As Rosen has pointed out, claiming that act utilitarians are not concerned about having rules is to set up a 'straw man'. Similarly, Hare refers to “the crude caricature of act utilitarianism which is the only version of it that many philosophers seem to be acquainted with.” Given what Bentham says about second order evils it would be a serious misrepresentation to say that he and similar act utilitarians would be prepared to punish an innocent person for the greater good. Nevertheless, whether they would agree or not, this is what critics of utilitarianism claim is entailed by the theory. A classic version of this criticism was given by H. J. McCloskey:
“Suppose that a sheriff were faced with the choice either of framing a Negro for a rape that had aroused hostility to the Negroes (a particular Negro generally being believed to be guilty but whom the sheriff knows not to be guilty)-and thus preventing serious anti-Negro riots which would probably lead to some loss of life and increased hatred of each other by whites and Negroes- or of hunting for the guilty person and thereby allowing the anti-Negro riots to occur, while doing the best he can to combat them. In such a case the sheriff, if he were an extreme utilitarian, would appear to be committed to framing the Negro.”
By ‘extreme’ utilitarian McCloskey is referring to what later came to be called ‘act’ utilitarianism. Whilst this story might be quoted as part of a justification for moving from act to rule utilitarianism McCloskey anticipates this and points out that each rule has to be judged on its utility and it is not at all obvious that a rule with exceptions has less utility. The above story invites the reply that the sheriff would not frame the innocent because of the rule ‘do not punish an innocent person’. However, McCloskey asks, what about the rule “punish an innocent person when and only when to do so is not to weaken the existing institution of punishment and when the consequences of doing so are valuable”?
In a later article McCloskey says:
“Surely the utilitarian must admit that whatever the facts of the matter may be, it is logically possible that an ‘unjust’ system of punishment—e.g. a system involving collective punishments, retroactive laws and punishments, or punishments of parents and relations of the offender—may be more useful than a ‘just’ system of punishment?”
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