先介紹一下John Stuart Mill吧。此君是第一個提出現在政治法律哲學理念的人。他最出名的理論是“關你叉事定律”﹐說政府只可以應該有權力去防止市民作出傷害他人的行為﹐如果他對自己不好(可能只是主流社會主觀地認為不好)影響不到別人﹐政府就不應干涉他的私人生活。套用俗一點的說法﹐就是 “又影響唔到你﹐老子鐘意點就點﹐關你叉事呀﹗”
On Liberty – John Stuart Mill
In modern political philosophy classics, On Liberty, John Stuart Mill discusses the proper limit of the power the government and society can assert over individuals. He applies the principle of utilitarianism to argue that setting up our legal system based on the harm to other principle is best for the society. In this essay, I will comment Mill’s two arguments supporting his viewpoint in liberty of action by showing their weaknesses. I am not rejecting Mill’s idea on liberty and individual freedom. In the matter of fact, I believe Mill’s work is a corner stone of modern legal systems. I am only demonstrating his arguments are not sufficient to support the conclusion. First I will start by explaining a few definitions in his book to clarity some key ideas.
Definition of terms:
Harm to others principle: The harm to others principle states that the government can only interfere with the actions of its people when the actions are causing harm to others. The government can only punish individuals harming others directly by his action, or indirectly by his inaction through neglecting his duty to the society. The government is not justified to punish people if their action only brings harm to themselves but not others. This principle not only applies to limiting the power of the legal system but also applies to limiting the power of the public opinion, which pressures individuals to conform through moral pressure.
Paternalism: The government and the public opinion acts as the parent of its people, using force to prevent the people harming themselves.
Soft-Paternalism: The government and the public opinion only assert controls on minors or incompetent people who lack rational judgement for their own good. According to Mill, soft-paternalism can also apply to uncivilised races that could not govern themselves.
Hard-Paternalism: The government and the public opinion assert control on adults and component people in the society for their own good.
Enforcement of morality: The government and public opinion interferes self regarding actions of individuals based on morality.
Mill rejects hard-paternalism and enforcement of morality based on the harm to others principle. However he adopts soft-paternalism for obvious practical reasons. Mill has developed two lines of argument to support his view of proper scope of individual liberty of action based on the harm to other principle. In the following paragraphs, I will first outline the arguments, followed by my criticisms to the arguments and Mill’s potential responses. At last I will evaluate whether Mill has successfully defended his view on liberty of action.
Argument from social progress:
Mill first establishes his argument of encouraging individuality will lead to greater good in the society from two sub-arguments: the opposing the despotism of custom and the creation of genius. He thinks allowing individuals to choose his own life will leads to a better life in term of happiness and development. Traditions and custom will limit liberty if they are followed blindly. People should have the right to examine existing customs and decide which one to follow by making rational choices. Mills thinks many people follows customs are merely copying what others do from their experience, without reflecting whether the customs are good or bad. He also thinks geniuses are one of the most important factors in making progress in our society. In other to cultivate geniuses, who are often different from normal people, we need a society with an atmosphere of freedom and variety of situations. He uses examples of collective meritocracy in middle age Europe and eighteen centuries China to support this argument. After his argument for liberty is secured, he further develops his argument that the harm to other principle is necessary to archive this kind of freedom in the society by allowing people to freely express themselves. From the utilitarian perspective, it is beyond dispute that greater good for the society is always desired. Therefore, Mills concludes that we should adopt the harm to others principle for the greater good for the society.
Argument form individual judgement:
Mill starts his argument by defining the difference between self regarding actions and other regarding actions. Our society is formed based on unwritten social contract agreed by all the members. Every individual enjoys the right and benefits being a member of the society in return for bearing his fair share of responsibility. Therefore those who violate the rights of others should be punished by the society, since it is one of its major functions. According to Mills, the society should not interfere with individuals’ self regarding, which only affect the person himself but not others. He states that each rational person has more interest in promoting his own well being than the good for others. He has better knowledge about what is best for himself than anyone one else. Therefore society should not force him to follow the judgement of other people by punishing his wrong doing in the eyes of others. The society may warn him the danger and consequence of his action, but should let him be the final judge. He should bear no more punishment than the natural consequence of his action if that does not affect others. Other people in the society have the right to avoid him or express their distastes towards his action. Mills says the society can only overrule the judgement of individual by legal means if there is a firm ground he is incapable of making the right judgement. Therefore, we should adopt the harm to others principle to respect individual judgements.
Criticism against argument from social progress:
My objection to Mill’s social progress argument is that he assumes tradition and customs are arbitrary rules come from the thin air. He doesn’t realize customs are created to serve the better good for the society in the first place. People follow customs not because they are forced to but because in most of the time custom is the most efficient and convenient way to solve the problems in the society. It is true that when technology progress and situation changes, some customs become out of date and can no longer serve their purpose. Since customs carry their own momentum, the society may take a long to correct itself when customs obsolete. In order to help the society archive higher efficient and progress sooner than later, the society should have the right to uplift those who hang on to old custom through jurisdiction. For example, according to Mill’s argument, we should allow the Amish or Indian reserves continue on their pre-industrial way of living, provided that it is their own choice. It is evidently that the society would progress faster and everyone will lead to a better life if we can modernize the Amish and Native Indians. Therefore, we should only reject the deposition of obsolete and inefficient customs that hinder progress. We should not throw away the baby with bath water by rejecting the deposition of newer and more efficient custom to those who refuse to change.
Defence for argument from social progress:
Mill may attempt to reply my criticism by claiming we are merely flattering ourselves that we are the most progress people who ever lived. He could argue the old customs may better serve the society than the new customs. However, if we study Mill more carefully, we will find that he worries the society will become stagnated if changes are not allowed or too slow. He does not worry about changes happening too fast. In the matter of fact he uses the harm to other principle to encourage changes. I think he may actually agree with my criticism that the harm to others principle is not sufficiently justified by social progress alone. Since he supports soft-paternalism, maybe he can revise his position by stating those who cannot adapt to changes are non-competent people. The enlightened people have the right to impose the new customs on to the losers in the game of social Darwinism.
Criticism against argument from individual judgement:
My object to Mill’s individual argument is that the harm to other principle is self contradictory if we follow the train of thoughts in this argument. According to the harm to other principle, the government only interfere when individuals are causing harm to others. What about individuals interfere with others for good causes out of altruism? According to Mills, the government should not punish those people. Therefore each individual are free to enforce their morality on other as they see fit. For example, a person can take away the cigarette of a smoker because stopping him from smoking is not causing him any harm. A doctor is free to perform blood transfusion on a believer of Jehovah Witness against his will also because it does not cause him any harm. Moreover, Mill agrees that individuals can avoid and openly caution others against those they feel distasted. In a modern society based on division of labour, if the majority are free to isolate the minority, the minority are in effect excommunicated from the society. Put it in another words, Mill’s harm to others principle allows discrimination against the minority. The inaction or avoidance of each individual in the majority group doesn’t violate the harm to others principle. However collectively, the majority can control the actions of the minority through moral coercion of public opinion.
Defence for argument from individual judgement:
Mill may response to my criticism by saying that twisting the harm to other principle against itself violates the spirit of the principle. The principle is intended to protect the liberty of action of the minority from the majority. The majority exploiting the loopholes in the principle will not bring the society any good. Granted, he is right to condemn those abusing the principle based on the utilitarian argument. However Mill has no choice but patch the harm to other principle to avoid such undesired consequences. He may add further constraint to the principle by including more actions besides those causing harm to others or adding secondary principle to seal up the loopholes. I think no matter which solution he picks, he nullifies the argument from individual judgement in its original form.
In conclusion, I think my criticism on Mill’s view on liberty of action is in good faith. I have no intention to reject the fundamental idea of Mill’s political philosophy on individual freedom. By pointing out the inconsistency in Mill’s theory, I helped discover some potential problem in the implementation of the harm to others principle. Although Mill’s response to my criticism cannot defence his original argument for the principle, he may addressing those issues with a revised version of principle. I think my criticisms have no negative effects on Mill’s place in modern political philosophy. Instead my criticisms strengthen Mill’s position on liberty and power of the government.