Jan has just declared that he no longer agrees with utilitarianism, though “some misguided people still do.” I am one of those misguided souls, so I predict some intellectual clash. This is good. The last couple of times I’ve taught at an L&S event, the philosopher in the bunch (James Stacey Taylor) was a utilitarian, and there was altogether too little disagreement for my taste.
However, if I understand him correctly, Jan is advocating instead something like the Pareto criterion: for people to have a particular right, the protection of that right must make each person better off than he would be if society did not protect such a right. I think it’s but a step from here to a form of utilitarianism. Why? Because his analysis is already carried out at a hypothetical level – by people imagining different societies, from some initial position that is privileged (in the sense that any change from that position requires universal agreement). But if we’re already talking about hypothetical consent from a hypothetical initial position, then we could even imagine people accepting trade-offs of the following form: “I might turn out to be a person who loses from the protection of right X. But I will more likely turn out to be someone who benefits from protection of right X.” And this is tantamount to the utilitarian position, in which the losses to some are balanced by the greater gains to others.