Calnan on jurisprudence
Keeping it simple
How far should the state impinge on individual liberty?
The English political philosopher John Stuart Mill considered this question in his essay On Liberty 150 years ago.
Mill sets out to establish the limits of the power which can legitimately be exercised by society over the individual. His thesis is simple: the only purpose for which mankind is warranted in interfering with the liberty of action of any of its number is protection of self; and the only purpose, therefore, for which power can rightfully be exercised over any member of a civilised community against that individual’s will is in order to prevent harm to others.
Modern jurisprudence—the philosophy of law—starts in the late eighteenth century, with Jeremy Bentham and utilitarianism. Mill was strongly influenced by utilitarianism, but he was as much concerned with moral philosophy as with legal philosophy. He sits at the edge of jurisprudence, but what he says is relevant to lawyers and relevant to a wider audience than just lawyers. He wanted to establish the circumstances under which the majority can lay down standards for the minority, whether those standards consist of moral suasion or legal constraint. As a guide to those framing our laws, Mill’s essay is still valuable today. Even the examples he uses are pertinent.
Mill says that society should only be able to use opinion, or law, to restrain an individual if the individual would otherwise do something that would harm others. He also says that this principle has to be applied more strictly to legal constraint than to moral constraint. The one caveat is that it applies only to ‘human beings in the maturity of their faculties’.
It is axiomatic that a person’s opinions cannot harm others. Every individual must be entitled to her, or his, own opinions. Freedom of expression is almost as sacrosanct—although some limits do need to be placed on it if it would clearly harm others.
Actions are different. It is here that society has the greatest ability to restrain the individual from harming others.
It is one thing to state the principle, another to apply it. It is always a matter of judgement whether the action of an individual will harm others to the extent where it should be constrained by law. As I write, there is a heated debate in the UK about the respective merits of privacy and the freedom of the press. Mill’s approach can clarify the issues.
If a newspaper publishes an inaccurate article about the private life of a public figure, that individual has a remedy in defamation. But what if the article is truthful? Should the public figure be able to prevent its publication because it has an adverse effect on his, or her, private life? Mill would say: only if the consequences clearly harm someone other than the individual concerned can they justify restricting as fundamental a principle as freedom of expression.
I first read On Liberty more than forty years ago, as an undergraduate sitting in some golden garden somewhere; and when I went, last month, to hunt down a copy and read it again, I wondered if it was altogether a wise move. It can be a mistake to revisit things you have read in the past. You are no longer the same person.
To my relief, Mill’s voice still resonates. His writing is clear, it’s concise, and, to my mind, what he has to say is convincing. He says what needs to be said in an uncompromising way.
© Norton Rose Fulbright LLP 2020