Mill's On Liberty, Part II: Culture and Barbarism

It should be noted that I am not being entirely fair to Mill, who unlike our current liberal theorists, does not indicate that his ideas have general or universal application.  He does believe that the state can regulate the lives of children, and prevent children from self-harm.  This exception is generally accepted by most purveyors of Mill-style liberty.  But more interesting, he notes:

For the same reason we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage.  The early difficulties in the way of spontaneous progress are so great that there is seldom any choice of means for overcoming them:  and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end perhaps otherwise unattainable.  Despotism is a legitimate mode of government in dealing with Barbarians, provided the end be their improvement, and the means justified by actually affecting that end.

It is clear for Mill that Liberty, as he understands it, is only fit for a race of Victorian Englishmen, and whoever might resemble them.  The Barbarians can and should be subject to no less than despotism.  Within Mill, there is a clear belief in a progressive historical process of Progress.  Man begins a savage barbarian, and over time develops in ever increasing levels of moral improvement, until the world reaches perfection.  This belief goes toward why Liberty is important to Mill:  so that smart fellows like Mill can continue develop moral and intellectual developments that will further the development of mankind.  Political repression will retard this process of improvement.  But because Mill conceives of this progress as taking place almost mechanically, he does not consider the possibility that all the liberty he seeks to grant to citizens could possibly backfire, making people more barbaric.  Supposing history to be a series of cycles, of civilization, collapse, and barbarism, we can have little faith that people will use their liberty for good ends, or whether they will simply become decadent and the social order will collapse.  Perhaps it is custom and tradition that makes a nation or a culture great, and failure to preserve that culture in the name of “progress” is first step toward destruction?  These are question that Mill never addresses, because he uncritically believes in progress, and he uncritically accepts that all change must be for the good.  We must ask: what historical evidence is there that supports Mill’s belief?  If this belief is rejected, does it not call into question the whole basic assumptions of Mill’s thought?

            Mill lays out three basic freedoms characteristic of a free society:  freedom of conscience, freedom of the press, and freedom of association.  With respect to the first freedom, I have previously discussed my support of liberalism in such matters as freedom of conscience and the rights of parents to educate their children as they see fit, which is directly related to freedom of conscience.  People in a pluralistic democracy should have a broad right to practice their religion, and transmit their traditions to their children.  But the justification for this right, as I noted, was based on bloodshed generated in the attempt to homogenize a modern society under one religious tradition, not based on a belief in the inevitable progress of the human race.  It is a good rule, in the current day and age, to maintain order and to prevent people from killing each other.  On the other hand, freedom of conscience cannot be absolute, I would not extend it to a tradition that practiced human sacrifice, polygamy and child marriage, ritual suicide like sati, female genital mutilation, or honor killings.  Unlike Mill, I would not simply label these traditions as barbaric, but I would have to look to the differences between the practitioners of these customs and myself, which is based on culture.  My cultural framework is Western, and influenced by modern secular liberalism, which is itself simply a watered-down version of Liberal Protestant Christianity.  I would ban these traditions out of a desire to protect my own cultural forms, as would probably Mill.  But my embrace of freedom of conscience is not general or universal, it is an operative historical fact in modern America.  Clearly, a country like England has an established church, and other societies and political systems have had different relations between religion and the state.  I would not condemn these societies, provided civil order and peace could be maintained amongst classes of citizens.

            Freedom of Speech is an interesting issue, which Mill acknowledges is fundamentally different from freedom of conscience, as freedom of speech is about the attempt to influence or persuade others to one’s point of view.  Invisible in Mill’s analysis is any awareness or acknowledgment of the possibility of civil war, insurrection or revolution.   That is to say, any existing political order, by virtue of its existence, has enemies.  For example, the Soviet Union during the Cold War financially supported individuals seeking to foment a violent revolution in the United States, and the replacement of a democratic system with a dictatorship.  Can a democracy or a free society protect itself against foreign governments seeking to overthrow or weaken a democratic system of government, or must democracy afford its enemies a free reign to operate?  After all, if these attempts were successful, the result would be an end of liberty.  Can liberty protect itself?  If it cannot, it is clearly decadent and politically irresponsible.  Likewise, speech maybe free, but mass media companies and printing presses are not.  The principle of Free Speech puts mass culture into the hands of concentrated financial interests, who are not disinterested political actors.  Although Hollywood and the Corporate Media are not clearly the enemies of the Nation-State, like the Communist Party was, they clearly have a political interest, and their interests can diverge from the National Interest.  There is at least a potential for a conflict of interest here.  Can we really support a rule that completely ties the hands of the government to protect itself from the power of money?  Apparently, our Supreme Court believes we cannot.  Although I support the concept of Free Speech generally, I don’t see issues with exceptions to that rule, to protect against sedition, corruption in morals, to protect the integrity of elections and the legislative process, and to protect against reputational harms in the case of libel or slander.  As an absolute rule, as Mill formulates it, it is indefensible.  The same principles apply to the right of voluntary association.  If a group of Neo-Nazis gets together and begins plotting to bomb Synagogues, I don’t see why our government should have its hands tied up until the point that bombs are actually planted.  Clearly, a political process of line drawing will need to take place, and the line should favor public safety.

Mill's On Liberty, Vaccination and Judicial Authoritarianism

John Stuart Mill's 1859 work On Liberty forms the backbone of many philosophical arguments extended in the name of liberalism, classical and modern.  Mill's concern, and one shared by the author, is preventing tyranny in an age of democracy, which is expressed in his problematic:

There is, in fact, no recognized principle by which the propriety or impropriety of government interference is customarily tested. 

It is important to point out Mill’s assumptions about language and politics.  The issue is the potential for democracy to decay into tyranny, as demonstrated for many in the decline of the French Revolution into a Jacobin Reign of Terror followed by the Dictatorship of Bonaparte.  Democracy certainly posed issues for any right-thinking Englishman of Mill’s day.  

But also interesting is Mill’s solution to the problem of “excess” democracy: the recognition of an abstract principle by which we can test whether government interference goes too far.  We can compare it with the old days of public schools, where a girl could be sent home if her skirt did not “measure up”.  If we analogize our “principle” to a ruler, then perhaps we have a pretty sound basis for curbing excesses in democracy.  This is, of course, the principle problem with Mill’s search for a principle:  principles have almost nothing in common with rulers.  Rulers are physical, and people in general can agree on judgments of length.  There is generally little argument over whether a girl’s miniskirt is actually longer or shorter than 6” inches, although some might feel that the rule itself is stupid or too permissive.

Mill’s principle is the so-called “harm principle”, which he states as follows:

The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control. . . That principle is that the sole end for which mankind are warranted, individually and 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 civilized community, against his will, is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant.

The first problem with Mill’s formulation is that he fails to clarify what he means by “mankind . . . individually and collectively.”  There are, of course, two ways to view “mankind”:  one is as an aggregation of individuals, and the second is as a whole, composing many.  I suspect that for Mill, who I understand was a nominalist, “mankind” is just an aggregation of individuals.  I point this out because, as I attempted to demonstrate in my prior discussion of the ethics of vaccination, it is insufficient to simply construe a collective as merely an aggregation of individuals.  If you take a group of 100 people, 50 of whom are vaccinated, as an aggregate, you have a relatively low level of protection from a disease.  On the other hand, if you take that same 100 people, and concentrate all the vaccinated people in one area, and the unvaccinated in another, you have a community with a high level of immunity, and a community with a low level of immunity.  If you expose both the segregated collective and the unsegregated collective to a disease, you will likely have a less severe epidemic in the community segregated by vaccination compliance:  the segregated aggregate will be able to protect itself better.  On the other hand, if you take a group of 100 people, 90 of whom are vaccinated, you would get differing results in the segregated and unsegregated communities.  Because there is sufficient numbers of vaccinated members to create real herd immunity in the unsegregated aggregate, but enough unvaccinated members to create a serious epidemiological vector in the segregated aggregate, the mixing of the vaccinated and unvaccinated group will tend to produce a better health outcome than the segregated order.  The point is that collective order, above and beyond (but in conjunction with) the individual characteristics of the members, affects the ability of a community to protect itself.  

Mill is claiming to extol the absolute standard for checking the power of the state, so it is important to point out that the liberal/reductionist/nominalist analysis fails to even consider that a community must be considered as ontologically distinct from its members.  Failure to do so subjects members of a liberal community to a lower level of self-protection.  Moreover, this conceptual failure distorts consideration of moral duties of citizens, such as the need to submit to conscription and procreate in the interest of the Nation, which are ultimately rooted in the need for national defense.  Likewise, liberal arguments for the “right-to-work” also fail, in that they undermine the collective rights of workers to manage themselves and bargain collectively (e.g. effectively) in the economic process.  

This leads to the second problem with Mill’s principle, the notion that there can ever be an absolute distinction between an individual harm and a collective harm.  The traditional private “harm” is the person “doing whatever they want in their bedroom”, and I suppose this view can be advanced for married and consenting adults.  But, if we mix fornication and adultery into this heady mix, it immediately becomes more complex, as we are now introducing favorable vectors for the spread of infectious disease.  The higher the aggregate amount of random, unprotected sex in your society, the higher the risk that your teenager will contract uterine cancer from an STD, or pick up the latest antibiotic resistant strain of gonorrhea, leaving him or her potentially infertile for life.  Can society protect itself from venereal diseases by regulating and even criminalizing certain forms of sex between consenting adults?  If we accept Mill’s self-protection principle, it can.  Likewise, as a society, we currently share certain moral opinions on the sexuality of children.  [Given that these views are not shared by other cultures, unless we root these moral values in what the left calls “cultural racism”, or worse, in traditional Christian values, it is unclear how these views are defensible in a non-ethnocentric secularism.]  But speaking today (in our “pre-liberation” state), if we as a culture view sex with children, especially commercial sex with children, as morally abhorrent, then this further impedes the sexual liberation of our consenting adults.  For example, we find regimes of legal prostitution associated with the international sex trafficking of children.  Likewise, the same commercial distribution channels for adult pornography open the gates to the commercial distribution of child pornography, which can be cheaply mass produced in corrupt or failed regimes throughout the world.  Can society ban or restrict the commercial sex industry in order to protect against the sexual exploitation of children?  If we buy Mill’s principle of self-protection, and conjoin it with the last remaining sexual taboo of our modern secularists, then we should be able to shut down the entire commercial sex industry, so-called free speech and all.

Given increasing evidence of the effects of second hand smoke, as well as genetic effects conveyed to children, it seems under the principle of self-protection, and the protection of future children, we can ban tobacco use.  Likewise, given our disability insurance system, why not require seat belts and motor cycle helmets and bans on fast food and hang gliding?  Given that speech may be harmful to morals, or may undermine respect for law, or might incite revolution or sedition, perhaps broader restrictions on speech might be in order to promote self-protection?

The point of this remark is not argue for or against specific policies, but to point out that it is very difficult even in theory to conceive of a private harm that cannot be related to a public one.  In fact, these types of connections are exactly the subjects of public health research, which corroborates that everything is related, and that it matters not only what a particular person does, but how—and to whom—they are related.  We set out looking for a principle with the characteristics of a ruler, something by which we could hold any specific legislative proposal up against, and against which, everyone could agree that it went too far.  Instead, we end up with a rhetorical trope, by means of which we can politically justify or attack any legislative proposal that comes along.

I believe what is wrong with Mill’s entire approach, starting with his abstract “mankind”, is his model of language.  Mankind has no general notion of “harm”.  What a harm is, or is not, can only be ultimately defined by a sovereign power in the form of law.  If the sovereign bans something, presumably the sovereign bans it out of a desire to prevent harm to the populace.  While a sub-national group or cultural group may have a self-styled conception of “harm”, there is no universal notion of what is harmful, as can be discerned by looking cross-culturally at customs in the world.  In some cultures, child marriage is viewed as a beneficial and desirable custom.  In other cultures, it is not.  In some cultures, prostitution (inevitably including child prostitution, of course) is viewed as, if not beneficial, at least something society should look the other way at.  In America, we have something of a divide, with some viewing prostitution as something that should be legalized (while pretending that the problem of the sex trafficking of minors does not exist) while others oppose it.  Is prostitution a harm?  How could that question be settled except through a political process?   I imagine if there was a national political referendum on the question of legalizing prostitution and it failed, I would interpret that as an indication that the populace judged that the negative externalities of prostitution outweighed any individual benefits.  After all, what abstract and neutral principle of harm can we hold our current laws up to, whereby we could determine if they truly protect the collective from the negative externalities of individual choices?   If we look closely at the matter, it is clear that our sub-national political divisions in large measure reflect our collective differences over people’s fundamental conceptions of what behaviors constitute a harm that society needs to protect itself against.  To claim a behavior or a custom pollutes the country is a naked political act.

Although Mill’s approach is not ultimately coherent as a doctrine of political philosophy, it is connected ideologically with certain political institutions in our contemporary society, namely the ideology that surrounds our Federal Judicial Branch.  In this view, Judges simply impartially apply general principles based on universal principles, in much the way Mill envisions the operation of his principle.  But as a practical matter, judges simply impose their own political ideology on our system of laws in the name of abstract constitutional rights.  For example, one is for “free speech” if one more or less agrees with the political judgments of Federal Judges in their interpretation of rights of free speech.  One is against “free speech” if one believes that democratically elected political representatives can promulgate laws regulating speech, even if those laws contradict the political preferences of unelected judges.  What the rhetoric of “individual rights” in the current climate accomplishes is subversion of democratic laws in favor of the preferences of unelected elite political appointees.  Given that our judges are generally highly educated, wealthy, and secular, we should not be surprised that our “constitutional rights” protect concentrations of wealth and the values of secular humanism when those values contradict the preferences of the demos and its representatives.  Should we be shocked that a court full of millionaires determined that corporations are people with rights of free speech, or should we be shocked that people accept a system in which a group of elites strike down democratically enacted legislation intended to promote clean elections in the name of upholding meaningless abstractions?  After all, the Constitution applies to all three branches of government.  Why shouldn’t Congress be able to interpret the Constitution just like the Judicial Branch, which presumably it does when it enacts legislation?  Further, if Congress exceeds the bounds of its Constitutional authority in the eyes of the President, don’t we trust our democratically elected President to veto it?  And if, notwithstanding, some horrible and draconian laws are passed that are contrary to the Will of the People, won’t the voters figure it out and elect new leaders?

It is interesting that people can recognize that abstract principles like “free speech” are, in and of themselves, meaningless, and that a group of unelected lawyers are no more qualified to define the “true” meaning of free speech than a group of democratically elected legislators, but the same people run for the hills if you suggest that the doctrine of Judicial Supremacy is a modern farce.  The Emperor truly has no clothes.  England has a Parliament, Parliament enacts laws, and no judge in England would dare strike down an enacted law on the claim that it violates the English Constitution.  Although England has an Established State Church, England is generally viewed as being a relatively free society and stopped burning heretics in 1612.  If one looks to Europe, there is scant evidence of anything like the American Supreme Court, striking down democratically enacted laws in the name of the Constitution.  To claim that the rejection of Judicial Supremacy will result in some kind of state of anarchy or tyranny is ridiculous.  If we look at our major victories as a People, whether it be the emancipation of slaves or passage of the Civil Rights Act of 1964, or the Religious Freedom Restoration Act, these victories have been accomplished through our Congress, not our Courts.  Actions such as the Japanese Internment were rubber stamped by a liberal Supreme Court.  On the other hand, we can thank the Supreme Court for well-intentioned liberal ideas like busing in the 1970’s, to which Richard Nixon probably owes his presidency, and George Wallace his national profile.   That is to say, if there is an idea which is simultaneously politically divisive and practically unworkable, but it sounds good to fashionable members of an exclusive Beltway tennis club, odds are that the Supreme Court will get behind it.  You can count on their liberal friends to extoll it, and when it goes down in flames, to use it as another excuse to hate America (for example, busing).  

        

I would like to give a recent example of what I am talking about.  First, a caveat:  I generally support the individual rights of citizens to keep and bear arms, and I believe it is the obligation of Congress to ensure that those rights are protected in whatever legislation Congress sees fit to pass.  I don’t have a problem with groups like the NRA lobbying Congress to promote their cause.  However, I do think that a general ban against firearm ownership for people who have been involuntarily committed to mental hospitals is a reasonable restriction on the right to keep and bear arms.  Moreover, if people disagree with me, I respect their right to lobby Congress to expand the rights of the (formerly) mentally ill to pack heat.  Notwithstanding, the Sixth Circuit of the United States Court of Appeals, on December 18, 2014, took it upon themselves in the case of Tyler v. Hillsdale County Sheriff’s Department, to strike down 18 U.S.C. section 922 (g)(4), which restricts people who are involuntarily hospitalized for mental illness from owning guns.  The holding was limited to Mr. Tyler’s facts, but as the Court noted: “The Second Amendment’s individual right to bear arms. . . ‘has boundaries [that] are defined by the Constitution.  They are not defined by Congress.’”  Of course, the actual language in the Bill of Rights does not include any boundaries at all, just a general statement of principle.  What the holding really means is that the Second Amendment has boundaries that will be defined by Federal Judges, not the democratic representatives of the People who are standing for election in the next term.  In other words, the doctrine of Judicial Supremacy gives Federal Courts the right to craft, narrow, or repeal federal legislation without any democratic accountability.  I use this case as an example, both because I do not want to appear as if I am only picking only on liberal causes, but also because I do not view this problem as specifically left or right.  The People are the true Constitution of the Republic, not the Judiciary.  Given that the Congress has greater accountability to the People than our Judiciary, unless we intend to amend the Constitution to make Judges stand for election, then this monkey business has no place in a democracy.  

The problem with both Mill’s approach, and its legitimation of authoritarian rule by judges, is that it attempts to resolve a political problem through a philosophical approach that is removed from history and culture.  The fact that the Government seeks to expand its role in a manner in which it has never historically seen fit, for me, strikes me as a legitimate basis for a political objection.   Particularly if it seeks to regulate in an area which is held by many to reflect received cultural and historical values that may even precede the Founding.  The fact that the Government has been regulating firearms for decades in a particular manner, and then suddenly a federal judge discovers a new way of reading the Constitution--that does not sound like a legitimate basis for striking down a law.  After all, the same Judge might find a new right in the Constitution after lunch legalizing child pornography or permitting the sterilization of the disabled, especially if that manner of thinking becomes the new “in” trend at the tennis club.  This is the sad truth of Judicial Supremacy: the bounds of our Constitution are destined to ebb and flow with whatever intellectual fad is trending with the Beltway elites.  Is that anyway to run a country?  In the Lochner era, we had the inviolable freedom of contract, today we have abortion rights as divined from our Constitution through occult powers of reading, and tomorrow, for all we know, our Constitution might be interpreted by 5 members of Opus Dei, with no democratic accountability in any case.  How are we better off than if we had a system in which Congress passed laws, and if the People objected to the laws, they could vote for a new Congress?