On May 25, 2020, George Floyd, a 46-year-old Black man, died after Derek Chauvin, a white police officer, knelt on his neck for nine minutes and twenty nine seconds while he was lying face down handcuffed on the street. His death, and many other horrifying acts of social injustice both before and in the wake of his tragic death, have rightly led to international moral outrage and plenty of peaceful protests in the name of justice. The hope is that, more than ever before, these protests calling for justice, legal reform, political change, education, solidarity, and so on will substantially change the world for the better. Many of these efforts are already working as the daily news headlines show. Indeed, a Black Lives Matter rally in my own town has already made an impressive difference.
In the midst of all this action it may seem that the theoretical concerns of philosophy – the activity of asking, and attempting to give imaginative and well-argued answers to, general and fundamental questions in order to gain wisdom – might be too abstract for the times at hand (for my post on the nature of philosophy, go here). But I think it is crucial to think philosophically about the issues that are unfolding. In part one of this series, I showed how natural law theory was employed to fight social injustice in the past, its relevance to George Floyd, and how it can help in potential future reform (see here). In part two I explored how Jean-Paul Sartre’s book Anti-Semite and Jew: An Exploration of the Etiology of Hate uses existentialism to shed illuminating light on various issues in the Black Lives Matter movement (see here). In this post, I show how John Stuart Mill’s classic book On Liberty (1859) can provide a helpful framework for analyzing recent issues related to what Mill calls the region of liberty: freedom of thought and discussion, freedom to pursue happiness, and the freedom to assemble. Let’s begin with a brief overview of the book before moving to an application and critique of Mill’s ideas (for a more in-depth and critical overview, go here; for a biography and overview of Mill’s philosophy in general, go here).
J.S. Mill (1806-1873)
The title of Mill’s book suggests it is about the philosophical issue of free will vs. determinism. But he is quick to point out that this is not the case. Rather, the book is about the relation between individual liberty and social restrictions on that liberty. As he says in the opening line, “The subject of this Essay is not the so-called Liberty of the Will, so unfortunately opposed to the misnamed doctrine of Philosophical Necessity; but Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual.” He opens with a history of various political arrangements and their relation to liberty. He eventually comes to democracy which is celebrated for not having the kind of unjust political tyrannies that marked so much of the past. However, Mill discerns a new type of tyranny we must still guard against, namely, the tyranny of the majority. This form of tyranny occurs when the majority of people in a society, rather than the public authorities, harm those who are in the minority. He writes:
“Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”
Mill then reveals that the aim of his book is to propose a principle that we can use to help insure individual liberty is maintained in the face of the tyranny of the majority. The principle, now known as the harm principle, has had quite an influence philosophy, politics, and law. Mill presents it as follows: “That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”
Title page of the first edition, 1859
But what is meant by harm here? Mill claims harm will ultimately be understood as a violation of rights: “This conduct [of harm] 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…”. Mill points out that no one is an island and that, given our relations with others in society, we are bound to harm others in various ways. But only harm as a violation of rights can be addressed by an interference with liberty; all the other ways will have to be tolerated or addressed in ways that do not violate the harm principle.
Now, once Mill establishes the problem (tyranny of the majority and the need to find a principle to deal with it) and offers us his guiding principle (the harm principle), he moves on to discuss the three characteristics necessary for any society with human liberty:
“This, then, is the appropriate region of human liberty. 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. 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. 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. No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.”
So a truly free society requires:
(1) Absolute freedom of thought/feeling and the ability to discuss and express our thoughts and feelings.
(2) The freedom to act as we wish and pursue happiness.
(3) The freedom to assemble with others, form groups, and so on.
Of course, all three of these conditions must respect the harm principle. Let’s see how some of Mill’s insights about this three-fold criteria of liberty can illuminate a set of issues we currently face.
Freedom of Thought and Discussion
We live in a society with more publications, radio shows, blogs, podcats, TV shows, websites and so on than ever before. This diversity of platforms makes us aware of the vast diversity of viewpoints which are often in radical disagreement. This has certainly been the case in the wake of George Floyd’s death: passionate protests and counter-protests, bitter political controversy, widespread hate speech, and a general breakdown of civility often remove any hope for constructive dialogue. All of this would concern Mill since
“not the violent conflict between parts of the truth, but the quiet suppression of half of it, is the formidable evil: there is always hope when people are forced to listen to both sides; it is when they attend only to one that errors harden into prejudices, and truth itself ceases to have the effect of truth, by being exaggerated into falsehood. And since there are few mental attributes more rare than that judicial faculty which can sit in intelligent judgment between two sides of a question, of which only one is represented by an advocate before it, truth has no chance but in proportion as every side of it, every opinion which embodies any fraction of the truth, not only finds advocates, but is so advocated as to be listened to.”
It is important to note that Mill would be the first to argue that some modes of expression can be actively interfered with if they will give rise to violence. In a well-known passage he writes:
“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.”
Justice Oliver Wendell Holmes Jr. would later articulate the standard of “clear and present danger” based on Mill’s ideas. Many modes of hate speech are rightly protected by the First Amendment. But we must keep in mind that many are not (for an overview of what is legal and illegal in hate speech, go here).
In any case, Mill would want us to celebrate the diversity of ideas since the search for truth requires it. In chapter two (“Of the Liberty of Thought and Discussion”) he defends his prescription by using fallibilism or the view that no belief can be supported or justified in a conclusive way. Mill reasons as follows: if we are all fallible people who can make mistakes then we should engage in dialogue, inquire together, and really listen to one another. After all, if we can be wrong then those with whom we disagree may have the truth or a part of the truth. And even if they don’t have any truth, engaging in genuine dialogue and debate can help us better understand the intellectual grounds of our ideas and allow those ideas to become part of our character.
This sensible account may seem far-fetched when we confronted with people who seem obviously immoral and perhaps even evil to us. But Mill claims one of the worst things we can do is “stigmatise those who hold the contrary opinion as bad and immoral men.” That is, we should do our best to avoid inferring that someone is a bad person because we think their ideas are bad. For once we see others as bad we will be less inclined to take their ideas seriously. Indeed, we may be more inclined to silence them and to think we are justified in doing so. This facilitates a dogmatic mindset that not only threatens our efforts to find truth but generates plenty of dehumanization and violence as well (I explore Mill’s worst offense in relation to the 2016 election here). Thus we should never, even in the face of perceived immorality and evil, rule out in advance the possibility of dialogue that can have a positive transformative effect. In some cases civil dialogue may only serve to strengthen the intellectual and existential grounds each party has for their own ideas. But in some cases people may come to see these ideas as false and be open to change. Daryl Davis’ experiences with the KKK (see his TEDx Talk here) provide inspiring examples of such dialogue. As The Guardian reports,
“As his music career continued to flourish, Davis also became enmeshed in quite arguably the world’s strangest side hustle – meeting with KKK members of various ranks and attending so-called cross lighting rallies. Some of these Klansmen became close friends of Davis’s – the aforementioned Silver Dollar patron included – their long conversations untangling a knot of hate that had coiled for decades. In many cases, these civil dialogues led them to quitting the organization because they no longer believed in its tenets.” (read the whole article here).
Davis’ respectful, open minded, and honestly inquisitive approach facilitated civil dialogue that resulted in 200 members leaving the KKK. I think Mill would prescribe a similar strategy for us as we struggle with communication breakdown about controversial issues.
Freedom to Pursue Happiness as We Wish
Mill argues everyone should have a right to pursue happiness as they wish as long as they don’t harm other people’s rights. Unfortunately one doesn’t have too look far these days to see Black people going about their lives being harassed and even killed in parks, stores, restaurants, on the street, in their own communities, at the work place, and even in front of – or what is worse, in – their homes by white people. The belief in white supremacy, and the systemic racism that flows from it, is a tragic example of how comprised American liberty has been and currently is. Of course, there are plenty of laws that protect people’s rights. But all too often the majority in a community continue their racist activities and hate crimes in implicit and explicit ways. In doing so they exemplify Mill’s tyranny of the majority. And, while there are obviously plenty of virtuous police officers, there are also racist ones who violate the rights of those they are charged to protect (see here and here for lists of unarmed Black people shot by police). Of course, there are many others besides Blacks who are oppressed. And whites are not the only oppressors. But in the wake of George Floyd’s horrific death there has been a justified focus on Blacks in relation to white supremacy. This, of course, is what the Black Lives Matter movement is all about. Many people have mistakenly argued that the movement is excluding other lives from the domain of value. But this is false. BLM is simply an effort to bring attention to the centuries of oppression against Black people and call for various reforms.
Derek Chauvin murdering George Floyd: no liberty here
Mill offers us a framework to diagnose these acts of oppression and justify our condemnation of them. Once rights have been violated we have harm; and once we have harm then we should have both moral condemnation and government force employed to do something about it. Sadly, all too often police brutality is above the law and the harm principle is not upheld. And, sadly, rather than having a consensus of moral outrage against such brutality we have plenty who support it. This shows, if we follow Mill, that our country is not even close to being as free as it should be. Of course, many people who benefit (or think they benefit) from infractions of liberty like it that way. So, again, Mill knows he has to argue for his prescription to extend this form of liberty to all.
In chapter three (“Of Individuality, as One of the Elements of Well-Being”) Mill defends the second category of liberty (the freedom to act as we wish and pursue happiness) with two reasons. The first is that human nature is not like a machine “but a tree which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing.” Mill infers from this description that we should allow people to develop their interests and pursue happiness in their own way (as long as they don’t violate the harm principle). When we push people to live the same way then we are threatening the uniqueness of human beings and indeed human nature itself. And racism, of course, does just this: it takes a certain race as a superior standard and then, seeing that some other race or races do not conform to it, judges those races inferior and treats them unjustly. Some racists can tolerate the people they deem inferior if they can conform enough to their so-called superior standard. But either way we have a violation of both political liberty and the liberty that inheres within human nature itself.
A second and related reason he gives flows from his utilitarian theory of morality which entails that right action is action that generates pleasure for the majority of those involved in a situation. He claims that we might all benefit from the fruits of people’s diverse pursuits. Here we can think of the innumerable contributions from various races that have enriched the human species for the better. True, the results of people’s projects aren’t always useful to say the least. But the ones that are useful “are the salt of the earth; without them, human life would become a stagnant pool”. And this salt cannot flourish in social contexts that do not support our differences. To be sure, Mill is not claiming we have to agree with these pursuits or that we can’t argue against them. But celebrating the right of people to have them will, he thinks, end up promoting the common good. Naturally many racists, sexists, and other haters will disagree. In response, I think Mill would offer them this cautionary remark:
“There is only too great a tendency in the best beliefs and practices to degenerate into the mechanical; and unless there were a succession of persons whose ever-recurring originality prevents the grounds of those beliefs and practices from becoming merely traditional, such dead matter would not resist the smallest shock from anything really alive, and there would be no reason why civilisation should not die out, as in the Byzantine Empire.”
I don’t think Mill is exaggerating here. Our country is being torn apart by racism and the hate, ignorance, cowardice, and violence it brings with it. Indeed, a quick search online will reveal a host of articles exploring the possibility of a second American civil war in some form. The more people continue to follow “merely traditional” forms of oppression in a “mechanical” fashion with “ape-like imitation”, the more we should expect to see more and more social disintegration which, far from helping anyone on a particular side of any debate, will negatively effect us all. Martin Luther King, Jr., in his “Letter from a Birmingham Jail” (April 16, 1963), pointed out that segregation was not only morally evil but “politically, economically and sociologically unsound” as well. I think the same can be said for all efforts to undermine people’s natural right to pursue happiness.
Freedom to Assemble with Like-Minded People
In the wake of George Floyd’s death there have been plenty of protests and counter protests. According to an ACLED (The Armed Conflict Location & Event Data Project) study (see here), most Black Lives Matter protests have been peaceful: “In more than 93% of all demonstrations connected to the movement, demonstrators have not engaged in violence or destructive activity. Peaceful protests are reported in over 2,400 distinct locations around the country. Violent demonstrations, meanwhile, have been limited to fewer than 220 locations —under 10% of the areas that experienced peaceful protests. In many urban areas like Portland, Oregon, for example, which has seen sustained unrest since Floyd’s killing, violent demonstrations are largely confined to specific blocks, rather than dispersed throughout the city.” Plenty of counter-protests have been peaceful as well. However, there have plenty of incidents where protestors on both sides have been unjustly attacked, killed, and even murdered despite the fact that they were not violating the harm principle. And there has been plenty of theft, arson, looting, and overall destruction as well. As a result, many feel unsafe and are discouraged from participating. Indeed, there have been over 100 incidents of people protesting George Floyd’s death being attacked by cars. These attacks have resulted in many injuries and, as of June 2021, at least three fatalities (see here and here). And this discouragement can take legal forms as well. For example, according to an AP news article, “Tennessee protesters will face harsher penalties, including losing the right to vote, for breaking certain laws during demonstrations under a law enacted by Gov. Bill Lee. The Republican governor quietly signed off on the bill Thursday.” The ACLU’s response is included in the article: “We are very disappointed in Governor Lee’s decision to sign this bill, which chills free speech, undermines criminal justice reform and fails to address the very issues of racial justice and police violence raised by the protesters who are being targeted,” ACLU of Tennessee Executive Director Hedy Weinberg said in a statement. “While the governor often speaks about sentencing reform, this bill contradicts those words and wastes valuable taxpayer funds to severely criminalize dissent.”
This all goes to show how Mill’s third category of liberty, the freedom to assemble with like minded people as long as the harm principle is not violated, can indeed be compromised in more ways than one. Again, Mill offers us a framework to assess such compromises and argue why we think they are contrary to liberty. These arguments can easily draw upon the other two areas of liberty. After all, freedom of assembly can be critical to both the pursuit of happiness with others and to the freedom of thought and discussion required for pursuing truth.
Map of George Floyd protests with over 100 participants (click here for a dynamic view)
The Ideal and the Real
Recall Mill’s claim from above: “No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.” If we accept this claim then we have to conclude the United States is not a place where absolute liberty exists. The range of oppression of African Americans, from slavery and Jim Crow laws to recent “Karen” harassment and police brutality, is enough to show us how far we have to come as far as the pursuit of happiness goes. The dangers peaceful protestors experience, while less common, are nonetheless real and make us realize how far we have yet to come in this area of liberty as well. We do, of course, have a great deal of liberty in the United States as far as freedom of speech goes. And we should passionately defend this freedom. But we should be sensitive to the ways in which discourse, far from being driven by Mill’s fallibilistic mind set which pursues truth with others, has become dogmatic leaving people more and more isolated, subject to falsehood, prone to exaggeration, quick to demonization, and, in some cases, encouraged to violate people’s liberty. And, of course, we should be sensitive to the ways hate speech has quickly turned into hate crime. Given these observations, we must conclude that perfect liberty remains an ideal to strive for amidst realities that have, and continue to, prevent it from being fully actualized.
On Liberty certainly offers us a lot of guidance as we continue to pursue the ideal in the wake of George Floyd’s death. I am particularly inspired by Mill’s vision of unique yet fallible human beings who, rather than attacking each other’s characters, are able to engage in passionate debate in the search for the truth. But his framework, like all philosophical frameworks, is imperfect. Indeed, Mill, as a fallibilist, would be the first to admit his work may be mistaken in part or whole. And he would want us to critique his ideas in order to get closer to the truth. Thus I would like to conclude with a few critical thoughts in order to generate inquiry.
First, we can raise a set of questions about some of the key ideas he introduces: is fallibilism true? Must we not be fallible about fallibilism? And, if so, might there be a way to have infallibility after all? And if we had a way to access infallible knowledge would the freedom of the thought and discussion be affected in ways inconsistent with Mill’s vision? And, while it is true that people can change and genuine dialogue can occur in unexpected ways, can we really be optimistic – even melioristic – about the prospects of learning from each other given the ignorance, hatred, racism, sexism, and overall lack of decency amongst people? With regard to his claims about the pursuit of happiness, we can ask questions about his view of human nature and his utilitarian justification that refers to the common good. Do we agree with his assessment of human nature? Do we even have a nature? (My first post in this series on natural law theory with its focus on human nature may help here). And do we think utilitarian theory, which sees pleasure as the ultimate good and which prescribes that the right course of action is the one that generates the most amount of pleasure for the majority of those involved, is correct? How can Mill, who is so concerned about the tyranny of majority, utilize utilitarian theory when compromising the rights of the minority for the sake of the greater good can, in some rare cases at least, be the moral thing to do?
When it comes to the harm principle we can raise a variety of concerns. Should we define harm as a violation of rights? Whose rights? Which rights? And what are rights? Aren’t rights typically more like privileges in our society? If so, can they really offer us a stable foundation for the pursuit of liberty? A lot of work needs to be done if we are to adequately answer these questions (again, my first post in this series on natural law and natural rights may help). We can also ask: when is someone, or some society, not autonomous enough to be protected by the harm principle? When Mill discusses the harm principle he notes he is talking about “civilized” people – not children or those “incapable of self-government” living in “backward states of society.” But what is meant by “incapable” here? And who gets to decide which societies are “backward”? Mill is justly praised for his early advocacy of women’s rights in his classic The Subjection of Women (1869) in which he also expressed his support for the abolition of slavery. But Mill worked for the British East India Company from 1823 to 1858 and “argued in support of what he called a benevolent despotism with regard to the colonies….Mill justified the British colonization of India, but was concerned with the way in which British rule of India was conducted” (Wikipedia). For some this shows that Mill’s ideas can lead to racism and the very tyranny they were introduced to avoid. Indeed, some claim his views on India reveal him to be a racist of some kind (for an argument that this is the case, go here; for a contrary view, go here). The issue, while controversial, shows how perilous it can be to apply a principle that is supposed to offer liberty. It has been all too easy for those in power to decide, with bad intent or not, that certain people are incapable of autonomous action, governance, reason, morality, and so on. So it is important to see how Mill’s principle of liberty can thwart liberty if misused.
Peter Simpson, in his book Political Illiberalism: A Defense of Freedom (Routledge, 2015), goes even further and argues that the harm principle is not an adequate foundation for liberty at all. He points out that, while classical liberalism protected people’s negative rights (rights to not be interfered with), in time liberalism had to protect people’s positive rights as well (rights to certain goods such as education) in order to make a more equal playing field upon which people could pursue their diverse projects. He notes that this led to a striking result, namely, “that classical liberalism ceased to be viewed as the expression of a limited form of government that was, on the basis of the harm principle, protecting everyone’s negative rights. Instead it came to be seen as a system that, by protecting the rich and strong in their seizure of profits, was using its coercion directly to inflict harm. Liberalism thus seemed to be refuted on the basis of its own principle” (51). For Simpson, this dynamic led to, on the one hand, more and more governmental control via a militarized police force to secure both negative and positive rights and, on the other hand, a relinquishing of control as far as morality and religion is concerned. All the liberal state can offer is the value of liberty within the confines of the harm principle. One problem with this offer is that, far from being a morally and politically neutral value, it is a liberal value with which conservatives may disagree. But the more important point is that this lack of substantial guidance, when combined with a set of immoral factors in society, all too often results in a lack of what people require as a means to reaching their diverse ends, namely, virtue. But “if political authority may act to ensure the presence and fair distribution of other basic goods, and if these basic goods are in fact less basic and indeed less good than the virtues, then political authority should act to ensure the presence of the virtues too” (55). According to Simpson, the result is tyranny from both inside and out: external oppression from an increasingly interventionist government and internal oppression from the unruly appetites and passions. What is most needed, the centrality of truth to social life, is exactly what liberalism can’t provide: “the liberal arrangement is false in its understanding of the point and purpose of the human community, since it relegates to the private sphere what should be at the center of public life, namely the striving for the comprehensive truth” (180). Mill, as we have seen, wants to ground the liberty of thought and discussion in fallibilism and a commitment to discover the truth through shared inquiry. But can we really expect, given the lack of guidance the harm principle provides, to develop in people a love of truth and the ability to rationally pursue it? The widespread failure of education and rational engagement with issues in our country suggests a negative answer. In light of these difficulties, Simpson concludes: “The modern state is despotism, and to seek for liberty within it is illusory. Human politics requires the devolution of authority to local communities on the one hand and a proper distinction between spiritual and temporal powers on the other. Neither of these desiderata exists in modern liberalism or the modern state. Human liberty and the human good can be found only in different political arrangements” (x). Simpson’s claims, while controversial, are nonetheless powerful and should lead us to think hard about whether or not the harm principle is an adequate foundation for liberty.