Mill’s second principle states that a person need only be subject to the will of the majority to prevent the violation of a “distinct and assignable obligation to any other person or persons”. A distinct and assignable obligation is a distinct expectation which another is obligated to honour. Not actions are caught under obligation and not all obligations are distinct and assignable, the types of harm Mill suggested warrant protection are those that violate our rights. Mill’s second principle is essentially a qualification of the first principle and a criterion to define actions that should be regulated and those which should not.
What were Mill’s influences and how did his ideas develop? John Stuart Mill was the son of James Mill who was a disciple of John Bentham (8) and a believer of the mind being a tabula rasa (9) on which every experience is recorded. James Mill began his son’s education at home with this new psychology in mind, and the experimental education consequentially led to his son’s breakdown at the age of 21. During this period Mill developed his own take on the positivist (10) utilitarianism that had been drummed into him during his education.
The principle of utility was a driving force behind Mill’s education. The utility principle is to promote “the greatest happiness for the greatest number”. Bentham’s chief interest was of its application to law reform and the prison service, James Mill applied it to politics and John Stuart Mill then actively reconstructed the principle to argue that the government should actively promote the general good. Mill derived the liberty principle from utilitarianism, and propounded the importance of the individual’s self-determination and personal development.
formulated the principle of utility in Introduction to the Principles of Morals and Legislation (11). Despite viewing law and morality as separate issues he postulated that actions are to be judged morally right or wrong in accordance with whether they maximise pleasure or minimise the pain caused to those affected. Its performance must be more productive of pleasure or happiness, or more preventive of pain or unhappiness, than any possible alternative (12). Mill was an ardent supporter of Bentham’s utility principle but differed in that his approach was qualitative and not quantitative, because he was more concerned with the value of an outcome rather than the size of its effect. Mill did not think all pleasures were of equal value.
Mill’s suspicion of collective mediocrity led him to suggest safeguards to ensure that the government and legislature did not become “the organ of the tendencies and instincts of the masses”. He advocated an enlightened and educated populace and plural voting for the educated (13). One of Mill’s significant influences was his partner and wife Harriet Taylor his partnership with her prompted him to advocate equal rights between men and women. (14).
On Liberty had an affect in the debate that occurred between Patrick Devlin and HLA Hart. Professor HLA Hart supported Mill’s Liberty principle and used Mills thought in his argument with Lord Patrick Devlin. The debate began with the Wolfendon Report 1957 on homosexual offences & prostitution. The report reverberates Mill where it says “there must be a realm of private morality and immorality which is, in brief and crude terms, not the laws business” (15) but also that the function of criminal law is to “preserve public order and decency, to protect the citizen from what is offensive and injurious” (16).
Devlin rejected this idea and in The Enforcement of Morality (17) argued that an established morality is as necessary as good government to the welfare of society. He said that society should be allowed to prohibit anything which the ‘right-minded’ or “reasonable man” regards as grossly immoral and that it was not necessary to prove something caused harm in order to do this. (18). He argued that society will disintegrate from within where there is no common morality, even more than it would crumble from external pressures, therefore society would be justified in taking steps to preserve the common morality in the same way as it does to protect its government. He asserted that legal enforcement of morals need only be used in certain cases since a citizen cannot surrender his whole life to society’s scrutiny (19).
Hart’s counter argument was in Law, Liberty & Morality (20) where he stated that there was “no evidenced to show that deviation from accepted sexual morality….is something which, like treason threatens the existence of society”. Hart denied that the weakening of common morality will lead to society’s downfall but does suggest that society may need certain basic rules to survive (21). He urged Devlin to consider the dangers of populism, and that the risk in democracy that the majority dictate how we live, should not be maximised. Hart postulated that restraint of immorality was not best achieved by a fear of legal sanction and warned that the enforcement of a moral code contradicts the spirit of moral value.
Mill’s liberty principle has been followed in many subsequent works including that of Immanuel Kant (22) who arrives at a similar conclusion, and Jeffrie G Murphy in Another look at Legal Moralism (23) who argues that areas of private immorality (by consenting adults) should not be criminalised because there are no victims.
James Fitzjames Stephen (24) criticised the liberty principle in the two areas Mill criticised the principle himself. Fitzjames Stephen believed that there are no self-regarding actions; every person’s action affects another. He also argued the paternalist point, that society has right to interfere to protect the individual. I don’t believe Mill intended the principle to be viewed as an infallible model and indeed took stock of these criticisms himself when writing On Liberty. Fitzjames Stephen also thought that the majority of men were weak and ill educated therefore sanctions were necessary in order to uphold morality. He berated the liberty principle as too crude in not taking into account the complexities of human relationships.
It has been said that Mill has been misinterpreted and the ambiguity of some of the words used in On Liberty exasperate the problem. Mill did not define the word “harm” which could have the effect of two extremely different interpretations. What is to count as harming others? John Gray believes that “harm” is meant to mean injury to interests, and feels that the vital human interests that Mill had in mind were security and autonomy. The word “interests” is also undefined, where Mill says the individual is to be accountable only for those actions which are “prejudicial in the interests of others”, the exact scope of this statement has been the subject of much debate. John Rees’s interpretation of the liberty principle was that the interests of others must be affected injuriously in order for society to intervene. The liberty principle is often viewed as being vague and undefined (25).
Critics have accused Mill of having an anti-democratic fear of popular government, in particular the potential for working-class opinion to be oppressive and perhaps violent, but it appears Mill was more concerned with middle-class conformity. The fear took root after reading Alexis de Tocqueville Democracy in America (2) America was a middle-class society, and Mill feared that it was also a society that did not care for individual liberty.
Some critics like Isaiah Berlin (26) and Gertrude Himmelfarb have stated that due to Mills strict and unorthodox upbringing, and the imposition of classical utilitarianism upon him, he was unable to unshackle these chains of influence, which meant he remained inconsistent and with no coherent doctrine amongst his works. Himmelfarb’s view was that there is no logical connection between the philosophy of utilitarianism and the liberty principle because the principle of utility justifies the sacrifice of an individual’s liberty in order to maximise potential happiness for the greater good of society. Berlin put forward the same criticism of Mill’s mind being divided as individual liberty has only instrumental value in utility and cannot have priority over general welfare whereas in On Liberty, Mill states that individual freedom has intrinsic value regardless of its contribution to the general welfare. However Mill never felt torn between the competing principles in his own mind, but there are many examples of where the two may collide. An example being the prevention of heroin addiction; utilitarianism appears to encourage this kind of interference that the principle of liberty seeks to extinguish. Others have also felt that the two ideas do not equate with each other (27).
Today with the development of modern technology and forensic science we are subject to all kinds of interference with our freedom in terms of the confidential information stored and analysed without the individuals consent. New types of surveillance and control are made possible by combining databases and by new technological advances. This information creates "ever new sources of power and ever new possibilities of control in the post modern age” (28). Balkin questions if this is a new form of “totalitarianism, a prison constructed from access to information”. Mill believed individualism should be regarded as having intrinsic worth, and is essential to happiness, and our right to privacy is part of our individualism and autonomy.
Now our computer usage can be monitored, mobile phone records tapped into, our DNA can be taken and analysed without our consent (29), CCTV cameras monitor us (30), intimate details of multiple aspects of our lives are all stored and used to some degree and currently a database is being set up to store details of children and their families (31). The introduction of ID cards (32) will mean further intrusion and its functions will no doubt multiply ultimately changing the relationship between the individual and the state.
Mill believed it was “imperative that human beings should be free to form opinions and to express their opinions without reserve”, but laws surrounding our right to protest have impinged on our freedom of speech and right to protest (33). The Terrorism Act in its ambiguity poses possibilities for abuse and can be used to quash ordinary political activity (34). The introduction of the Anti-Social Behaviour Order has led to much concern about its abuse by the state and its impingement on our liberties (35). ASBOs can be used as a tool for the government to appear as though they are being “tough on crime” whereas what they are actually doing is diminishing our rights and freedoms.
The strange thing is that the majority of people seem unconcerned about this intrusion and have accepted it as part of the life we now live. People look at it as necessary for the prevention of crime; to prevent terrorism (the Terrorism Act), to prevent fraud (ID cards), to prevent anti-social behaviour (Asbos), and to prevent offence (Public Protest).
Mill saw autonomy as a vital human interest, an essential part of the “permanent interests of man as a progressive being”. The Enlightenment sought to eradicate “unthinking tradition and religious bigotry” (28) and to understand and analyse society in terms of science and reason, and now because of technological advancements, we have arrived at a whole new set of restraints on our freedom.
Bibliography
(1) On Liberty 1859 was his most renowned and controversial work
(2) Democracy in America 1840
(3) Mill did not want legislation and government institutions to become “merely organ of the tendencies and instincts of the masses”
(4) Ch 1 On Liberty
(5) “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” ch 1 On Liberty
(6) “Liberty.. has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion”
(7) ch 5 On Liberty
(8) Bentham 1748-1832
(9) David Hartley ; it means blank slate
(10) Positivists believe there is no necessary connection between law and morality (as Hart defined in The Concept of Law). Positivists do not believe the question of morality of a law is unimportant or irrelevant simply that the question of what law is (its study/analysis) is a different question from what the law ought to be (David Hume – Treatise of human Nature 1739).
(11) Introduction to the Principles of Morals and Legislation 1789.
(12) The theory has also been described as consequentialist due to the correctness of an action being absolutely dependant on the value of its consequences.
(13) Considerations on Representative Government.
(14) The Subjection of Women 1869 was thought to be excessively radical in Mill's time but is now seen as a classic statement of liberal feminism.
(15) para 61 The Wolfenden Report 1957 Cmnd 247
(16) para 13 The Wolfenden Report 1957 Cmnd 247
(17) Patrick Devlin, The Enforcement of Morality, Oxford 1968
(18) He also said that “No society can do without intolerance, indignation and disgust; these are the forces behind moral law” (Patrick Devlin, Enforcement of Morality oxford 1968).
(19) He did add; nothing should be punished if within the limits of tolerance; the limits of tolerance of society will shift; the law should be slow to change its moral stance and privacy should be respected as far as possible and the need to enforce law should be balanced with the need for privacy
(20) Law, Liberty & Morality, HLA Hart 1966
(21) He specified a minimum content of “nature law”
(22) Immanuel Kant 1724-1804
(23) Jeffrie G Murphy Another Look at Legal Moralism, Ethics vol 77 no. 1 (50-56)
(24) James Fitzjames Stephen 1829-1894
(25) Alan Ryan
(26) Isaiah Berlin 1909-1997
(27) John Gray, CL Ten
(28) As J Balkin stated in Post Modern Constitutionalism. He also said it is akin to Bentham’s Panopticon, a prison where each persons knowledge that every movement is observed is enough to effect behavioural control without the use of physical force
(29) DNA: 2.9 million samples on the database. 5.24% of the UK population have had their DNA taken and this is set to increase substantially as a change in the law means that DNA and fingerprints can be compulsorily taken from anyone arrested for any offence, and kept on the National DNA Database even if the person is not charged with any offence or has been acquitted
(30) Surveillance: Four million cameras monitor the population, A quarter of all the CCTV cameras in the world even though street crime rates in the UK exceed those of countries such as Germany and France where public CCTV surveillance is limited. “Since 1994, the Home Office has spent 78% of its crime prevention budget on CCTV, before assessing its effectiveness in deterring, or preventing crime.” www.liberty-human-rights.org.uk
(31) The Children Act 2004: A database of all children in England and Wales will be set up which will include information such as medical records, teacher’s notes, legal paperwork and parent’s details.
(32) ID Cards: Information will be entered without our knowledge or consent and we will not be informed when, how and by whom our entry has been accessed and we will not have an automatic right to see our information.
(33) Public Protest: The Secretary of State acquired the power to ban demonstrators from a ‘designated area’ under the Serious Crime and Police Act 2004. Parliament Square (where the stop the war protest was held) is now a permanent ‘designated area’. No protest is allowed there without prior approval. The Secretary of State can now ban people from any area of land he chooses.
(34) The Terrorism Act 2000: The definition of ‘terrorism’ contained in the legislation is extremely wide-ranging, including normal political activity. It has already been used to harass or prevent legitimate protest. Under the terrorism Act 2005 – property damage, risking health and safety, even wearing clothes with a terrorist logo can amount to terrorism
(35) Anti-Social Behaviour Orders were brought in with the 1998 Crime and Disorder Act. Asbos have been issued for some ludicrous reasons and their effectiveness is doubted with more than 40% of them being breached and ending in jail sentence of up to five years. Anyone behaving in a way "likely to cause alarm" can be issued one. Anti-Social Behaviour Orders are used to criminalise behaviour that is not, in itself, a criminal offence. Asbos also deny people of their basic legal rights and allow hearsay to be given in evidence.
Reports/Essays
CL ten crime and immorality 1969 32 MLR
The Wolfenden Report 1957 Cmnd 247
Patrick Devlin, The Enforcement of Morals, Oxford 1968
HLA Hart, Law Liberty and Morality 1966
Jeffrie G Murphy Another Look at Legal Moralism, Ethics vol 77 no. 1 (50-56)
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation
John Stuart Mill, Utilitarianism
Websites
www.echr.coe.int
www.jstor.org
www.hrw.org
www.statewtach.org
www.asboconcern.org.uk
www.utilitarianism.cim
www.liberty-human-rights.org.uk
Books
JS Mill On Liberty edited by Elizabeth Rapaport, Hackett Publishing, Cambridge, 1978 (On Lib originally 1859)
The Politics of Jurisprudence 2nd Edition, Roger Cotterrell, LexisNexis UK 2003
Llloyds Introduction to Jurisprudence, 7th Edition, MDA Freeman, Sweet and Maxwell, 2001 London
