Mill on liberty, speech, and the free society

Philosophy and Public Affairs

Volumn 29, Issue 3, 2000, Pages 276-309

  Jacobson, Daniel ^a  

^a NONE

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EID: 3042740303     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2000.00276.x     Document Type: Article

References (68)

1. The term 'harm principle' was coined by Joel Feinberg in Harm to Others (New York: Oxford University Press, 1984). While Feinberg has developed a powerful and detailed liberal approach to the law, the effects of this term have been less felicitous, as Feinberg's notion of harm is idiosyncratic and potentially misleading. In particular, subsequent writers have commonly attributed a harm principle to Mill without adopting Feinberg's conception of "harming as wronging" (see esp. p. 34); hence, they typically take any harm to provide reason for interference with liberty.
2. Mill, On Liberty (London: J. W. Parker, 1859). References to this work will be given in the text simply as (chapter, paragraph).
3. Individuals also have certain positive or claim rights in the free society (e.g., to an education - see V, 12), in addition to the negative or liberty rights manifest in DL, which will be my focus here.
4. The essentials of the view I am calling the traditional interpretation is identified in similar terms by John Gray in Mill on Liberty: A Defence, 2nd ed. (London: Routledge, 1996). The phrase 'Doctrine of Liberty' is also borrowed from Gray, although he uses DL to refer quite broadly to "the various principles stated and defended in On Liberty" and yet thinks that it "is silent about the proper limits of state activity" (p. 17), whereas my usage differs on both points. While Gray's interpretation is in some respects quite similar to mine, there are substantial differences between our readings.
5. Any adequate treatment of Mill's conception of harm would also have to include danger that does not actually issue in injury.
6. DL is stated as claiming that there is a "substantial" sphere of liberty in order to avoid its trivialization. In particular, Millian liberalism requires a sphere of liberty substantial enough to include free speech.
7. See David Lyons, Rights, Welfare, and Mill's Moral Theory (New York: Oxford University Press, 1994);
8. and D. G. Brown, "Mill on Liberty and Morality," The Philosophical Review 81 (1972): 133-58.
9. Mill does not, of course, condemn the concept of immorality itself; indeed, he is here claiming that censorship is wrong. Rather, he condemns its application to speech and other self-regarding action. Indeed, the fact that Mill refuses to apply moral sanction to opinion is strong evidence that he takes such speech to be self-regarding, which will be the central claim of this section. Consider that Mill claims, analogously, that moral vices are "unlike the self-regarding faults previously mentioned, which are not properly immoralities . . . [unless] they involve a breach of duty to others" (IV, 6).
10. In his treatment of this argument, David Lewis wavers between an exegetical error (that Mill aspires to convince all disputants, even Lewis's imagined Inquisitor) and a tendentious exaggeration (that, since the Inquisitor cannot be convinced, only the likes of a Milquetoast can be). See Lewis, "Mill and Milquetoast," reprinted in Gerald Dworkin, ed., Mill's On Liberty: Critical Essays (Lantham: Rowan & Littlefield, 1997).
11. If there is no such thing as free speech, as Stanley Fish declares, because speech rights must have some limits, then there is no such thing as flat, straight, or empty either, since nothing (actual) is absolutely flat. Nor is there freedom of anything, since no freedom is without limits. A dose of semantic contextualism is the cure for this philosophical malaise. See Fish, There's No Such Thing as Free Speech (New York: Oxford University Press, 1984).
12. Lyons thus praises Brown for "not allow[ing] his interpretation of Mill's principle of liberty to get bogged down in discussion of Mill's distinction between 'self-regarding' conduct (a term used by Mill) and 'other-regarding' conduct (a term not used by Mill)" (Lyons, Rights, p. 91). Lyons's point about Mill's usage is not telling, however, as Mill simply has another term for other-regarding acts. He calls these 'social' acts - a potentially misleading term which we are better off avoiding, since Mill clearly thinks that some acts that are social in the sense of involving many people are nevertheless self-regarding.
13. See, e. g., Lewis, "Mill and Milquetoast";
14. Jonathan Riley, Mill on Liberty (New York: Routledge, 1998);
15. and Frederick Schauer, Free Expression: A Philosophical Enquiry (Oxford: Oxford University Press, 1982).
16. Even Gray seems to hold this view (see Mill on Liberty, p. 106), despite his acknowledgement that, for Mill, "expressive acts enjoy a privileged immunity from liberty-limiting restrictions on harm-preventing grounds" (p. 104).
17. Lewis thus writes, "if an opinion is not held secretly, but is expressed in a way that might persuade others, that is other-regarding: both because of the effect that the opinion may have on the life of the convert and because of what the convert might do, premised on that opinion, which might affect third parties" ("Mill and Milquetoast," p. 5).
18. See esp. J. C. Rees, "A Re-reading of Mill on Liberty," reprinted in John Gray and G. W. Smith, eds., J. S. Mill - On Liberty in Focus (New York: Routledge, 1996).
19. See also C. L. Ten, Mill on Liberty (Oxford: Clarendon Press, 1980);
20. and Gray, Mill on Liberty, p. 57.
21. See Mill's discussion of the parts of happiness doctrine and the decided preference test in Utilitarianism, reprinted in Collected Works of John Stuart Mill, vol. 10, J. M. Robson, ed. (Toronto: University of Toronto Press, 1977), esp. p. 211.
22. th ed. (Indianapolis: Hackett, 1981), p. 478.
23. This seems to motivate Riley's claim that public acts of speech in general fall into the other-regarding class, although it seldom happens to be expedient to restrain them (see Mill on Liberty, p. 71).
24. Thus, Schauer claims that: "A close reading of On Liberty reveals that, as between self-regarding and other-regarding acts, Mill treats speech as a member of the latter category. His chapter 2 is an attempt to demonstrate why speech is a special class of other-regarding acts immune, for other reasons, from state control" (Free Expression, p. 11, his emphasis). But he neither offers nor cites any such close reading. And, although the italicized clause is the best evidence for Schauer's case, in the very same sentence Mill states that the liberty of ex-pression rests in great part on the same reasons that justify the liberty of thought.
25. Riley's gloss of (I, 12) is: "Strictly speaking, expression is legitimately subject to social control, [Mill] seems to be saying, since it is conduct which can harm others. Even so, society should 'almost' never bother to exercise its control because laissez-faire is virtually always generally expedient here" (Mill on Liberty, p. 49). But this 'almost' is gratuitously repositioned, distorting Mill's meaning. Mill says that the liberty of speech is almost as important, not almost as exceptionless, as the liberty of thought. In fact, Mill's view is that laissez faire is (merely) typically expedient with regard to trade, not speech; and that the doctrine of free trade does not rest, as free speech does, on the principle of liberty.
26. As Lewis asks, rhetorically, "What kind of argument is this? Other-regarding conduct is not in general protected by reason of inseparability from private thought, as will be plain if someone's religion demands human sacrifice" ("Mill and Milquetoast," p. 5). But the analogy here - between acting on a belief by expressing it publicly and acting on it by performing a human sacrifice - is precisely what Mill rejects in classifying the expression of opinion with thought rather than with action.
27. I am indebted to David Hills for this way of putting the point and for drawing my attention to the Utilitarian origins of this idea in the work of William Godwin.
28. Schauer makes a great deal of the fact that many kinds of action can be said to be expressive: e.g., Booth's assassination of Lincoln expressed his contempt for the Union. Though true, this is a red herring. Just as not all acts of assertion are simply assertions of opinion, not all acts of expression are simply expressions of sentiment. To give even absolute and unqualified freedom to opinion and sentiment, type-identified by its content, is not to grant immunity to all token acts that assert opinion or express emotion.
29. See Daniel Jacobson, "Speech and Action: Replies to Hornsby and Langten," forthcoming in Legal Theory, for arguments against a view of speech rights that deliberately traduces this distinction.
30. Of course, the content of an opinion is partly determined by the context of its expression in a variety of ways, most obviously concerning indexicals. But this is immaterial. The point is that the same proposition can be avowed in a variety of contexts, and that what speech act is performed varies over those contexts.
31. See Thomas Scanlon, "A Theory of Freedom of Expression," Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204-26, for discussion of a similar approach to free speech.
32. Mill's lack of rigorous verbal consistency is practically a matter of stylistic policy, which partly reflects his popular ambitious and partly his impatience with the ponderous style of Bentham who, Mill thought, "perpetually [aimed] at impracticable precision" ("Bentham," in Robson, ed., Collected Works, vol. 10, p. 114). Even more telling is the specific complaint Mill registers against Bentham's prose (see fn. 46).
33. One of Alan Ryan's greatest contributions to the literature on Mill is his demonstration that Mill, rather idiosyncratically among liberals, takes the proper realm of the legal and the moral to be identical. When sanctions are appropriate, the question of which to use is to be settled by weighing their respective costs and benefits. See Ryan, "John Stuart Mill's Art of Living," reprinted in Gray and Smith, eds., J. S. Mill.
34. Of course, my tax burden might happen to prevent me from vacationing in St. Bart's, as I would have liked, but taxation does not prohibit one from doing so. On Mill's view, taxation only violates liberty when its purpose is to create a material impediment to engaging in certain kinds of action.
35. Someone might object that this is a distinction without a difference, since it is as great a compromise of my liberty of action to compel me to do one thing as it is to prevent me from doing another. But the force of this objection depends crucially on the nature of the compelled act and how much it compromises what Mill calls our individuality: the process of developing our values, influenced but not coerced by others. In any case, Mill draws a substantive distinction between action and inaction, claiming that "the latter case . . . requires a much more cautious exercise of compulsion than the former" (I, 14).
36. Yet Mill immediately continues, "To justify [compulsion], the conduct from which it is desired to deter [the individual] must be calculated to produce evil to someone else" (I, 9). This seems to specify what would be good, if not sufficient, reason for coercion. But 'calculated' is ambiguous here, and Mill doesn't use the term in this context again. I think that the most natural reading of this claim jibes much better with my interpretation than with the traditional interpretation, but, for these reasons, I will not put much weight on this claim.
37. Thus, Lyons claims that "the principle of liberty says flatly . . . that the prevention of harm to others justifies interfering with [an individual's] liberty" (Lyons, Rights, p. 92).
38. By 'justifies' Lyons does not mean justifies sufficiently, since that depends on whether the benefits of interference outweigh its costs. Brown claims, even more straightforwardly, that Mill thinks "conduct which is harmful to others ought actually to be interfered with if and only if it is better for the general interest to do so" (Brown, "Mill on Liberty and Morality," p. 141).
39. Mill, Utilitarianism, p. 250.
40. Berger, "John Stuart Mill on Justice and Fairness" reprinted in Lyons, ed., Mill's Utilitarianism: Critical Essays (Lantham: Rowman & Littlefield, 1997), p. 54.
41. See also Berger, Happiness, Justice and Freedom: The Moral and Political Philosophy of John Stuart Mill (Berkeley: University of California Press, 1984).
42. For rule-utilitarian interpretations of Mill, see J. O. Urmson, "The Interpretation of the Moral Philosophy of J. S. Mill" and Lyons, "Human Rights and the General Welfare" both reprinted in Lyons, ed., Mill's Utilitarianism.
43. I will therefore follow this methodological precept: All the qualifications to and refinements of Mill's doctrines that I will propose are drawn from textual sources, although I will make certain overt terminological substitutions when it aids clarity.
44. Mill saw extant protectionist regulations as being not merely inefficient but, worse, as unjust subsidies for those who need them least. See Mill, "The Corn Laws," Westminster Review III (April 1825),
45. reprinted in Robson, ed., Collected Works, vol. 4.
46. For a more detailed discussion, see Elizabeth Anderson, "J. S. Mill's Experiments in Living," Ethics 102 (1991): 4-26.
47. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 163.
48. For discussion of "sophisticated" forms of direct (act-) utilitarianism, see Peter Railton, "Alienation, Consequentialism, and the Demands of Morality," Philosophy & Public Affairs 13, no. 2 (Spring 1984): 134-71;
49. and "How Thinking About Character and Utilitarianism Might Lead to Rethinking the Character of Utilitarianism," in Midwest Studies in Philosophy, vol. 13 (Notre Dame: University of Notre Dame Press, 1988).
50. Indeed, it seems tome considerably more difficult to argue against some of the overtly paternalist laws banned by HP (such as those requiring seat belts) than for even the unqualified speech rights posited by DL.
51. It must be admitted that the term 'self-regarding' might lend some illicit support for the claim that any action intuitively done to oneself is within one's rights, since the term can seem to apply to such acts by definition. In defense of Mill's terminology, however, the less an action affects anyone but the agent himself, the harder it is to deny that it is within his rights to perform. What (primarily) affects the agent himself is, plausibly, (primarily) his own concern.
52. By "as an ideal," I mean to mark that Mill did not advocate that all societies, regardless of their current condition, should be made into free societies as quickly as possible - on this point, see (I, 10).
53. Rees, "A Re-reading of Mill on Liberty," p. 172.
54. See also C. L. Ten, "Mill's Defense of Liberty,"
55. and Wollheim, "John Stuart Mill and Isaiah Berlin: The Ends of Life and the Preliminaries of Morality" (p. 275),
56. both reprinted in Gray and Smith, eds. J. S. Mill.
57. Also Gray, Mill on Liberty, esp. p. 50.
58. Mill confirms in his discussion of offense (see IV, 12-13) that in such cases the free society "admits no right . . . to immunity from this kind of suffering" (V, 3).
59. It is a nice question whether a thoroughgoing utilitarian can believe, with Mill, in "the absolute and essential importance of human development in its richest diversity" - but it cannot be doubted that Mill chose this quotation from Wilhelm Von Humboldt as the epigraph to On Liberty. On this point, see Wollheim, "John Stuart Mill and Isaiah Berlin."
60. There are a few other passages that offer specious support for the traditional interpretation, but their force is undermined by readily apparent qualifications. Thus, in (I, 14) he speaks of a "prima facie" case for punishment, without explaining whether such cases offer reasons that are defeasible or merely that can be outweighed; and in (III, 1) he opens a huge loophole by allowing that there may be "justifiable cause" for harming others. Finally, the only part of (IV, 10) that might be thought to support the traditional reading is Mill's final summation, which begins "in short" and elides the qualifications made earlier in the paragraph. The gist of the passage as a whole strongly supports my reading.
61. This is another case of stylistic policy taken to a fault. Mill complained that Bentham "could not bear, for the sake of clearness and the reader's ease, to say, as ordinary men are content to do, a little more than the truth in one sentence, and correct it in the next. The whole of the qualifying remarks which he intended to make, he insisted upon imbedding as parentheses in the very middle of the sentence itself" ("Bentham," p. 114).
62. See Mill, Utilitarianism, p. 247. This is not Kant's distinction between perfect and imperfect duties, where the latter do not create any particular obligations, only general ones. Mill's imperfect obligations can be particular and binding, although no one has any corresponding right.
63. The exchange between Lyons and Brown over positive compulsions is briefly commented on in Ten, Mill on Liberty,
64. Berger, Happiness Justice and Freedom;
65. and Gray, Mill on Liberty, but without significant advance on the central problem. None of these commentators acknowledge that both solutions would traduce Millian liberalism, nor do they offer any more acceptable alternative solution.
66. Brown, "Mill on Liberty and Morality," p. 158.
67. Again, when I say that this is clear, I am not denying that it is a substantive moral claim, only that we clearly have an obligation to save the helpless when we can do so safely, or to pay our share of the taxes necessary for the functioning of society.
68. This is just the argument Mill gives in "Whewell on Moral Philosophy," a crucial and neglected essay: "If a hundred infringements would produce all the mischief implied in the abrogation of a rule, a hundredth part of the mischief must be debited to each one of the infringements, though we may not be able to trace it home individually" (Complete Works, Robson, ed., vol. 10, p. 182).