Introduction
Normative legal theory is concerned with
the ends and justifications for the law as a whole and for particular
legal rules. Previous entries in the legal have examined exemplars of
the three great traditions in normative theory--consequentialist,
deontological, and aretaic (or virtue-centered) perspectives. There
are important differences between these three families of theories at a
very general and abstract level: for example, deontologists emphasize
rights and wrongs while consequentialists emphasize the goodness or
badness of states of affairs. And there are differences between
particular theories within the broad families: within consequentialism,
for example, welfarists emphasize preference satisfaction, whereas
hedonistic utiliarians emphasize pleasure and pain.
Despite these
disagreements, I think it is fair to say that many or most of the
reasonable views about normative theory agree that what is good or bad
for individual humans is morally salient. Welfarists believe that
humans are better off if their preferences are satisified. Hedonistic
utilitarians believe an individual is better off if she experiences
more pleasure and less pain. Aristotle believed that humans flourish
if they live lifes of social and rational activity that expresses the
human excellences or virtues under conditions of peace and prosperity.
A deontologist who believes that autonomy is the central value might
believe that humans are better off if they are autonomous and worse off
if they are not In other words, a wide variety of moral theories agree
that what is good for humans is morally salient.
This entry in the Legal Theory Lexicon will examine three related concepts that are related to the good for humans, welfare, well-being, and happiness--and along the way we will explore some related ideas like pleasure, satisfaction, pain, flourishing, and eudaimonia.
Of course, the nature of the human good is a deep topic--one that that
has been debated by philosophers, psychologists, economists,
theologians, and others for millennia. All of the great moral and
political philosopher, from Plato and Aristotle, through Hobbes, Hume,
Kant, Bentham, and Mill, to contemporary figures like Thomas Scanlon
and Derek Parfit have engaged in debates about the nature of the human
good. This entry in the Legal Theory Lexicon will only scratch the surface of these debates. As always, the Lexicon is aimed at law students, especially first-year law students with an interest in legal theory.
Three Concepts
Let's
begin by saying a few words about each of the three concepts. Our aim
in this section is not to provide a canonical definition, but instead
is to give a sense for the way these terms are used in normative legal
theory:
Welfare--The
term "welfare" is heavily theory laden. For contemporary
law-and-economics scholars, welfare sometimes operates as a technical
term. One's welfare is a function of one's utility, and most
contemporary economists understand utility as a function of one's
preferences over states of affairs. If I prefer a world in which I eat
an ice cream cone after lunch to one in which I am abstemious, then the
ice cream cone increases my welfare. But the term "welfare" is also
used in a much broader sense, in which my "welfare" is a function of
what is good (and bad) for me. In this sense, my "welfare" might be
synonymous with my "well-being" or "flourishing or "happiness." We
might say that there are competing conceptions of the general concept
of welfare.
Well-Being--The
term "well-being" is similar to "welfare" in the broad and nontechnical
sense. In ordinary language, we frequently associate "well-being" with
health--primarily physical health but mental health as well.
Philosophers use this term to refer to what is noninstrumentally good
for someone.
Happiness--In
ordinary language, the term "happiness" is frequently used to refer to
a mental state. One might think of happiness as a feeling of pleasure,
contentment, satisfaction, or enjoyment. But the word "happiness" is
also used as a translation for the Greek word "flourishing," and even
in ordinary talk the use of phrases like "true happiness" suggests that
not one can have pleasant feelings from moment to moment, but lack
"happiness." Some theorists would reserve the term "happiness" for a
stable or enduring quality that is produced by the appropriate features
of one's life. Thus, it might be the case that "a job well done" can
make you "happy," but a delicious desert can only give you "pleasure"
or "enjoyment."
As is apparent from this very brief
introduction of these three concepts, they are connected with others
like "pleasure," "pain," "preference," "utility," "flourishing,"
"enjoyment," and so forth. But rather than defining each of these
concepts, we will now move to a more abstract level and discuss three
general views about the nature of human well-being (or welfare in the
broad sense). These three views are offered only as illustrations. I
am not going to attempt to provide a comprehensive catalog.
Three Theories of the Human Good
One
way for us to get a better handle on the concepts of welfare,
well-being, and happiness is to examine three particular theories of
the good for humans:
Hedonism:
Philosophical hedonism (which may or may not be related to the view
that the good human life is produced by lots of sex, drugs, and rock 'n
roll) is the view that the good for humans is pleasure (or more
generally positive or enjoyable mental states) and bad for humans is
pain (or negative mental states). Hedonists might believe that
pleasure is a distinctive brain state that varies continuously, with
the intense pleasure induced by opiates or cocaine at one end of the
spectrum, and that pain is similar, with the intense pain of passing a
kidney stone at the other end. But some hedonists believe that pains
are differ qualitatively. John Stuart Mill, for example, thought that
there were higher pleasures (e.g., from listening to great music or
reading a great novel) and lower pleasures (e.g., from strong drink,
drugs, or playing video games). There are deep questions about the
nature of pleasure and pain, but for our purposes let us simplify
greatly and assume that all hedonic values (positive or negative)
consist of mental states (or brain states, which may or may not be
equivalent) that are experienced as positive or negative.
Welfarism:
In the legal academy, "welfarism" is strongly associated with normative
law and economics. (But in other disciplines, the terms "welfare" and
"welfarism" have other meanings.) Of course, economists differ among
themselves on the nature of welfare, but let us stipulate (for the sake
of simplicity) that "welfare" in the economic sense is a function of
"utility" and that utility for an individual is a function of the
individual's ordinal preferences among states of affairs. If my
preferences are satisfied, then my utility and welfare goes up. If the
world moves in a direction that I would rank lower (and hence
disprefer), then my level of welfare goes down. We might call this
theory of "welfare" a "preference satisfaction" theory.
Eudaimonism:
The third view that I will outline is based on Aristotle's claim that
the highest humanly achievable good is "eudaimonia," which I will
translate as "flourishing". Aristotle believed that humans flourished
if they both fared well (lived under the right circumstances) and did
well (engaged in valuable activities): hence, Aristotle's claim was
that eudaimonia consisted in faring well and doing well. Let's put
faring well aside, and focus on doing well. Aristotle believed that
the nature of "doing well" depends on human nature. Humans are
rational and social creatures. So a flourishing human life consists of
rational and social activities done well. "Done well" for Aristotle
means "expressing the human excellences or virtues." In sum, a
flourishing human life is a life of rational and social activity that
expresses the human excellences, and hence a life under conditions of
peace and prosperity sufficient to support or enable such activity.
Let's try to make this more concrete by offering examples of three different lives:
The Life of Pleasure:
The first life is lived by Ben, who takes great pleasure in sex, drugs,
and rock 'n roll. Ben does what it takes to get enough money to party
hard. He is careful not to overdo or to party so hard that he screws
up his life. Ben's wits are somewhat dulled, and his social
interactions might be a bit superficial, but he has a ton of fun almost
every day. It turns out that lots of the time, things don't go the way
that Ben prefers--his favorite bands always break up, he doesn't get
job he wants, his girlfriends cheat on him. But Bob doesn't let
disappointment interfere with pleasure--if things don't go well, he
grabs a brewski, takes a couple of tokes, and chills.
The Life of Satisfaction:
Alice has many preferences about how things should go. She wants her
children to get a good education and live up to their potential. She
wants her city to care for the homeless. She wants endangered species
to be saved. She works for those things, and as a result of her
efforts, her kids do well. For reasons that were largely out of her
control, her city does care for the homeless and many endangered
species are saved. Things go as she wants them to go, but because
Alice worries a lot, her satisfaction is only rarely translated into
pleasure. Some of Alice's friends observe that she had the potential
to do more with her life, as things turned out, she has what she wants.
The Life of Accomplishment:
Phillipa grows up in an loving and nurturing family and gets an
excellent education. As a result, she becomes an adult who is smart,
wise, courageous, temperate, good tempered, caring, responsible: she is
a truly excellent human beings, or to put it differently, she is
virtuous. She is reasonable fortunate in her life circumstances as
well, so she has a good and stable relationship with her partner, many
friends, and meaningful work as an architect. She lives a balanced
life, with periods of intense and difficult work, but also times for
fun. Many of her preferences are satisfied, but many are not.
I
hope
the description of the three lives is not so oversimplified that
it becomes unrealistic. The point is that the three theories we have
described will evaluate the three lives differently. At least some
varieties of hedonism will count Ben's life as the best life--it is a
life of
pleasure. There may be pleasure in Alice and Philippa's lives as well,
but not as much as in Ben's. A welfarist who counts all preferences
equally might view Alice's life as the life that goes the best: her
preferences are satisfied. Although she doesn't get as much pleasure
as Ben, she doesn't prefer a life of pleasure; likewise, she doesn't
want to live up to her potential for excellence: she is satisfied with
a more passive life. Philippa gets much of what she wants and
experiences her share of pleasures, but as things turn out, her life is
worse than Ben and Alice's lives are if the scale is either pleasure or
preference satisfaction. A eudaimonist or virtue theorist will
nonetheless say that Philippa's life is the best life.
The Conceptual Space of Debates about the Nature of the Good for Humans
Things
are about to get abstract, so watch out. The next step we will take
involves mapping the ways in which the three theories of human good
differ. This is not the only way we could map the conceptual space,
but it illuminates some of the important issues. This map is going to
rely on a distinction between the subjective (which is associated with
our minds or inner lives) and the objective (which is associated with
the world, including our bodies and our environment). That distinction
will then be applied in two dimensions: one concerned with the source
of the standards for value and the other concerned with the things that
can satisfy those standards. I warned you--this is abstract, but bear
with me.
Objective and Subjective Views of the Sources of the Standards for Human Good:
What is the source of our criteria for well-being, happiness, welfare,
or the human good? One possibility is the standards are
subjective--they are relative to what we think or feel. Another
possibility is that the standards are objective--they depends on the
nature of the world and not our feelings or beliefs about it.
Objective and Subjective Views of the Conditions to Which the Standards for Human Good Are Applied:
Once we have standard for human good, we need to apply them to
something. We could apply them to things that are subjective--to our
mental states. Or we could apply them to things that are objective--to
states of the world.
OK. Now we can characterize our
three theories of value in light of the two dimensions in which a
theory of human value can be objective or subjective.
Hedonisim
is usually understood as having both a subjective understanding of the
sources of value and a subjective understanding of what those standards
apply to. Our mental states determine what is good or bad for us: it
depends on what we get our kicks from and what makes us feel bad. And
our mental states or subjective experiences are what the standards
apply to. So hedonism is subjective in both senses.
Welfarism
is committed to a subjective view of what is good and bad for humans.
Our preferences (which are mental states) provide the criteria or
standards by which utility and welfare are judged. But welfarists are
objectivists about what these standards are applied to. Utility is a
function of preference over states of the world. My utility goes up if
the world moves to a state I prefer.
Eudaimonism
as I have described is a hybrid theory on both levels. The basic
standard of a flourishing life is objective--it is derived from an
account of human nature and the virtues. But for any particular
individual, a flourishing life will also be a function of that
individuals plans and goals and also a function of what that individual
finds satisfying, rewarding, and to some extent pleasurable. Likewise,
a virtue-centered theory of human flourishing takes how one fares
(faring well) and how one does (doing well) as the conditions to which
the theory is applied. So the conditions are partially objective. But
the human virtues involve subjective states. Doing well involves doing
the right actin for the right reason. A flourishing human being has
the right preferences and takes enjoyment from the right kinds of
things: for this reason, the conditions to which the criteria for the
human good are applied are partially subjective.
In
other words, hedonism is a subjective-subjective view, welfarism is a
subjective-objective view, and eudaimonism is a hybrid-hybrid view.
One can imagine views that might be objetive-objective: for example, if
you believed that well-being was cashed out by a list of objective
goods, such as health, meaningful work, and an active social life, you
might have a view that the standards for human good are objective and
that they are satisfied by objective features of particular human lives.
Arguing About (or Investigating) the Nature of Welfare, Well-Being, and Happiness
Which
of these rival accounts is the best one? Of course, the nature of the
human good has been the subject of philosophical debate and cultural
strife for more than two millennia. So it will surprise no one that
the Legal Theory Lexicon will just skim to the surface of the
arguments that can be made for and against various conceptions of
welfare, well-being, and happiness.
Let's begin with
methodology. What kinds of reasons might be offered for and against
various conceptions of the human good? Now that is a big topic in
itself, but we can identify three of the common strategies used to
advance our thinking about this topic:
Reflective Equilibrium:
One strategy is to attack the problem directly using the method of
reflective equilibrium. We can begin with intuitions (our unreflective
beliefs and the opinions of others) about the topic at hand. Some of
those beliefs will be general and abstract (e.g. "happiness is a
feeling"). And some of those beliefs will be quite particular: a
serious illiness involves a loss of well-being even if the pain is
completely managed). We can then attempt to formulate a theory of the
good for humans (or of welfare, well-being, or happiness) that best
fits those intuitions. Some of our intuitions may need to be revised
in light of the tentative theory, and some aspects of the theory may
need to be revised in light of recalcitrant intuitions. Eventually, we
can reach a reflective equilibrium between beliefs that have become
well-considered judgments and our general theory.
Ethical Theory & Metaethics:
There is a second method that we might employ. We might begin with our
best understanding of metaethics (at what we might think of as the
highest level or "top" of normative theory.) We could then work down
through ethical theory to our conception of the human good. For
example, if we adopted an internalist view of moral motivation (i.e.,
that what is morally good necessarily provides motivation) then we
might conclude that our view of the human good must have a certain form
if it is to play this motivational role. We might call this the
top-down strategy: we proceed from axioms of metaethics to deduce the
postulates and lemmas of our theory of the human good.
Thought Experiments:
The notion of a thought experiment (or "hypothetical") is familiar to
all legal theorists. One of the problems of the method of reflective
equilibrium may be the tendency of various conceptions of human good to
coincide or converge in particular cases. Our preferences and
subjective experiences of happiness may align with elements of
objective well-being such as health. In order to pry these things
apart, we might want to construct thought experiments in which force us
to evaluate cases in which our subjective happiness diverges from our
preferences or health.
The Experience Machine
Robert
Nozick is famous for a thought experiment that can be used to test the
subjective exerience conception of well-being. Suppose you have a
choice between two lives. One is roughly equivalent to your current
life (or a typical human life). You experience pleasure and pain; some
of your preferences are satisfied and some aren't. The other life
involves your being attached to an experience machine that directly
feeds experiences into your brain. You will be given an amnesiac when
you are attached so that you will forget the fact that you are on the
experience machine: it will seems as if you current life is
continuing. But your life on the experience machine will be supremely
good from the subjective point of view. You will feel supremely
happy. You will be successful, adored by your friends and partners,
and everything that makes you feel good (whether it be career success
or Jimmy Choo shoes) will come your way. This life will involve very
little or no pain, frustration, or disappointment. Finally, the
experience machine is well tested, and you are truly convinced that it
will cause you no serious physical harm. Which life would you choose?
Many
people would choose a normal life with real experiences and would
believe that there life on the experience machine would go very
badly--although it would seem as if it were going well. If you have
this reaction to the thought experiments, then you have a reason to
believe that you have metaethical intuitions that are inconsistent with
a hedonistic-subjectivist conception of well-being.
Of course,
this thought experiment can be criticized in various ways. It might be
argued that you aversion to the experience machine is improperly
influence by a reaction that being on the machine would be
"yucky"--when (by hypothesis) it would not be. Or it might be the
cases that you distrust the long-range effectiveness of the machine.
These issues have to be considered carefully before we place too much
stock in the results of a thought experiment.
There is so much
more to be said about the inquiry into the nature of the human good,
and my discussion of methodology and one thought experiment does not
even begin to scratch the surface. Nonetheless, I hope I have given
you an idea of how you might begin to think and argue about this topic.
Why Does the Human Good Matter to Legal Theory?
I imagine that most readers of the Lexicon
can see that the nature of the human good has important implications
for legal policy. If the preference satisfaction view of welfare were
correct, then normative law and economics might provide the correct
methodology for normative legal theory. If the hedonistic approach
were correct, then we would want to pay close attention to empirical
research on subjective happiness. Normative evaluation of legal policy
is one of the central activities of legal scholars, and one's views
about the human good surely plays a big rule in such evaluations. Of
course, some normative theories (e.g., consequentialism) will given the
human good a decisive role in the evaluation of legal policy, whereas
others, e.g., deontological or rights based theories might give the
human good a less prominent role.
Can We Do Normative Legal Theory Without a Conception of the Human Good?
Given
the difficulty of arriving at confident conclusions about the nature of
the human good, you might ask, "Can we ever reach confident conclusions
in applied normative legal theory?" Or to put the question
differently, "If I can't make up my mind about the nature of the human
good, can I still reach confident conclusions about what legal rules
are better than others?" One answer to this question might invoke the
Rawlsian idea of an overlapping consensus. There may be a wide range
of cases where the most plausible theories of the human good converge,
and legal theorists might focus on those cases. A related strategy
might invoke the idea of "public reasons," and argue that controversial
conceptions of the human good are inappropriate as reasons for public
policy. Another strategy might involve a kind of what is called
"pragmatism." (I am using the scare quotes, because I have doubts
about the use of that term, but those doubts can be set aside for
now.) That is, we could invoke the theory of the human good that seems
most appropriate or salient for each context. When we do tax policy,
we might use the welfarist conception of the human good, but when we
are thinking about health policy, we might focus on objective health
outcomes. Of course, there is always the option of abandoning
normative theory altogether. You might come to the conclusion that
legal scholars can only describe existing doctrine and provide
information about the probably effects of changing that doctrine.
Conclusion
As usual, the Lexicon is
both too short and too long. Too short to even give you and elementary
introduction to the issues, but too long for a one minute read.
Nonetheless, I hope to have given you the tools that can help you to
identify questions about the human good and to read intelligently about
this topic.
Related Entries in the Lexicon
Other Resources on the Web
Bibliography
- Bentham, J., (1789), An Introduction to the Principles of
Morals and Legislation.
- Feldman, F. (2004) Pleasure and the Good Life (Oxford: Clarendon Press).
- Griffin, J. (1986) Well-being (Oxford: Clarendon Press).
- Mill, J.S., (1863), Utilitarianism.
- Nozick, R., (1974), Anarchy, State, and Utopia (Oxford:
Basil Blackwell).
- Nussbaum, M and A. Sen (ed.) (1993) The Quality of Life,
Oxford: Clarendon Press.
- Scanlon, T. (1998) What Do We Owe to Each Other?,
Harvard: Belknap Press.
- Sumner, W. (1996) Welfare, Happiness, and Ethics
(Oxford: Clarendon Press).
(This entry in the Legal Theory Lexicon was last revised on May 31, 2009.)
