“It is better to reign in Hell than to serve in Heaven.”
“The effect of liberty to individuals is, that they may do what they please: we ought to see what it will please them to do, before we risk congratulations, which may soon be turned into complaints.”
The Liberty Principle propounded by John Stuart Mill, states that individuals should have as much liberty as is consistent with the safety of others; if an individual is harming only themselves with their actions, then this would not justify curtailing their liberty.
I have written a number of articles on this blog about the importance of liberty, particularly on the subject of freedom of speech. My views on the subject have not fundamentally changed and I hope that this nuanced examination of the role that liberty should play in determining morality and jurisprudence, is not misunderstood.
The aim of this article is not to challenge Mill’s Liberty Principle, but to explain its limitations. It will be argued that the Liberty Principle is not a sufficient basis for either morality or jurisprudence. If the Liberty Principle is the only or even the primary basis for the aforementioned, then a state, society or civilization that adopts it as such, is likely to experience decay and then terminal decline.
I am not attempting within this article to provide an alternative moral philosophy or jurisprudence, let alone proposing any specific polices; I am merely attempting to provoke thought and discussion.
Mill was not necessarily advocating the Liberty Principle as the sole basis for morality. Yet it is commonly asserted that a certain act cannot be immoral because it does not cause harm to others. By implication such an assertion is adopting the Liberty Principle as the sole or the primary basis for morality.
CS Lewis deconstructs the ‘live and let live’ type morality, whereby it is argued that an action can only be wrong if it harms others and similarly that morality only concerns fair play and harmony between individuals.
He uses an analogy of a voyage; the voyage will be a success if the ships do not collide with one another and also if each ship is seaworthy. One is not possible without the other; if the ships are not seaworthy they will inevitably collide with one another and if they collide with one another, they will not remain seaworthy. It is no answer for a ship’s captain to state that he can neglect his ship as much as he wishes as long as he does not crash into another, because his neglect will inevitably cause a collision.
By the same token the effect of an individual who fails to improve his personal virtues or deal with his personal vices will be felt by those he comes into contact with and these effects will proliferate throughout society. Further, the rules and systems designed to prevent harm being caused to others will not work if the individual members of society do not have the requisite moral character to adhere to them.
Indeed, even the protection and furtherance of liberty as an end in its self can be compromised by the lack of honour and integrity of those who claim to view liberty as an inherent moral good; see HERE for examples of sophistry on the subject of freedom of speech.
I would argue that the inadequacy of the Liberty Principle is not only apparent with respect to its relationship to individuals; it is also inadequate in terms of the relationship between individuals and the state that it engenders. A state that adopts a moral philosophy based solely or primarily on liberty is not entitled to make demands of its citizens of the kind that have historically forged great civilizations; the liberty principle cannot for example, expect citizens of a state to make the ultimate sacrifice of their life, in the way that nationalism can:
“No consistent individualism can entrust to someone other than to the individual himself the right to dispose of the physical life of the individual. An individualism in which anyone other than the free individual himself were to decide on the substance and dimension of his freedom would be an empty phrase. For the individual there is no enemy with whom he must enter into a life and death struggle if he personally does not want to do so.”
The fact that in practice individuals serve in the militaries of modern liberal states and display valour, no doubt for a variety of motives including those of patriotism and by extension nationalism, does not undermine the aforementioned statement as a philosophical argument. More importantly it does not undermine the wider point, that there can be no duty to a state or nation that transcends individuals under individualism; the duty not to pollute the water supply for instance, is justified only because it may harm specific individuals.
One could respond to my argument by re-affirming the individualism inherent in the Liberty Principle and simply disputing that there should be a duty to a nation or state (or any entity) that transcends the individuals that presently comprise it. Therefore, to justify my argument, I need to compare the individualistic philosophy that I am criticising with an alternative.
With this in mind, I refer to the comparison of Peter Berger between the concepts of ‘honour’ and ‘dignity’(in this context referring to the alleged dignity that is inherent to being human and which allegedly is the moral basis for modern human rights laws; in Berger's view this concept was replacing the concept of honour):
“The concept of honour implies that identity is essentially, or at least importantly, linked to institutional roles. The modern concept of dignity, by contrast implies that identity is essentially independent of institutional roles. To return to Falstaff’s image, in a world of honour the individual is the social symbols emblazoned on his escutcheon. The true self of the knight is revealed as he rides out to do battle in the full regalia of his role; by comparison, the naked man in bed with a woman represents a lesser reality of the self. In a world of dignity, in the modern sense, the social symbolism governing the interaction of men is a disguise. The escutcheons hide the true self. It is precisely the naked man expressing his sexuality, who represents himself more truthfully….In a world of honor the individual discovers his true identity in his roles and to turn away from the roles is to turn away from himself….In a world of dignity, the individual can only discover his true identity by emancipating himself from his socially imposed roles… In a world of honour, identity is firmly linked to the past through the reiterated performance of prototypical acts. In a world of dignity, history is the succession of mystifications from which the individual must free himself to attain ‘authenticity’.”
In the present zeitgeist ‘authenticity’ is the fulfilment of subjective individual desires (putting aside how authentic these truly are and how they may have been induced); these desires should be fulfilled unless they cause direct tangible harm to others and must trump any historical social expectations. Where the latter conflict with the former, they are regarded as oppressive and as worthy of being abolished. The individual is then ‘free’.
However, what in reality is the individual freeing himself from by severing his link to the past? He owes his literal material existence to his biological ascendents. Beyond this, every word he speaks and thought he has come from a language linked to his nation. His natural culture and customs are also linked to his nation. Without a link to his past, he is rootless and deracinated. To say that he has no corresponding duty to posterity, fails to appreciate his link to the past.
This does not mean that all social expectations based on tradition are per se justified and should not be evaluated. What I seek to demonstrate is the absurdity of a moral philosophy that refuses to recognise the importance of nations and institutions, without which humanity as we know it would not exist.
Returning to the concept of ‘honour’ from the above passage, there is a prima facie case for ‘honour’ being unnatural, arbitrary and oppressive. Why should the individual pretend to be something they are not in order to fulfill a role?
The reason is that pretense can sometimes lead to the real thing or at least something closer to the real thing, than would have occurred if there was no effort to pretend. If courage is valued and encouraged, individuals will display it to a greater degree than if it was not valued, however flawed their real courage may be. ‘Honour’ sets up ideals which human nature cannot fulfill, but individuals are elevated when they aspire to it. Where ‘honour’ abides desires are measured against a set of ideals.
By contrast ‘dignity’ considers human nature and by extension human desire as they are, to be the ideal; for instance if a man wants to become a woman this is per se a positive thing, or at least a neutral thing; there should be no pressure to conform to a role of marrying a woman, having children and protecting his wife and children. To place this expectation on him would be oppressive according to proponents of ‘dignity’.
It is easy to see that any moral philosophy based on ‘dignity’ is nihilistic, making no distinction between what is and what ought to be. In making this observation, I am not justifying coercion in any particular instance. Nor am I trying to refute Mill’s Liberty Principle.
However as the sole basis for morality, the Liberty Principle falls short because (a) it does not require self-improvement (b) it does not require a duty to any institution, nation or entity beyond other human beings, even though humanity as we know it would not exist without the aforementioned.
In response to the above section, it could be argued that the Liberty Principle is a sound basis for jurisprudence even if it is insufficient for morality; the law should be concerned with preserving liberty by limiting the state’s power, with morality existing in an alternative sphere. I will seek to demonstrate that whilst the former may be true, it is not a sufficient basis for jurisprudence. Further, the latter is highly questionable for the reasons explored below.
Based in part on the Liberty Principle, J Rawls distinguished between ‘the conception of the good’ and the conception of justice. The former refers to what one regards as the final end(s) of life such as religious convictions and the latter refers to the tangible rights and freedoms that individuals should be entitled to, such as a minimum income from the welfare state or basic freedoms against state power, such as the right not to be subject to arbitrary arrest, along with more basis rights such as the right not to be physically harmed or killed or to have property confiscated.
According to Rawls, the conception of the good cannot be the basis for the enacting of laws and each individual should be free to pursue their own ‘conception of the good’; the state cannot take sides in rival conceptions of the good; such conceptions must be ‘bracketed’ to secure civic co-operation.Laws should be informed by the conception of justice.
However in some instances, whether it is right to ‘bracket’ moral disagreements, will depend on the truth of the propositions in question. For instance, in disagreements over abortion, whether it is right to ‘bracket’ the disagreement depends on the truth or falsity of the alternative propositions, put forward for example by the Catholic Church on the one hand and abortion advocates on the other. If as the former claim, no distinction should be made between the unborn child and any other human being, then it cannot be justified to ‘bracket’ the issue. If the state purports to remain neutral by giving individuals the right to decide on the truth of the Catholic Church’s proposition, it is by default and via its actions, siding with the abortion advocates against the Catholic Church.
The reply to this might be to state that if the Catholic Church were correct, then the issue of abortion should fall outside the ‘conception of the good’ and into the conception of justice. I would accept that the example does not undermine the Rawlsian distinction altogether, but it demonstrates the difficulty in applying it. It also demonstrates the true moral position one is taking by claiming to remain neutral on the issue.
There are however instances where the substantive laws or legislative content will have to be governed by a ‘conception of the good’; their existence may even be premised on a particular ‘conception of the good’. For example, the content of the National Curriculum in England and all parts of the UK is governed by particular ‘conceptions of the god’, such as the teaching of ‘LGBT+’ issues. It could however be argued that a Rawlsian approach would be for the National Curriculum to remain neutral on ‘conceptions of the good’ (although I do not believe it is possible to deliver education in many subjects without imparting conceptions of the good) or even for there to be a libertarian system whereby there was no National Curriculum or even no state funded schools.
Nonetheless, if the state remains neutral on ‘conceptions of the good’, it is by default allowing these to be influenced by prevailing forces, such as the plutocratic mass media or multi-national corporations. The decision to remain neutral on issues that will fundamentally affect the type of society that exists (sometimes to a greater extent than laws that fall within the conception of justice, for example sexual morality may affect whether a state will continue to be populated and if so by whom) in the knowledge that prevailing forces exert considerable influence, would itself be a moral choice, which would inevitably reflect the strength of one’s conviction on a particular issue.
Rawls would reply that however strongly they felt on ‘conceptions of the good’, rational persons under ‘a veil of ignorance (i.e. not knowing their true power and ability to influence) would choose a system whereby the state could not impose ‘conceptions of the good’ and would allow pluralism on such issues, but not on the conception of justice. The reason for this is apparently that one can arrive at conclusions relating to the conception of justice with more certainty that issues concerning, ‘the conception of the good’; yet there are obviously strong disagreements about numerous issues that fall within Rawls’ conception of justice. Additionally, if it is possible to employ reason within both spheres and argue that some conclusions should be preferred over others, the asymmetry between the two is difficult to maintain.
With respect to immigration laws (Rawls did say his theory only applied intra state), these must be governed by a particular ‘conception of the good’; do nation states reflect the general traits of those who founded them or are such traits created by the particular character of the nation state? Alternatively, is it a combination of the two? How should the nation state be defined and should nation states be preserved? What is the effect of mass immigration on a nation state and does it threaten the existence of the particular nation state?
The answers to the above questions and whether they matter, should determine immigration law. The aforesaid questions would fall within the ‘conception of the good’. One cannot honestly claim to be neutral on these questions when determining immigration law. The effects of mass immigration could be said to be empirical, but whether such effects matter and the debate generally, must reflect a particular conception of the good.
The point of the above exposition is that the Liberty Principle cannot be the sole basis for jurisprudence; if one argues based on the Liberty Principle that the state has no right to impose its ‘conception of the good’ on its citizens, then it can be seen that in some cases laws must be governed by a ‘conception of the good’. Further, the decision to remain neutral on issues that fall within ‘the conception of the good’ is itself a moral choice.
I have sought to demonstrate that the Liberty Principle is not a sufficient basis for either morality or jurisprudence. In doing so I do not doubt the importance of liberty generally. Nor I am arguing that the Liberty Principle is wrong in a simple sense.
In my view, liberty should be viewed as a medicine, i.e. something that is needed only because humanity is fallen. A certain amount of liberty from the state is needed because no individuals can be trusted with unchecked power. C S Lewis used this medicine analogy in the Spectator about Equality, although many of his observations can be applied to liberty, in particular the following quote, which could be used to describe a person, such as an extreme hedonist or anarchist, who would refuse to recognise that their freedom should be curtailed for a greater good:
"The man who cannot conceive a joyful and loyal obedience on the one hand, nor an unembarrassed and noble acceptance of that obedience on the other, the man who has never even wanted to kneel or to bow, is a prosaic barbarian."
With respect to statecraft it is unrealistic and undesirable for the Liberty Principle to be the sole basis for jurisprudence. In practice, remaining neutral on moral issues is to allow the will of others on such issues to be imposed.
In either case, whether in morality or jurisprudence, if one only looks to liberty for guidance, then true liberty may not exist in practice and society may descend into a living hell.
 Satan, in Milton’s Paradise Lost 1677  E. Burke ‘Reflections on the French Revolution’ 1790 – 2019 Anodus Books p5  ‘Mill on Liberty’ p119 1859 – Penguin Books 1982 Ed ‘exceptions are recognized, such namely children and the mentally ill  CS Lewis ‘Mere Christianity’ pp 58-59 1952 1997 Edition Fontan Books  Ibid p60.  C Schmitt ‘The Concept of the Political’ 1932 2007 University of Chicago Press – p71  P Berger On the Obsolescence of the Concept of Honour 1983 Changing Perspectives in Moral Philosophy Notre Dame University Press p175. Unlike the philosophy Berger was analysising (p176), Mill did not base his liberty principle on any egalitarian form of anthropology; rather he seems to have been primarily motivated by a desire to prevent the stifling of human potential (for an interesting and moving account, see I Berlin ‘John Stuart Mill and The Ends of Lite’ 1959 publishing in Five Essays on Liberty’ The Isiah Berlin Trust and Henry Hardy 2002 – OUP ‘Liberty’ 2017 Ed – p218). However, the argument herein concerns the effect of an anthropocentric moral philosophy that cannot justify any duty to a state or other entity that transcends individuals.  The Falstaff quote is ‘Honor is a mere scutcheon,” William Shakespeare Henry IV (V.i.141)  Ibid p177  J Rawls ‘A Theory of Justice’ 1971 J Sandison ‘Liberalism and the Limits of Justice – 2nd ed 1982 2010 version p196  Ibid p198  Rawls himself was an advocate of the welfare state. It could be possible for there to be no state schools but for vouchers to be provided for those who could not afford to attend. In the UK private schools do have to follow the National Curriculum but this is not inevitable.  Sandison Op Cite p 206 & Rawls Op Cite  Ibid p210.
 https://www.themarginalian.org/2016/11/29/c-s-lewis-equality-democracy/ - he also referred to democracy, which carries with it, basic civil liberties.