Chapter 3: Morality and Utility (original) (raw)

The Traditional Interpretation

hat is the nature and basis of Mill's distinction between self- and other-regarding conduct? According to the traditional interpretation, self-regarding actions have no effect on others against their wishes; they only affect the agents and consenting adults. This interpretation has provided much of the basis for the criticism of Mill's allegedly false individualism which sees society merely as a collection of atomistic individuals, each one capable of living in substantial independence of the others [this kind of objections to Mill has been well documented and discussed by J. C. Rees]. As against this, Mill's critics remind us that man lives in a society, and he is not, and cannot be, isolated from others. Except for a few very trivial actions which no one has ever thought of suppressing, all our actions will affect others in some way. This will be readily seen if we think not just of the physical effects on others such as are produced by being punched, stabbed, or shot at, but also of the mental anguish and suffering produced. As Robert Paul Wolff points out, to a devout Calvinist or a principled vegetarian the “very presence in his community of a Catholic or a meat-eater may cause him fully as much pain as a blow to the face or the theft of his purse” [Wolff, 24]. There are therefore no self-regarding actions of any importance, and in setting up a protective fence around such actions, Mill only succeeded in defending the freedom of individuals to engage in trivial activities. But whenever an act provokes the anger, resentment, or disgust of others, it clearly affects them and thus falls into the category of other-regarding conduct.

In defending Mill's notion of self-regarding conduct, his disciple Morley maintained that we should set a limit to what may properly be considered as the effects of an act such that the remote effects on others should not be counted [Morley, 252]. Morley also claimed that it is unreasonable to bring in the “indirect and negative consequences” of the act which consist in the agent's neglect of some socially useful activities while he is [10/11]performing an act which otherwise affects only himself.” [Morley, 253] But these restrictions on what are to count as the effects of an act are insufficient to show that there are non-trivial acts which have no effect on others. For acts which are disliked, abhorred, or viewed with repugnance by others, all affect them immediately and positively. Yet it is clear that Mill. would not count such effects as disqualifying an act from membership of the self-regarding class.

Mill, readily and explicitly admits that self-regarding conduct affects others, and this admission is fatal to the traditional interpretation. Thus he acknowledges that “the mischief which a person does to himself may seriously affect, both through their sympathies and their interests, those nearly connected with him and, in a minor degree, society at large” (137). He also writes that a person's self-regarding conduct which affects him directly, “may affect others through himself” (75).

Self-Regarding Conduct -- Affecting the Interests of Others

n his important paper “A Re-Reading of Mill on Liberty”, J. C. Rees very effectively criticizes the traditional interpretation and provides an alternative interpretation [subsequent references to Rees, Re-Reading will be to the Radcill edn]. Rees maintains that self-regarding actions do not affect the interests of others. He claims that there is for Mill a distinction between merely “affecting-others” and affecting the “interests of others”, and that in some crucial passages when he is stating his principle, Mill uses the notion of interests rather than that of effects. To say that somebody's conduct affects others is to make a factual statement, whereas to claim that a person's interests are affected is to make a statement that is in part normative. Whether one's interests are affected depends on whether one is affected in a way that is regarded as important. We appeal to certain standards or values in determining whether interests have been affected. On the other hand, a person can be affected by an act simply because he is extrasensitive. The peculiarities of one's tastes, and other subjective factors, can determine whether one is affected by another's conduct. But whether or not interests are affected does not depend on such factors. There is an objective element in the [11/12] notion of interests such that not just any effect will count as an effect on interests.

Rees also argues that the notion of interests is different from that of effects because Mill links interests to the notion of rights. Thus Mill says that individuals should not injure the interests of one another, “or rather certain interests which, either by express provision or by tacit understanding, ought to be considered as rights” (132). This link between interests and rights again shows that standards and values are invoked when one claims that interests are violated in the way that they are not when one talks of effects.

According to Rees, interests “depend for their existence on social recognition and are closely connected with prevailing standards about the sort of behaviour a man can legitimately expect from others” [Re-Reading, 94]. But if this is the case, then the area of individual liberty is to a large extent determined by prevailing standards and values, Now Mill, when he put forward his principle, was concerned to set a barrier against the tyranny of the majority. But on Rees's account his principle would strengthen the hands of the majority. For it follows that the extent to which the conduct of the individual may be interfered with now depends on what are recognized by prevailing standards as the individual's interests. It is therefore the values of the majority which determine whether or not other people's interests are violated by a person's conduct, and hence whether his conduct falls within the area of legitimate intervention by law and public opinion. But since Mill feared so much the tyranny of prevailing values, and explicitly fought against it, it seems highly unlikely that he would subscribe to a notion of self-regarding conduct that places individuals at the mercy of these values. As Wollheim has argued, Rees's interpretation makes Mill's principle both conservative and relativistic in its application [Wollheim, 6]. It is conservative because the area of individual liberty will only be enlarged with difficulty since there must first be a favourable change in socially recognized norms. The principle is also relativistic because its content will vary greatly from one society to another, depending on what the respective prevailing norms are.

If the appeal to prevailing standards will not do, perhaps [12/13] it is possible to give another account of interests which makes it dependent on a more acceptable set of standards and values. Since Mill explicitly professes to be a utilitarian of some sort, it is tempting to explicate interests in terms of the principle of utility. Such an account has been offered by Ted Honderich [ch. 6, es181-86]. He agrees with Rees that there is a distinction between interests and effects, but disagrees about the nature of the relevant interests. Self-regarding actions are those actions which do not violate what ought to be the interests of others, and the standard of what ought to be the interests of others is provided by the principle of utility. The relevant interests are therefore no longer determined by the variable and varying prevailing standards of different societies, and Mill's principle is rescued from conservatism and relativism.

There are, however, difficulties in Honderich's account that he himself lucidly and candidly explores. For a utilitarian, Mill's liberty principle would be secondary or subordinate to the principle of utility. Its status should be similar to that of other secondary principles, like the principles that one should keep one's promises and that one should tell the truth. These secondary principles give more detailed and precise guides than does the principle of utility itself as to how one should act on particular occasions. But they are secondary in the sense that they derive their justification from the ultimate principle of utility: keeping one's promises and telling the truth will maximize happiness at least in most cases. A secondary principle is therefore something distinct from the principle of utility, but justifiable in terms of it. However, on Honderich's account Mill's principle is not distinct from the principle of utility. For self-regarding actions do not violate what ought to be the interests of others, and “what ought to be in the interests of others” is defined in terms of the principle of utility. The principle of utility enters into the very formulation of Mill's allegedly secondary principle. It would therefore have been simpler if Mill had defended liberty by directly applying the principle of utility instead of proceeding via the liberty principle. For, on this view, the liberty principle cannot in any case be stated without reference to the principle of utility.

There is a general objection to any account of self-regarding [13/14] conduct that depends on making a distinction between interests and effects. Mill does not seem to recognize any such distinction [cf. Wollheim, 22-4]. It is of course true that the term “interests” is often used in stating his principle. But he also uses a host of other expressions, especially “what affects others” and “what concerns others”, and he moves easily from one expression to another in a way which suggests that he is using the terms “interests”, “effects”, and “concerns” interchangeably. Indeed, just as he allows that self-regarding actions may affect others, he too concedes that they may affect indirectly the interests of others: “But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; . . .” (75). He goes on to acknowledge the possible effects on others of self-regarding conduct. The important distinction for him is not that between interests and effects, but rather that between direct and indirect interests, or, what amounts to the same thing, direct and indirect effects. Elsewhere in the essay, as Rees points out, Mill uses similar phrases to draw the line between self- and other-regarding conduct.10 The contrast is between what primarily and chiefly concerns the interests of the individual, and what primarily or chiefly concerns the interests of society.

The ultimate importance of Rees's interpretation does not depend on there being a distinction between interests and effects, for what he has shown is that Mill wanted to distinguish between the different types of effects that an action may have. Rees has decisively refuted the traditional interpretation, and he has established that self-regarding conduct affects others in certain ways. So the problem now is to give a coherent account of the nature of the effects on others that self-regarding conduct may have.

Self-Regarding Conduct -- The Irrelevance of Society's “Likings and Dislikings”

ccording to Mill, an action indirectly affects others, or the interests of others, if it affects them simply because they dislike it, or find it repugnant or immoral. Soon after stating his principle, he picks out three areas of self-regarding conduct. The difference between other-regarding and self-regarding actions in the area of “tastes and pursuits” is expressed in [14/15] terms of actions which “harm” our fellow creatures on the one hand, and on the other hand, actions which do not harm them “even though they should think our conduct foolish, perverse or wrong”. Again, before he states his liberty principle, he considers certain attitudes which he thinks have worked against the cause of freedom. He criticizes those who “have occupied themselves rather in inquiring what things society ought to like or dislike, than in questioning whether their likings or dislikings should be a law to individuals” (70-71). His principle is meant to oppose such attitudes.

Sometimes the feelings of abhorrence and dislike can be very intense, and in this way self-regarding conduct can seriously affect others. But Mill deplores a state of affairs in which punishment and severe social pressures are brought to bear on actions which merely arouse society's intense dislike and repugnance. He points out that “wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed” (71). We have such a situation if a society, consisting of a majority of Muslims, prohibited the eating of pork. Mill reminds us that they find the practice “really revolting” and they “also sincerely think that it is forbidden and abhorred by the Deity” (142). The only tenable ground we can have for condemning such a prohibition is that “with the personal tastes and self-regarding concerns of individuals the public has no business to interfere.” In other words, only by adopting the liberty principle can we have a reason for ruling out the appeal to the majority's genuine feelings of repugnance and revulsion as a ground for interfering with individual liberty. Mill's essay On Liberty is a protest against the appeal, which he felt was so often made, to such feelings of the majority as relevant and good reasons for restricting the actions of individuals. According to him they are in themselves never relevant or good reasons for interference. If the only reason that can be given for wishing to restrict an individual's action is an appeal to such feelings, or to the mere belief that the conduct is wrong, then the individual's action is a self-regarding one. If however the action harms others, or violates “a distinct and assignable obligation”, then an additional factor is introduced which takes it out of the self-regarding into the other-regarding [15/16] class. But even so Mill insists that we should give the proper reason for intervention:

If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or having undertaken the moral responsibility of a family, becomes from some cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance. [138.]

Mill wants to revise the framework within which questions about individual liberty and society's right of interference are raised and answered. A principled defence of individual liberty will reject the idea that the “likings and dislikings” of society shall dictate what individuals are permitted to do. But such a defence has generally not been given. It is only in the area of religious belief that “the higher ground has been taken on principle and maintained with consistency, by any but an individual here and there” (71). But even here religious toleration has only been practically realized when there is religious indifference. “Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed” (71). We would certainly think it unjust if we were in the minority and a majority, because it strongly disapproved of our religious practices, prohibited them. By the same token, we should recognize that we ourselves have no better case for prohibiting anything simply because we find it offensive and we are in the majority. We should not adopt “the logic of persecutors” and claim that “we may persecute others because we are right, and that they must not persecute us because they are wrong” (142). His liberty principle provides the basis for our consistently excluding all such cases of oppression by the majority.

Mill wants to show that a consistent defence of individual liberty will involve the application of his liberty principle not just to religious beliefs and practices, where it has already a limited acceptance, but also to all other similar cases. The adoption of his principle excludes the use of a certain kind of balancing as the basis for interference with liberty. The outraged sensibilities of the majority are not to be weighed against the feelings of those whose conduct offends the majority. The mere fact that one is offended by the conduct of others carries no weight. [16/17]

There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person's taste is as much his own peculiar concern as his opinion or his purse. [140]

Mill says that his case for liberty is not based on “the idea of abstract right, as a thing independent of utility”. By this he means that he is not simply going to intuit the value of liberty, or baldly and boldly to assert its value without further argument. He is going to base his case on “utility in the largest sense”. Now it appears that part of his argument for liberty rqsts on spelling out the different implications of accepting or rejecting his liberty principle. The rejection of his principle will have undesirable consequences in that it will lead to religious intolerance. He focuses on religious examples because here the undesirable consequences or implications of the rejection of his principle will be appreciated with less difficulty by more people. But he generalizes from particular cases and tries to show that any sound and consistent defence of religious toleration will lead to the acceptance of his principle, and therefore to the recognition of a wider area of individual freedom.

In giving a unified account of the value of promoting freedom with respect to self-regarding conduct generally, Mill also appeals to the different types of benefit that freedom brings to society and to the agents themselves. Some of these benefits are the effects of freedom. Thus he points out that freedom will allow individuals to conduct “experiments in living”, and to learn from their own and other people's experiences and mistakes. In this way people are more likely to discover enjoyable and worthwhile activities. In Utilitarianism he remarks that a “cultivated mind” will find “sources of inexhaustible interest in all that surrounds it; in the objects of nature, the achievements of art, the imaginations of poetry, the incidents of history, the ways of mankind, past and present, and their prospects in the future” [Utilitarianism, 13]. Any ordinary [17/18] person in “a civilized country” can aquire the requisite amount of “mental culture”. Mill regards the absence of freedom as one of the principal barriers to the attainment of human happiness.

In a world in which there is so much to interest, so much to enjoy, and so much also to correct and improve, everyone who has this moderate amount of moral and intellectual requisites is capable of an existence which may be called enviable; and unless such a person, through bad laws, or subjection to the will of others, is denied the liberty to use the sources of happiness within his reach, he will not fail to find this enviable existence, if he escape the positive evils of life, the great sources of physical and mental suffering -- such as indigence, disease, and the unkindness, worthlessness, or premature loss of objects of affection. [Utilitarianism, 13-14]

However, the relation between freedom and some of its benefits is not properly described in terms of cause and effect, means and end. Mill regards freedom as important for individuals to form and to develop their “characters”, to express themselves both in words and in deeds, to cultivate what he calls 'the free development of individuality'. His ideal of individuality will be examined in detail in Chapter 5, but at present it is enough to note that freedom is an ingredient of individuality rather than a mere means to its promotion. Freedom is a component of Mill's view of a desirable form of life and of the happiness associated with such a life.

In treating as irrelevant the repugnance and abhorrence of the majority towards some self-regarding actions, Mill goes against the classical utilitarian's view that all pleasures and pains are relevant in determining the rightness or wrongness of an act. Mill's view also seems to be inconsistent with preference utilitarianism which regards the satisfaction of any desire as in itself good. The frustration of people's desire to suppress self-regarding conduct carries no weight. But can a consistent utilitarian discount, as Mill evidently wants to, the adverse effects on others that are produced by some self-regarding actions? This is the question to which we shall now turn.

Utilitarianism and Self-Regarding Conduct: Wollheim's Interpretation

n a recent paper entitled “John Stuart Mill and the Limits of State Action” Richard Wollheim gives a subtle and comprehensive account of Mill's notion of self-regarding actions13. According to Wollheim, self-regarding actions are “those actions which affect either the agent alone or other people solely insofar as they believe such actions to be right or wrong” (9). Although, as we shall see at the end of this section, Wollheim omits some acts that Mill would wish to include in the self-regarding category, his account of what Mill means by such acts is substantially correct. However, he fails in his ingenious attempt to reconcile his interpretation of self-regarding actions with utilitarianism. He does not succeed in showing that Millian liberalism, as embodied in the claim that there are never good reasons for prohibiting self-regarding actions, is compatible with utilitarianism.

Wollheim points out that at first sight there may appear to be a conflict between his account of self-regarding conduct and the utilitarian doctrine. This is because, on Wollheim's interpretation, Mill is committed to disregarding as irrelevant the pain or distress of outraged moral and religious sensibilities. But a utilitarian must surely take into account any pain produced by an act. Rawls has given a vivid illustration. Suppose that the majority in a society has such an intense abhorrence for certain religious or sexual practices that even the very thought that these practices are going on in private and out of their view is enough to arouse anger and hatred.

Seeking the greatest satisfaction of desire may, then, justify harsh repressive measures against actions that cause no social injury. To defend individual liberty in this case the utilitarian has to show that given the circumstances the real balance of advantages in the long run still lies on the side of freedom; and this argument may or may not be successful. [Rawls, 450]

However, Wollheim uses two arguments to show that the utilitarian is ultimately justified in ignoring the pain caused solely by the belief that an action is wrong. If these two arguments succeed, then the utilitarian does not have to go in for the kind of balancing of pleasures and pains that Rawls suggests.

I shall begin with the second argument. Wollheim maintains [19/20] that Mill has two criteria for distinguishing a preference from a moral belief. First, a preference is based on feelings and emotions. It is not supported by reasons, and according to Wollheim, Mill was only prepared to accept reasons which appealed to the consequences of the act. The second criterion is that a preference is personal in the sense that it is not about how others ought to behave, but only about the individual's own conduct.

Wollheim points out that many, though not all, of the beliefs in question are mere preferences according to the first criterion. The beliefs we are considering are those which condemn actions as wrong even though these actions cause no harm or pain to others independently of their being thought wrong. Since the actions cause no independent harm, no reason of the relevant utilitarian kind can be given to show that they are wrong. Hence the belief that they are wrong must be a preference by the first criterion. We cannot, for example, say that a self-regarding action is wrong because it pains others, for the pain does not exist independently of the belief that the conduct is wrong, and hence cannot be cited in support of it. However, Wollheim shows that there are some beliefs of the type in question which are not preferences. In these cases the actions condemned by the beliefs also cause no independent harm, but it is genuinely believed that they cause such harm, and this sincere, though mistaken, belief is the reason for the condemnation. Wollheim gives the example of someone who believes that smoking marijuana causes impotence, and this belief is his reason for supporting the legal penalties against marijuana smoking. His belief, then, is not a preference according to the first criterion, because the belief is supported by a reason which appeals to the consequences of the act.

The next step in Wollheim's argument is to show that for Mill the two criteria for preferences are linked in that if a belief is a preference by the first criterion, then it will also satisfy the second criterion. He argues that in Utilitarianism Mill holds the view that a judgement can only be considered a moral judgement if it is based on an appeal to consequences. If, in justifying his act, an agent is not prepared to give a reason which invokes the consequences of the act, then his [20/21] judgement on the act is not a moral judgement. But the agent who cannot back his judgement with relevant reasons has merely stated his preference, according to the first criterion of a preference. But, at the same time, the judgement is also not a moral belief about what all should or ought to do in similar situations. So what is the nature of the judgement? Wollheim. concludes that Mill would seem to have only one answer: it is a judgement of personal taste or inclination about what the agent himself should do, and hence it satisfies the second criterion of a preference. If this linkage between the two criteria for preferences is granted, then the rest of Wollheim's argument can proceed.

Suppose X is a self-regarding action which “causes” pain to another person simply because he believes X to be wrong. Since this belief is not supported by a utilitarian reason, it is a preference according to the first criterion. But, because of the linkage between the two criteria for preferences, the belief will also satisfy the second criterion for a preference. From this, it follows that the belief cannot be about the conduct of others. For according to the second criterion for a preference, a preference only refers to what the person who has the preference would like to be or to do. So X cannot really violate his preference since X is the conduct of another agent. The pain that the person experiences when he sees, or comtemplates, someone else's performance of X cannot therefore be attributed to X. He is mistaken in thinking that X is the cause of his pain. Since X causes no other pain, there is no utilitarian reason for interfering with it.

The person who thinks that X is the cause of his pain in fact mistakes his preference for a moral belief. For example, he thinks that he holds the moral belief that homosexuality is wrong, and that is why the homosexual acts of others distress him. In fact his belief, being a preference, relates only to his own conduct. Perhaps he believes that a homosexual life is not the life he would like to lead. Wollheim suggests that the association in his mind between his pain and the homosexual acts arises very likely from his own desires and fears about homosexuality. Perhaps he himself both desires to indulge in homosexual acts, and is afraid to do so.

However, Wollheim's attempt to link the two criteria for [21/22] preferences fails. The linkage exists only when an agent is making a judgement about his own conduct. But of course we make judgements not only when we are agents, but also when we are spectators. In the case of a judgement about other people's conduct, from the fact that it is not a moral judgement but a preference according to the first criterion, it cannot be inferred that it is also a preference according to the second criterion. For my judgement may be personal in one of Wollheim's senses, in the sense that it stems from my own feelings and emotions, and yet not be personal in the required sense that it relates only to my conduct. My feelings and emotions may be related to the conduct of others. So the link between the two criteria for preferences is present only in the case of a person's judgements on his own conduct. But in the context of self-regarding conduct, it is our judgements on other people's self-regarding conduct, and not on our own, that raise a problem for the utilitarian.

Certainly Wollheim is right in drawing attention to the importance for Mill of the distinction between a preference and a moral belief. But there is no evidence that Mill accepted the second criterion for a preference. In a long footnote to his edition of his father's Analysis of the Phenomena of the Human Mind, Mill states the distinction between a moral belief and a preference:

This strong association of the idea of punishment and the desire for its infliction, with the idea of the act which has hurt us, is not in itself a moral sentiment, but it appears to me to be the element which is present when we have the feelings of obligation and of injury, and which mainly distinguishes them from simple distaste and dislike for anything in the conduct of anotherthat is disagreeable to us, that distinguishes, for instance, our feeling towards the person who steals our goods, from our feeling towards him who offends our senses by smoking tobacco.” (My emphasis.) [Mill's Ethical Writings]

Here is an explicit statement that a preference, or a “simple distaste or dislike”, can be about “the conduct of another”. such as his smoking tobacco. The same view is also expressed in Mill's essay on Bentham, where he speaks of liking or disliking other people's conduct which “neither does good nor harm”, as opposed to having the moral sentiments of [22/23] approval or disapproval [Mill's Essays, 284]. Again there is not the slightest hint that preferences are to be restricted in scope to the conduct of the person who has the preference.

With these two passages from Mill's other works in mind, we can return to the essay On Liberty and see whether there is anything there which suggests a different account of the nature of preferences. But, curiously, the only passage cited by Wollheim which bears on the scope of a. preference goes against his account. For in it, as Wollheim himself acknowledges, Mill refers to the existence of preferences about what others should do: specifically, Mill mentions a religious bigot's distaste for the religious beliefs and practices of others [Wollheim, 22].” Wollheim treats this remark as an aberration from Mill's main characterization of preferences as limited in scope to the conduct of the person having the preference. But the belief that preferences can be about the conduct of others is, as we have seen, very much in line with Mill's comments elsewhere, and far from being an isolated remark, it seems to be part of his considered view of the nature of preferences.

But if preferences can refer to the conduct of others, then Wollheim's argument collapses. For the admission that a belief is a preference does not imply that another person's conduct will not violate it. So a self-regarding act can violate other people's preferences, and can therefore cause them pain. Without further argument a utilitarian would not be justified in placing it completely outside the scope of social intervention.

I now turn to Wollheim's first argument. This can be divided into two parts. The first part of the argument is that if the only effect an action has on others is through their belief that the action is wrong, then the belief in question must be false. This is because the utilitarian calculation of the pleasures and pains caused by an action must be made as if in a world prior to the adoption of moral attitudes. Otherwise one would have to include the pleasures and pains caused by the action through various moral beliefs. And if these pleasures and pains are included, then the rightness or wrongness of an action will, to some extent, be determined [23/24] by whether people feel or believe ihe action to be right or wrong. If, for example, people feel strongly enough that a particular action is wrong, and they are severely distressed by the mere contemplation of the action, then these pains may be bad enough to make the action wrong. So if one counts the pleasures and pains caused by various moral beliefs, then it is possible for an action to be right or wrong simply because a sufficient number of people feel strongly enough that the action is right or wrong. But this is absurd. If one now disregards the pain which arises simply from the belief that an action is wrong, then a self-regarding action has no painful consequences, and hence cannot be wrong on utilitarian grounds. The belief that it is wrong must therefore be a false belief.

Having established that the beliefs in question are false, Wollheim enters the second part of his argument by asking: why should the utilitarian Mill ignore the pain caused by the false beliefs about an action? After all, these pains are no less real than the pains arising from true beliefs. Wollheim says that Mill was perhaps inclined simply to disregard the pain caused through false beliefs in the same way that he looked down on the comforts of unreason and error. This inclination is supported by Mill's view that as intellectual inquiry progresses, false moral beliefs will be eliminated.

However, these considerations only show Mill to be a very imperfect utilitarian, and this goes against Wollheim's general thesis. Perhaps Mill is right that false moral beliefs will vanish with the progress of intellectual inquiry, but a good utilitarian will still take into account the pain brought about by false beliefs so long as the pain exists. Of course if he thinks that certain false beliefs will soon disappear he will not give much significance to the distress to which they give rise. But here what discounts the distress is not the falsity of the beliefs, but the short-lived or temporary nature of the distress. And if Mill was disposed bluntly to discount both the pleasures and pains arising from false beliefs as such, then he would have abandoned the utilitarian axiom that all pleasures as such are good, and all pains as such are evil.

However, even though in the second part of his argument Wollheim. does not succeed in explaining why a utilitarian [24/25] would ignore the pain caused through false beliefs, there was no need for him to have embarked on this task. The first part of his argument, if sound, already gives him all that is necessary. For he has already explained why the pain caused by the belief that the act is wrong should be ignored: it is because otherwise an act can be made wrong simply by a sufficient number of people feeling strongly enough that it is wrong. But if any pain so caused may be disregarded, then of course it follows that any pain caused by a false belief about the wrongness of the act may be ignored. No additional argument is needed. However, what is crucial to Wollheim's argument here is not the fact that the belief is false, but rather the fact that the belief is one concerning the morality of the act. As Wollheim maintains, the utilitarian calculation must be made prior to the adoption of moral attitudes. The distress in question is to be ignored not because it stems from a false belief, but rather because it stems from a belief about the morality of the act. In a different case, a person may hold the false belief that someone is going to kill him, and as a result live in constant fear and trembling. The distress caused by this kind of false belief must be taken into account by the utilitarian, and nothing that Wollheim has said shows otherwise. But this is not the kind of distress caused by self-regarding conduct. A self-regarding action causes no relevant pain because the only pain it causes arises from the belief that it is wrong, and this pain, we have seen, is to be ignored. So it does seem that, in most cases, there would be no utilitarian reason for interfering with such actions.

However, I add the qualification 'in most cases' because some self-regarding actions may cause harm to the agent himself, either immediately or in the future. And given that the harm is bad enough, there will be a good utilitarian reason for paternalistic intervention to prevent the agent from harming himself. So further argument is needed to show why the utilitarian would reject paternalism. But this qualification aside, the first part of Wollheim's argument, if sound, would appear to show that there is no utilitarian basis for interfering with self-regarding conduct. But his argument is unsound.

Wollheim maintains that the utilitarian must disregard the [25/26] pleasures and pains which arise simply from the adoption of moral attitudes towards an action, for otherwise the morality of the action will, in certain circumstances, be crucially determined by the mere strength of people's feelings about its rightness or wrongness. But this argument, as elaborated by Wollheim, suffers a little from an ambiguity in the scope of the pleasures and pains that are to be ruled out by the utilitarian. In one place Wollheim refers to “pleasurable and unpleasurable moral responses”, and here what are pleasurable and unpleasurable respectively are the favourable and unfavorable moral responses themselves. But Wollheim also refers to a causal connection between the pleasures and pains on the one hand, and the associated moral beliefs on the other hand. And in general he refers to the effects on others of selfregarding actions as effects which proceed only “via certain beliefs they hold” (8), or as effects which are brought about “solely insofar as they believe such actions to be right or wrong” (9). But the extent of the effects on others that self-regarding actions can have will depend on whether or not we are to include among such effects all those caused by the beliefs these people hold about the morality of the actions. For example, it may be part of being a sincere and committed Sabbatarian that one is distressed, to some extent at least, by the licensing of Sunday entertainments. But different Sabbatarians will be distressed to different degreees. Suppose that some are so distressed that they are physically ill. Such illness is causally linked to their beliefs about the wrongness of Sunday entertainments. Is the physical illness therefore to be considered a part of the effects of Sunday entertainments? Or do we, as Wollheim seems to suggest on one occasion (12-13), confine the relevant effects to the mental anguish that the contemplation of the act causes in those who think it wrong?

However, there are several arguments that the utilitarian may use to try to show that, in spite of the harm in question, self-regarding conduct should never be interfered with. The first argument is to deny that the harm -- the serious illness of the morally sensitive person -- is to be attributed to the self-regarding conduct of others. In other words, it is not the violations of his moral beliefs which give rise to the harm. [26/27] The cause of the harm is the person's own peculiar personality. A normal person, who holds the same moral views, will not be as seriously affected as this sensitive person is by the mere awareness that others are committing immoral acts. The difference must therefore be attributed, not to these acts, but to the person's unusual, and indeed, extreme sensitivity. It is this extreme sensitivity which is the real cause of his illness [Feinberg, 104-5].

But the argument, so far, does not provide the utilitarian with a reason for never prohibiting self-regarding acts. For granted that such acts do not cause the illness, it remains true that the acts are causally relevant in the production of the illness. What the utilitarian needs to show is that such a prohibition is never the most economical or effective way of preventing the illness, or that the cost in utilitarian terms of such prohibition will always outweigh the evil of the illness. These he may or may not be able to show. For example, it may be relatively easy to shield a sensitive person from the knowledge that sexual immoralities are committed every night in his society, or to steel him to face such knowledge with calmness. But if it proves to be impossible to do either, the utilitaxian could still plausibly argue that it is better for the sensitive person to be seriously ill rather than for the state to prohibit all the self-regarding actions which will offend his moral sensibilities. The cost in terms of human misery, and limited police resources, of such prohibitions will considerably outweigh the evil of one person's serious illness. However, all that the argument attempts to show is that the harm is not sufficient to justify the suppression of self-regarding actions. But the harm must always be taken into account in any utilitarian calculation of whether certain self-regarding actions should be permitted.

But I have still not come to grips with Wollheim's argument that “the Utilitarian calculation must be made as if in a world prior to the adoption of moral attitudes.” (12.) His argument here fails to make a couple of distinctions. First, it is necessary to distinguish between those pleasures and pains which arise from the adoption of utilitarian moral attitudes, and those pleasures and pains which arise from the adoption of non-utilitarian moral attitudes. Prior to the adoption of any moral attitude, a self-regarding action [27/28] causes no pain to others, and once again, leaving aside the effect on the agent himself, there is no utilitarian basis for believing it to be wrong. Hence if a utilitarian, who is aware of this fact, still regards the action as wrong, and it thereby distressed by it, then there is something irrational about him. But from the non-utilitarian point of view, the action may properly be regarded as wrong even though it has no undesirable consequences independently of its being so regarded. For the ground of the moral judgement that the act is wrong may have nothing to do with the consequences of the act. This point is of some significance because most of those who are likely to be distressed as a result of their beliefs about the wrongness of some self-regarding actions will be non-utilitarians. Now, the distress of non-utilitarians can be treated as something that occurs prior to the utilitarian moral judgement bn a self-regarding action. This being the case, there is no reason why the utilitarian should ignore the distress. The distress occurs prior to the adoption of utilitarian moral attitudes, and therefore constitutes part of the data which the utilitarian has to take into account before he decides on the morality of the action. So even a self-regarding action can be wrong if it causes enough distress to non-utilitarians.

But now, suppose I am wrong about this, and the distress of the non-utilitarian may be ignored by the utilitarian. It follows, then, that no self-regarding act is morally wrong from the utilitarian point of view. But it does not follow that, on utilitarian grounds, it would always be wrong legally to prohibit such acts, or to punish persons for engaging in them. This is because punishing an act X is itself an act that is distinct from X, and may have consequences different from the consequences of X. This distinction is of course analogous to that between the morality of an act and the morality of praising or condemning a person for performing that act, a distinction that utilitarians themselves have emphasized [see J. J. C. Smart, 197-8]. Now armed with this distinction, we can accept Wollheim's claim that “the Utilitarian calculation must be made as if in a world prior to the adoption of moral attitudes”, and yet reject his unqualified view that the utilitarian may ignore the distress which arises by way of the belief that a self-regarding act is wrong. For now there are different levels [28/29] from which the distress may be viewed. With respect to the morality of X, we are to ignore the distress which proceeds from the belief that X is wrong. But if the question concerns the morality of punishing or prohibiting X, then the distress produced by the belief that X is wrong is relevant to the utilitarian calculation. For though the distress does not exist prior to the adoption of moral attitudes about X, it exists prior to the adoption of moral attitudes about the punishment or prohibition of X.

I conclude therefore that Wollheim does not succeed in reconciling Mill's defence of self-regarding conduct with utilitarianism. Moreover, any attempt at reconciliation will have to face an additional difficulty because Wollheim's account of self-regarding conduct is defective in at least one respect. He says that if there are actions that produce “immediate revulsion or disgust”, then these actions are not selfregarding. This is because, on his account, self-regarding conduct affects others only in so far as they believe the conduct to be wrong. But the immediate revulsion or disgust is independent of any belief about the wrongness of the acts in question. Wollheim is right that the utilitarian would have to include such immediate revulsion and disgust in his calculation. But this places the utilitarian even further away from Mill. For it seems quite obvious that Mill would not regard the revulsion or disgust as a relevant reason for interfering with self-regarding conduct. In the essay he attacks those who tried to regulate the conduct of others simply on the basis of their feelings, their mere likes and dislikes, and he argues against the imposition on others not only of one's opinions or beliefs, but also of one's inclinations. Wollheim's exclusion of conduct which arouses immediate revulsion or disgust has the following odd consequence. A person who is immediately disgusted with another's conduct, and who can give no reason at all for his disgust, can none the less rightly claim that his disgust is to be taken into account by the utilitarian. But, on the other hand, Wollheim would allow the utilitarian to ignore the same person's disgust if it is based on a deeply held, and even clearly articulated, non-utilitarian moral belief about the wrongness of the act.

Dworkin on External Preferences

n his book Taking Rights Seriously, Ronald Dworkin has suggested that utilitarian theory can be reconstituted in such a way as to make Mill's liberal thesis a consequence of it [236]. He distinguishes between personal and external preferences, and argues that all external preferences are not to be counted in the utilitarian justification for a political decision. A personal preference is a preference for a person's own enjoyment of some goods or opportunities, whereas an external preference is his preference for the assignment of goods or opportunities to others [Dworkin, 234, 275. Brian Barry makes a similar distinction between privately-oriented and publicly-oriented judgements and wants: 12-13, 62-6, 71-2, 142-3, 295-9]. In other words, my personal preferences are about what I myself shall do or have, and my external preferences are about what other people should do or have. Dworkin argues that although individuals may in their personal lives act upon at least some of their external preferences, governments and legislators must base their decisions entirely on personal preferences. For example, the fact that the majority of personal preferences favour a sports stadium rather than an opera house counts as an argument for the stadium. But, on the other hand, the fact that the majority regard homosexuality as immoral does not count as an argument for legislating against homosexuality because the preferences here are external ones [Dworkin, 358]. Similarly, although the fact that cruelty to children harms them is a relevant consideration, the different fact that the majority have an external preference which regards cruelty to children as wrong does not count. All external preferences, whether malevolent or altruistic, are to be excluded from the reconstituted utilitarian iustification for political decisions.

Dworkin's argument raises two issues. The first is whether the consistency and internal coherence of utilitarianism dictates the exclusion of all external preferences. The second issue is whether, independently of its connection with utilitarianism, the exclusion of external preferences underlies Mill's defence of liberty. Dworkin takes sides on both these issues when he claims that Mill's arguments “are not counter-utilitarian but, on the contrary, arguments in service of the only defensible form of utilitarianism” (276).

But Dworkin does not succeed in showing that the exclusion of external preferences is demanded by a consistent [30/31] application of utilitarianism itself rather than by the recognition of values independent of it. He points out that counting external preferences leads to the “corruption” of utilitarianism [235, 275]. Suppose that some people hold racist political theories that are contrary to the utilitarian's belief that each person is to count for one and no one for more than one. They believe that scarce medicine should be given to a white patient rather than to a black patient who needs it more. So the black man suffers because his assignment of goods and opportunities does not depend solely on the competition between the personal preferences of different people, but also on the fact that some whites think that he counts for less than a white man. Dworkin is certainly right that including external preferences will sometimes be self-defeating from the standpoint of personal preferences. But this does not show that utilitarianism is “corrupted” unless it is already assumed that utilitarianism only counts personal preferences.

Dworkin also claims that counting external preferences is a form of double counting (p.235). Suppose that many non-swimmers have external preferences for the pool rather than for the theatre because they approve of swimming and regard the theatre as immoral. If the non-swimmers' external preferences are counted, this will reinforce the personal preferences of swimmers, and the result is a form of double counting: “each swimmer will have the benefit not only of his own preference, but also the preference of someone else who takes pleasure in his success.” (235) But there are two preferences here, and no single preference is counted twice [Raz, p.131; Hart, 91-3; both papers make many other acute criticisms of Dworkin's arguments].

Dworkin argues that it is unfair to count external preferences because this will make the success of a person's personal preferences depend on the esteem and approval of others. Political decisions based on external preferences violate the fundamental right that people have to equal concern and respect. People should not suffer or be deprived of their liberty just because others think them less worthy of respect and concern [see Hart's comment on this, 93-7]. But suppose that Dworkin is right here. This shows that discounting external preferences is demanded not by the internal requirements of utilitarianism as such, but rather by the requirement of fairness and the recognition of the fundamental right to equality of concern and respect. It [31/32] has not been shown that utilitarianism is based on equality of concern and respect.

9

But Dworkin claims that utilitarianism owes its popularity to the assumption that it embodies this right to equal concern and respect. This is a different point which may or may not be true. If it is true, then the success of Dworkin's arguments will prove fatal to what he calls “unrestricted utilitarianism” which counts external preferences. However it is at least arguable that one source of the popularity of utilitarianism lies in its neutrality between the different sources of people's happiness. Some people may find deeper and more abiding sources of happiness through their involvement with other people and through the promotion of various causes [cf. Williams, 112]. To exclude all external preferences in the utilitarian calculation is to cut off too much of what contributes to human happiness. In any case, is it always fair to exclude external preferences? Consider two variations on one of Dworkin's examples. First, suppose that many non-swimmers enjoy sitting around a swimming pool rather than being at the theatre. They are still expressing their personal preferences: they do not have to prefer a swimming pool to the theatre because they wish to swim. They enjoy the pool just as others enjoy the theatre even though they are not actors. But suppose now that many non-swimmers have personal preferences for the theatre, but they also have altruistic external preferences towards their children's enjoyment of swimming, and their external preferences for the pool is very much stronger than their personal preferences for the theatre. Dworkin would allow the swimming pool to be built on the basis of the personal preferences in the first example, but not on the basis of the external preferences in the second example. This seems unfair to the altruistic parents. They might be unable or unwilling to develop the personal preferences that would tip Dworkin's calculation in their favour (236). They do not enjoy swimming, nor do they enjoy just sitting around a pool.

So in this case the exclusion of external preferences may be just as unfair as its inclusion in other contexts. This suggests that it is not the inclusion of external preferences as such that is unfair, but rather the content of the external preferences included. There is no reason why Mill's defence [32/33] of liberty should commit him to the exclusion of all external preferences, nor is there any evidence to suggest that he would accept Dworkin's position.

Utilitarian Defence of Absolute Prohibition

he difficulty of reconciling utilitarianism with Mill's absolute prohibition on interference with self-regarding conduct is that it seems obvious that there are cases where interference will maximize happiness. However an attempt has been made by Rolf E. Sartorius in his book Individual Conduct and Social Norms to show how a sophisticated utilitarian can support some absolute legal prohibitions (Sartorius, Ch. 8, Sect. 3; see also Lyons).

Sartorius's argument depends on there being a class of actions which satisfies the following conditions: (1) most acts belonging to that class are, on utilitarian grounds, wrong; (2) some acts belonging to that class are, on utilitarian grounds, right; and (3) most attempts to pick out the right acts from the wrong ones in that class fail because of the absence of any reliable criterion. A utilitarian will then have a case for absolutely prohibiting every act belonging to the class. He is aware that such an absolute prohibition will sometimes produce worse consequences, in utilitarian terms, than occasional successful interference. But since we do not know when such cases will arise, and the attempt to isolate them will produce undesirable consequences, the utilitarian aim of maximizing net satisfactions is best promoted by an absolute prohibition. Am absolute prohibition of a certain class of acts means that if an act belongs to that class, then one is barred from making direct appeals to utility in deciding whether to perform it. Such direct appeals to utility will simply defeat the point of the absolute prohibition, which is to prevent mistakes being made in attempts to pick out the utilitarianly justified exceptions.

Sartorius thinks that Mill's case for individual liberty is based on an appeal to the type of argument presented above. Mill believed that absolute prohibition on legal intervention in self-regarding conduct satisfied the three conditions. However, Sartorius himself is of the opinion that, in the case of paternalistic intervention in self-regarding conduct, there are a few exceptions which can be reliably identified. [33/34] He gives as examples statutes making compulsory the wearing of protective helmets by motor-cyclists, and statutes prohibiting swimming after dark at unguarded beaches (157). Of course utilitarians may disagree over purely factual details. In this case they may disagree about whether legal intervention in all types of self-regarding conduct satisfies the three conditions. They may also disagree about whether an absolute rule or a qualified one will best promote the utilitarian aim. However, in arriving at a decision, the facts to be taken into account by the utilitarian will include precisely what Mill was so eager to exclude, namely, the distress of those who are offended simply by the thought that others are privately engaged in acts which they regard as wrong, or which they merely dislike (160-61). Sartorius does not think that giving due weight to such forms of distress will significantly affect the case for individual liberty. Here he may well be underestimating the strength and deep-seatedness of certain feelings and prejudices. But in any case whether or not he his right must surely depend on varying situations, and there is no reason to believe that “in all nations with whom we need here concern ourselves”, and at all times, the purely utilitarian case for liberty will be sufficiently powerful to protect all self-regarding conduct from intervention.

Mill himself was eager to provide a more secure basis for individual liberty. He did not wish its fate to depend on the strength and pervasiveness of the community's feelings towards self-regarding acts. When he argued that “with the personal tastes and self-regarding concerns of individuals the public has no business to interfere” (On Liberty, 142), the barrier he set up against invasions of freedom is much stronger than that which he would be entitled to if he had taken into account all the considerations that even a sophisticated utilitarian has to acknowledge. A utilitarian cannot disregard such considerations as the distress caused to the religious bigot and to others by self-regarding conduct, and the number of people who are so affected. All these will make a difference, and sometimes perhaps a decisive difference, to his calculation.

It is not Mill but his contemporary and vehement critic, James Fitzjames Stephen, who would agree with Sartorius in regarding as relevant the distress of outraged moral and [34/35] religious sensibilities. But, unlike Sartorius, Stephen's utilitarian calculation led him to reject Mill's liberty principle. It is from the standpoint of a faithful and frightfully consistent utilitarian that Stephen wrote his sustained attack on Mill, Liberty, Equality, Fraternity. Two remarks of his brother, Leslie Stephen, make this dear. In his biography of Fitzjames, Leslie Stephen wrote:

He holds that the doctrine of Mill's later books are really inconsistent with the doctrines of “Logic” and “Political Economy”. He is therefore virtually appealing from the new Utilitarians to the old. “I am falling foul”, he says in a letter, “of John Mill in his modern and more humane mood -- or rather, I should say, in his sentimental mood -- which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought u [308]

Elsewhere, Leslie Stephen again commented on Liberty, Equality, Fraternity: “The most remarkable point is that the book is substantially a criticism of Mill's from the older utilitarian point of view. It shows, therefore, how Mill diverged from Bentham (Utilitarians, 244 fn.1).” It is worth spending some time on Fitzjames Stephen's view in order to illustrate the point that on purely utilitarian grounds the case for freedom in the self-regarding area may be much weaker than Sartorius supposes. Disagreements between utilitarians over allegedly factual matters will help to remind us how precarious a utilitarian defence of freedom can turn out to be, and how easy it is, in a world of uncertainty about the facts, to use the utilitarian calculation to arrive at almost any conclusion towards which one is already inclined.

As a follower of Bentham, Stephen attached value to the pleasures of malevolence. Bentham defined the pleasures of malevolence as “the pleasures resulting from the view of any pain supposed to be suffered by the beings who become the objects of malevolence . . . “ [Bentham, Ch. v, Sect. xi] Even these pleasures are in themselves good because every pleasure is as such good, and as good as the same amount of any other pleasure. This being the case, there is no reason why legal and extra-legal sanctions should not in principle be applied to Mill's category of self-regarding conduct. In some communities it may well be that substantial pleasures of malevolence are aroused by the prospect of homosexuals being punished for their conduct. [35/36] These pleasures may in themselves still not be sufficient to outweigh the pain inflicted by the punishment of homosexuals, but they are always relevant, and are to be weighed on the same scale as the suffering caused by punishment. In some cases their addition to the scales may be enough to tip the utilitarian balance in favour of the legal prohibition of homosexuality where such prohibition is not backed by too severe penalties.

Stephen seemed to have some such argument in mind when he maintained, as against Mill, that “there are acts of wickedness so gross and outrageous that, self-protection apart, they may be prevented as far as possible at any cost to the offender and punished, if they occur, with exemplary severity” (Stephen, Liberty, 162). Various arguments supporting this claim appear briefly. There is, for example, the Burkean argument that “the fixed principles and institutions of society express not merely the present opinions of the ruling part of the community, but the accumulated results of centuries of experience” (Liberty, 157). But his emphasis is on the desirability of hating criminals, and punishment is a way of gratifying this “healthy natural sentiment” and of expressing society's moral condemnation of criminals [Hart draws attention to this argument, 60-9]. Stephen's separation of these functions of punishment from the utilitarian function of preventing crime may give the impression that they have no utilitarian justification. But in fact Stephen himself referred to Bentham's view of the pleasures of malevolence in justifying the belief in the healthiness of gratifying the feelings of hatred and the desire for vengeance (History, 82). It is possible to reconstruct the retributive and denunciatory elements in Stephen's theory of punishment in purely Benthamite utilitarian terms. In a society where there is “an overwhelming moral majority” who regard a particular type of self-regarding conduct as grossly immoral, a considerable amount of pleasures of malevolence will be derived from punishing those who engage in such acts. Stephen's insistence that it was the grosser forms of vice that he had in mind, and that there must be an overwhelming moral majority, may be taken to mean that for him unless these conditions are satisfied the utilitarian calculation would not favour the infliction of punishment.

The considerations invoked by Stephen against Mill help to [36/37] underline once again the fact that the strength of the utilitarian case for freedom will vary greatly with the different circumstances prevailing in different societies at different times. In so far as Mill intended his liberty principle to apply to all societies which have reached a certain stage of development, irrespective of all their other differences, it cannot be adequately defended solely on a utilitarian basis. Mill was able to commit himself so firmly and unreservedly to his principle only because he regarded as irrelevant some of the utilitarian considerations that both Stephen and Sartorius acknowledged, although with dramatically different results.

Two Levels of Moral Thinking

nother sophisticated version of utilitarianism, similar to Sartorius's, is to be found in R. M. Hare's idea of the two levels of moral thinking [Hare; see also J. L. Mackie's comments on this theory]. Hare himself does not discuss Mill's liberty principle, but a utilitarian, who is deeply committed to the principle, may well fall back on Hare's theory to explain and justify this commitment.

Level-1 in Hare's theory is the level of everyday practical moral thinking, whereas level-2 is the level of leisured moral thought when we have completely adequate knowledge of the facts. The utilitarian will of course adopt the utilitarian principle at level-2. But in everyday life a person, confronted with a moral problem, will often get the wrong answer if he applies the utilitarian principle directly because he lacks the time, or adequate information, or sufficient self-discipline. So at this level-1 it would be better to adopt other principles. The level-1 principles chosen will be those “whose general acceptance leads to actions in accord with the best level-2 principles in most situations that are actually encountered.” [Hare, 123] The level-1 principles will evolve with changing circumstances, and we use our level-2 principles to select the appropriate level-1 principles.

Now, it is arguable that Mill's liberty principle was put forward as a level-1 principle, and for that reason, even though it is based on utilitarianism at level-2, it need not always give the same answer as the direct application of the utilitarian principle. So far the argument is basically the same as that of Sartorius. But Hare is able to explain why violations [37/38] of level-1 principles, even when know to be dearly justified on utilitarian grounds, will still be met with great repugnance by the utilitarian. On rare occasions we may have all the relevant information, and the normal, stressful conditions of everyday moral thinking may be absent. A utilitarian may then discover that his level-2 utilitarian principle dictates a course of action that violates a level-1 principle he has come to accept. Thus it may be clear, on a particular occasion, that breaking Mill's liberty principle will maximize net satisfactions. On this view a utilitarian should then act against the level-1 principle. But even so he will view the violation of the principle with great repugnance. This is because the level-1 principle has been inculcated in him as part of his self-education, and breaking it goes so much against the grain for him. In accepting the principle he has also acquired a set of motives and dispositions.

In this way one might be able to explain why Mill wished to exclude from his calculation the distress suffered by the religious bigot from the self-regarding conduct of others which violates his religious belief. At level-2 Mill, if he is a utilitarian, must take into account the distress. But, so the ar-unent goes, he has in his self-education implanted in himself at level-1 a firm belief in the liberty principle which prohibits absolutely interference with self-regarding conduct. He is also trying to inculcate this principle in his fellow citizens. It is therefore understandable that he should be so attached to the principle, and should view its violation by others with great repugnance.

But there is one fatal flaw in this reconstruction of Mill's thinking. Mill was very much alive to the dangers of our beliefs hardening into prejudices and dogmas and, as we shall see in Chapter 8, he thought that freedom of discussion would help us avoid these dangers. He would therefore not wish to create a situation in which the level-1 principles are held in a rigid and inflexible manner. If he were a utilitarian, the way to ensure this would be to be constantly aware of the utilitarian underpinnings of all level-1 principles. So he could not allow the liberty principle to be too deeply ingrained in himself and in others. He could not develop in himself and in others too strong a disposition to disregard those utilitarian [38/39] considerations which are inconsistent with the recognition of the liberty principle. If the liberty principle is simply a level-1 principle, which has to be revised in the light of changing circumstances by an appeal to utilitarianism at level-2, then it is difficult to see how Mill could have argued so forcefully and unqualifiedly for the exclusion of some utilitarianly relevant considerations. So once again Mill's attachment to the liberty principle seems deeper and stronger than it would be if it were a level-1 principle.

The arguments of Sartorius and Hare, while consistent with a sophisticated utilitarianism, differ from those more commonly used by utilitarians. A more usual approach adopted by utilitarians is to treat subordinate moral principles as mere “rules of thumb” whose application will generally, though not invariably, serve the utilitarian end of maximizing happiness or net satisfactions. Such “rules of thumb” are often necessary if people are to have reasonably clear guidance as to how they are to act in particular situations. As we have already noted earlier, it is, for example, much easier to know what is required if one is asked to tell the truth than if one is asked to maximize happiness. Now, it has been suggested that the various liberal principles to be extracted from Mill's essay are not, in spite of what Mill says, absolute, but rather “rules of thumb” which may be breached when breaking them win better serve the utilitarian end [cf. Honderich]. For example, there is to be a presumption against state or social intervention to prevent individuals from harming themselves, and there is also a very strong presumption against interfering with a person's conduct on the ground that it violates the shared morality of society. However these presumptions are rebuttable on utilitarian grounds.

This interpretation of Mill is based on the assumption that he is clearly a utilitarian, and that therefore any account of his case for liberty must be consistent with utilitarianism. But this is precisely the assumption that I have challenged in this chapter. By excluding some pleasures and pains, and some satisfactions, as irrelevant, Mill altered the content of the notion of utility or happiness. To show that he is still a utilitarian, it is therefore necessary not merely to fit his arguments for liberty into the formal structure of a particular [39/40] model of moral reasoning adopted by utilitarians, but also to establish that the substantive considerations he appealed to, or ruled out, are consistent with some version of utilitariansim. This has so far not been done.

Reasons for Intervention

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” (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? [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” (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, 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.

Last modified 1 May 2015