In order to critically examine this particular principle and its influence, it is necessary to look at the background of the principle so that it can be studied in context. John Stuart Mill developed the liberty principle in his work On Liberty (1). Mill’s definition of liberty is “pursuing our own good in our own way” and he believed it to be one of the most important “elements of well-being”. Mills conviction was that it was better that a man choose to live his life the wrong way than be made to live the right way.
Mill was influenced by Alexis de Tocqueville, whose work, Democracy in America (2) opened Mills eyes to how democracy exposed liberty to new dangers. The driving force of democracy is the will of the majority and Mill was concerned that this left every aspect of life exposed to social scrutiny and regulation, and he feared the “tyranny of the majority” (3). He felt that democracy, if left unrestrained, could pose a threat to the minority and individual autonomy.
The two great values of democracy; majority rule and minority liberty are often incompatible and Mill was one of the first to investigate this unresolved area in his essay On Liberty.
On Liberty concerned the “nature and limits of power which can be legitimately exercised by society over the individual” (4), he sought to distinguish the destructive oppression of minority views from the legitimate exercise of democratic power. Mill’s motivation was to seek an additional principle that would not leave matters to custom or popular morality.
A principle that could define the areas in which it would be legitimate for society (or the will of the majority) to exercise authority, from those areas where people should have freedom (5).
Mill hoped that On Liberty would offer potential guidelines for legislation and encourage a more tolerant culture. There are two main principles in the essay, the first being the liberty principle (or harm principle) outlined in the question. The principle advocates that the interference of liberty is only warranted where it is necessary in order to prevent harm to others. Mill qualifies the principle by saying it is only applicable to “human beings in the maturity of their faculties”, therefore excluding children or those who require care from others (6), and mentions that omissions to act having consequential harm may also be an exception.
In On Liberty Mill raised his own concerns about the principle’s adequacy before offering his second principle. The reason for questioning his own ideal is to open the area up for discussion, to attain the reader’s understanding of the problem and engage her critical attention. He is not seeking to assert the infallible truth of this doctrine. The liberty principle is blunt in delivering its message but Mill feels the two objections he raised attacking its plausibility will not affect the second principle. His first objection was how can any action be purely self-regarding?
Mill recognises the assumption that most, if not all of our actions will affect the interests of another. Mill accepted there is a right of society to ward off crimes by antecedent precautions, which runs contrary to liberty principle. He gave the example of drunkenness being justifiably prohibited where the person has a history of harming others when drunk (7), believing that the danger of harm would outweigh the individual’s right to drink alcohol. The second objection to his principle was that society may have an obligation to intervene to prevent a person from self harm.
Mill believed that government interference with the individual for paternalist reasons was indefensible, believing it can never be in the interests of the individual to suppress the exercise and development of her own abilities of critical choice, but realised that others may raise this objection. 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. Bentham 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.