Some time ago, I wrote a post entitled “Morals, Religion, and the Law” (October 11, 2009), in which I issued a promissory note in the form of an obiter dictum. Here is the paragraph in question:
“Back in the 1960s Lord Patrick Devlin, a prominent English judge, wrote a book entitled The Enforcement of Morals, in which he defended the position once held by the Victorian magistrate Sir James Fitzjames Stephen that the government has the legitimate right to intervene in matters of morality. This position has come to be called "legal moralism" (though some of its critics would sneeringly call it "legal paternalism"). Many critics, most notably the great legal philosopher H. L. A. Hart, tried to refute him. The general intellectual fashions of the time ran very much in a liberal vein, and so it was commonly accepted by those who don't think very deeply that those critics scored a definitive victory. But they simply haven't. I do not have the space here to rehash this old debate, but I promise to do so in a separate posting in the near future” [italics added].
Instead of “I promise”, I should have written “I hope”. In any case I hereby give notice that I now write in partial fulfillment of that promise. Since the topic is apt to swell dangerously, I will focus on an earlier stage of the debate on legal moralism, that between Fitzjames Stephen and John Stuart Mill. I do this partly to conserve space, but also because I would like to resurrect the reputation of Stephen, who I believe was a formidable critic of what seems since to have become the received liberal consensus engendered by Mill. Maybe, maybe, I will visit the Hart-Devlin debate in the future.
Most of Stephen’s book Liberty, Equality, Fraternity (1873) is a response to Mill’s famous essay On Liberty (1859). I have had to read and teach On Liberty in many an undergraduate philosophy course. It seems for whatever reason to have become the liberal’s Bible on the topic of public intervention in the sphere of private morality, which I find perplexing, because the work is flawed in so many ways. I confess I have never been much convinced by what Mill has written in ethics and political philosophy. In any case, before proceeding further, I should give a rough sketch of Mill’s liberal philosophy.
Mill begins by outlining his proposed task, which is to delineate the proper limits of intervention in the private sphere. (What constitutes the “private sphere” is inadequately defined by Mill.) In short, he proposes to discuss the limits of liberty. However, he distinguishes between civil or social liberty and political liberty, proposing to deal mainly with the former. Political liberty deals with political participation, and was the object of the long struggles to replace arbitrary royal government with some measure of popular participation in the conduct of the affairs of the state. That battle, says Mill, at least in England, has largely been won. Political liberty has been achieved.
The new threat to liberty comes not from government, but from one’s fellow citizens, who, by forming a majority, could potentially exercise a tyranny over the minority beyond anything which a single tyrant could have dreamed of. Mill calls this, in his memorable phrase, the “tyranny of the majority”. Mill takes it as his task to set the legitimate bounds beyond which society may not interfere in the affairs of the individual citizen. In other words, he is concerned with social or civil liberty.
It is in this connection that Mill introduces his famous Harm Principle:
“[T]he 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 sufficient warrant.”
It’s a simple enough idea. You are at liberty to do what you wish, so long as you do no harm to others. You may harm yourself as much as you like. If you harm others, then the law may step in and curtail your liberty. Mill distinguishes between self-regarding and other-regarding actions. Your purely self-regarding actions are not to be interfered with, but those other-regarding actions which cause harm to others are the legitimate object of legal and moral coercion.
Some Criticisms of Mill’s Theory
Mill’s ideas seem straightforward, mostly because we as a society have more or less swallowed them hook, line, and sinker, despite the fact that they were subjected to some valid criticisms very early on. One of the most able of these critics was Stephen.
Mill has a nasty habit of introducing quite bold claims (like the Harm Principle passage, quoted above), and then quickly backtracking in light of criticisms. For example, after introducing the distinction between self- and other-regarding actions, he seems to realize that there are some seemingly self-regarding actions which he would still like to see penalized (e.g. habitual drunkenness). He deftly makes allowances for this by admitting that many actions seemingly self-regarding have more distant repercussions, which enables them to be conveniently classed as other-regarding. For example, if the drunkard has a family which must suffer financially by his folly, then society may take action.
In thus weakening his distinction, Mill casts doubt on its validity. Certainly Stephen is skeptical of it: “Men are so closely connected together that it is quite impossible to say how far the influence of acts apparently of the most personal character may extend.” Purely self-regarding actions are at best much rarer than Mill seems to believe, a point which, if true, would greatly extend the area of human conduct of which society may rightly take cognizance.
Stephen also took Mill to task for another inconsistency. The latter had claimed that paternalism, intervening in the affairs of others for their own good, was unjustified according to the Harm Principle. But then, again, he introduces some exceptions. One of these is the case of people in “backwards” states of civilization. He is not entirely clear about what is meant by “backwards”. He is even less clear about why they form an exception to his principle. As far as Stephen is concerned, this exception constitutes an inconsistency on Mill’s part. If we are all entitled to make mistakes in our individual “experiments in living” (the phrase is Mill’s), then why may not “backwards” peoples also be free to make mistakes? This is an example of Mill’s maddening habit of introducing bold claims, and then so hedging and qualifying them as to render them either nonsensical or trivial.
In On Liberty, Mill is largely concerned with a democratic state in which a majority may potentially exercise tyranny over a minority through the coercion of laws. But why the fascination with just this type of coercion? Stephen notes that there are many kinds of coercion that can be brought to bear, among which, the legal kind is by no means the most important. After all, it’s thankfully only a very few of us that are kept on the moral straight and narrow by fear of the law:
“Criminal legislation proper may be regarded as an engine of prohibition unimportant in comparison with morals and the forms of morality sanctioned by theology. For one act from which one person is restrained by the fear of the law of the land, many persons are restrained from innumerable acts by the fear of the disapprobation of their neighbours, which is the moral sanction; or by the fear of punishment in a future state of existence, which is the religious sanction; or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other two.”
Now, Stephen’s very last claim in this passage is dubious. Conscience is not necessarily reducible to fear of divine or social disapprobation. As a matter of fact, I’m not so sure it’s reducible to fear at all, unless aversion or disgust are forms of fear, which seems a stretch. Nonetheless, Stephen’s main point here is that there is more than one kind of coercion, and so if one of them (i.e. the legal form, which he says is the least efficacious) is deemed illegitimate, then why not the others? In other words, why doesn’t Mill consider moral and religious sanctions illegitimate in the same way he does legal sanctions?
A society is largely held together by three things: some degree of mutual concern, a system of shared beliefs and values, and a complex system of coercive means to maintain that solidarity of mutual concern and belief. I say that the system of coercion is complex, because such coercion is based on force, and force comes in many forms, of which legal force is just one manifestation.
Given such a broad conception of force, even a seemingly liberal and democratic society has recourse to force more often than Mill would care to admit. As Stephen notes,
“the difference between a rough and a civilized society is not that force is used in the one case and persuasion in the other, but that force is (or ought to be) guided with greater care in the second case than in the first. President Lincoln attained his objects by the use of a degree of force which would have crushed Charlemagne and his paladins and peers like so many eggshells.”
There is no way that a principle like Mill’s Harm Principle can mark off a clear distinction between when force is warranted and when it is not. All state action involves the use of force, and even the most liberal of states must have recourse to it. The art of government lies not in avoiding the use of force, but in knowing when and in what degree it is prudent to employ it. This is, of course, a question not of legitimacy but of policy.
Stephen’s Alternative Principle
One area where Mill and Stephen were in broad agreement was in their acceptance of utilitarianism as a moral and political theory. Mill believed that his Harm Principle would be conducive to the maximization of overall utility, for reasons I haven’t space to explore here. Stephen too was a utilitarian, and so he thought it was the duty of the state and its officials to do whatever was necessary to maximize utility. But he thought that Mill was on the wrong track, and that it was dangerous to tie the hands of the state in the way Mill was proposing.
For Stephen, the proper question is not, “When is it legitimate for the state to employ force?” but rather, “When, and to what degree is it prudent for the state to employ force?” In answer to this, Stephen had a principle of his own, one which bears a striking similarity to a principle employed in Canadian constitutional jurisprudence, the so-called Oakes test. Stephen states his principle thus:
“Compulsion is bad:
1. When the object aimed at is bad.
2. When the object aimed at is good, but the compulsion employed is not calculated to obtain it.
3. When the object aimed at is good, and the compulsion employed is calculated to obtain it, but at too great an expense.”
Compare this to the so-called Oakes test, so named from the case of R. v. Oakes  1 S.C.R. 103. The Canadian Charter of Rights and Freedoms guarantees Canadians certain rights. Section 1 of the Charter contains a “reasonable limits” clause, declaring that those rights are “subject only to such limits prescribed by law as can be demonstrably justified in a free and democratic society.” David Oakes was charged with violation of s. 4(2) of the Narcotic Control Act, for intended trafficking of an illegal substance. Section 8 of the same Act shifted the onus of proof onto the accused to prove that he did not intend to traffic. Given that this “reverse onus” provision was an infringement of his “presumption of innocence” right under the Charter, at issue was whether the infringement was justifiable under the “reasonable limits” clause of the Charter.
In giving judgment, Dickson, CJ laid out the following steps, all of which must be satisfied in order for a violation of Charter rights to be consistent with the “reasonable limits” clause of s. 1 of the Charter: 1. There must be a pressing and substantial objective, 2. the means employed must be proportional, that is, (i) the means must be rationally connected to the objective, (ii) there must be minimal impairment of rights, (iii) there must be proportionality between the infringement of rights and the objective — the infringement should not be more harmful than the ill it purportedly aims to address. This test has come to be known as the Oakes test. (Incidentally, the Court decided in Mr. Oakes’ favour, as it was found that s. 8 of the Narcotic Control Act foundered on the “rational connection” part of the test.)
We can see that Stephen’s 1 roughly corresponds with Oakes’ 1. Stephen’s 2 roughly corresponds with Oakes’ 2(i) and 2(ii). Stephen’s 3 roughly corresponds with Oakes’ 2(iii).
There are, however, a couple of differences. Stephen’s test is framed negatively (“compulsion is bad when the object is bad”), while Oakes is framed positively (“compulsion is good when the objective is good”). Also, Oakes stipulates that the objective must be “pressing and substantial”, while Stephen makes no such stipulation other than the less restrictive requirement that the objective must not be “bad”.
For Stephen, “bad” would likely be cashed out in terms of the objective’s failure to be conducive to general utility. But it’s a matter of degree. General utility always justifies compulsion; it’s only a question of how much and how directly it is wise to employ it.
Stephen’s Conception of Liberty
Mill’s conception of liberty was negative, in that it was basically thought of in terms of non-intervention. This is a common way of conceiving of liberty in the liberal tradition. Stephen’s notion of liberty is quite different. He illustrates it by frequent use of the metaphor of flowing water. For example, he writes that
“the life of the great mass of men, to a great extent the life of all men, is like a watercourse guided this way or that by a system of dams, sluices, weirs, and embankments. The volume and quality of the different streams differ, and so do the plans by which their flow is regulated, but it is by these works — that is to say, by their various customs and institutions — that men’s lives are regulated.”
For Mill, liberty would mean the removal of all these “dams, sluices, weirs, and embankments” that seemingly hinder the flow of life. But for Stephen, these waterworks represent customs, traditions, and institutions, without which there can be no flow, no direction or purpose to one’s life:
“I confine myself to saying that the utmost conceivable liberty which could be bestowed upon them [men] would not in the least degree tend to improve them. It would be as wise to say to the water of a stagnant marsh, ‘Why in the world do not you run into the sea? you are perfectly free. There is not a single hydraulic work within a mile of you. There are no pumps to suck you up, no defined channel down which you are compelled to run, no harsh banks and mounds to confine you to any particular course, no dams and no floodgates; and yet there you lie, putrefying and breeding fever, frogs, and gnats, just as if you were a mere slave!’ The water might probably answer, if it knew how, ‘If you want me to turn mills and carry boats, you must dig proper channels and provide proper waterworks for me.’”
To speak of liberty in Mill’s negative sense, is to speak of a mere nothing. We cannot conceive of it any more than we could conceive of a doughnut hole without reference to doughnuts. Or as Stephen puts it,
“discussions about liberty are in truth discussions about a negation. Attempts to solve the problems of government and society by such discussions are like attempts to discover the nature of light and heat by inquiries into darkness and cold. The phenomenon which requires and will repay study is the direction and nature of the various forces, individual and collective, which in their combination or collision with each other and with the outer world make up human life.”
Stephen as a Proto-Communitarian
There is another criticism of Mill’s liberalism made by Stephen, one which was very prescient in light of the rise of communitarian political thought in the twentieth century. In standard utilitarian thought, as espoused by Bentham and Mill, right action is defined by the maximization of overall utility, universally and impartially considered. As Bentham put it, in calculating utility, each is to count for one, and nobody is to count for more than one.
This has some unfortunate consequences. If there are two drowning children, and one of them happens to be my son or daughter, I am not allowed to favour my child over the other one, unless overall utility would for some reason be better maximized that way. Similarly, if I can give money to charity or use it for a family vacation, my family must wait, because, from the point of view of overall utility, the money can almost always be better spent elsewhere.
And yet, it is very ironic, says Stephen, that utilitarianism should demand so much of us, because its demands would end up failing to maximize utility, by making all of us miserable.
Stephen considered himself to be a utilitarian, but of a kind which we might nowadays call an indirect utilitarian, for he seems to be of the view that utility is not best maximized by directly pursuing its maximization. Rather, it is best pursued through customs, institutions, and certain kinds of relationships of exclusivity and mutual affection. Such a view means that we are all collectively made happier by our involvement, in family (which gives more consideration to the utility of kin than of strangers), friendship (which gives more consideration to the utility of friends than of strangers), and community or nation (which gives more consideration to the utility of fellow countrymen than of strangers).
We must all live in a community if we are to flourish. But community cannot subsist without shared values and mutual ties of affection and concern. Mill’s atomistic liberalism does not give this fact enough weight. Instead, it seems to imagine that we can all live and flourish in a state of mutual unconcern.
Such unconcern, says Stephen, also lies at the heart of liberalism’s preoccupation with tolerance, particularly with tolerance of views and values which diverge from those of the community. Most of us in the West are heirs of Mill’s liberalism, so we tend to think of tolerance as an unequivocally good thing, and indeed it probably was of considerable value in an era of religious wars and persecutions. However, for Stephen, tolerance is a threat to that system of shared values and beliefs of which society is composed. And complete tolerance is the negation of society as such, for “complete moral tolerance is possible only when men have become completely indifferent to each other — that is to say, when society is at an end.” A collection of strangers is not the same thing as a society.
Modern communitarians often make a similar critique of liberalism: that it’s too bloodless, that it doesn’t offer enough “glue” to hold a society together. A society must have some basis in shared values, and, as Stephen and others would point out, sharing values means the willingness to defend those values and to regard incompatible values as inimical. Of course, Stephen would also advise us to pick our battles wisely, and not attack other value systems head on if we cannot reasonably hope to win, or if winning would be too costly. For him, “tolerance” does not consist in “accepting” or “embracing” the other, but rather in making strategic retreats, or fighting by more indirect means. Toleration is an attitude one takes with an enemy one cannot decisively defeat. It is not a virtue.
It sounds harsh, this view of life as inescapable struggle between systems of value, but Stephen would say that it’s a reality liberals ignore at their peril, for there are other inimical, non-liberal value systems waiting to take advantage of this central liberal weakness.
Sadly, politics abhors a vacuum, and if liberalism creates a vacuum of negative liberty, something very illiberal is apt to fill it.