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Mill, Indecency and the Liberty Principle

Published online by Cambridge University Press:  26 January 2009

Jonathan Wolff
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Abstract

This paper attempts to do two things. One concerns Mill's attitude to public indecency. In On Liberty Mill expresses the conventional view that certain actions, if conducted in public, are an affront to good manners, and can properly be prohibited. This paper aims to come to an understanding of Mill's position so that it allows him to defend this part of conventional morality, but does not disrupt certain of his liberal convictions: principally the conviction that what consenting adults do in private is no-one's concern but their own. The difficulty is to find an argument that Mill could have used to defend the position that some things which, though acceptable in private, can rightly be stopped if attempted in public. The other thing the paper attempts is to consider the impact of Mill's view of indecency on the interpretation of the Liberty Principle. There remain difficulties here which have not been adequately explored. So the paper will examine a range of interpretative alternatives.

The first part of the paper will raise and explore the issue of the interpretative problems. The second part will look at some ways of trying to justify Mill's view of indecency on characteristically Millian grounds. The final part will explore the somewhat surprising consequences of the discussion of the second part for the interpretative questions raised in the first.

Type
Research Article
Information
Utilitas , Volume 10 , Issue 1 , March 1998 , pp. 1 - 16
Copyright
Copyright © Cambridge University Press 1998

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References

1 Mill, John Stuart, On Liberty, Essays on Politics and Society, ed. Robson, J. M., Toronto, 1977Google Scholar, Collected Works of John Stuart Mill, xviii. 223.

2 Rees, J. C., A Re-Reading of Mill On Liberty, in On Liberty in Focus, ed. Gray, John and Smith, G. W., London, 1991, p. 174Google Scholar.

3 Wollheim, Richard, ‘John Stuart Mill and the Limits of State Action’, Social Research xl (1973), 1–30Google Scholar. The term ‘morality dependent harm’ is from Honderich, Ted, ‘”On Liberty” and Morality Dependent Harms’, Political Studies, xxx (1982), 504–14CrossRefGoogle Scholar.

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8 Mill, J. S., On Liberty, CW, xviii. 295–6Google Scholar.

7 Hart, H. L. A., Law, Liberty and Morality, London, 1963, pp. 38–48Google Scholar. It is not quite clear whether Hart takes himself to be articulating Mill's view, or putting forward a similar view for himself, perhaps on different grounds.

8 Indeed the argument given by Mill trades on an equivocation in the use of the term ‘offence’. The sense in which bad-mannered behaviour is ‘offensive’ is not the same as the sense of ‘offence against others’ sufficient to bring an action into the sphere of public regulation. The latter sense is illustrated by the legalistic phrase ‘offences against the person’.

9 Riley, Jonathan, ‘One Very Simple Principle’, Utilitas iii (1991), 23Google Scholar.

10 One way of defending the asymmetry is that public actions ‘impinge’ on us in ways that purely private actions do not. So if the objection to indecency is largely aesthetic then ‘impingement’ will produce an appropriate distinction. I owe this thought to Jerry Valberg. However as this does not seem to be a view one could attribute to Mill, I shall not consider it here any further.

11 Conway, David A., ‘Law, Liberty and Indecency’, Philosophy, xlix (1974), 137Google Scholar.

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14 I'm grateful to Roger Crisp for illuminating correspondence on this point.

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16 Ten, , Mill On Liberty, pp. 105–6Google Scholar. For a sophisticated attempt to balance such considerations, although deliberately in the absence of any specific theoretical framework, see Feinberg, Joel, Offense to Others, Oxford, 1985Google Scholar.

17 Feinberg, Offense to Others.

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19 And, of course, in ch. 2 of On Liberty Mill makes out in great detail the utilitarian advantages of a right to freedom of thought.

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21 Mill, , On Liberty, CW xviii. 261Google Scholar. It is interesting to note that nothing like the pleasure of individuality appears on Bentham's list of several dozen categories and sub-categories of pleasures in An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A., London, 1970 (The Collected Works of Jeremy Bentham), pp. 42–5Google Scholar.

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24 Although it does raise a more general worry: how effective at communicating its message will a private experiment in living be? However, literature and direct exposure to volunteers may well be sufficient.

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26 Baier, Kurt, ‘The Liberal Approach to Pornography’, University of Pittsburgh Law Review, xl (1979), 620Google Scholar.

27 The contingency of the Liberty principle on the possibility of progress is clearly implied in Mill's notorious discussion of children and barbarians. Mill, writes, ‘Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion’ On Liberty, CW, xviii. 224Google Scholar.