Why Utilitarianism Cannot Be Right

Eric Rasmusen, a colleague and good friend of mine in the Business School, is a leader in the field of law and economics, which seeks to explain how legal structures can be/should be explained as rules to maximize utility for society as a whole. In my outsider's impression, a brilliant law and economics paper will frequently take some seemingly bizarre or unfair law and explain how it in fact serves to maximize utility. Utility here is of course subject to the usual economic ambiguity, being sometimes treated as material gain, but at other times defined as simply "anything people want." (That's more sensible, of course, but somehow ends up giving me a whiff of circularity about the whole enterprise.) This enterprise is, of course, a new avatar of the old utilitarian, radical Whig project which began as a critique of the British legal system, and which deeply influenced the American constitutional project.

This whole project can be given an atheist cast, as Jeremy Bentham, its founder did, but has over time acquired a number of Christian defenders, such as Charles Murray -- and Eric Rasmusen himself. Despite its origin in the radical Whig tradition, the results of modern law and economics often tend to a distinctly conservative bend, finding real, but obscure, rationales to laws that were once deemed survivals of the irrational past. (Indeed, law and economics professors seem to be today the most consistent practitioners of Chesterton's adage, "Never tear down a fence until you know why it was put up.")

Despite this useful vindication of tradition, I find the whole way of thought very alien. First of all there is the unpleasant fact that if traditions are to be vindicated on the basis of rational maximization of utility, then what do we do with those whose rationale has not yet been discovered. Experience suggests that law and economics professors might well discover some utility to them, but on the other hand might not. So in the interval, do we obey or not?

This becomes even more problematic when applied to religion. One avenue of investigation is, for example, the exploration of how some of the more funky laws of Moses might actually be rational for society. (I've indulged in a bit of this sort of speculative reasoning here.) Despite this useful reminder that things that seem nutty to us may well have a purpose, this makes our focus almost entirely horizontal; what is rational for society, what helps us achieve utility. God is present only as a the intelligent designer of a social system able to run of itself. Secondly, the focus tends to shift to law (that's obvious, right?) -- how we should live. And thirdly, the problem of motivation becomes insoluble. If the laws of God are the perfect blueprint for a healthy, wealthy, and wise life, then our obedience tells us nothing about our love for God.

Eric's weblog has a post on a recent law and economics lunch, in which the disposal of dead bodies was discussed. The assembled brain-power was unable to find a reason why the manner of disposal of dead bodies (assuming the relevant hygienic considerations are taken care of) should matter to us. But as the participants themselves recognized, we do care about what happens to dead bodies, even ours. The conclusion seems to be that even its most avid proponents recognized that there was a real problem with utilitarianism. Perhaps ingenuity will eventually solve this problem. But I doubt it.