The commonly accepted view about John Stuart Mill is that he tried to draw a line between the area of morality and the area of law, and hence that what On Liberty condemned was legislation on moral matters. Most people—whether critics or supporters of Mill—think that when the Wolfenden Committee declared that
‘there must remain a realm of private morality and immorality, which is, in brief and crude terms, not the law’s business’, they were reiterating Mill’s doctrine; though they did not explicitly refer to him. Similarly, when Lord Devlin attacks the committee and denies that there is a realm of private morality and immorality, it is thought that he it tilting at the shade of Mill as well; certainly Devlin thinks so, and in his recent book he fastens the offending view on Mill in no uncertain way. The received view of Mill’s case, therefore, is that he held that a man’s behaviour might be wicked or wrong or immoral, but that his was no concern of the law unless the wrong or wicked behaviour also harmed other people.
But Mill’s principle is of a wider scope than this. On Liberty is not an isolated libertarian plea in a utilitarian ethics with which it is largely inconsistent; it is, rather, a working out of the consequences of a social and philosophical doctrine, the other elements of which may be traced in the System of Logic, in Mill’s essay on Bentham, and in Utilitarianism. And the distinction which runs through all these works is not the one which the usual view of Mill finds there; it is not a distinction between law and morality, but between the sort of conduct subject to law-or-morality on the one hand and that which is subject to neither of these but to prudential or aesthetic appraisal on the other. The importance of
this distinction for any sensible discussion of the extent to which society ought to control the pr ivate lives of its members is enormous.
To see that Mill was not doing what he is always said to have been doing, we need only turn to two letters which he wrote to Pasquale Villari in 1858. In these he explained that the subject matter of On Liberty was not legal or political freedom, but social, intellectual, psychological, and religious freedom; these forms of freedom were badly lacking in England, where the law was not oppressive, but where public opinion was. And the whole essay reflects precisely this concern. Government and law are rarely mentioned; the tyranny feared is always the tyranny of opinion; in so far as Mill expects the law to be oppressive it is only because he expects public opinion to mould the law in its own image. There is, too, every good reason why Mill should not have discussed at any length the relations of law and morality. To a utilitarian, their relations are in theory simple, whatever practical difficulties they may pose. To say that an action is immoral is, on Mill’s account of it, to say that the action will harm persons other than the agent. People live in society in order to protect themselves against actions aimed at harming them, so, if an action is wrong or immoral, then society must stop it. The only question is, how? At the least, the pressure of public opinion should be brought to bear, so that the weight of social disapproval can act as a deterrent and as a punishment to offenders.
If the case requires it, then opinion must be supplemented by the state organized system of punishment involved in the criminal law.
The question of when to supplement public opinion by the apparatus of the law is itself to be settled on utilitarian grounds. We have to ask ourselves whether the inconveniences of legislation, police action, judicial procedure, and the rest will be outweighed by the utility of having the action in question more effectively controlled than it would be by public opinion unaided. Thus, for example, it is wrong to break a promise; but we have to calculate in what cases of breach of promise it is right to employ the law. If the good achieved by legal enforcement outweighs the inevitable drawbacks of the law, then the matter is one for the law; if not, then it must remain within the realm of morals alone.
Law and morality thus cover, for utilitarians, the same area of human conduct; they have a similar subject matter and a similar logic; for they both involve general rules which aim at promoting
such interpersonal goods as peace, justice, and honesty. And both law and morality are backed by what is supposed to be an impartial sanction. It is only in the nature of the sanction that they differ—for moral rules have behind them the sanction of public opinion, while laws have behind them the whole organized coercive apparatus of the state. Of course, the difference of sanction is enor mously important; and no one would want to deny it—but it is not a logically basic distinction in ethics.
The doctrine which emerges from a comparison of what Mill says in several places is crudely this: there is, he says in the System of Logic, or at least there might be created, an art of life, a body of directions for our conduct in three branches. These branches are morality, pr udence, and aesthetics; and their subject matter, respectively the right, the expedient, and the beautiful or noble.
In each of these branches of the art of life, the aim is to achieve happiness and avoid pain, but in different ways. Morality is concerned with social relations, with dealings with other people. It is concerned largely with rules directing us to abstain from conduct calculated to harm others; thus, as we said, it is aimed at achieving interpersonal goods such as peace, justice, and honesty. For this reason, Mill says in the essay on Bentham that morality is essentially concerned with the business side of life, with preserving minimal forbearances. Prudence, by contrast, is concerned with the good of the agent, with his own happiness and misery, not that of other people. The rules of prudence indicate what to do and what to avoid doing if we are to make ourselves happy. Prudence thus aims at private goods, and whatever rules we formulate to promote the good of the agent, these rules are part of prudence.
One important conclusion which Mill draws from this is that there can be no such things as duties to oneself. If the expression means anything, he says, it must mean either prudence or else self-development. Aesthetics seems to involve another sort of appraisal altogether. Whereas morality and prudence both involve calculating the consequences of our behaviour, the first to others, the second to ourselves, aesthetics seems to involve something more akin to perception than to calculation. It is not concerned with the efficacy of means to some good, whether this good be pr ivate or interpersonal; rather it is concerned with the quality of the good sought. There are many problems about this sort of appraisal, but the only thing that needs saying now is that it must be very plain that morality is distinct from both prudence and aesthetics. The logical
form of morality is that of law, not that of prudence or aesthetics. Its subject matter is different from that of prudence, and while it can be that of aesthetics, the two forms of appraisal are very different.
Aesthetics is critical and revisionary; morality is concerned with clearing a space within which aesthetic and personal ideals can flourish, within which people can pursue their own goods. An example will bring out the way the different considerations are to be handled. Suppose a man repays a debt. This has an other-regarding side to it; we ask the moral question ‘Did he do what was right?’ and we are told yes, he paid back money, fulfilling an obligation and thus contributing to the maintenance of honesty, trust, and so on. It also has a self-regarding aspect, a prudential aspect, for we can ask ‘What did he get out of it?’ and we may learn that he succeeded in creating a good climate for a larger loan, or else that he had ruined himself in the repayment. And it also has an aesthetic aspect; whether the man is to be regarded as rash, or unfortunate, or brave, we prefer to see him go to his ruin with his head up rather than bemoaning his fate.
This puts a new complexion on Mill’s famous principle, stated in On Liberty, that the only part of a man’s behaviour for which he should be subject to social coercion is that which concerns others without their free and undeceived consent. For what this principle amounts to is a limitation of morality to this sort of behaviour; it is only to this sort of conduct that appraisal in terms of wrong, immoral, or wicked is appropriate. And, crucially, it is only in the area of this sort of conduct that deterrence and retribution as they operate in morals—that is, social approval and disapproval, the weapons of public opinion—can ever be justified. Where only the agent is involved—where, that is, the other-regarding question cannot be asked, or where others are involved only with their free and undeceived consent—the matter is not a moral one; therefore it cannot be a matter involving punishment.
That this position is a good deal more radical than that of the Wolfenden Committee needs little argument; if, for instance, it is true that homosexuality harms no one beyond the consenting participants, then no sort of punishment is appropr iate. The Wolfenden Committee’s view that legal penalties are out of place is only a special case of the wider judgement. In a well known passage, Mill distinguishes what we can and what we cannot say about a man who drinks too much; he may be said to behave foolishly, his life may be said to be ugly, but he cannot properly be said to be immoral or wicked, even though his life may be uglier than many forms of
wickedness are. And this distinction it is that Mill maintains throughout his discussion of fornication, drug-taking, and the rest.
The importance of the distinction to Mill is enormous. If we say that an action is wrong, we are committing ourselves to the view that the action is socially harmful, and we are invoking the aid of public opinion in stopping that action.
Mill wants us to see clearly whether we really want to do these two things, and he wants us to ask carefully whether we have any grounds for doing them; if we see that we do not or that we have not, the way is open for that moral outlook which Mill so wanted to encourage. One major component of it is the willingness to make and encourage others to make experiments in living, individual attempts to find new or deeper, or even merely different, sources of happiness in life. The other major component is a finer discrimination in what we do want to say about people’s behaviour.
Once we rule out coercion, there is room for sympathy, advice, criticism, and exhortation. Mill, indeed, is clear that a good deal more mutual criticism and advice than custom allows would be a thoroughly good thing; what he is against is coercion, and the sort of coercion he is chiefly against is the coercion of public opinion. This coercion, justified where the matter really is a moral one, is simply tyranny where it is not; and Mill’s fear was that because of its mildness and unobtrusiveness, the tyranny of public opinion would prove the most deadly of all despotisms.
There are two great merits in Mill’s case, which are of continuing importance. Both are connected with clarifying our moral outlook.
The first sort of clarity Mill offers us is classificatory; the utilitarian scheme does include and exclude virtually everything which we all want to include and exclude when talking of morals. For example, in the case of lying, it is part of our concept of a lie that a liar should aim at getting another person to do what that other does not want to—namely, believe a known untruth. You logically cannot lie to a man with his free and undeceived consent; if he is undeceived he cannot have been lied to. Equally, in no sense other than a dubious analogical one can a man lie to himself. And over the whole range of such cases as promise-breaking, stealing, and the like, the application of Mill’s test is simple enough. If you have my free and undeceived consent to break a promise to me, then you cannot have broken it, but have been released from it. If you have my free and undeceived consent to steal my watch, you cannot have stolen it at all; I must have given it to you. Of course there are problems about when
consent is free and undeceived; and of course there are problems about when my actions involve others. But the existence of hard cases in practice is no obstacle to our drawing the line where Mill wants it drawn; indeed, the fact that we recognize the hard cases as such rather suggests that we do habitually make the distinction which Mill wants made, without any great difficulty.
The second sort of clarity which Mill forces on us is a need to be much surer of our facts, since the variety of objections to a given line of conduct which Mill suggests means that we have to see carefully what facts we are to appeal to in our support. The muddles of Devlin and Wolfenden illustrate this well. The Wolfenden Committee is, on Mill’s terms, not entitled to talk of ‘private immorality’ at all; either it can produce facts which show that homosexuality can be reasonably foreseen to cause harm to non-consenting parties, or else it must take the plunge and admit that homosexuality is not wrong or immoral at all; though the committee is at liberty to say it finds homosexuality distasteful, or foolish. The committee’s line would have incensed Mill, because it is precisely the sort of view which could remove legal pressures while leaving untouched the greater evil of social prejudice and social coercion. Equally Lord Devlin is caught in the same cleft stick; it is true that he and Mill are in agreement over the fact that there is no such thing as ‘private immorality’; but this is cold comfort for Devlin, since the question he is faced with is ‘What factual grounds are there for calling this sort of conduct immoral at all?’ Mill’s case is that the conduct is private in the required sense, and thus not immoral; Devlin’s sometimes seems to be that the conduct is immoral and thus cannot be private. But this will not do, for it leaves unanswered the question of what makes the action immoral in the first place. Devlin never answers this question; at one point he appears to argue that whatever people dislike enough is immoral, but—quite apart from the extreme illiberalism of this attitude, from which even Devlin shrinks—this ignores the vital fact that the dislike which people feel is felt just because they suppose the conduct in question to be immoral. Somehow and somewhere the question of what are the facts which make such and such immoral has to be answered. Indeed, Lord Devlin often enough resorts to arguments about the effects of actions on society in the most straightforward utilitarian way. The trouble is that he never sees that these are utilitarian arguments, and hence never asks himself what his evidence is, what facts he is appealing to.
In this unconcern for the facts in the face of sheer indignation, Devlin is much too like most self-appointed preachers, and most unlike Mill. In the way it brings us constantly to the question ‘what are the facts?’, a wider acceptance of Mill’s utilitarian outlook would do a lot of good to current moral debates.