morality of the society is always going to have an influence. The key distinction is that it isn’t necessarily the case.
The important thing to note though, is that these are only two theories of law and its relation to morality, and yet it already creates some big questions as to what exactly law is. We have already seen that the common good in relation to morality is controversial, we can now see that the common good in relation to law can also be controversial. However it seems that both the above mentioned theories of natural law and positivism would suggest that common good is essentially present in law, but its very nature. It is present in the word of God or the other forces that drive law, or if you will, it is present by the influence it has on properly established legal machinery. So it does seem that no matter how much you try to separate law and morality, and more specifically law and the common good, they are intermingled. Real questions do remain regarding the common good however.
For example, according to Bentham he is reasonably all encompassing with his opinions. There are certainly questions to be asked about what exactly can be justified by the common good. It seems possible to argue for something like the death penalty on grounds of the common good. Perhaps it is possible to argue for some wars on these same grounds, but the question really becomes how do we decide what the common good is. One of the major problems with government these days is that they believe all too often that they know what is good for us, when in fact they have been regularly proven to be mistaken. It raises the issues of who exactly gets to decide what is good for us. We have elected represntatives yes, and it is probably unrealistic to expect them to consult us on the day to day business of law making, but it seems the only way to enforce a Utilitarian ideal between common good and law making is to govern in a heavily referendum based style, perhaps like Switzerland seem to use sucessfully. The relationship of the common good to law needs to be emphasised in our modern democracy because it is this very issue that is causing disillusionment with the legislature. The very fact that the government has lost contact with the people they govern means that the people have a lack of voice, and this means a shortfalling when it comes to the influence the common good is having on current law. Mill would probably say that our more educated, more informed and more experienced political masters are justified in making law as they know better than the great unwashed masses, however this does seem an arrogant and somewhat undemocratic method, and one which seems to in many ways contradict the very nature and ideal that Bentham set out to establish.
In conclusion then it is still my belief that Utilitarianism has a lot to offer, despite being less popular today that it has been. Perhaps its natural sucessor was Marxism in it’s attempts to strive for equality, but that was destined to fail for other reasons. Whilst perhaps in theory there is something lacking it seems to me that Utilitariasm comes reasonably close to what morality is, most of the time. Of course there are exceptions to every rule, there always is, but that doesn’t mean that the entire belief system should be disregarded. Given the choice, a group of people deciding in their self interest what they would prefer, will normally make the moral choice. Also, of course, that means that the influence the people have on law making which is clear by the fact that the law makers sway to public opinion, is essentially governed by Utilitarian principles. Democracy is in many ways similar to Utilitarianism, in that the will of the majority governs all, so does the will of the majority decide what is going to give the greatest happienss.
The common good then is necessarily intertwinded with law, like a pilot in a ship. Whislt they are certainly distinct things, their influence on each other is certain. Laws made without the common good in mind, or contrary to the common good will most often be ignored or even actively resisted. It is this passive influence on law making that the common good will always have, particularly in a democracy.
Finally then, while I would concede that academically the Utilitarian theory is perhaps not absolutely water tight, it seems to me to be the most practical in describing the relationship between law and the common good in real life. What is in the common good is usually moral, and what is usually moral will become law. This is the relationship that exists and this is the realtionship that Utilitarianism ultimately advocates. This leads me to say that, to borrow a phrase from A.J. Ayer, the theory was ‘right in spirt’, and that in a geniune democracy, law and the common good cannot be seperated.
1 – St. Thomas Aquinas, Summa Theologica, II-II, q. 39, a. 2, ad 2
2 – Bentham. The Principles of Morals and Legislation (1789) Ch I, p. 1.
3 – Harrison. The Oxford Companion to Philosophy, Oxford, 1995, pp. 85-88.
4 – Millennium Ecosystem Assessment (2003) Ecosystems and Well-being: A Framework for Assessment. Washington DC: Island Press, p. 142.
5 – John Stuart Mill, Utilitarianism (1863), Ch 2.
6 – http://faculty.frostburg.edu/phil/forum/Mill.htm (29/12/2010)
7 – http://faculty.frostburg.edu/phil/forum/Mill.htm (29/12/2010)
1 – Jurisprudence, Peter Halstead 
2 – Utilitariansim, John Stuart Mill 
3 – Common Good, Michael Kraus – http://learningtogive.org/papers/paper14.html
4 – Mill: Culture and the satisfied pig, Jorn Bramann –
5 – Introduction to the Principles of Morals and Legislation, Bentham 
6 – Summa Theologica, St. Thomas Aquinas
7 – The Oxford Companion to Philosophy, Harrison