The critic then claims that it is not plausible that the correct moral theory could demand the sacrifice of innocent individuals in this way, and therefore consequentialism should be rejected.
The above example serves to illustrate that consequentialism as a theory applied to criminal justice, has certain inescapable flaws in terms of ethics and morality.
The aspect of partiality is also another more technical objection to the validity of this stance. The theory of consequentialism is intended to decide on moral goodness or otherwise from an impartial and uninvolved viewpoint and only judge actions based on consequences. An example that is often given in the literature is the view that the happiness of one individual over another is not as important as the outcomes in term so the greatest amount of happiness. Therefore, consequentialism tends to hold that in deciding what to do, you ought to give just as much weight to the needs of total strangers as to the needs of your friends, your family, and even yourself. And since your dollar can usually do more good for desperate refugees than for yourself or your friends, consequentialism seems to hold that you ought to spend most of your dollars on strangers
Consequentialism: The Internet Encyclopedia of Philosophy)
From this perspective, the theory of consequentialism suggests that it is more beneficial and morally correct in terms of consequence and outcomes to spend money on a stranger than on a family member. Critics states that his view runs counter to moral common sense.
This objection is similar to other refutations of the theory based on the issue of equality. From the consequentialist point-of-view, it is the total amount of moral goodness that is at stake and not the question of who receives the moral goodness. While, this is on the surface an apparently egalitarian approach which does not discriminate between the happiness of particular individuals, a major objection noted is that, "...such a conception is not egalitarian because it does not care whether happiness is distributed equally or unequally among people" (Consequentialism: The Internet Encyclopedia of Philosophy).
This is a significant point in that it serves to highlights one of the central flaws of this approach; in that the emphasis is on the estimation of good or morality only in terms of measurable outcomes. As such, in philosophical terms, it is an objectification and a quantification of moral good and value. The trajectory of this theory tend to ignore to a great extent the more complex issues of where moral value lies and how this moral value relates to individual effort or worth on a more subjective level. This objection is clearly expressed in the following quotation.
If the greatest total can be created only by exploiting the miserable to make the happy even happier, then such consequentialism would seem to say that you should do it. But common sense may rebel against that idea as being unfair or unjust. Hence consequentialism is wrong. See Le Guin (1973); Rawls (1999); Harsanyi (1977).
Consequentialism: The Internet Encyclopedia of Philosophy)
The above objection illustrates the flaws in consequentialism when taken to its logical conclusion.
Another objection is particularly pertinent to the theme of this paper, as well as to the relationship between consequentialism and questions of judicial morality. This refers to the issue of personal rights. As one commentator notes, Consequentialism "...may ask us to meddle too much into other people's business" (Consequentialism: The Internet Encyclopedia of Philosophy). An extreme example of this is a hypothetical scenario where an individual pensioner's money is coercively used to contribute to charity. This charity would allow for saving many lives and maximum consequences that would contribute to the "greater good." In this hypothetical scenario the pensioner is bound and gagged and forced to sign checks. This goes of course against common moral sense but this simplistic example serves to show how consequentialism can be theoretically applied to justify acts that are ostensibly ethically suspect. This example can also be related to the utilitarian ethos of outcomes over individual value or difference. As Scheffler states in the Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (1994), "...utilitarianism does not take seriously the distinction between persons" (Scheffler p. 2).
The same general objection can also be applied to human thinking. In one sense, consequentialism limits the range and creativity of human thought by reducing all decision to the parameters of overall consequences. Furthermore, it is also possible that the way of thinking that this leads to may in fact be both inhuman and immoral. (Consequentialism: The Internet Encyclopedia of Philosophy)
One of the most significant objections to the philosophy of consequentialism is the question of relative and neutral values. This refers to the view that consequentialism, "...makes a substantive claim about the nature of value. It says that all values are neutral" (Smith). This important aspect, which relates in many ways to the above objections, also includes a conceptual assertion about the nature of obligation." It says that facts about what we ought to do can be analyzed in terms of facts about which of the various things that we can do will maximize value" (Smith). This is a consequence of the neutrality of value and therefore in its strictest sense does not take into account individual differences and the complexity of moral actions. This is an important consideration in terms of legal and criminal process. In essence, consequentialism is a reduction of possibility and choice from this standpoint.
The issue of value neutrality has been criticized by a number of commentators. As Jackson (1991) states in Decision- theoretic Consequentialism and the Nearest and Dearest Objection, out lives are given meaning and value by the association with that which hold dear. We associate value with friends, family etc. However, in terms of the consequentialist approach, the rightness and wrongness of an action is determined by the action's consequences considered impartially, without reference to the agent whose actions they are consequences of. It is the nature of any particular consequence that matters, not the identity of the agent responsible for the consequence. (Jackson 1991, p.461)
This quotation therefore points to the obvious moral and logical disparity that exists in consequentialist theory. Commenting on these views by Jackson,. Smith states that.
Jackson's suggestion is thus that... consequentialism 'is in conflict with what makes life worth living' because it 'would, given the way things more or less are, render the morally good life not worth living'. (Smith)
Consequentialism and criminal justice
The criticisms of consequentialism raise a number of fundamental questions that are important in ascertaining the relationship with criminal law and justice. In one sense if can be argued that the practice of theory of consequentialism has practical value and application in criminal justice. However, as has been discussed, the flaws and fault lines that critics of this theory suggest also makes it a very dangerous theory to accept at face value, without any dissenting views or interrogation of the way that it functions from a moral an ethical point-of-view.
One of the dominant objections to this theory from an deontologist perspective is that the theory amounts to an abrogation of personal responsibility and the dependence of a system of rules and measurement instead of reasoning and exploration of the action that are being dealt with. This view is illustrated by the following example:
There's no element of personal decision; you simply calculate, and do what the numbers tell you to do, as if you were a machine. You tell your victim, 'Sorry, it's not me, you understand, I'm just an instrument of the greater good.'
In a legal context, the possible implications of consequentialism can be seen in analysis of the concept of fault. Fault in a legal sense is also known as culpability or blameworthiness. This is a vital aspect of criminal law. However, in terms of the theory of formal consequentialism, there is "... no independently viable conception of fault" (Huigens 2000). Furthermore, fault is seen as an irreducibly retrospective concept, and "....the inveterately prospective orientation of deterrence theory's underlying consequentialism cripples its efforts to give an adequate account of fault" (Huigens 2000). In other word the theory of consequentialism does not adequately deal with aspects of legal and criminal praxis, such as fault, and this example therefore confirms the main thesis of the this paper: that consequentialism has flaws as an ethical and moral philosophy in terms of legal and criminal praxis.
It should be noted that there is a positive side to the philosophy of consequentialism. Bailey (1997) refers to this as a, "... certain healthy sense of realism about what life in society is like" (Bailey 1997, p. 9). This means that the theory of consequentialism has a certain practical application in terms of legal and criminal process and that there are certain "trade-offs" in terms of moral certainty that are necessary…