Suppose that an innocent man is sentenced to imprisonment or a stupid student is given a prize for outstanding excellence. In such cases it can be held that an injustice has been done and that this injustice is of a non-comparative kind. If all innocent men were to be punished or all stupid students given a prize this would only compound the injustice. The most poignant sort of case, of course, is that of the punishment of an innocent man. Suppose that in order to prevent a riot in which thousands would certainly be killed a sheriff were to frame and execute an innocent man. On utilitarian principles would not the sacrifice of one life in order to save thousands be justified? The usual utilitarian reply is that if such a thing were to be done it would probably be detected, or would leak out, that an innocent man had been punished, and the resulting destruction of faith in the law would lead to more harm than would result even from thousands of people being killed in the riot. If faith in the due processes of the law is destroyed the very foundations of society are shaken. If a potential criminal thinks that innocent people may be punished, he will be less likely to be deterred by the threat of punishment, since he may reasonably enough think that he might as well be hanged for a sheep as for a goat. Nevertheless, this sort of reply will not do, because the case can be made a very strong one: we may assume that detection of the sheriff's deceit is almost impossible. If need be the story can also be altered so as to make the likely harm done in the riot even greater than it was in the original story. There must come a time at which it will be agreed on all sides that the harm done by punishing the innocent man would be less (even much less) than that which would be done by the riot. Moreover, it is not relevant to object that it is merely probable that there would be a riot if the innocent man were not punished, whereas the harm done by executing the innocent man would be quite certain to occur. We must in a utilitarian calculation (in which probabilities are relevant) take the harm done to be the total probable harm, and the objector to utilitarianism can always state the case so that the harm caused by doing the injustice to the innocent man is much less than the total probable harm which is prevented.
Certainly it is cases such as this one which make me wonder whether after all I really am a utilitarian. To do a serious injustice to someone is a terrible thing. How terrible it must be for a man to know that he is about to be executed, or that he must stay in prison for many years. How much worse it must be for the man if he knows that he is innocent: to all the usual pains and penalties is added the anguish of his believing himself to be disgraced and held in contempt because people had false beliefs about him. It really is distressing even to think about such a case, let alone to be the victim oneself. And yet one can argue that our feelings of distress are (at least partly) due to looking at only one aspect of the situation. If the harm done to the victim really is (as on the hypothesis) much less than the harm that would have been caused by the riot, with the thousands of deaths, the fatherless and motherless children, and so on, then it ought to give us even more anguish if we contemplate this side of the story.
(J. J. C. Smart, "Utilitarianism and Justice," Journal of Chinese Philosophy 5 [September 1978]: 287-99, at 294-5 [endnote omitted])
Note from KBJ: The case Smart describes is meant to refute, or at least to count against, utilitarianism. The critic's argument goes as follows:
1. Utilitarianism implies that it is right (in the case described) to kill the innocent man.
2. It is not right (in the case described) to kill the innocent man.
Therefore,
3. Utilitarianism is false (or to be rejected).
As always, there are two ways to reply to this valid argument (other than accepting its conclusion). The first (known as grasping the bull by the horn) is to deny the first (conditional) premise. This is to say, in effect, that utilitarianism does not have the stated implication; the critic either misunderstands or misapplies the theory. The second (known as biting the bullet) is to deny the second premise. In the first quoted paragraph, Smart is saying that the first reply (grasping the bull by the horn) is ineffective, for utilitarianism clearly does have unsavory or repugnant implications, if only in rare cases. In the second quoted paragraph, Smart is saying that the utilitarian should bite the bullet and deny the second premise. As painful as it may be to say it (and Smart, to his credit, appears to be pained), it is right (in the case described) to kill the innocent man. Note the two-part utilitarian strategy. First, the utilitarian tries to show that the theory, pace the critic, does not have the stated implication. If this strategy fails, because the theory clearly does have the stated implication, the utilitarian falls back on bullet biting. In no case will the utilitarian abandon the theory. Utilitarians have been very resourceful (some would say stubborn and duplicitous) in defending their theory from criticism. Smart is more willing than many utilitarians to bite the bullet. I admire him for that.
Note 2 from KBJ: Smart's case can be adapted to torture. Suppose the only way to save 10,000 innocent lives is to torture (but not kill) someone. Torture, like killing the innocent, is painful for a utilitarian to contemplate, but the utilitarian must attend not only to the torture victim's pain, but to the pain, suffering, and lost lives of all those who will die if the authorities do not torture. To a utilitarian, we are as responsible for the bads we allow as for those we commit. If we choose not to torture, we are responsible for the pain, suffering, and lost lives of those who will die as a consequence.
Note 3 from KBJ: I'm writing the entry on Smart (as well as the entry on ethical egoism) for the forthcoming Encyclopedia of Utilitarianism.
Keith Burgess-Jackson, J.D., Ph.D. 