John Stuart Mill on The Limits of Individual Liberty

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John Stuart Mill on the Limits of Individual Liberty

John Stuart Mill

A man is convicted in a court of law for the crime of murder.  He is sentenced to life in prison.  Another man in ancient times named Socrates, is convicted for not believing in the official gods of the city-state in which he lives.  He receives the penalty of death by poison.   Four hundred years later, a man named Jesus of Nazareth is nailed to a cross and killed for the crime of heresy.  Two thousand years later, a young man in Montana is robbed, pistol-whipped and tortured by three other men when they learn that he is gay.  A woman in England is shunned by the Muslim community in which she grew up for marrying a man who is of a different religion.  Another woman in New York is verbally bullied on social media for her appearance.  She commits suicide.

The object of Mill’s essay On Liberty is “Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual” (1).

The questions that Mill asks are about moral justification. What are the justifiable limits to the exercise of civil and social power over the individual?  When ought society use civil and social power to intervene and when ought it not intervene?  Or, from the perspective of the individual:  What is the justifiable limits of individual liberty?  How much liberty should an individual have in a civil society? 

Society has two ways of exercising its power over the individual:  Civil Power (“physical force in the form of legal penalties”) and Social Power (“the moral coercion of public opinion”).  The man who given a life sentence for murder and the man who is executed for the crime of not believing in the official gods have both been subjected to civil power.   The gay man who is tortured, the woman who is shunned and the young woman who is bullied are all the victims of social power (although in the case of the young gay man, the power used against him goes far beyond “moral coercion”).

The questions posed by Mill are as important and relevant now as they were when Mill wrote On Liberty.  In all countries it is justifiable to use physical force in the form of legal penalties for the crime of murder, but there are some countries who also believe it to be justifiable to use civil power against those who refuse to conform to the official state religion, and to practices that are commanded by that religion. Although there are many countries in the Western world that pride themselves on their social toleration of gays, lesbians and others in the LGBTQ communities, there are still many instances in the West of intolerance of non-conforming attitudes, appearances and lifestyles.  The intolerance is expressed not only in shunning (which often leads to depression and suicide), but sometimes in physical force.  The rise of social media in the twenty-first century has also brought with it an alarming rise in hateful remarks, bullying and social shaming, fueled by anonymity. 

1.1 Tyranny of the Majority

Mill observes (1-3) that ancient concerns about individual liberty were mostly confined to efforts to protect against the tyranny of rulers who had either inherited their power or who had achieved it by conquest.  The aim of those who resisted, Mill writes “was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.”  They accomplished this either by obtaining a recognition by the ruler of certain “political liberties or rights,” or by requiring that important acts of the ruler be endorsed by her subjects or by representatives of her subjects.

On June 1, 1215 the barons of England rebelled and pressured the king into signing the Magna Carta, a list of 63 clauses drawn up to limit John's power. “By declaring the sovereign to be subject to the rule of law and documenting the liberties held by “free men,” the Magna Carta would provide the foundation for individual rights in Anglo-American jurisprudence.” (D.M. Stenton)

The next step in the long effort to achieve individual liberty was to place political power in the hands of the people.  As long as it was understood that the people were sovereign, they could either retain the power unto themselves (“direct democracy”) or periodically delegate legislative and executive power to others (“representative democracy”). 

This was the time when, “in the progress of human affairs,” men ceased to think it a necessity of nature that their governors should be an independent power opposed in interest to themselves (2).  The governors or rulers were now identified with the people, and the interest and will of the rulers was no longer opposed to but identical with the will and interests of the people,

This identity of interest and will led to the idea that there was no longer the threat of tyranny.  How, it was asked, could the nation tyrannize over itself?  Where there is self-government, it was said, “the people have no need to limit their power over themselves” (3).

This notion, Mill claims, is dangerously false. It completely fails to recognize the insidious phenomenon of “the tyranny of the majority.”

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised, and the ‘self-government spoken of is not the government of each by himself but of each by all the rest.  The will of the people, moreover, practically means the will of the most numerous or the most active part of the people the majority, or those who succeed in making themselves accepted as the majority; …and in political speculations ‘the tyranny of the majority’ is now generally included among the evils against which society requires to be on guard (4).

There are different kinds of majorities and different ways they can suppress and dominate a minority.  There are the obvious cases in which a majority of citizens in a democracy have created legislation to restrict the liberty of a minority (for example, segregation laws enacted in most southern states after the Civil War, restricting the freedom of adult African-Americans to vote and the freedom of their children to attend school with white children).  There are less obvious cases in which there is a tyranny not of law, but of “prevailing opinion and feeling.” Mill writes that the latter form of tyranny is “more formidable than many kinds of political oppression” (4).

…since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.…the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from then, to fetter the development, and, if possible prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own (4-5).

One example of the tyranny of the “prevailing opinion and feeling” is religious intolerance.  The victims of this are usually atheists.

Nearly a majority of Americans would, if they had their way, deny freedom of speech to those who are against all religions and churches. For many Americans, atheism is an illegitimate political position and must therefore be prohibited from entering the marketplace of ideas (Gibson, 2009).

After the September 11, 2001 attacks on the Twin Towers in New York, there have been many reports of rising amounts of intolerance toward Muslims and people who “look like” a Muslim.

We have reached the point where a head scarf, a full beard or even a family name engenders so much animosity – an animosity that is leading to hate crimes and anti-religious and ethnic violence. Most troubling is that the volume and frequency of these incidents seems to be increasing (Zaffar, 2016)

Non-conformity is defined as “deviating in (appearance and/or behavior) and/or lifestyle relative to a group of humans with normative standards.”  The key phrase here is “relative to a group

Ultimately nonconformity is relative to the norms of a group and if your group is small enough then you may be conforming to the norms of the small group but not conforming to the norms of a larger group or society in general. (S. Bapir-Tardy, 2016).

There are many examples of ways that majorities will use negative attitudes of disapproval and hate to force conformity to social norms. Examples of non-conformist looks, behavior or lifestyles include: A cross-dressing man who wears skirts in public; a politician, speaking to a large audience, mimics a shaking cripple; another man who constantly tells demeaning sexist jokes in the presence of women. 

The atmosphere became even more toxic in the United States after the 2016 general election.  There was a significant rise in the number of hate groups (defined as groups that “have beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics” Southern Poverty Law Center).  Some of these groups emerged from anonymity, probably because they sense that their views are now shared or at least tolerated by a wider audience.  The August 12, 2017 march in Charlottesville, Virginia, sponsored by white supremacists, and the resulting violent clashes, is only one of hundreds of examples of contemporary racist intolerance and discrimination. (CBS News).

1.2 The harm-to-others principle

If it is agreed that there ought to be protection against “the prevailing opinion and feeling,” the question is where to place the limit to “the legitimate interference of collective opinion with individual independence” (5).

To this question, Mill gives an answer in the form of “one very simple principle,” stipulating the conditions under which society is justified in interfering with individual liberty:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection… [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others.

Mill does not give a name to this principle, but later commentators are nearly unanimous in calling it either the Harm Principle or, more accurately, the Harm-to-Others [HO] Principle.

Mill uses the words “self-protection,” “prevent harm to others” and “conduct which concerns others” to indicate the conditions under which society can justifiably interfere with a person’s liberty.  The phrase “conduct which concerns others” seems much too broad because it could be construed to allow one person to interfere with another because they are worried (“concerned”) about something that is not obviously harmful, for example, Jacob’s mother is concerned that he is still unmarried at the age of 30.  The word “self-protection” seems too narrow because it could be construed to mean that one person can interfere with the conduct of another only if they are personally threatened.  Mill would not advocate for either of these interferences with individual liberty.  It is probably for these reasons that the phrase “harm-to-others” has become the favored way of referring to Mill’s formula for justifiable intervention.

1.3 The harm-to-self principle

When Mill writes that harm to others is “the sole end” for which a society can use compulsion and control over the individual he means to exclude other ends that have been or might be used to justify this control.  The first and most prominent principle that refers to alternative ends is known as the Harm-to-Self [HS] Principle. 

HS does not deny that harm to others is one justification for limiting liberty. But it does that it is the only justification.  Thus, a defender of HS might make the following addition to the short list of liberty-limiting principles:  A second purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent him from doing harm to himself.

The use of legal power to either prevent someone from doing harm to herself is what is known as legal paternalism (LP).  The word “paternalism” has its origin in parent-child relationships in which the parent has the moral and legal authority to prevent their child from doing harm to herself.  LP is used as a justification for laws requiring adult motorcyclists and their passengers to use certified headgear, and laws requiring motorists and their passengers to wear seatbelts.  Paternalistic laws are also enacted to prohibit the use of certain mind-altering drugs, for example, marijuana (but not wine or spirits). 

But Mill soundly rejects HS in all of its forms (including LP).  Although it is justifiable to exercise legal or social power over a member of a civilized community 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.  These are good reasons for remonstrating with him, or reasoning with him or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise.  To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of conduct of anyone for which he is amenable to society is that which concerns others. In the part which concerns only himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. (9)

If a large contingent of neo-Nazis peacefully parade through the middle of town, holding signs with the swastika symbol, while chanting anti-Semitic and racist slogans, we cannot have them arrested, beat them up, or even socially shame them in an attempt to compel them to stop, no matter how angry and upset we are about their behavior.  But we can stand up and try to reason with them, persuade or even beg them not to do such terrible things in public.   Mill contends that compulsion, in any form, is always morally unjustifiable as a response to conduct which is either not harmful to anyone, including oneself, or is harmful only to oneself.

1.4 Children, the mentally handicapped, and backward societies

Mill adds the proviso that this doctrine “is meant only to apply to human beings in the maturity of their faculties.”  It does not apply to children or other persons “who are still in a state to require being taken care of by others.” 

Mill was a key inheritor of the liberal justification of Empire.  Like his father, he was a career employee of the East India Company. In this vein, Mill goes on to declare in the same paragraph, “despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end.  Liberty, as a principle, has no application to any state of things anterior to the time when mankind has become capable of being improved by free and equal discussion.”

Mill also writes that he will also writes that he will “leave out of consideration those backward states of society in which the race itself may be considered as in its nonage,” implying that there are such “backward states” or “races.”

The last sentence of the above quote explains why Mill would void all legislation based on the HS principle.  It is because of his strong belief that those with the capacity to be mentally and morally improved by free and equal discussion should not be interfered with by legal or social restrictions.

1.5 Utility as the ultimate justification of the harm-to-others principle

It should come as no surprise that Mill would use “harm to others” as a justification for civil and social intervention in human conduct.  The rule that tells us not to harm others is among those moral rules that collectively are “higher in the scale of social utility and are therefore of more paramount obligations, than any others” (Utilitarianism, ch. V, 62).  In fact, the rule is so high in the scale of social utility that we commonly use the words “unjust” and “violation of a right” to evaluate an incident in which one person does harm to others. 

Although the obligation not to harm others is high in the scale of social utility, conflicts still exist which can only be finally resolved by an appeal to the utilitarian principle (to promote the greatest balance of pleasure over pain).  This is because there is more than one way to harm others.  There is not only a rule or obligation not to harm another in their life, but also a rule or obligation not to harm another in their liberty.

The moral rules which forbid mankind to hurt one another (in which we must never forget to include a wrongful interference with each other’s freedom) are more vital to human well-being than any other maxims… (Utilitarianism, 58).

These two rules may come into conflict, for example, when civil society restricts the liberty of individuals by punishing and threatening to punish those who attempt to assault or kill others.  When we calculate the pain of those who are harmed by the conduct of others and we balance it against the pain suffered by those whose desire to do harm is legally thwarted, Mill assumes that the calculation will always come out in favor of those who are harmed.  We have a right to liberty and a right to life, but one is not justified by using one’s liberty to take a life, unless in self-defense. 

1.6 Utility as the ultimate justification for rejecting the harm-to-self principle

While placing prohibitions on harm to others “high in the scale of social utility,” Mill finds only disutility in legal and social attempts to interfere with individual liberty for a person’s “own good.” 

In defense of this absolute prohibition, Mill begins by giving a brief outline of the kind of conduct that he insists must be protected from intervention.  He divides them into three spheres:

1. Liberty of conscience, comprising “liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological, and the liberty of expressing and publishing opinions…” (11).

2. Liberty of tastes and pursuits, comprising “framing the plan of our life to suit our own character, of doing what we like…so long as what we do does not harm [others].” (12)

3. Liberty of combination among individuals, comprising “freedom to unite for any purpose not involving harm to others; the persons combining being supposed to be of full age and not forced or deceived.” (12)

Mill says of all three spheres of liberty that:

No society in which these liberties are not, on the whole, respected is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. (12)

Thus, a society that regards itself as “completely free” must not only allow people to combine for the purpose of stamp collecting, but also for the purpose of publishing and disseminating anti-Semitic literature.  It must not only allow people to pursue their interest in birds and combine with others into bird watching club, but society must also not interfere with those who, like the “Naked Guy” at the University of California, Berkeley, want to walk naked in public because, like him, they also regard clothes as “a symbol of elitism and repression” (Goldston, 2006).

The disutility of prohibitions on any of the three liberties enumerated above is encapsulated in this single sentence:

Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest. (12)

 What does mankind gain in both cases and how is the gain for the former greater than the gain in the other?  The answer to these questions is not achieved by doing a simple utility calculation, nor does Mill tell us the how to do the calculation.  However, it is important to recall from Utilitarianism, that happiness is not to be identified with “a continuity of highly pleasurable excitement.” (Mill, Util., 12). Instead, Mill defines a happy life as

…an existence made up of few and transitory pains, many and various pleasures, with a decided predominance of the active over the passive, and having as the foundation of the whole, not to expect more from life than it is capable of bestowing (Mill, Util., 13)

This still does not lead to the conclusion that “suffering each other to live as seems good to themselves” produces a greater balance of pleasure over pain than the balance produced by “compelling each to live as seems good to all the rest.”  It is not inconceivable that the balance in each case could be the same, or that the balance could be on the side of the compelled group.  Since Mill produces no evidence to prove what appears to be an empirical claim, we must refrain from judgement.

Perhaps the best way to rescue Mill is to recall his claim that “some kinds of pleasure are more desirable and more valuable than others.”  The standard that Mill uses to place mental pleasures as superior to physical pleasures is that of “competence acquaintance.”  It is on application of this standard that the “manner of existence which employs the higher faculties” is preferable to one that employs the lower faculties, and thus is more desirable than the former -- because those who are have had experience of both kinds of life prefer it. 

Better to be a Socrates dissatisfied than a fool satisfied…And if the fool…is of a different opinion, it is because [he] knows [his] own side of the question.  The other party knows both sides. (Mill, Util., 10)

From what we know about Socrates from the dialogues of Plato, it seems safe to assume that having had experience of both systems, Socrates and others who have had the same experiences would vote to reject a paternalistic system that compels each person to live as seems good to the majority.  It is this that Mill means when he writes that he is appealing to utility “in the largest sense, grounded on the permanent interests of man as a progressive being.”  A utility calculation that counts only the votes of those who live and prefer a manner of existence employing the higher faculties will want to nurture, not stifle the promise of satisfying these interests.  They will want liberty to flourish. This can only be accomplished in a system that gives individuals absolute freedom to pursue the liberties of conscience, tastes and pursuits, and freedom of combination. 

Mill will have more to say about this, as it relates to human development and self-realization in chapters II and III.

1.7 The harm-to-others principle and positive acts of beneficence

Society may not only rightfully compel persons to refrain from doing harm, but it may also rightfully compel “positive acts for the benefit of others” (10).  Examples of the latter include giving evidence in court, bearing one’s fair share in the defense of the country, and performing “certain acts of individual beneficence, such as saving a fellow creature’s life or interposing to protect the defenseless against ill-usage” (10).

If we are to fit this into HO, then “doing harm to others” implies not only causing harm to others by an act of commission (for example, assault, murder, theft), but it also implies not preventing harm to others.  We are required to give evidence in court because not giving evidence would be harmful to the judicial goal of achieving a just outcome of the case.  We are required to bear our fair share in defense of the country because not to do so would put an unjust burden on those who do their fair share and on the protection of the country itself.  We have a duty to save a fellow creature’s life because if we have no such duty they may suffer the ultimate harm – death. 

Mill is aware of the objection that refraining from saving someone’s life is not the moral equivalent of killing someone.  If a small child is drowning in a pool and a passerby decides not to save her, even though he could do this without causing harm to himself, it is still true that if she dies, he did not kill her.  He defends his inaction by saying “My duty is not to kill.  I have no duty to rescue.”

This objection ignores the fact that Mill is a utilitarian.  The descriptions of what happened as “killed her” or “did not save her” are irrelevant.  All that matters is that death is the consequence of a failure to save the child.  It is the same consequence (death) that would have resulted if the passerby had actively drowned the child.  It should come as no surprise that the utility calculation that demands that we ought to refrain from killing others is identical to the utility calculation that demands that we ought to save or attempt to save others when we can accomplish this without doing harm to ourselves (we must avoid situations in which the attempt to exercise control produces “other evils, greater than those which it would prevent”).

Minnesota and Vermont are the only states in the U.S.A. that have “good Samaritan” laws requiring citizens to help those in need.  Other states give immunity from liability to medical professionals who give treatment in emergency situations, and to private citizens who call for emergency care and administer rescue drugs to persons who have overdosed opioids. (National Conference of State Legislatures, 2017)

When we combine Mill’s acceptance of an obligation to perform “certain acts of individual beneficence” with his earlier rejection of the harm-to-self principle, both endorsed on utilitarian grounds, we may wonder why it would not be beneficent to regulate or prohibit activities that might cause serious harm or death, for example, requiring a doctor’s prescription as a condition for obtaining certain drugs for one’s own use, prohibiting persons from climbing the steep face of a mountain cliff without climbing gear, or closing beaches to all swimmers when sharks are sighted?  If utility is our guide, why don’t these interventions in individual liberty promote a greater balance of happiness over unhappiness than non-intervention?

1.8 The sphere of actions affecting only oneself

A second objection to the harm-to-self principle is that all or almost all of everything a person does affects others in some way.  The man who dies of an overdose on opioids might have harmed only himself – until we learn that he leaves behind two small children who were in his care.  The woman who dies in an automobile accident because she failed to wear a seatbelt might, for the same reason, have harmed not only herself, but others as well.

How, then, are we to draw a distinction between doing harm to oneself and harm to others?  Is there a bright line between these harms that can guide a legislator?  Mill admits “whatever affects himself may affect others through himself” but promises that this objection will “receive consideration” in a future chapter (11).

1.9 Questions for thought and discussion

1. Mill says that the tyranny of the majority in a democracy is as repressive as the tyranny of dictatorships.  Why does he say this?  Do you agree?  Do democratic governments have any ways to prevent majorities from tyrannizing minorities that dictatorial regimes do not have?

2. Mill writes that the tyranny of social “opinions and feelings” does as much or even more damage to individual liberty than the tyranny of repressive laws.  What are some examples of social tyranny?  How has the rise of social media fueled this tyranny? Is there any way you can think of that social tyranny can be stopped?

3. Why would utilitarians endorse HO and reject HS?  If you are acquainted with other ethical theories (for example, John Locke’s natural law theory), do you think they would arrive at the same conclusion about HO and HS?

4. Is it logically possible to expand the harm-to-others principle to require conduct that benefits others (e.g. rescuing a drowning child), while at the same time rejecting the harm-to-self principle?

5. Is there a plausible distinction you can make between acts that harm others and acts that harm only oneself?  Explain.

6. The first amendment to the U.S. Constitution says, “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Is this consistent with HO and HS?

[This post is taken from my book Understanding John Stuart Mill: The Smart Student's Guide to Utilitarianism and On Liberty*   It is my commentary on Mill's discussion in On Liberty of  the importance of the distinction between 'harm to others' and 'harm to self'.

 *The link will take you to my website.  You can navigate from there to an image of the Mill book cover.  Click on the book cover for more information.]

References

Bapir-Tardy, Savin. 2016. The Practice of Shunning and Its Consequences. Sedaa-Our Voices. http://www.sedaa.org/2016/11/the-practice-of-shunning-and-its-consequences/

CBS News. 2018. White supremacist rallies lead to violence. https://www.cbsnews.com/pictures/white-supremacist-rallies-in-charlottesville-virginia/

Goldston, Linda. 2006 and 2016. Berkeley ‘naked guy’ had a charismatic life and a tragic death. East Bay Times. https://www.eastbaytimes.com/2006/11/15/berkeley-naked-guy-had-charismatic-life-and-a-tragic-death-2/

National Conference of State Legislatures, 2017.  Drug Overdose Immunity and Good Samaritan Laws. http://www.ncsl.org/research/civil-and-criminal-justice/drug-overdose-immunity-good-samaritan-laws.aspx

Southern Poverty Law Center. 2016. Hate Groups: State Totals. https://www.splcenter.org/hate-map

Stenton, Doris Mary. 2018. Magna Carta: History, Summary and Importance. Encyclopedia Brittanica. https://www.britannica.com/topic/Magna-Carta