Chapter three Freedom of action Experiments in living Freedom is necessary to develop individuality Individuality Central to happiness Essential for individual and social progress Brings utility Arguments New and better ways of living Developing genius Benefits everyone Strong characters Avoid stagnation

Arguments for freedom of action  Discovering new and better ways of living  ‘It will not be denied by anybody that individuality is a valuable element in human affairs. There is always need of persons not only to discover new truths and point out when what were once truths are true no longer, but also to commence new practices and set the example of more enlightened conduct and better taste and sense in human life.’  ‘Genius can only breathe freely in an atmosphere of freedom.’

Arguments for freedom of action  Developing genius  ‘No government by a democracy or a numerous aristocracy, either in its political acts or in the opinions, qualities, and tone of mind which it fosters, ever did or could rise above mediocrity except in so far as the sovereign many have let themselves by guided… by the counsels and influence of a more highly gifted and instructed one or few. The initiation of all wise and noble things comes and must come from individuals; generally at first from some one individual.’

Arguments for freedom of action  Freedom to pursue different ways of life will benefit everyone  ‘If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode. Human beings are not like sheep…’

Arguments for freedom of action  Developing individuality will lead to strong characters  ‘The general average of mankind are not only moderate in intellect, but also moderate in inclinations; they have no tastes or wishes strong enough to incline them to do anything unusual, and they consequently do not understand those who have… Instead of great energies guided by vigorous reason, and strong feelings strongly controlled by a conscientious will, its result is weak feelings and weak energies, which therefore can be kept it outward conformity to rule without any strength either of will or of reason.’

Arguments for freedom of action  Societies that prevent originality stagnate  ‘The greater part of the world has, properly speaking, no history, because the despotism of custom is complete. This is the case over the whole East. Custom is there, in all things, the final appeal; justice and right mean conformity to custom… And we see the result. Those nations must once have had originality… What are they now? … A people, it appears, may be progressive for a certain length of time, and then stop: when does it stop? When it ceases to possess individuality.’

Chapter 4 Individual sovereignty may be limited Society should be allowed to control the part of human life that particularly interests society Other-regarding actions (which are not consented to) may be restricted to prevent harm We must not become ‘moral police’ by interfering all the time in other people’s behaviour

We must not become ‘moral police’ Some of Mill’s examples of illegitimate interference: Banning pork in Muslim countries Spanish Catholics and married priests Puritan views on pleasure Sumptuary Laws Sundays Prohibition in the USA Mormon polygamy

Example of illegitimate interference ExplanationMill’s viewYour view Banning pork in Muslim countries A majority imposing a dietary restriction on a minority, e.g. banning eating pork in a Muslim state (p.153) Spanish Catholics and married priests A majority enforcing religious belief and practice on a minority, e.g. banning married clergy in a Catholic country (p.154) Puritan views on pleasure The state interfering with the leisure activities of its citizens, e.g. the Puritans banning music and dancing (p.154) Sumptuary LawsThe state interfering with how individuals spend their money, e.g. American laws that impose a ceiling on individual spending (p.155) SundaysThe state interfering with the times when people are allowed to work, e.g. the campaign to keep Sunday as a day of rest (p.158) Prohibition in the USA The state prohibiting the sale of alcohol, as was the case in the American state of Maine at the time of writing (p. 156) Mormon polygamy A majority persecuting a minority because of their views on marriage, e.g. the persecution of Mormons (p.160)

Discussion Is there any justification for the law restricting what we can do in private? What kinds of private behaviour should be controlled and punished by law?

Case Study: Wilson (1996) A man branded his initials “A” and “W” onto his wife’s buttocks using a hot blade. She regarded the branding as a “desirable personal adornment” and had originally requested that the branding be on her breasts. It was the defendant who had persuaded her to have the branding on her buttocks. The matter came to light when her doctor reported the incident to the police because the branding became infected. Wilson was charged with assault occasioning actual bodily harm but was found not guilty on appeal as his wife had given her consent and the court held that “consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution.”

Case Study: Brown (1993) From , a group of gay men willingly participated in acts of violence against each other, including genital torture, because they took sexual pleasure from the giving and receiving of pain. The defendants were found guilty of assault occasioning actual bodily harm. All these activities were conducted in private and none of the participants ever complained. No medical attention was ever sought and there were no permanent injuries. In convicting them, the judge Lord Devlin said: “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing”.

Implications of On Liberty for criminal law The significance of On Liberty is apparent in debates about changes to criminal law Wolfenden Report (1957) Recommended decriminalizing male homosexual activity Ignited a public debate about philosophical justifications for criminal law Lord Devlin opposed the idea that there should be a realm of private morality that is none of the law’s business

Discussion Lord Devlin argued that society should be guided by the opinion of the ‘reasonable man’ in the street. This isn’t the opinion that such a man might reach through debate and thoughtful reflection, but more like a gut instinct that the average man might possess. Is this an acceptable way to decide what is moral?

Lord Devlin’s argument ‘An established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures… There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.’

Lord Devlin’s argument ‘The suppression of vice is as much the law’s business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity… It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice. There… can be no theoretical limits to legislation against immorality.’

Lord Devlin’s argument ‘You may argue that if a man’s sins affect only himself it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is anyone except himself the worse for it? But suppose a quarter or a half of the population got drunk every night, what sort of society would it be? You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.’

Lord Devlin’s argument outlined Morality is essential to the welfare of society. Morality is social, not private. It is the business of government to look after the welfare of society. So it is legitimate for government to pass laws on the basis of preserving moral values.

Freedom Is freedom necessary for individual welfare? We could argue that people do not learn from their mistakes so experiments of living will not produce better lives. Mill’s response: freedom is part of the ‘permanent, progressive interests’ we have as human beings.

Agreed morality Lord Devlin is not concerned with true morality, but agreed morality. How is social progress possible on this model? Do disagreements in moral values really lead to social disintegration?

Chapter 5: Applications Individuals should be left to do some things by themselves : 1. When the thing will be better done by individuals. 2. Because it strengthens the abilities of citizens when they are allowed to manage their own affairs. 3. It is an evil to add unnecessarily to the power of government.

Five key applications ReligionAlcoholTrade Prostitution Social Benefits