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On Liberty

J.S. Mill & Violations of Good Manners

Alexander Brown explores an apparent inconsistency within Mill’s system of ideas.

Is On Liberty still relevant today? The answer to this question must depend not merely on what one understands to be the pressing social and political issues of our age, but also on what one takes to be the central lessons of that essay. There is a great deal to be said on both scores, but in this article I wish to focus on the following problem. Drunk teenagers fooling around in a church graveyard; a couple snogging on the pavement; a boy on a crowded bus playing gangster rap from his mobile phone; two siblings hurling obscenities at each other at a supermarket checkout; someone with very smelly armpits travelling on a rush hour tube; a group of builders wolf-whistling at passing women on the street; a mother breast-feeding her baby at a restaurant table; a rambler walking through the countryside stark naked; a married couple having sex in a public park in broad daylight; a man entering a community library wearing a luminous orange T-shirt that reads ‘FUCK UK’ – these are trivial annoyances to some people but to others they are extremely offensive acts which ought to be legally prohibited. What, if anything, can Mill’s On Libertyteach us about such cases? Indeed, what can such cases teach us about On Liberty?

Mill writes that the object of his essay is to assert ‘one very simple principle’: “That the 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.” Given this so-called harm principle, we have grounds to suppose that Mill would have been against legal regulation of the aforementioned acts since, at first glance, they do not appear to be harmful. Indeed, Mill held that merely causing offence does not in itself constitute harm. Public nuisances such as defecating in the street or storing explosives are a different matter since they constitute a health hazard or a risk to public safety, but a person is not harmed just because she dislikes, disapproves of, or feels repelled by another person’s conduct. Thus it would be tyranny to make personal feelings of offence the basis for punishment. However, Mill also writes that “there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming within the category of offences against others, may rightly be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell, the rather as they are only connected indirectly with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be.” It is not difficult to think of acts which though not in themselves condemnable are a violation of good manners if done in public – such as a married couple having sex in a public park. What is most remarkable about this passage is the idea that the objection to publicity can be grounds for the legal regulation of conduct. So the question is this: how can Mill square his harm principle with the suggestion that violations of good manners can be prohibited, given his own belief that merely causing feelings of offence does not constitute harmful action? At first glance, either he means that certain acts should be prohibited from being done in public even though they are not harmful to others, in which case the harm principle is not universal in its application after all, or he means that certain acts, if done publicly, can constitute harm to others, in which case he must explain why they are harmful.

Like many other readers of Mill, I regard this as a not unimportant test of the consistency of his liberal theory. Some writers are sceptical that the problem can be resolved satisfactorily in Mill’s own terms. Having given the issue careful consideration in his skilful book Mill On Liberty: A Defence (1983), John Gray concludes that “Mill’s writings are simply wanting in any adequate treatment of the problem.” There are, however, a number of possible solutions worth considering before accepting Gray’s sceptical conclusion.

One solution can be immediately discounted, however. It might be inferred that Mill is simply relying on a conventional feature of existing legal systems, that if certain actions are conducted in public and are an affront to good manners they may be prohibited. To suppose that he supported the legal regulation of conduct on such grounds, however, would be to paint Mill as a social conservative. It would underestimate the ambition of his essay: to establish a principle by which the propriety or impropriety of government interference can be judged, irrespective of whether or not it is conventional; a principle that can, if necessary, challenge the status quo.

Another possibility is to say that Mill is drawing a substantive distinction between feelings of offence caused by private action and feelings of offence caused by public action. That distinction is articulated by H.L.A. Hart in his Law, Liberty, and Morality (1963): “No social order which accords to individual liberty any value could also accord the right to be protected from distress thus occasioned. Protection from shock or offence to feelings caused by some public display is, as most legal systems recognise, another matter.” But this solution raises the following question: if society, acting through the apparatus of the state, has no right to prohibit private behaviour merely because the majority think it ‘foolish, perverse, or wrong’, what makes things so different if the behaviour in question is done publicly? It remains unexplained how the mere contravention of prevailing standards of good behaviour in public rather than in private can be sufficient to produce such a profound transformation.

One option might be to build into the argument two further premises: first, the empirical generalisation that public acts are apt to cause a greater amount of offence than private acts; and second, the idea that as the amount of offence caused by conduct increases so a point is reached where the scales are tipped in favour of prohibition. Apart from the obvious problem of identifying the point at which the scales tip, this option has two main weaknesses. For one thing, the generalisation could prove to be false. It might be that certain acts carried out in private are so profoundly offensive to such a large proportion of the population that the bare knowledge of them produces a greater amount of offence than a great many acts carried out in public. For another, the idea that the amount of offence can tip the scales in favour of prohibition cuts against standard readings of On Liberty. Most scholars think Mill either ignored the positive effect the prohibition of offensive conduct can have on the happiness of those who dislike or disapprove of that conduct or else thought that the utility of freedom is higher than or has absolute weight against the pleasures of prudery such that any amount of the former outweighs any amount of the latter.

Another option might be to say that in the case of public acts the offended party witnesses conduct against his or her will. Thus the types of offences most apt for legal intervention would be those that other persons cannot reasonably avoid. Think of elderly people visiting the local supermarket to buy groceries only to be confronted by a naked shopper. With respect to feelings of offence caused by private acts, by contrast, a person can at least control whether or not he is going to spend time thinking about other people’s conduct. Although this second option is more promising, it remains problematic. The problem is that individuals who might be offended by what other people get up to in their own homes very often find out about that conduct against their own will. They cannot easily avoid finding out about it because nowadays people are only too willing to tell the world the sordid details of their private lives. Society can no more reasonably expect someone to avoid watching television, reading the newspaper or talking to his neighbours just in case he learns something that causes him to be offended than it can reasonably expect someone to avoid going to the shops or walking in a public park. So the argument from involuntary offences cuts both ways.

In an attempt to add credence to his position Hart goes on to argue that even if the legal regulation of certain actions done in public restricts people’s liberty, it nonetheless ‘leaves the offender at liberty to do the same thing in private, if he can.’ Yet this neither justifies the legal regulation nor provides adequate compensation for it. Presumably for those couples who wish to have sexual intercourse in a public park it is part of the excitement and pleasure of the act that it is being done in a wide open space or that others might witness them engaged in it or some other reason linked to the place. To have sexual intercourse behind closed doors, so to speak, is self-evidently not ‘the same thing’ as far they are concerned. The clause ‘if he can’ rules out what these people actually want to do, which is to have sex in a public park without being prosecuted.

So let us turn to a different putative solution. If, as Mill asserts, preventing harm to others is a necessary condition for the use of coercive intervention, then an obvious response to the problem is to maintain that a violation of good manners does constitute harmful conduct. There are different versions of this strategy. One version defines ‘harmful conduct’ simply as whatever conduct Mill declares may be prohibited within the pages of On Liberty, so that violations of good manners qualify as harmful conduct merely by virtue of that definition. The problem with this solution is its flagrant circularity. Why is it acceptable to prohibit a violation of good manners? Because it constitutes harmful conduct. Why does it constitute harmful conduct? Because it is the type of conduct that it is acceptable to prohibit. But why is it acceptable? And so on.

A second, more ambitious version concentrates on the affect that violations of good manners might have on children or adults who are considered more vulnerable and impressionable than the general public. Mill gives voice to just such an argument in Chapter IV of his essay: “if by his vices or follies a person does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself, for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.” The main problem with this argument is that it is one that Mill explicitly rejects. He insists that in so far as a vice or folly “neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.”

In his Routledge Philosophy GuideBook to Mill On Liberty (1998) Jonathan Riley proposes a third version of the ‘violations of good manners are harmful’ solution. Riley makes the point that while Mill championed human spontaneity and freedom of expression, he did not suppose that everyone may do exactly as he or she pleases all of the time. Doing as one pleases necessarily imposes restrictions on other people, since it takes away their space. “Sexual intercourse between consenting adults may be prohibited in busy public parks or office buildings, for example, because it can be freely practised in less crowded settings, such as homes, hotels and country fields, where it does not inconvenience others by interfering with their activities.” How might this interference take place? “Crowds of onlookers or imitators may block the free flow of traffic, for example, costing others time and money as they are forced to wait.”

This version is more than a little suspect, however. In the case described by Riley there is a very real sense in which it is not the sexually adventurous couple that causes the inconvenience but the crowd of onlookers and imitators. Riley mentions the scarcity of space, but in the example it is the crowd that takes up the space, not the couple; presumably the shocked onlookers and opportunistic imitators are free to move on at any time. At most Riley has offered a reason to intervene against the crowd rather than the couple – and this reason is also debatable, for surely each individual onlooker could legitimately claim that his or her marginal presence is insufficient to block the free flow of pedestrians. Even if one accepts that the original couple and not the crowd are ultimately responsible for the blockage, a second point is that no sooner is Riley’s solution spelled out than it stops being a solution to this problem. The account of harmful conduct offered is that which knowingly causes crowds of onlookers and imitators to build up in public spaces. Yet the same could also apply to unlicensed buskers, street hawkers and those who organise flash mobs. So this conduct is to be prohibited not because, as Mill in fact claims, it is an affront to decency but because it is a public nuisance.

An even more radical solution to the problem (if indeed it is a solution properly called) is to say that because the violation of good manners passage is inconsistent within Mill’s over-all position as set out in On Liberty the reader should not therefore consider it as being part of ‘Mill’s position’. It is a mere aberration in that sense. This is the most radical of all the solutions considered so far, since it deals with the problem simply by removing the offending passage from the field of play.

I reject this solution on the grounds that it exhibits what Quentin Skinner dubs ‘the mythology of coherence’. This is to assume that the work of leading figures in the history of ideas must surely be consistent, so that the task becomes to reveal that consistency by whatever means necessary. If it is first assumed that Mill must have developed a consistent view in On Liberty, then it becomes acceptable to discount passages which threaten consistency. The problem is that the consistency which is discovered by this process is the mere appearance of consistency. Should the violation of good manners passage no longer be considered as part of ‘Mill’s position’ the reader could forfeit any hope of understanding what Mill’s position actually was.

A final solution is to fundamentally rethink the central aim of Mill’s essay. In his article, ‘Mill On Liberty, Speech and the Free Society’ (2000), Daniel Jacobson insists that the object of the essay is not to assert the harm principle − a crude universal principle which is bound to admit of exceptions − but to defend the doctrine of liberty. This doctrine says that we should support a social and political system that allows individuals a substantial space in which they might be free from social coercion. It might then be argued that if the harm principle is rendered false with respect to violations of good manners, then this only goes to show that the harm principle is not the real point of the essay. Instead the real point of the essay is the doctrine of liberty which seeks a substantive realm of liberty for all but does not rule out the prohibition of violations of good manners.

Of all the solutions we’ve looked at here, I find this the most compelling. But at the same time I acknowledge that it could make some people feel a little uneasy. They will say that a solution which ignores Mill’s own assertions about the aim of On Liberty is no solution at all. What could be said to ameliorate this understandable sense of unease? One suggestion put by Jonathan Wolff in his, ‘Mill, Indecency and the Liberty Principle’ (1998), is to say that Mill himself fully recognised the inconsistency and that he knowingly exaggerated the scope of the harm principle in setting it out. He thought that harm to others was generally a necessary condition for justified intervention but recognised its limited scope. Then again, Mill makes it clear in his Autobiography (1873) that together with his wife (Harriet Taylor) he went back and forth over On Liberty, “weighing and criticising every sentence.” “None of my writings have either been so carefully composed, or so sedulously corrected as this.” Thus if the harm principle remained in the text, it must have been for a good reason. So the question is: why would Mill deliberately assert a universal principle that he himself recognised had ‘obvious limitations’ in practice?

I offer the following conjecture. In writing On Liberty Mill wished to reach out not merely to philosophers but also to the public and to legislators. This means, on the one hand, giving philosophers access to principles which are objective and universal and, on the other hand, giving the public and legislators rules of conduct which they can follow in living their lives and executing their public duties. Thus when Mill comes to apply the harm principle to concrete cases in Chapter V − the chapter in which the violation of good manners passage appears − he refers not to the harm principle but to ‘two maxims’. “The maxims are, first, that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself … Secondly, that for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.” Mill does not explicitly say whether acting on the basis of these two maxims is to be understood as equivalent to acting in accordance with the harm principle. Nevertheless, there are possible grounds for differentiation. Whereas a principle applies objectively and in all cases, a maxim is to be adopted by the subject and is to be followed in accordance with his or her own inclinations and judgement with regards to any given case. Keeping this difference in mind it is no longer problematic to say that a legislator can rightly decide to prohibit violations of good manners under the subjective maxim if not under the universal principle.

Whatever his rationale for asserting the universal principle at the start of Chapter I only to rely instead on the two maxims in Chapter V, looking from the vantage point of his Autobiography Mill summed up the significance of his essay not in terms of one very simple principle but in terms of ‘a single truth’. “The Liberty is likely to survive longer than anything else that I have written… because the conjunction of her [Harriet’s] mind with mine has rendered it a kind of philosophical text-book of a single truth, which the changes progressively taking place in modern society tend to bring out into even stronger relief: the importance, to man and society of a large variety in types of character, and of giving full freedom to human nature to expand itself in innumerable and conflicting directions.” Interestingly the content of this single truth is much closer to the doctrine of liberty than to the harm principle.

Alexander Brown is Lecturer in Contemporary Social and Political Theory at the University of East Anglia. He is the author of several articles on Mill as well as the monograph Personal Responsibility: Why it Matters (Continuum Press, 2009).