Natural rights doctrine remained influential throughout the eighteenth century. It found its most radiant moment in the opening passages of the American Declaration of Independence. It still powerfully influenced the abolitionist movement and the post-Civil War amendments to the United States Constitution. Yet theoretical advocates of natural rights were few and far between in the nineteenth century. Hume’s disavowal of Lockean natural rights and social contract theory was followed by Jeremy Bentham’s attack on natural rights as “nonsense on stilts.” In the mind of Bentham (1748-1832) and many others, utilitarianism needed to take up the mantle of liberalism that natural rights doctrine was incapable of bearing. In this and the next section, I discuss two thinkers – both of whom are thought of as champions of classical liberalism (or even libertarianism) – who endorse utilitarianism as their most fundamental principle and then struggle to remold utilitarianism so it yields a principled endorsement of individual liberty.
According to Mill, utilitarianism endorses “the Greatest Happiness Principle” according to which “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” (2000: 14). A bit more precisely, the Greatest Happiness Principle states that the right action is the action that will yield the greatest balance of happiness over unhappiness (or the smallest balance of unhappiness over happiness) of all the actions that are available to one. To determine which action is the right one to perform, one must survey the outcome in terms of happiness and unhappiness for each member of one’s society (or for all human beings or even for all sentient creatures) and identify the outcome that has the best balance of happiness over unhappiness. The action that has the best overall outcome is – indeed, must be – the right action. One acts wrongly when one acts in a way that does not yield the optimal outcome.
Within utilitarianism, ends rule the roost. Indeed, at the very foundation of utilitarian thought is the supposition that, in the final analysis, all actions are for the sake of ends and (it seems) rules or principles are to be followed insofar, and only insofar, as doing so best serves the sanctified ends (2000: 8). Of course, the ends of actual human beings are distinct and various. Most people are strongly oriented to the advancement of their own well-being and to the well-being of particular other individuals with whom they have ties of family, friendship, or common conviction. Different types of achievements or experiences contribute to or constitute the well-being of diverse persons and the well-being of the individuals cared about by those diverse persons. A common theme in Locke and Hume and the theorists we will consider in the next three chapters – including the bonus online chapter – is that the way to deal with this pervasive and acceptable plurality of ends is to require individuals to abide by certain constraining rules – rules that insure peace and encourage productive endeavors and trade to mutual advantage among these “equal and independent” agents.
With its focus on a single, comprehensive summum bonum, utilitarianism seems to be committed to a fundamentally different way of dealing with the plurality of distinct individual ends. This alternative way is the redirection of individuals from activity in the service of their distinct personal ends to conduct for the sake of the common end of maximum net happiness. The pursuit of distinct private ends is not so much to be reconciled as transcended.[T]he happiness which forms the utilitarian standard of what is right in conduct, is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator. (2000: 26)
Education and opinion need (in Hume’s phrase) to “new-mould the human mind” so, that, for each individual, there will be “an indissoluable association between his own happiness and the good of the whole” (2000: 26). Each individual’s character should be so modified that, not only may he be unable to conceive the possibility of happiness to himself, consistently with conduct opposed to the general good, but also that a direct impulse to promote the general good may be in every individual one of the habitual motives of action, and the sentiments connected therewith may fill a large and prominent place in every human being’s sentient existence. (2000: 26)
Of course, some people may not be able to derive personal happiness from the promotion of the general happiness. When they are faced with a choice between the two, utilitarianism calls for the sacrifice of the former. In those cases, “All honour to those who can abnegate for themselves the personal enjoyment of life, when by such renunciation they contribute worthily to increase the amount of happiness in the world” (2000: 25). There seems to be no room within utilitarianism for individual rights or principles of justice on the basis of which the distinct lives and pursuits of individuals are shielded from the demands of the summum bonum. Rather, conflict among individuals will be avoided and desirable social order will be attained by inducing each individual to march in step to the drum beat of general utility.
Yet, since Mill wants to support individualism and freedom, he denies that utilitarianism calls for the conscription of individuals into the service of the general happiness. In the final chapter of Utilitarianism, he rejects such conscription in the name of each individual’s moral right to security. Security is a condition that “no human being can possibly do without; on it we depend for all our immunity from evil.” It is the “most indispensable of all necessities, after physical nutriment” (2000: 68). Yet why should society protect everyone’s security rather than sometimes sacrificing the security of some for the greater good of others – perhaps for the good of their security? Mill tells us that, “To have a right … is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask why it ought, I can give him no other reason than general utility” (2000: 68). Yet doesn’t that make every individual’s right to security deeply insecure – passing into and out of existence as circumstances change so that the usefulness for society of protecting that person’s security changes? If this is true, then his appeal to moral rights will not provide the bright line that Mill seeks for limiting the authority of the state.
Mill needs to show that there is a steady and weighty utility that attaches to the protection of the security of each individual – a utility that remains in place and outweighs local gains in utility that might arise in special circumstances from infringing on an individual’s security. Mill seeks to do this in a way that parallels Hume’s argument for why it is always advantageous for an individual to comply with the laws of nature. Hume argued that “’tis certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual” and that the whole scheme will collapse if any injustice is done; for “… without justice, society must immediately dissolve, and every one must fall into that savage and solitary condition, which is infinitely worse than the worst situation that can possibly be suppos’d in society” (2000: 319). Mill says that security can be safeguarded only if “the machinery for providing it is kept unintermittedly in active play” (2000: 68, emphasis added). Any interruption in the protection of security will undercut security at large and, presumably, the resulting loss of utility will be greater than any local gain in utility that might be eked out in special circumstances by infringing on a given individual’s utility. Security, Mill says, is “the very groundwork of our existence” (2000: 68).
Mill’s slightly earlier essay On Liberty (Mill 1978), famously offers a utilitarian case for unintermitted respect for personal liberty. Mill holds that government is needed “to protect the weaker members of the community from innumerable vultures” (1978: 2). This protection can only be afforded by “an animal of prey stronger than the rest.”
But as the king of the vultures would be no less bent on preying on the flock than any of the minor harpies, it as indispensable to be in a perpetual attitude of defense against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty. (1978: 2)
According to Mill, advocates of democracy came to doubt the need for such limits on the authority of rulers because they held that under democracy the people themselves rule; and the people would never prey upon themselves. However, Mill rejects this line of thought. The operation of democracy has revealed that such phrases as “self-government” and “the power of the people over themselves” do not express the true state of the case. The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. (1978: 3-4)
The king of the vultures remains a vulture whose authority must be radically confined. Religious belief has been immunized from political interference by the establishment of “freedom of conscience as an indefeasible right” (1978: 8).
What is needed, though, is a more general principle that broadly confines state authority. To this end, Mill offers a “very simple” libertarian principle.
That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (1978: 9)
Mill sums up his presentation of the liberty principle in language one might expect from a natural rights advocate such as Locke. “Over himself, over his own body and mind, the individual is sovereign” (1978: 9).
Nevertheless, Mill quickly adds “It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right as a thing independent of utility” (1978: 10). Each individual’s claim to freedom rests on the usefulness of that freedom to mankind at large rather than on some bedrock individual right. “Mankind are the greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest” (1978: 12). Moreover, despite the generality with which the liberty principle is stated, Mill takes the scope of the principle to be more limited than one might at first think. The principle applies only to thought, expression, and, by extension, to what we might call “lifestyle” choices. According to Mill, what considerations of general utility do underwrite is a strong presumption on behalf of freedom of economic action. However, this presumption does not provide an absolute barrier against interference with economic actions. For, each economic action is “a social act” which is therefore subject to social control for the sake of promoting general utility (1978:94).
Mill offers a variety of arguments on behalf of his principle of personal liberty. We are told that “neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years that he shall not do with his life for his own benefit what he chooses to do with it” (1978: 74). And two considerations support this claim. First, the range of choices under consideration is taken to be limited to choices that do not affect any other party. Second, human creatures of ripe years are more interested in their own well-being and more knowledgeable about what will promote it than society at large. Hence, when society interferes with “purely personal” conduct, “the odds are that it interferes wrongly and in the wrong place” (1978: 81). Unfortunately, the limitation of the liberty principle to purely personal conduct leaves a great deal of personal conduct subject to coercive suppression. For there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publically, are a violation of good manners and coming thus within the category of offenses against others, may rightly be prohibited. (1978:97)
It seems that the sphere of freedom protected by the liberty principle will be vanishingly small unless some independent account of moral rights or justice allows us to distinguish between negative effects on others that are violations of rights or justice and thus qualify for suppression, and negative effects on others that are not violations of rights or justice and thus do not qualify for suppression.
Mill defends freedom of thought, expression, and individual experiments in living on the grounds that these freedoms are necessary for the pursuit and attainment of truth and for autonomous self-development.
He who lets the world, or his own portion of it, choose his plan of life for him has no need of any other faculty than the ape-like one of imitation. … But what will be his comparative worth as a human being? It really is of importance, not only what men do, but also what manner of men they are that do it. Among the works of man which human life is rightly employed in perfecting and beautifying, the first in importance surely is man himself. (1978: 56)
Mill’s argument here does not seem to be that the pursuit and attainment of truth and autonomous self-development in turn lead to happiness. Rather, Mill’s claim seems to be that these activities themselves constitute the highest form of utility – in contrast to the low utility of lives of ape-like imitation. The danger here is that Mill’s argument for liberty for all (civilized) people depends upon a highly specific and contentious view about what type of human life is truly valuable – and what other types should be viewed with contempt.
A different strand of argument in Mill – which reappears in somewhat different guise in Hayek – focuses on the role of free competition in thought and expression as a social device for the discovery of truth and the refinement of knowledge by highly fallible beings (1978: 17).[T]he peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation – those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error. (1978: 16)
When proceeding entirely on our own in our formation of beliefs we are very likely to go wrong. Our beliefs are certain to be ill- adjusted to reality. Our individual doxastic weakness is remedied by our exposure to truths that other people have managed to attain and also, in a more complex way, by our exposure to falsehoods – the products of the doxastic weaknesses of others – that push us to adjust our own beliefs. There are also cases in which, “the conflicting doctrines, instead of being one true and the other false, share the truth between them, and the nonconforming opinion is needed to supply the remainder of the truth of which the received doctrine embodies only apart” (1978: 44).
We gain from intellectual interaction with others through the exchange of the fruits of our intellectual specialization. Perhaps we gain most when we confront others’ aggressive challenges to our respective beliefs. For, even truth-seekers rarely present to themselves the most challenging objections to their own current views.
Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right. (1978: 18)
Being cognizant of all that can, at least obviously, be said against him … knowing that he has sought for objections and difficulties instead of avoiding them, and shut out no light which can be thrown upon the subject from any quarter – he has a right to think his judgment better than that of any person, or multitude, who have not gone through a similar process. … The beliefs which we have most warrant for have no safeguard to rest on but a standing invitation to the whole world to prove them unfounded. (1978: 20)
If we describe the goal of participants in this truth-promoting process very abstractly as the advancement of truth, we can say that the coordination among the participants reflects their shared end of advancing truth.- However, such a description obscures the competitive nature of the participants’ interaction.
Each participant seeks to be the author of the most defensible doctrine within a particular field – where the most defensible doctrine must take account of or rebut other relatively defensible doctrines. To achieve this status, each doctrine must run the gauntlet of the competing views. Out of this discovery process emerges a prized outcome that was not the intended outcome of any one of the parties entering into the process. Truth emerges through an invisible-hand process.