Coman Cassidy

ABSTRACT

This paper raises a key question in moral philosophy, namely, the ethical dimensions of utilitarianism in action – as demonstrated by Irish government policy on a pivotally important aspect of public health, the eradication of pertussis (whooping cough), a killer disease in infants.   The paper is in two parts.
The first is an exploratory review of the utilitarian Weltanschauung – from the work of the classical theorists, Bentham and Mill to the latter-day utilitarian theories put forward by scholars such as Hare, Harsanyi and Mirrlees.
The second and more substantive part of the paper focuses on the seminal case of a young Irishman who was judged by the Supreme Court in 1992 to have been brain damaged by the pertussis vaccine – after a litigation process that lasted more than two decades.   This case study is examined in the light of the aggregative utilitarian policy adhered to by successive Irish governments – a policy unconstrained by any deontological acceptance of the rights of the individuals concerned.

Introduction

Moral judgment and moral theory certainly apply to public questions, but they are notably ineffective.  When powerful interests are involved it is very difficult to change anything by arguments, however cogent, which appeal to decency, humanity, compassion or fairness…It certainly is not enough that the injustice of a practice or the wrongness of a policy should be made glaringly evident.  People have to be ready to listen and that is not determined by argument…philosophical writing on even the most current public issues remains theoretical, and cannot be measured by its practical effects. ¹⁾Nagel, T.,

Mortal Questions

, Cambridge University Press, 1979, pp.xii-xiii

Ethical theory is a theoretical account of what is meant by ethical thought and practice.   Williams,²⁾Williams, B., Ethics and the Limits of Philosophy. London: Fontana Press, 1985, pp.74-75. while conceding that no classification of ethical theory is particularly illuminating, nonetheless identifies utilitarian theory – the immediate concern of this paper – as one of the two basic ethical ‘styles’.   The other one is contractual.³⁾The central idea of contractualism in relation to its account of moral wrongness, has been defined by Scanlon as follows: “An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of behaviour which no-one could reasonably reject as a basis for informed, unforced, general agreement.”  c.f. Scanlon, T.M., ‘Contractualism and utilitarianism’ in Sen, A. and Williams, B. (eds.), Utilitarianism and Beyond, Cambridge University Press, 1982, p.110.

Theoretical components of classical and modern-day utilitarianism are examined below in Part 1 of the essay as a backdrop to a more substantive analysis.  This analysis, in Part 2, focuses in a general way on the chronic plight of victims of a specific state interventionist policy in Ireland and in particular on the case of a young Corkman who was permanently brain-damaged, as an infant – as a direct result of the state’s whooping cough immunisation programme.   The objective is to demonstrate on the basis of this seminal case study that Irish public health policy on the elimination of whooping cough is a classical example of aggregative utilitarianism unconstrained by any deontological acceptance of human rights.

Let us begin by examining the theoretical background to classical utilitarianism: John Stuart Mill, an ‘eclecticist’, drew heavily on Kantian tradition to fine-tune the formative influence of his life, the utilitarian philosophy of Jeremy Bentham.     Bentham’s ethics were analogous to the position represented by Glaucon in the Republic. ⁴⁾Norman, R., The Moral Philosophers, Oxford: Clarendon Press, 1983, pp.124-125.  All human action, he claimed, was motivated by the desire for pleasure and the avoidance of pain.  This is also a view reflected strongly in Hobbes who argued that the good for each individual was determined by what he desired. ⁵⁾“Whatsoever is the object of a man’s appetite or desire, that is it which he for his part calleth good”, quoted in the Oakeshott, M. edited edition of Thos. Hobbes’s Leviathan.  Oxford: Blackwell (n.d.), p.32.   According to Bentham, the only rational moral theory was one that made all such action as consistent and effective as possible: “The end I mean is Happiness; and this tendency in any act is what we style its utility.” ⁶⁾The first statement of Bentham’s statement of utility to be found in paragraph 54 of the preface to the Fragment, quoted in the Warnock, M. edited edition of J.S. Mill’s Utilitarianism, Fontana Press, 1985, p.13.

At the start of Utilitarianism (par. 4), Mill appears to distance himself from Kantian ethics and in developing his own moral theory, specifically advocates the assessment of actions in terms of their ends and consequences, their contribution to human happiness and the prevention of human suffering – which are precisely what Kant seeks to exclude.⁷⁾Warnock, p.254.  He nonetheless makes a clear concession to Kantian ethics in identifying what he sees as the main flaw in Bentham’s conception of moral influences:

Man is never recognised by him as being capable of pursuing spiritual perfection as an end; of desiring for its own sake, the conformity of his own character to his standard of excellence, without hope of good or fear of evil from, other sources than his own inward consciousness. ⁸⁾Ibid. p.100.  Also c.f. the Coss, J.J. edited edition of J.S. Mill’s Autobiography. Columbia University ed., NY, 1924, pp.100-101.

Far from eschewing utilitarianism, however, Mill firmly believed in the “Greatest Happiness Principle” and held that actions were right “in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness…pleasure and the absence of pain”. ⁹⁾Ibid. p.257.  Although a non-Christian, he made the pragmatic assertion that utilitarianism was essentially in line with Christian ethics:

In the golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility.  To do as you would be done by and to love your neighbour as yourself, constitute the ideal perfection of utilitarian morality.¹⁰⁾Ibid. p.268. c.f. also pp.257-258: “To suppose that life has (as they express it) has no higher end than pleasure – no better and nobler object of desire and pursuit – they designate as utterly mean and grovelling.”

The original classical theory propounded by Bentham argued that the individual good consisted in pleasure – essentially hedonism, with the crucial background assumption that pleasures do not differ in any evaluative sense, only in terms of their length and intensity.  The quantity of pleasure being equal, he asserted, “pushpin is as good as poetry”. ¹¹⁾c.f. Warnock, p.123.  It was possible to homogenise units of pleasure and pain and even to add them together to measure aggregate well-being in society. Mill, on the other hand, differentiated between the higher and lower pleasures and argued that they differed from one another in terms of quality as well as quantity.  Says Norman: “Mill…is not necessarily inconsistent in using both quantitative and qualitative terminology.  The real trouble is that he still, to some extent, wants to combine the qualitative conception with Bentham’s arithmetical, additive conception of quantitative differences..”¹²⁾c.f. Norman, p.131.

Part 1: Aggregate welfare

Once the notion of qualitatively ranking desires was introduced into the utilitarian tradition, a series of arguments broke out that led most utilitarians to qualify the type of desires that had to be counted.
In utilitarianism, the basic concern of ethical thought is individual welfare. ¹³⁾Williams, p.75: “There are many species of utilitarianism.  They disagree about how welfare is to be assessed and about other questions – whether, for instance, it is the individual act that should be justified in terms of maximising welfare, or instead some rule, practice or institution.”  In the history of utilitarianism, there are several major interpretations of what the state of welfare is.  First, there is the classical Benthamite theory which said that the individual good consisted in pleasure, with the crucial background assumption that pleasures did not differ in any evaluative sense – only in terms of their length and intensity.  A second interpretation focused on the broadening of pleasure into happiness.  The central element in this tradition was not that happiness was a monolithic state; it consisted of ‘desire satisfaction’, but significantly, it was accepted that desires could be ranked.  Examples are to be found in the works of modern utilitarians such as Hare, Harsanyi and Mirrlees. ¹⁴⁾Sen and Williams, pp.23-84.
It is useful to contrast the different views of utility adopted in the alternative defences of utilitarianism put forward. Hare’s view is entirely in line with the utilitarian tradition of viewing utility in terms of desires and fulfilment: we recall that utilitarianism in its classical (Benthamite) form, may be seen as a suggestion for the evaluation of actions for a particular individual – individual morality.  Moral principles are of a quite distinctive nature.  Because they are supposed to generate categorical imperatives, they are assumed to have overriding imperative status.  In other words, if from a moral rules standpoint a certain course of action is bad, the ‘negative’ imperative will override it.  Utilitarianism has both moralistic and non-moralistic implications; and indeed, it is relatively easy to identify these dimensions.  Modern utilitarians such as Hare theorise an alternative morality that generates obligation – arguably ‘moralism’ by another name: “In calling my own normative theory utilitarian…look at the theory itself and ask whether it cannot avoid the objections that have been made against other kinds of utilitarianism.” ¹⁵⁾Hare, R.M, ‘Ethical theory and utilitarianism’ in Williams and Sen (eds), Utilitiarianism and Beyond, p.24.  Perhaps he protests too much; in reality, Hare’s view of utility is entirely faithful to the utilitarian tradition – that is to say, he views utility in terms of desires and their fulfilment. ¹⁶⁾While this differs from the Benthamite description of utility in terms of pleasure and pain, the ‘desire-based’ approach represents a long-standing tradition. Just such a reference to desires – particularly when they are assimilated to interests – underlies the intuitive justification of utilitarianism. ¹⁷⁾There is nothing unique in Hare’s characterisation of utility as such – and in this respect he may be said to have provided new arguments for defending an old tradition, rather than reformulating the content of utilitarianism.
But what exactly is meant by utilitarianism – in the latter-day world?  In the introduction to the Sen and Williams-editedd,Utilitarianism and Beyond, it is claimed that welfare is just one of its two components; the other is consequentialism. ¹⁸⁾cf. Sen and Williams, pp.3-4: “Utilitarianism, in its central forms, recommends a choice of actions on the basis of consequences, and an assessment of consequences in terms of welfare.  Utilitarianism is thus a species of welfarist consequentialism – that particular form of which requires simply adding up individual welfares or utilities to assess the consequences, a property that is sometimes called sum-ranking.”   Frankena defines utilitarianism as “a consequentialist theory that specifies pleasure, happiness, or the preferences people have as the nonmoral good to be maximised…the view that the right act is the act which will actually or probably produce at least as much intrinsic good, directly or indirectly, as any other action open to the agent in question”. ¹⁹⁾Frankena, W.K., in Runes, D.D. (ed.),Dictionary of Philosophy. Littlefield: Adams & Co., 1958, p.327 and quoted in Peffer, R.G., Marxism, Morality and Social Justice, Princeton University Press, 1990, p.82.
Both Harsanyi and Mirrlees depart from the older utilitarian traditions and define utility in terms of choice.  This departure is tempered, however, by certain empirical assumptions concerning how people do, in fact, choose between alternatives.²⁰⁾Despite defining utility entirely in terms of choice, both Harsanyi and Mirrlees tend to adopt a dual characterisation of utility that reflects ‘choice characteristics’ on the one hand and ‘content characteristics’ on the other.
In Harsanyi’s case, the subtraction of anti-social preferences appears to reveal considerable scepticism about the force of simple choice-based utility, as opposed to the desirable content per se of choices – even though the framework that he offers is based on choice.  For Mirrlees, on the other hand, the force of choice is strong and even permitted idealisations are justified through an hypothesis of what might or might not be chosen “with full understanding”.  It is difficult, nonetheless, to establish whether one is being advised to choose what is valued or whether choice per se is being advocated as the basis of evaluation.  While the latter two theorists, in their respective views of both ‘choice’ and ‘content’ characteristics may differ, they both use a dual characterisation of utility, which is important for their respective analyses of the moral force of utilitarianism.  This moral force rests partly on their respective readings of the world.
Mirrlees invokes a behaviourist methodology in his explanation of choice.   He is saying, in effect, it cannot be significantly established that an individual prefers A to B.  All that may be said is that an individual would choose one in preference to the other.  It follows that preference ranking is interpreted not as a psychological state but rather on a prediction that focuses on how someone might actually choose.  For Mirrlees, utility reflects choice – with the cardinalisation derived from the ‘separability’ of choice; at the same time, utility also reflects the well-being of each individual.  Since he also insists that it is convenient to let the term ‘utility’ describe the well-being rather than the conception of it, he is led to the position that it is not right to let utility rest entirely on individual tastes: “Though the meaning of utility, and the calibration of the utility function, is, in principle, derived from individual preferences, it must be possible to allow for convictions about what is good for one that, though unshakeable, are nevertheless mistaken.” ²¹⁾c.f. Sen and Williams, p.69.   The problem with Mirlees’s interpretation is that it reduces utilitarianism as a moral theory to a tautology: in effect, Mirrlees is taking the net aggregate good for an individual and on the basis of that concluding that life (for that person) should be ordered in such a way as to extract the net aggregate utility.  In other words, the utility is the satisfaction that should be decided on. ²²⁾It’s a position strongly reminiscent of that depicted by Hobbes in Leviathan – the spectre of human beings always acting to satisfy their own desires. cf. Note 5.
For Harsanyi, utility reflects choice with the cardinalisation derived from choosing in situations of uncertainty.  For him it is obvious that the overall good is equivalent to the ‘net aggregate’, that is the highest average utility – and this is measured in terms of individual satisfaction.  Not all desires are included however – he specifically excludes anti-social, malevolent and cruel behaviour. ²³⁾Other theorists, notably Williams, in addressing this aspect of utilitarianism, suggest that while it may reflect well on the ‘humanity’ of the utilitarians, it does little credit to their logic to suggest that stochastic desires don’t count.
While he acknowledges the contributions made by such utilitarian theorists as Bentham, Mill, Sidgwick ²⁴⁾Henry Sidgwick (1838-1900), Cambridge professor of moral philosophy and classical utilitarian who postulated that what was thought to be ‘good’ is the achievement of the net aggregate good (highest average utility) in the world. c.f. Sidgwick, H., Methods of Ethics. London: Macmillan (7th edition; reissue), 1962. and Edgeworth ²⁵⁾Another key 19th century figure who is remembered for his seminal microeconomic theory on ‘indifference curves’ and work on psychological discrimination levels as applied to the moral sciences. cf. Edgeworth, F..Y., Mathematical Psychics – An Essay on the Application of Mathematics to the Moral Sciences,, London: Kegan Paul, 1881. which made maximisation of social utility the basic criterion of morality, Harsanyi’s own work in this area is based fundamentally on game theory developed by Von Neumann – the so-called ‘vNM’ utility functions. ²⁶⁾c.f. Sen and Williams, p.52. Also c.f. Von Neumann, J. and Morgenstern, O., Theory of Games and Economic Behaviour, Princeton: Princeton University Press (3rd ed.), 1953.  It is noteworthy that these methods of measuring utility have been strongly criticised, however, by Rawls inter alia, as being entirely inappropriate on the grounds that they “merely express people’s attitude towards gambling, and these attitudes have no moral significance”. ²⁷⁾Ibid. Also c.f. Rawls, J., A Theory of Justice, Cambridge, Mass.: Harvard University Press, 1972, pp.172; 323.
Harsanyi’s response is that “even though a person’s vNM utility function is always estimated in terms of his behaviour under risk and uncertainty, the real purpose of this estimation procedure is to obtain cardinal-utility measures for the relative personal importance he assigns to various economic (and noneconomic) alternatives”.  He also asserts, stoutly, that all nonutilitarian theories such as Rawls’s “very influential theory…involve some highly irrational moral choices, representing major departures from a rational pursuit of common human and humane interests, which in my view is the very essence of morality”. ²⁸⁾Sen and Williams, pp.40-41; 53. Harsanyi further argues that there is a strong case to be made for giving higher social priorities to desires for which individuals are prepared tio undergo considerable risk: “..one indication that somebody feels strongly about a particular desired objective is his willingness to take sizeable risks to attain it.  For example, if a person is known to have risked his life in order to obtain a university education (e.g. by escaping from a despotic government which had tried to exclude him from all higher education), then we can take this as a reasonably sure sign of his attaching very high personal importance (very high utility) to such an education.”
Let us now turn to the substantive part of the paper to determine how some of these ethical choices are dealt with in Ireland, in matters of public policy.

Part 2: The health of nations

Utilitarian arguments, Dworkin postulates, encounter a special difficulty that ‘ideal’ arguments do not: what is meant by average or aggregate welfare?  How can the welfare of an individual be measured, even in principle and how can gains in the welfare of different individuals be added and then compared with losses, so as to justify the claim that gains outweigh losses overall?  “If it can be discovered what each individual prefers, and how intensely, then it might be shown that a particular policy would satisfy, on balance, more preferences, taking into account their intensity, than alternative policies.  On the concept of welfare, a policy makes the community better off in a utilitarian sense if it satisfies the collection of preferences better than alternative policies would, even though it dissatisfies the preferences of some.”²⁹⁾Dworkin, R., Taking Rights Seriously, London: Duckworth, 1994, p.233.
Ordinal, quasi-cardinal and cardinal measures of utility are not the immediate concern of this paper and will be touched on here only in a general sense – in reference to two widely differing strands within utilitarianism. ³⁰⁾One significant feature of utility measurement is the social choice theorem devised by Arrow, which interprets the function of social welfare as a set of rules for transforming the desires of individuals into concrete social choices.  In policy evaluation, however, it is unable to predict cardinal measures and works with ordinals, simply.  cf. Arrow, K.J. and Raynaud, H., Social Choice and New Criteria Decision Making, Cambridge: MIT Press, 1986, pp.33-43.
Another example worth looking at is the so-called ‘Cyclical Majority’ paradox (attributable to Condorcet), which asserts, in effect, that no social welfare function will deliver a consistent social preference ordering from individual preference orderings.  ³¹⁾cf. the Scruton, R. Edited A Dictionary of Political Thought, London: Pan, 1983, p.488.  A good illustration of this, I suggest, may be found in the ‘three referendums’ on abortion held in Ireland on the same day in 1992, following the ‘X’ case, which concerned a 14-year old girl who had become pregnant by an older man: one was the ‘right to life’ amendment; the second was the ‘right to travel’; the third related to the right of Irish citizens to ‘freedom of information’ on abortion.   The cyclical majority paradox ensures there is not even a judgment to the effect that there is something better for society – in that more people prefer it.  That there are more people that prefer it is the only certainty one may elicit from ordinal ranking. This, in effect, tells one nothing.
Yet another interesting theorem is McKelvey’s general theory relating to ‘Majoritarian Cycling’.  This says, in effect, that for every point within a policy space for which there is a majority, there is another point for which there will also be a majority, ad infinitum. ³²⁾cf.. McKelvey, R.D. and Zavoina, W., ‘A statistical model for the analysis of ordinal level dependent variables’, in Journal of Mathematical Sociology, Vol. 4, pp.103-120, 1976. The first, best represented by Harsanyi, argues that the criterion of what is good in human life is what is impartial.
For example, from the perspective of society, it may be said that this person’s good counts more than that person’s good.  To determine whether or not a policy is good, one looks at its impact on everyone, equally (impartiality). In this manner the highest average utility – otherwise known as the highest aggregate utility – is achieved.
The second strand is in the Sidgwick tradition and posits that what is thought to be good is the achievement of net aggregate good – the level of happiness of sentient creatures.  If, for example, it is my ethical imperative to achieve as much good as possible, it follows that I will not be inclined to give particular weight to my neighbour’s good.  The crucial distinction is that if well-being is aggregated from the second perspective, a much greater ‘net aggregate’ is preferable – even if there is lower average well-being. Sidgwick stipulated that the ‘highest aggregate’ should be the policy target, to achieve the highest level of happiness.  With fixed happiness, the net aggregate is the same as the average; with increased happiness, they are different.  It is this differentiation in accounting that distinguishes between utilitarianism as an impartial agent or as an ethical imperative.

A key objection to utilitarianism as a consequentialist view of right and wrong charges it with unjustifiably making questions about ‘what to do’ subordinate to questions about what would be best, overall.  As Nagel says: “Utilitarianism…is very demanding.  It requires you to justify the pursuit of your own personal life and interests only as components of the general good, and does not permit reasons for action to end with a reference of what you want or are devoted to.”³³⁾Nagel, pp.202-203.

Case Study

It is in this context that we come to examine in our case study, the plight of Kenneth Best, who the Supreme Court in Dublin in 1992 ruled was brain-damaged as an infant as a result of being vaccinated against pertussis (whooping cough).  The litigation process took more than 20 years and the precedent established by the Irish Supreme Court judgment has international repercussions because of the important precedent it has set for the victims of faulty ‘pertussis’ vaccines, worldwide.
Here deontological considerations are relevant.  These are in direct opposition to consequentialism and are subjective, as Nagel posits.  He asserts that deontological requirements are “agent-centred”, because they prompt each individual to determine the rightness or wrongness of his acts solely from the viewpoint of his own position and his direct relation to others. ³⁴⁾Ibid. p.204.  That, in a nutshell, was the position taken by Margaret Best, mother of the brain-damaged Kenneth, on behalf of her son, when it was connfirmed, on 30 April 1970 – his first birthday – that he was mentally retarded. ³⁵⁾cf. Cassidy, Colman, ‘Brain damaged Corkman to appeal whooping cough vaccine court decision’ in Sunday Press, Dublin, 28 July 1991. From a utilitarian perspective, the case is a classic, it may be argued, since it raises many ethical questions that are germane to public health policy (aggregate welfare) in a modern liberal democracy.  A few short details will suffice for our purposes here.  First, the position of the Irish health authorities was unequivocal in its assertion of an aggregative utilitarianism unconstrained by any deontological acceptance of the human rights of the individual: whooping cough was a killer disease for infants and the way to prevent it was through a well-established immunisation programme – using the so-called triple antigen vaccine, (the ‘three-in-one’) to vaccinate children against diphtheria, pertussis and tetanus, DPT.  Secondly, the Department of Health judged, on aggregate welfare grounds, that any threat to the welfare of the individual infant was negligible (and by inference, well worth the risk), despite contra-indications concerning the pertussis vaccine over many years reported from reputable international sources – quite apart from the existence in Ireland of 54 cases of putative brain damage that were the subject of a special medical investigation. ³⁶⁾cf. Cassidy, Colman, ‘Brain damage and the health of nations’ in Sunday Tribune, Dublin, 15 August 1982 – the first mention of the Best case in the public domain: the Department of Health justified the pertussis immunisation programme by quoting statistics that put the risk of “serious neurological damage” at one in 310,000 cases.

Given the ‘Benthamite’ stance of the government in relation to this particular health programme, it is noteworthy that the president of the High Court, Judge Liam Hamilton, opted for what appears to be a ‘class-based’ utilitarian verdict of his own in ruling against the Bests – based on the balance of probability arising from some rather tenuous ‘diary’ testimony from the general practitioner involved. ³⁷⁾cf. Sunday Press article cited in Note 33  It is equally interesting that the Supreme Court in considering the Bests’ appeal chose to overturn the Hamilton verdict in the following manner:

The rejection of either of these two conflicting bodies of evidence is not easy, but I am driven to the conclusion that, having regard to the terms of the evidence given by Mrs Best, the manner in which she dealt with cross-examination concerning that evidence, the absence of a suggestion that she was attempting to mislead the court, and what are in my view the incorrect inferences which were drawn by the learned trial judge concerning the extent and nature of the diary entries of Dr. O’Keeffe, that the proper inference which should have been drawn was that his diaries, neither the entries in them nor the absence of entry from them, was a sufficiently strong proof of the date of the first convulsion suffered by the infant plaintiff to displace the clearcut evidence of Mr. and Mrs Best.  In those circumstances, and having regard to my finding that the evidence of Dr. O’Keeffe essentially consisted of inferences drawn by him and accepted by the judge from the entries contained in his diary and the letters written by him, I am satisfied that I must, on appeal, reverse the decision of the learned trial judge concerning the time of the happening of the first convulsion to the Plaintiff, and must conclude that it did, in fact, occur on the evening of the first injection, that is to say, the 17th September 1969.³⁸⁾Written judgement (not in the public domain) delivered by Chief Justice Finlay in the Supreme Court on 3 June 1992, pp.78-79

The decision of the Supreme Court in the Best case, as the court of ultimate appeal could conceivably have contractual implications, it could be argued, for government policy in relation, not only to the DPT immunisation programme, but to health policy in general.  At a stroke, it has extended to the vaccination of human beings the implicational guidelines highlighted by Scanlon ³⁹⁾ cf. Note 3: this particular account of ‘wrongness’ Williams notes, (p.75) may be seen in tandem with a particular theory of what moral thought is all about, namely, “what agreements people could make in these favoured circumstances in which no one was ignorant or coerced”. – and as such, it may be argued, justifies research into how precisely, if at all, Irish health policy in this general area might be affected, as a result.  It would be particularly interesting to know what views the senior health officials – including the state-contracted consultants, for example, who gave evidence on behalf of the defendant pharmaceutical company, Wellcome – now hold on ‘aggregate welfare’ in relation to immunisation.

To sum up, as Nagel says, the defender of rights “locates them in the freedom to do certain things without direct interference by others”.  The utilitarian, on the other hand, as in this Irish case ⁴⁰⁾c.f. Note 3: This particular account of ‘wrongness’ Williams notes, (p.75) may be seen in tandem with a particular theory of what moral thought is all about, viz., “what agreements people could make in these favoured circumstances in which no one was ignorant or coerced”. study involving the administration of public health policy, “locates them in the requirement that each person’s interests be fully counted as a component in the calculation of utility used to decide which states of affairs are best and which acts or policies are right”.⁴¹⁾Nagel, pp.111-112. That juxtaposition effectively sums up the situation in relation to the Best case.

Conclusion

There were originally three defendants in the Best case: the state (through the Southern Health Board), the general practitioner who administered the vaccine and Wellcome, the pharmaceutal company that manufactured it.  The first two were exonerated by the court and the third was found to be culpably negligent.  In the event, Kenneth Best was awarded damages amounting to £2.75 million – against Wellcome.  Neither the health authority nor the doctor concerned was asked to make any recompense for the life-sentence of trauma that they, as the agents of state policy, had thrust upon the Best family – once the Supreme Court had definitively established that Kenneth had been irretrievably brain damaged by the pertussis vaccine.
This seminal decision of the Supreme Court, it is clear, raises a panoply of questions as regards public health policy in Ireland that may be summarised thus: why should the government’s policy of aggregative utilitarianism on the issue of pertussis eradication (or whatever) be set in stone?  Utilitarianism, after all, has had its share of critics from the time of Bentham – stretching from his disciple, John Stuart Mill to John Rawls in our own time. ⁴²⁾c.f. Rawls, J., Theory of Justice, Cambridge, Mass.: The Belknap Press of Harvard University Press, 1971.  On a theoretical level, Rawls’s classic analysis may be seen as the mid-point between the evaluative nihilism arising from the ‘death’ of moral and political philosophy as a substantive enterprise and de facto utilitarianism.  Rawls points the way out of evaluative nihilism and offers, instead, a basis for social evaluation which is radically different from – and rejects – utilitarianism.
When it comes to individual rights, however, few protagonists are as virulent as Nozick, who in a manner reminiscent of Kant, appeals to a principle of ‘self-ownership’ which demands that people be treated as ‘ends in themselves’.  It is a principle also embedded in Rawlsian ‘difference’ theory.  The first sentence of Nozick’s Anarchy, State and Utopia (1974) lays the ground appropriately: “Individuals have rights, and there are things no person or group may do to them (without violating their rights).”⁴³⁾Quoted in Kymlica, W. Contemporary Political Philosophy – An Introduction, Oxford: Clarendon Press, 1990, p.104.
Kymlica summarises: because we are distinct individuals – each with her/his own distinct claims – there are limits to the sacrifices that can be asked of one person for the benefit of others, limits that are expressed by a theory of rights. ⁴⁴⁾Ibid. Kymlica notes that there are important ‘continuities’ in this area between Nozick and Rawls: “It was an important part of Rawls’s argument that utilitarianism fails to treat people as ends in themselves…”
Kenneth Best’s case, makes the point more eloquently than all the theorists cited taken together.

I leave the last word to J.S. Mill, who somehow managed to accommodate his utilitarian worldview within a libertarian framework – at least to his own satisfaction:

There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.⁴⁵⁾c.f. The Himmelfars, G. edited edition of J.S. Mill’s

On Liberty

,  London: Penguin, 1974, p.63

Colman Cassidy ©