University of Chicago Law School
The notion that utilitarianism cannot support a theory of fundamental rights is a recurring source of conflict in law and philosophy.' Those who adhere to this view argue that a utilitarian or consequentialist approach cannot provide a stable, permanent justification for rights: at any moment, the utilitarian calculus might conclude that what it considered a right yesterday, actually reduces total welfare, and therefore is not a right today. Perhaps no one has gone further in attempting to refute this claim than John Stuart Mill.' As a result, any effort to construct a consequentialist theory of fundamental rights must draw at least partially on Mill's work.
Keith N. Hylton,
Implications of Mill's Theory of Liberty for the Regulation of Hate Speech and Hate Crimes
University of Chicago Law School Roundtable
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1040