Chapter 2, part 6, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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he difficulty of reconciling utilitarianism with Mill's absolute prohibition on interference with self-regarding conduct is that it seems obvious that there are cases where interference will maximize happiness. However an attempt has been made by Rolf E. Sartorius in his book Individual Conduct and Social Norms to show how a sophisticated utilitarian can support some absolute legal prohibitions (Sartorius, Ch. 8, Sect. 3; see also Lyons).
Sartorius's argument depends on there being a class of actions which satisfies the following conditions: (1) most acts belonging to that class are, on utilitarian grounds, wrong; (2) some acts belonging to that class are, on utilitarian grounds, right; and (3) most attempts to pick out the right acts from the wrong ones in that class fail because of the absence of any reliable criterion. A utilitarian will then have a case for absolutely prohibiting every act belonging to the class. He is aware that such an absolute prohibition will sometimes produce worse consequences, in utilitarian terms, than occasional successful interference. But since we do not know when such cases will arise, and the attempt to isolate them will produce undesirable consequences, the utilitarian aim of maximizing net satisfactions is best promoted by an absolute prohibition. Am absolute prohibition of a certain class of acts means that if an act belongs to that class, then one is barred from making direct appeals to utility in deciding whether to perform it. Such direct appeals to utility will simply defeat the point of the absolute prohibition, which is to prevent mistakes being made in attempts to pick out the utilitarianly justified exceptions.
Sartorius thinks that Mill's case for individual liberty is based on an appeal to the type of argument presented above. Mill believed that absolute prohibition on legal intervention in self-regarding conduct satisfied the three conditions. However, Sartorius himself is of the opinion that, in the case of paternalistic intervention in self-regarding conduct, there are a few exceptions which can be reliably identified. [33/34] He gives as examples statutes making compulsory the wearing of protective helmets by motor-cyclists, and statutes prohibiting swimming after dark at unguarded beaches (p. 157). Of course utilitarians may disagree over purely factual details. In this case they may disagree about whether legal intervention in all types of self-regarding conduct satisfies the three conditions. They may also disagree about whether an absolute rule or a qualified one will best promote the utilitarian aim. However, in arriving at a decision, the facts to be taken into account by the utilitarian will include precisely what Mill was so eager to exclude, namely, the distress of those who are offended simply by the thought that others are privately engaged in acts which they regard as wrong, or which they merely dislike (160-61). Sartorius does not think that giving due weight to such forms of distress will significantly affect the case for individual liberty. Here he may well be underestimating the strength and deep-seatedness of certain feelings and prejudices. But in any case whether or not he his right must surely depend on varying situations, and there is no reason to believe that "in all nations with whom we need here concern ourselves", and at all times, the purely utilitarian case for liberty will be sufficiently powerful to protect all self-regarding conduct from intervention.
Mill himself was eager to provide a more secure basis for individual liberty. He did not wish its fate to depend on the strength and pervasiveness of the community's feelings towards self-regarding acts. When he argued that "with the personal tastes and self-regarding concerns of individuals the public has no business to interfere" (On Liberty, p. 142), the barrier he set up against invasions of freedom is much stronger than that which he would be entitled to if he had taken into account all the considerations that even a sophisticated utilitarian has to acknowledge. A utilitarian cannot disregard such considerations as the distress caused to the religious bigot and to others by self-regarding conduct, and the number of people who are so affected. All these will make a difference, and sometimes perhaps a decisive difference, to his calculation.
It is not Mill but his contemporary and vehement critic, James Fitzjames Stephen, who would agree with Sartorius in regarding as relevant the distress of outraged moral and [34/35] religious sensibilities. But, unlike Sartorius, Stephen's utilitarian calculation led him to reject Mill's liberty principle. It is from the standpoint of a faithful and frightfully consistent utilitarian that Stephen wrote his sustained attack on Mill, Liberty, Equality, Fraternity. Two remarks of his brother, Leslie Stephen, make this dear. In his biography of Fitzjames, Leslie Stephen wrote:
He holds that the doctrine of Mill's later books are really inconsistent with the doctrines of "Logic" and "Political Economy". He is therefore virtually appealing from the new Utilitarians to the old. "I am falling foul", he says in a letter, "of John Mill in his modern and more humane mood -- or rather, I should say, in his sentimental mood -- which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up. [p. 308]
Elsewhere, Leslie Stephen again commented on Liberty, Equality, Fraternity: "The most remarkable point is that the book is substantially a criticism of Mill's from the older utilitarian point of view. It shows, therefore, how Mill diverged from Bentham (Utilitarians, p. 244 fn.1)." It is worth spending some time on Fitzjames Stephen's view in order to illustrate the point that on purely utilitarian grounds the case for freedom in the self-regarding area may be much weaker than Sartorius supposes. Disagreements between utilitarians over allegedly factual matters will help to remind us how precarious a utilitarian defence of freedom can turn out to be, and how easy it is, in a world of uncertainty about the facts, to use the utilitarian calculation to arrive at almost any conclusion towards which one is already inclined.
As a follower of Bentham, Stephen attached value to the pleasures of malevolence. Bentham defined the pleasures of malevolence as "the pleasures resulting from the view of any pain supposed to be suffered by the beings who become the objects of malevolence . . . " [Bentham, Ch. v, Sect. xi] Even these pleasures are in themselves good because every pleasure is as such good, and as good as the same amount of any other pleasure. This being the case, there is no reason why legal and extra-legal sanctions should not in principle be applied to Mill's category of self-regarding conduct. In some communities it may well be that substantial pleasures of malevolence are aroused by the prospect of homosexuals being punished for their conduct. [35/36] These pleasures may in themselves still not be sufficient to outweigh the pain inflicted by the punishment of homosexuals, but they are always relevant, and are to be weighed on the same scale as the suffering caused by punishment. In some cases their addition to the scales may be enough to tip the utilitarian balance in favour of the legal prohibition of homosexuality where such prohibition is not backed by too severe penalties.
Stephen seemed to have some such argument in mind when he maintained, as against Mill, that "there are acts of wickedness so gross and outrageous that, self-protection apart, they may be prevented as far as possible at any cost to the offender and punished, if they occur, with exemplary severity" (Stephen, Liberty, p. 162). Various arguments supporting this claim appear briefly. There is, for example, the Burkean argument that "the fixed principles and institutions of society express not merely the present opinions of the ruling part of the community, but the accumulated results of centuries of experience" (Liberty, p. 157). But his emphasis is on the desirability of hating criminals, and punishment is a way of gratifying this "healthy natural sentiment" and of expressing society's moral condemnation of criminals [Hart draws attention to this argument, pp. 60-9]. Stephen's separation of these functions of punishment from the utilitarian function of preventing crime may give the impression that they have no utilitarian justification. But in fact Stephen himself referred to Bentham's view of the pleasures of malevolence in justifying the belief in the healthiness of gratifying the feelings of hatred and the desire for vengeance (History, p. 82). It is possible to reconstruct the retributive and denunciatory elements in Stephen's theory of punishment in purely Benthamite utilitarian terms. In a society where there is "an overwhelming moral majority" who regard a particular type of self-regarding conduct as grossly immoral, a considerable amount of pleasures of malevolence will be derived from punishing those who engage in such acts. Stephen's insistence that it was the grosser forms of vice that he had in mind, and that there must be an overwhelming moral majority, may be taken to mean that for him unless these conditions are satisfied the utilitarian calculation would not favour the infliction of punishment.
The considerations invoked by Stephen against Mill help to [36/37] underline once again the fact that the strength of the utilitarian case for freedom will vary greatly with the different circumstances prevailing in different societies at different times. In so far as Mill intended his liberty principle to apply to all societies which have reached a certain stage of development, irrespective of all their other differences, it cannot be adequately defended solely on a utilitarian basis. Mill was able to commit himself so firmly and unreservedly to his principle only because he regarded as irrelevant some of the utilitarian considerations that both Stephen and Sartorius acknowledged, although with dramatically different results.
Bentham, Jeremy. "An Introduction to the Principles of Morals and Legislation" The Collected Works of Jeremy Bentham, ed. J. H. Burns and H. L. A. Hart. London, 1970..
Hart, H. L. A. Law, Liberty and Morality. London, 1963..
Lyons, David. "Human Rights and the General Welfare" Philosophy and Public Affairs, 6 (1977).
Mill, John Stuart. "On Liberty". Utilitarianism, Liberty, Representative Government (Everyman edn).
Sartorius, Rolf E. Individual Conduct and Social Norms. Belmont, 1975.
Stephen, James Fitzjames. A History of the Criminal Law of England. Vol. ii. London, 1883.
_____ Liberty, Equality, Fraternity, ed. with introduction and notes by R. J. White. Cambridge, 1967.
Stephen, Leslie. The Life of Sir James Fitzjames Stephen. London, 1895.
_____ The English Utilitarians. Vol. iii: John Stuart Mill. London, 1900.
Last modified 18 April 2001