Utilitarian Adjudication

In this paper I offer a defense of the view that judges should decide cases in accordance with act utilitarianism: i.e., in whatever way maximizes overall well-being. To advance this thesis, I first briefly give reasons for dissatisfaction with the commonsense thought that judges should just decide cases as the law requires. I then briefly argue for the claim that all moral agents, including judges, have a pro-tanto duty to maximize overall well-being. In the remainder of the paper, I consider objections to my account. I first consider several standard objections to act utilitarianism as a general moral theory— objections concerning demandingness, personal relationships, and backward-looking reasons such as promises—and I argue that these considerations’ force is blunted in the context of adjudication. Finally, I consider several objections to act utilitarianism specifically as a theory of adjudication—objections concerning cases in which act utilitarianism might appear to dictate obviously incorrect decisions, concerning “legislating from the bench,” and concerning a judge’s moral obligation to focus on the citizens of the nation of other political entity she serves. I conclude that the objections to utilitarian adjudication are less formidable than they might initially appear. NOTE TO COMMENTATOR: At the conference, rather than reading the following text, I plan to informally present the main ideas of this paper using a handout derived from this text.