N.B.: I dedicate this blog post to our nation’s military veterans.
Does the law-liberty dilemma have a solution? One possible approach to the paradox of politics is to replace liberty with some other master criterion, and to this end, we have already seen how Jeremy Bentham swaps out liberty for utility (see here) and how John Stuart Mill replaces utility with progress (here). But I have yet to mention Mill’s most “carefully composed” and influential work of all: On Liberty. [1, 2] Why is Mill’s extended essay so central to the law-liberty dilemma? It’s because On Liberty makes two major contributions to the paradox of politics: (a) Mill brings liberty back into the utilitarian fold, and (b) he presents a Kantian picture of liberty.
First off, what do I mean by a “Kantian picture of liberty”? Simply put, Mill follows Kant in focusing on intellectual liberty as opposed to economic freedom (e.g. private property, pursuit of profit, etc.). [3] For Mill (like Kant), liberty means first and foremost freedom of thought and freedom of expression, and these values are so central for Mill that he creates a sort of moral and legal safe harbor for words, thoughts, and even actions, a/k/a the harm principle or what I prefer to call “Mill’s proviso”:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion…. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. (Mill, On Liberty, pp. 21-22, emphasis added) [4]
In other words, Mill draws a hard and fast red line, so to speak, in the shifting sands of majoritarian politics and state action: people should be free to think, speak, and act as they please as long as no else is harmed. (See generally Strauss & Cropsey 1987, pp. 796-800.) As a result, intellectual liberty is to a certain extent exempt from the utilitarian calculus: mere offense or moral disapproval of someone else’s words, thoughts, or actions are not sufficient grounds for legal regulation or even moral coercion!
Alas, Mill’s proviso poses more questions than it answers. How, for example, should we define “harm”? And however harm is defined, is the harm principle consistent with utilitarian theory? On the one hand, Mill claims that the best way of maximizing overall happiness is by limiting government interference with individual liberty. But at the same time, Mill’s proviso imposes a limit or outer bound on the utility criterion: people not only have the right to be wrong; people also have the right (liberty) to produce negative utility to themselves and even to others, i.e. in cases involving mere offense or moral disapproval!
Also, does the harm principle promote or retard Millian progress? By way of example, what if an action that produces a given harm also produces more utility on balance? Shouldn’t a good utilitarian allow such harms to take place? Mill has faith that allowing people the individual freedom to make their own decisions, think for themselves, and express themselves freely will ultimately produce “progress”, but what if this faith is misplaced? What if the relationship between liberty and progress were an inverse one? [5]
But, as we shall see in my next post, the biggest blind spot in Mill’s proviso is this: who gets to decide what constitutes a harm? (To be continued …)
prior probability 