Mill is not directly concerned with the various basic freedoms that usually exercise liberals: the freedom to vote or stand for office, to buy and sell goods, the right to a fair trial or a fair distribution of resources. These freedoms may follow from his central claim, but they do not constitute it. Instead, Mill defends the individual’s freedom to think and act as they see fit, within a domain over which society and government exercise no authority. His overriding concern is the removal of obstacles to autonomy.
Nevertheless, it is important to remember that liberty is a means to an end, specifically ‘the permanent interests of man as a progressive being’ (1.11). When those interests are not served by liberty, then liberty can and should be restricted.
The first and most important restriction on an individual’s liberty, of course, is the Harm Principle itself. Since harm in Mill’s sense – conduct prejudicial to the rights and interests of others – lessens utility, it must not be tolerated. Mill himself is prepared to apply this restriction to the freedom of expression, if necessary:
... 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. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. 3.1
For all his spirited defence of free expression, Mill recognises limits to that freedom when expression affects others adversely. This harm need not even be real: either ‘definite damage, or a definite risk of damage’ (4.10) are sufficient to subject conduct to public sanction.
Mill also recognises that not all individuals are sufficiently developed to use their freedom wisely. This obviously applies to children, but the same restriction applies to ‘backward states of society’ or uncivilised peoples:
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. 1.10
Although this smacks of Victorian imperialism, Mill’s position is at least consistent. Liberty is an instrumental good and as such will only achieve its ends under certain circumstances: that is, in the presence of other necessary conditions for self-development. If those conditions (such as rationality and competence) are absent, then liberty loses its value.
In the opening pages of On Liberty Mill indicates the sphere of activity to which he intends to apply his principle of liberty. He divides it into three discrete domains which he addresses in turn.
It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. 1.12
Freedom of thought and freedom of expression are usually treated separately, and to a degree Mill does this himself (since expression is other-regarding in a way that thought is not). However, both types of freedom – unrestricted thought and free expression – are instrumental in creating optimal conditions for intellectual development, and for this reason they can plausibly be treated together.
Mill singles out three particular types of belief that are explicitly protected: scientific, moral and theological. This is perhaps unsurprising given how often people have been abused for their beliefs in these areas: we need only think of Galileo and the early scientists’ treatment by the church, or the many political prisoners around the world, or the frequency of religious intolerance throughout human history. Even today there is hardly unanimous support of freedom of conscience, and certainly not freedom of speech.
Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. 1.12
This is perhaps the most controversial sphere of activity: freedom to choose one’s lifestyle and pursue it unhindered. Despite Mill’s exclusion of harmful conduct, a number of actions seem to be permitted in this sphere that some commentators feel should be prohibited. An example is drug use: if a young person begins a drug habit that will lead to addiction and ruin, should their friends and family – should the state – not be allowed to intervene? This type of paternalistic intervention for the good of the individual is considered legitimate by some thinkers but is forbidden by Mill.
Other examples of controversial pursuits allowed by Mill’s principle include the use of pornography; sex with animals; and public nudity. When faced with such a range of activities, people will draw the line at different points, but Mill insists that this is arbitrary. Without harm to others, such pursuits are simply no business of the state. On the other hand, the case of public nudity seems to be considered by Mill an ‘offence against decency’ (5.7) and can therefore be regulated as other-regarding conduct. It should be noted, however, that it is the public nature of such acts – not their moral value – that justifies interference.
Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived. 1.12
Freedom of assembly or association is recognised as a human right in liberal democracies, but its boundaries are not always clear. Certain lifestyle choices involving others seem to fall under the freedom of association, but contravene traditional moral intuitions: examples include prostitution, polygamy and consensual incest. With all of his criteria satisfied (participants of full age and consenting, no harm caused) such activities should be immune from state interference according to Mill.
These three domains – thought and expression, lifestyle and association – constitute the extent of what Mill considers self-regarding conduct, and should therefore be free from any outside interference.
Actions which affect only the agent ‘directly, and in the first instance’ (1.12) are no business of anyone but the agent. If a person wishes to pursue a lifestyle that involves some form of risk or harm – climbing mountains, for instance, or taking recreational drugs – they should be free to do so. To interfere would be illegitimate paternalism. It is their life, after all.
Mill acknowledges a reasonable objection to this claim:
No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them. 4.8
His answer is to demand that for legitimate intervention, the type of ‘mischief’ that reaches others must be of a particular sort, namely an infringement of some form of right or duty. Under these circumstances, the indirect harm that a person causes to others can be sufficient to warrant interference.
Mill identifies three such circumstances that can lead to restrictions on self-regarding conduct. Firstly, if such conduct leads to a ‘breach of duty’ such as failure to pay a debt or inability to support dependents, then the conduct can be punished (although Mill is clear that the punishment is for the breach of duty, not the conduct itself). Secondly, such conduct may result in failure to meet a specific responsibility: Mill’s example is a soldier or policeman being drunk on duty. The third circumstance is when bad habits cause distress to a person’s family: at the very least, ‘he deserves reproach for his unkindness or ingratitude’ (4.10).
Families seem to be the target of particular concern for Mill. For many liberals the family is a domain over which the state should have little, if any, authority, but Mill himself was acutely aware of the lack of legal protections afforded to wives and children in the nineteenth century.
The almost despotic power of husbands over wives need not be enlarged upon here because nothing more is needed for the complete removal of the evil, than that wives should have the same rights, and should receive the protection of law in the same manner, as all other persons. 5.12
This is not inconsistent with the Harm Principle as families are bound to each other by legal obligations and dependencies. The duty of a man towards his family should properly be considered other-regarding conduct and therefore subject to regulation. Mill even cites approvingly European laws that forbid marriage unless the parties concerned can prove they have the means of supporting a family. Such restrictions, Mill observes, ‘do not exceed the legitimate powers of the state’ (5.15).
Even when a person has no obligations to others, that person’s self-regarding conduct may well cause an adverse reaction in others who consider them ‘foolish, perverse or wrong’ (1.12). While no direct interference is permissible in such a case, people are of course free to exercise their own preferences and avoid such a person, or warn others against them.
... a person may suffer very severe penalties at the hands of others, for faults which directly concern only himself... 4.5
So far as such penalties are not a deliberate punishment but a natural reaction to folly or vice, they are an acceptable response to the self-regarding conduct of others.
A very particular (and unusual) action which Mill insists should be prohibited is voluntary slavery. Although the act of selling oneself into slavery might be properly considered self-regarding, it would lead to something of a contradiction:
The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom. 5.11
Mill’s point here is that since individuals are best served by making free choices, a person becoming a slave counteracts their own best interests. By giving away their liberty, they remove the very reason for protecting it. While this may seem a rather far-fetched example, Mill has something else in mind here. The same logic, he suggests, should apply to marriage and divorce: all things considered, an unhappy marriage – if not readily dissolvable by either party – is not unlike slavery. In Mill’s day women had fewer grounds for divorce than men, and for some the contract of marriage meant the end of their freedom to live as they wished. Divorce was stigmatised, too, which made escape even more difficult. Mill’s own relationship with Harriet Taylor, who was married to her first husband for nineteen years before his death freed her to marry Mill, was clearly on his mind.
A further limit to a person’s freedom may be found in preventive policing – that is, legislation that prohibits certain actions. Most such prohibitions refer legitimately to other-regarding conduct, but some trespass upon the inviolable space of an individual’s self-regarding conduct.
Mill uses the sale of poison as an example of how far the state sometimes goes to prevent harm before it occurs. In principle, there is nothing necessarily wrong with such preventive action:
... if a public authority, or even a private person, sees any one evidently preparing to commit a crime, they are not bound to look on inactive until the crime is committed, but may interfere to prevent it. 5.5
This is legitimate interference, even when there is no other person threatened: if someone is about to walk across an unsafe bridge, for example, it is acceptable to forcibly prevent them from stepping forward and harming themselves (assuming they do not know the bridge is unsafe). In such a case the accidental harm is inevitable and should be prevented. The sale of poison, however, is different in that ‘there is not a certainty, but only a danger of mischief’ (5.5). Moreover, poisons are bought for many different reasons, most of which are harmless and legitimate. An individual should therefore be allowed to make such a purchase. That is not to say that the state should sit idly by: Mill advocates measures such as health warnings on the bottle (like on cigarette packets today) or what he calls ‘preappointed evidence’, like requiring a prescription for certain drugs. These measures would not make it much harder to buy poison but would mitigate the danger of criminal misuse. Outright prohibition is a step too far.
Mill acknowledges another instance of legitimate preventive action in the case of a person who has previously been violent when drunk. Such a person can legitimately be prevented from drinking again since their past behaviour makes the likelihood of future harm greater (5.6).
Mill’s intention is to demarcate a sphere within which individuals are completely free from interference by society and government. No summary will cover all the complexities of Mill’s solution but a rough outline is clear. In matters of thought and expression, lifestyle and association with others – in the domain of self-regarding conduct – an individual should be free from interference until they cause harm to others or to their interests.