There are two most promising routes to improvement of this draft, I think. First, "utilitarianism" should be given more content, not just a label with a one-sentence capsule definition. It seems likely that this use of the label is more about Jeremy Bentham than John Stuart Mill, for example, but it would be good to understand the arguments you are responding to on the basis of something more precise than appears in this draft. It would also be helpful to distinguish utilitarianism in particular from all consequentialisms in general: are you arguing against the principle that we should judge legal institutions by their consequences, as opposed to by moral and ethical principles independent of consequences? Or are you saying that too simplistic a way of depicting the consequences (which for the purpose of naming you are calling "utilitarianism") isn't a good consequentialist theory of justice? The discussion of criminal law isn't very clear, but I think it indicates that you are on the latter branch of this distinction. It would be a major improvement to make that explicit, so you can explain what is right about your view more clearly. In this draft, you explain why a view you don't fully explain and which isn't attributed to any particular thinker whose writings we can turn to for fuller illustration and understand is wrong. The improvements I'm suggesting (1) put us in touch with the actual argument you are countering; and (2) allow you to explain what is right about some other view (presumably yours).

The second route to improvement is to consider the actual demographic reality around here. Within your lifetime, the United States will be a society in which white people are no longer the majority. How does your argument change in that situation? How we can generalize further from the difference between then and now to construct a better consequentialist theory of justice?

Utilitarianism: Whose Majority?

-- By FrankWilliams - 01 Mar 2018

I have always been skeptical of theoretical approaches to law. This could be due in large part to the idea that these theories assume the law serves some inherent good. It’s not necessarily a moral good, but perhaps an economic good. Most theoretical approaches to law assume the law sets out to do some sort of good and the theories are set in place to essentially ascertain which type of good this particular law promotes. This has been pretty problematic for me because it doesn’t seem to be consistent with what’s actually happening in the real world as the law governs it. Furthermore, these theories hold themselves out to be ex ante on the part of the lawmakers, judges, etc. but they really seem like they’re ex poste explanations. It mirrors the idea of asking for forgiveness as opposed to permission. In my opinion, these explanations are attempts for the law to defend itself and those explanations are not consistent with the way the law governs society. Utilitarianism, in particular, is especially problematic because of its failed attempt to do the “most” good.

Utiliatrianism is a problematic approach to the law for two main reasons: 1) It leaves a significant group of people out of the equation because they don’t fit into the majority, and that has manifested itself in further marginalization of Black, Latinx and socioeconomically disadvantaged people; and 2) the way it has played out in the American legal system is counterproductive in that it hasn’t sought to positively affect the people who actually deal with the legal system the most.

Utilitarianism seeks to do the best thing for the most people (a majority), but this is an oversimplified approach that has proven not to be complex enough for our nuanced society. Utilitarianism invites a number a questions that have to be answered before it can be taken seriously as a means of justifying the good in law. For example, how does one define what constitutes a majority? Is it the racial majority? Is it the socioeconomic majority? The idea of the majority becomes problematic because it forces one to think about which majority is considered and/or consulted. For example, the majority of the United States prison population is comprised of Black and Latinx people. Is this the majority we should be considering when we think of crime reform or sentencing standards?

The nuances in our society and in the demographic makeup of our society are not conducive to a utilitarianism approach. Something that is best for someone is not necessarily best for someone else. Furthermore, the way people in our society interact with the law is different and thus an overarching approach to law does not benefit everyone in the same way. This leaves people out of the equation. It silences the needs of certain groups and essentially severs any positive relationship they could have with the law.

Utilitarianism remains especially problematic because the people left out of the equation are arguably those who need the assistance of law (or general policy for that matter) the most. I think we can agree that the majority of people don’t commit crimes. Therefore, it seems counterproductive to approach a legal system in a way that is catered to people who likely won’t even encounter it. The emphasis should rest on those who interact with it and who do so on a disparate basis. The focus should be on ascertaining why certain groups like Black people, Latinx people, or people from disadvantaged socioeconomic backgrounds interact with the law in negative ways.

There are admittedly a number of ways to approach the law, but my degree Africana Studies has forced me to think about the ways that race as a social construct interacts with many, if not all, of our social systems, including the law. If we examine through the scope of race, it is not very difficult to uncover further problems with utilitarianism. The majority race in America is the White race, but the needs of the White race in terms of the law are not necessarily the needs of other races. The White race has not been systemically oppressed in the same way that other races have and any type of proposed law that is going to help the majority White race has the potential to produce a deleterious effect in communities of color. We then have to consider the face of the legal system and which people are charged with choosing which majority the court seeks to please. Historically, legal influencers have been White and the majority that is kept in mind has been the White majority. This uncovers a subjective element of utilitarianism that further illustrates its inefficiency in our legal system.

If we take the argument a step further and examine what it means to be the “best thing” or the “most good,” we discover once again utilitarianism’s inability to keep up with the complexities of our society. Once again, we’re brought to the idea that what benefits one group doesn’t necessarily benefit another group. If we use economic “good” for example, utilitarianism will still fall short because economic distribution in this country forces us to ask more than just what saves the most money or what makes the most money. It’s impossible to make a decision to ends in economic good without analyzing the distribution of wealth in this country and without understand the economic disparities amongst various racial and ethnic groups in America. Therefore, the utilitarianism approach is not a sufficient system to deal with the intricacies of our 21st century society.

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