Mill’s Limits on Liberty

This is the last blog-installment taken, slightly revised, from chapter Eight, “The Road to Hyperdemocracy,” in The Trouble With Democracy (Stoddart, 2001, and BPS Books, 208).

The Nuisance Factor

What is regrettable about our modern notion of freedom is that it so largely and exclusively rests on Mill’s simple principle of liberty, while conveniently ignoring his own clearly-stated limitations. In these, he confronted the difference between opinion and action head on, as well as the matter of nuisance. Mill declared that “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act” (3), and more strongly: that “the liberty of the individual must thus far be limited; he must not make himself a nuisance to other people.” (3).

Mill’s many limitations on individual freedom are conveniently forgotten because they are themselves a nuisance to the libertarian spirit. For by right and custom the definition of what is mischief and who is a nuisance is controlled largely by the offended party, not by the offender, and thus the idea of nuisance constitutes an external control of personal liberty. In admitting this, Mill throws the power to define the limits of freedom to those outside the “circle” of freedom and privacy he has struggled so hard to draw around each of us. For example, he says that to shout in public that private property is robbery is an act that must go unpunished, for it is but private opinion. But to preach this to an excited mob, is punishable. Now if we think of university radicals as an excitable mob, this rule alone would put thousands of socialist-minded university professors in at least a figurative jail. Such limitations give us a strong sense of the extreme abstractness and narrowly-defined privacy latent in Mill’s notion of freedom, and how correspondingly powerful his faith had to be that properly protected, even such a small circle of freedom for almost everyone would lead, via his Talking Cure, to the spontaneous goodness and perfection of human society. In the sense that modern egalitarian democracy has crowded out the guarded liberalism with which his sense of freedom was originally associated, however, it has almost inverted Mill’s limitation: we now include almost every form of action and personal behaviour as a protected freedom, but roundly and publicly scorn and officially punish the wrong opinions. Girls in Ontario may walk bare-breasted if they wish, but may not make a “sexist” remark. As one wit has pointed out, it is now legal for someone to masturbate on stage, but only if he or she is paid at least the minimum legal wage.

Truth to tell, the few concrete cases Mill cites are easy ones, and we would commonly agree they ought not to impinge on our freedom. He ridicules such things as religious discrimination against eating pork (by Muslims), or against practicing other than Roman Catholic worship (the Spaniards), the wealth one-upmanship prevalent in the democracies (America), the property prohibitions or pay-equity demands of the socialists (everywhere), the laws against drinking booze (in Canada and the USA), and so on.

Of greater interest, however, is Mill’s complaint against the idea that there is a “social right” to control any behaviour of others that we deem might result in an expense to the rest of us. Before the advent of the democratic welfare state he had a good point, but today when this is the most common form of governance the behaviour of everyone else – their medical, welfare, social service, and education costs, for example – indeed are paid for by all, and thus must concern all. It is a great irony that this notion of social right he defined as “far more dangerous” than any other interference with liberty, and yet we can fairly say that the modern democratic state has arisen largely to enable the practice of Mill’s theory of individual freedom. In other words we have privatized morality, just as he demanded, with the result that we now have a heavy-handed regulatory welfare state because there is no other public guide for collective moral behaviour.

In sexual matters, Mill was in some matters the ultimate libertarian, in others draconian. He sanctioned polygamy as a harmless institution, and supported divorce at the choice of either party (no requirement for mutual consent). He never entertained the criticisms that polygamy favours the wealthy and the strong who can garner all the best women, or that unilateral divorce is a violation of the marital contract that injures the observant spouse deeply, and thus a mockery of a true marriage contract that exposes helpless children to gratuitous adversity. Yet on the heels of this invitation to abandonment of spouses and children, he advocated forbidding marriage unless the parties can show proof of financial means to support a family, and “compulsory labour” for those who refuse to support their children. He called the mere act of having children in countries threatened with overpopulation “a serious offense” against all those who labour, because those children grow up to compete for limited jobs. He wanted to make “a certain minimum of general knowledge” for all children “virtually compulsory,” but did not want government education. So he would fine or extract labour (a form of corvée slavery) from fathers if any child, after taking a state exam for proficiency was shown not able to read. In place of Big Brother, we are to have Big John. And because “trade is a social act,” selling anything sexual – even an idea, presumably – and certainly selling or renting such things as pornography, he would severely censure. Trade in general he would highly regulate as well as the workplace itself to protect workers and the public. It now appears that Mill simply approves laws he likes and disapproves those he doesn’t, and that no “principle” is at work at all. But we must look deeper. His selection principle is almost identical to the primitive, or pre-lapsarian Christian morality imagined to have existed in the Garden of Eden before the Fall. All are free. All are equal. All are sinless. All have loving and spontaneous selves. All are capable of experiencing the divine within (for Mill, the equivalent is his quasi-divine liberty). All struggle against the “despotism” of authority in the form of Custom and moral opinion. What he gives us is yet another iteration of the old 14th. century worldview of the Adepts of the Free Spirit, though he has camouflaged his updated version with such Romantic terms as “originality,” “spontaneity,” “individuality,” “progress,” and “human nature.”

Coercive Freedom

Mill includes two very interesting cases to justify his arguments. He says we are justified in interfering in freedom in certain ways such as by suddenly tackling a man who is about to cross an unsafe bridge. He argues that although liberty consists in “doing what one desires,” the man obviously does not desire to fall into the river (5). But is his justification true? Let us disregard for the moment the ancient argument that we become more free not by expressing, but by denying certain desires to which we are enslaved. The psychological and moral manoeuvre Mill has invoked here is the same technique of Substitute Judgement that we saw has played such a role in all totalitarian political movements in the name of freedom and well-being of the people. For the endangered man’s own judgement, Mill says we legitimately may substitute our own, and then interfere with the man’s liberty for his own good. After utterly and confidently rejecting a totalitarian freedom of the people, he opts, so to speak, for a totalitarian freedom of the individual.

Again, we wonder why he feels it is alright to use force to stop a man from injuring himself physically by falling into a river, but not from injuring himself or his character psychologically or morally in many other ways by falling into addiction to cocaine, or alcohol, or gambling, or stealing, or pornography, or any other vice. In anticipation of this objection, he advocates a “registry” and lots of regulations for such things as dangerous drugs. He also advocates heavy taxation of all stimulants. Perhaps most interesting and vague of all, he appears to invite myriad state regulatory and police actions by proposing that society use “antecedent precautions” to ward off anticipated dangers to itself. This leaves very little room for liberty as he defines it.

All Commitments Are Forms of Slavery

Perhaps the most interesting case of all is his claim that a free man cannot sell himself as a slave because in doing so he would “abdicate his liberty,” thereby denying himself any future use of it, and so would no longer be free. The principle of freedom, he says, “cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom” (5). This requires comment from many angles. If, according to his first principle it is illegitimate for someone to interfere with our self-regarding freedom as we form our own plan of life, then it is simply not true that we cannot freely choose to be unfree. For example, millions of ordinary people choose to limit their freedom every day. They choose many strict and legally enforceable moral, financial, marital, and employment bonds that limit them in hundreds of ways. An extreme instance of choosing to be unfree is the criminal who commits a crime so that he may be sent back to jail, thus choosing to enslave himself. The reality is that at the moment of choosing to sell ourselves into slavery, we are free, and fully aware that for a certain period we will not be as physically free as we are now. As mentioned before, some ancient peoples, sometimes whole cities voluntarily agreed to enslave themselves for a period of time to purchase protection, avoid war, or make reparations. The argument that freedom cannot be surrendered is false. And to reply that even if it can be surrendered, this ought not to be allowed by law is to prefer one form of enslavement to another. Clearly, Mill maintains his position not out of logic, but from ideological necessity, because for him to admit that we can freely alienate our freedom would be to admit that human bondage can be freely assumed by contract, and even transferred. There must be another reason Mill fought so hard to bar the argument that we cannot surrender our freedom.

Absolute Freedom Means No Moral Commitments

A good explanation is that freedom and slavery both relate directly to morality and contract. Mill needed to sustain the Romantic argument for his principle of absolute personal freedom as the fundamentally inalienable moral condition for all moral action. For him and his ilk, authenticity means that all personal and social bonds may be freely assumed and freely revocable, or they cannot be bonds. In other words, the chain of argument for all freedom radicals is that morality requires freedom, and freedom requires revocability. The key issue here is that for freedom radicals human bonds are primarily a product of the will, whereas for the true conservative, they are primarily a product of personal, social, or moral obligations that transcend and are usually prior to the will. Hence for the radical, contracts must be honoured as viable only so long as all parties continue to support them in feeling and spirit. But if any party to other than a financial contract loses interest or becomes disaffected, Mill says the contract ought to be freely revocable (5).

We recall that Rousseau, another, albeit very different sort of freedom radical, had said the same thing. Mill does not say contracts can be revoked only provided we have grounds of honour, or a breach of duty, but for what surely seems the most frivolous of reasons; namely, that “the feelings of both parties” may no longer be “in harmony”! (5). But to Mill and his kind, this is far from a frivolous motive, for to be an unwilling partner in a contract means to be a slave to the will of another party, and hence to have lost one’s personal freedom as a moral agent. Such a person is deemed to be no longer human, and falls immediately back into the Gnostic darkness of ignorance. That is why Mill – and all similar radicals today – attacks the institution of marriage so forcefully: a disaffected spouse becomes simultaneously a slave not only to the will of the other spouse, but also to the moral authority of society.

Spontaneous Democracy of The Moment

This relates directly to the language of democracy and revolution. Whether for Rousseau or Mill, a healthy democracy is one in which all laws are revocable by the free will of the people at any moment. The people must not be bound by laws other than of their own making that express their immediate will. They must not be bound even by the laws of a prior legislature of the people, or else they enslave themselves to past wills. This profoundly radical, anti-conservative view of the core meaning of moral freedom and slavery has lain at the heart of the conflict between liberals and conservatives from time immemorial.

Radical democrats see the precise moment of choice, whether for individuals or whole peoples as a mystical moment of true freedom which loses its purity as soon as it is encumbered. The moment of freedom is a character-altering, transforming instant that distinguishes a free person or people from slaves – or mere ape-like automatons. That is, freedom appears – and can disappear as suddenly – in the form of a personal revelation, and is experienced and sustained most intensely, in its mystical purity, so to speak, if all obligations and contracts remain revocable by either party. In this view, only continuous revocability makes freedom authentic. As if to please Mill, and just like those first Jacobins, we have ourselves wholly restructured the institution of marriage, that most intensely personal as well as wholly social “contract,” to satisfy this claim of freedom. Rather, we have eliminated marriage in its original sense, for today it is impossible in many Western democracies for an individual legally to bind him- or herself for life in marriage. Such modern democratic radicalism is a form of anti-sacrament aimed at emptying the spiritual content from human relations in order to advance the larger goal of atomizing society by privatizing and secularizing morality. The French Jacobins who passed the first no-fault divorce law in history, merely beat us to it and set the pattern. A high official of divorce during the French Revolution proclaimed that “the torches of Hymen are lit again for you on the altars of liberty; marriage is no longer a yoke, a heavy chain; it is no more than what it ought to be – the fulfilling of Nature’s grand design, the payment of a pleasant debt which every citizen owes to the patrie [the nation].”[i] Sadly pondering this, a French actress of the time accurately declared that now “a republican marriage is the sacrament of adultery,” and her characterization of this formerly Christian sacrament would have pleased any radical democrat.

The conservative argues the contrary. True wisdom, as Burke so wisely put it, follows both nature, and human nature, which is “wisdom without reflection, and above it.”[ii] And so, as he put it, if a society is to have meaning, it must be as an enduring partnership “between those who are living, those who are dead, and those who are to be born.”[iii] Society is formed by the living history of the whole people, a slowly-evolving organism sustained by the past, restraining the present, and speaking to the future. If we cannot truly bind ourselves, as individuals or nations, honouring past obligations and future commitments, which means a willingness to limit our freedom greatly under specified conditions, then true obligation and commitment are impossible. If true freedom and democracy are to mean the end of all binding promises, then they also mean the beginning of wholesale distrust and social chaos. We see now that Mill’s argument about slavery, like so many of the others he used, had a “logic” that was not properly logical. It was ideological; that is, wholly dependent on the self-serving nature of his underlying assumptions. As for most of us, his logic was a mask for his politics.

Some Conclusions

In conclusion, we have seen evidence in his own words that contrary to the way in which he is normally presented, Mill was far from the coldly logical utilitarian rationalist. Though ostensibly in search of an individualist solution to the problems of collectivism, Mill’s alternative surprises, even shocks us because it rests on a notion of the individual Self every bit as fanciful, Romantic, and above all absolutist as Rousseau’s notion of the corporate Self. By now it would appear that the whole edifice of Western democracy emerged in the 20th Century as a struggle between these two forms of political mysticism or, if we prefer, as a war between opposing political religions. Mill appears at first to have won this war, for the language of freedom as articulated by him, then developed, transformed, and applied selectively by subsequent generations, now wholly dominates our public discourse. But we will see that Rousseau has had a revenge of sorts.

In the modern democratic dialogue the essential historical tension between freedom and order has become increasingly disconnected from the knowing will of the whole people, or from any sense they might have of themselves as a moral community obedient to a higher good, or law, or ideal. The modern tension is instead increasingly between the satisfaction of unencumbered individual wants and rights on the one hand, and powerful bureaucratic forces steered by political, academic, and legal elites, on the other. The supposed role of the State is now to ensure that we can each satisfy ourselves as long as we don’t hurt others in the same pursuit. The traditional forms of social, religious, or moral authority that aim to direct or control our wishes are deemed illegitimate, even a residual aspect of physical or moral slavery. We may rightly suspect a subterfuge here, for nothing is more pleasing to the modern State than the gradual weakening of traditional forms of authority that the State may just as gradually replace.

Accordingly, the ancient dualistic metaphor of the Self as the site of an internal war between good and evil whose prize is the soul, is now thoroughly discredited, even scandalous in high society. The Sinful Man model has been deliberately trashed, not because proven wrong, but because it is unflattering to the ideal of the transparently good authentic Self, to the Sinless Man model we now prefer. The central terms of the modern struggle between freedom and order, then, are no longer the people and God, or personal virtue and vice, or even civic virtue and corruption, but rather, Self and State. The definition of the good life, of civic as well as personal virtue, has passed altogether from the public to the private realm. Morality itself has been privatized without the slightest public notice for the simple reason that it is no longer officially required. Accordingly, moral concepts of good and evil have become antiquated, replaced by sociological and psychiatric terms of therapy. The view of the pure and good Self struggling to be free from an oppressive and imperfect world has replaced the largely Christian view of an imperfect or impure Self (or soul) tormented by weakness and corruption within God’s good creation. In historical terms, this transposition of the two opposing historical Models of the Self has been rather sudden, and it clearly signals the re-emergence of the ancient Gnostic pride that has never entirely disappeared. Once having settled on the conceit that evil originates outside the Self, believers eagerly adopt the logical and moral imperative to reform all of society, if not the whole world. Of ourselves, no reform is necessary except the casting off of all limits to perfect self-expression. Modern, so-called “expressive individualism” is our flippant name for this venture. To foster maximum self-expression, the traditional state aiming at virtue has been dislodged by the welfare state as provider of goods and security as well as social therapist and educator, with enormous tutelary and fiscal power over the lives of supposedly free individuals in search of their own private good.

All of this has been the condition precedent necessary for the resolution of the ideological conflict into which virtually all the Western democracies, each at its own historical pace, have mutated. That resolution I have come to call “libertarian socialism,” a regime-type which is far from perfectly libertarian or perfectly socialist, but which contains enough of each of these once-contradictory systems to say it is a practical blend of the two. This unique political form has been arranged, and the contradiction avoided, by splitting the body politic into two halves: the private body of the citizen, and the public body of the state. A near absolute liberty is granted to each citizen with respect to whatever the sexual and bodily desires they may will for themselves within the law – abortion, homosexual practices, transgender rights, easy divorce, wall-to-wall pornography, gay marriage, legal prostitution, and so on – while at the same time a universal egalitarian state establishes a high general taxation, and punitive regulations and laws, governing the universal provision of whatever goods and services to all citizens equally that such a government deems the right of the state to control and provide.

Those interested may follow the further development of this unique political and moral mutation in The Great Divide: Why Liberals and Conservatives Will Never, Ever Agree (Encounter Books, 2015).

[i] The anti-sacramental theme is treated roundly in Thomas Fleming, “The Sacraments of Anti-Christ,” in Chronicles (December, 1996).

[ii] Edmund Burke, Reflections On The Revolution In France ( London: Penguin Classics, 1986), p.119

[iii] Burke, Reflections, p.195.

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