Chapter 2, part 5, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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n his book Taking Rights Seriously, Ronald Dworkin has suggested that utilitarian theory can be reconstituted in such a way as to make Mill's liberal thesis a consequence of it [p. 236]. He distinguishes between personal and external preferences, and argues that all external preferences are not to be counted in the utilitarian justification for a political decision. A personal preference is a preference for a person's own enjoyment of some goods or opportunities, whereas an external preference is his preference for the assignment of goods or opportunities to others [Dworkin, pp. 234, 275. Brian Barry makes a similar distinction between privately-oriented and publicly-oriented judgements and wants: pp. 12-13, 62-6, 71-2, 142-3, 295-9]. In other words, my personal preferences are about what I myself shall do or have, and my external preferences are about what other people should do or have. Dworkin argues that although individuals may in their personal lives act upon at least some of their external preferences, governments and legislators must base their decisions entirely on personal preferences. For example, the fact that the majority of personal preferences favour a sports stadium rather than an opera house counts as an argument for the stadium. But, on the other hand, the fact that the majority regard homosexuality as immoral does not count as an argument for legislating against homosexuality because the preferences here are external ones [Dworkin, p. 358]. Similarly, although the fact that cruelty to children harms them is a relevant consideration, the different fact that the majority have an external preference which regards cruelty to children as wrong does not count. All external preferences, whether malevolent or altruistic, are to be excluded from the reconstituted utilitarian iustification for political decisions.
Dworkin's argument raises two issues. The first is whether the consistency and internal coherence of utilitarianism dictates the exclusion of all external preferences. The second issue is whether, independently of its connection with utilitarianism, the exclusion of external preferences underlies Mill's defence of liberty. Dworkin takes sides on both these issues when he claims that Mill's arguments "are not counter-utilitarian but, on the contrary, arguments in service of the only defensible form of utilitarianism" (p. 276).
But Dworkin does not succeed in showing that the exclusion of external preferences is demanded by a consistent [30/31] application of utilitarianism itself rather than by the recognition of values independent of it. He points out that counting external preferences leads to the "corruption" of utilitarianism [pp. 235, 275]. Suppose that some people hold racist political theories that are contrary to the utilitarian's belief that each person is to count for one and no one for more than one. They believe that scarce medicine should be given to a white patient rather than to a black patient who needs it more. So the black man suffers because his assignment of goods and opportunities does not depend solely on the competition between the personal preferences of different people, but also on the fact that some whites think that he counts for less than a white man. Dworkin is certainly right that including external preferences will sometimes be self-defeating from the standpoint of personal preferences. But this does not show that utilitarianism is "corrupted" unless it is already assumed that utilitarianism only counts personal preferences.
Dworkin also claims that counting external preferences is a form of double counting (p.235). Suppose that many non-swimmers have external preferences for the pool rather than for the theatre because they approve of swimming and regard the theatre as immoral. If the non-swimmers' external preferences are counted, this will reinforce the personal preferences of swimmers, and the result is a form of double counting: "each swimmer will have the benefit not only of his own preference, but also the preference of someone else who takes pleasure in his success." (p. 235) But there are two preferences here, and no single preference is counted twice [Raz, p.131; Hart, pp. 91-3; both papers make many other acute criticisms of Dworkin's arguments].
Dworkin argues that it is unfair to count external preferences because this will make the success of a person's personal preferences depend on the esteem and approval of others. Political decisions based on external preferences violate the fundamental right that people have to equal concern and respect. People should not suffer or be deprived of their liberty just because others think them less worthy of respect and concern [see Hart's comment on this, pp. 93-7]. But suppose that Dworkin is right here. This shows that discounting external preferences is demanded not by the internal requirements of utilitarianism as such, but rather by the requirement of fairness and the recognition of the fundamental right to equality of concern and respect. It [31/32] has not been shown that utilitarianism is based on equality of concern and respect.9
But Dworkin claims that utilitarianism owes its popularity to the assumption that it embodies this right to equal concern and respect. This is a different point which may or may not be true. If it is true, then the success of Dworkin's arguments will prove fatal to what he calls "unrestricted utilitarianism" which counts external preferences. However it is at least arguable that one source of the popularity of utilitarianism lies in its neutrality between the different sources of people's happiness. Some people may find deeper and more abiding sources of happiness through their involvement with other people and through the promotion of various causes [cf. Williams, p. 112]. To exclude all external preferences in the utilitarian calculation is to cut off too much of what contributes to human happiness. In any case, is it always fair to exclude external preferences? Consider two variations on one of Dworkin's examples. First, suppose that many non-swimmers enjoy sitting around a swimming pool rather than being at the theatre. They are still expressing their personal preferences: they do not have to prefer a swimming pool to the theatre because they wish to swim. They enjoy the pool just as others enjoy the theatre even though they are not actors. But suppose now that many non-swimmers have personal preferences for the theatre, but they also have altruistic external preferences towards their children's enjoyment of swimming, and their external preferences for the pool is very much stronger than their personal preferences for the theatre. Dworkin would allow the swimming pool to be built on the basis of the personal preferences in the first example, but not on the basis of the external preferences in the second example. This seems unfair to the altruistic parents. They might be unable or unwilling to develop the personal preferences that would tip Dworkin's calculation in their favour (p. 236). They do not enjoy swimming, nor do they enjoy just sitting around a pool.
So in this case the exclusion of external preferences may be just as unfair as its inclusion in other contexts. This suggests that it is not the inclusion of external preferences as such that is unfair, but rather the content of the external preferences included. There is no reason why Mill's defence [32/33] of liberty should commit him to the exclusion of all external preferences, nor is there any evidence to suggest that he would accept Dworkin's position.
Barry, Brian. Political Argument. London, 1965.
Dworkin, Ronald. Taking Rights Seriously. London, 1978.
Hart, H. L. A. "Between Utility and Rights" The Idea of Freedom: Essays in Honour of Isaiah Berlin, ed. Alan Ryan. Oxford, 1979.
Raz, Joseph. "Professor Dworkin's Theory of Rights" Political Studies, 26 (1978).
Last modified 18 April 2001