Irrelevant (a view that is problematic when it comes to voting). This

permits an unlimited degree of state interference provided that there

was a net gain in well-being. For example utilitarianism is consistent

with slavery in that the standard of living of an elite majority might be

held to outweigh the loss of freedom of a servile underclass. Moreover a

utilitarian could reasonably think that wrongly convicted people should

be kept in jail in order to preserve public confidence in the police.

This kind of utilitarianism, in its modern guise of economic cost,

benefit analysis, has a substantial effect on policy making. However,

another version of utilitarianism, liberal utilitarianism, has prob-

ably had greater influence upon our legal values. Propounded most

influentially by John Stuart Mill (1806–1873), liberal utilitarianism

argues that maximising individual freedom is the best way to achieve

the overriding goal of advancing overall well-being. Its recommenda-

tions are often therefore similar to those of liberal individualism

35

Constitutional Values

(above) in the sense that they prefer freedom provided that others are

not harmed. There is, however, the crucial difference that liberal

utilitarianism regards individual freedom as no more than a means to

a specified end directed by the state, whereas for liberal individualists,

individual freedom is an end in itself because the community has no

inherent right to impose itself on its members.

2.7.3 Liberal constitutional mechanisms

From the legal perspective liberalism might take two competing forms.

One is to rely on community customs and values generated by the

voluntary relationships of individuals in making contracts and form-

ing associations. The law steps in only to settle disputes and to facili-

tate private dealings. Public officials and private citizens alike are

subject to the ordinary general law of private rights and freedoms.

Hayek (1973) favoured this approach. He regards human affairs as

being too complex to be regulated by any single body. He believes that

no government can have sufficient skill, foresight, objectivity and

knowledge to do more than provide a mechanism for doing justice

and keeping order, and that attempts to redistribute wealth are likely to

be corrupt. He drew attention to what is now called ‘public choice

theory’ namely that the self-interest of officials in expanding and

protecting their own territories is an important aspect of the political

process. According to Hayek, the market is the only effective instru-

ment for co-ordinating the individual plans of a host of different

agents. He thought that legal institutions and principles of justice

should evolve out of the community rather than be imposed from the

top and that legal certainty was vital as a hedge against tyranny. Hayek

therefore envisaged a common law framework which, as we shall see in

Chapter 4, is similar to Dicey’s influential version of the rule of law.

Within the utilitarian tradition neither Bentham nor Mill placed

faith in the courts as guardians of constitutional values. Bentham

thought that the notion of individual rights except in a technical legal

sense was ‘nonsense on stilts’ while Mill placed faith in engineered

forms of representative democracy which favoured the educated and

property owners. Bentham supported central control as being, on the

whole, more likely than not to maximise the happiness (utility) of its

members but thought the notion of the interests of the community as

such was a fiction masking the competing interests of individuals. The

aim of the law was to achieve the greatest happiness of the greatest

number on a scientific basis. Happiness was to be measured on a

democratic basis which gave equal weight to the interests claimed by