Natural Rights vs Utilitarianism: How Should We Defend Free Speech?

Can utilitarianism – the doctrine that we should aim for the greatest happiness of the greatest number – adequately underpin free speech protections, or do we need a more robust concept of natural rights, of the kind asserted in the US Declaration of Independence? Are ‘natural rights’ even intellectually defensible or do they rely on a God to give them to us, a notion which many today reject? Prof James Allan and Dr Will Jones go head-to-head. Will kicks off with a summary of the standard objections to utilitarianism (also known as consequentialism).

Will Jones:

How do you defend your consequentialism against the usual objections?

The end goal of consequentialism is not well-defined: human happiness is not a simple, well-defined quantity; it comes in a variety of forms of varying type, intensity and duration. How then can a goal of ‘maximum happiness’ even be defined?
The end goal is also not well-defined because there is inherent uncertainty in any given outcome, so risk is always involved as well as trade-offs related to e.g. deferral of enjoyment – how much happiness today should be sacrificed for happiness tomorrow, next year, next century? How then can a goal of ‘maximum happiness’ be defined given these complexities? Happiness when, and involving how much risk?
Consequentialism also fails to rule out plainly objectionable outcomes. For instance, if the maximum happiness of a society could be achieved by 10% of the population being enslaved then consequentialism would call that the right thing to do. Likewise, the twisted pleasure someone might take in, say, torturing others must, according to consequentialism, count in the moral balance of total pleasure. How do you avoid these objectionable conclusions?

From a free speech point of view, consequentialism is highly vulnerable to arguments that the greater good justifies certain forms of censorship. The basic problem is that consequentialism doesn’t have a clear concept of what is ‘proper to human beings’ – though it implies that happiness (aggregated in a maximal distribution) is proper to humans. What is lacking is the point that freedom and rational agency are proper to humans. Without that, free speech rests on very shaky ground.

James Allan:

Long story short, all consequentialists today are of the rule variety – as in rule utilitarians. Humans are limited biological creatures. We’re fallible. In some situations you get the best hit rate by laying down a rule and just always following. The trite example is ‘who can vote?’ Just lay down a rule of, say, 18 and over. You don’t seriously believe that all those under 18 are unqualified. Or that all those over are qualified. You believe that any case-by-case decision-making procedure (maybe setting up committees of people to decide person-by-person would have a higher failure rate due to incompetence, political bias, racism, etc. etc.) So the – I make this number up – 93% hit rate of the rule is the best humans can do. At that point it is no knock-out reply to point to the failings of the rule. It can’t be perfect. If you’ve got a better rule let us know. Otherwise, this is as good as humans can do.

Now sometimes best consequences require individual assessments – who can drive? But that won’t be perfect either. We’re in a pick-your-poison world.

In politics it’s mostly a rule-utilitarian world. Note that all rights can be rewritten as rules. You give the right – to free speech – and I can translate it exactly into a rule – in these circumstances people will have scope to speak their minds. Rules give off the vibe of constraints. Rights send a shiver of entitlement down one’s spine. But in practice rights are rules. Bentham made that clear 200-plus years ago and no one has rebutted it.

And note this further irony. If consequences are key, even in statistical rule terms, even truth will lose out sometimes. If you get better outcomes when lots of people believe they have eternal, fundamental rights (from God or whatever) then the – let’s assume – fact that they don’t doesn’t stop us from laying down rules as though they do. Richard Posner has made this point many times.

Of course if you believe that there are these transcendent, timeless entitlements somehow outside the material world, you’d be an idiot to go with any sort of consequentialism. Utilitarian-type standards are inter-subjective. They give you a right answer outside yourself but it’s just an accumulation of others’ gut feelings or preferences (sort of). It’s not a mind-independent, timeless, ‘real’ standard of right and wrong. Who wouldn’t prefer that? But if that’s not on offer – and I don’t think it is – then this gives you something. Flaws? Of course.

Will:

I don’t think many would disagree that society should be governed by the rules that overall produce the best consequences. The issue is what those ‘best consequences’ are and whether they are the maximising of total subjective happiness/preference satisfaction or whether they include some more substantive endpoints, such as truth, freedom, beauty etc.

You say that inter-subjective utilitarian-type standards “give you a right answer outside yourself but it’s just an accumulation of others’ gut feelings or preferences (sort of)”. But the problem is they don’t give you a right answer because the end-point isn’t well-defined, as encapsulated in your phrase “an accumulation of others’ gut feelings or preferences sort of”. That is not a concept that will ever give you a “right answer” or any particular answer at all. It’s just a recipe for muddled, woolly thinking where we’re all just supposed to aim for some vague idea of the ‘greater good’ that people (which people?) kind of all agree we should. Your point about consequentialism justifying Plato-style noble lies only reinforces this point.

In the end any ethical framework has to give an account of how the world is supposed to be as distinct from how it is. It’s that concept of the ideal that gives the imperative or reason for acting to pursue it. It’s equivalent to asking what is proper to humanity – what is a human being supposed to be and do, how is he or she supposed to be treated? Without a concept of that you simply don’t have an ethical concept at all. On a fundamental level the defence of free speech rests on the observation that man (as a species) is properly a free and rational creature, hence humankind’s freedom and rationality should be respected. No other foundation is adequate to defend free speech (which as we know is precarious at the best of times).

In a way I admire your consistency in recognising that natural rights entail a creator and lawgiver – something that was obviously widely recognised in the 18th and 19th centuries. But that doesn’t mean there is a coherent replacement for natural rights, least of all one that will protect free speech. Woolly consequentialism certainly won’t!

James:

Here’s a quick digression and then a further reply. As humans no rule made by us will ever be perfect. Any rule will be both A) under- and over-inclusive and B) at some point indeterminate in what it commands. These are a function of language’s indeterminacy (Hart is superb on that) and on the fact that people don’t agree about what’s morally right. Then as regards all rules there is the paradoxical (and insoluble) problem of what the US legal academic Larry Alexander coined as “the Gap”. Any rule, no matter how excellent, will eventually hit a set of facts where following the rule is morally wrong at the level of the individual. Yet from the vantage of the rule-maker you have to assert that everyone must follow the rule. You cannot concede that “look, very rarely the rule will misfire and so then each individual can decide for him- or herself whether to follow it”. Do that and a rule with (I make up these numbers) a hit rate of 96% will leave decision-making to the individual. They will do worse (or why have a rule)? The hit rate goes down (to say 84%). The rule-maker must assert that the rule is authoritative. But the individual in rare circumstances will know that the rule applied in this situation is wrong. And there is no way for humans fully to bridge that gap. Put in punishments for rule-breaking. Factor in that your behaviour will influence others. It doesn’t matter. There will be times when the person subject to the rule should not follow it and yet it is the very best rule humans could devise.

So with all that laid out go back to Will. We live in a world where we will never all agree on what rules are best – whether you are seeking those that produce best consequences or those that achieve some transcendent goal such as truth, freedom, whatever. Humans have to decide where the decision-making rule is procedural. In democracies that is to let the numbers count. With judicial review in top courts – and many people miss this – it is also purely procedural. Five woeful judgments written by law clerks always and everywhere beats four magnificent judgments with references to J.S. Mill and all the human rights conventions ever drafted. You can’t decide by saying “let’s go with the best/most moral/most Godly choice” because humans don’t agree about that.

So Will’s complaints misfire. Sure, aiming for best consequences via rules will be something of a mess. Humans won’t agree where to draw the line about free speech. If the line is drawn via democracy the legislators will argue and compromise. If the judges draw the line (under the guise of stating our timeless rights) they’ll do the same thing. Will wants ‘right answers’. Talk to God Will. In a non-cognitivist world moral right answers (in any mind-independent, real, objective) sense don’t exist. But as Jeremy Waldron cleverly points out, the moral realist like Will is functionally no better off than the Humean or Benthamite inter-subjectivist. Why? Because even conceding that moral right answers exist in some Kantian, transcendent sense, humans don’t agree what those answers are. They disagree. They need a procedural decision-making rule. And all the talk about ‘how the world is supposed to be’ and everything else cannot take you past this point. Indeed this is precisely why Churchill was right. Democracy is the worst form of government… except for everything else.

Even bringing the point back to free speech specifically, and even if everyone agreed with Will (they don’t; I don’t) on the moral foundations for it and all ethics, that first premise won’t deliver agreement re specifics on what rules to lay down and how to apply them specifically. He’s back in the messy world of trying out rules. Seeing how they go. Trying to get enough consensus to get them enacted. Etcetera. The big picture debates between Hume and Kant are wholly beside the point in this practical sense. (That said, I think Hume clearly won that debate. Will certainly will not.)

So we are all back to a world where the best rules humans can devise will catch people they should not. Will miss people they should catch. That will at some point be indeterminate and simply not dictate answers in that situation. And most damning of all, will sometimes for some people, apply right at the Gap. The lawmaker will say – in order to achieve the best possible 95% hit rate – ‘you all must follow the rule’. But the individual will calculate, rightly, that it is wrong to follow the rule. Hence civil disobedience. Hence during lockdowns my view that it was best to openly defy many of the rules (not that the lockdown rules were remotely ‘best rules going’ so the point is even stronger there).

Short response: Will wants some sort of Godlike knowledge humans don’t have. Absent that, the rule-utilitarian struggles along looking for rules (which can be translated into rights) that deliver the best hit rate in these circumstances. Being human we’re not going to ever do better than that. And for most fallible biological creatures the rules they come up with will be way, way worse than that.

The modern day human rights movement is, as Will says and I do concede, much worse off than its parent, the natural law worldview. Natural law relied on a benevolent, theistic God. Everything follows from that nicely – though the debate just moves back one level to whether that being exists or not. The modern human rights worldview sort of pretends that there isn’t this gaping hole. I wrote quite a well-cited article on this. Will and I fully agree here.

I also think, as a non-believer, that on balance some religions have clearly delivered good consequences. (Some just as clearly have not.) In an historical sense the whole focus on the ethical importance of the individual is clearly a child of Christianity and Judaism. That, of course, doesn’t in itself make the foundations true. But it might deliver good consequences.

Will:

I don’t disagree on the practical points about coming up with and agreeing on rules and the procedural issues around that. But none of that is addressing the more basic point about what we are actually doing when we propose, discuss and reason about the rules we will live by. You dismiss moral realism saying that the realist is no better than the non-realist because people disagree, so we need a decision-making procedure and you propose democracy. But this completely misunderstands what we are doing when we discuss moral questions (i.e., questions of value, justness etc.), democratically or otherwise. Obviously we need a procedure widely perceived as fair to come to political decisions. But within that procedure we still have to have a debate about what is right and best to do. (And we need to have criteria for what makes a procedure fair, which needless to say is not simply ‘do everything by majority vote’.) Those (democratic) debates involve reasoning about what is right, valuable, beneficial, fair, good etc. They are not simply an exchange of statements about subjective preferences. They are a setting out of substantive arguments about what is right and what is important. They make frequent reference to (claimed) objective facts about right and wrong, good and bad. People might disagree on what the relevant moral facts are, but the debate always takes place about the relevant moral facts.

You therefore mischaracterise our disagreement if you make it about me wanting “Godlike knowledge” and supposedly denying the need for fair procedures to come up with the best rules. In fact, both sides in a debate make claims about the relevant objective moral facts. That’s what the debate is about. It’s not as though one side proposes that it’s important, say, to protect people from being coerced or psychologically induced to end their life prematurely (to take a topical example), while the other side says no it isn’t, we just have a subjective preference for people to be able to kill themselves. No: the other side also presents a set of (what they deem to be) morally relevant facts, such as a claim that the risk of coercion can be mitigated and is outweighed by the alleviation of suffering and the freedom of the individual. Of course, we need a fair process for coming to a decision, a policy, a law. But the process involves a debate about the morally relevant facts, not an exchange of statements about people’s subjective preferences of what they like or don’t like.

The consequentialist approach you hold to usually makes some meta-ethical claim about there being an overarching goal of maximising total human pleasure/happiness/subjective preference satisfaction. Such a framework is obviously itself a claim about relevant moral facts. However, I know that consequentialists try to get round this by taking their overarching goal to be a kind of axiom that they use because there’s supposedly no sensible alternative. To posit such an axiom is still to make an objective moral claim, of course. But leaving that to one side, such a woolly framework has numerous holes (for example, as noted, utilitarianism doesn’t rule out slavery as it’s perfectly possible that maximum happiness might be achieved by enslaving, say, 10% of the population). For free speech in particular, a vague aim to maximise subjective happiness will never adequately defend free speech because it relies on enough people agreeing that free speech makes enough people happy. Without a deeper commitment to the idea that humans are, and are supposed to be, free and rational agents of their own destiny, it’s much more likely that people will think it’s better just to shut people up for the sake of social harmony and ‘cohesion’.

While I think that moral realism entails a creator and lawgiver to complete the picture and underpin its overall coherence, it’s nonetheless possible for someone to maintain agnosticism on that point and just take the moral realist framework as an axiom. This just means, like Kant, looking at human beings and saying, look, these are the rational animals, the part of nature which thinks and understands for itself. This is what makes human beings unique in the natural world and gives them a special dignity among the animals. Therefore we will respect that distinctive character of human beings: we will respect their rational autonomy and their common humanity – and therefore respect their right to express their thoughts freely and pursue truth. Indeed, people who claim to be non-realists often just assume such a framework anyway. This is fine. We can work with axioms. But let’s not pretend this is any kind of utilitarian approach. Utilitarianism, by contrast, makes the frankly bizarre claim that the only morally relevant fact about humans is how much total pleasure they’re experiencing right now or might, under the right rules and conditions, be able to experience in the future. Under such a framework, protecting freedom will often lose out to schemes for achieving greater sums of subjective pleasure. In truth, humans are much more interesting, and much more dignified, than that.

James:

Well, Will, what do you think John Stuart Mill was doing when he wrote On Liberty? Mill was a committed utilitarian (and certainly no sort of moral realist). His dad was in Bentham’s inner circle. In the above book Mill comes right out and says his argument rests ultimately on utilitarianism and aiming for best consequences. I don’t think he misunderstood what we are doing when we discuss moral questions.

Of course what makes humans happy is divergent, amorphous and in no way specific. There is huge amounts of disagreement. But why can’t one say “here are my arguments for what I think will produce good consequences as regards where to draw lines related to the scope for people to speak”? Others can take issue with the proposed good consequences (as they have with Mill’s). They can dislike the ethereal basis of consequentialism. But of course that would be mirrored by anyone putting forward a moral realist/natural law defence of free speech or any other moral right etc. Many would reject the foundational claim that humans have these entitlements simply because they are human (especially in the absence of a benevolent, theistic God). Many of those who liked the first principle would still dispute where Will wanted to draw the free speech or other lines. There is no need to adopt (what Humeans would call) a puffed-up view of human reason in order to have these sort of debates.

In fact, that is precisely what Mill did. And his claims have done rather well in standing the test of time. You don’t need a fully agreed and specific view of the aimed-for good consequences to see the power in the claim that lots of scope to speak one’s mind produces a sort of cauldron of competing ideas. And unless you think humans (or some) are infallible this is likely to push us towards choices that increase innovation, freedom, pick lots of other goods. Of course not everyone on the planet needs to value freedom. So? I don’t see the problem here Will.

By contrast someone like Finnis walks in and proclaims eight (is it still eight?) self-evident moral goods. You know how convincing that is to non-believers? Yes, he does it that way because he recognises the power of Hume’s ‘you can’t derive an ought from an is’ naturalistic fallacy point. So he starts with an ought. But isn’t it remarkable that the ones he lists are more plausible the more we all look around and empirically note that as a matter of fact most humans do like having friends. (An ‘is’ fact.) They do like a bit of play and basic knowledge. (Ditto.) But move down to claims about marriage and, well, hmmm.

It seems to me that Mill’s project is quite defensible. It’s still one of the best defences of free speech going. In his day he does seem to get at the outcomes or consequences that matter the most – driving an open society to advance knowledge, technological innovation and an awful lot of freedom (which most people happen to like and want). Where Mill can be buttressed, in my view in today’s world, is that we now live in an administrative state with overpowerful government and bureaucracies doing unaccountable things – see Herr Musk and Mr Trump. So an even bigger good consequence of free speech today relates to a big ticket distrust of government. If you share that distrust – and a good few don’t, seemingly most all Democrats in the US – but if you do then the more scope we all have to speak our minds the more big government and the administrative state can be embarrassed, kept in check and some few rare times (again, now in the US) reined in.

I think non-cognitivists and moral realists can come together and see that without having to agree about the sort of big picture, foundational moral universe we live in. In fact, avoiding those big picture questions may actually help deliver big and more coalitions against the thugs and censors.

Will:

We obviously take different views on how helpful utilitarianism is for free speech. Free speech of course has some good consequences: it helps humans come to correct answers and avoid errors, thereby improving society and driving forward technological progress. Nonetheless, an amorphous concept of the greater good understood in terms of total subjective happiness is, in my view (and I think the evidence backs this up), a golden ticket for censors who want to ‘preserve social harmony’ by suppressing dissent.

Mill of course was not a pure utilitarian: he propounded a concept of ‘higher pleasures’ which he said was judged by those with more cultivated tastes (so not so different to Finnis in this regard, though more grounded in aesthetics). This illustrates I think how thoughtful utilitarians like Mill become intellectually satisfied with their worldview and feel compelled to reject some of its key implications, and rightly so. Mill actually had a kind of breakdown at the age of 20 of course when it hit him how unsatisfactory his Benthamite utilitarian philosophy was, prompting him to develop it in non-utilitarian directions.

His commitment to liberty was also not all it’s made out to be. His principle of liberty/harm principle was, as is widely recognised, severely qualified – he only said action and speech which didn’t “harm” others or society should be protected, and even then he allowed that people could rightly receive blowback from those around them. And if it ‘harmed’ others or society? No protection at all.

He also famously moved towards socialism over the course of his life, driven by his utilitarianism (naturally) to back, among other things, targeted taxes on alcohol and socialist economics.

Having said that, in On Liberty Mill is clear that his utilitarianism is to be understood not in Benthamite terms but as based on “the permanent interests of man as a progressive being”, of which personal independence of action i.e., freedom, is deemed to be constitutive. He also speaks of the importance of aiming for the “ideal perfection of human nature”. This is not really utilitarianism of course; morality based on a concept of humanity as having “permanent interests as a progressive being”, of which personal freedom is constitutive, is a reformulation of natural rights with different words, using “constitutive permanent interests” instead of rights and “progressive being” instead of rational agency. If that’s what you’re defending, James, then we will naturally agree, though from what you’ve said I’m not too sure. But Mill’s version of utilitarianism here is obviously idiosyncratic, to the point of not being utilitarian at all. As you’ve outlined, utilitarianism more generally is a vague non-realist philosophy that posits some ill-defined endpoint of optimising the general welfare (usually understood in terms of subjective happiness) that’s largely open to whatever people want to project onto it. So while I find a lot to agree with in Mill’s writing (mostly the less socialistic bits), that doesn’t mean I will find the same in utilitarianism more broadly, if only because it’s exactly when Mill departs from classical utilitarian principles that he arrives at his more sensible answers to moral questions.

Utilitarianism’s problems are legion. It makes everything an instrumental good except the sum total of pleasure: good moral character, truth, freedom etc. aren’t intrinsically good or desirable, just things that might or might not make people happier. And it doesn’t even really claim total happiness is a real moral good either as it’s non-realist. But this is just going over the same ground we’ve already covered.

The bigger picture as I see it is a loss of confidence within Western civilisation not just in human freedom but in human agency as a whole: are humans a higher form of life within nature, rightly destined to rule over lower nature and to put it to use for our purposes of moral, intellectual, technological and artistic endeavour? Is there something about humanity that is inherently precious and dignified that ought to be recognised and respected – namely our rational agency? Or are we more of a problem for a planetary ecosystem that we are harming and pushing out of balance? It seems to me that a Kant-style natural rights approach, with its elevated conception of humanity as rational nature, amply supports the first. Whereas a Hume-style non-realist view, with its vague assertions about humans pursuing pleasure but not actually having any intrinsic worth, easily supports the nihilistic greenery that has become dominant among Western elites. We are inhabiting a world governed by an amorphous philosophy of moving towards some ill-defined endpoint of balanced nature, rather than one based on robust principles of human distinctiveness, freedom and achievement.

Fortunately though there are some non-realists like yourself who recognise the value of human freedom, taking a more or less absolutist view on it despite being broadly committed to utilitarian principles that would on the face of things seem to undermine it. In which case, we certainly can make common cause against the enemies of civilisation.

James:

I concede that Mill tried to have his cake and eat it too. Mill did want some pleasures/forms of happiness to count for more than others. And he did have this idea that some types of human pursuits should count for more. But when push came to shove he justified in terms of ‘general utility’. Or consequences. I think Mill’s mentor, Bentham, is more consistent. Once you go down the good consequences path you can’t really just deem some things as worth more than others. Bentham had to be the single greatest reformer ever to live – his view that it is the ability to feel pain and pleasure pushed him to further penal reform, to be a main cause of the First Reform Bill and the extension of the franchise (indeed Bentham was about a century ahead of most everyone else in thinking women should have the vote). He was a supporter of animal welfare. He disputed Adam Smith’s early view that usury – differential rates of interest – was a bad thing. And all of that was based on the notion that we should avoid pains (broadly understood) and seek pleasures (as in happiness, so also broadly understood). Bentham explicitly adopted Hume’s view that claims about human reason were massively oversold. Reason is inert. It does not lead us to act, said Hume. It was feelings and passions after which humans cause-and-effect reasoning told us, better than all other animals, how to get what we want. So if you want to know what makes women happy, ask them. Give them the vote in a general sense. Treat animals better because they too feel pain. Go for democracy because it’s the best way to up delivering happiness to people (if you believe, as Bentham did, that each of us – however bad some of us are at it – is still better at knowing what will make us happy than some outside bureaucrat or expert, especially factoring in the costs of telling people what to do.

And on the Bentham model there are only two games in town. One is his. You point to the future and aim to increase best consequences. So you bring with you knowledge of the past and what has happened before and using that you draft ideas and laws for what might work in the future. Given none of us is all that good at it you should proceed slowly and expect mistakes – hence Bentham’s dislike of revolutionaries and embrace of step-by-step reform. We can’t know for sure what will increase human welfare. But we can try things. Most economists hated the idea of an independent central bank at one point. New Zealand tried it first. It seemed to work. Now it’s orthodoxy (though doubts are coming back in). Count everyone the same. Aim to increase best outcomes, if you can by asking people what they want – hence Bentham’s early and powerful support for democracy as a rough and ready way to know what people want and also as the only way to use sticks and carrots – pain and pleasure – to discipline those with power.

That’s one option. The other, said Bentham, was to argue in moral abstractions. And boy oh boy was Bentham scathing about this sort of arguing. In his Introduction to the Principles of Morals and Legislation Bentham said or claimed that all non-consequentialist forms of moral argument always and everywhere boil down to “I like it” or “I don’t like it” thinking. You look inside yourself and decide what you happen to like. But since that won’t convince anyone you dress it up (and I am explicitly paraphrasing Bentham here) in terms of natural law, the rule of right, God’s will, Kant’s categorical imperative, in today’s world timeless human rights. It’s all so much bumpf. Either your claims tend, on average over time, to up human welfare. Or they don’t. No one has access to any of the moral abstractions. So Bentham turns amorphous, abstract, moralised debates into ones about likely future consequences. The latter is not certain. The former, thought Bentham, was just one’s own visceral likes and dislikes.

I think a fair reading of Mill is that he basically accepted Bentham’s core point but really wanted there to be more. But Mill never makes any convincing argument for anything more. And I don’t believe you can in the absence of a benevolent, theistic God. (Even there, of course, in a functional sense no human can claim to have some sort of access to what that God wants that is certifiably correct against those who differ.) And I do think the ‘I like it’ or ‘I don’t like it’ critique sums up most all moralised claims about what is ‘right’ that try to make the claim without a God. If you build in a God, of course, you then push debates back on level on to whether that sort of God exists. As a big, big fan of the Australian philosopher (who ended his career at Oxford) J.L. Mackie I don’t think you can cover that question better than he did in The Miracle of Theism. Okay, Hume’s Dialogues were pretty magisterial. (Both are orders of magnitude better than Richard Dawkins’s writings on religion.) So I’m not a believer. I think a sort of Benthamite world – much improved by understanding rule utility not just act utility – is the one we all live in. There are lots of problems and uncertainties with it. Sure, if I or anyone else actually believed there were timeless, mind-independent moral truths somehow woven into the fabric of the universe or somehow else discernible with a much inflated view of human reason then I and they would go for it. Why settle for ethereal, inter-subjective answers based on counting those in some group as equal and then adding up their preferences when you could have not inter-subjective answers that change over time as people druthers change but instead real, objective moral truths No answer to that other than the latter don’t exist.

Mill, I think, goes off the rails with the progressive, higher values comments. But agree or disagree, you can certainly offer up a powerful defence of free speech in purely consequential terms. Restrictions on free speech have to imposed by people. Governments. Administrators. Chances are that will work out worse than leaving people, to a very large extent, to speak as they wish. Throw in a bit of Mill’s point about the competition of ideas – and surely that is solely a utilitarian claim – and you strengthen the claim.

I find that argument much more powerful than the idea that all humans are born with some natural law type entitlement to speak – it just happens that throughout almost all of history they haven’t gotten to exercise it and even in today’s human rights world the EU and other non-US countries have observed it much more in the breach than the observance. Bentham bitingly said ‘hunger is not bread’. We may want North Koreans to have a lot more scope to freely speak their minds. But the truth is they haven’t got it. We should work to help them get more, not pretend they have rights they patently don’t have.

Will:

I won’t come back on most of that because it will only reiterate points I’ve already made. Plus, like Kant and other natural rights theorists, I agree that seeking happiness and the general welfare is a moral duty, so there’s little argument there.

The central issue with utilitarianism I think is that counting everyone’s subjective happiness equally is an arbitrary assumption that throws up some obviously objectionable results, such as the idea that a twisted person’s pleasure in causing others pain should be in any way ‘counted’ in a moral balance. In any ethical consideration, pleasure in doing right and being kind should count for more than pleasure in e.g. overeating, while pleasure in being wicked should not count at all. But as I say, I don’t want to dwell on these points.

The main point I would like to add is that because utilitarianism simply assumes that everyone counts equally, it doesn’t explain where this assumption comes from and thus why human beings are important at all. And because it doesn’t explain why humans are important it fails to give a proper account of why we ought to care about everyone’s happiness and not just our own. If utilitarianism did attend to why human beings are important it would have to conclude that it is the things that are distinctive about human beings that make us important (for what else could it be?), supremely our rational agency.

This is why I disagree with you on two key points. First, that moral claims boil down to “I like it” or “I don’t”. This is manifestly false: most moral claims boil down to something like “human beings are important and should be respected for these reasons and in these ways”. This has got nothing to do with what “I like” or “don’t like” and everything to do with what is objectively distinctive about human beings that sets us apart from the rest of nature, especially our rational agency.

Second, I disagree that the non-realist has little choice but to accept utilitarianism, with all its faults, over a natural rights account. An account based on natural rights – which you may find helpful to reformulate as one based on ‘human distinctiveness’ if the concept of natural rights comes with unhelpful baggage – is just as accessible if not more accessible for the non-realist, throwing up fewer objectionable implications and making fewer free-floating assumptions. While utilitarianism merely asserts that every person’s happiness counts equally (while not attempting to explain why humans are important), a human distinctiveness account merely takes the straightforwardly factual observation that human beings are a higher form of intelligence than the rest of nature, and adds to it the moral claim that this makes us objectively special and worth protecting. It hardly seems a great leap to do that, and is in fact the basis of all our moral reasoning, including utilitarianism when it’s being honest. So, as a non-realist you’re not stuck with utilitarianism, you can embrace natural rights too, if you wish. All you have to do is reformulate it as human distinctiveness (if that helps) and recognise that morality is based on treating humanity as special – something utilitarianism tacitly assumes anyway with its assumption of counting every person’s happiness equally – and thus that protecting human beings’ rational agency, including free speech, is a core part of morality, not something that might just happen to come out on top (or not) in a utilitarian calculation.

James:

You are correct Will that counting everyone equally is just a Benthamite ‘I like it’ starting point. That and aiming to up overall happiness/pleasure/preference satisfaction (call it what you will). But pretending that ‘for me all humans will be seen as important and to be respected’ is also just something that Bentham would call ‘Will’s “I like it”’. Of course it meshes with modern sensibilities. But then so does counting everyone as equal. Historically, though, it’s just false that all humans were seen as important. Correct me if I’m wrong but I think every single human culture before about 150 years ago had slavery. (Kudos to the Brits who spent about a century and huge monies stamping out the slave trade and today, in Britain, get no credit for that.) You can’t just proclaim ‘these are objective moral truths’ or ‘timeless human rights’ or ‘part of the natural law fabric of the universe’ or any such other characterisation and take that assertion to be self-validating. It requires all sorts of foundational building blocks that are highly contestable – we both seem to agree that it requires a benevolent, theistic God to cash it out as for me the Dworkinian attempts to deliver a secular moral realism is wholly unconvincing. Anyway, for outside observers – this is Bentham’s point – the ‘all humans are important and deserving of respect’ amounts to you, Will, looking inside yourself and making a moral claim. It’s an ‘I like it’ claim. Either that sort of attitude increases human welfare (I think it overwhelmingly does, as does counting all of us equally), or it does not – and remember I speak in terms of tendencies about the future, there always being outliers like choosing to see your granny in hospital rather than going out drinking and then getting run over by a bus. You make your calls based on what you know at the time, recognising that the good tendency can infrequently go awry.

And likewise talk about ‘rational agency’. If, like me, you think Hume’s position on reason is far more convincing than Kant’s then reason is inert. It does not move action. You need some prior sentiment or feeling on top of which reason – causal cause-and-effect reason or mathematical-type deductive reason – can kick in to tell you how to achieve that sentiment. The whole Kantian attempt to have some transcendent realm a) goes against the whole British empiricist tradition but also b) has nothing in the external, causal world to support it. You need to want it to be true. Really badly.

Lastly, I am unclear why a non-cognitivist or non-moral realist should find natural law theory and natural rights – that humans just happen to be born with these entitlements simply by being human – more attractive. You say it’s because “humans are objectively special”. Well, we have bigger brains than the rest of the animal kingdom. That is a fact in the causal world. It’s not a moral fact though. And of course there has been life on earth for almost three billion years. On the David Attenborough clock that reduces all those billions of years of life on earth down to a 24 hour clock we humans – in our earliest form – appeared about 20 seconds to midnight (i.e., to now). We don’t look all that special to me. The dinosaurs managed 150 million years dominating earth. Of course we all want to think our species is best or most important. But that’s an ‘I like it’ trait. So while you and I would probably line up fairly solidly in terms of what moral treatment we want others to be afforded (and that most definitely includes wanting there to be lots and lots of scope to speak one’s mind) that is a second order issue. The first order issue is the status of moral evaluations. Are they in some ineffable way independent of the minds of the humans making those evaluations? No, says Hume and Bentham and J.L. Mackie and me. Yes, says Kant and the vast preponderance of today’s human rights types and Will and all the great Catholic natural law thinkers such as St. Augustine and Aquinas. Well, the claim makes sense with a benevolent, theistic God. It is mighty hard to cash out without one. Relying on the God foundation, though, moves the debate back to whether the evidence supports that premise.

I note in passing that utilitarians can easily say ‘the natural law worldview’ or ‘a widespread belief in a Christian God’ tend to have very good consequences. They happen to be false beliefs. But as they deliver good outcomes that is more important.

James Allan is the Garrick Professor of Law at Queensland University.

Will Jones is the Editor of the Daily Sceptic. He has a PhD in political theory and a Masters in ethics.