Chapter 2, part 8, of the author's Mill on Liberty, which Clarendon Press published in 1980. It has been included in the Victorian Web with the kind permission of the author and of the Clarendon Press, which retains copyright.
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ill's claim that individual liberty in the area of self-regarding actions should be absolute has given rise to much misunderstanding of his position. His critics have argued that there is no area of conduct with which the state is not sometimes justified in interfering. Thus Lord Devlin seems to think that Mill's liberalism commits him to invoking "a principle that exempts all private immorality always from the operation of the law" (p. 110). Against this Devlin maintains that there can be no "theoretical limits" to the power of the state to legislate against what is considered immoral conduct. It may be argued that if a man gets drunk every night in the privacy of his home, this should not concern anyone else. But, Devlin asks, what sort of a society would it be if half the population got drunk every night? [p. 14; I discuss in great detail Devlin's criticisms of Mill in Chapter 6] His point here seems to be that when certain types of private immoralities increase they may have very harmful effects even though they may be quite harmless when they are confined to a few people.
Devlin has obviously misunderstood Mill. It is not essential to Mill's position that there should be an area of conduct which must always remain completely free from intervention. The absoluteness of Mill's barrier against intervention, or the "theoretical limit" he sets to the power of the state and society to exercise coercion, is of a different kind. There are certain reasons for intervention in the conduct of individuals which must always be ruled out as irrelevant. Even when intervention is justified in a particular case it is on the basis of certain reasons rather than others: "No person ought to be punished for being drunk, but a soldier or a policeman should be punished for being drunk on duty" (p. 138).
Let us suppose that there are no actions which only affect others because they are disliked, or regarded as immoral or offensive. All actions also affect non-consenting persons in other ways. Mill's case for freedom is still not undermined. There are various reasons why people may wish to interfere [40/41] with the conduct of others. Mill's point is that the case for intervention must rest on reasons other than, for example, the mere dislike or disapproval of the conduct. If these other reasons are insufficient, no additional weight is given by citing the dislike and disapproval (Hart, pp. 48-49). Consider, for example, the case of pornography. Mill's liberty principle rules out the argument that the sale of pornography should be prohibited simply because the majority regard the sale and reading of pornography as immoral. But this does not settle the issue of whether pornography should be prohibited, because other reasons have been given for the prohibition. Thus it is often claimed that reading pornography is a cause of crime, especially sexual crime. If this is true, it would be accepted by Mill as a reason for prohibition. But the matter is to be settled in the light of the available evidence. It is just because such evidence does not seem to support the factual claims made that people are tempted to fall back on their repugnance towards pomography. The acceptance of Mill's principle will prevent them from doing that, and instead confine the debate to an assessment of the evidence for the allegedly harmful, or beneficial, effects of reading pornography.
What is crucial to Mill's defence of liberty is therefore his belief that certain reasons for intervention -- paternalistic, moralistic, and gut reactions -- are irrelevant, whereas the prevention of harm to others is always relevant.
Devlin, Patrick. The Enforcement of Morals. London, 1965.
Hart, H. L. A. The Morality of the Criminal Law. Oxford, 1965.
Last modified 18 April 2001