Jones G.S., Claeys G. The Cambridge History of Nineteenth-Century Political Thought
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Ross Harrison
and must take care that it be sufficiently severe’ (4.7; CWM, xviii,p.280).
We have here (as what ‘must’ happen) the Benthamite, terrifying, state; the
state that protects rights by enforcing duties through fear of punishment;
the state that sees that its threats are sufficiently severe to ensure adequate
deterrence. We therefore need both aspects to understand Mill; that is, both
where state power should keep out but also where state power is needed
and should come in.
Another way to make Mill’s argument too negative is to miss, or mis-
represent, the point of state limitation. Here the Autobiography description
should be remembered (and the Autobiography was another work that Mill
and Harriet were cooking in their short marriage; it dates from the same
time as On Liberty). Getting the state out of the way is not an end in
itself. It has a point, a positive point. This is to allow variety of behaviour,
experiments in living, a variety that, on Mill’s theory, will promote the
general good. The negative message, so far as it applies, is based on positive
promotion of a particular end.
Another common misrepresentation is to think that Mill’s concern is
exclusively with the state; with what it should (or should not) do. He is
read as promoting a position about how the law ought to be. This is natural
from the uses of Mill in public policy arguments in the following century,
such as with respect to the legalisation of homosexuality or pornography.
(Although these are matters in which his name has been centrally cited, they
are not matters about which he specifically wrote.) Yet Mill is quite clear,
in the negative part of his message, that a serious threat to individuality
comes from the moral force of public opinion as well as from the legal force
of the state. In chapter 1 of On Liberty ‘law’ is constantly twinned with
‘public opinion’ as the repressive forces invading appropriate liberty. What
he wants to control is ‘the disposition of mankind, whether as rulers or
fellow citizens, to impose their own opinions and inclinations, as a rule of
conduct on others’ (1.15; CWM, xviii,p.227). Indeed, he thinks that in the
England about which he is writing, the force of public opinion, particularly
of middle-class opinion, is a more important threat than state-backed legal
sanctions. It is ‘a social tyranny more formidable than many kinds of political
repression’ because ‘it leaves fewer means of escape’ (1.5, CWM xviii,
p. 220).
So Mill’s message is not merely the negative one that people should
be left alone. In chapter 4 of On Liberty he remarks that ‘it would be a
great misunderstanding of this doctrine to suppose that it is one of selfish
indifference, which pretends that human beings have no business with each
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other’s conduct in life’ (4.4; CWM, xviii,pp.276–7). By contrast, he
remarks that ‘there is need of a great increase of disinterested exertion to
promote the good of others’. Mill clearly therefore is not recommending
that people leave each other alone. But how is interference permissible
beyond the application of appropriate legal and social sanctions? This is
where Mill provides subtle treatment of how we should treat people with
whom we disagree but who have not invaded the rights of others. We may
offer ‘considerations to aid his judgement, exhortations to strengthen his
will’ (4.4; CWM, xviii,p.277). This is problematic; the line is fine between
helpful persuasion and improper social pressure. But what is clear is that
we should concern ourselves with others, even when ‘whips and scourges,
either of the literal or the metaphorical sort’ are inappropriate.
6 Value base
The doctrine of On Liberty, therefore, is not that people should as far as
possible be left alone but, rather, that interference should happen in the
right place in the right manner and for the right reason. Near the start,
as part of his criticism of contemporary thought and practice, he says that
there is ‘no recognised principle by which the propriety or impropriety of
government interference is customarily tested’ (1.8; CWM, xviii,p.223).
The question is one of demarcation, of the proper area in which people
should be exempt from interference and the proper area for control. This
involves a proper account of the proper, and here Mill bases the particular
argument on a more general epistemology and theory of value, such as
occur throughout his work. The epistemology, of which the Logic is the
centrepiece, is the substitute of science and observation for intuition and
feeling. This is the thrust of his early attack on the moral doctrine of the
Cambridge philosopher, Whewell. It is the substance of much of the first
chapter of On Liberty. Here he wishes to expose how people depend for
their conclusions on ‘sympathies and antipathies’ rather than ‘interests’ (1.6;
CWM, xviii,p.221); how they depend on their ‘sentiments’; how law
follows the ‘sentiment of the majority’. Later, considering applications, he
wishes to show particularly how wrong conclusions are based on feelings,
in particular feelings of disgust at particular kinds of conduct.
If Mill, like Bentham before him, wishes to substitute ‘reason’ for ‘senti-
ment’, then, again like Bentham before him, he needs a basis for his value
theory so that the line between proper and improper interference can be
based on ‘principle’ rather than mere instinct, or feeling. And, like Bentham,
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the value theory that does the work is utilitarianism. This is quite specific
in On Liberty where Mill states that ‘it is proper to state that I forgo any
advantage that could be derived to my argument from the idea of abstract
right, as a thing independent of utility. I regard utility as the ultimate appeal
on all ethical questions’ (1.11; CWM, xviii,p.224).
The ethical or evaluative basis is not duty or rights, let alone sentiments.
It is utility. Shortly after On Liberty Mill wrote Utilitarianism, a defence of the
doctrine of his father and Bentham. It contains, as half of its text, a chapter
on justice, which was originally intended as a separate essay, another part of
the pemmican condensation of the 1850s, and, like Liberty, an application
of utilitarianism to a topic more of political than individual morality. The
name is the father’s name, but the doctrine is worn by Mill with a difference.
In chapter 2 of Utilitarianism he famously says that ‘it is quite compatible
with the principle of utility to recognise the fact, that some kinds of pleasure
are more desirable and more valuable than others. It would be absurd that
while, in estimating all other things, quality is considered as well as quantity,
the estimation of pleasures should be supposed to depend on quantity alone’
(CWM, x,p.211).
Mill’s utilitarianism therefore does not consist in merely adding up sums
about pleasure. In both works it is the kind of utility that counts. Hence the
importance of the central, third, chapter of On Liberty. This gives a fuller
exposition of the value theory behind the work, of why exactly liberty is
of value. And what we find here is not that we will get a greater quantity
of pleasant sensations if we promote liberty. Instead, we find that we get
people of more valuable character. We need liberty to gain individuality; ‘Of
individuality, as one of the elements of well-being’ is the chapter’s title. Here
we remember the ‘single truth’ of the work as described in the Autobiography
(the importance of large variety in types of character). We remember the
quotation of Von Humboldt used as the epigraph on the importance of
diversity. By the ‘experiments in living’ that Mill promotes in this chapter,
he hopes to discover the better kinds of utility, seeking quality rather than
quantity.
7 Utility old and new
Mill said that he wished to combine the best of the eighteenth century
and the best of the nineteenth century. This is exemplified by the way that
utility forms the foundation of On Liberty. Utility is itself very much an
eighteenth-century theme, with Bentham applying the thought of other
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eighteenth-century thinkers such as Helvetius and Beccaria. From Mill’s
perspective it was all too mechanical. For them, the state was a machine con-
structed to maximise pleasure and minimise pain. It was just like Bentham’s
famous prison, the Panopticon: a suitable arrangement of matter would
cause people led by their natural drives to their own pleasure and avoidance
of pain to do what was needed to maximise overall satisfaction, impartially
considered.
This structure of motive and desired result, this use of law and govern-
ment, is, as we have seen, still true of Mill. He accepted this par t of his
inheritance. But the elements entering into the machine and the way that
it was meant to operate are different. Instead of the metaphors and analo-
gies being mechanical, for Mill they are organic. Rather than forces being
aligned on dead matter (as in that other eighteenth-century development,
the accurate watch), we have the conditions appropr iate for growth. The
metaphors are horticultural. Cultivation is the key and development, espe-
cially self-development, is the end. Rather than maximising the occurrence
of a particular kind of sensation, we need the development of the whole
person. We need values that do not simply reduce to a sum of atomisti-
cally considered sensations. Above all, we need to consider what Mill calls
character.
The more valuable kinds of utility in Utilitarianism are those that dis-
tinguish people from animals. Hence Mill’s remark that it is ‘better to be
a human being dissatisfied than a pig satisfied’ (CWM, x,p.212). Mill’s
different way of understanding utility is quite specifically flagged in On
Liberty itself. Immediately after he makes the remark, quoted above, that his
ultimate appeal is to utility, he continues, ‘but it must be utility in the largest
sense, grounded on the permanent interests of man as a progressive being’.
(This is one of the few points where corrupt texts in circulation have caused
confusion; a printer’s mistake in an early edition, inserting ‘a’ before ‘man’
has been extensively copied, leading to misquotation of this remark. Mill is
concerned with the nature of people as such, not with specific individuals.)
Liberty is valued not for itself but because it has a point. So also repre-
sentative democracy in Mill’s Considerations on Representative Government.In
both cases, the forms of law or government are to be valued because they
lead to the right kind of people, and are only to be valued so f ar as this is
the case. Character is the key, here and elsewhere in Mill. So the question
frequently asked, of whether his thought on liberty is compatible with his
utilitarianism is easily answered, at least from his point of view. There is only
one overall goal, not two competing ones. This is utility. It must, however,
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be utility properly understood (‘utility in the wider sense, founded ...’).
Everything else of value (such as liberty or democracy) is of value because
it promotes this goal.
For this to work, two things are needed and Mill aims to provide them
in the crucial, central, third chapter of On Liberty, the hinge on which the
whole work turns. The first is an account of this more general value, of
character, of the most desirable kind of per son. The second is an expla-
nation of why liberty tends to promote this value. The two are linked by
energy, by activity. The more desirable sort of character is the one that tends
to arrive by self-development rather than being made. Rather than being
mechanically manufactured by others, it grows of itself. Hence the hor-
ticultural metaphors. But it only grows of itself if it has the appropriate
conditions, among which are government, and the right sort of govern-
ment. It is a government that provides, protects, and enforces liberty. It is
a government that moves by representative democracy. It is a government
that understands the line between when it should interfere and when it
should leave people alone.
8 Civilisation
The energy that Mill wishes to release by liberty brings up another aspect
of his thought, and another matter in which he thinks that the thought
of his f ather is limited. The cultivation extolled here would, it would
seem, go with civilisation, and Mill much earlier (in 1836 when he was
more detached from Bentham and his father) published an important essay
entitled ‘Civilisation’. He followed this up in his 1840 ‘Coleridge’ essay, part
of which, as we have seen, he repeated in his Logic, giving it the imprimatur
of his self-consciously major work. In this repeated part, Mill says that
the eighteenth-century thinkers ignored the problem of government. He
claims that they were so involved in working out the good that government
might do that they tended to ignore that government itself poses a problem.
(However untrue generally of eighteenth-century thinkers, this could be
taken to apply to the early Bentham who worked on many kinds of law
before he realised that he had also to work on constitutional law.) Yet Mill
himself thinks that there is a problem about whether to have government at
all, which can be put in terms of energy and character. How is government
possible without it also being enervating?
We have here, albeit as a mere sketch, Mill’s version of the state of nature
story. The original social contract problem is what people would have to
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gain by contracting into government. The problem as put by Rousseau is
how people starting with liber ty might have government yet remain as free
as before. The way that Mill specifically puts this is in terms of energy. How
may people, starting with energy, have government and still have as much
energy as before? The state of nature type of device that Mill uses to pose
the problem is the ‘savage’ which he defines (in both essays) as someone
not engaging in co-operative activity. How, with these energetic savages,
is government possible? As he puts it (in ‘Coleridge’ and the Logic), ‘the
difficulty of inducing a brave and warlike race to submit their individual
arbitrium to any common umpire, has always been felt to be so great, that
nothing short of supernatural power has been deemed adequate to overcome
it’ (CWM, viii,p.921). So no contract, or rational move will do it; we need
supernatural terror (an already existing Leviathan in heaven). An echo of
this is in On Liberty when he says, ‘there has been a time when the element
of spontaneity and individuality was in excess, and the social principle had
a hard struggle with it. The difficulty then was, to induce men of strong
bodies or minds to pay obedience to any rules which required them to
control their impulses’ (3.6; CWM, xviii,p.264). To get government and
society we have to bear down on individual will (arbitrium) and energy.
Hence, as Mill puts it particularly in this third chapter of On Liberty,we
have now run into the reverse problem of lack of energy, which he maps
at length. In the much earlier ‘Civilisation’ essay the decline of energy that
civilisation produces is similarly mapped at length. In both cases, energy is
taken to have moved from the individual to the mass, and the thought is
expressed in similar ways. Thus in On Liberty he says, ‘at present individuals
are lost in the crowd . . . it is almost a triviality to say that public opinion now
rules the world’ (3.13; CWM, xviii,p.268). Over twenty years earlier he
says, ‘the individual becomes so lost in the crowd, that though he depends
more and more upon opinion, he is apt to depend less and less upon well-
grounded opinion’ ( CWM, xviii,p.132). Both writings are concerned
with, as he puts it in the earlier one, how the ‘growing insignificance of the
individual in the mass . . . weakens the influence of the more cultivated few
over the many’ (CWM, 133–4).
So in both cases he wants to promote the weakened individual, to rebal-
ance the story by returning some power from the mass to the individual.
He wants to restore the energy of individuals in civilisation to something
more like the primitive power of the individual ‘savage’ who existed before
government. But, given that we have government (or ‘civilisation’), is this
possible? Mill thinks that it is, but only if we adopt his specific prescriptions.
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We avoid the miseries of anarchy by keeping government for its good task of
defending rights. But we restore primitive energy by keeping government
(and the public opinion of the dreadful mass) away from what individuals
wish to do when they are not harming others.
This sounds like a universal answer. Yet it has been put in terms of a
historical story (‘time was when...’). Whether Mill’s preferred form of
government is right is a function of context. Another, related, aspect in
which Mill made a point of his thought going beyond his eighteenth-
century mentors is in sensitivity to history and circumstances. What is right
varies according to time and place. Appropriate conditions are needed for
cultivation, and what flourishes in one context will wither in another. So in
On Liberty, Mill is quite specific that this is only a prescription for particular
circumstances. ‘Liberty, as a principle,’ he says, ‘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’ (1.10; CWM, xviii,p.224).
Before then people need dictators, and they are ‘fortunate’ if they find
one as good as Akbar or Charlemagne. No point savages being left free to
practise self-cultivation; they need to be fiercely pruned into shape.
9 The harm principle
Let us return to the central ground. Obviously the application of Mill’s
principle depends on how ‘harm’ is to be understood. If it means anything
affecting someone else’s interests in a negative way, then it is easy to see how
the principle follows from utilitarian principles. For if, as a generalisation,
people left alone can be supposed to advance their interests, then leaving
people alone in those matters that do not affect others will tend to improve
overall utility. (The person left alone will tend to improve their own utility
and, because this does not affect others’ utility negatively, their gain will not
be purchased at the cost of a greater loss elsewhere.) The trouble is, as Mill
himself recognised, there is no kind of action that may not affect others.
‘No person is an entirely isolated being’, he says in chapter 4 of On Liberty,
allowing that if somebody does something ‘seriously or permanently hurtful
to himself’ others such as his ‘near connections’ will also be negatively
affected (4.8; CWM, xviii,p.280).
Hence, if the principle is to have any kind of practical application, as
Mill not only wants but also illustrates in the last two chapters of the work,
‘harm’ cannot mean merely an action that affects others. Judging from Mill’s
examples, he thinks that it follows from his principle that adults who know
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what they are doing should be free to purchase drugs or alcohol, should
eat what they wish, and may engage in sexual activity between consenting
adults. Yet, as he also recognises, some of these practices may affect others.
People caring about, or depending on, a drunkard may be seriously affected
by their drunkenness. People may be revolted (and therefore upset) by
the gastronomic or sexual practices of other people. So actions that have
negative effects on others are clearly held by Mill to be allowed by his liberty
principle.
The principle therefore has to be limited in some way so that only certain
kinds of effect are suitable grounds for attempting to prevent an action by
the forces of law or public opinion. Yet, although it is clear that there has
to be some such limitation, it is not clear from the text what Mill thinks it
is, and different suggestions have been attempted in interpretation. It might
be actions that affect those interests that are so important that they can be
considered to be rights; or that affect only those who choose to be affected;
or that affect others merely in a distant or secondary way.
Soon after his first statement of the principle, he describes the kind of
action that he wishes to protect as one ‘which affects only himself, or if it
also affects others, only with their free, voluntary, and undeceived consent
and participation’ (1.12; CWM, xviii,p.225). Here the crucial element
would seem to be choice; if you consent to be affected, then you cannot
complain. But such would not be sufficient to cover the cases just described;
the drunkard’s family destroyed by his drink, the person shocked by another’s
tastes, do not choose to be engaged in the situations that upset them. Mill
adds the gloss, ‘When I say only himself, I mean directly, and in the first
instance: for whatever affects himself may affect others through himself.’
Now the cr ucial criterion seems to be the directness of the causal chain
between agent and negative effect. But this cannot be adequate to draw the
line that Mill wants; someone causing someone else to shoot a third par ty
is harming them only by indirect means but we still think that they should
not be at liberty to do it.
However this is adjudicated, by excluding indirect or chosen effects Mill
gives himself more room that might at first be expected to apply his principle
to protect kinds of conduct from interference by law or public opinion. But
he also moves in the other direction, not protecting areas that might at first
sight to fall clearly under his central principle. This is because, especially
when considering particular applications, he invokes another consideration
that limits its scope. This is that people have to know what they are doing if
they are to be considered as acting freely. Information is a utilitarian good,
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and the stress on labelling is appropriate to Mill’s general liberal stance. For
him, purchase of poisons and other harmful drugs is to be freely permitted.
But, if you are free to take poison, you must also be able to know that this
is what you are doing. Therefore, he holds, dangerous products have to be
labelled and (for the preservation of criminal evidence) their sale recorded.
This is from the last, ‘Applications’, chapter of On Liberty.
So far so good, and Mill’s central principle seems to provide a wide area
of protection. But another example in this chapter that also depends on
the importance of information could reduce it. This is the example of the
unsafe bridge. Here Mill allows an official to prevent someone crossing
it even though this is what they wish. For, as he puts it, ‘liberty consists
in doing what one desires, and he does not desire to fall into the river’
(5.5; CWM, xviii,p.294). This seems unexceptional on general liberal
principles. The person forcibly prevented from crossing does not know that
the bridge is unsafe and so may be said to be mistaken about what they
want. Therefore, by being interfered with, they are given what they really
want (not falling in the water) rather than what they think that they want
(crossing the bridge). However, the example leaves much wider scope for
interference than Mill’s principle would at first sight seem to allow. It would
permit paternalist interference in all cases where people could be taken not
really to know what they are doing. (The drug will make you dependent
and someone doesn’t want to be dependent, therefore ...)
Another example in this chapter that could have a similar extensive
limiting effect on the application of the central principle is contracts of
self-enslavement. Mill says that his principle would not permit the validity
of contracts whereby people enslave themselves. For, as he puts it, ‘The
principle of freedom cannot require that he should be free not to be free’
(5.11; CWM, xviii,p.300). Again, at first this sounds unexceptionable.
The principle is to promote liberty, so it can’t also sanction its removal.
But, again, the thought behind the example could be given a much wider
application, preventing kinds of cases that Mill explicitly wishes to permit.
(The drug will make you dependent, so you won’t be free to stop taking it.
Hence freedom to take the drug would be freedom to be unfree, which is
not real freedom. Hence ...)
10 Act and rule
Utilitarianism is a balancing philosophy. Things are not bad or good in
themselves but bad or good according to the consequences. So different
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circumstances can make what is normally a bad act into a good one or vice
versa. So Mill’s argument in the end may be purely a generalising argument.
On the whole, liberty tends to promote so many good consequences that
the presupposition has to be that we should leave people free except in those
cases where the freedom clearly has even greater negative effects. So if we
formulate rules about it, we should only act to prevent those kinds of cases
in which, as a kind, the negative effects are clearly predominant. We can say
that this is so if people were left free to rape or murder. But not (for Mill) if
they are free to speak, think, eat or drink. Sometimes such behaviour may
seriously negatively affect others. But this is not so as a generalisation; and
it is particularly so in those cases where the persons affected may choose
not to be.
Therefore another factor in making utilitarianism and liberty compatible
is that Mill is a rule, rather than an act, utilitarian. That is, instead of every
single action being evaluated individually by the overall end of greatest
utility, actions are taken by kinds, or classes, and the rules promoting or
forbidding these classes are evaluated. This means that the evaluation of
a particular action happens in an indirect, or stepwise, manner. First it is
subsumed under a rule (such as ‘do not murder’; ‘keep your promises’) and
then the rule itself is evaluated (so that, for example, the rule that people
should keep their promises might be taken to promote overall utility). So
in the present case we can understand Mill to be proposing a rule that
people should be allowed liberty except when their actions harm others.
A particular action is evaluated in accordance with this rule and the rule is
justified on utilitarian principles.
This means that Mill only has to show the general beneficial tendency
of liberty and his argument is immune to the occasional counter-example.
Sometimes, no doubt, greater liberty will lead to greater harm. But all Mill
needs to show is that this is generally not the case. As with other exam-
ples of rule utilitarianism, knowledge is important in the argument. The
rule provides general knowledge about utility and we don’t have sufficient
independent knowledge to depart from it confidently in particular cases.
A similar point about knowledge comes from the claim frequently made
against utilitarianism, that it involves excessive calculation. But if we can
rely on the rule, then we do not need to calculate afresh in ever y indi-
vidual case and so know enough for action without any such time con-
suming, or impossible, operation. The analogy that Mill uses to bring this
out in Utilitarianism is that of the nautical almanac. We do not go to sea,
Mill says, having always to calculate afresh because the calculations are
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