The final Chapter of Mill’s On Liberty concerns the application of its principles to society at large and deserves close analysis. First, however, I want to return to the end of his defense of individual liberty, where he says:

A civilisation that can thus succumb to its vanquished enemy, must first have become so degenerate, that neither its appointed priests and teachers, nor anybody else, has the capacity, or will take the trouble, to stand up for it. If this be so, the sooner such a civilisation receives notice to quit, the better. It can only go on from bad to worse, until destroyed and regenerated (like the Western Empire) by energetic barbarians. [1]

A free nation can only remain free where its leadership, including religious leadership, and its educational systems provide the necessary leadership and education upon which freedom depends. It is often said that democracy cannot be defeated from without until it has degenerated from within. This is a sentiment with which Mill would have agreed. While freedom of thought, opinion and action are to be reasonably protected, these freedoms are worth nothing if those who have that freedom do not use their freedom in ways that support and undergird the society and legal system that makes possible freedom of thought, speech and action. This is a point to which we will return at the end of this week’s blog.

Fundamental Principles

Mill begins his final chapter on application of the principle of liberty of thought, opinion, speech and action by restating the fundamental principles that underlie his work:

1. Freedom. Individuals are not accountable to society for actions, in so far as these concern the interests of no person but themselves.
2. Restraint. As to actions that are prejudicial to the interests of others, individuals can be held accountable, and may be subjected to social and/or to legal reprimand, in order for the public interest to be protected. [2]

In the case of actions that do not impact others, society may and should give advice, instruction, and engage in persuasion. A person may be avoided by others if thought necessary for their own good or the good of the public. These are the only measures by which society can justifiably express its dislike or disapprobation of conduct that does not significantly impact other people.

As simple and straight forward as these principles may be in the abstract, they are not easily applied in concrete situations, as we shall see in the discussion that follows.

Extensions of the Principle of Liberty

First, there are situations where an action may be prejudicial to the interests of others but still society should not permit such action to be rested, two of which are described by Mill as follows:

1. The Competition Extension. Where people engage in competition to secure some advantage or honor, the party who is disappointed cannot complain or restrain the competition because of their personal disappointment. For example, if a society grants a prize for the best poet and 100 poets enter a competition, the mere fact that they have lost the competition does not entitle them to complain about the success of the winner.
2. The Commerce Extension. Similarly, a person may not complain that they were unsuccessful in a business simply because another competitor was more successful. Again, it is in the nature of economic competition in a free society that some competitors are unsuccessful or less successful than others. Some may fail completely. This lack of success is not grounds for restrictions on the rights of their competitors.

In these situations, of course, the exemption is not absolute. Restrictions on fraud, deceit, unfair trade practices, abuse of monopoly, and a host of other behaviors may be justified, especially in the case of economic competition. Quality control standards, applicable to all competitors equally, are not restrictions on competition, rather they are ground rules for the functioning of a free enterprise system. The same may be said for environmental, worker safety, and a host of other restrictions that are not restraints on competition but simply rules applicable to all participants. [3]

One area of importance in freedom of commerce has to do with how far liberty should be extended where a product has an potential for damage or illegal use. For example, many agricultural chemicals could be used as a poison in a murder scheme. Perhaps more a matter of the public conscience today has to do with the sale of firearms, which in the United States are subject to a constitutional right of citizens to possess them. Laws that restrain children, previous offenders, and the incompetent from possessing dangerous chemicals or weapons might not be subject to challenge as restraints on freedom. (Though in the United States, this does not necessarily answer the constitutional arguments for possession of firearms.) In these cases, Mill is of the view that governments should indulge in the minimum restraint necessary to protect the public against crimes. In the case of medicines, poisons or firearms, no freedom is unduly restricted by laws requiring sellers of potentially dangerous products keeping lists of purchasers, their addresses, and the like. [4]

Restraints on “Victimless Crimes”

Certain crimes which involve behavior that society deems immoral or injurious to society are by their nature personal. For example, public drunkenness, certain drug use, prostitution, gambling, and the like are behaviors in which society may have a limited interest in condemning, restraining, or regulating, but which experience indicates are difficult to eliminate and sometimes not of significant social impact.

This does not mean that the public may have no interest in some forms of regulation. For example, while drunkenness of itself may not be regulatable, many violent crimes are committed under the influence of alcohol. As a result, society is justified in restricting those who sell alcohol and the future behavior of those who have engaged in criminal behavior while under the influence of alcohol. This same principle is also be applicable to those who take legal drugs of any kind.

Prostitution is another such behavior. History testifies to the inability of governments to successfully prevent “the world’s oldest profession.” However, the inability to eliminate a behavior is different from regulating it in the public interest. Prostitution is associated with the spread of venereal diseases, crime, the breakdown of families, and a number of social ills. Therefore, while society might not be entitled on utilitarian principles to completely prohibit the behavior, restricting significant limitations on the activity, such as requiring registration, testing for disease, restricting brothels to certain areas which can be effectively policed for violent crimes, and the like are not prohibited on utilitarian principles.

In this particular instance, Mill has an interesting discussion on whether pimping could be held illegal even if prostitution were not illegal. Mill is inclined towards the principle that if a behavior cannot be restricted, then those who encourage or advise the behavior should not be restricted. However, he recognizes that there are reasons why this might not be the correct result. Those who encourage or advise the sale alcohol, drugs or sex do promote an “intemperance” and related social evils, which may in and of itself justify some kind of restrictions on behavior. In addition, those who encourage an undesirable behavior create social costs which must be borne by society. This may justify restrictions on what might be called “enabling behavior.”

Use of Taxation and Regulation as a Restraint

Mill is aware that taxation can be used to render uneconomic a behavior in which people would otherwise engage. Thus, gambling, alcohol, marijuana where legal, and other commodities are sometimes taxes in ways that restrict their use. In general, Mill is opposed to using taxation in ways that impinge of human freedom. Once again, his fundamental fairness inclines him to see another side to the argument. For example, where a social cost can be identified, taxing a product in order to pay the costs of, for example, addiction treatments, can be justified, and the utilitarian principle does not prevent such a tax, since the tax is associated with a feature of the freedom being exercised that has a social cost that can be identified and quantified to some degree.

The same can be said of regulations that may restrict entry to a business by some persons. Where a product has a potential danger to society, regulating who can engage in such commerce is a response to the danger not a restriction on liberty. For example that, preventing former violent offenders, or proclaimed terrorists from engaging in the business of selling weapons and explosives is a legitimate use of the power of regulating a dangerous activity. Restricting the ability of known alcoholics to own bars and liquor stores is another area in which some kind of restriction on entry might be permitted.

Divorce

From my perspective, one of the most important sections of On Liberty has to do with divorce, since it was important in creating a social climate favorable to divorce. Mill was a proponent of what in our day we would call “no fault divorce.” [5] In particular, he was of the view, common until recently, that divorce was actually good for the children involved for it freed them from an unhappy home.

In the 1960’s in America this particular defense was often used for creating liberal divorce laws. This has been questioned by many studies. [6] Divorce does have economic impacts on both partners and economic and emotional impacts on children. As I said in another venue:

The excessive individualism of our culture breeds a society in which children many times lack the kind of close emotional intimacy with their parents that breeds healthy, well-balanced children. Too often, parents are emotionally absent from children as they seek business success, affluence, personal satisfaction, and personal pleasure. It is possible that the individualism of our culture is a reaction to the excessive communitarian nature of pre-modern societies. What is needed is a balanced recovery of the importance of extended family and community within the life of children. This may be especially true in America where families and communities have become almost pathologically weak during the past century. [7]

It is worth recognizing that Mill was reacting against much more restrictive laws prevalent during the 19^th Century in England. I am uncertain when society. will change to recognize the importance of the family to personal happiness and social stability, but I am very sure it must do so for our society to survive and prosper. As a pastor, I can testify to the emotional damage divorce can create for everyone concerned. In our society there has developed a personally unwise degree of individualism and self-seeking, that needs to be balanced by commitment to family, children, and marriage.

Education

Near the end of On Liberty, Mill engages in a long discussion of the subject of education. In his day, it was a matter of dispute whether parents should be required to see to the education of their children. Mill is a supporter of requiring that parents or guardians educate their children. He feels that this requirement is necessary in order that the future economic and social potential of children not be harmed by parents who, for example, would put them to work in factories in order to supplement family income. (As a side-note, my wife and I have seen in mission work this phenomenon at work in underdeveloped countries, especially with intelligent and capable female children who are put to work in situations where there is little chance of advancement in order to help with family finances.)

Interestingly, Mill is not in favor of a governmental monopoly on education. At one point he makes the following comment:

A general State education is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body. An education established and controlled by the State, should only exist, if it exist at all, as one among many competing experiments, carried on for the purpose of example and stimulus, to keep the others up to a certain standard of excellence. [8]

Mill believes that, while parents should be required to fulfill their duty to educate their children, the state should not have a monopoly on such education. In fact, it is undesirable that they do so. The means by which the state should enforce universal education is by providing and encouraging alternatives and testing for results and providing for exceptional testing, for example to prepare people for law, medicine or other professions requiring special capacity.[9]

Conclusion

Mill has such a fair and fertile mind that I could analyze and appreciate his work for many blogs to come, but I do not have time to do so within the constraints of the project in which I am engaged. It is fair to describe Mill as a classic political and economic liberal, who believes that the state should be restricted to those activities and laws that cannot reasonably be effectively done by individuals. In many cases, even if government could possibly do something more effectively, it should not do so where it would inhibit the full development of people. [10] Mill sees in Czarist Russia and in France the results of an excessively centralized and bureaucratic state, in which government tries to do too much at the expense of personal responsibility. The result is either ineffective despotism or destructive revolution. [11] He uses 19^thCentury America as an example of the beneficial results of a nation populated by a free people accustomed to solving their own problems. Such a people, Mill believes, “will not let themselves be enslaved by any man or body of men.” [12]

We see signs that the centralization and bureaucratic growth in the United States may have reached an undesirable level and that people may have become too accustomed to feel that all social ills are to be solved by government intervention. Mill’s warning that the wise government allows individuals to solve as many of their own problems as possible remains good advice, whatever size or structure state, local, and national governments may take.

[1] John Stuart Mill, On Liberty edited by Currin V. Shields (Indianapolis Indiana: Bobbs-Merrill, Library of the Liberal Arts, 1968), at 113, hereinafter “On Liberty”.

[2] Id, at 114.

[3] Id, at 115-116. This is an area in which Mill seems to mistake all restrictions of any kind as restraints on freedom. He views restraints of any kind as an “evil”, rather than structural features of a competition. To take an example from a sport, the rule that all batters in baseball must stay within the batter’s box is not a restraint or restriction on the freedom of batters; it is a rule of the game. Similarly, were Congress to pass a rule that all makers of cell phones must arrange for the complete recycling of parts of the phones when no longer in use, that would not be a restraint on trade but a rule of the business of making cell phones.

[4] Id, at 118. Mill has an interesting argument in these situations from Bentham’s notion of “pre-appointed evidence.” Where certain information is required to be kept on sales and the like, it only becomes important if a crime is inf fact committed. So for example, if a certain chemical is used in farming and purchasers must supply information, that record may become evidence that a particular defendant had purchased the means of committing the alleged crime.

[5] Id, at 126ff. It is not an argument against a philosophical position that the person making a claim may have some personal prejudice, but in the case of Mill’s feelings on divorce, the long years that he and Harriet had to wait in order to marry may have a bearing on his views.

[6] See Whitehead, Barbara Defoe & Popenoe David, “The State of our Unions: Social Health of Marriage in America 2003” 10 Theology Matters No. 2 (March-April 2003), 1-8.

[7] G. Christopher Scruggs, Path of Life: The Way of Wisdom for Christ Followers (Eugene, OR: Wipf & Stock, 2014), 112. The subject of the importance of family life to developing wisdom is dealt with in Chapter 8.

[8] On Liberty, at 129.

[9] Id, at 130.

[10] Id, at 133.

[11] Id, at 136-137.

[12] Id, at 137.