“… when a person disables himself, by conduct purely self-regarding, from the performance of some definite duty incumbent on him to the public, he is guilty of a social {63} offence. No person ought to be punished simply for being drunk; but a soldier or policeman should be punished for being drunk on duty. Wherever, in short, there is a definite damage, or a definite risk of damage either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law.” [1]
[1] Italics are mine.
It will probably occur at once to the reader that, considered as a practical rule, the view here maintained would by no means curtail unduly the province of social interference. We should rather anticipate that it would leave an easy opening for a transition from administrative nihilism to administrative absolutism; and some such transition seems to have taken place in Mill’s later views. This tendency to a complete bouleversement is the characteristic of all conceptions which proceed by assigning different areas to the several factors of an inseparable whole, which then reasserts itself in its wholeness within the area of either factor to which we may happen to attend. Indeed, even in the passage before us, the defence of individuality has already well-nigh turned round into its annihilation. Every act that carries a definite damage to any other person belongs to the sphere of law, and every act that can be supposed likely to cause such a damage, to that of morality; and individuality has what is left. The extraordinary demarcation between the sphere of morality and that of liberty is to be accounted for, no doubt, by the Benthamite tradition which identified the moral and social sanctions; so that in this usage the sphere of morality means much the same as what, {64} in the first passage referred to, was indicated as the sphere of opinion.
Now, it is obvious that the distinction which Mill is attempting to describe and explain is one practically recognised by every society. The question is whether it can be rightly described and explained by a demarcation which, if strictly pressed, excludes individuality from every act of life that has an important social bearing; while, owing to the two-sided nature of all action, it becomes perfectly arbitrary in its practical working as a criterion. For every act of mine affects both myself and others; and it is a matter of mood and momentary urgency which aspect may be pronounced characteristic and essential. It may safely be said that no demarcation between self-regarding and other-regarding action can possibly hold good. What may hold good, and what Mill’s examples show to be present to his mind, is a distinction between the moral and the “external” aspects of action, on the ground of their respective accessibility to the means of coercion which are at the disposal of society. The peculiar sense in which the term “external” is here employed will explain itself below. [1]
[1] See ch. viii. below.
For our present purpose, however, what we have to observe is merely that the demarcation between individuality and society, contrived in defence of the former, has pretty nearly annihilated it. And thus we see once more how overwhelming is the prima facie appearance that, in the idea of self-government, the factors of self and government are alien and opposed; and yet how hopeless it remains {65} to explain the part played by these factors in actual society, so long as we aim at a demarcation between them as opposites, rather than at a relative distinction between them as manifestations of the same principle in different media.
iii. A few words may here be said on the applications by which Mill illustrates his doctrine, in order to point out what confusion results from relying on a demarcation which cannot strictly be made.
It will be noted in the first place that he objects altogether to the attempt to prevent by punishment either immorality or irreligion as such. [1] This objection a sound social theory must uphold. But if we look at Mill’s reason for it, we find it simply to be that such an attempt infringes liberty, by interfering with action which is purely self-regarding. Without entering further upon the endless argument whether this or any action is indeed purely self-regarding, we may observe that by taking such ground, Mill causes the above objection, which is substantially sound, to appear as on all fours with others which are at any rate very much more doubtful. Such is the objection on principle to all restrictions imposed upon trade with a distinct view to protecting the consumer, not from fraud, but from opportunities of consumption injurious to himself. The regulation or prohibition of the traffic in alcoholic liquors is of course the main question here at issue; and it may be admitted that Mill’s discussion, with the many distinctions which he lays down, is full of shrewdness and suggestiveness. But the ultimate ground which he takes, as above stated, is quite different from the genuine reasons which exist {66} against attempting to enforce morality by law and penalty, and introduces confusion into the whole question of State interference by ranking the two objections together. Closely analogous are his objections to the statutes respecting unlawful games, [2] which, whether wise or unwise, are quite a different thing from an attempt to punish personal immorality as such. And lastly, the same principle is illustrated by his whole attitude to the strong feeling and the various legal obligations which determine and support the monogamous family. In maintaining the general indissolubility of marriage, and supporting the parental power, the State is interfering, for him, with the freedom of parties to a contract, and conferring power over individuals, the children, who have a right to be separately considered. Such interference is for him ipso facto of a suspected nature. It is an interference hostile to liberty; and whether it is or is not an external condition of good life, which the State is able effectively to maintain, is a question which he does not discuss. Throughout all these objections to authoritative interference we trace the peculiar prejudice that the criterion of its justifiability lies in the boundary line between self and others, rather than in the nature of what coercive authority is and is not able to do towards the promotion of good life. On many points indeed, when the simple protection of “others” is concerned, Mill’s doctrine leads to sound conclusions. Such, for example, is the problem of legislation after the pattern of the Factory Acts.
[1] Pp. 48 and 50.