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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.


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