150 years of On Liberty

Jonathan M Riley celebrates 150 years of J.S. Mill’s classic essay with an overview of its central arguments.

(c) Felix Bennett

(c) Felix Bennett

This year marks the sesquicentennial of the publication of John Stuart Mill’s great essay On Liberty. He says in his Autobiography (published posthumously in 1873) that On Liberty was coauthored by his wife Harriet. After she died unexpectedly in 1858, he dedicated the essay to her memory, and never made any significant revisions to it. He depicts the argument as polished and evidently believes that it merits serious philosophical consideration.

Before discussing the essay, it’s worth emphasis that Mill’s grand theory of liberal democracy is revealed for the most part in his other writings. He argues in Considerations on Representative Government (1861) that a form of constitutional democracy is the best kind of government for any civil society, for example, and he insists in Principles of Political Economy (1848) that a form of free market capitalism will remain the most expedient kind of economy for the foreseeable future, although he leaves open the possibility that a decentralised form of socialism might eventually emerge spontaneously as egalitarian reforms of the laws of private property are gradually introduced. The philosophy he defends in Utilitarianism (1861) is nothing like any version of utilitarianism as that family of doctrines has come to be understood today, and, in my opinion, is entirely compatible with liberal democratic institutions. These various key elements of his liberal democratic theory are not the main concern of On Liberty, and readers must not expect to find his views on them spelled out in the essay.

The main aim of On Liberty is to defend “one very simple principle” of individual liberty. As I understand it, the principle states that any mature individual – anyone who is “capable of rational persuasion” – has a basic moral right to complete liberty with respect to his or her “purely self-regarding conduct”. This basic right ought to be recognised and enforced as a legal right in every civil society. By implication, society has no legitimate authority to coercively interfere with the individual’s purely self-regarding choices. Government has no legitimate authority to force the individual to obey social laws that regulate self-regarding acts and omissions, for instance, and organised pressure groups have no legitimate authority to compel the individual to comply with social customs of self-regarding conduct.

To appreciate the simple principle of liberty and its important practical implications for civil societies, key ideas must be clarified. Mill is clear that by a “right” he means a claim on society to protect some important personal interest, in this case, the mature person’s interest in complete liberty with respect to self-regarding conduct. Other people have correlative duties to respect the individual’s claim, and society must employ expedient penal sanctions to compel the fulfilment of these duties by people who otherwise would fail to do so. The individual who possesses the claim to liberty should also possess powers to enforce or waive the correlative duties, as well as immunities from having his or her claim altered or abrogated by other people. The Millian right to liberty is thus a complex instrument, including powers and immunities surrounding a core claim.

Mill’s idea of liberty must not be conflated with his idea of a right. By “liberty” he means “doing as one desires”. Whereas a right is a claim to be free from coercive interference by others, liberty in his sense is spontaneously choosing to do something in accord with one’s own judgement and inclinations. Liberty is supposed to be complete or absolute with respect to self-regarding conduct: the individual is supposed to be free to choose among all of his or her feasible self-regarding acts and omissions as he or she wishes. Liberty is said in turn by Mill to be the primary source of the individual’s self-development or individuality, “one of the principal ingredients of human happiness.”

Mill indicates that by “purely self-regarding conduct” he means conduct that does not “directly, and in the first instance” harm or benefit other people, or, if it does, “only with their free, voluntary, and undeceived consent and participation”. Moreover, although he is not so clear about this, he suggests that “harm” is not mere dislike or annoyance but some form of “perceptible damage” such as physical injury, financial loss, breach of contract, injury to reputation, and so forth; just as “benefit” is not mere liking or agreement but perceptible gain or improvement of one sort or another.

Consistently with this, he tells us that self-regarding conduct can, and indeed should, affect other people’s feelings – their likes and dislikes. But it does not alter others’ personal circumstances without their consent. Conduct is not self-regarding if it forces another person to experience any perceptible damage to his or her body or property, for example, or if it compels the other to experience a perceptible improvement by consuming medicine, undergoing surgeries, or investing economic resources against his wishes.

According to Mill, society’s legitimate authority to compel obedience to rules is properly restricted to what he calls a “social” domain of conduct. Properly defined, an individual’s social conduct, or what some commentators (though not Mill) call “other-regarding” conduct, includes any act or omission that directly and immediately causes others to experience perceptible changes in their personal circumstances without their own consent and participation. An individual’s social conduct includes coercively interfering with another’s self-regarding choices. Society can legitimately use coercion against a mature individual only, Mill insists, to prevent the individual from harming others without their consent, or to punish the individual for having done so. Since non-consensual harm to others includes coercive interference with their self-regarding choices, society legitimately uses coercion to deter or punish coercive interference with another’s self-regarding choices.

The simple principle of individual liberty evidently does identify particular rights as rights which ought to be recognised and enforced by the laws and customs of every civil society, namely, the rights of self-regarding liberty and individuality. If sex between consenting adults is purely self-regarding conduct under some conditions, for instance, then adults should have a right to spontaneously engage in sex under those conditions if they wish. The sex is not genuinely consensual, of course, if one party misleads the other by concealing his or her sexually transmitted disease or by lying about his or her birth control measures. Nor is it purely self-regarding if third parties are directly and immediately harmed without their consent, such as when obligations of a marriage contract are broken, or unwanted children are brought into being and aborted. When it is purely self-regarding, however, mature individuals should be perfectly free to engage in sex with other consenting adults as they please. As Mill puts it in a diary entry dated March 26, 1854, “what any persons may freely do with respect to sexual relations should be deemed to be an unimportant and purely private matter, which concerns no one but themselves.”

To take another example, a Millian case exists that adults should have a right to freely consume drugs and alcohol in the privacy of their own homes or clubs because such consumption is purely self-regarding conduct. This does not preclude expedient social regulation of the sellers and marketers of drugs and alcohol, because trade is not self-regarding conduct but rather social conduct: sellers may harm consumers without their consent by selling defective products, for example, and marketers may force one another out of business as a result of their competitive practices. But an expedient scheme of social regulation must not amount to social prohibition of any sale of the drugs and alcohol: such a ban would violate the mature consumer’s right to freely use these products in self-regarding ways.

Mill recognises that self-regarding conduct typically will, and should, have an impact on others’ feelings, including their convictions and likes or dislikes respecting the agent of the self-regarding conduct. Indeed, he emphasises that certain “natural penalties” are inseparable from self-regarding liberty because other people have equal rights to freely avoid the company of any adult whose self-regarding conduct displeases them: “We have a right … to act upon our unfavourable opinion of any one, not to the oppression of his individuality, but in the exercise of ours … [A] person may suffer very severe penalties at the hands of others, for faults which directly concern only himself.”

But others’ mere dislike never justifies coercive interference with an individual’s self-regarding liberty. Those who are merely upset by the self-regarding conduct have equal rights to freely avoid the agent and warn their acquaintances against him. Their acting on their aversion does not injure them without their consent, though it may result in harm to the agent of the self-regarding conduct: “the natural penalties … cannot be prevented from falling on those who incur the distaste or the contempt of those who know them.” Given that all parties involved form their own beliefs and preferences without coercive interference, these consenting adults are reasonably held responsible for any acts and omissions they choose to take based on these feelings.

Moreover, it cannot be overemphasised that self-regarding conduct can directly and immediately harm others as long as they consent to the damage, whatever conceptions they may have of their vital interests as human beings. Strictly speaking, Mill’s concern is not to prevent perceptible damage to others but rather to prevent harm inflicted on them without their consent. As he indicates, society does have legitimate authority to check in non-coercive ways whether people are genuinely consenting to participate in activities that directly and immediately cause set-backs to their personal circumstances (apart from their feelings). This is so even when others are not involved but the individual is inclined to engage in self-injurious behaviour. Thus, public officials may take a number of expedient steps, including: discussing with any individual whether he really knows what he is doing and even attempting to persuade him to abandon potentially self-injurious courses of conduct; posting signs, product labels and other warnings of potential injuries; and even demanding that he provide formal evidence of his wishes before allowing him to venture on some highly dangerous course of action. Once society has assured itself that an agent is genuinely consenting to self-harm, however, that is the end of the matter: society has no proper authority to coercively interfere with the self-regarding conduct that is the source of the consensual harm.

Society’s authority to scrutinise whether consent to self-injury is genuine shows that the self-regarding sphere is not properly a matter of social indifference. Moreover, if society determines that an individual’s consent is not really “free, voluntary and undeceived”, then it may resort to coercive interference, if necessary. If the individual is being misled by others, for example, then society has a right to employ coercion to prevent the other people from inflicting grave harm on him without his consent. Similarly, if an individual is found to be a child or otherwise incompetent, then society can rightfully interfere with his own behaviour to prevent him from harming himself unintentionally. Strictly speaking, the interference with self-injurious behaviour is not coercive in these cases because the behaviour is not truly intended by the individual. Rather, the individual is being forced by others or by his own incompetence to engage in unintentional behaviour that carries a definite risk of harm to self. He does not genuinely consent to engage in such behaviour.

Society may also reasonably decide that genuine consent is simply impossible in some situations such as slavery contracts or even marriage contracts in perpetuity, in which case it may enact into law its disapproval of such contracts, its refusal to enforce them, and its guarantee that one party will not be permitted to force another to keep to the terms of such contracts. These measures do not imply, however, that practices like voluntary slavery and marriage without possibility of divorce will be completely stamped out. Such practices may well persist, despite society’s disapproval, until all individuals learn that they have better ways to manage their self-regarding affairs.

Mill argues that society can legitimately use coercion against an individual only to prevent the individual from harming others without their consent. But it must not be thought that prevention of non-consensual harm to others, though necessary, is always sufficient to justify social coercion. As he emphasises, it may be generally expedient to permit people to freely compete to some extent even though the losers will be harmed without their consent, because the social benefits of free competition may often outweigh the harms. Such a laissez-faire approach is typically held to be generally expedient with respect to trade and speech, for example, although this does not mean that sellers and speakers should have complete liberty to market products or opinions as they please no matter how severe the harms caused to others without their consent.

Social coercion can also be legitimately used to prevent people from distributing benefits to others because the distribution may put some (perhaps many) at a relative disadvantage and thereby harm them without their consent. Nevertheless, this does not mean that the prospect of such relative disadvantage always justifies coercion to prevent it. Rather, general expediency may dictate permitting some individuals, including even the political authorities, to harm others in this way without their consent in order to provide large social benefits. Mill allows, for example, that the authorities should sometimes raise tax revenues to fund schools, museums, or other public goods that many people oppose and will not voluntarily help establish with private funds. Even so, he frowns on government provision of these goods and services in a civil society except as a last resort, because he wants to forestall the growth of a large-scale central bureaucracy that smothers independent individual initiative.

The argument for a basic right to complete self-regarding liberty does not presuppose that everyone must agree that he personally has vital interests in liberty and individuality. Mill recognises that many members of civil societies may not have any desire to do as they please in self-regarding matters, so that reasons other than the promotion of their own individualities must be supplied to make the ethical case for the basic right. What social benefits can the many expect if everyone is given the right to absolute self-regarding liberty? Mill points to such benefits as: new and better ideas, practices and technologies discovered by the few individuals of “genius” through their research and “experiments of living”; more effective government as a result of critical advice supplied by the intellectual and moral elite; the encouragement of personal diversity and tolerance as opposed to a totalitarian uniformity; and the prevention of a “despotism of custom”, which he associates with social stagnation and decline. Evidently, he believes that every mature individual, whatever his conception of good, can appreciate these sorts of social benefits. The argument does not presuppose that everyone views his own good in the same way, such that vital interests in self-regarding liberty and individuality are seen by all as principal ingredients of personal well-being.

In On Liberty, Mill concentrates on making the case that every civil society should recognise and protect an empirically observable “purely self-regarding” domain of conduct as a minimum domain of absolute liberty for every mature individual. His radical step is to argue for a basic right to complete self-regarding liberty as an essential component of civil and political liberty.

Jonathan M Riley is professor of philosophy at Tulane University and the author of J.S. Mill: On Liberty (Routledge)

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