The classical utilitarians were driven by an urgent need for social and legal reform. Utilitarianism offered a normative theory for distinguishing between good and bad laws. A good law was one which tended to make people happier and a bad law was one which did the opposite, and this seemed to apply equally to national government and to individual morality. The greatest happiness for the greatest number was a simple and defensible principle for improving society.
For Jeremy Bentham, happiness was equivalent to pleasure and goodness was a purely quantitative measure: the amount of happiness produced was the sole concern of a legislator. The brute simplicity of this equation troubled many thinkers, including Mill who consequently developed a qualitative assessment of happiness in which it was not just the amount of pleasure, but the type of pleasure, that mattered. Higher pleasures like listening to Schubert or solving a good crossword (ie intellectual pleasures) were worth more in the calculus than lower, sensual pleasures like getting drunk or watching television. Where Bentham saw no qualitative difference between the happiness of a person and that of an animal, Mill saw an essential distinction:
It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. Utilitarianism ch 2
For Mill, how you live matters – not merely whether your lifestyle brings you pleasure. This brand of hedonism is determined by Mill’s understanding of the good life as one of autonomy and individuality, of intellectual and emotional fulfilment. Pleasure per se is not enough: Mill is concerned with a much broader sense of what is intrinsically valuable. But he still considers himself a utilitarian and explicitly defends the arguments in On Liberty with this broader understanding of utility:
I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. 1.11
Some readers of On Liberty have found this statement surprising. Mill’s defence of liberty is so robust that it often seems that freedom itself, not utility, is what matters; that liberty is more than simply a means to an end.
In the first explicit statement of the Harm Principle, Mill deliberately excludes paternalism as a legitimate reason for regulating an individual’s conduct:
He cannot rightfully be compelled to do or forbear... because it will make him happier. 1.9
This sounds ominously unlike a utilitarian: normally making an individual happier would be the only justification for interfering in a person’s life. And this is not the only time Mill writes in this vein:
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. 2.1
Usually a utilitarian would see a good case for a majority to overrule a minority, especially a minority of one, on the grounds that pleasure can be measured quantitatively and the satisfaction of the many will outweigh the disappointment of the few. But Mill writes here as if freedom of speech were intrinsically valuable and should never, under any circumstances, be suppressed. A utilitarian should at least allow that limits on free speech may in principle increase happiness. Instead, Mill talks about an individual’s interests in terms of ‘rights’:
This conduct consists, first, in not injuring the interests of one another; or rather certain interests which, either by express legal provision or by tacit understanding, ought to be considered as rights... 4.3
These passages have led some thinkers to claim that Mill goes beyond a strictly utilitarian defence of freedom. Rather than allowing that liberty has purely instrumental value (in so far as it leads to happiness), he seems to accord it intrinsic value and offers no argument to defend that claim. Mill simply declares that autonomy is absolute:
In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. 1.9
This is not the whole story, of course. He also, in a manner more consistent with his utilitarianism, repeatedly insists upon the instrumental value of freedom and individuality as leading to a better life:
Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. 1.13
But there is something uncomfortable about freedom being both an end in itself and a means to that end. Either claim would suffice as a defence of liberty, but both seem to require more arguments than Mill provides. If this analysis is correct, then the central thesis of On Liberty is less consistent than it at first appears.
Perhaps we should take Mill at his word and try to understand his argument as more consistently utilitarian.
It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. 1.11
The key notion here is that of an ‘abstract’ right which is not defined in utilitarian terms. Mill rejects the notion at the outset, and for good reason. Liberals generally believe in certain basic rights – the right to life, to freedom of speech and assembly, the right to vote, and so on. These rights are now known as universal human rights but in Mill’s time they were often described as ‘natural rights’. Although the term ‘natural’ gives these rights an apparent authority, a little more scrutiny reveals that they have no justification. Perhaps they are axiomatic or self-evident: but in that case we have no further argument against someone who disagrees. Moreover, if they are indeed self-evident then it seems odd that there is so much disagreement about who has what rights. Considerations like these led Bentham to famously dismiss natural rights as ‘nonsense upon stilts’. Instead, Bentham claimed, what we call rights are merely claims protected by the law: it is the law which gives rights their force.
But Mill is hardly interested in defending the status quo, or accepting as a right whatever happens to be enshrined in current legislation. In fact, these rights can be defined in strictly utilitarian terms:
To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. If the objector goes on to ask, why it ought? I can give him no other reason than general utility. Utilitarianism ch 5
And this is how the apparent tension in Mill’s thinking can be resolved. Bentham’s utilitarianism operates at the level of individual actions – each action is good or bad in so far as it promotes happiness – and this may, under certain circumstances, overrule any principle of liberty. In a religious community, for instance, a single heretic may be silenced to achieve the greater happiness of the majority. But such an action may well have the opposite effect in the longer term: if everyone feels that they can be punished for harbouring unorthodox opinions, then paranoia prevails and general happiness decreases (as indeed it does during religious inquisitions). Better instead to protect freedom of speech on principle and seek other ways to counter heresy. If a person’s liberty is considered inviolable, then the small pain of hearing unorthodox opinions is outweighed by the guarantee of safety and security. Happiness is maximised, but it requires a general rule to achieve it: even when individual breaches of liberty may seem to promote utility, they must be prohibited for the greater good.
This type of utilitarianism does not follow only one rule – act to maximise utility – but instead uses a range of laws whose consistent application will lead to greater utility by permanently protecting the rights of individuals. It is a form of indirect utilitarianism (also known as rule utilitarianism), as opposed to the direct (or act) utilitarianism of Bentham. For Mill, the short-term advantages of individual actions are not the main concern. Instead, he is interested in a longer-term goal, namely the permanent establishment of the right conditions for human improvement. There will always be local conflicts, but liberty remains a necessary condition for progress.
The spirit of improvement is not always a spirit of liberty, for it may aim at forcing improvements on an unwilling people; and the spirit of liberty, in so far as it resists such attempts, may ally itself locally and temporarily with the opponents of improvement; but the only unfailing and permanent source of improvement is liberty... 3.17
It seems, then, that Mill is being consistent and it is possible to reconcile his talk of both utility and rights. The best way of serving ‘the permanent interests of man’ is by defending individual liberty as a human right. And we should remember how Mill distinguishes between higher and lower pleasures: the sort of goods that Mill is advocating in On Liberty – the powers of free thought, feeling and imagination – are precisely what he means by higher pleasures. Happiness doesn’t merely derive from these powers. It consists in them.
Indirect utilitarianism allows Mill to ground his rights in utility and makes his position consistent. But it does not guarantee the liberal values he defends. Mill has not proven that treating liberty as an inviolable right does, in fact, contribute to greater happiness. Some thinkers claim that there are situations in which coercion will lead to greater happiness than freedom, and defend legal paternalism on exactly these grounds.