1. Utilitarian conceptions of obligation

In Utilitarianism, Mill defers to Alexander Bain's expertise on the subject of moral judgment to answer a common criticism of the creed. In developing his conception of utilitarianism, Mill defines goodness as pleasure or happiness and badness as suffering or unhappiness. Correlatively, according to Mill's often quoted statement of the principle of utility, “actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness” (Reference Mill and Robson1969a/1861, 210).

But Mill's conceptions of moral obligation and injustice are much more complicated than these preliminary analyses. If we ought to do good things and mitigate bad things, then (plugging in Mill's equations) it follows that we ought to promote happiness and diminish suffering. But it does not follow from this that we are obligated to produce happiness and avoid suffering; nor does this imply that it is immoral to fail to produce the most happiness and mitigate the most suffering that we can.

In fact, positing these obligations would pit utilitarianism against “common sense” morality as it was then and remains today. First, we do not blame people or label them immoral when they are less than ideal. Judgments of immorality are commonly reserved for substandard behavior, not suboptimal comportment. Common-sense moral thinking countenances a class of supererogatory actions we encourage but do not require.

Second, we do not commonly insist on full neutrality in benevolence (Jeske and Fumerton, Reference Jeske and Fumerton1997; Jeske, Reference Jeske and Zalta2019). A parent is allowed to favor her young children over the children of strangers, and an adult child is allowed to favor her aging parents over other elderly people, even if greater happiness or less suffering would result were they to adopt different objects of concern and affection. Indeed, some philosophers argue that we are obliged to exhibit partiality, insofar as it is demanded by our roles as friends, parents, or children. Susan Wolf is particularly forceful in her statement of the position.

Mill was well aware of both these items of common-sense morality. His recognition of common belief in the supererogatory will be quoted at length in our discussion below. Here Mill records Wolf's observations regarding the limits of impartiality.

Should utilitarians reject these common-sense ideas as invalid because incompatible with their avowed first principle? Mill never explicitly addresses the possibility. Instead, the final chapter of Utilitarianism finds Mill trying to accommodate imperfection and partiality within his utilitarian conception of morality. The means he employs toward this end is a distinction between “immorality” understood as the failure to do what we are obliged to do, and “simple inexpediency,” which often involves the mere failure to help others who have no acknowledged claim to our assistance.

According to Mill's observations on the matter, we (his audience) call an action “wrong” when we believe its agent ought to be punished, and we call a prospective course of conduct “right” when we believe the agent to whom it is presented ought to be compelled to execute it. These assertions, and the sentiments to which they give expression, are to be distinguished from encouragements and the desires implicated when we praise ideal forms of virtue.

Mill's use of “wrongness” and “rightness” to analyze moral obligation raises interpretive difficulties that continue to worry students and scholars of his philosophy. How can we reconcile the usage Mill here reports with the definitions of “rightness” and “wrongness” we have already extracted from Mill's prior statement of the principle of utility? If we were to blame (or deem blameworthy) all and only those actions which either promote suffering or fail to promote happiness, our usage of “right” and “wrong,” as Mill here reports it, would conform to Mill's statement of the principle of utility. But, as Mill observes in the passage just quoted, we do not blame all failures to promote happiness. Nor do we blame every harmful act. It would therefore seem as though Mill must abandon his principle of utility if he is to endorse the common-sense limitations on the application of “wrong” and “right” that he reports above. Put the other way around, it would seem as though Mill must reject common thought and speech if he is to retain his principle of utility, which would commit him to asserting an obligation we each have to maximize utility or at least promote it beyond what we commonly require of one another in daily life.

It is important to note at the outset that there is no textual evidence of any sort that Mill took the revolutionary course. He never asserts the onerous duties of benevolence advanced in our time by utilitarians like Peter Singer (Reference Singer1972) and Peter Unger (Reference Unger1996). Did Mill then abandon his first principle of morality? Or was Mill's systematic treatment of morality ultimately inconsistent (Brink, Reference Brink1997, 716; Reference Brink2013, 102–3)?

I think a more charitable reading would interpret Mill as working with two distinct uses or notions of “wrong” in the passages in question. When one says that an action is “the wrong one to take,” one may mean no more than that there is a better action available, which will always be the case, from the perspective of a utilitarian legislator or moralist, when an alternative course would better promote utility (Mill, 1969/1861, 257–58). This usage gives us the sense of “wrong” Mill builds into the principle of utility, a sense which is relevant to, but not determinative of, immorality or impermissibility. For example, gambling, drinking to excess, and continuously procrastinating are all inadvisable insofar as these actions tend to detract from utility. (The same might be said of John's token acts of gambling, drinking, or procrastinating.) But one can agree with Mill that these are the wrong things to do, and agree with Mill that they are “rendered” wrong by their negative effects on utility, without therein committing oneself to their immorality. One might think, for instance, that these acts involve inadvisable but permissible failures to achieve a utilitarian ideal or set of ideals.

In contrast, sometimes we call an action “wrong” to communicate that it is not only inadvisable, but immoral or impermissible, and so blameworthy or punishable in some way or other. This is a second sense of the term, which requires a distinct analysis of the sort Mill gives in the final chapter of Utilitarianism.

The question then for Mill is whether the requisite analysis can be made to square with the principle of utility. Folk rejections of perfectionism and full neutrality can be retained by the utilitarian if partiality and failures to perform intuitively supererogatory actions are not always blameworthy on utilitarian lights. What Mill must do, at a minimum, is provide an analysis of blameworthiness or liability to punishment which can be embraced by his audience without their rejecting his utilitarian equation of happiness with intrinsic value and his “proportionality doctrine” linking the objective rightness of an action with the degree to which it promotes happiness.

2. Sanctions utilitarianism

To my knowledge, Mill never explicitly provides a utilitarian analysis of blameworthiness to complete his analysis of immorality, which failure explains the continued debate on how Mill might have defined the concept had he done so. Perhaps the comment most often seized upon by those engaged in this speculative project is a remark Mill makes in a subsequent passage about the nature and enforcement of rights: “To have a right … is … to have something which society ought to defend me in possession of. If the objector goes on to ask why it ought, I can give him no other reason than general utility” (Mill, Reference Mill and Robson1969a/1861, 250).

On this basis, one might interpret Mill as endorsing a “sanctions utilitarian” analysis of the concept of immorality or blameworthiness (Brink, Reference Brink1997, Reference Brink2013, Reference Brink and Zalta2018). Perhaps, for instance, Mill believed that an action is truly blameworthy just in case it ought to be blamed or punished. And perhaps he thought that we ought to blame or punish an action when doing so best promotes utility on the whole. We are to practice and encourage benevolence as a general matter. But actions are only judged wrong or immoral when we think they warrant punishment or reprimand. Since punishment and reprimand are actions in their own right, they are only warranted (from the utilitarian perspective) when they promote happiness or diminish suffering, whatever their epistemic credentials. To evaluate actions, then, we need only apply the principle of utility in two differing contexts: once when evaluating the action (type or token) being punished to determine whether it was or is harmful (or suboptimal) and so wrong in the first sense Mill identifies, and then a second time when deciding whether utility is best served by punishing it, which would render it immoral and so wrong in the second sense at issue.Footnote ¹

There are, however, substantial interpretive obstacles to attributing this direct form of “sanctions utilitarianism” to Mill. First, Mill discusses cases in which we would justly punish people for their actions were it not for the disutility involved in meting out those punishments. If Mill equated an action's being immoral with there being a utilitarian justification for punishing it, he should deem the relevant class of actions wrong (in the first sense of the term) but morally permissible (and so not wrong in the second sense). But Mill does not accept this classification of the actions he has in mind. Mill indeed insists that some harmful actions should not be punished by the state, but should only be admonished by the court of public opinion. And he allows that some of these actions should not be punished with a loss of reputation, but should be regretted and punished by the agent herself, who should feel guilty about the harm she has caused. But Mill goes further than this to suggest that some violations of duty should not be punished at all.

And this suggests that an action is immoral, on Mill's reckoning, just in case its agent is not “entitled to complain” about being punished for it, which would have Mill acknowledging a whole class of genuinely immoral actions which cannot be punished by utilitarians for “forward-looking” reasons of instruction, deterrence, and the like.

It therefore seems, as an interpretive matter, that Mill did not equate the blameworthiness of an action with the utility of punishing it. Instead, he countenanced immoral, blameworthy actions that we should neither punish nor blame. Mill simply maintains that in cases in which punishment for immorality would be infelicitous, the object of our punishment would not be entitled to complain were we to ignore the disutility of the proposed penalty to give him what he deserves.

A second obstacle to interpreting Mill as a sanctions utilitarian arises from his discussion of disagreements about the proper justification of punishment. Mill's avowed aim in the final chapter of Utilitarianism is to show that justice is not “totally independent of utility” and is not a “moral standard per se.” As a means to this end, Mill argues, “not only have different nations and individuals different notions of justice, but in the mind of one and the same individual, justice is not some one rule, principle or maxim, but many, which do not always coincide in their dictates” (Reference Mill and Robson1969a /1861, 251–52). In support of this sub-thesis, Mill cites: (a) the views of those who argue that punishment cannot be justified to deter others from following the criminal's example; (b) those who disagree by arguing that punishment can only be justified by these considerations; and (c) those, “like Mr. Robert Owen,” who argue that punishment is altogether unjust. Crucially, Mill does not take sides in this disagreement, but argues that “all these opinions are extremely plausible, and so long as the question is argued as one of justice simply, without going down to the principles which lie under justice and are the source of its authority, I am unable to see how any of these reasoners can be refuted” (252). If Mill were really a “sanctions utilitarian” in the sense we have defined, he would have taken sides in the debate. At the very least, he would have rejected Mr. Owen's view and admitted the partial virtues of its alternatives. Instead, Mill treats each of these alternatives as an impoverished, partial conception. And this suggests that Mill envisioned an even less direct role for the principle of utility in fixing upon a correct standard of punishment than that advanced by our “sanctions utilitarian.” Indeed, this suggestion is borne out a few pages later, when Mill justifies schemes of retribution on utilitarian grounds.

Finally, when we turn to other texts, we find Mill embracing a division of labor between judges and legislators. Legislation is a moral art. An end is proposed and rules are crafted to achieve that end. This, Mill, says, is a context in which the principle of utility is rightly utilized to inform deliberation. Legislators should enact those rules they think will maximally benefit their constituents. In contrast, judges are supposed to apply and enforce the rules that emerge from this process. And Mill explicitly insists on the impropriety of a judge's applying the principle of utility in this context.

3. Mill's utilitarian defense of retribution

So what can we say about Mill's positive conception of immorality? Defined as it is in terms of blameworthiness, can it be reconciled with Mill's utilitarian theories of value and objective wrongness? Worries emerge when we try to analyze the conception of “entitlement to complaint” Mill uses to advance his analysis of rights. Were the object of our punishments himself a sanctions utilitarian of the direct sort, he should complain of his punishment when and only when he thinks utility would be better served by his remaining unpunished. (“It won't do me any good,” “I'm really harmless,” and so on.) But the cases that Mill discusses above when advancing a penal criterion of immorality are precisely those in which a punishment is forgone because it would fail to serve utility of one sort or another. And Mill tells us that the violator he has in mind is not entitled to complain of the punishment contemplated for him in this circumstance. So the standards of entitlement Mill has in mind mustn't be set by an application of the principle of utility to the act of punishment itself.Footnote ²

When, then, are we entitled to complain of our punishments? Common-sense answers are not limited to utilitarian evaluations of the particular punishment under consideration, nor evaluations of our punitive practices considered in their entirety, but include reasons extracted from standards of fairness which are “internal” to those practices themselves (Rawls, Reference Rawls1955). We are entitled to complain about a punishment if we didn't commit the act for which we are being punished, if we didn't know (or couldn't have known) that the act was harmful or subject to sanction, if we were forced into the act or unduly coerced to commit the act by another party, or if we couldn't have “done otherwise” for some equally valid reason. A person must have some minimal knowledge of what is expected of her, and the ability to meet these expectations, if she is to be justly blamed for her failure to do so. By limiting breaches of duty or obligation to those cases in which someone is not entitled to complain of punishment, Mill obliquely references a whole host of excusing conditions, conditions which are in turn grounded in conceptions of moral agency we have incorporated into our punitive practices. And it is natural to wonder whether it is coherent for Mill to advance a definition of immorality that depends on these ideas for its content. A pointed way to pose this worry would pit the view of justice Mill actually articulates in Utilitarianism against “sanctions utilitarianism” as we have defined it. Why shouldn't a utilitarian judge render the optimific decision? How can Mill justify his preference for a more indirect approach?

To justify the incorporation of backward-looking considerations within his theory of adjudication, commentators have interpreted Mill as embracing both “rule utilitarian” and “sanctions utilitarian” elements within a more complicated overall moral theory. For instance, according to David Lyons’ influential analysis,

We thus get a utilitarian justification for a division of reasoning as between legislators and moralists on the one hand and judges and the court of public opinion on the other. Utilitarian legislators use the principle of utility to determine optimific laws to the best of their ability. A judge must reason from those laws to enact the utilitarian scheme chosen by the legislature and can only appeal to the principle of utility within the bounds set by the laws as she interprets them. The judge can justify this more limited use of the principle of utility within her judicial process by citing considerations of the overall utility established by the coercive system in which she is playing her part: principally, the advantages that accrue to the governed when they know the laws and have the opportunity to evade punishment by respecting them. As Mill says,

Of course, this implies that we would not be justified in “rendering justice” in a particular case were we to deem this act of retribution part of a coercive system we deem dysfunctional from our more foundational utilitarian perspective. As Piers Norris Turner (Reference Turner2015, 170) emphasizes, Mill consistently derides “rule worship” and blames participants in corrupt schemes for the larger wrong they conjointly create. Thus, to remain free from blame, judges must play their prescribed role in the scene without losing sight of the bigger picture.

It remains to be seen whether a similar analysis can be provided of our less formal moral system. Peter F. Strawson (Reference Strawson1974), in particular, has drawn attention to a conflict between the utilitarian perspective Mill advocated and the reactive attitudes that continue to inform our responses to breaches of well-established obligations and clearly communicated expectations. But the idea would have each of us playing distinct roles as legislators and judges in a shared normative practice, which is indirectly grounded in considerations of utility. As legislators we communicate our expectations to others, prescribe their obligations, and propose terms of interaction. As judges, we enforce these obligations to the best of our ability with blame, distancing, reputational sanctions, and (often enough) violence. The social rules constituted by these expectations are objectively right, according to Mill, if their observance advances utility as intended. And the actions we sanction are genuinely immoral if they truly frustrate right expectations in a blameworthy manner. To determine the blameworthiness of a wrong action, we must not simply consider the utility of punishing its agent in a manner available to us. At a minimum, we must also determine whether the actor is “entitled” to complain of this punishment, accepting the traditional array of explanations and excuses, so long as we can verify on reflection that honoring these excuses is an essential component of a beneficial scheme.

Thus, while blame and judgments of blameworthiness are not direct products of utilitarian calculation, and Mill does not think they should be, he insists that utility has played a grounding role in our thought and practice and that we should expand its role through reflection on those practices. First, though Mill overestimates the utility of morality, core components of our punitive practice do indeed promote utility and evolved because of this. Second, and perhaps more importantly, as a normative matter, Mill insists that we must have some assurance that a punitive practice promotes utility if we are to remain justified in playing our part in it. Intuitions of its intrinsic “fittingness,” which are given so much credence by the moral rationalists, are parochial and not to be trusted uncritically (Mill, Reference Mill and Robson1969b/1852; Bain, Reference Bain1875).

4. The Bain–Mill criterion of moral judgment

Though the passages I have subjected to analysis are canonical, and the interpretive difficulties I have raised are familiar to scholars of Mill's work, a footnote, attached to these famous passages, is less commonly discussed. For after using a penal criterion to distinguish immorality from moral imperfection Mill asks us to: “See this point enforced and illustrated by Professor Bain in an admirable chapter (entitled ‘The Ethical Emotions or the Moral Sense’), of the second of the two treatises composing his elaborate and profound work on the Mind’ (Mill, Reference Mill and Robson1969a/1861, 246 fn.).Footnote ³ My aim in what remains of this article is therefore to explicate Bain's theory of moral judgment and to see how it can be used to further develop our understanding of Mill's indirect utilitarianism and the place of immorality within it.

In “The Ethical Emotions or the Moral Sense,” the chapter from the Emotions that Mill cites above, Bain does indeed advance a penal criterion for moral judgment and describe its relation to distinct if related evaluations. But Bain's view is even more ambitious than Mill reports in Utilitarianism. Bain was not satisfied with the claim that belief in an act's immorality is equivalent to the judgment that the act “ought” to be punished, which would mean analyzing one normative conceptualization in terms of another. Instead, Bain goes further to equate affective cognition of immorality with a feeling of disapprobation or resentment which includes or entails a willingness or “readiness” to punish the violator of a rule. The penal inclination is said to lend resentment, disapprobation, and allied emotions their “moral” character.

So a preliminary question concerns this divergence between Bain and Mill. Is blame itself the criterion of moral disapprobation or are judgments of blameworthiness better suited to play this role? Though the question might seem trivial, it is crucial to a host of issues that continue to divide moral psychologists today. For instance, if blame and other forms of punishment are sufficient for moral judgment, as Bain insists, non-human animals may enact moralities, as many social animals punish one another. But if, as Mill intimates, judgments of blameworthiness are necessary, morality is probably an exclusively human affair, as we have no evidence that any of the other animals protest their punishments as unwarranted. (Nor do we have evidence of a non-human animal defending a punishment as a fitting response to the action at issue.) Indeed, the kinds of protest and defense in which judgments of warrant figure are discursive in nature; they are inaccessible to animals who lack sentential language. Second, if, as Bain insists, a subject must be willing to punish herself for an action if she is to be credited with judging it immoral, moral judgment will turn out to be “intrinsically motivating” in a straightforward sense, warranting an “internalist” conception of moral thought. But if, as Mill maintained, a subject must only judge herself worthy of punishment to judge her action immoral – and this judgment is in turn analyzed as a discursive or conceptual state, which is not itself painful, and which does not itself include or in some other way necessitate painful emotions like regret and remorse – the motivation to act morally might be thought to be “external to” that subject's judgment.Footnote ⁴ Thirdly, if Bain is right, and punishment is criterial for cognizing something as immoral, we can uncover a community's moral rules by observing their punitive practices. But if Mill is right, we must instead focus on that community's discursive or justificatory practices. Finally, if Bain is right, we can uncover an individual's morality by describing the maturation of her punitive practices. But if Mill is right, we must instead track her capacity to evaluate punitive practices by formulating views about which actions ought to be punished and why. Since Bain's and Mill's definitions of moral judgment hold different implications for theories of the ontogeny and phylogeny of moral rules, and different implications for theories of moral knowledge and motivation, we cannot overlook this intramural dispute.

To begin our evaluation of the discrepancy between the two analyses, we must unpack the meaning Bain attaches to “criterion” when he writes of “the criterion of moral disapprobation.” The term has Platonic connotations, but nowhere in his extensive analyses of immorality does Bain assert necessary and sufficient conditions for moral condemnation. Instead, Bain employs sketches of the sort quoted above to outline paradigmatic cases in which we experience and judge things immoral and then singles out the penal component present in all these cases as “criterial.” Punishment “lends” a rule its moral character and “marks the boundary” between immorality and allowable differences, but Bain is clear throughout that there is always more to moral judgment than punishment. Though criterial, punitive practice is insufficient.

In fact, though Darwin accused Bain and Mill of excessive empiricism, Bain is explicit in attributing components of our moral thinking to innate psychological traits or capacities which have nothing to do with punishment.Footnote ⁵ But because Bain thinks of the “readiness to punish” as necessary for moral judgment, he concludes that sympathy, love, and the rest of our innate moral endowment are also involved in forms of thought that are not distinctively moral in character. It is only when the emotions and judgments issued from these innate capacities are conjoined with an interiorization of authority that distinctively moral cognition is possible. Bain rejects nativist accounts of morality on this basis, as the criterial conception of authority cannot be inherited biologically.

Perhaps, then, we should read Bain and Mill as equating distinctively moral judgments with blame or judgments of blameworthiness directed at people or institutions for the violation of social or interpersonal norms. As Bain says, the penal element “turns a rule into a law.”

In the paradigmatic case in which a person thinks that she has acted immorally, she feels the sting of remorse and experiences a kind of fear when she contemplates performing the act again. And though Bain denies its innateness, he claims that the mechanism responsible for this reaction has its origins in early development: “There are other impulses in the mind that induce a regard to the feelings of others; but with respect to duty, strictly so-called, the infant conscience is the linking of terror with forbidden actions” (Bain, Reference Bain1875, 286). At the same time, “A sentiment of love or respect towards the person of the superior, infuses a different species of dread from what we have just supposed, the dread of giving pain to a beloved object. Sometimes this is a more powerful deterrent than the other. We call it a higher order of conscience to act from love than to act from fear” (Bain, Reference Bain1875, 286). But Bain does not limit moral cognition to fear of punishment or loss of love and the need for parental approval. As Aristotle emphasized, the properly habituated child will soon learn the point of acting morally, which, if the morality imposed by the child's handlers is at all justifiable in liberal terms, will consist in the role the imposed rules play in promoting happiness and diminishing suffering.

In contrast, when we cognize someone's else's activity as immoral, we dislike them for something they've done, which emotion Bain labels “disapprobation.” Disapprobation and allied forms of resentment are supposed to involve (as a component element) some disposition to punish the offending agent in one or more of the various ways Mill would go on to accept as criterial: reputational sanctions, distancing, shunning.

To say that punishment is “criterial” for moral disapprobation is to say that it is the component of that phenomenon that we can use to distinguish it from other aspects of our psycho-social interactions.

With this analysis of Bain's penal “criterion” in hand we can now return to examine its divergence from the account of immorality Mill articulates in the final chapter of Utilitarianism. The extent of the divergence depends on how Mill conceptualized the judgment that someone “ought” to be punished for a given course of action. The move to normative judgments about punishment (in contrast with dispositions to punish) might be justified on the basis of examples confronted by sentimentalists in the literature with which Mill and Bain were both familiar. For example, Hume posited forms of “emotionless blame” grounded in counterfactual reasoning.

But do we really blame ancient criminals for their ancient crimes (as Hume asserts) or do we merely judge them blameworthy? If some sort of negative phenomenology is essential to blame, the latter analysis is more apt. And since, as an intuitive matter, we do believe in the immorality of past crimes, this classificatory decision would seem to favor Mill's analysis over Bain's. The judgment that a long dead criminal deserved punishment underwrites one's belief in that criminal's immorality. Indeed, it is hard to see how we can join Bain in asserting that a “readiness” to punish a miscreant is necessary for belief in his immorality, when the object of our belief is no longer around to be punished. To accommodate this sort of case, Bain would have to posit unactualizable dispositions to punish that fail to manifest as sentiments. When, for example, we judge the antebellum slaveholder immoral, we acquire a disposition to punish him, where this means we would punish him were we to have the chance, a counterfactual that can be true even if we know the chance is impossible.

A similar prima facie obstacle for Bain's analysis arises when we allow that a friend or loved one has acted immorally but we find it impossible to feel blame towards them and have no desire to see them punished. On Mill's account, we can judge a loved one immoral so long as we believe they deserve blame we cannot feel and deserve punishments we cannot bring ourselves to deliver. Again, to secure these same results, Bain must posit dispositions to blame and punish that are prevented from actualization by the judge's allegiance with the criminal. Feelings of love overwhelm the causal efficacy of a real (if unactualized) readiness to punish.

But there are also cases which are more amenable to Bain's analysis than Mill's. As utilitarian critics of Victorian morality, both Mill and Bain allow that we often blame people for harmless actions for which they should not be blamed. In many of these cases, we incorrectly judge the agent blameworthy because we are misled by intuitions of the “intrinsic fit” between our blame and the deed we have blamed. But in some cases, we blame without considering whether the deed indeed deserves blame. And in a range of these cases, were we to consider whether the action really deserves blame, we would judge that it does not. When we blame without judging an action blameworthy, does our blame enable a judgment of immorality? A positive answer favors Bain's analysis over Mill's.

Consider, for example, Jonathan Haidt's (Reference Haidt2001) well-known experiments. Subjects are handed stories of adult siblings who engage in incest without any negative consequences. Contraception is used, the relationship is strengthened, no one finds out, and so on. Similar stories are recited about subjects acting in “unclean” ways without consequence or privately desecrating flags and other symbols of religious and political identity. Predictably, many subjects say they find these actions immoral even when they cannot supply any substantive reasons or arguments to support their judgments. Instead of allowing exceptions to more general prohibitions on harmful or disrespectful actions, these subjects double-down on their moral views and claim to “just know” that the actions in question are “not OK”: a phenomenon Haidt has labeled “moral dumbfounding.”

One fairly natural interpretation of moral dumbfounding is that people reactively moralize incest, bestiality, and so on without first making any judgment one way or another as to whether their reactions are justified or warranted. The “test cases” are those in which someone blames the siblings’ act of incest, and is ready to punish them with reputational sanctions, but then abandons this frame of mind when she considers whether incest deserves punishment in the case on hand. At the outset of this process, the subject blamed the siblings without deeming their actions blameworthy in any substantive sense. Nevertheless, she sincerely accused the incestuous siblings of immorality. Shouldn't we conclude then, with Bain, that she believed what she said? But if this interpretation is right, Mill's criterion imports too much sophistication into the nature of moral judgment. People can judge others immoral without thinking one way or another about whether the actions they abhor have qualities that would render such a judgment warranted. Sometimes, all it takes is disgust with what's been done or the party who's done it.

To handle both sorts of case, we need a disjunctive criterion. So let us coin a new view, “the Bain–Mill criterion of moral judgment,” according to which: (a) the disposition to blame or punish some person or institution for an action they are supposed to have executed, or (b) the disposition to judge some person or institution worthy of blame or punishment for some such action, is necessary for belief in the immorality of what's been alleged. To be clear, as a historical matter, Bain proposed a penal criterion for moral judgment, and Mill altered that criterion in substantive ways that he failed to acknowledge. I have crafted the Bain–Mill criterion to incorporate the advantages of Mill's unacknowledged alterations, without shouldering the controversial intellectualist commitments these alterations would otherwise entail.

5. Imperative duties and sentimental proscriptions

It is important to note that the Bain–Mill criterion is psychological, not explicitly normative. As Bain conceptualizes the matter, the nature of moral judgments, rules, and sentiments is a matter to be settled by science, insofar as each society has a morality that can be uncovered through careful observation and analysis. But we go beyond the sciences of moral psychology and ethology (or sociology) when we consider “the reasons or considerations requiring each one to abstain from the performance of certain actions, and to concur in a common prohibition of them,” as this is a matter for the “Theory of Morals” (Bain, Reference Bain1875, 265). When an intellectual engages in the Theory of Morals, she is attempting to either critique or justify a morality (in the sense of “morality” induced by adoption of the Bain–Mill criterion), where we do not or need not assume that the morality we are currently enacting is the morality we will have after we have developed a sociological description of our practices and subjected it to critique. Importantly, critique and justification are not elements of moral psychology or any other science. They are forms of art.

The distinction between scientific conceptions of the origins of a given person's morality and the normative arguments we might give for the validity or invalidity of that morality is easy to keep in place when moral judgment is defined as Bain and Mill define it. A person or group of people may be disposed to punish themselves or others for good reasons, bad reasons, or no reasons at all. Either way, the schedule of punishments they enact is a morality in the sense Bain defines, and we can find their moral judgments among those states of mind motivating each to play her part in the scheme: the disapprobation, the guilt, the derogation, and ostracization. These are moral sentiments even if the judgments that express them are ill-conceived, and the punishments to which they give rise are harmful and undeserved. Of course, this way of thinking lies at odds with those who define moral judgments as the products of sympathetic engagement with the feelings of others, or contractualist reasoning, or egalitarian impulses, or anything else we might associate with the truth or validity of a moral judgment. But this is intentional. Bain's analysis is crafted to reject any link between the definition of moral judgment, and the truth, validity, or reasonableness of judgment so defined. Just as legislatures can enact wholly bad laws, communities can realize wholly bad moral norms.

Nevertheless, Bain prefaces his scientific account of the cultural evolution of moralities with a series of arguments he levels against the leading normative moral theories of the time. Divine command theory is rejected out of hand because it hasn't even secured consensus among Christian philosophers. The rationalist moralists (Cudworth, Wollaston, Clarke, and Price) are dismissed with a Humean critique: we calculate and reason to apply laws and find out the means to our ends, but reasoning is an insufficient guide to the ends themselves. Kant is allowed to be right about the need for generalized laws within a community, but his categorical imperative is inadequate as “it does not say what ends should be sought by this uniformity of procedure.” The same problem besets Adam Smith's “impartial spectator”: the perspective of a spectator is inferior in some ways to that of a participant, and even a perfect judge renders imperfect justice when she applies bad laws. Hobbes is right when he says, as a scientist, that “Morality is an Institution of Society, maintained by the authority and punishments of Society.” But Hobbes’ normative claim that society “made, or should have made, their last will and testament in favour of some single despotic ruler” was “decided against him by the events.” Self-interest is not an acceptable moral guide because we have irreducibly other-regarding desires, interests, and concerns. And the moral sense theory, as instanced by Whewell in his Elements of Morality, assumes universal standards that are not to be found (Bain, Reference Bain1875, 265–70).

It is only at this point, when arguing against Whewell's hypothesized moral sense, that Bain finally returns from the Theory of Morals to the science of morals. If the analogy with our five senses is taken “strictly,” moral sense theory predicts relatively universal (or species-typical) moral judgments. And though there are, Bain allows, certain rules that are found in all human moralities, the explanation for them is not a common sense, but the role enforcement of these rules plays in the maintenance of communal ties.

Of course, a society's morality is not exhausted by the minimal schedule of punishments necessary for its persistence. As we've seen, Bain recognizes a second class of moral rules “of purely Sentimental origin, having no reference, direct or indirect, to the maintenance of the social tie” (1875, 272). The rules regulating sex, diet, and dress are cited as the most perspicuous examples. There is uniformity in the first class of rules, because societies face similar obstacles to their persistence and elect common remedies. But “in the rules founded on men's sentiments, likings, aversions, and antipathies, there is nothing common but the fact that some one or more of these are carried to the length of public requirement, and mixed up in one code with the imperative duties that hold society together” (Bain, Reference Bain1875, 273).

It is only after Bain has this genetic, sociological distinction in hand – between the “imperative duties” on the one hand, and those moral rules generated by mere sentiment on the other – that he examines utilitarian moral theory and describes how it can be defended as a normative Theory of Morals.

And it is at this stage that Bain directs the reader to his The Moral Philosophy of Paley (1852), where he provides two utilitarian arguments for the restriction of duty to that which is necessary for safety and security. The first is an acknowledgement of the limitations of the legislator and moralist. Punishment is the tool they employ to reach their ends, and it has a limited and uncertain utility: “The resources of the moralist are not omnipotent; they are extremely limited, and corresponding limits ought, therefore, to be set to his aims” (Bain, Reference Bain1852, 90–91). As an epistemic matter, moralists can be more or less certain that security is necessary for happiness and they can therefore safely impose the “imperative duties” by punishing actions which undermine it. But we must admit that “by attempting to increase the share [of happiness] that comes from without, [we] may possibly diminish the share that accrues from within” (Bain, Reference Bain1852, 90) and this justifies great caution when using punishments to secure further ends. The moralist's distinction between obligation and supererogation is warranted by real limitations in our knowledge and power. It is too risky to moralize behavior when we do not know whether our admonitions can secure these further ends and we do not know whether our punishments will have negative effects beyond the pain involved in their execution. So we should “command” respect for basic rights on pain of punishment, but we should only “encourage” benevolence beyond these limits.

The second route Bain articulates is more speculative and Panglossian insofar as it assumes as a matter of fact what can only be determined by an evolving social science: that more happiness is promoted when we enact a limited schedule of social and legal punishments than would be enjoyed were we to institute penalties for each and every forgone opportunity to promote utility. This assumption lies implicit in Mill's Utilitarianism, but it is clearly articulated and tacked on to Bain's analysis as a “tenable” conjecture.

6. Mill's errors

We have seen how Bain introduced a penal criterion for judgments of immorality and used it to define an indirect form of this venerable moral theory, introducing innovations which were adopted by Mill in his now famous work on the subject. But we have also seen that the two thinkers were not exactly of one mind. In fact, in the later editions of The Emotions, Bain appended two explicit criticisms of Mill's Utilitarianism to his analysis.Footnote ⁸ First, in the penultimate chapter of Utilitarianism, Mill argues that happiness is the only thing we desire for its own sake, and Mill infers, on this basis, that happiness is the only thing desirable for its own sake. In the subsequent decades, many critics would take aim at this reasoning, but Bain was one of the first to challenge its premise. The saint needn't include virtue in his conception of happiness, nor need the miser find happiness in the mere possession of money. Instead, what were originally conceived as means to happiness may become ends in themselves distinct and opposed to happiness.

Second, and relatedly, Bain criticizes Mill for underestimating the role that mere sentiment has played in the origins of our moral codes. Mill gives too great a weight to utility as a cause. In particular, Bain points to cases in which utilitarian rationalizations are provided for sentimental aversions.

Mill's Utilitarianism is a polemic. Its ultimate aim is to promote and defend a moral philosophy, not to describe the origins and function of our existing morality. Perhaps because of this orientation, Mill misuses science to support his normative aims, and falls afoul of Hume's Law, which commands theorists to distinguish fact from value in their analyses.

Nowhere is this more evident than in Mill's treatment of justice in the final chapter of Utilitarianism, where Mill attempts to provide a debunking explanation of deontological or rights-based views of morality. It is in this context that Mill famously writes that the sentiment of justice does not involve considerations of utility or expediency, but “whatever is moral in it does” (Mill, Reference Mill and Robson1969a/1863, 248): “The sentiment, itself, has nothing moral in it, what is moral is, the exclusive subordination of it to the social sympathies so as to wait and obey their call” (Mill, Reference Mill and Robson1969a/1863, 249). Were he utilizing the Bain–Mill criterion, Mill would allow, with Bain, that an interpersonal sentiment (or “reactive attitude”) is moralized by an individual as soon as she punishes those who evoke it; and that once they are widespread, the induced social sanctions constitute a moral rule. The rule may be a bad one when evaluated from a utilitarian perspective, and Mill does much in the preceding pages to recommend that perspective. But however attractive, utilitarian evaluation is, by Mill's own account, a matter of art, not science (Mill Reference Mill and Robson1969a/1863, 206). To respect Hume's Law, the critique of retributive institutions must be distinguished from a scientific explanation of their origins. The adoption of the utilitarian perspective is often irrelevant to the genesis of the particular punitive structures in play. Indeed, we should expect people who are not utilitarians to justify their blame, resentment, and disapprobation on non-utilitarian bases, to provide discursive support for feelings they have already “moralized” in the sense of that term induced by the Bain–Mill criterion.