¹ Direct utilitarianism holds that the principle of utility should serve both as a standard for assessing actions and institutions and as a direct source of moral obligation. Hence, direct utilitarians would presumably maintain that one is duty-bound to violate another person's legal rights if one were convinced that doing so would maximize general utility. Indirect utilitarianism, by contrast, maintains that the principle of utility merely functions as a standard for evaluating actions and institutions and not as a source of direct obligation. Basic moral rights typically function as the source of the latter. Hence, indirect utilitarians hold that general utility is best maximized over the long-run when people assiduously fulfil their juridical duties.

For a valuable discussion of the distinction between direct and indirect utilitarianism as well as a cogent and challenging rendering of Bentham as combining both, see Kelly, P. J., Utilitarianism and Distributive Justice, Oxford, 1990, ch. 3.Google Scholar

² For a fine analysis of why Mill thinks that direct utilitarianism is self-defeating, see Gray, John, Mill on Liberty: A Defence, London, 1983, p. 35CrossRefGoogle Scholar, and Gray, John, ‘Indirect Utility and Fundamental Rights’, Sociol Philosophy and Policy, i (1983), 79–80Google Scholar. In general, my understanding of Mill owes a great deal to Gray and to Riley, Jonathan's Liberal Utilitarianism: Social Choice Theory and J. S. Mill's Philosophy, Cambridge, 1988.Google Scholar

³ Mill, J. S., ‘On Liberty’, [1859], Essays on Politics and Society, ed. Robson, J. M., 2 vols., Toronto, 1977Google Scholar, Collected Works of John Stuart Mill, xviii. 262.Google Scholar

⁴ For Mill's discussion of security and freedom as being our ‘most important and impressive kind[s] of utility’, as our ‘most vital of all interests’, see especially chapter 5 of Utilitarianism in Essays on Ethics, Religion and Society, ed. Robson, J. M., Toronto, 1969Google Scholar, Collected Works of John Stuart Mill, xGoogle Scholar. For Mill's discussion of individuality as being a vital kind of utility, see in particular 260–61 of ‘On Liberty’, CW, xviii.Google Scholar

⁵ ‘I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorise the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interests of other people’ (ibid. 224). By ‘permanent interests of man as a progressive being’, Mill plainly means our interests in security and freedom.

⁶ ‘Justice is a name for certain classes of moral rules which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice, that of a right residing in an individual, implies and testifies to this more binding obligation’ (‘Utilitarianism’, Essays on Ethics, Religion and Society, CW, x. 255Google Scholar). Mill, that is, means that rights are stringent moral rules that protect our most imperative interests (security and freedom). Here, though, he calls these vital interests ‘the essentials of human well-being’.

⁷ See again the passage cited in n. 5 above. Note, in particular, Mill's contention that society is entitled to restrict those individual actions which ‘concern the (permanent) interests of other people’.

⁸ For Mill, moral rights, justice and ‘duties of perfect obligation’ are members of a single conceptual family. Similarly, non-right claims, beneficence and ‘duties of imperfect obligation’ are members of a separate and contrasting conceptual family. See, for instance, ‘Utilitarianism’, CW, x. 247.Google Scholar

In effect, then, ‘duties of imperfect obligation’ are weaker duties. They are not, to borrow from P. J. Kelly's analysis of obligation in Bentham, ‘conclusive reasons’ for action as are ‘duties of perfect obligation’. As long as individuals adhere to the latter, they should also do whatever else they can to maximize general utility though they are not strictly obligated to do so. Kelly interprets Bentham in much the same way in his effort to close the gap between Bentham and J. S. Mill. See especially Utilitarianism and Distributive Justice, pp. 59–70.Google Scholar

⁹ For Riley, see Riley, , p. 329Google Scholar. For Gray, see Mill on Liberty, p. 117.Google Scholar

¹⁰ For an excellent discussion of the symbiosis between security, freedom and individuality in Mill, see Riley, , pp. 186–90.Google Scholar

¹¹ Spencer, Herbert, Social Statics, New York, 1970, p. 79.Google Scholar

¹² For Spencer's characterization of rights as ‘corollaries’ of equal freedom, see especially Parts II and III of Social Statics.

¹³ Spencer, Herbert, The Principles of Ethics, 2 vols., Indianapolis, 1978, ii. 260Google Scholar. As ‘conditions’, corollary rights do not follow logically from the meaning of equal freedom as Spencer seems to think. Rather, they are simply empirical strategies for best maximizing happiness. Hence, Spencer is misleading when he characterizes his own utilitarianism as ‘rational’ and crude Benthamite utilitarianism as ‘empirical’.

¹⁴ In this regard, see as well Spencer's remark, ‘If, as we have seen, rights are but so many separate parts of a man's general freedom to pursue the objects of life, with such limitations only as result from the presence of other men who have similarly to pursue such objects, then, if a man's freedom is not in any way further restricted, he possesses all his rights’ (The Principles of Ethics, ii. 195).Google Scholar

¹⁵ In Social Statics, Spencer refers to these two most important kinds of rights as the rights to ‘life’ and ‘personal liberty’. In The Principles of Ethics, he calls them rights to ‘physical integrity’ and ‘free motion and locomotion’. Unlike Mill, though, Spencer also defends other less rudimentary rights in both works. These include rights to the ‘use of the earth’, to ‘property’, and to ‘free exchange and free contract’.

¹⁶ Weinstein, D., ‘Equal Freedom, Rights and Utility in Spencer's Moral Philosophy’, History of Political Thought, xi (1990), 134.Google Scholar

¹⁷ Both Spencer and Mill were fully aware of this difference between them regarding the stringency of their basic moral rights. See, for instance, Spencer's 24 February 1863 letter to Mill, in his An Autobiography, 2 vols., London, 1904, ii. 88–9Google Scholar. And see Mill, 's 15 02 1863Google Scholar reply in Life and Letters of Herben Spencer, ed. Duncan, D., London, 1908, p. 108Google Scholar. Finally, see Mill, 's second footnote on p. 258 of ‘Utilitarianism’, CW, x.Google Scholar

Peter P. Nicholson also see strong similarities between Mill and Spencer notwithstanding the greater stringency and sanctity of basic moral rights in the latter. Though Nicholson correctly ties this difference to the greater stress on a priori reasoning in Spencer, he incorrectly underestimates Spencer's commitment to utilitarianism and Mill's commitment to stringent moral rights. See Nicholson, Peter P., The Political Philosophy of the British Idealists, Cambridge, 1990, pp. 148–50.Google Scholar

¹⁸ For Gray's remarks in this regard, see ‘Indirect Utility and Fundamental Rights’, p. 83.Google Scholar

¹⁹ In Lectures on the Principles of Political Obligation and Other Writings, ed. Harris, Paul and Morrow, John, Cambridge, 1986, Sect. 25.Google Scholar

²⁰ Ibid., Sect. 155. See as well Green, 's Prolegomena to Ethics, Oxford, 1980, Sects. 270–1.Google Scholar

²¹ Also see Prolegomena to Ethics, Sect. 245 where he refers to ‘negative rights’ as ‘rights to he let alone’. Avital Simhony properly draws attention to what Green calls ‘positive equality of conditions’ such as guaranteed decent housing, food and basic education. Together, ‘negative rights’ and positive ‘conditions’ secure the ‘negative’ realization of everyone's ‘moral capacity’.

For Simhony's discussion of Green on this point, see her ‘T. H. Green's Theory of the Morally Justified Society’, History of Political Thought, x (1989), 492–3.Google Scholar

²² Green, , Lectures on the Principles of Political Obligation, Sect. 208.Google Scholar

²³ Also see ibid., Sect. 25.

²⁴ Green, , Prolegomena to Ethics, Sect. 210Google Scholar. For an analysis of rights in Green which obliquely alludes to their equal freedom-specifying role, see Thomas, Geoffrey, The Moral Philosophy of T. H. Green, Oxford, 1987, pp. 297–8.Google Scholar

²⁵ Green, T. H., ‘Liberal Legislation and Freedom of Contract’ in Lectures on the Principles of Political Obligation and Other Writings, p. 199.Google Scholar

²⁶ Ibid., p. 200. Here Green's rendering of positive freedom as equal freedom is cast in terms of his analysis of freedom of contract which is, after all, the specific focus of this essay. However, ‘Liberal Legislation and Freedom of Contract’ is not the only place where this occurs. Also see Lectures on the Principles of Political Obligation, Sect. 221, where Green writes that property is a power which ‘should be secured to the individual irrespectively of the use which he actually makes of it, so long as he does not use it in a way that interferes with the exercise of like power by another, on the ground that its uncontrolled exercise is the condition of attainment by man ofthat free morality which is his highest good’ [emphasis mine].

²⁷ Prolegomena to Ethics, Sect. 212. This is just a way of saying that enforcing moral rights constitutes the ‘negative realisation’ of everyone's ‘moral capacity’.

²⁸ Green, , ‘On the Different Senses of “Freedom” as Applied to Will and the Moral Progress of Man’, in Lectures on the Principles of Political Obligation, Sects. 7–8.Google Scholar

²⁹ Roberts, John, ‘T. H. Green’, Conceptions of Liberty in Political Philosophy, ed. Pelczynski, Z. and Gray, John, London, 1984, p. 252Google Scholar. Also see Milne, A. J., ‘The Idealist Criticism of Utilitarian Social Philosophy’, Archives Europeennes de Sociologie, viii (1967), 324Google Scholar. See, too, Thomas, , pp. 337–8Google Scholar and Bellamy, Richard, ‘T. H. Green and the Morality of Victorian Liberalism’, Victorian Liberalism, ed. Bellamy, Richard, London, 1990, p. 135 and pp. 137–8.Google Scholar

³⁰ Green, , Lectures on the Principles of Political Obligation, Sect. 219Google Scholar. And see Nicholson, , pp. 116–21.Google Scholar

³¹ Green, , Lectures on the Principles of Political Obligation, Sect. 23Google Scholar. Green nevertheless refuses to abandon the notion of natural rights altogether. Here again he shares much with certain utilitarians, particularly Spencer. For Spencer, as noted earlier, basic moral rights are inviolable. But they are not inviolable in the traditional natural rights sense. That is, they are non-arbitrary human artifacts that slowly emerge out of ‘customs’ and ‘usages’ through the refining powers of reason. And they are non-arbitrary because, according to Spencer, there is ultimately only one ideal or necessary pattern of moral rights which best promotes utility and towards which all progressive societies are converging. Likewise with Green, genuine rights are natural in the sense of being non-arbitrary or necessary conditions for realizing good which members of liberal societies gradually recognize and embrace. See Lectures on the Principles of Political Obligation, Sect. 9.

For Spencer's most sustained discussion of basic moral rights as both inviolable and as artifacts rooted in ‘customs’ and ‘usages’, see the last chapter, entitled ‘The Great Political Superstition’, of The Man Versus the State, Indianapolis, 1981Google Scholar. Though correctly capturing Green's understanding of basic rights, Nicholson holds that Spencerian rights are natural in the traditional Lockean sense of being absolute, ahistorical and invested by God. But Nicholson bases his interpretation solely on Spencer, 's early Social StaticsGoogle Scholar. Spencer abandoned this approach shortly thereafter. See Nicholson, , pp. 84–94 and p. 138.Google Scholar

³² See also ‘On the Different Senses of “Freedom” as Applied to Will and to the Moral Progress of Man’, Sects. 7–8.

³³ Green, , Lectures on the Principles of Political Obligation, Sect. 23Google Scholar. In a commentary endnote on this passage, Harris and Morrow suggest that Green perhaps had Mill in mind. For their remarks, see p. 323.

³⁴ Green, , Prolegomena to Ethics, Sect. 164.Google Scholar

³⁵ Ibid., Sect. 332. Also see ibid., Sect. 356. There, Green comments in probable reference to Mill,

But if the Utilitarian is committed to no more than a certain doctrine of the criterion of morality—the doctrine that the value of actions and institutions is to be measured in the last resort by their effect on the nett sum of pleasures enjoyable by all human, or perhaps by all sentient, beings, the difference between him and one who would substitute for this “nett sum, etc.” “the fulfilment of human capacities” may be practically small.

And see ibid., Sect. 286.

³⁶ See, furthermore, Green's unpublished manuscript ‘Note D on Pleasure and Kant's Moral Philosophy’. There, he asserts,

In regard to most questions of political conduct, and many private, different views as to the nature of the ultimate good do not affect judgement, which if circumstances were fully known, should be formed as to the proper line to take. Whole difficulty lies in analysis of the conditions social or other which determine what the result of any conduct will be. Hence we often find political agreement among those whose moral theories are antagonistic because they agree in their practical analysis of the social situation (‘Notes A-F’, Unnumbered MSS, T. H. Green Papers, Balliol College, Oxford University).

³⁷ Green, , Prolegomena to Ethics, Sect. 183.Google Scholar

³⁸ Ibid., Sect. 183. Avital Simhony suggests that by ‘common good’, Green means no more than something like fair social co-operation or rights-secured ‘outward’ freedom. It seems to me, however, that common good in Green is surely more than the juridical conditions of self-development. Though more, it is not deeply substantive as I shall shortly suggest. For Simhony's claim, see Simhony, , 497.Google Scholar

Also note the loose similarities here to Kant's theory of justice. For Kant, justice constitutes the conditions for acting morally though it can never make us moral, can never make us do our duty. Behaving justly is a matter of fulfilling one's external obligations though not necessarily one's internal obligations of duty. Behaving justly is acting ‘externally in such a way that the free use of your will is compatible with the freedom of everyone according to a universal law’ [emphasis mine]. The Metaphysical Elements of Justice, Indianapolis, 1965, p. 35Google Scholar. And acting thus merely makes it more likely that one will go on to fulfil one's internal obligations. (For an excellent discussion of Kantian freedom and justice along these lines, see Taylor, Charles, ‘Kant's Theory of Freedom’ in Conceptions of Liberty in Political Philosophy.)Google Scholar

³⁹ As he also asserts, good is the ‘unimpeded exercise by the greatest number of a [good] will’ (Prolegomena to Ethics, Sect. 286). Especially germane here too are Green's criticisms of Kant which are part of his larger, and not always well-focused, endeavour to accommodate Kantianism with consequentialism. For instance, in ‘Note D on Pleasure and Kant's Moral Philosophy’, he observes, ‘Moral goodness and badness are attributes of character.… See bearing of this on question whether action morally good in virtue of motives or results. Neither one nor other absolutely. Not good in virtue of any results except results in way of production of good character, nor good in virtue of these unless proceeding from a character interested in production of such results’ (‘Notes A-F’, Unnumbered MSS, T. H. Green Papers). See also ‘Lecture E. T. 78’, and ‘Utility as a Principle of Art and Morality’, Unnumbered MSS, T. H. Green Papers.

Of interest as well is Bradley's remark that while he disagrees with utilitarians insofar as they make pleasure the standard of virtue, he agrees with them insofar as they make ‘self-realization’ this standard. See Bradley, F. H., Ethical Studies, Oxford, 1927, p. 125.Google Scholar

⁴⁰ Here recall Green's classification, noted earlier, of moral rights into two kinds, namely ‘negative rights’ and ‘positive equality of conditions’. The latter are what give his moral rights their greater power, thickness and substance.

⁴¹ The same could not be said for Mill's basic moral rights. Millian moral rights are similarly quite thick or powerful particularly when his drift towards socialism in his later writings is kept in mind. They protect, we may recall, our most ‘important and impressive’ kinds of interests (security and freedom) and thereby generate general utility indirectly. (Hence, by the way, Thomas seems wrong in suggesting that, in contrast to Green, Mill ‘fails to develop any comprehensive and coherent account’ of what he means by ‘permanent interests’. See Thomas, , p. 236.)Google Scholar

⁴² Mill, , ‘On Liberty’, CW, xviii. 266.Google Scholar

⁴³ Gray, , Mill on Liberty, pp. 122–3.Google Scholar

⁴⁴ For a fuller analysis of Spencer's attempt to accommodate stringent moral rights with utility, see Weinstein.

⁴⁵ Green, , Prolegomena to Ethics, Sect. 286. And see Sect. 283.Google Scholar

⁴⁶ But good is substantive none the less and not simply categorical. That is, doing what is worth doing is at least a matter of acting with rights-respecting self-restraint, of ‘exhibiting the exercise of a self-denying will’. It is, at a minimum, being negatively virtuous. I am indebted to Richard Flathman for stimulating my thinking on this point.

⁴⁷ ‘Such questions are not to be answered by “intuition”.… But the cases we have been considering are those in which some “counsel of perfection” is needed, which reference to such claims does not supply, and which has to be derived from reference to a theory of ultimate good’ (Prolegomena to Ethics, Sect. 382).