## 1. Mill's Intellectual Background



One cannot properly appreciate the development of Mill's moral
and political philosophy without some understanding of his
intellectual background. Mill was raised in the tradition of
*Philosophical Radicalism*, made famous by Jeremy Bentham
(1748-1832), John Austin (1790-1859), and his father James
Mill (1773-1836), which applied utilitarian principles in a
self-conscious and systematic way to issues of institutional design
and social reform. Utilitarianism assesses actions and institutions in
terms of their effects on human happiness and enjoins us to perform
actions and design institutions so that they promote--in one
formulation, maximize--human happiness. Utilitarianism was a
progressive doctrine historically, principally because of its
*universal scope*--its insistence that everyone's
happiness matters--and its *egalitarian conception of
impartiality*--its insistence that everyone's happiness
matters equally. Because of these general characteristics of
utilitarianism, the Radicals' application of utilitarian
principles to social institutions tended to challenge traditional
institutions of class and privilege and support egalitarian
reforms.



As documented in his *Autobiography* (1873), Mill was groomed
from birth by his father to become the ultimate Victorian intellectual
and utilitarian reformer. As part of this apprenticeship, Mill was
exposed to an extremely demanding education, shaped by utilitarian
principles. While Mill followed the strict intellectual regimen laid
down by his father for many years, he suffered a profound intellectual
and emotional crisis in the period 1826-1830. Mill's
recovery was assisted by friendships he formed with Thomas Carlyle and
Samuel Coleridge, who introduced him to ideas and texts from the
Romantic and Conservative traditions. As Mill emerged from his
depression, he became more concerned with the development of
well-rounded individuals and with the role of feeling, culture, and
creativity in the happiness of individuals (see Capaldi 2004).



Though Mill never renounced the liberal and utilitarian tradition and
mission that he inherited from his father, his mental crisis and
recovery greatly influenced his interpretation of this tradition. He
became critical of the moral psychology of Bentham and his father and
of some of the social theory underlying their plans for reform. It is
arguable that Mill tends to downplay the significance of his
innovations and to underestimate the intellectual discontinuities
between himself and his father. One measure of the extent of
Mill's departure from the views of Bentham and James Mill is
that Mill's father came to view him as a defector from the
utilitarian cause (*Autobiography* 189). We need to try to
understand the extent of the transformation Mill brings to the
utilitarian and liberal principles of the Radicals.


### 1.1 The Philosophical Radicals



Some of Mill's most significant innovations to the utilitarian
tradition concern his claims about the nature of happiness and the
role of happiness in human motivation. Bentham and James Mill
understand happiness hedonistically, as consisting in pleasure, and
they believe that the ultimate aim of each person is predominantly, if
not exclusively, the promotion of the agent's own happiness
(pleasure).



Bentham begins his *Introduction to the Principles of Morals and
Legislation* (1789) with this hedonistic assumption about human
motivation.



> 
> 
> Nature has placed mankind under the governance of two sovereign
> masters, *pain* and *pleasure* (*Principles* I
> 1).
> 
> 
> 



Bentham allows that we may be moved by the pleasures and pains of
others. But he appears to think that these other-regarding pleasures
can move us only insofar as we take pleasure in the pleasure of others
(V 32). This suggests that Bentham endorses a version of psychological
egoism, which claims that the agent's own happiness is and can
be the only ultimate object of his desires. In his unfinished
*Constitutional Code* (1832), Bentham makes this commitment to
psychological egoism clear.



> 
> 
> On the occasion of every act he exercises, every human being is led to
> pursue that line of conduct which, according to his view of the case,
> taken by him at the moment, will be in the highest degree contributory
> to his own greatest happiness. (Introduction, SS2)
> 
> 
> 



Bentham is a hedonist about utility or happiness, treating happiness
as consisting in pleasure (*Principles* I 3). So the version of
psychological egoism to which he is attracted is psychological
hedonism. Bentham does not say why he believes that one's own
pleasure is the only ultimate object of desire. He may see it as a
generalization from his observations about the motives underlying
human behavior.



James Mill also treats psychological hedonism as axiomatic in his
*Essay on Government* (1824).



> 
> 
> The desire, therefore, of that power which is necessary to render the
> persons and properties of human beings subservient to our pleasures,
> is the grand governing law of human nature. (SSIV; also see
> SSV)
> 
> 
> 



Sometimes, Bentham appears to allow for a more diverse set of ultimate
motives or interests, including other-regarding motives
(*Principles* X 25, X 36-38, XI 31; *Table of the
Springs of Action* II 2). But these concessions to psychological
pluralism are exceptional. Even in contexts where Bentham recognizes
motivation that is not ultimately self-interested, he appears to treat
it as weaker and less dependable than self-interested motivation
(*Book of Fallacies* 392-93).



Bentham claims that utility not only describes human motivation but
also sets the standard of right and wrong (*Principles* I
1).



> 
> 
> By the principle of utility is meant that principle which approves or
> disapproves of every action whatsoever, according to the tendency
> which it appears to have to augment or diminish the happiness of the
> party whose interest is in question .... (*Principles* I
> 2)
> 
> 
> 



It remains to be determined whose happiness matters. One might imagine
that it is the utility of the agent. This would be the ethical
counterpart to psychological egoism. However, Bentham's answer,
and the answer characteristic of utilitarianism, is the happiness of
all (*Principles* I 4-10). Bentham says that our account
of right action, obligation, and duty ought to be governed by the
principle of utility (I 9-10). This seems to imply that an
action is right or obligatory just insofar as it promotes utility. But
then the right or obligatory act would seem to be the one that
promotes utility the most or *maximizes* utility. For these
reasons, it is common to understand Bentham as combining psychological
hedonism and hedonistic utilitarianism.



But, if this is Bentham's view, he faces a problem, for he
combines the ethical claim that each of us ought to aim at the general
happiness (pleasure) with the psychological claim that each of us can
only aim (ultimately) at his own happiness (pleasure). Here we seem to
have a special case of the conflict between psychological egoism and
morality's other-regarding or altruistic demands.



Bentham is not unaware of this tension. He addresses part of the
problem in the political context in other writings, notably his
*Plan for Parliamentary Reform* (1817). In the political
context, the problem is how we can get self-interested rulers to rule
in the interest of the governed, as utilitarianism implies that they
should. Bentham's answer invokes his commitment to
representative democracy. We can reconcile self-interested motivation
and promotion of the common good if we make rulers democratically
accountable to (all) those whom they govern, for this tends to make
the interest of the governed and the interest of the governors
coincide. Bentham's argument, elaborated by James Mill in his
*Essay on Government*, is something like this.


1. Each person acts only (or predominantly) to promote his own
interests.
2. The proper object of government is the interest of the
governed.
3. Hence, rulers will pursue the proper object of government if and
only if their interests coincide with those of the governed.
4. A ruler's interest will coincide with those of the governed
if and only if he is politically accountable to the governed.
5. Hence, rulers must be democratically accountable.



It was this reasoning that led Bentham and James Mill to advocate
democratic reforms that included extending the franchise to workers
and peasant farmers.



In *Principles* Chapter IV Bentham sets out his conception of
pleasure and utility in more detail, distinguishing between intrinsic
and relational dimensions of pleasures. For our purposes, some
dimensions matter more than others. Hedonism says that pleasure is the
one and only intrinsic good and that pain is the one and only
intrinsic evil. All other things have only extrinsic or instrumental
value depending on whether and, if so, how much pleasure or pain they
produce. Because the utilitarian asks us to maximize value, he has to
be able to make sense of quantities or magnitudes of value associated
with different options, where he assigns value to pleasure and
disvalue to pain. Intensity, duration, and extent would appear to be
the most relevant variables here. Each option is associated with
various pleasures and pains both within a single life and across
lives. For any given option we must find out how many pleasures and
pains it produces, whether those occur in a single life or in
different lives. For every distinct pleasure and pain, we must
calculate its intensity and its duration. That would give us the total
amount of (net) pleasure (or pain) associated with each option. Then
we must do that option with greatest total. If there are two (or more)
options with the greatest total, we are free to select any of
these.



Bentham does not assume that our estimates of what will maximize
utility will always be reliable. Nor does he assume that we should
always try to maximize utility (*Principles* I 13, IV 6). Doing
so is costly, and we may sometimes promote utility best by not trying
to promote it directly. Nonetheless, utility, he thinks, is the
standard of right conduct.


## 2. Mill's Utilitarianism



Though Mill accepts the utilitarian legacy of the Radicals, he
transforms that legacy in important ways. Part of understanding
Mill's contributions to the utilitarian tradition involves
understanding his disagreement with the Radicals on issues about human
motivation and the nature of happiness.


### 2.1 Psychological Egoism



Henry Sidgwick (1838-1900), for one, read Mill as a
psychological egoist (*The Methods of Ethics* 42-44).
This is not just guilt by association. For it may appear that Mill
endorses psychological egoism in his so-called "proof" of
the principle of utility in Chapter IV of *Utilitarianism*.
There, Mill aims to show that happiness is the one and only thing
desirable in itself (*U* IV 2). To do this, he argues that
happiness is desirable in itself (IV 3), and a central premise in this
argument is that everyone desires his own happiness (IV 3). Mill later
argues that only happiness is desirable (IV 4).



But the proof does not reveal Mill to be a psychological egoist. While
Mill does say that each person has an ultimate desire for her own
happiness, he does not say that this is each person's only
ultimate desire. Indeed, in the second half of the proof he allows
that some agents have a disinterested concern for virtue and that they
care about virtue for its own sake (IV 4-5). And what is true of
virtue is no less true of less grand objects of desire, such as money
or power (IV 6). These too it is possible to desire for their own
sakes. If psychological egoism claims that one's own happiness
is the only thing that is desired for its own sake, then this shows
that Mill is not a psychological egoist.



If we look outside of *Utilitarianism* we can find even clearer
evidence of Mill's doubts about psychological egoism and
hedonism. In a note to his edition of James Mill's *Analysis
of the Phenomena of the Human Mind* (1869) John Stuart Mill
diagnoses a possible equivocation in his father's doctrine.



> 
> 
> That the pleasures or pains of another person can only be pleasurable
> or painful to us through the association of our own pleasures and
> pains with them, is true in one sense, which is probably that intended
> by the author, but not true in another, against which he has not
> sufficiently guarded his mode of expression. It is evident, that the
> only pleasures or pains of which we have direct experience ...
> [are] those felt by ourselves ... [and] that the pleasure or pain
> with which we contemplate the pleasure or pain felt by someone else,
> is itself a pleasure or pain of our own. But if it be meant that in
> such cases the pleasure or pain is consciously referred to self, I
> take this to be a mistake. (*Notes* II 217-18)
> 
> 
> 



In his "Remarks on Bentham's Philosophy" (1833) Mill
urges a similar caution in understanding Bentham.



> 
> 
> In laying down as a philosophical axiom that men's actions are
> always obedient to their interests, Mr. Bentham did no more than dress
> up the very trivial proposition that all people do what they feel
> themselves most disposed to do .... He by no means intended by
> this assertion to impute universal selfishness to mankind, for he
> reckoned the motive of sympathy as an interest. (*CW* X:
> 13-14)
> 
> 
> 



In both passages Mill makes what is now a familiar diagnosis of the
troubles with psychological egoism. He thinks that psychological
egoism is ambiguous between a true but trivial thesis about the
*ownership* of desire--an agent necessarily acts on his
own desires--and a substantive but wildly implausible thesis
about the *content* of desires--an agent's ultimate
desire is always and necessarily to promote his own interests or
pleasure. If so, there is no thesis that is both substantive and
plausible. The substantive thesis may seem speciously attractive if we
tacitly confuse it with the trivially true thesis. But it seems clear
from Bentham's and James Mill's worries about the conflict
between ruler's interests and the interest of the ruled that
they intend something like the substantive psychological thesis. But
if they do so because they conflate it with the trivial but true
thesis, then they commit the fallacy of equivocation.



So Mill rejects the substantive doctrines of psychological egoism and
hedonism that Bentham and his father sometimes defended or suggested.
This is really part of a larger criticism of the conception of
psychology and human nature underlying Benthamite utilitarianism,
which Mill elaborates in his essays on Bentham. Mill's desire to
distance himself from Benthamite assumptions about human nature and
psychology are also reflected in his conception of happiness and his
doctrine of higher pleasures.


### 2.2 Happiness and Higher Pleasures



Mill also disagrees with the Radicals about the nature of happiness.
Though he never abandons the utilitarian tradition of the Radicals,
Mill modifies their assumptions about happiness. He explains his
commitment to utilitarianism early in Chapter II of
*Utilitarianism*.



> 
> 
> The creed which accepts as the foundations of morals
> "utility" or the "greatest happiness
> principle" holds that actions are right in proportion as they
> tend to promote happiness; wrong as they tend to produce the reverse
> of happiness. By happiness is intended pleasure and the absence of
> pain; by unhappiness, pain and the privation of pleasure. (II 2; also
> see II 1)
> 
> 
> 



This famous passage is sometimes called the Proportionality Doctrine.
It sounds like Bentham. The first sentence appears to endorse
utilitarianism, while the second sentence appears to endorse a
hedonistic conception of utilitarianism.



Hedonism implies that the mental state of pleasure is the only thing
having *intrinsic* value (and the mental state of pain is the
only intrinsic evil). All other things have only *extrinsic*
value; they have value just insofar as they bring about, mediately or
directly, intrinsic value (or disvalue). It follows that actions,
activities, etc. can have only extrinsic value, and it would seem that
their value should depend entirely upon the *quantity* of
pleasure that they produce, where quantity is a function of the number
of pleasures, their intensity, and their duration. This would mean
that one kind of activity or pursuit is intrinsically no better than
another. If we correctly value one more than another, it must be
because the first produces more numerous, intense, or durable
pleasures than the other.



Mill worries that some will reject hedonism as a theory of value or
happiness fit only for swine (II 3). In particular, he worries that
opponents will assume that utilitarianism favors sensual or voluptuary
pursuits (e.g., push-pin) over higher or nobler pursuits (e.g.,
poetry). Mill attempts to reassure readers that the utilitarian can
and will defend the superiority of higher pleasures.



He begins by noting, with fairly obvious reference to Bentham, that
the hedonist can defend higher pursuits as extrinsically superior on
the ground that they produce more pleasure (II 4). While Mill thinks
that the Benthamite can defend the extrinsic superiority of higher
pleasure, he is not content with this defense of their superiority.
Mill insists that the greater value of intellectual pleasures can and
should be put on a more secure footing (II 4). He explains these
higher pleasures and links them with the *preferences of a
competent judge*, in the following manner.



> 
> 
> If I am asked what I mean by difference of quality in pleasures, or
> what makes one pleasure more valuable than another, merely as a
> pleasure, except its being greater in amount, there is but one
> possible answer. If one of the two is, by those who are competently
> acquainted with both, placed so far above the other that they prefer
> it, even though knowing it to be attended with a greater amount of
> discontent, and would not resign it for any quantity of the other
> pleasure which their nature is capable of, we are justified in
> ascribing to the preferred enjoyment a superiority in quality so far
> outweighing quantity as to render it, in comparison, of small account.
> (II 5)
> 
> 
> 



Indeed, Mill seems to claim here not just that higher pleasures are
intrinsically more valuable than lower ones but that they are
discontinuously better (II 6).



This certainly goes beyond Bentham's quantitative hedonism. In
fact, it is not even clear that Mill's higher pleasures doctrine
is consistent with hedonism. Mill's position here is hard to pin
down, in part because he uses the term 'pleasure'
sometimes to refer to (a) a certain kind of mental state or sensation
and at other times to refer to (b) non-mental items, such as actions,
activities, and pursuits that do or can cause pleasurable mental
states (consider the way in which someone might say that surfing was
her greatest pleasure). We might call (a)-type pleasures
*subjective* pleasures and (b)-type pleasures
*objective* pleasures. What's unclear is whether
Mill's higher pleasures are subjective pleasures or objective
pleasures. His discussion concerns activities that employ our higher
faculties. What's unclear is whether higher pleasures refer to
mental states or sensations caused by higher activities or the
activities themselves.



It might seem clear that we should interpret higher pleasures as
subjective pleasures. After all, Mill has just told us that he is a
hedonist about happiness. The Radicals may not have always been clear
about the kind of mental state or sensation they take pleasure to be,
but it seems clear that they conceive of it as some kind of mental
state or sensation. Some, like Bentham, appear to conceive of pleasure
as a sensation with a distinctive kind of qualitative feel. Others,
perhaps despairing of finding qualia common to all disparate kinds of
pleasures, tend to understand pleasures functionally, as mental states
or sensations the subject, whose states these are, prefers and is
disposed to prolong. James Mill held something like this functional
conception of pleasure (*An Analysis of the Phenomena of the Human
Mind* II, p. 184). Pleasures, understood functionally, could have
very different qualitative feels and yet still be pleasures. Insofar
as Mill does discuss subjective pleasures, he is not clear which, if
either, of these conceptions of pleasure he favors. Nonetheless, it
may seem natural to assume that as a hedonist he conceives of
pleasures as subjective pleasures. According to this interpretation,
Mill is focusing on pleasurable sensations and then distinguishing
higher and lower pleasures by references to their causes. Higher
pleasures are pleasures caused by the exercise of our higher
faculties, whereas lower pleasures are pleasures caused by the
exercise of our lower capacities. But this interpretation of the
higher pleasures doctrine is problematic.



One concern is raised by Henry Sidgwick (*Outlines* 247).
Hedonism is committed to the idea that one pleasure is better than
another because it is more pleasurable. But this sounds like a
quantitative relation. If higher pleasures are better than lower
pleasures, but not because they involve a greater quantity of
pleasure, how can this be squared with hedonism? One answer is that
Mill thinks that there are two factors affecting the magnitude of a
pleasure: its quantity, as determined by its intensity and duration,
and its quality or kind. On this proposal, one pleasure can be greater
than another independently of its quantity by virtue of its quality
(Sturgeon 2010).



We can distinguish among pleasures between those that are caused by
the exercise of our higher faculties and those that are caused by the
exercise of our lower faculties. But why should this difference itself
affect the pleasurableness of the state in question? If Mill holds a
preference or functional conception of pleasure, according to which
pleasures are mental states that the subject prefers and other things
being equal would prolong, then perhaps he could claim that pleasures
categorically preferred by competent judges are more pleasurable
pleasures. However, he says that competent judges have this preference
for the higher pleasure, "even though knowing it to be attended
with a greater amount of discontent" (*U* II 5). This
suggests that higher pleasures may not be more pleasurable even for
competent judges, and in any case it's not clear that we could
infer what was more pleasurable for someone who was not a competent
judge from what was more pleasurable for someone who was. So,
even if we can distinguish higher and lower pleasures, according to
their causes, it remains unclear how the hedonist is to explain how
higher pleasures are inherently more pleasurable.



A related concern is how this interpretation of the higher pleasures
doctrine makes sense of Mill's contrast between happiness and
contentment or satisfaction. After explaining higher pleasures in
terms of the categorical preferences of competent judges and insisting
that competent judges would not trade any amount of lower pleasures
for higher pleasures, he claims that this preference sacrifices
contentment or satisfaction, but not happiness (II 6). Mill does not
say that the preference of competent judges is for one kind of
contentment over another or that Socrates has more contentment than
the pig or fool by virtue of enjoying a different kind of contentment.
Instead, he contrasts happiness and contentment and implies that
Socrates is happier than the fool, even if less contented.



Another problem for this reading of the higher pleasures doctrine is
that Mill frequently understands higher pleasures as objective
pleasures. First, we have independent evidence that Mill sometimes
uses the word "pleasure" to refer to objective pleasures.
For instance, in the second part of the "proof" of the
principle of utility in Chapter IV Mill counts music, virtue, and
health as pleasures (IV 5). These seem to be objective pleasures.
Elsewhere in his discussion of higher pleasures in Chapter II, Mill
equates a person's pleasures with his "indulgences"
(II 7) and with his "mode of existence" (II 8). Here too
he seems to be discussing objective pleasures. When Mill introduces
higher pleasures (II 4) he is clearly discussing, among other things,
intellectual pursuits and activities. He claims to be arguing that
what the quantitative hedonist finds extrinsically more valuable is
also intrinsically more valuable (II 4, 7). But what the quantitative
hedonist defends as extrinsically more valuable are complex activities
and pursuits, such as writing or reading poetry, not mental states.
Because Mill claims that these very same things are intrinsically, and
not just extrinsically, more valuable, his higher pleasures would
appear to be intellectual activities and pursuits, rather than mental
states. Finally, in paragraphs 4-8 Mill links the preferences of
competent judges and the greater value of the objects of their
preferences. But among the things Mill thinks competent judges would
prefer are activities and pursuits.



> 
> 
> Now it is an unquestionable fact that those who are equally acquainted
> with and equally capable of appreciating and enjoying both do give a
> most marked preference to the *manner of existence* which
> employs their higher faculties. (II 6; emphasis added)
> 
> 
> 



Here Mill is identifying the higher pleasures with activities and
pursuits that exercise our higher capacities.



Insofar as Mill's higher pleasures doctrine concerns objective
pleasures, it appears anti-hedonistic for two reasons. First, he
claims that the intellectual pursuits have value out of proportion to
the amount of contentment or pleasure (the mental state) that they
produce. This would contradict the traditional hedonist claim that the
extrinsic value of an activity is proportional to its pleasurableness.
Second, Mill claims that these activities are intrinsically more
valuable than the lower pursuits (II 7). But the traditional hedonist
claims that the mental state of pleasure is the one and only intrinsic
good; activities can have only extrinsic value, and no activity can be
intrinsically more valuable than another.



Whichever way we read Mill's higher pleasures doctrine, it is
hard to square that doctrine with hedonism, as traditionally
formulated. This apparent inconsistency was noted by many of
Mill's subsequent critics, including Sidgwick (*Methods*
93n, 94, 121), F.H. Bradley (*Ethical Studies* 116-20),
T.H. Green (*Prolegomena to Ethics* SSSS162-63),
and G.E. Moore (*Principia Ethica* 71-72, 77-81).
Green's discussion is especially instructive. He focuses on
Mill's explanation of the preferences of competent judges for
modes of existence that employ their higher faculties. Mill explains
the fact that competent judges prefer activities that exercise their
rational capacities by appeal to their sense of *dignity*.



> 
> 
> We may give what explanation we please of this unwillingness [on the
> part of a competent judge ever to sink into what he feels to be a
> lower grade of existence] ...but its most appropriate appellation
> is a sense of dignity, which all human beings possess in one form or
> other, and in some, though by no means in exact, proportion to their
> higher faculties .... (*U* II 6)
> 
> 
> 



Green thinks that the dignity passage undermines hedonism
(*Prolegomena* SSSS164-66, 171). In claiming that
it is the dignity of a life in which the higher capacities are
exercised and the competent judge's sense of her own dignity
that explains her preference for those activities, Mill implies that
her preferences reflect judgments about the value that these
activities have independently of their being the object of desire or
the source of pleasure. We take pleasure in these activities because
they are valuable; they are not valuable, because they are
pleasurable.



To see Green's point, think of competent judges as demi-gods. In
the dignity passage, Mill is making the same sort of point that
Socrates does in discussing Euthyphro's definition of piety as
what all the gods love (*Euthyphro* 9c-11b). Socrates
thought the gods' attitudes would be principled, not arbitrary.
But this meant that their love presupposed, rather than explained,
piety and justice. Similarly, Mill thinks that the preferences of
competent judges are not arbitrary, but principled, reflecting a sense
of the value of the higher capacities. But this would make his
doctrine of higher pleasures fundamentally anti-hedonistic, insofar it
explains the superiority of higher activities, not in terms of the
pleasure they produce, but rather in terms of the dignity or value of
the kind of life characterized by the exercise of higher capacities.
And it is sensitivity to the dignity of such a life that explains the
categorical preference that competent judges supposedly have for
higher activities.


### 2.3 Perfectionist Elements



We can begin to see the possibility and the appeal of reading Mill as
a kind of perfectionist about happiness, who claims that human
happiness consists in the proper exercise of those capacities
essential to our nature. For instance, Mill suggests this sort of
perfectionist perspective on happiness when early in *On
Liberty* he describes the utilitarian foundation of his defense of
individual liberties.



> 
> 
> It is proper to state that I forego any advantage which could be
> derived to my argument from the idea of abstract right as a thing
> independent of utility. I regard utility as the ultimate appeal on all
> ethical questions; but it must be utility in the largest sense,
> grounded on the permanent interests of man as a progressive being.
> (*OL* I 11)
> 
> 
> 



Mill apparently believes that the sense of dignity of a (properly
self-conscious) progressive being would give rise to a categorical
preference for activities that exercise his or her higher capacities.
In claiming that "it is better to be a human being dissatisfied
than a pig satisfied; better to be Socrates dissatisfied than a fool
satisfied" (*U* II 6), Mill recognizes capacities for
self-examination and practical deliberation as among our higher
capacities.



This concern with self-examination and practical deliberation is, of
course, a central theme in *On Liberty*. There he articulates
the interest that progressive beings have in reflective
decision-making.



> 
> 
> He who lets the world, or his own portion of it, choose his plan of
> life for him has no need of any other faculty than the ape-like one of
> imitation. He who chooses his plan for himself employs all his
> faculties. He must use observation to see, reasoning and judgment to
> foresee, activity to gather materials for decision, discrimination to
> decide, and when he has decided, firmness and self-control to hold his
> deliberate decision. And these qualities he requires and exercises
> exactly in proportion as the part of his conduct which he determines
> according to his own judgment and feelings is a large one. It is
> possible that he might be guided in some good path, and kept out of
> harm's way, without any of these things. But what will be his
> comparative worth as a human being? (*OL* III 4)
> 
> 
> 



Even if we agree that these deliberative capacities are unique to
humans or that humans possess them to a higher degree than other
creatures, we might wonder in what way their possession marks us as
progressive beings or their exercise is important to human
happiness.



In his discussion of responsibility in *A System of Logic*
(*SL* VI.ii.1-4) Mill suggests that he thinks that humans
are responsible agents and that this is what marks us as progressive
beings. There he claims that capacities for practical deliberation are
necessary for responsibility. In particular, he claims that moral
responsibility involves a kind of self-mastery or self-governance in
which one can can deliberate about the appropriateness of one's
desires and regulate one's actions according to these
deliberations (*SL* VI.ii.3). If this is right, then Mill can
claim that possession and use of our deliberative capacities mark us
as progressive beings, because they are what mark as moral agents who
are responsible. If our happiness should reflect the sort of beings we
are, Mill can argue that higher activities that exercise these
deliberative capacities form the principal or most important
ingredient in human happiness.


### 2.4 Reconciling the Elements



Where exactly does this recognition of perfectionist elements in
Mill's conception of happiness leave us? Any interpretation
faces significant worries about his consistency. Part of the problem
is that Mill appears to endorse three distinct conceptions of the good
and happiness.


1. *Hedonism*: Pleasure is the one and only intrinsic good,
things are good insofar as they are pleasant, and happiness consists
in pleasure.
2. *Desire-satisfaction*: The one and only intrinsic good is
the satisfaction of desire (actual or idealized), things are good
insofar as they satisfy desire, and happiness consists in the
satisfaction of desire.
3. *Perfectionism*: The exercise of one's higher
capacities is the one and only intrinsic good, things are good insofar
as they exercise higher capacities, and happiness consists in the
exercise of higher capacities.



Hedonism is apparently introduced in the Proportionality Doctrine,
when Mill identifies happiness and pleasure (*U* II 2). In
introducing the doctrine of higher pleasures, Mill appears to want to
make some refinement within hedonism (II 3-5). But the higher
pleasures doctrine appeals to the informed or idealized preferences of
a competent judge and identifies higher pleasures with the object of
their preferences (II 5). Moreover, he treats this appeal to the
preferences of competent judges as final (II 8). But competent judges
prefer higher activities, and not just subjective pleasures caused by
those activities, and their preference for higher pursuits is based on
their sense of the dignity inherent in a life lived that way (II 6).
Moreover, in *On Liberty* and elsewhere he embraces a
"progressive" conception of happiness in terms of
reflective self-examination and directive self-control. Since these
are three distinct and rival claims about Mill's conception of
the final good, any reading must explain away inconsistency as best it
can and say something about how these three elements are to be
reconciled with one another.



We could reconcile either hedonism or perfectionism with the
desire-satisfaction claim if we treat the latter as a metaethical
claim about what makes good things good and the former as a
substantive claim about what things are good. On this reading, what
makes something good is that it would be preferred by competent
judges, and what competent judges in fact prefer is pleasures,
especially higher pleasures (according to the hedonist claim) or
higher activities and pursuits (according to the perfectionist claim).
But, as we have seen, neither of these claims can accommodate all of
Mill's claims about happiness, and both assume that the
preferences of competent judges are constitutive of the superiority of
the object of the their preferences. But the dignity passage implies
that the preferences of competent judges are evidential, rather than
constitutive, of the value of the object of the their preferences.



The perfectionist reading offers one reconciliation of Mill's
disparate claims. It says that happiness consists in the exercise of
higher capacities, that the preferences of competent judges are
evidential of superior value, and that higher pleasures are objective
pleasures. There is no doubt that his initial formulation of his
conception of happiness in terms of pleasure misleadingly leads us to
expect greater continuity between his own brand of utilitarianism and
the hedonistic utilitarianism of the Radicals than we actually find.
However, this perfectionist interpretation seems to afford the most
consistent reading of Mill's disparate claims about happiness
(also see Saunders 2017).


### 2.5 Conceptions of Duty



As Mill's Proportionality Doctrine makes clear, he endorses the
utilitarian idea that duty or right action is to be defined in terms
of the promotion of happiness. But exactly how Mill thinks duty is
related to happiness is not entirely clear. To understand the
different strands in his conception of utilitarianism, we need to
distinguish between direct and indirect utilitarianism.


* *Direct Utilitarianism*: Any object of moral assessment
(e.g., action, motive, policy, or institution) should be assessed by
and in proportion to the value of its consequences for the general
happiness.
* *Indirect Utilitarianism*: Any object of moral assessment
should be assessed, not by the value of its consequences for the
general happiness, but by its conformity to something else (e.g.,
norms or motives) that has (have) good or optimal acceptance
value.



So formulated, direct and indirect utilitarianism are general theories
that apply to any object of moral assessment. But our focus here is on
right action or duty. Act utilitarianism is the most familiar form of
direct utilitarianism applied to action, whereas the most common
indirect utilitarian theory of duty is rule utilitarianism.


* *Act Utilitarianism*: An act is right insofar as its
consequences for the general happiness are at least as good as any
alternative available to the agent.
* *Rule Utilitarianism*: An act is right insofar as it
conforms to a rule whose acceptance value for the general happiness is
at least as great as any alternative rule available to the agent.



This conception of act utilitarianism is both *maximizing*,
because it identifies the right action with the best available action,
and *scalar*, because it recognizes that rightness can come in
degrees, depending on the action's proximity to the best
(contrast Norcross 2008). The right act is the optimal act, but some
suboptimal acts can be more right and less wrong than others.
Similarly, this conception of rule utilitarianism assesses rules in
both maximizing and scalar fashion.


### 2.6 Utilitarianism as a Standard of Conduct



We might expect a utilitarian to apply the utilitarian principle in
her deliberations. Consider act utilitarianism. We might expect such a
utilitarian to be motivated by pure disinterested benevolence and to
deliberate by calculating expected utility. But it is a practical
question how to reason or be motivated, and act utilitarianism implies
that this practical question, like all practical questions, is
correctly answered by what would maximize utility. Utilitarian
calculation is time-consuming and often unreliable or subject to bias
and distortion. For such reasons, we may better approximate the
utilitarian standard if we don't always try to approximate it.
Mill says that to suppose that one must always consciously employ the
utilitarian principle in making decisions



> 
> 
> ... is to mistake the very meaning of a standard of morals and
> confound the rule of action with the motive of it. It is the business
> of ethics to tell us what are our duties, or by what test we may know
> them; but no system of ethics requires that the sole motive of all we
> do shall be a feeling of duty; on the contrary, ninety-nine hundredths
> of all our actions are done from other motives, and rightly so done if
> the rule of duty does not condemn them. (*U* II 18)
> 
> 
> 



Later utilitarians, such as Sidgwick, have made essentially the same
point, insisting that utilitarianism provides a *standard* of
right action, not necessarily a *decision procedure*
(*Methods* 413).



If utilitarianism is itself the standard of right conduct, not a
decision procedure, then what sort of decision procedure should the
utilitarian endorse, and what role should the principle of utility
play in moral reasoning? As we will see, Mill thinks that much moral
reasoning should be governed by secondary precepts or principles about
such things as fidelity, fair play, and honesty that make no direct
reference to utility but whose general observance does promote
utility. These secondary principles should be set aside in favor of
direct appeals to the utilitarian first principle in cases in which
adherence to the secondary precept would have obviously inferior
consequences or in which such secondary principles conflict
(*U* II 19, 24-25).



The question that concerns us here is what kind of utilitarian
standard Mill endorses. Is he an act utilitarian, a rule utilitarian,
or some other kind of indirect utilitarian?


### 2.7 Act Utilitarianism



Several of Mill's characterizations of utilitarianism endorse
the direct utilitarian claim that an action's moral status is a
function of its utility. Chapter II, we saw, is where Mill purports to
say what the doctrine of utilitarianism does and does not say. In the
opening paragraph, he tells us that utilitarians are "those who
stand up for utility as the test of right and wrong" (II 1).
According to the Proportionality Doctrine, introduced in the next
paragraph, utilitarianism holds "that actions are right in
proportion as they tend to promote happiness; wrong as they tend to
produce the reverse of happiness" (II 2). Later in that chapter,
he says that it requires that "utility or happiness [be]
considered as the directive rule of human conduct" (II 8). Still
later in Chapter II, he describes utilitarianism as a "standard
of what is right in conduct" (II 17). Even Chapter V, which will
eventually introduce some indirect elements, begins with Mill
asserting that utilitarianism is "the doctrine that utility or
happiness is the criterion of right and wrong" (V 1).


### 2.8 Rule Utilitarianism



But not everyone agrees. J.O. Urmson famously defended a rule
utilitarian reading of Mill (1953). One of Urmson's reasons for
this rule utilitarian reading appeals to Mill's reliance on
various rules and secondary principles in moral reasoning. We will
examine that rationale shortly. But Urmson also appeals to the
Proportionality Doctrine as requiring a rule utilitarian
interpretation of Mill.


#### 2.8.1 Felicific Tendencies



Recall that the Proportionality Doctrine says, in part, that
utilitarianism holds that actions are right in proportion as they tend
to promote happiness; wrong as they tend to produce the reverse of
happiness (*U* II 2). Urmson claims that we can make sense of
an action's tendency to produce good or bad consequences only as
a claim about what is true of a *class* or *type* of
actions. Token actions produce specifiable consequences; only types of
actions have tendencies. On Urmson's interpretation, Mill is
really saying that an action is right if it is a token of a type of
act that tends to have good or optimal consequences. So interpreted,
the Proportionality Doctrine would espouse a form of rule
utilitarianism.



But it was common among the Philosophical Radicals to formulate
utilitarianism, as the Proportionality Doctrine does, in terms of the
felicific tendencies of individual actions. For instance, Bentham does
this early in his *Introduction to the Principles of Morals and
Legislation*.



> 
> 
> By the principle of utility is meant that principle which approves or
> disapproves of every action whatsoever, according to the tendency
> which it appears to have to augment or diminish the happiness of the
> party whose interest is in question: or, what is the same thing in
> other words, to promote or oppose that happiness. I say of every
> action whatsoever; and therefore not only every action of a private
> individual, but of every measure of government. (I 2; also see I 3,
> 6)
> 
> 
> 



Here and elsewhere, Bentham clearly ascribes the felicific tendency to
action tokens, and he equates an action's felicific tendency
with the extent to which it promotes utility.



> 
> 
> The general tendency of an act is more or less pernicious, according
> to the sum total of its consequences: that is, according to the
> differences between the sum of such as are good, and the sum of such
> as are evil. (VII 2; also see IV 5)
> 
> 
> 



If we interpret Mill's Proportionality Doctrine against the
background of similar claims made by Bentham, this is evidence against
Urmson's reading and in favor of an act utilitarian reading of
the Proportionality Doctrine (see Berger 1984: 73-78).


#### 2.8.2 Secondary Principles



Urmson also defends a rule utilitarian interpretation as a reading of
Mill's claims about the importance of secondary principles in
our moral reasoning. Mill defends the utilitarian's appeal to
familiar moral precepts about such things as fidelity, veracity, and
fair play as secondary principles that should regulate much moral
reasoning (*U* II 24-25). He seems to believe that
secondary principles often satisfy two conditions.


1. Following the principle generally but imperfectly leads to optimal
results.
2. The suboptimal results that adherence to the principle produces
cannot be identified reliably and efficiently in advance.



When these two conditions are met, Mill believes, agents should for
the most part follow these principles automatically and without
recourse to the utilitarian first principle. However, they should
periodically step back and review, as best they can, whether the
principle continues to satisfy conditions (1) and (2). Also, they
should set aside these secondary principles and make direct appeal to
the principle of utility in unusual cases in which it is especially
clear that the effects of adhering to the principle would be
substantially suboptimal and in cases in which secondary principles,
each of which has a utilitarian justification, conflict (II 19,
24-25).



Regulating one's behavior in this way by secondary principles,
Mill believes, is what will best promote happiness, as he explains in
*A System of Logic*.



> 
> 
> I do not mean to assert that the promotion of happiness should be
> itself the end of all actions, or even all rules of action. It is the
> justification, and ought to be the controller, of all ends, but it is
> not itself the sole end. There are many virtuous actions, and even
> virtuous modes of action (though the cases are, I think, less frequent
> than is often supposed) by which happiness in the particular instance
> is sacrificed, more pain being produced than pleasure. But conduct of
> which this can be truly asserted, admits of justification only because
> it can be shown that on the whole more happiness will exist in the
> world, if feelings are cultivated which will make people, in certain
> cases, regardless of happiness. (*SL* VI.xii.7)
> 
> 
> 



He makes similar claims in his essay "On Bentham"
(*CW* X: 110-11).



Mill's utilitarian justification of secondary principles is
intended as a contrast with the intuitionism of William Whewell and
others. As he makes clear in his essay "Whewell on Moral
Philosophy"(*CW* X), Mill thinks that the intuitionist
wrongly treats familiar moral precepts as ultimate moral factors whose
justification is supposed to be self-evident. By contrast,
Mill's account of secondary principles recognizes their
importance in moral reasoning but insists that they are neither innate
nor infallible; they are precepts that have been adopted and
internalized because of their acceptance value, and their continued
use should be suitably regulated by their ongoing comparative
acceptance value. Far from undermining utilitarian first principles,
Mill thinks, appeal to the importance of such moral principles
actually provides support for utilitarianism.



Whether Mill's claims about the importance of secondary
principles imply rule utilitarianism depends, in part, on whether he
wants to define right action in terms of the best set of secondary
principles or whether they are just a reliable way of doing what is in
fact best. If he defines right action in terms of conformity with
principles with optimal acceptance value, then he is a rule
utilitarian. But if the right action is the best action, and secondary
principles are just a reliable (though imperfect) way of identifying
what is best, then Mill is an act utilitarian. Mill appears to address
this issue in two places. In Chapter II of *Utilitarianism*
Mill appears to suggest that in the case of abstinences or taboos the
ground of the obligation in particular cases is the beneficial
character of the taboo considered as a class (II 19). But in a letter
to John Venn Mill claims that the moral status of an individual action
depends on the utility of its consequences; considerations about the
utility of a general class of actions are just defeasible evidence
about what is true in particular cases (*CW* XVII: 1881).
Unfortunately, natural readings of the two passages point in opposite
directions on this issue, and each passage admits of alternative
readings.



Without clear support for the rule utilitarian reading of secondary
principles, it seems that Mill's main claims about secondary
principles are not inconsistent with act utilitarianism. Moreover, it
is clear that Mill thinks we need to depart from otherwise justified
secondary principles in an important range of cases. Though Mill does
not treat secondary principles as mere rules of thumb in utilitarian
calculation, he does not think that they should be followed
uncritically or independently of their consequences. He thinks that
they should be set aside in favor of direct appeal to the principle of
utility when following them would be clearly suboptimal or when there
is a conflict among secondary principles.


### 2.9 Sanction Utilitarianism



So far, Mill's various claims about duty are largely consistent
with direct utilitarianism, and, hence, act utilitarianism. However,
Chapter V of *Utilitarianism* introduces claims about duty,
justice, and rights that are hard to square with either.



> 
> 
> For the truth is, that the idea of penal sanction, which is the
> essence of law, enters not only into the conception of injustice, but
> into that of any kind of wrong. We do not call anything wrong unless
> we mean to imply that a person ought to be punished in some way or
> other for doing it--if not by law, by the opinion of his fellow
> creatures; if not by opinion, by the reproaches of his own conscience.
> This seems the real turning point of the distinction between morality
> and simple expediency. (V 14)
> 
> 
> 



Here Mill defines wrongness and, by implication, duty, not directly in
terms of the nature of the action or its consequences but indirectly
in terms of appropriate responses to it. He appears to believe that
one is under an obligation or duty to do something just in case
failure to do it is wrong and that an action is wrong just in case
some kind of external or internal sanction--punishment, social
censure, or self-reproach--ought to be applied to its
performance. This test distinguishes duty from expediency (V 14, 15).
Not all suboptimal or inexpedient acts are wrong, only those to which
one ought to apply some sort of sanction (at least,
self-reproach).



Justice is a proper part of duty. Justice involves duties that are
perfect duties--that is, duties that are correlated with rights
(V 15). An act is just if and only if it is not unjust, and it is
unjust just in case it is wrong and violates someone's rights (V
23). Someone has a right just in case she has a claim that society
ought to protect by force of law or public opinion (V 24).



Notice that these relationships among duty, justice, and rights do not
yet introduce any utilitarian elements. But Mill does think that
whether sanctions ought to be applied to an action--and hence
whether it is wrong--and whether society ought to enforce an
individual's claim--and hence whether she has a
right--both depend upon the utility or expediency of doing so (V
25). He does not say precisely what standard of expediency he has in
mind. In particular, he does not say whether the relevant test for
whether something is wrong requires that sanctions be optimal or
merely beneficial. To fix ideas, let us assume that an action is wrong
if and only if it is optimal to sanction it.



Because this account of duty defines the rightness and wrongness of an
act, not in terms of its utility, as act utilitarianism does, but in
terms of the utility of applying sanctions to the conduct, it is an
indirect form of utilitarianism. Because justice is a species of duty,
it inherits this indirect character (also see Lyons 1994). Because it
makes the deontic status of conduct depend upon the utility of
sanctioning that conduct in some way, we might call this conception of
duty, justice, and rights *sanction utilitarianism*. Because
sanction utilitarianism is a species of indirect utilitarianism, it is
inconsistent with act utilitarianism. The introduction of indirect
utilitarian ideas in Chapter V of *Utilitarianism* into an
account of utilitarianism that otherwise looks act utilitarian reveals
a fundamental tension in Mill's thought about duty.


### 2.10 Act vs. Sanction Utilitarianism



Given Mill's ambivalence between direct and indirect
utilitarianism, it is natural to inquire whether one view is more
plausible than the other. Some of Mill's claims in Chapter V
suggest a possible advantage that sanction utilitarianism might have.
In articulating sanction utilitarianism, Mill claims that it allows
him to distinguish duty and expediency and claim that not all
inexpedient acts are wrong; inexpedient acts are only wrong when it is
good or optimal to sanction them. This suggests that sanction
utilitarianism may be preferable to act utilitarianism, because it has
a more plausible account of the relation among different deontic
categories.



Commonsense moral thinking recognizes a familiar fourfold deontic
distinction.


1. wrong or forbidden
2. permissible
3. obligatory
4. supererogatory



The act utilitarian seems unable to account for this fourfold
distinction. It implies that I do wrong every time I fail to perform
the optimal act, even when these suboptimal acts are very good.
Because it makes the optimal obligatory and the suboptimal wrong, it
appears to expand the domain of the forbidden, collapse the
distinction between the permissible and the obligatory, and make no
room for the supererogatory. If the optimal is already one's
duty, there appears to be no room for the supererogatory. By contrast,
sanction utilitarianism does not appear to have these problems. It
offers a distinct account of each category.


1. Wrong or forbidden acts are those whose performance it is optimal
to blame.
2. Permissible acts are those whose performance it is not optimal to
blame.
3. Obligatory acts are those whose omission it is optimal to
blame.
4. Supererogatory acts are permissible acts that are especially
expedient.



In this way, sanction utilitarianism appears to respect this common
deontic categorization and, in particular, to make room for the
supererogatory.



However, the direct utilitarian can and should distinguish between the
moral assessment of an act and the moral assessment of the act of
praising or blaming that act. Each should be assessed, the direct
utilitarian claims, by the utility of doing so. But then it is
possible for there to be wrongdoing (a suboptimal act) that is
blameless or even praiseworthy. But then the direct utilitarian can
appeal to the same distinctions among praiseworthiness and
blameworthiness that the sanction utilitarian appeals to, while
denying that her own deontic distinctions track blame and praise. So,
for instance, there can be acts that are wrong, because suboptimal,
that it would nonetheless be wrong to blame, because this would be
suboptimal. If so, it is unclear that sanction utilitarianism enjoys
any real advantage here over act utilitarianism.



Moreover, sanction utilitarianism appears to have disadvantages that
act utilitarianism does not. One such problem derives from its
*hybrid* structure. Sanction utilitarianism is impurely
indirect. For while it provides an indirect utilitarian theory of
duty, the account it provides of when sanctions should be applied to
conduct is direct--it depends upon the consequences of applying
sanctions. Sanction utilitarianism provides an indirect utilitarian
account of the conditions under which an action--any
action--is right or wrong. This general criterion is that any
action is wrong to which one ought to attach sanctions. But imposing
sanctions is a kind of action, and we can ask whether the imposition
of a particular sanction would be right or wrong. The general
criterion implies that we should answer this question about the
rightness of applying sanctions in sanction-utilitarians terms,
namely, by asking whether it would be right to sanction the failure to
apply sanctions. This introduces a second-order sanction, whose
rightness we can now ask about. We seem to be off on an infinite
regress of sanctions. Sanction-utilitarianism avoids the regress
because it provides a direct utilitarian answer to the question when
to apply the first-order sanction. It says that a sanction should be
applied iff doing so is optimal. Though this avoids a regress, it
appears to render sanction utilitarianism internally inconsistent.


1. Any act is right iff and because it is optimal to apply sanctions
to its omission (the indirect claim).
2. Applying sanctions is right iff and because doing so is optimal
(the direct claim).



(2) is inconsistent with (1).



The different strands in Mill's utilitarian conception of duty
require disentangling. In his central exposition of the utilitarian
standard in Chapter II, Mill commits himself to act utilitarianism in
multiple passages. In that same chapter, he focuses on the felicific
tendencies of actions and assigns a significant role to rules within
moral reasoning, both of which have been taken to commit him to a rule
utilitarian doctrine. However, these claims are reconcilable with
direct utilitarianism and so provide no good reason to depart from a
traditional act utilitarian reading of that chapter. But in Chapter V
Mill does introduce indirect utilitarian ideas in the doctrine of
sanction utilitarianism. It is hard to reconcile these direct and
indirect elements in Mill's conception of duty.


### 2.11 The Proof of Utility



We have focused so far on understanding Mill's version of
utilitarianism, especially his conceptions of happiness and duty. Now
we should consider his justification of utilitarianism, which he
offers in his discussion of the "proof" of the principle
of utility in Chapter IV. Mill claims that the utilitarian must claim
that happiness is the one and only thing desirable in itself (IV 2).
He claims that the only proof of desirability is desire and proceeds
to argue that happiness is the one and only thing desired. He argues
that a person does desire his own happiness for its own sake and that,
therefore, happiness as such is desired by and desirable for its own
sake for humanity as a whole ("The aggregate of all
persons") (IV 3). He then turns to defend the claim that
happiness is the only thing desirable in itself, by arguing that
apparent counterexamples (e.g., desires for virtue for its own sake)
are not inconsistent with his claim (IV 5-8).



One traditional reconstruction of Mill's proof might look
something like this.


1. Utilitarianism is true iff happiness is the one and only thing
desirable for its own sake (and not for the sake of something
else).
2. The only proof of desirability is desire.
3. Each person desires his own happiness for its own sake (and not
for the sake of something else).
4. Hence, happiness, as such, is desired for its own sake (and not
for the sake of something else) from the point of view of humanity (=
the aggregate of persons).
5. Hence, happiness, as such, is desirable for its own sake (and not
for the sake of something else).
6. Happiness is the only thing desired for its own sake (and not for
the sake of something else). Other things--such as virtue,
health, music, money, and power--can come to be desired for their
own sakes, but then they are desired as parts of happiness.
7. Hence, happiness is the only thing desirable for its own sake (and
not for the sake of something else).
8. Hence, utilitarianism is true.



The proof has, at least in some quarters, threatened Mill's
reputation as a careful philosopher. Here is a partial list of
concerns about Mill's argument, as traditionally conceived.


1. (1) is plausible only if "desirable" means worthy of
being desired, not if it means capable of being desired. But (2) is
most plausible if "desirable" means capable of being
desired (see (iii) below). But then there is a real worry that the
argument trades on a tacit equivocation between these two different
senses of "desirable" and that the argument is, as a
result, invalid.
2. Even so, (1) is false. Even if happiness were the one and only
thing desirable for its own sake, this would establish only a claim
about the good or "ends." It is not a claim about duty or
right action. Utilitarianism not only claims that the good is human
happiness but goes on to define the right in terms of promoting the
good. The second claim does not follow from the first.
3. For the argument to be valid, "desirability" in
premise (2) must mean worthy of being desired (as it does in premise
(1)). But then (2) is false. Desire is not proof of desirability.
People can and do have mistaken desires about what is good. Indeed, if
Mill is either a hedonist or a perfectionist he must think that people
can and do have desires that fail to track the good.
4. It is not clear that (3) is true. It seems as if masochists or
selfless altruists might fail to desire their own happiness for its
own sake.
5. (4) may be incoherent and certainly does not follow from (3). It
is not clear that aggregates of persons have desires. Perhaps under
special circumstances groups of people might form a corporate agent or
person. But aggregates of persons, as such, are not persons and do not
have desires. Even if they did, it is doubtful that one could infer
what the aggregate desires from facts about what its members desire.
That would involve a compositional fallacy.
6. (5) is presumably equivalent to the claim that happiness is good.
But is it good simpliciter or good for the aggregate? The analogy
between individuals and groups would suggest that happiness should be
a good for the aggregate. But presumably the intended conclusion
requires that happiness be good simpliciter.
7. It is not clear how to understand (6). One would think that the
aim is to make claims that parallel (4) and (5). But then (6) needs to
be understood as making another claim about aggregate psychology. And
this raises some of the earlier questions about aggregate psychology.
However, much of the discussion in IV 5-8 seems to be about
individual psychology. Mill seems to be saying that insofar as
individuals do have intrinsic desires for things other than their own
happiness the objects of intrinsic desire are desired as parts of
their own happiness. Perhaps this is Mill's initial claim from
which he then hopes to infer, as he did from (3)-(4), that the
general happiness is the only thing desired by the aggregate for its
own sake (and not for the sake of something else). This inference
would, of course, give rise to the same sort of worries we raised
about the inference from (3)-(4). In particular, we might doubt
that aggregates of persons have any aims, much less ultimate aims. And
even if we conceded that they did, it is not clear that we could infer
facts about the desires of aggregates from facts about the desires of
its members. That, we said, would seem to involve a compositional
fallacy.
8. Even if we accepted this defense of (5) and (7), this would only
establish that happiness as such was the only thing desirable or good
for the aggregate. It looks like we could have parallel claims about
the agent's own happiness being the only thing desirable or good
for the individual. But this might seem to imply that while the
aggregate should pursue or promote the general happiness individuals
should pursue or promote their own happiness. That would not be a
defense of utilitarianism.



These are all serious worries about Mill's proof, as
traditionally conceived. These objections seem so serious and so
obvious that they should make us wonder if there is a more plausible
interpretation of his proof.



For one thing, Mill need not confuse desire and desirability. He
recognizes that they are distinct, but says that desire is our only
proof of desirability (IV 3). In saying this, he need not presuppose
that desiring something confers value on (obtaining) it. Our desires
often reflect value judgments we make, explicitly or implicitly. If
so, our desires will be evidence of what we regard as valuable, and
our reflectively acceptable desires may provide our best defeasible
test of what things are objectively valuable.



Mill first applies this test to what each of us desires for her own
sake. His answer is that what each of us desires for her own sake is
happiness (IV 3). We needn't interpret Mill as endorsing
psychological egoism at this point. Rather, he is saying when each of
us does focus on her own ends or sake, we find that each cares about
her own happiness. Another way to put Mill's point is that
prudential concern focuses on the agent's happiness.



Mill goes on to say that just as each person's own happiness is
a good to that person, so too happiness, as such, is a good to the
aggregate of persons. But we need not suppose that Mill is attributing
a psychology, much less an egoist psychology, to humanity as a group.
Instead, we can read Mill as claiming that just as the agent's
own happiness is the object of prudential concern, so too happiness as
such is the proper object of disinterested or impartial concern.



On this reading, Mill is not trying to derive utilitarianism from
egoism (see Hall 1949). Rather, he is assuming that the moral point of
view is impartial in a way that prudence is not. Just as prudence aims
at the agent's own happiness, so too, Mill thinks, morality,
which is impartial, aims at happiness as such. On this reading, the
structure of Mill's proof looks something like this.


1. Prudence is partial.
2. Because prudence is partial, it aims at the agent's own
happiness.
3. Morality, by contrast, is impartial.
4. Because morality is impartial, it aims at happiness as such.
5. If the moral point of view aims at happiness as such, then it is
the moral duty of each to promote happiness.
6. Hence, utilitarianism is true.



If this is the right way to understand Mill's proof, then his
justification of utilitarianism consists in assuming that the moral
point of view is impartial and claiming that utilitarianism is the
right way to understand impartiality. Morality is impartial, and
impartiality requires taking everyone's interests into
account--and not just those of some select few--and weighing
them equally--and not with a thumb in the scales for some select
few. Indeed, later, in Chapter V, Mill identifies impartiality and its
progressive demands with both justice and morality.



> 
> 
> It [impartiality] is involved in the very meaning of Utility, or the
> Greatest-Happiness Principle. That principle is a mere form of words
> without rational signification, unless one person's happiness,
> supposed equal in degree (with the proper allowance made for kind), is
> counted for exactly as much as another's. Those conditions being
> supplied, Bentham's dictum 'everybody to count for one,
> nobody for more than one,' might be written under the principle
> of utility as an explanatory commentary. The equal claim of everybody
> to happiness in the estimation of the moralist and the legislator
> involves an equal claim to all the means of happiness .... And
> hence all social inequalities which have ceased to be considered
> expedient, assume the character not of simple inexpediency, but of
> injustice. The entire history of social improvement has been a series
> of transitions, by which one custom or institution after another, from
> being supposed a primary necessity of social existence, has passed
> into the rank of universally stigmatized injustice and tyranny. So it
> has been with the distinctions of slaves and freemen, nobles and
> serfs, patricians and plebeians; and so it will be, and in part
> already is, with the aristocracies of colour, race, and sex. (V
> 36)
> 
> 
> 



Here we see Mill identifying utilitarian impartiality with the demands
of justice and morality itself (also see Crisp 1997: 79-80).



One might wonder if utilitarianism is the only or the best way to
understand impartiality. Indeed, this is one way of understanding now
familiar worries about the implications of utilitarianism for issues
of distributive justice and individual rights. But this reading of the
proof has the virtue of identifying Mill's defense of
utilitarianism with the feature of it that made it a progressive
influence historically.


### 2.12 The Sanctions of Utility



In Chapter III of *Utilitarianism* Mill addresses the question
of the ultimate sanction of the principle of utility. He understands
this alternately as a question about "the motives to obey
it" and the "source of its obligation ... [or]
binding force" (III 1). Mill recognizes a potential worry about
the sanctions of utilitarianism that apparently has its source in
prudence or self-interest.



> 
> 
> He [an agent] says to himself, I feel that I am bound not to rob or
> murder, betray or deceive; but why am I bound to promote the general
> happiness? If my own happiness lies in something else, why may I not
> give that the preference? (III 1)
> 
> 
> 



But this worry about potential conflicts between the agent's own
interests and utilitarian moral demands seems to arise for any
conception of morality that recognizes other-regarding moral demands.
For this reason, Mill seems to think that it poses no special problem
for utilitarianism (III 1, 2, 3, 6).



Is Mill right that there is no special threat to utilitarianism here?
One might wonder whether utilitarianism makes greater demands on
agents than other moral theories. Contemporary writers have argued
that utilitarianism seems to be potentially very demanding, much more
so than commonsense morality. For instance, reformist utilitarians,
such as Peter Singer (1972), have argued that utilitarianism entails
extensive duties of mutual aid that would call for significant changes
in the lifestyles of all those who are even moderately well off. And
critics of utilitarianism have treated the demandingness of
utilitarianism as one of its principal flaws. Rawls (1971) has argued
that the sort of interpersonal sacrifice that utilitarianism requires
violates the strains of commitment in a well-ordered society. And
Bernard Williams (1973) has argued that the demandingness of
utilitarianism threatens the sort of personal projects and partial
relationships that help give our lives meaning. The common complaint
here is that utilitarianism's demands threaten to offend against
a requirement of *psychological realism*, according to which
the demands of an acceptable moral theory must be ones that can be
incorporated into a reasonable and satisfying life plan.



This worry about the demands of utilitarianism is not easy to assess.
One might wonder how to interpret and whether to accept the
psychological realist constraint. If the constraint is relative to
people's actual psychologies, then it represents a potentially
conservative constraint on moral theorizing that one might well
reject. If the constraint is relative to possible or ideal psychology,
then it is not clear that even a highly revisionary moral theory need
flout the constraint. Then there is a question about how demanding or
revisionary utilitarianism actually is. Mill and Sidgwick thought that
our knowledge of others and our causal powers to do good were limited
to those near and dear and other associates with whom we have regular
contact, with the result that as individuals we do better overall by
focusing our energies and actions on associates of one kind or
another, rather than the world at large (*U* II 19; Sidgwick,
*Methods* 361-69). On this view, utilitarianism can
accommodate the sort of special obligations and personal concerns to
which the critics of utilitarianism appeal. But it is arguable that
even if this sort of utilitarian accommodation was tenable in
nineteenth century Britain, technological development and
globalization have rendered utilitarian demands more revisionary. Our
information about others and our causal reach are not limited as they
once were. Given the high benefit-to-cost ratio of many modern relief
agencies, it is hard to resist something like Singer's
conclusions about the reformist demands of utilitarianism. So even if
Mill was right to think that the motivational demands of
utilitarianism were not so different from those of other moral
theories at the time he wrote, that claim might need to be reassessed
today.


## 3. Mill's Liberalism



Mill's *On Liberty* is the most influential statement of
his liberal principles. He begins by distinguishing old and new
threats to liberty. The old threat to liberty is found in traditional
societies in which there is rule by one (a monarchy) or a few (an
 aristocracy).[1]
 Though one could be worried about restrictions on liberty by
benevolent monarchs or aristocrats, the traditional worry is that when
rulers are politically unaccountable to the governed they will rule in
their own interests, rather than the interests of the governed. In
particular, they will restrict the liberties of their subjects in ways
that benefit themselves, rather than the ruled. It was these
traditional threats to liberty that the democratic reforms of the
Philosophical Radicals were meant to address. But Mill thinks that
these traditional threats to liberty are not the only ones to worry
about. He makes clear that democracies contain their own threats to
liberty--this is the tyranny, not of the one or the few, but of
the majority (*OL* I 1-5). Mill sets out to articulate
the principles that should regulate how governments and societies,
whether democratic or not, can restrict individual liberties (I
6).


### 3.1 Liberal Principles and the Categorical Approach



In an early and famous passage Mill conceives of liberalism in terms
of "one very simple principle."



> 
> 
> The object of this essay is to assert one very simple principle, as
> entitled to govern absolutely the dealings of society with the
> individual in the way of compulsion and control, whether the means
> used be physical force in the form of legal penalties or the moral
> coercion of public opinion. That principle is that the sole end for
> which mankind are warranted, individually or collectively, in
> interfering with the liberty of action of any of their number is
> self-protection. 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. His own good, either physical
> or moral, is not a sufficient warrant. He cannot rightfully be
> compelled to do or forbear because it will be better for him to do so,
> because it will make him happier, because, in the opinions of others,
> to do so would be wise or even right. These are good reasons for
> remonstrating with him, or reasoning with him, or persuading him, or
> entreating him, but not for compelling him or visiting him with any
> evil in case he do otherwise. To justify that, the conduct from which
> it is desired to deter him must be calculated to produce evil to
> someone else. The only part of the conduct of anyone for which he is
> amenable to society is that which concerns others. In the part which
> merely concerns himself, his independence, is, of right, absolute.
> Over himself, over his own body and mind, the individual is sovereign.
> (I 9)
> 
> 
> 



In this passage, Mill distinguishes paternalistic and moralistic
restrictions of liberty from restrictions of liberty based upon the
harm principle and claims that the harm prevention is the sole
legitimate basis for restricting individual liberties.


* *A*'s restriction of *B*'s liberty is
*paternalistic* if it is done for *B*'s own
benefit.
* *A*'s restriction of *B*'s liberty is
*moralistic* if it is done to ensure that B acts morally or not
immorally.
* *A*'s restriction of *B*'s liberty is an
application of the *harm principle* if it is done to prevent
harm to someone other than *B*.



Later, Mill distinguishes between genuine harm and *mere
offense*. In order to satisfy the harm principle, an action must
violate or risk violation of those important interests of others in
which they have a right (I 12; III 1; IV 3, 10; IV 12; V 5).



These distinctions allow Mill to defend a *categorical
approach* to liberal rights. To decide whether an
individual's liberty ought to be protected, we must ascertain to
which category the potential restriction of liberty belongs: offense,
moralism, paternalism, and harm prevention. Mill seems to permit or
forbid restrictions on liberty by category, claiming that the only
restrictions that are permissible involve harm prevention. Of course,
a given regulation might fall under more than one category. Many
provisions of the criminal law, such as prohibitions on murder and
assault, might be designed both to enforce fundamental moral
provisions and to prevent harm to others. Mill does not object to
moralistic or paternalistic legislation that can also be defended by
appeal to the harm principle. Rather, the objection is to restrictions
that can only be justified in these ways and cannot be justified by
appeal to harm prevention.



Harm prevention is a necessary but not sufficient ground for
restricting individual liberties. Harm prevention is sufficient to
establish a *pro tanto* case for regulation (I 11), but whether
regulation is all things considered appropriate depends on a
utilitarian calculation of whether the benefits of regulation exceed
its costs.



> 
> 
> As soon as any part of a person's conduct affects prejudicially
> the interests of others, society has jurisdiction over it, and the
> question whether the general welfare will or will not be promoted by
> interfering with it, becomes open to discussion. (IV 3)
> 
> 
> 



This means that the harm principle is not in fact Mill's only
principle, because we cannot decide whether regulations that would
prevent harm should be adopted without appealing to the principle of
utility. But even if harm prevention is not sufficient to justify
restricting liberty, Mill does appear to claim that it is
necessary.



Sometimes Mill suggests that the harm principle is equivalent to
letting society restrict other-regarding conduct (I 11; IV 2). On this
view, conduct can be divided into self-regarding and other-regarding
conduct. Regulation of the former is paternalistic, and regulation of
the latter is an application of the harm principle. So on this view it
is never permissible to regulate purely self-regarding conduct and
always permissible to regulate other-regarding conflict. But, as Mill
himself concedes, very little conduct is purely self-regarding (IV 8).
Some other-regarding conduct causes mere offense, not genuine harm (IV
3; IV 12). So Mill cannot equate harmful behavior and other-regarding
behavior and cannot think that all other-regarding behavior may be
regulated.



It is generally thought that by applying this categorical approach to
liberty and its permissible restrictions Mill is led to offer a fairly
extensive defense of individual liberties against interference by the
state and society. In particular, it is sometimes thought that Mill
recognizes a large sphere of conduct which it is impermissible for the
state to regulate. We might characterize this sphere of protected
liberties as Mill's conception of *liberal rights*. On
this reading, Mill is deriving his conception of liberal rights from a
prior commitment to the categorical approach and, in particular, to
the harm principle (see Jacobson 2000 for an alternative reading).


### 3.2 Categories, Rights, and Utility



There is an apparent tension between Mill's commitment to a
categorical approach to basic liberties and his defense of
utilitarianism. Utilitarianism treats the good as prior to and
independent of the right or duty--defining duty as the promotion
of good consequences. Perhaps certain kinds of actions tend to be good
or bad, but, according to direct utilitarianism, the moral quality of
a particular action depends on its own consequences. By contrast, the
deontological and natural rights traditions treat duty or the right as
prior to and independent of the good. In particular, deontologists
believe that it is not always one's duty to promote good
consequences. Sometimes one has a duty to do an act that is
suboptimal, and sometimes it is wrong to do the optimal act.
Deontologists recognize moral *constraints* on pursuing the
good. These constraints usually take the form of *categorical
rules* to perform or refrain from certain sorts of actions (e.g.,
to keep promises or to refrain from lying), regardless of the
consequences. A special case of this perceived conflict between
categorical rules and utility is the perceived tension between utility
and *rights*. For, on a common view, individual rights just are
a special case of categorical rules. Individual rights, such as rights
to liberties or to freedom from harm, are interpreted as
"trumps" or "side constraints" on the pursuit
of good consequences (Dworkin 1977: xi, 184-205; Nozick 1974:
28-35).



The apparent conflict between utility and rights poses an interesting
test for Mill, because he wants to defend liberal rights that have
utilitarian foundations.



> 
> 
> It is proper to state that I forego any advantage which could be
> derived to my argument from the idea of abstract right as a thing
> independent of utility. I regard utility as the ultimate appeal on all
> ethical questions; but it must be utility in the largest sense,
> grounded on the permanent interests of man as a progressive being.
> (*OL* I 11)
> 
> 
> 



We need to ask if Mill is able to reconcile his defense of utility and
liberty without compromising either his utilitarianism or his defense
of a right to liberties.


### 3.3 Freedom of Expression



Mill begins his defense of basic liberties with a discussion of
freedom of expression. He thinks that there is general agreement on
the importance of free speech and that, once the grounds for free
speech are understood, this agreement can be exploited to support a
more general defense of individual liberties (I 16; III 1). So his
defense of expressive liberties is important not only in its own right
but also insofar as it lays the foundation of his liberal
principles.



Mill's discussion of censorship in Chapter II focuses on
censorship whose aim is to suppress false or immoral opinion (II
1-2). He mentions four reasons for maintaining free speech and
opposing censorship.


1. A censored opinion might be true (II 1-20, 41).
2. Even if literally false, a censored opinion might contain part of
the truth (II 34-39, 42).
3. Even if wholly false, a censored opinion would prevent true
opinions from becoming dogma (II 1-2, 6, 7, 22-23,
43).
4. As a dogma, an unchallenged opinion will lose its meaning (II 26,
43).



It is natural to group these four considerations into two main kinds:
the first two invoke a truth-tracking defense of expressive liberties,
while the second two appeal to a distinctive kind of value that free
discussion is supposed to have.


#### 3.3.1 The Truth-Tracking Rationale



The first two claims represent freedom of expression as instrumentally
valuable; it is valuable, not in itself, but as the most reliable
means of producing something else that Mill assumes is valuable
(either extrinsically or intrinsically), namely, true belief. It is
not hard to see how true beliefs would possess at least instrumental
value, if only because our actions, plans, and reasoning are likely to
be more successful when based on true beliefs. Of course, the most
reliable means of promoting true belief would be to believe
everything. But that would bring a great deal of false belief along
too. A more plausible goal to promote would be something like the
ratio of true belief to false belief. Freedom of expression might then
be defended as a more reliable policy for promoting the ratio of true
belief to false belief than a policy of censorship. This rationale for
freedom of expression is echoed by Justice Oliver Wendell Holmes in
his famous dissent in *Abrams v. United States* (1919) when he
claims that the best test of truth is free trade in the marketplace of
ideas.



Notice that this instrumental defense of freedom of expression does
not require the mistaken assumption that the censor must assume his
own infallibility (*OL* II 3). The censor can recognize that he
might be mistaken, but insist that he must act on the best available
evidence about what is true. Mill can reply that proper
recognition of one's own fallibility should typically lead one to keep
discussion open and not foreclose discussion of possibilities that
seem improbable.



This instrumental rationale may justify freedom of expression in
preference to a policy of censorship whenever the censor finds the
beliefs in question implausible or offensive. But it does not justify
freedom of expression in preference to more conservative forms of
censorship. If the question is what policies are likely to increase
the ratio of true to false belief, we would seem to be justified in
censoring opinions for whose falsity there is especially clear,
compelling, and consistent or stable evidence. We would be on good
ground in censoring flat-earthers (both literal and figurative).



Another way to see the weakness of the truth-tracking justification of
freedom of expression is to notice that this instrumental defense of
freedom of expression cannot explain what is wrong with censorship
that is successful in truth-tracking terms. Suppose we lived in a
society of the sort Plato imagines in the *Republic* in which
cognitive capacities are distributed unequally between rulers and
citizens and in which maximally knowledgeable and reliable
censors--call them "philosopher kings"--censor
all and only false beliefs. The truth-tracking argument would provide
no argument against censorship in such circumstances. This shows that
the truth-tracking argument condemns only *unsuccessful* or
*incompetent* censorship. For some, this may be the biggest
worry about censorship. But many would have residual worries about
*successful* or *competent* censorship. They would
object to censorship, even by philosopher-kings. Answering this worry
requires a more robust defense of expressive liberties.


#### 3.3.2 The Deliberative Rationale



The resources for a more robust defense of freedom of expression can
be found in Mill's claim that it is needed to keep true beliefs
from becoming dogmatic, because this reason for valuing freedom is
intended to rebut the case for censorship even on the assumption that
all and only false beliefs would be censored (II 2, 21).



Mill's claim that the value of freedom of expression lies in
keeping true beliefs from becoming dogmatic reflects his view that
freedoms of thought and discussion are necessary for fulfilling our
natures as progressive beings (*OL* II 20). For instance, Mill
appeals to a familiar distinction between *true belief*, on the
one hand, and *knowledge*, understood as something like
*justified true belief*, on the other hand (II 22; cf. Scanlon
1972; Ten 1980: 126-28). Progressive beings seek knowledge or
justified true belief, and not simply true belief. Whereas the mere
possession of true beliefs need not exercise one's deliberative
capacities, because they might be the product of indoctrination, their
justification would. One exercises deliberative capacities in the
justification of one's beliefs and actions that is required for
theoretical and practical knowledge. This is because justification
involves comparison of, and deliberation among, alternatives (II 6, 7,
8, 22-23, 43). Freedoms of thought and discussion are essential
to the justification of one's beliefs and actions, because
individuals are not cognitively self-sufficient (II 38, 39; III 1).
Sharing thought and discussion with others, especially about important
matters, improves one's deliberations. It enlarges the menu of
options, by identifying new options worth consideration, and helps one
better assess the merits of these options, by forcing on one's
attention new considerations and arguments about the comparative
merits of the options. In these ways, open and vigorous discussion
with diverse interlocutors improves the quality of one's
deliberations. If so, censorship, even of false belief, can rob both
those whose speech is suppressed and their audience of resources that
they need to justify their beliefs and actions (II 1).



This deliberative rationale can explain why it is often wrong to
censor even false beliefs. In this way, Mill's defense of
expressive liberties that relies on his perfectionist appeal to
deliberative values is a more robust defense than the one provided by
his truth-tracking arguments alone.


### 3.4 A Perfectionist Defense of Basic Liberties



Though important in its own right, Mill's defense of freedom of
thought and discussion provides the resources for a more general
defense of basic liberties of thought and action that Mill offers in
the balance of *On Liberty*. A good human life is one that
exercises one's higher capacities (I 11, 20; III 1-10); a
person's higher capacities include her deliberative capacities,
in particular, capacities to form, revise, assess, select, and
implement her own plan of life. This kind of self-government requires
both positive and negative conditions. Among the positive conditions
it requires is an education that develops deliberative competence by
providing understanding of different historical periods and social
possibilities, developing cultural and aesthetic sensibilities,
developing skills essential for critical reasoning and assessment, and
cultivating habits of intellectual curiosity, modesty, and
open-mindedness (V 12-15). Among the negative conditions that
self-government requires are various liberties of thought and action.
If the choice and pursuit of projects and plans is to be deliberate,
it must be informed as to the alternatives and their grounds, and this
requires intellectual freedoms of speech, association, and press that
expand the menu of deliberative options and allow for the vivid
representation of the comparative merits of options on that menu. If
there is to be choice and implementation of choices, there must be
liberties of action such as freedom of association, freedom of
worship, and freedom to choose one's occupation.



Indeed, liberties of thought and action are importantly related. This
is apparent in the pre-eminent value Mill assigns to diversity and
experimentation in life-style. Indeed, in his *Autobiography*
Mill describes this as the central truth of *On Liberty*:



> 
> 
> 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. (*Autobiography*
> 259)
> 
> 
> 



Diversity and experimentation in life-style are important not only
insofar as they are expressions of self-government but also insofar as
they enhance self-government. For experimentation and diversity of
life-style expand the deliberative menu and bring out more clearly the
nature and merits of options on the menu (*OL* II 23, 38; III
1).


### 3.5 Limits on Liberty



Despite this robust rationale for liberties of thought and action, it
is also important to see that Mill is not treating liberty as an
intrinsic good or endorsing an unqualified right to liberty.



First, we should note that Mill does not defend liberty *per
se*, but only certain *basic liberties*. His defense
focuses on three basic categories of liberty (I 12).


1. Liberties of conscience and expression
2. Liberties of tastes, pursuits, and life-plans
3. Liberties of association



Though these liberties evidently include quite a bit, there is no
suggestion here that any and all liberty deserves protection. Why not?
Insofar as Mill defends individual liberties by appeal to deliberative
values, he can distinguish the importance of different liberties in
terms of their role in practical deliberation. A central part of
practical deliberation is forming ideals and regulating one's
actions and plans in accordance with these ideals. But some liberties
seem more central than others to the selection of personal ideals. For
instance, it seems plausible that liberties of speech, association,
worship, and choice of profession are more important than liberties to
drive in either direction on streets designated as one-way, liberties
not to wear seat belts, or liberties to dispose of one's gross
income as one pleases, because restrictions on the former seem to
interfere more than restrictions on the latter with deliberations and
choices about what sort of person to be.



Second, even the exercise of basic liberties is limited by the harm
principle, which justifies restricting liberty to prevent harm to
others. Even expressive liberties can be restricted when their
exercise poses a "clear and present danger" to others.



> 
> 
> [E]ven opinions lose their immunity when the circumstances in which
> they are expressed are such as to constitute their expression a
> positive instigation to some mischievous act. An opinion that corn
> dealers are starvers of the poor, or that private property is robbery,
> ought to be unmolested when simply circulated through the press, but
> may justifiably incur punishment when delivered orally to an excited
> mob assembled before the house of a corn dealer, or when handed about
> among the same mob in the form of a placard. (III 1)
> 
> 
> 



There are interesting questions about the correct interpretation of
the harm principle, which we will examine later. But Mill's
commitment to some version of the harm principle as a ground for
restricting liberty is hard to dispute.



Third, it is important to be clear about how Mill values basic
liberties. To account for the robust character of his perfectionist
argument, it is tempting to suppose that Mill thinks these basic
liberties are themselves important intrinsic goods (see Berger 1984:
41, 50, 199, 231-32; Bogen and Farrell 1978: 325-28). But
in Mill's introductory remarks he insists that his liberal
principles do not apply to individuals who do not have a suitably
developed normative competence (I 10). So, for instance, the
prohibition on paternalism does not extend to children with immature
deliberative faculties or to adults with very limited normative
competence, whether due to congenital defects or social circumstance.
Such restrictions on the scope of Mill's principles make little
sense if basic liberties are dominant intrinsic goods, for then it
should always be valuable to accord people liberties--a claim
that Mill denies. Instead, Mill claims that these liberties have value
only when various necessary conditions for the exercise of
deliberative capacities--in particular, sufficient rational
development or normative competence--are in place.


### 3.6 The Harm Principle



With a better understanding of the rationale and limits of
Mill's liberal principles, we can take a closer look at the
details of his categorical approach, including its
centerpiece--the harm principle.



First, recall that Mill distinguishes between *harm* and
*mere offense*. Not every unwelcome consequence for others
counts as a harm. Offenses tend to be comparatively minor and
ephemeral. To constitute a harm, an action must be injurious or set
back important interests of particular people, interests in which they
have rights (I 12; III 1; IV 3, 10, 12; V 5). Whereas Mill appears to
reject the regulation of mere offense, the harm principle appears to
be the one justification he recognizes for restricting liberty.



Second, Mill envisions that the harm principle is something that we
can apply prospectively to prevent someone from acting in certain ways
and causing harm. In many cases all we could reasonably know is that a
given action *risks* harm. Fortunately, this seems to be all
that Mill requires (IV 10). There are interesting and important
questions about what threshold of risk must be met for purposes of the
harm principle, which Mill does not address. Presumably, the threshold
should vary inversely with the magnitude of the harm risked, so that
the probability of harm required to justify regulation is lower the
greater the harm risked.



Third, Mill wants the harm principle to have *wide scope*. He
insists that the harm principle regulates more than relations between
government and individuals. Its application should include the family,
in particular, relationships between husbands and wives and parents
and children (V 12). Here, he prefigures some claims he will develop
in *The Subjection of Women* (discussed below).



Fourth, though Mill often focuses simply on harm, it appears that his
real focus is on *non-consensual* harm (I 2; see Saunders
2016). He endorses the maxim *volenti non fit injuria*, which
he glosses in *Utilitarianism* as the doctrine that "that
is not unjust which is done with the consent of the person who is
supposed to be hurt by it" (*U* V 28). It is not that one
cannot be hurt by something one has consented to or freely risked.
Rather, when one has knowingly and willing risked something harmful,
one cannot legitimately complain when that harm comes home to roost.
Having my nose broken surely counts as a harm, but if you broke my
nose in a boxing match, I cannot fairly complain about the harm,
because I consented to the risk.



Does Mill really treat the harm principle as the sole legitimate basis
for restricting the liberties of individuals? As we have seen, Mill
cannot think that harm prevention is sufficient to justify restricting
liberty.



> 
> 
> As soon as any part of a person's conduct affects prejudicially
> the interests of others, society has jurisdiction over it, and the
> question whether the general welfare will or will not be promoted by
> interfering with it, becomes open to discussion. (*OL* IV
> 3)
> 
> 
> 



Later, Mill makes clear that harm prevention is necessary but not
sufficient to justify restrictions on liberty.



> 
> 
> [I]t must by no means be supposed, because damage, or probability of
> damage, to the interests of others, can alone justify the interference
> of society, that therefore it always does justify such interference.
> (V 3)
> 
> 
> 



These claims demonstrate that Mill is not committed to a simple
version of the sufficiency of harm for restrictions on liberty.
However, these claims are compatible with Mill endorsing a weaker
version of sufficiency.



> 
> 
> If anyone does an act hurtful to others, there is a *prima
> facie* case for punishing him by law or, where legal penalties are
> not safely applicable, by general disapprobation. (I 11)
> 
> 
> 



This suggests that Mill's position is that causing harm is
always *pro tanto* reason--a non-negligible
reason--to regulate the action, but nonetheless a reason that
might be outweighed by countervailing reasons not to regulate. If the
regulation is more harmful than the behavior in question, it may be
best not to regulate, despite the *pro tanto* case for
regulation. This suggests that we should distinguish stronger and
weaker versions of the idea that harm is sufficient to justify
regulation.


* *Weak Sufficiency*: Harm to others is a *pro tanto*
justification of regulation.
* *Strong Sufficiency*: Harm to others is a
*conclusive* justification of regulation.



Once we distinguish these options, there is a pretty compelling case
for thinking that Mill rejects strong sufficiency but embraces weak
sufficiency.



But notice that if Mill rejects strong sufficiency then this
compromises his one very simple principle. For only strong sufficiency
shows that the harm principle is a complete guide to the regulation of
liberty, telling us both when regulation is impermissible and when it
is required. Even weak sufficiency implies that the harm principle
must be supplemented with some other principle, such as the
utilitarian principle, in order to determine if regulation is
permissible, much less required. Mill's doubts about strong
sufficiency imply that his own conception of liberal rights requires
more than the harm principle.



In rejecting strong sufficiency, Mill claims that actions that cause
losses in a fair competition should not be regulated (V 3-4).
This case would fall within his "free-trade" exception,
which limits the scope of the liberty principle (V 4). Unfortunately,
Mill is not entirely clear about the basis for the free-trade
exception. After all, losses, even in a fair competition, can be
harmful. If I have a successful business selling widgets and then you
move into the area selling widgets at a big discount and drive me out
of business, forcing me into bankruptcy, I suffer a significant loss,
making me worse off than I would otherwise have been.



If Mill accepts weak, rather than strong, sufficiency, then he might
claim that though there is a reason to regulate harmful economic
competition the costs of interfering with free markets are too great.
However, this seems not be Mill's preferred response. His
official position seems to be that the harm principle should not be
applied to such economic harms (IV 4). It is hard to see why Mill
embraces this sort of free-trade exception. A different and better
reply would not suspend the operation of the harm principle in such
cases but rather claim that such losses should not be understood as
harms, in the relevant sense. Mill might make either of two related
arguments for not treating such losses as harms. First, he might
invoke the *volenti* principle and insist that the harm
principle targets only non-consensual harms. He could then argue that
in a market economy that ensures fair terms of cooperation economic
losses of the sort described are freely risked and so consensual, in
the relevant sense. Second, Mill can and does claim that competitive
losses are not harms, because they do not deprive economic actors of
something to which they have a right (*OL* V 3). Recall that
Mill says that a harm involves damage to an interest to which a person
has a right (I 12; III 1; IV 3, 10, 12; V 5). You may beat me out in a
fair competition for a job. But I don't seem to have a right to
the job. Instead, what I have is a right of fair opportunity to
compete for the job.



Is harm necessary to justify regulation? Though some of Mill's
pronouncements suggest that causing harm is a necessary condition of
restricting liberty, closer inspection suggests that Mill countenances
various restrictions on individual liberty that appear designed to
benefit others, rather than prevent harm. Let's focus on two
main kinds of apparent exceptions to the necessity thesis: (1)
enforceable duties to others that benefit them, such as the duty to
give evidence in court and Good Samaritan duties (I 11) and (2)
enforceable duties to contribute one's fair share to the
provision of various kinds of public goods (IV 3), including the
common defense (*OL* I 11; *PPE* V.viii.1), community
infrastructure (*PPE* V.viii.1; *CRG* 538, 541),
mandatory education (*OL* V 12-14; *PPE*
II.xiii.3, V.xi.8; *CRG* 467-70), and state support for
the arts (*PPE* V.xi.15). These two sorts of exception present
somewhat different issues.



In discussing enforceable duties to give evidence or Samaritan aid,
Mill claims that the failure to confer benefits constitutes harm. But
it is not in general true that the failure to provide benefits always
counts as a harm. In many cases it seems not to. You would benefit me
by transferring all your savings to my bank account (let us assume);
it doesn't follow that your failure to do so harms me. Why not?
Presumably, because we assess harms counterfactually: if *x*
harms me, it makes me significantly worse off than I would have been
otherwise. This makes clear that harms are assessed relative to some
baseline. It is an interesting question how to set the baseline. But
the baseline cannot be set by the restriction on liberty itself; that
would convert all failures to benefit into harms. The baseline must
have some independent rationale. Consider Mill's example of Good
Samaritan laws. A classic example of the sort of Samaritan duty that
Mill favors would be the requirement to save a drowning child when I
could do so at little cost or risk to myself. It is not clear that my
failure to rescue harms the child. Have I made the child worse-off
than he would otherwise have been? Well, relative to what baseline? Of
course, I have made him worse-off relative to the baseline situation
in which Good Samaritanism is compulsory. But why select that
baseline? I haven't made him worse-off relative to the situation
he would have been in had I not been there. By hypothesis, he would
have drowned in my absence. If so, it is not clear that I harm the
person whom I fail to rescue. This is not to deny that my failure to
rescue is wrong and perhaps that the law ought to compel aid in such
cases. But it does raise questions about whether we can justify Good
Samaritan laws by appeal to the harm principle.



Notice that even if my failure to rescue the child does not harm him,
he is nonetheless harmed by drowning. After all, he would have been
better off had he not fallen into the pond and drowned. This suggests
a possible way for Mill to square Good Samaritan laws with the harm
principle. Even if restrictions on *A*'s freedom,
requiring him to benefit *B*, cannot be justified on grounds of
preventing *A* from harming *B*, they may nonetheless be
justified on the grounds of preventing harm to *B*. This draws
our attention to a significant ambiguity in the harm principle (see
Lyons 1979). Mill talks both about preventing one from harming others
and about harm prevention. Indeed, his statement of the one very
simple principle mentions both (*OL* I 9). But as the Samaritan
example brings out, these two claims are not equivalent. Every time I
prevent one person from harming another, I also engage in harm
prevention. But some cases of preventing harm may not be cases of
preventing one person from harming another. So we really should
distinguish two different versions of the harm principle.


* HP1 is an *anti-harming* principle: *A* can restrict
*B*'s liberty only in order to prevent *B from harming
others.*
* HP2 is a *harm-prevention* principle: *A* can
restrict *B*'s liberty only in order to prevent *harm
to others*.



Because every case of preventing one person from harming another is a
case of harm prevention, but not vice versa, HP1 is narrower than HP2.
Indeed, HP1 is a proper part of HP2. Whereas HP1 justifies
intervention only when the target herself would be the cause of harm
to others, HP2 would justify intervention to prevent harm to others,
whether that harm would be caused by the target or in some other way.
Clearly, HP2 will justify more intervention than HP1. As we have seen,
it is hard to justify Good Samaritan laws if HP is the sole basis for
restricting liberty as long as we understand HP as HP1. The fact that
Mill thinks Samaritan laws can be squared with the harm principle (I
11) is evidence that he understands the harm principle in terms of
harm prevention.



A different worry about the necessity of harm concerns those cases
involving restrictions on liberty in the compulsory provision of
public goods. For it is part of the structure of public goods that the
effect of individual contributions on provision of the public good is
negligible. The negative impact of an individual's failure to
contribute is both small and is spread widely over the population. But
that means that even if failure to provide public goods would
otherwise count as a serious loss for all and a harm, the cost of
individual failures to provide for such goods does not seem to meet
Mill's criteria for harmful conduct--the impact of
individual failures to contribute to public goods is too small and
spread too widely to constitute the breach of "a distinct and
assignable obligation to any other person or persons" (IV 10).
Insofar as this is a worry for the harm principle, it seems to be
equally a worry for HP1 and for HP2.



One Millian response is to deny that the harm principle is intended to
serve as a necessary condition on any and all restrictions on liberty.
As we saw, Mill is interested in defending *fundamental* or
*basic liberties*, rather than liberty *per se*. In
particular, he is interested in liberties of conscience and expressive
liberties, liberties of tastes and pursuits, and liberties of
association (I 12). He can defend these liberties as playing a more
central role in our practical deliberations and our formation and
pursuit of personal ideals than other liberties. But then Mill might
try to justify the modest restrictions on liberty necessary to provide
the benefits of significant public goods by claiming that, even if
these restrictions on liberty don't prevent harms, they do not
restrict fundamental liberties and they do help secure other goods,
such as education, security, and sanitation, that serve as necessary
conditions of our happiness.



This issue requires us to distinguish two more readings of the harm
principle: one in terms of liberty *per se* and one in terms of
basic liberties. This distinction cuts across the distinction between
anti-harming and harm prevention, giving us four possible
interpretations of the necessity claim.


* HP1A: *A* can restrict *B*'s *liberty*
only in order to prevent *B from harming others.*
* HP1B: *A* can restrict *B*'s *basic
liberties* only in order to prevent *B from harming
others.*
* HP2A: *A* can restrict *B*'s *liberty*
only in order to prevent *harm to others*.
* HP2B: *A* can restrict *B*'s *basic
liberties* only in order to prevent *harm to others*.



Earlier, we suggested that the harm principle would be more robust and
better fit with Mill's views about justified restrictions of
liberty if we understood it is a harm prevention principle,
essentially, as HP2A, rather than HP1A. Now we have seen how the harm
principle would be more robust and better fit Mill's views about
justified restrictions of liberty if we understood it to regulate
restrictions on basic liberties, rather than liberty *per se*.
This requires us to interpret the harm principle as HP2B. We might
call this the *basic liberties harm prevention principle.* But
if we interpret the harm principle this way, then Mill is even further
from a libertarian view, at least if libertarianism is understood as
the idea that the only legitimate limit on individual liberty is to
prevent that individual from acting in ways that harm others.



The necessity claim that the harm principle makes is more robust if we
interpret it as the basic liberties harm prevention principle. But,
even so interpreted, the necessity claim is still false. For all
versions of the harm principle insist that paternalism is an
impermissible rationale for restriction. But Mill does not in fact
accept a blanket prohibition on paternalism. He allows paternalistic
restrictions on selling oneself into slavery (V 11). In a moment, we
will discuss the justification and scope of this exception to the
normal prohibition on paternalism. But the exception itself shows that
Mill does not think that the only acceptable restrictions on liberty
are those that prevent harm to others. For this is a case in which it
is permissible to restrict liberty, not to prevent harm to others, but
to prevent a special kind of harm to self.



If harm prevention is neither necessary nor sufficient for justifying
restrictions on liberty, then Mill's "one very simple
principle" is over-simple.


### 3.7 Paternalism



Insofar as Mill insists that preventing harm to others is the only
legitimate basis for restricting individual liberty, he is committed
to a blanket prohibition on paternalism. Why? Mill offers two explicit
reasons.



First, state power is liable to abuse. Politicians are self-interested
and corruptible and will use a paternalistic license to limit the
freedom of citizens in ways that promote their own interests and not
those of the citizens whose liberty they restrict (V 20-3).



Second, even well intentioned rulers will misidentify the good of
citizens. Because an agent is a more reliable judge of his own good,
even well intentioned rulers will promote the good of the citizens
less well than would the citizens themselves (IV 4, 12).



These are reasonably strong consequentialist arguments against giving
the state a broad discretionary power to engage in paternalistic
legislation whenever it sees fit. However, they do not support a
categorical ban on paternalism. In particular, these arguments provide
no *principled* objection to paternalism--no objection to
*successful* paternalistic restrictions on *B*'s
liberty that do in fact benefit *B*. This weakness in
Mill's explicit argument against paternalism is like the
weakness in his truth-tracking defense of freedom of expression. Just
as that argument provided no objection to successful censorship
(censorship of all and only false belief), so too this argument
provides no objection to successful paternalism (*A*'s
restrictions on *B*'s liberty that do benefit
*B*). Perhaps some who object to paternalism are only concerned
with unsuccessful paternalism. But many would have doubts about
successful paternalism. For it is common to think that individuals
have a right to make choices in their own personal affairs and that
this includes a right to make choices that are imprudent.



However, Mill's perfectionist conception of happiness provides a
more robust rationale against paternalism. For if a person's
happiness depends on her exercise of the capacities that make her a
responsible agent, then a principal ingredient of her own good must
include opportunities for responsible choice and self-determination.
But then it becomes clear how autonomy is an important part of a
person's good and how paternalism undercuts her good in
important and predictable ways. Mill may still not have an argument
against successful paternalism, but his perfectionism gives him an
argument that successful paternalism is much harder to achieve than
one might have thought, because it is very hard to benefit an
autonomous agent in ways that bypass her agency.



Despite Mill's blanket prohibitions on paternalism, he does not
(consistently) reject paternalism *per se*. For instance, he is
forced to qualify his blanket prohibition on paternalism in order to
maintain his claim that no one should be free to sell himself into
slavery.



> 
> 
> The ground for thus limiting his power of voluntarily disposing of his
> own lot is apparent, and is very clearly seen in this extreme case.
> ... [B]y selling himself for a slave, he abdicates his liberty;
> he foregoes any future use of it beyond that single act. He,
> therefore, defeats in his own case, the very purpose which is the
> justification of allowing him to dispose of himself. (V 11)
> 
> 
> 



Because it is the importance of exercising one's deliberative
capacities that explains the importance of certain liberties, the
usual reason for recognizing liberties provides an argument against
extending liberties to do things that will permanently undermine
one's future exercise of those same capacities. In this case, an
exception to the usual prohibition on paternalism is motivated by
appeal to the very same deliberative values that explain the usual
prohibition. So this seems to be a principled exception to the usual
prohibition on paternalism. We might call these *autonomy-enhancing
forms of paternalism*.



Mill claims that the reasons for allowing paternalism in "this
extreme case" are "evidently of far wider
application" (V 11). That raises the question of what other
forms of paternalism might be justified as principled exceptions to
the usual prohibition on paternalism. Unfortunately, Mill does not
directly address this question. However, in a nearby passage Mill does
refer to the "almost despotic power of husbands over
wives" (V 12). We might see Mill likening a wife's consent
to marriage, in which she must surrender various rights of control
over herself and her children, to someone contracting herself into
slavery. This, of course, is a theme that he develops in *The
Subjection of Women* (discussed below).


### 3.8 Offense



As we have seen, Mill distinguishes between merely offensive and
genuinely harmful behavior. Whereas genuinely harmful behavior can be
regulated, merely offensive behavior cannot (I 12; III 1; IV 3, 10,
12; V 5). However, in his discussion of drunkenness, Mill does at one
point allow that offenses against others may be prohibited, at least
when they involve acts of public indecency.



> 
> 
> Again, 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 thus within
> the category of offenses against others, may be rightly prohibited. Of
> this kind are offenses 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 so.
> (V 7)
> 
> 
> 



The immediate context is otherwise paternalistic restrictions with
drink. But when drinking that is otherwise purely self-regarding is
done in public, it becomes offensive and, Mill here claims, regulable.
It seems impossible to square this with Mill's blanket
prohibition on offense regulation. Why this exception for public
offenses? Mill's answer is that when done in public, the conduct
comes "thus within the category of offense against
others." But if publicity is relevant because it makes the
conduct offensive, then Mill's real appeal is to offense. But
then this exception threatens to swallow the rule.



Mill may not have a consistent view about offense. It is instructive
in this context to consider briefly the views of Joel Feinberg, who
sees himself articulating a Millian position in his important
four-volume work *Moral Limits of the Criminal Law*
(1984-88). Feinberg understands his own defense of Millian
principles as involving a modified Millian categorical approach. His
main modification of Millian principles is to permit some forms of
offense regulation. In *Offense to Others* (1985), Feinberg
begins by focusing on *nuisance*. Many offensive things are
nuisances; they cause passing disagreeable mental states or
sensations. But even if many nuisances are just the price one has to
pay to live in a free society, it is common for the law to regulate
nuisance. Feinberg thinks that some nuisances--especially public
nuisances--can justify regulation. To determine when offense
(nuisance) regulation is permissible and when it is not, Feinberg
employs a *balancing test* in which we must weigh the
seriousness of the offense (e.g., its magnitude and avoidability)
against the importance of the agent's interests being regulated
(e.g., their importance and the existence of alternative avenues of
expression).



The details of Feinberg's balancing test are complex and
potentially controversial. But most liberal societies do in fact allow
for some nuisance regulation. If one is going to consider modifying
Mill's categorical approach so as to allow the prevention of
profound nuisance, then one must employ some such balancing test and
allow restriction only when the offense is hard to avoid, the
expressive interests of the offenders are modest, and offenders have
alternative avenues of expression. Since Mill's own position on
offense regulation is not fully consistent, it is hard to say how big
a modification this would make in his liberal principles.


### 3.9 Moralism



Mill, we saw, appears to reject legal moralism categorically (I 9).
Other Millian liberals, such as Feinberg, treat the rejection of legal
moralism as a constitutive commitment of liberalism. Of course, a
great deal of morality is concerned with harm prevention, and central
provisions of the criminal law prohibiting killing, rape, assault, and
theft are clearly concerned to prevent especially serious moral wrongs
that harm others. This means that much of the criminal law both
prevents harm and enforces morality. These are not simply coincidental
outcomes, inasmuch as the immorality of much criminal conduct consists
in its harmfulness. This could make us wonder if there are cases of
legal moralism that can't be justified by appeal to the harm
principle.



Even if there is considerable overlap between harmful conduct and
wrongdoing, the two are distinguishable. The traditional debate over
legal moralism between Devlin (1965) and Hart (1963) concerned the
legislative enforcement of sexual morality, in particular, the
regulation of homosexuality, prostitution, and pornography. For the
most part, both sides conceded that these activities were immoral but
harmless and debated whether it could be permissible to regulate them
as a matter of enforcing sexual morality. But we might reject
Devlin's moralistic proposals, not because we reject legal
moralism *per se*, but rather because we do not regard
homosexuality, prostitution, or pornography as *per se*
immoral. If these were the only candidates for harmless wrongdoing, we
might wonder if there was such a thing. For this reason, we might
consider a less controversial case of harmless immorality, say, a case
of promise-breaking or deception that actually fails to result in
harm. Suppose Junior takes his parents' car out without their
permission but nothing untoward happens. Here is a case of harmless
wrongdoing. Consider this argument for moral legislation.


1. Society has reason to prohibit behavior that is immoral, whether
or not it causes harm.
2. Junior's taking the car without parental permission is a
case of harmless wrongdoing.
3. Hence, society has a right to prohibit Junior's
behavior.



Presumably, liberals would reject (3), claiming that this is a case in
which the law should not intervene. Here, it might seem that we need
to reject the moralistic premise in (1) in order to avoid the
illiberal conclusion in (3). Indeed, many people tend to think that to
avoid illiberal conclusions about moral legislation one must reject
legal moralism as such.



But the argument is not valid, from which it follows that we cannot
appeal to the falsity of the illiberal conclusion to reject the
moralistic premise. The legal moralist principle (1) asserts only a
*pro tanto* or *prima facie* reason to regulate. But a
*pro tanto* reason to regulate does not entail an
all-thing-considered reason to regulate. In particular, even if there
is some reason to regulate conduct, there may be countervailing
reasons not to regulate it. Perhaps the costs of
regulation--administrative and otherwise--exceed the benefit
of regulation. But this shows that the legal moralist need not
regulate all harmless wrongdoing, and this shows that it is not
necessary to reject legal moralism as such in order to defend some
liberal conclusions. This does not entail that Mill's rejection
of legal moralism is wrong, only that it is not necessary to deliver
most of his liberal conclusions.



This shows us that we should distinguish stronger and weaker legal
moralist claims.


1. *Weak Moralism*: an action's wrongness is *pro
tanto* reason to regulate it.
2. *Strong Moralism*: an action's wrongness is
conclusive reason to regulate it.



As we've just seen, liberal claims that harmless immorality
should not be regulated are inconsistent with strong moralism, but not
with weak moralism. It's clear that Mill rejects strong
moralism. What is less clear is whether he also rejects weak moralism.
We must endorse weak moralism if we think that there are cases of
harmless wrongdoing where legal regulation is not only *pro
tanto* justified but also on-balance justified. Any list is
potentially controversial, but many people would think that it is not
only permissible but also desirable to regulate unsuccessful criminal
attempts, fraud and blackmail that do not harm, desecration of the
dead, and bestiality. If any of these should be regulated, that may
require weak legal moralism.


### 3.10 The Categorical Approach Revisited



Mill's "one very simple principle"--that
liberty may be restricted always and only to prevent harm to
another--is over-simple. So too is the related categorical
approach to liberty that approves all applications of the harm
principle and rejects all cases of paternalism, censorship, offense
regulation, and legal moralism.



The harm principle itself is complex in several ways. Harm to others
is not a sufficient ground for restricting liberty. Rather, it creates
a *pro tanto* reason for restricting liberty. Determination of
whether restrictions on harmful conduct are fully justified depends on
balancing the evils of regulation against the harm to be prevented.
Moreover, it is not clear if the harm principle justifies restricting
liberty to prevent others from being harmed or only justifies
restricting liberty to prevent those whose liberty is being restricted
from causing harm to another. The anti-harming rationale for
restricting liberty is narrower than the harm-prevention rationale.
Only the broader harm-prevention rationale would explain how Mill
could hope to square Good Samaritan laws and laws compelling testimony
in court with the harm principle. Because the harm-prevention
principle is broader, it will justify greater restrictions on liberty
than the anti-harming principle. It is also unclear whether the harm
principle protects all liberty or just basic liberties. The harm
principle is more robust if it targets restrictions on basic
liberties, rather than liberty *per se*. But if we qualify the
harm principle in these ways, we are very far from the common
libertarian reading of the harm principle as limiting any and all
liberty only to prevent force or fraud.



However these questions are resolved, it is doubtful that the harm
principle is necessary to justify restrictions on liberty. Mill makes
principled exceptions to his general anti-paternalism to defend the
permissibility of restrictions on selling oneself into slavery and
other autonomy-enhancing forms of paternalism. Mill does allow some
forms of offense regulation designed to prevent public indecency.
Moreover, though Mill does seem more consistent in his opposition to
legal moralism, it is not necessary to reject legal moralism as such
in order to recognize the liberal conclusion that many forms of legal
moralism do not do enough good in order to justify the harms they
cause.



Harm prevention is neither necessary nor sufficient to restrict
individual liberties. Nonetheless, one might argue that Mill
recognizes basic liberties as especially important interests that can
only be interfered with to prevent harm to others and or to prevent
significant harm to the individual's own agency.


### 3.11 Utilitarianism, Rights, and Liberalism



Having examined Mill's liberalism we can return to the apparent
tension between liberal rights and utilitarianism. For even if Mill
employs complex, rather than simple, categories, there appears to be a
tension between categorical protections of basic liberties and the
sort of case-by-case consequentialist analysis that utilitarianism
would seem to require. We might consider three different
reconciliation strategies.


#### 3.11.1 The Sanction Theory of Rights



Mill's explicit theory of rights is introduced in Chapter V of
*Utilitarianism* in the context of his sanction theory of duty,
which is an indirect form of utilitarianism that identifies wrong
actions as actions that it is useful to sanction (*U* V 14).
Mill then introduces justice as a proper part of duty. Justice
involves duties that are perfect duties--that is, duties that are
correlated with rights (V 15).



> 
> 
> Justice implies something which it is not only right to do, and wrong
> not to do, but which some individual person can claim from us as a
> matter of right. (V 15)
> 
> 
> 



Mill explains his theory of rights in terms of the two elements in a
rights violation--an injury to the right holder and warranted
punishment.



> 
> 
> These [two] elements are, a hurt to some assignable person or persons
> on the one hand, and a demand for punishment on the other. ...
> [T]hese two things include all that we mean when we speak of violation
> of a right. When we call anything a person's right, we mean that
> he has a valid claim on society to protect him in the possession of
> it, either by the force of law, or by that of education and opinion.
> If he has what we consider a sufficient claim, on whatever account, to
> have something guaranteed to him by society, we say that he has a
> right to it. If we desire to prove that anything does not belong to
> him by right, we think this is done as soon as it is admitted that
> society ought not to take measures for securing it to him, but should
> leave it to chance, or to his own exertions. (V 24)
> 
> 
> 



This is a sanction theory of rights, akin to Mill's sanction
theory of duty. It says that one has a right to some interest or
liberty insofar as society ought to protect that interest or
liberty.



So far, this conception of a right does not yet introduce any
utilitarian considerations. Mill adds utilitarianism to the mix in his
account of the conditions under which society ought to enforce an
individual's claim.



> 
> 
> To have a right, then, is, I conceive, to have something which society
> ought to defend me in the possession of. If the objector goes on to
> ask why it ought, I can give him no other reason than general utility.
> (V 25)
> 
> 
> 



This sanction theory of rights is an indirect utilitarian one insofar
as it implies that whether someone has a right to something depends
not on the utility of that claim but on the utility of our responses
to violations of that claim.



Does the sanction theory of rights provide a good reconciliation of
rights and utility? Not surprisingly, the sanction theory of rights
inherits the problems of the sanction theory of duty. Recall that we
found sanction utilitarianism to be internally inconsistent insofar as
it combines indirect and direct utilitarian claims
 (SS2.10).
 Because the sanction theory of rights is committed to sanction
utilitarianism, it inherits this inconsistency.


1. *X* has a right to *Y* iff society ought to protect
*X*'s claim to *Y* from interference (the first
part of the sanction theory of rights).
2. Society ought to protect *X*'s claim to *Y*
from interference iff doing so is optimal (the second, direct part of
the sanction theory of rights).
3. Society ought to protect *X*'s claim to *Y*
from interference iff it would be optimal to blame society for failing
to do so (the indirect sanction theory of duty).



(2) and (3) are inconsistent. One could respond by decoupling the
sanction theory of rights from the sanction theory of duty. But if we
reject the sanction theory of duty, why accept a sanction theory of
rights?



Moreover, the sanction theory of rights has problems of its own. The
sanction theory of rights treats the desirability of social
enforcement as constitutive of the idea of a right. But this seems to
get things backward. It is because we have rights that society ought
to enforce them; it is not that we have rights to whatever society
ought to enforce. The desirability of social enforcement seems
*consequential* on the existence of the right. This is even
clearer, because there are some claims that society ought to enforce
that are not rights. Among the things that society ought to recognize
and protect are both rights and *privileges*. The exact line
between rights and privileges is not always clear. But we recognize
the distinction in claiming that some interests and opportunities that
the state ought to protect are not ones that can be claimed as a
matter of right. This shows that the usefulness of social enforcement
cannot be constitutive of a right, because otherwise privileges would
be rights.



Though the sanction theory is Mill's explicit conception of
rights, he has the resources for two other conceptions.


#### 3.11.2 Rights as Secondary Principles



We saw that Mill recognizes the need for various secondary principles
in moral reasoning
 (SS2.9).
 These are principles that do not themselves refer to utility but
whose adoption and general deployment are justified on utilitarian
grounds. So one way for Mill to reconcile rights and utility is for
him to treat rights as secondary principles, perhaps especially
important ones, whose observance is justified on utilitarian grounds
(also see Berger 1984: chs. 3-4). On this interpretation, rights
are protected by rules that insulate an individual's interest or
liberty from certain kinds of interference and that make no direct
reference to the good consequences of insulation. We should observe
such rules more or less uncritically, and set them aside only when
adherence to them is clearly suboptimal or in cases of conflicts among
such rules (rights). In such exceptional cases, we should make direct
appeal to the principle of utility. But, otherwise, not.



Why should we regulate our conduct by such rules? Because doing so is
generally but imperfectly optimal, and we are unable to discriminate
for cases in which deviation form the rules is suboptimal without
deviating from them in other cases in which it is not.


#### 3.11.3 Rights as Pre-eminent Goods



Why should we believe that there are interests or liberties that it is
generally but imperfectly optimal to protect? Mill's answer is
that some interests and liberties play a more fundamental role in
human happiness than others. On this reading, rights protect
*pre-eminent or especially important* goods.



> 
> 
> While I dispute the pretensions of any theory which sets up an
> imaginary standard of justice not grounded on utility, I account the
> justice which is grounded on utility to be the chief part, and
> incomparably the most sacred and binding part, of all morality.
> Justice is a name for certain classes of moral rules which concern the
> essentials of human well-being more nearly, and are therefore of more
> absolute obligation, than any other rules for the guidance of life;
> and the notion which we have found to be of the essence of the idea of
> justice--that of a right residing in an individual--implies
> and testifies to this more binding obligation. (*U* V 32; also
> see V 33, 37-38)
> 
> 
> 



Indeed, if the goods protected by rights are so important, we can
understand why Mill might think that society ought to enforce them by
law or opinion (V 24). But notice that here enforceability is a
consequence of the importance of rights, rather than the defining
feature of rights.



This conception of rights presupposes a *hierarchy* of values
in which some kinds of goods are superior to others. We know that Mill
accepts a hierarchy of values from his doctrine of higher pleasures.
That doctrine treats the possession and use of capacities for
practical deliberation as higher-order goods. Various liberties of
thought and action are important as necessary conditions for realizing
these higher-order goods.



But if the rights we have are to especially important goods, then we
can see how honoring rights promotes the good. By hypothesis, it will
be best to honor rights when this conflicts with the promotion of
lesser goods. We might say that rights "trump" these
lesser goods. Rights don't trump the pursuit of other comparably
important goods. These should be treated as conflicts of rights, and
the utilitarian should resolve such conflicts by recourse to the
utilitarian first principle and a determination of which right, in the
context, is most important.



These three conceptions of rights offer somewhat different ways of
reconciling utility and rights. The biggest difference is between the
sanction theory, on the one hand, and the secondary principle and
pre-eminent goods conceptions, on the other hand, because the first is
an indirect utilitarian conception of rights, whereas the second two
are compatible with direct utilitarianism. Whereas the sanction theory
of rights appears problematic, the secondary principles and
pre-eminent goods conceptions appear more plausible. It would be
premature to say that they are fully adequate conceptions of rights,
but they do offer some promise of reconciling utility and rights.


## 4. Liberal Democracy



We get a somewhat different perspective on Mill's utilitarian
and liberal principles by seeing how he applies them to social and
political issues. We might begin by focusing on Mill's defense
of a democratic form of liberalism in *Considerations on
Representative Government* and *Principles of Political
Economy*.



In *Considerations on Representative Government* Mill argues
that a form of representative democracy is the best ideal form of
government. It is not an invariant ideal that holds regardless of
historical or social circumstances. But he does think that it is the
best form of government for societies with sufficient resources,
security, and culture of self-reliance. In particular, Mill thinks
that representative democracy is best, when it is best, because it
best satisfies two criteria of all good government: (1) that
government is good insofar as it promotes the common good, where this
is conceived of as promoting the moral, intellectual, and active
traits of its citizens, and (2) that government is good insofar as it
makes effective use of institutions and the resources of its citizens
to promote the common good (*CRG* 390, 392). Insofar as (2) is
really a component of (1), Mill's ultimate criterion is that
good government should promote the common good of its citizens. Mill
does not explicitly invoke his version of utilitarianism. Perhaps he
wants his defense of representative democracy to rest on more
ecumenical premises. But he clearly understands this political
criterion of the common good in broadly consequentialist or
result-oriented terms. Moreover, though he may not mention the higher
pleasures doctrine explicitly, it is also clear that Mill understands
the good of each in broadly perfectionist terms that emphasize the
importance of an active and autonomous form of life that exercises
intellectual, deliberative, and creative capacities.


### 4.1 Representative Democracy



Mill thinks that there are two ways in which democracy is, under the
right circumstances, best suited to promote the common good.



First, he thinks that democracy plays an important *epistemic*
role in identifying the common good. Proper deliberation about issues
affecting the common good requires identifying the consequences
of different policies for the interests of affected parties
and so requires the proper representation and articulation of the
interests of citizens. But failure of imagination and the operation of
personal bias present obstacles to the effective representation of the
interests of others. Universal suffrage and political participation
provide the best assurance that the interests of the governed will be
properly appreciated by political decision-makers (404).



Second, Mill thinks that democracy is also the best form of government
because of the *constitutive* effects of political
participation on the improvement of the moral capacities of citizens
(404). To the extent that the governed can and do participate in
public debate and elections they exercise those very deliberative
capacities that it is the aim of government to develop. They learn to
gather information about their options, deliberate about their merits,
and choose a representative who will give expression to their
ideals and preferences. They deliberate and choose with others about a
public agenda, and in so doing they cultivate abilities to form a
conception of a common good, to take principled stands, to exchange
reasons with others, and to learn from others.



So far, these would seem to be arguments for widespread--indeed,
universal--direct democracy. In fact, unlike many of his
contemporaries interested in expanding the franchise, Mill defends the
extension of the franchise to women too, rejecting any restriction on
their franchise as baseless (479). But Mill qualifies this defense of
direct democracy in various significant ways.



Democracy presumably involves rule by the will of the people. We might
say that a political system is democratic insofar as the content of
its political decisions reflect the will of the people. A direct
democracy, in which every citizen votes on legislation, is one way for
political decisions to reflect the will of the people. But direct
democracy is impractical in anything but a small community (412). Mill
defends *representative*, rather than direct, democracy.



Mill believes that representatives are charged with the task of
voting, after free and open discussion, their own considered views
about what would promote the common good (490). Here Mill expresses
doubts about an interest group model of democracy, according to which
representatives are advocates of the sectarian interests of their
constituents and democracy is seen as an impartial aggregation and set
of compromises among sectarian interests. Instead, Mill regards
representatives as fiduciaries in a public trust, in which each
representative aims at a genuinely common good, and in which
individual and collective deliberations are shaped by a diversity of
experiences and perspectives.



Many needs are local in nature, and, even when the needs are general,
their satisfaction may depend heavily on local conditions. For this
reason, Mill advocates a federal system in which a central
representative body has more limited functions and local or municipal
representative bodies govern in matters involving local affairs or
local detail, such as the creation and maintenance of local
infrastructure, including roads, courts, jails, and schools
(*422-34*).



However, one important function of a central government, Mill
believes, is the need to protect local political minorities from being
systematically disadvantaged by local political majorities (544). Here
he shows his concern with individual rights against the tyranny of the
majority, which was a focus of *On Liberty* and suggests
that constitutional guarantees may be better preserved by central,
rather than local, authorities. Unfortunately, he does not devote much
attention to exactly which individual rights should be recognized
constitutionally.



Mill also insists that a representative democracy, either local or
federal, should employ *proportional*, rather than
winner-take-all, representation (*CRG* 449-62;
"Thoughts on Parliamentary Reform" 328-29). We can
see how proportional representation fits with the epistemic argument
for democracy. Winner-take-all representation may eliminate or reduce
effective expression of minority points of view so essential for free
and informed inquiry about the common good and respecting the
interests of political minorities (*CRG* 458).


### 4.2 The Scope of the Franchise and Weighted Voting



In his philosophical writings and in his service as a Liberal member
of Parliament for Westminster from 1865 to 1868, Mill was a vigorous
advocate for extending the franchise. Though he recognized some limits
in the scope of the franchise, he was a consistent, though not always
successful, advocate for its *extension* beyond its then
current scope. He supported extending the franchise to previously
disenfranchised members of the working class, and he was a staunch
advocate for female suffrage (479-81). To many, such views about
the appropriate scope of the franchise seemed quite radical. Though
Mill did support weighted voting, he may have seen this, at least in
part, as a necessary concession to succeed in securing his primary
objective of (near) universal suffrage (476). It is worth bearing this
context in mind when evaluating Mill's proposals for the scope
and weight of the franchise.



As we noted earlier, Mill does not defend representative democracy as
ideal under all historical and social circumstances. There are some
social circumstances, he thinks, in which democracy will not promote
the common good. These are backward states of society in which most
citizens are unfit to rule, because they lack necessary ingredients of
the culture of autonomy to exercise decision-making authority
responsibly. They lack discipline, or education, or an active and
independent character. Different forms of government are appropriate
for such backward states of advancement. In particular, Mill thinks
that benevolent rule by an enlightened one or few, which aimed at the
common good, would be better suited for such societies (415-18).
Here, Mill is introducing a scope limitation on the defense of
political rights that he recognized explicitly in his defense of basic
liberties in *On Liberty* (I 10). There are important practical
questions, which Mill does not address very clearly, about which
societies cross this threshold of capacity for improvement by free
inquiry and political rights. We might reasonably disagree with
Mill about what the competence threshold is and which societies
satisfy 
 it.[2] 
 But he does make clear that political participation, like free
inquiry, is important as a necessary condition for the exercise of our
higher capacities and has value only when a threshold level of
normative competence is met.



What is true of some societies in relation to others is also true of
some individuals in relation to others within societies that cross
this threshold of normative competence. This explains limitations on
the scope of the franchise that Mill recognizes within such advanced
civilizations. He confines the scope of the franchise to mature
adults, excluding minors who would not have crossed the threshold of
normative competence. He is also prepared to exclude those adults who
are not literate (*CRG* 470-71). This is a failure of
normative competence for which society is to blame and which it is
society's duty to correct (470). Mill also excludes from the
franchise those adults who do not pay taxes and are on public
assistance (472). Here he expresses the concern that voting gives one
a say not only over one's own life but also over the lives of
others and that without contributing to the production of an economic
surplus one has no right to help determine how this surplus is
distributed. Mill is also committed to doubts about the normative
competence of those on public assistance. Elsewhere, Mill insists that
charities make beneficiaries dependent on benefactors in ways that
compromise their autonomy and independence (*PPE* V.xi.13;
*SW* 330). Insofar as this is true, it provides an additional
rationale for excluding dependents from the franchise.



The main limitations on the scope of the franchise that Mill
recognizes track this threshold of normative competence. Mill thinks
that the reasons for favoring democracy apply to all those above this
normative threshold. Literate manual laborers have the same claim to
the franchise, Mill thinks, as anyone else. They need to stand up for
their own interests and make sure they are properly reckoned in
political decision-making. Moreover, they stand to benefit from
political participation, because of the way it develops their
deliberative capacities.



Of course, there are differences in normative competence among those
above this threshold. But Mill's account of representative
democracy tracks these further differences in terms of the
*weight*, rather than the *scope*, of the franchise
(*CRG* 473). Differences in normative competence above this
threshold should affect the comparative weight of one's vote.
This scheme of weighted voting takes the form of a system of plural
votes (*CRG* 467-81; also see "Parliamentary
Reform" 322-28). Mill emphatically rejects property
qualifications as suitable proxies for normative competence
(*CRG* 474; "Parliamentary Reform" 325) and insists
on educational qualifications.



> 
> 
> The most direct mode of effecting this, would be to establish the
> plurality of votes, in favour of those who could afford a reasonable
> presumption of superior knowledge and cultivation. ... The
> perfection, then, of an electoral system would be, that every person
> should have one vote, but that every well-educated person in the
> community should have more than one, on a scale corresponding as far
> as practicable to their amount of education. ("Parliamentary
> Reform" 324-25)
> 
> 
> 



There is an upper limit on the system of plural votes such that the
weighted votes of the educational elite will not give them a majority
coalition that could advance its class interests at the expense of the
uneducated (*CRG* 476).



Mill's commitment to weighted voting reflects his views about
the backward state of the working classes.



> 
> 
> The opinions and wishes of the poorest and rudest class of labourers
> may be very useful as one influence among others on the minds of the
> voters, as well as on those of the Legislature; and yet it may be
> highly mischievous to give them the preponderant influence, but
> admitting them, in their present state of morals and intelligence, to
> the full exercise of the suffrage. ("Parliamentary Reform"
> 334)
> 
> 
> 



Despite these doubts about the working classes, Mill regarded himself
as their friend (*Autobiography* 274; see Ten 1998). Mill did
not blame the working classes for what he saw as their lesser
competence, and he did not regard their backwardness as a natural
or permanent condition. He thought that improved access to quality
primary and secondary education and greater scope for civic
participation would gradually improve normative competence in the
working classes (*PPE* IV.vii.2). Insofar as this is true, the
qualification to Mill's commitment to political equality,
represented by his scheme of weighted voting, is temporary and
transitional. In this sense, weighted voting is not part of ideal
political theory in the way that (near) universal suffrage and
proportional representation are.



Even if weighted voting tracks the epistemic reasons for democracy and
differences in underlying normative competence, it violates norms of
political equality. Mill seems not to recognize the potentially
corrosive effects of weighted voting in terms of the message it sends
of second-class citizenship to the working classes. He thinks that
self-respect requires only that one have the vote, not that one have
an equal vote, regardless of normative competence.



> 
> 
> There is not, in this arrangement [weighted voting], anything
> necessarily invidious to those to whom it assigns the lower degrees of
> influence. Entire exclusion from a voice in the common concerns is one
> thing; the concession to others of a more potential voice, on the
> ground of greater capacity for the management of the joint interests,
> is another. The two things are not merely different, they are
> incommensurable. Everyone has a right to feel insulted by being made a
> nobody, and stamped as of no account at all. No one but a fool
> ... feels offended by the acknowledgment that there are others
> whose opinion ... is entitled to a greater amount of
> consideration than his. (*CRG* 474)
> 
> 
> 



But why should I care so much about being branded a nobody and not at
all about being branded a lesser somebody? One might well want to
harness the resources and expertise of an educated elite, perhaps, as
Mill already imagines, by giving them special roles in the drafting of
legislation or in setting the agenda for public deliberations. But
this does not require giving the educated elite plural votes. Doing
that seems to have significant symbolic value, saying that working
classes should have less political standing and say. From this
perspective, Mill displays something of a tin ear for
egalitarian concerns about weighted voting. Interestingly, while
he does not seem especially sensitive to concerns about the bad
effects of second-class citizenship in *Considerations on
Representative Government*, he seems much more sensitive to such
concerns in *The Subjection of Women*. As we will see, Mill is
acutely aware of the variety of ways in which women's
contributions can be discouraged and undervalued and of the individual
and social costs of women's second-class status. Had Mill been
as mindful of the costs of according workers second-class citizenship
as he would later be of the costs of according women second-class
status, he might have been more skeptical of weighted voting than he
in fact was.


### 4.3 Liberal Democracy and the Common Good



What of the substance of democratic government? Though Mill is an
advocate of limited government in ways that one might expect given his
defense of basic liberties in *On Liberty*, he is no
libertarian. He emphatically rejects the idea that legitimate
government is limited to the functions of affording protection against
force and fraud (*PPE* V.i.2). Instead, he thinks that there
are a variety of ways in which government can and should intervene in
the lives of citizens--sometimes as coercer and other times as
enabler or facilitator--in order to promote the common good.
Mill's claims about happiness imply that the good of each
consists in the exercise of her higher capacities. This requires an
active life in which one's activities are regulated by
one's deliberations and choices. As we have seen in Mill's
critical discussions of paternalism, this places limits on how others
can promote one's own good. I can't promote your good,
understood in this way, in ways that bypass your agency anymore than I
can win a race for you. But just as I can do things to help you win
the race yourself (training with you, sharing nutritional tips, and
helping you plan strategy), so too I can do things that help you lead
an autonomous life. I can provide various sorts of necessary
conditions for your leading such a life. If an individual's good
consists in this sort of *self-*realization, then a government
which aims at the common good should concern itself in significant
part with the fair provision of *opportunities* for
welfare.



Early in *The Subjection of Women* Mill contrasts systems of
hereditary caste, such as feudalism and social systems based on
slavery, with the distinctively modern and progressive commitment to
equal opportunity for welfare.



> 
> 
> For, what is the peculiar character of the modern world--the
> difference which chiefly distinguishes modern institutions, modern
> social ideas, modern life itself, from those of times long past? It is
> that human beings are no longer born into their place in life, and
> chained down by an inexorable bond to the place they are born to, but
> are free to employ their faculties, and such favorable chances as
> offer, to achieve the lot which may appear to them most desirable.
> (*SW* 272-73)
> 
> 
> 



As with basic liberties, opportunities for welfare have value, not in
themselves, but as necessary conditions for the sort of
self-realization to which Mill assigns pre-eminent intrinsic value.
But they are no less important for that reason. Indeed, many of the
functions of government that he recognizes can be traced to providing
conditions and opportunities for self-realization.



Though Mill generally opposes paternalism, censorship, offense
regulation, and moralism, he does recognize various functions that
government should perform in pursuing the common good. In part because
the opportunities for each depend in part upon the position and
resources of others, Mill thinks that provision of fair equality of
opportunity constrains permissible socio-economic inequalities
(*PPE* II.ii.1).



> 
> 
> A just and wise legislation would abstain from holding out motives for
> dissipating rather than saving the earnings of honest exertion. Its
> impartiality between competitors would consist in endeavoring that
> they should all start fair .... Many, indeed, fail with greater
> efforts than those with which others succeed, not from difference of
> merits, but difference of opportunities; but if all were done which it
> would be in the power of a good government to do, by instruction and
> by legislation, to diminish this inequality of opportunities, the
> differences of fortune arising from people's own earnings could
> not justly give umbrage. (*PPE* V.ii.3)
> 
> 
> 



As Mill makes clear in this passage, his concern is not with
inequality as such. Though he envisions a society in which
inequalities are reduced and in which a decent minimum standard of
living is available to all (*PPE* IV.vi.2), he does defend the
profits of capitalists as a just recompense for their savings, risk,
and economic supervision (*PPE* II.xv.1; "Chapters on
Socialism" 734-35). Rather, Mill's concern in this
passage is with inequalities derived from inequality of opportunity
and those inequalities that perpetuate inequality of opportunity. To
achieve equality of opportunity, Mill endorses various redistributive
tax measures (also see Berger 1984: 159-86). He defends a flat
tax rate on earned income above a threshold necessary to secure a
decent minimum standard of living, leaving earned income below this
threshold untaxed (*PPE* II.i.3, II.xii.2, II.xii.3,
V.ii.1-3, V.iii.3-5). In addition, he endorses the use of
higher tax rates on unearned income and on inheritance (*PPE*
II.ii.1, II.ii.3-4, II.xii.3, V.ii.3, V.ii.5, V.vi.2, V.ix.1).
Such taxes limit intergenerational inequalities that would otherwise
constrain equality of opportunity.



Within this framework established for equal opportunity, Mill defends
additional governmental functions designed to promote the common good.
A prime condition of normative competence is a decent education, and
Mill thinks that it is one of the central roles of the state to
require and, if necessary, provide a quality education (*OL* V
12-13; *PPE* V.xi.8). Mill thinks that the state can and
should require parents to provide schooling for their children,
ensuring that this kind of education is available to all, regardless
of financial circumstances, by subsidizing the costs of education for
the poor so that it is available free or at a nominal cost.



We have also seen that Mill thinks that charity breeds dependence,
rather than autonomy. This is one reason that he defends the adoption
of Poor Laws that provide, among other things, work for the
able-bodied indigent (*PPE* II.xii.2). Mill also thinks that
government should step in where market forces are unlikely to provide
what people need or want (*PPE* V.xi.8). In this way, he thinks
that it is an important function for the state, whether central or
local, to create and maintain various aspects of community
infrastructure, including such things as a common defense, roads,
sanitation, police, and correctional facilities (*PPE* V.vii.1;
*CRG* 541). He also thinks regulation of working conditions
(hours, wages, and benefits) is permissible, because the provision of
improved working conditions typically has the structure of a public or
collective good for workers, each of whom stands to gain a competitive
advantage by conceding a little more to capital than his peers
(*PPE* V.xi.12). If left unregulated, each has incentive to
concede more to capital than his rivals, with the result that all
workers are made worse-off. State intervention and regulation, Mill
thinks, is the best solution to this collective action problem. He
also thinks that there are other goods for which market provision will
lead to underproduction, presumably because of positive externalities,
which is why he thinks that the state should subsidize scientific
research and the arts (*PPE* V.xi.15).



Mill's liberalism is committed to democratic political
institutions in which the franchise is widespread, private property
rights, market economies, equal social and economic opportunity, and a
variety of personal and civic liberties. To appreciate the
significance of his brand of liberalism, it is helpful to focus on the
substance of his conception of liberal essentials--the package of
individual liberties and state responsibilities that he
endorses--and the way he justifies his conception of liberal
essentials. Millian liberalism is not laissez-faire liberalism, and it
justifies liberal essentials as a way of promoting the common good.
The distinctiveness of this brand of liberalism is perhaps best seen
in contrast with two other conceptions of liberalism--a more
libertarian conception of liberal essentials and their justification
that dominated the British Liberal Party at mid-century and the sort
of contemporary political liberalism that justifies liberal essentials
as required if the state is to be neutral among rival conceptions of
the good life that its citizens might hold.



A good part of the agenda of the Liberal Party during much of the
nineteenth century consisted in reforms that sought to undo
limitations that the state placed on the liberties and opportunities
of citizens, especially when these forms of state intervention tended
to reinforce class privileges. This political culture was exemplified
in the repeal of the Corn Laws, opposition to religious persecution,
and several electoral reforms. But in the later part of the nineteenth
century there emerged a new view about the role of such reforms within
the Liberal agenda. Earlier Liberals, such as Herbert Spencer, thought
that reform should be limited to the removal of state interference
with individual liberty. By contrast, the New Liberals thought that
these reforms that extended economic, social, and political liberties
had to be supplemented by social and economic reforms in areas of
labor, education, and health designed to redress the effects of
inequality. These new reforms gave the state positive, and not just
negative, responsibilities that sometimes required interference with
individual liberties. Because Mill thinks that the state has an
important role to play in securing equal opportunity, ensuring a good
education that will nurture normative competence, and redressing
various market failures and providing various public goods, it makes
sense to view Mill as laying much of the intellectual groundwork for
the New Liberalism--both in its conception of liberal essentials
and in its conception of the proper justification of liberal
essentials by appeal to a broadly consequentialist interest in
promoting self-realization.



Mill's perfectionist justification of liberal essentials also
provides a contrast with an influential strand in recent
Anglo-American philosophical defenses of liberalism that insist on
*neutrality* among rival conceptions of the good life (see
Turner 2017). According to many contemporary liberals, neutrality
about the good is a constitutive commitment of liberalism, and liberal
neutrality places limits on the justification of state action. Liberal
governments, on this view, can and must enforce individual rights and
any further demands of social justice, including those necessary to
maintain peace and order. But they are not to undertake any action as
a way of promoting a particular conception of the good life or a
comprehensive philosophical doctrine. On matters of the good, a
liberal state must be strictly neutral. It can promote the good of its
citizenry only in ways that are consistent with every reasonable
conception of the good (see Rawls 1993 and Kymlicka 1989).



By contrast, Mill is a perfectionist liberal who eschews neutrality
about the good. According to Millian perfectionism, the good life is
not defined in sectarian terms as consisting in a particular set of
activities. Rather, the good life is understood in terms of the
exercise of capacities for practical deliberation that can be realized
in diverse, though limited, ways. Basic liberties are important
because they are necessary conditions for this sort of reflective
self-direction and self-realization. On this version of liberalism,
the state recognizes various civil liberties and resists regular
paternalism and moralism, not because it won't take a stand on
questions of the good, but precisely because it recognizes autonomy
and self-determination as higher-order goods.


## 5. Sexual Equality



Mill applies his liberal principles to issues of sexual equality
primarily in *The Subjection of Women*. He denounces existing
forms of sexual inequality in clear and unequivocal terms.



> 
> 
> [T]he principle which regulates the existing social relations between
> the two sexes--the legal subordination of one sex to the
> other--is wrong in itself, and now one of the chief hindrances to
> human improvement; and ... it ought to be replaced by a principle
> of perfect equality, admitting no power or privilege on the one side,
> nor disability on the other. (*SW* 261)
> 
> 
> 



To modern ears, Mill's defense of sexual equality may seem
obvious, and, to some contemporary feminists, Mill's criticism
of sexual inequality may not be deep or consistent enough. But, when
viewed in historical context, Mill's defense of sexual equality
is radical, courageous, and sometimes eloquent (Shanley 1998). While
Mill clearly expected some aspects of his liberal principles in *On
Liberty* to be controversial (*OL* I 6-8), their
revolutionary import became especially clear when he applied them
to issues of sexual equality in *The Subjection of Women*
(Nicholson 1998: 471).


### 5.1 The Case for Sexual Equality



Mill rejects sexual inequality in both domestic and social contexts.
He discusses domestic equality primarily in Chapter II. There, he
focuses on the rights of wives and mothers, recognizing women's
equal rights over their bodies or persons (*SW* 283-86),
to own and control property (284-85, 297) to control various
aspects of domestic decision-making and household management
(290-92), to custody and care of children (285), and to
separation and divorce (285-86). But Mill is not only concerned
with wives and mothers in domestic contexts. He also defends equal
rights to education (*315-16*), to professional
opportunities (299; cf. *PPE* IV.vii.3), to vote in political
elections (301), and to run for political office (301). In addition to
these rights, Mill presumably also endorses equal rights to freedom of
expression, worship, and association. One assumes that he sees the
main threats to these rights as occurring in the domestic realm and
coming from husbands, fathers, and brothers.



At times, Mill defends sexual equality on explicitly consequentialist
grounds as a way of making fuller use of people's talents and
promoting a culture of equal opportunity, accountability, and genuine
meritocracy (326-28). But Mill also defends sexual equality as a
matter of individual rights and justice.



> 
> 
> Thus far, the benefits which it has appeared that the world would gain
> by ceasing to make sex a disqualification for privileges and a badge
> of subjection, are social rather than individual; consisting in an
> increase of the general fund of thinking and acting power, and an
> improvement in the general conditions of the association of men and
> women. But it would be a grievous understatement of the case to omit
> the most direct benefit of all, the unspeakable gain in private
> happiness to the liberated half of the species; the difference to them
> between a life of subjection to the will of others, and a life of
> rational freedom. After the primary necessities of food and raiment,
> freedom is the first and strongest want to human nature. (336)
> 
> 
> 



In elaborating this claim about women's higher-order interests
in liberty, he says that personal independence is an "element of
happiness" (336-37). This echoes the arguments in *On
Liberty* for claiming that basic liberties are necessary for
persons to exercise the deliberative capacities that make them
progressive beings.



In defending women's rights, Mill also appeals to the
distinctively modern and progressive commitment to *equal
opportunity for welfare* (272-73). At several points, he
likens the status of women inside and outside of marriage to slavery
(284-86, 323). Mill is not much impressed by those who would
dispute the analogy on the ground that women are treated much better
than slaves. Gilded cages are still cages that restrict freedom and
opportunity. And often the cages are not gilded; Mill insists that
husbands can be and often are just as violent and abusive as masters
(285-86, 288-89). Indeed, with the demise of slavery in
America, he views sexual inequality as the last vestige of slavery in
the West.



> 
> 
> The law of servitude in marriage is a monstrous contradiction to all
> the principles of the modern world, and to all the experience through
> which those principles have been slowly and painfully worked out. It
> is the sole case, now that negro slavery has been abolished, in which
> a human being in the plenitude of every faculty is delivered up to the
> tender mercies of another human being, in the hope forsooth that this
> other will use the power solely for the good of the person subjected
> to it. Marriage is the only actual bondage known to our law. There
> remain no legal slaves, except the mistress of every house. (323)
> 
> 
> 



The restrictions contained in Victorian marriage law that give
husbands complete control over the person and property of their wives
and that do not allow for unilateral divorce or separation make
marriage a form of sexual or gendered slavery. Slavery is an
impermissible restriction of the liberty of another. Slavery would be
impermissible even if the wife consented to marriage (270). Mill might
question whether the consent is meaningful given the social pressures
to marry and to defer to their husbands, the limited options for those
who do not marry, and the adverse consequences to women of expressing
dissent within marriage (270). But the quality of consent should be in
any case irrelevant, because we know that Mill thinks that it is
impermissible to contract into slavery and that paternalistic laws
that prevent such contracts are not only permissible but obligatory
(*OL* V 11). Presumably, this is just the sort of case that
Mill has in mind when he suggests that the prohibition of selling
oneself into slavery is a principled exception to the usual
prohibition on paternalism that has "wider application."
This norm of equal opportunity for welfare, which is violated by
Victorian marriage law, is a demand of justice (*SW* 325) and
grounds a claim of right.


### 5.2 Rebutting the Case for Inequality



Mill considers and replies to various actual and possible defenses of
sexual inequality. In most cases, the apologist for inequality alleges
that women are naturally inferior in relation to men along some
dimension that is alleged to be relevant to the proper management of
personal and public affairs. For the most part, the apologist claims
that men possess some trait essential for normative competence that
women lack--these might be represented as alleged female
*deficits*--or that women possess some trait that men lack
that threatens normative competence--these might be represented
as alleged female *disqualifiers*. In either case, the
apologist argues, it turns out that women are naturally inferior and
so do not deserve equal treatment.



Mill considers a large list of potential natural differences, not
restricted to deficits and disqualifiers, including claims that women
are (1) more intuitive and practical, less principled and theoretical,
than men (305), (2) more focused on particulars, less capable of
abstraction or generalization, than men (306), (3) more nervous and
excitable than men (308), (4) less single-minded than men (310), (5)
less accomplished in philosophy, science, and art than men
(313-14), (6) less original than men (314-15), (7) morally
superior to men (320-21), (8) more susceptible to personal bias
than men (321), (9) more pacific and less aggressive than men
(329-30), (10) more philanthropic than men (330), and (11) more
self-sacrificing and self-abnegating than men (293).



Mill's response to these alleged differences is mixed.
Sometimes, he questions whether the traits in question are unevenly
distributed. But, for the most part, he seems to concede that the
traits are unevenly distributed. He doesn't always agree that
the female trait is a deficit or disqualifier. For instance, he thinks
that being more intuitive, more practical, more focused on
particulars, and less rigid allows women to compensate for deficits in
the way that men typically approach decision-making. Women are less
likely to follow principle for its own sake and are more likely to
test principles by their real world consequences. They are better able
to multi-task and intellectually more open-minded. Being morally
superior and less aggressive are unqualified goods. However, he seems
to concede that women are more excitable, less accomplished, and less
original than men. He tries to explain these deficits and
disqualifiers in ways that do not presuppose women's natural
inferiority.



Mill's primary response to the apologists is to claim that even
if the trait is unevenly distributed and functions as a deficit or
disqualifier there is nonetheless no evidence of natural inferiority.
There is no evidence of natural inferiority, because we cannot be sure
that the incapacity is the product of nature, rather than nurture. In
particular, because the history of sexual relations has been
discriminatory, we cannot rule out the possibility that female
incapacity is the product of past discriminatory treatment
(275-77, 304-05, 313).



> 
> 
> I consider it a presumption in any one to pretend to decide what women
> are or are not, can or cannot be, by natural constitution. They have
> always hitherto been kept, as far as regards spontaneous development,
> in so unnatural a state, that their nature cannot but have been
> greatly distorted and disguised; and no one can safely pronounce that
> if women's nature were left to choose its direction as freely as
> men's, and if no artificial bent were attempted to be given to
> it except that required by the conditions of human society, and given
> to both sexes alike there would be any material difference, or perhaps
> any difference at all, in the character and capacities that would
> unfold themselves. (304-05)
> 
> 
> 



Mill rightly insists that incapacity that is the product of
discriminatory treatment cannot be appealed to justify that
discrimination. That would be circular reasoning.



Mill can explain differential accomplishments in philosophy, science,
and the arts by appeal to social barriers to women's
participation in these fields (313-18) and to competing domestic
demands that are placed on them (318-19). In this connection, it
is worth noting that Mill can concede not only differential
accomplishments of the sexes but differential capacity, in at least
one sense. For Mill can and should distinguish between *actual*
capacity and *potential* capacity. Actual capacities determine
what an agent is now able to do, whereas potential capacities
determine what actual capacities she can develop. For instance, I have
no actual capacity to speak Russian, but presumably I do have a
potential capacity to speak Russian. By contrast, I don't have
even a potential capacity to fly or run a three-minute mile. Actual
capacities are a function of potential capacities and suitable
training, opportunities, and responsibilities. If I have not been
given a proper education and training with suitable deliberative
opportunities and responsibilities at various points in my
development, my potential competence may not be actualized. Even if
everyone had equal potential capacities, we should expect unequal
actual capacities in systems where education and deliberative
opportunities and responsibilities have been distributed unequally. If
so, then greater actual capacity would not be evidence of greater
potential capacity.



The moral that Mill draws is that equal rights should prevail in the
absence of any good evidence about the way in which natural assets and
potential capacities are distributed by gender. Equality is the
presumption, even if it is a rebuttable presumption, and the
presumption can only be rebutted on the basis of adequate empirical
evidence (262).


### 5.3 Is the Sexual Division of Labor Natural?



In rebutting potential defenses of sexual inequality by appeal to
various alleged dimensions of natural inferiority, Mill insists that
we cannot determine whether traits commonly found in women are the
product of nature or nurture without suitable social experimentation,
including, the social experiment of sexual equality. In particular,
there is the very real possibility that the traits alleged to justify
sexual discrimination are the product of past discriminatory practice.
But Mill does not adhere to this point consistently (see Annas 1977;
Okin 1979: 226-30). At several points, he expresses the
conviction that most women with a full menu of opportunities will
accept a traditional sexual division of labor in which they perform
domestic functions while their husbands pursue professions in civil
society, and he approves of this traditional division of labor.



> 
> 
> When the support of the family depends, not on property, but on
> earning, the common arrangement, by which the man earns the income and
> the wife superintends the domestic expenditure, seems to me in general
> the most suitable division of labor between the two persons. ...
> In an otherwise just state of things, it is not, therefore, I think, a
> desirable custom, that the wife should contribute by her labour to the
> income of the family. (*SW* 297)
> 
> 
> 



Of course, Mill is right that a wife should not *also* have to
earn a living outside the home if she is working full time within the
home. But he gives no reason for thinking that women should have
families or that, if they do, they, rather than their husbands, should
be responsible for matters domestic. Indeed, Mill's view seems
to be that for women extra-domestic vocations should be reserved
primarily for those without children or whose children are already
grown (338). He seems here to assume that the traditional sexual
division of labor is natural. Of course, it is possible that the
traditional sexual division of labor would emerge in a system of equal
opportunity. But this is conjecture. Indeed, one might have thought
that his own claims about how the system of unequal opportunity has
repressed women's creative and managerial capacities would have
suggested that the traditional sexual division of labor was probably
not robust. In defending or at least speculating about the robustness
of the traditional sexual division of labor, Mill appears to be
ignoring his own methodological strictures.


### 5.4 Millian Feminism



This is a significant blemish on Mill's feminist credentials. He
sometimes assumed that a traditional sexual division of labor was
natural in the sense that it was likely to emerge in a culture of
equal opportunity for all. Given Mill's recognition that the
existing division of labor was produced and sustained in conditions of
sexual discrimination and unequal opportunity, there is no basis for
supposing that this division of labor would survive a culture of
equality. However, it is Mill himself that supplies the resources for
criticizing his assumption. That ought to provide partial mitigation
of his mistake.



Otherwise, Mill's feminist credentials are strong. He is a keen
critic of domestic and social forms of inequality, recognizing the
harm such practices cause women and the ways in which they deform the
lives of boys and men too. Victorian marriage law, the denial of the
franchise, and lack of social and economic opportunities violate
higher-order interests of women. These rights violations are a matter
of serious social injustice. The corollary of these criticisms is that
Mill is a staunch defender of equal opportunity for women and an
eloquent spokesman for the way in which a culture of equality would
transform the lives of girls and women, liberating their creative
potential and emotional sensibilities, and make possible more
productive social cooperation and friendships among equals.



Mill's discussion of sexual equality is one place where the
perfectionist underpinnings of his liberal principles play an
important role and add to the depth of his criticisms of sexual
discrimination and his case for sexual equality. His defense of sexual
equality highlights the genuinely progressive aspects of his
utilitarian and liberal commitments.


## 6. Concluding Remarks



As perhaps the leading historical proponent of two important normative
traditions--utilitarianism and liberalism--Mill occupies an
unusually important position in the history of western moral and
political philosophy. Viewed in historical context, both
utilitarianism and liberalism have exerted considerable progressive
influence on the scope of moral concern, the design of public
institutions, the responsibilities of government, and the interests
and rights of the governed. Mill did much to articulate the
justification, content, and implications of utilitarian and liberal
principles. Inevitably, there are questions about the proper
interpretation, adequacy, and consistency of his various claims on
these topics. But he has left an enduring legacy in both utilitarian
and liberal traditions. Both traditions figure centrally in
contemporary discussions of analytical ethical and political theory.
Further progress in these traditions must take account of his
contributions.


## A Note on Texts and References



References to Mill's texts and other historical texts will be by
title or short title; references to contemporary articles and books
will be by year of publication. Publication details and conventions
for referring to Bentham's and Mill's texts are provided
in this Note (below). Otherwise, publication details can be found in
the Bibliography. If a parenthetical reference does not identify the
text in question, the reader should assume that it is the last
identified text being referenced again (context should make it
clear).


### Bentham's Works



Bentham's writing were originally published as *The Works of
Jeremy Bentham*, 11 vols., ed. J. Bowring (Edinburgh: William
Tait, 1838-43) and are
 available electronically.
 I refer to the following works, employing the associated
abbreviations.


* *Introduction to the Principles of Moral and Legislation*
[*Principles*] (1789) *Works* vol. I. References by
chapter and paragraph number.
* *Table of the Springs of Action* (1817) *Works* I.
References by table number and section.
* *Plan for Parliamentary Reform* (1817) *Works*
III.
* *Book of Fallacies* (1824) *Works* I. *Works*
pagination.
* *Constitutional Code* (1832) *Works* IX. References
by chapter and section number.



So, for instance, *Principles* I 2 refers to paragraph 2 of
chapter I of the *Introduction to the Principles of Morals and
Legislation*.


### Mill's Works



There are many editions of Mill's more popular and influential
works, including many of his writings in moral and political
philosophy. The definitive edition of Mill's writings is
*Collected Works of John Stuart Mill* [*CW*], 33
volumes, ed. J. Robson (Toronto: University of Toronto Press,
1965-91) and
 available online through the Liberty Fund.
 In order to facilitate common reference among readers using different
editions of his most commonly read
texts--*Utilitarianism*, *On Liberty*, *A System
of Logic*, and *Principles of Political Economy*--I
will refer to those works using natural divisions in his texts, such
as chapter, section, and/or paragraph. Otherwise, I will refer to
Mill's works using pagination in his *Collected Works*. I
refer to the following works, employing the associated
abbreviations.


* "Remarks on Bentham's Philosophy"
["Remarks on Bentham"] (1833) [*CW* X]. *CW*
pagination.
* "Bentham" (1838) [*CW* X]. *CW*
pagination.
* *A System of Logic* [*SL*] (1843) [*CW*
VII-VIII]. References by book, chapter, and section number.
* *Principles of Political Economy* [*PPE*] (1848)
[*CW* II-III]. References by book, chapter, and section
number.
* "Chapters on Socialism" (1850) [*CW* V].
*CW* pagination.
* "Whewell on Moral Philosophy" (1852) [*CW* X].
*CW* pagination.
* "Thoughts on Parliamentary Reform" (1859) [*CW*
XIX]. *CW* pagination.
* *On Liberty* [*OL*] (1859) [*CW* XVIII].
References by chapter and paragraph number.
* *Utilitarianism* [*U*] (1861) [*CW* X].
References by chapter and paragraph number.
* *Considerations on Representative Government*
[*CRG*] (1861) [*CW* XIX]. *CW* pagination.
* "August Comte and Positivism" (1865) [*CW* X].
*CW* pagination.
* *The Subjection of Women* [*SW*] (1869) [*CW*
XXI]. *CW* pagination.
* Notes to James Mill, *Analysis of the Phenomena of the Human
Mind* [Notes], 2 vols., 2d ed., J.S. Mill, London: Longmans,
1869.
* *Autobiography* (1873) [*CW* I]. *CW*
pagination.



So, for instance, *OL* I 11 refers to paragraph 11 of chapter I
in *On Liberty* and *SL* VI.xii.6 refers to book VI,
chapter xii, section 6 of *A System of Logic*.