Was Green a Utilitarian in Practice?

Was Green a Utilitarian in Practice?

A look at T.H. Green and John Stuart Mill on Crime and Punishment

Justin Ekin

December 12, 2006

Senior Seminar

Dr. Brenda Wirkus

Fall Semester 2006

The proper characterization of T. H. Green's moral and political thought is a matter of increasing controversy. This is highlighted particularly in the debate between David Weinstein and Avital Simhony in recent years. Weinstein argues that Green (as well as L. T. Hobhouse) 1 share striking similarities with utilitarians, especially John Stuart Mill, in his political thought. Indeed, Weinstein reminds us that Green had claimed Mill's reformulated utilitarianism was Ð''scarcely... distinguishable' from his own position, as Green says:

Now, in a general way and up to a certain point, the line of action directed at this removal of obstacles and supply of conditions favorable to goodness, will also tend to make existence more pleasant for those whose good is being sought.2

For Weinstein, Green Ð''advocates a Consequentialism of self-realization which also stands hard by improved utilitarian moral rights'.3 Green is said to be Ð''a liberal consequentialist', although Ð''certainly not ... [a] utilitarian'.4 However, for Weinstein, Ð''practically or juridically speaking, Green might as well have been a utilitarian'.5 His claim is supported by D. G. Ritchie, who says:

There is no reason why the Idealist, after making clear his objections to Hedonism, should not join hands with the Utilitarian. In fact, an ethical system like Green's is really, on its practical side, J. S. Mill's Utilitarianism with a securer basis and a criterion provided, which Mill cannot logically provide, for distinguishing the different quantities of pleasures.6

Weinstein's interpretation of Green as a consequentialist has been criticized strongly by Avital Simhony. She highlights the many differences between Mill and Green's positions is at aÐ''theoretical' or Ð''moral' level, demonstrating that Ð''consequences do not play a consequentialist role in Green's moral philosophy'.7 For Simhony, the fact that Green's philosophy does take into account consequences to some degree is unproblematic, as she recounts approvingly from John Rawls's A Theory of Justice: Ð''All moral theories worth our attention take consequences into account in judging rightness. One which does not would simply be irrational, crazy'.8 This debate over the proper characterization of T. H. Green's thought is about whether or not his moral theory is consequentialist. Both Weinstein and Simhony concede that Green and Mill's political theories are almost indistinguishable in practice. For example, Simhony says:

"To be sure, Green himself Ð''explicitly concedes', as Weinstein holds, that the practical difference may be small, but he equally holds that the small difference extends only Ð''for practical purposes', not for theoretical ones.9"

In this paper, I will argue that there are significant practical differences between Green's and Mill's political theories that both sides in the debate have overlooked. My contention is that Green practically or juridically speaking does not adopt Mill's utilitarianism. I will begin by presenting Green's and Mill's ideas on capital punishment. The reason for this is to initiate a situation in which the ethical theories presented can be better seen. It will be argued that these views on punishment demonstrate a strong reason to continue our seeing Green's moral and political thought as distinct from Mill's utilitarianism. In the next part of the paper, I will present Green's theory of the common good, a theory that bridges moral and positive law in a variant of natural law jurisprudence. I would not like to suggest that these are the only significant practical differences between T. H. Green and J. S. Mill. For example, only Green supported restrictions on the sale of alcohol and only Green argued the state should help farmers who suffer great losses due to cattle disease. Mill was both opposed to prohibition and thought that the fate of farmers should be left to the market.

The contrasting central roles Ð''interests' play for Mill and Ð''rights' play for Green may become more apparent when we examine their different justifications of punishment. For Green, punishments are warranted for transgressions of legal rights.10 The upper limit of a punishment's severity is set by the importance of the violated right within the overall context of maintaining a system of rights. Punishments increase in potential severity the more central a right is for the continuation of a system of rights. In addition, a punishment's ability to deter places a second constraint on its justifiable severity. For example, Green imagines that a burglar and a respected banker each violate a right equal in importance. At first glance, the burglar and the banker may be thought to be entitled to the same severity of punishment. Yet, Green argues the banker ought to be punished less severely because the harsher punishment he was liable to receive is unnecessary to deter other bankers.11

Green's theory of punishment also has a reformative function. As with all other aspects12 of punishment, criminal reformation centers on maintaining the system of rights, not on the direct moral development of the criminal.13 The claim is that the criminal ought to be helped to achieve his capacity for self-realization, insofar as such a capacity exists.14 Otherwise, the criminal will simply re-offend upon release.

Mill's justification of punishment is very different. He famously says:

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right.15

For Mill,